author: Melvin, J.,

text:
    SOL BECKER v. BETTY BELLE BECKER
    [No. 1233,
    September Term, 1977.]

      Decided June 13, 1978.

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

      Neil Edward Axel for appellant.

      Thomas A. Gentile, with whom was Harry W Goldberg on the brief, for appellee.
   Melvin, J.,

delivered the opinion of the Court.

The sole issue presented by this appeal, a case of first impression in Maryland, is whether a father who has been ordered by a divorce decree to pay an undivided sum weekly for the support and maintenance of the two minor children of the parties, may unilaterally reduce by one-half the amount of such payments when the first child attains his majority. We hold that unless the father obtains a court order modifying the amount of support awarded by the divorce decree, he must pay the full amount of the award until such time as the younger child has attained his majority.

By decree dated June 30, 1971,. Betty Belle Becker (appellee)was divorced a vinculo matrimonii from Sol Becker (appellant). The decree granted custody of the two minor children of the parties to appellee, awarded appellee the sum of $25.00 per week as alimony, and provided:

“That the Defendant SOL BECKER shall pay to the Plaintiff, BETTY BELLE BECKER, for the support and maintenance of the aforementioned minor children of the parties the sum of $60.00 per week, pending further order of this Court.”

Appellant began making payments of $85.00 per week ($25.00 /week for alimony plus $60/week for child support) in July of 1971. On April 19,1973, the elder child of the parties, Scott Lawrence Becker, became twenty-one years of age. Appellant continued, however, to make payments of $85.00 per week until April 15, 1974, at which time all payments ceased. On September 23, 1975, appellant resumed making payments to appellee, but only in the amount of $40.00 per week. Appellant continued to make payments of $40.00 per week until October 17,1977.

Meanwhile, on August 1, 1974, appellee filed a motion to increase child support and alimony. An order increasing alimony and support was filed on July 3, 1975, but was vacated on May 3,1976 nunc pro tunc due to defective service of process. The matter was then referred to the Master for Domestic Relations, who recommended the termination of both alimony and support. An order terminating alimony and support was signed on July 25, 1977.

On September 10, 1976, appellee filed one of a series of motions to adjudicate appellant in contempt for failure to comply with the alimony and support provisions of the June 30,1971 divorce decree. A hearing on the motion was held on October 18, 1977, at which time appellant admitted that he was in arrears, but contended that he was obligated to pay child support in the amount of $60.00 per week only until April 19, 1973 (when the elder child turned twenty-one) and that from April 19,1973 until July 1,1977 (when the younger child turned twenty-one) he was only obligated to pay child support in the amount of one-half that ordered by the June 30, 1971 decree or $30.00 per week. The trial judge (Fairbanks, J.) rejected this contention, holding that appellant was obligated to pay child support in the amount of $60.00 per week until the younger child attained the age of twenty-one, or until the June 30, 1971 divorce decree was modified by an order of court. Based on this holding, the trial judge computed the arrearages (in child support and alimony) at $6,730.00 and entered judgment on that amount. From this judgment, appellant noted a timely appeal to this Court, contending that his obligation to pay child support was automatically reduced by one-half (Le., to $30.00 per week) on April 19, 1973 when the elder child attained the age of twenty-one. Thus appellant contends that the trial judge erred in computing the amount of arrearages, and that the correct amount is $1,650.00. We find no error, and will affirm the judgment entered below.

In 2 Nelson, Divorce and Annulment, § 14.91 at 127-28 (2d ed. 1961) the general rule is stated that:

“In the absence of an agreement providing otherwise, the allowance for support of a child is ordinarily limited to his or her minority. However, where one monthly sum is awarded for support of several minor children during their minority, it will be considered as providing monthly payments of such sums until the youngest child has attained his majority.”

This rule has been adopted in the vast majority of jurisdictions which have considered the question of whether the award of an undivided sum periodically for the support and maintenance of minor children is automatically reduced when the eldest child attains his majority. See e.g. Doty v. Doty, 45 Ill. App. 3d 213, 359 N.E.2d 784 (1977); Halcomb v. Halcomb, 343 So. 2d 1183 (La. App. 1977), aff'd., 352 So. 2d 1013 (La. 1977); Redman v. Redman, 521 P. 2d 584 (Wyo. 1974); Delevett v. Delevett, 156 Conn. 1, 238 A. 2d 402 (1968); Cosgriff v. Cosgriff, 126 N.W.2d 131 (N. D. 1964); Gordon v. Ary, 358 S.W.2d 81 (Mo. Ct. App. 1962); Taylor v. Taylor, 147 Colo. 140, 362 P. 2d 1027 (1961); Cooper v. Matheny, 220 Or. 390, 349 P. 2d 812 (1960); Kuyper v. Kuyper, 244 Iowa 1, 55 N.W.2d 485 (1952); Schrader v. Schrader, 148 Neb. 162, 26 N.W.2d 617 (1947); Miller v. Miller, 74 App. D. C. 216, 122 F. 2d 209 (1941). But see Ditmar v. Ditmar, 48 Wash. 2d 373, 293 P. 2d 759 (1956); Codorniz v. Codorniz, 34 Cal. 2d 811, 215 P. 2d 32 (1950). See generally, Annot., Undivided Support Award, 2 A.L.R.3d 596, 611-13 (1965) and 1977 supp. While the appellate court of Illinois in Snip v. Snip, 35 Ill. App. 2d 427, 183 N.E.2d 175 (1962) reached a result contrary to that dictated by the rule set out in 2 Nelson, Divorce and Annulment, supra, that same court, in the later case of Doty v. Doty, supra, declined to follow Snip v. Snip, supra, noting that, “... later cases have not followed the rationale of Snip. ” 359 N.E.2d at 786.

There is also sound reasoning behind the rule holding that an undivided award is not automatically reduced by the emancipation of the eldest child:

“The reason for considering a single amount to be paid periodically for the support of more than one child as not subject to an automatic pro rata reduction is two-fold. First, a child support order is not based solely on the needs of the minor children but takes into account what the parent can afford to pay. General Statutes § 46-26; Yates v. Yates, 155 Conn. [544], 235 A. 2d 656. Consequently, a child support order may not accurately reflect what the children actually require but only what the parent can reasonably be expected to pay. To allow an automatic reduction of an undivided order would be to ignore the realities of such a situation. Second, to regard an undivided child support order as equally divisible among the children is to ignore the fact that the requirements of the individual children may vary widely, depending on the circumstances. Cooper v. Matheny, supra.Delevett v. Delevett, supra, 238 A. 2d at 404.

See also Redman v. Redman, supra at 587; Cosgriff v. Cosgriff, supra at 134; Gordon v. Ary, supra at 83; Cooper v. Matheny, supra, 349 P. 2d at 813.

We adopt the rule set out in 2 Nelson, Divorce and Annulment, supra and hold that Judge Fairbanks was correct in concluding that appellant’s obligation to pay child support as provided for the 1971 divorce decree was not automatically affected by the elder child’s having attained his majority. While the elder child’s having attained his majority may have been grounds, upon proper application by appellant, for an order from the circuit court modifying the 1971 decree, appellant made no such application. Absent a court order modifying the 1971 decree, appellant remained obligated to pay weekly the undivided sum provided for in that decree until the younger child attained his majority.

Judgment affirmed; costs to be paid by appellant.

      . The obligation to pay child support actually terminated by operation of law on July 1,1977, when the younger child attained the age of twenty-one. Borchert v. Borchert, 185 Md. 586, 45 A. 2d 463 (1946).

        . Ditmar, relied on by appellant in his brief, is actually distinguishable from the case sub judice in that the decision therein was based on the trial court’s having construed the decree awarding child support “as providing a severable award adequate for three children." 293 P. 2d at 760-61. As the trial court in this case construed the decree awarding child support as providing an undivided rather than a severable award, the holding in Ditmar does not necessarily dictate a result contrary to that we reach herein.


source: Caselaw Access Project

author: Lowe, J.,

license: Public Domain

text:
    STATE OF MARYLAND v. JAMES ISAAC MAYES, JACQUELYN (NMN) MAYES and JOHN WHILEY GOODING
    [No. 1247,
    September Term, 1977.]

      Decided June 14, 1978.

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

      Stephen B. Caplis, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, Arthur A.

      Marshall, Jr., State’s Attorney for Prince George’s County, and Robert C. Bonsib, Assistant State’s Attorney for Prince George’s County, on the brief, for appellant.

      Fred Warren Bennett, with whom were Goldstein, Ahalt, Glassman & Bennett, Chartered on the brief, for appellees James Isaac Mayes and Jacquelyn (NMN) Mayes. Alan J. Goldstein, with whom were Horowitz, Oneglia, Goldstein, Foran & Parker, P.A. on the brief, for appellee John Whiley Gooding.
   Lowe, J.,

delivered the opinion of the Court.

How beguilingly simple the question posed by the State appears in its appeal from the dismissal of an indictment by the Circuit Court for Prince George’s County:

“Was it error for the trial court to dismiss the indictments returned against the Appellees?”

Were it not necessary to raise, then exorcise, tangential procedural and constitutional spectres, our negative response to that question could be commensurately terse. This would hardly displease the parties whose concern must be more with our conclusions than with why we arrived at them; however, we also write in a shadow portending review. While our reasons may be of sparse educational benefit to bench or bar generally, the Court of Appeals quite properly is concerned not only with why we have reached the result, but how it is we were able to consider the State’s appeal at all.

The case concerns a wiretap authorization to intercept communications relating to drug and gambling transactions, signed by Judge William B. Bowie on October 27,1976, from which later flowed affidavits which, in turn, gave rise to search warrants issued on November 19, 1976. Based upon evidence thereby seized, indictments were returned against appellees by the Prince George’s County Grand Jury on March 23, 1977.

A proliferation of motions were filed by the appellees, including a motion to suppress the evidence, which was denied by Judge Howard S. Chasanow on August 18,1977. At that hearing, appellant apparently raised an issue of the interpretive scope of Judge Bowie’s wiretap authorization. Judge Chasanow declined at that juncture to rule on the issue, but suggested that the State might consider a petition, pursuant to 18 U.S.C. § 2517 (5), (Md. Code, Cts. Art., § 10-407 (e)), for authorization to use those conversations “if”, as explained by the State, “they were not covered by the original order”.

Generally, § 2517 (and Cts. Art., § 10-407) provides, among other things, when and how wire and oral communications interceptions may be authorized and, if properly intercepted, when, where and how the communications may be disclosed. (Kg., in any court or grand jury proceeding.) Subsection (5) of that section provides that when officers intercept communications relating to offenses other than those provided for in the authorization order, such ultra vires evidence so obtained may still be disclosed in a judicial proceeding, but only when approved on subsequent application to a court, which “application shall be made as soon as practicable”.

Turning now to the facts of the instant case, we find the State’s § 2517 (5) petition, heard before Judge Bowie, succinctly set forth the chronology of significant events.

“1. On October 27, 1976 the Honorable William Bowie signed an Order under Miscellaneous No. 745 which authorized the interception of telephonic communications over the telephone number 449-4447 relating to the crimes of illegal sports bookmaking and narcotics and conspiracy to commit same.

2. That said Order was executed between October 28, 1976 and November 18, 1976 during which time conversations were intercepted relating to violations of the controlled dangerous substances laws relating to Marihuana and Phencyclidine, violations of the gambling laws (Article 27, Sections 237-242) and conspiracy to commit said offenses.

3. That on August 16-18, 1977 before the Honorable Howard Chasanow, a motion to suppress evidence obtained as a result of that wiretap was heard, and said Motion to Suppress was denied. During that hearing, however, Judge Chasanow indicated that the State should consider filing an application to the issuing judge to authorize the use at trial of .conversations relating to violation of the controlled dangerous substances laws other than just narcotics (to wit: Marihuana and Phencyclidine) and violations of the gambling laws other'than just illegal sports betting."

Before reaching the question whether the post prolem suscitatam application was timely sought, Judge Bowie recognized that he had to decide whether his original order to intercept was intended to comprehend conversations of any drug related offenses, including marijuana and phencyclidine, or whether the parenthetically descriptive term “narcotics" which followed the generic description of “controlled dangerous substances" in his order (and the supporting affidavit) modified that which it described, i.e., in the nature of an ejusdem generis interpretation. The same problem of scope arose in regard to conversations of gambling violations since the order and affidavit permitted interceptions of conversations relating to “illegal sport betting”, whereas conversations of other gambling activities were received. (E.g., numbers.)

After analyzing his order, which he described as “inartfully drawn”, Judge Bowie declared that:

"... our view is that the nub of the order is illegal sports bookmaking and narcotics laws and would not under its precise terms include non-narcotic controlled dangerous substances, such as marijuana and PCP.”

He then decided that the § 2517 (5) (Cts. Art., § 10-407 (e)) petition filed on August 29, 1977, for permission to disclose the ultra vires interceptions which had been taken between October 28,1976 and November 18,1976, did not comply with the statutory prerequisite that such application be made “as soon as practicable”. Not only had nine and one-half months elapsed before permission was sought, but the information had already been disclosed to the grand jury and indictments rendered thereon. The State did not appeal from that denial of its application for an order of approval pursuant to Cts. Art., § 10-408 (i) (3).

Appellees immediately filed a “Motion to Suppress Evidence and to Dismiss Indictment”, reciting all that had transpired, culminating in Judge Bowie’s denial of the State’s petition. They argued that because all of the evidence (even that seized under search warrant) had been derived from interception of conversations now judicially declared to be related to offenses other than those authorized to be intercepted (which could not now be disclosed in any proceeding), all such evidence “must” be suppressed as to any further proceeding, and, since it had already been disclosed to the grand jury in the obtention of the indictments, the indictments should be dismissed.

At the hearing upon this dual motion heard by Judge Chasanow, the State conceded that the indictments in question were based (or might have been based) upon conversations relating to the marijuana and PCP “other offenses”. Judge Chasanow held that he was “bound” by Judge Bowie’s ruling

“that any conversations with regard to PCP, marijuana and nonsports bookmaking, gambling, were not properly utilizable by the State.”

Judge Chasanow then held that since Judge Bowie had ruled that disclosure would be statutorily proscribed, the prior admitted disclosure to the grand jury had been in violation of § 2517 and § 2515 of Title III (and its subsequently adopted State counterparts, Cts. Art., § 10-407 and § 10-405).

Presumably in hopes of avoiding obstacles which it has no desire to encounter, the State asks us to dos á dos from Judge Chasanow’s dismissal (from which it appealed) to Judge Bowie’s disclosure denial (which it did not appeal), taking Judge Bowie’s suppression reasoning, and returning it by imputation to Judge Chasanow in order to obtain a review of discretion. Without so much as a backward glance, while attacking Judge Bowie’s reasoning through the pattern of adoption by Judge Chasanow, the State asks us not to consider that the dismissal followed in the wake of the course the State sought originally to pursue by its petition, because it now believes such petition was unnecessary in the first instance.

While discouraging us from dancing to the State’s tune, appellees suggest a somewhat awkward two-step of their own. They contend that there was a right of appeal by the State from its denial because the ruling was a “final judgment” in a “noncriminal case”, citing as authority several civil cases in which the State’s right (and collateral duty) to appeal was discussed. However, appellees’ argument is founded entirely upon the presupposition that because the petition was clerically numbered as “Misc. No. 745”, it was a separate and different proceeding from the criminal case at bar.

The “Miscellaneous” designation is first applied to the State’s petition for authorization to wiretap, and, since the case is still in its investigatory stage, a more formal criminal case designation is neither available nor appropriate. For obvious reasons of preliminary confidentiality (see then applicable Cts. Art., § 10-405, repealed Ch. 692, Acts of 1977), the case is entitled “Miscellaneous #_versus Petition in the Matter of the Application of [the State’s Attorney]”. The investigatory stage is usually still prevalent at the time of a subsequently sought disclosure under § 2517 (5) (Md. Code, Cts. Art., § 10-407 (a)). The “Miscellaneous” designation is nothing more than a clerical procedure for keeping track of a non-public, preliminary, court-authorized criminal investigatory procedure which may, or may not, culminate in a criminal case, but can hardly be called a “non-criminal case”. Here, however, the delay in seeking § 2517 (5) disclosure is emphasized by the interim indictment of appellees before permission was obtained to disclose that upon which the indictment had been obtained; as a result, a case which would have been in the investigatory stage under ordinary circumstances (and thus appropriately designated “Miscellaneous”), had already ripened into a criminal case.

The underlying premise of appellees, that the State had a right to appeal, is correct, however. Maryland’s new wiretap law provides in Cts. Art. § 10-408 (i) (3) that:

“In addition to any other right to appeal, the State shall have the right to appeal from the denial of an application for an order of approval, if the prosecuting attorney shall certify to the judge or other official denying the application that the appeal is not taken for purposes of delay. The appeal shall be taken within 30 days after the date the order was entered and shall be diligently prosecuted.”

The effective date of the Act encompassing that section was July 1, 1977. Although the original wiretap approval in this case was prior thereto, and the interception of communications of other offenses was made prior thereto, the application for approval of its use was not filed until August 29,1977, and denied by Judge Bowie thereafter. The State did not appeal that ruling within 30 days as it was statutorily entitled to do and is consequently bound by it. We will not review Judge Bowie’s reasons denying the State’s application for approval in what all parties agreed at argument to be in effect a criminal evidentiary suppression proceeding.

Judge Chasanow was thus faced with appellees’ “Motion to Suppress Evidence and to Dismiss Indictment”, predicated upon Judge Bowie’s ruling on the State’s disclosure petition. Without considering the merits of that ruling, as we have noted, Judge Chasanow stated that Judge Bowie’s ruling (that wiretap evidence was obtained in violation of the authorization), was binding upon him. Md. Rule 736.12., by Order of the Court of Appeals, became effective on July 1, 1977 as to all cases arising thereafter, but the Order added that the rule was also to be effective as to those cases pending “insofar as practicable”. It decidedly endorses the position taken by Judge Chasanow:

“If the court grants a motion to suppress evidence, the evidence shall be excluded and shall not be offered by the State at trial, except that suppressed evidence may be used in accordance with law for impeachment purposes. If the court denies a motion to suppress evidence, the ruling is binding at the trial unless the court, in the exercise of its discretion, grants a hearing de novo on a renewal of the motion. A pretrial ruling denying the motion to suppress is reviewable on a motion for a new trial or on appeal of a conviction.”

Furthermore, the rule tacitly implies that when evidence is suppressed, the State, unlike the defendant, has no judicial discretion available for a de novo renewal hearing. It is clear therefore that Judge Chasanow was correct in acting upon the premise that he was bound by Judge Bowie’s ruling on the suppression question.

This left Judge Chasanow with but two questions before him. The first related to how much, if any, derivative evidence had been obtained by virtue of the wiretap violations which was required to be suppressed in future trials (“fruit of the poisonous tree”); the second question was what sanction he should impose for the use of the violative evidence which had already been used before the grand jury to obtain the indictments. Since dismissal of the indictments was the sanction applied for, he faced that question first, and correctly so, because if dismissal was the proper sanction, there would be no imminent trials to warrant a derivative evidence determination.

— the sanction of dismissal —

Relying on Everhart v. State, 274 Md. 459, the State argues that illegally obtained evidence may be considered by a grand jury (see Bartram v. State, 280 Md. 616), and thus illegally obtained wiretap evidence should not be precluded from its consideration. The State adds further that “no need, for prior judicial approval for Grand Jury use of wiretap evidence of unspecified offenses, is mandated by federal law.” Therefore, dismissal of the indictment so obtained was improper.

Perhaps the State reads 18 U.S.C. § 2515 differently, but we consider that section as an absolute bar against the use of such evidence before a grand jury.

Whene ver any wire or oral communication has been intercepted, no part oí the contents oí such communication and no evidence derived therefrom maybe received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.” (emphasis added).

When the evidence of “offenses other than those specified in the order of authorization” was submitted to the grand jury without the prerequisite “subsequent application” required by § 2517 (5), it was done “in violation of this chapter” as proscribed by § 2515. That dismissal of the indictment obtained upon the disclosure to the grand jury of communications intercepted beyond authorized limits was the only reasonable sanction available is taught to us by example in State v. Siegel, 266 Md. 256, as enforced by the federal authority relied on by Judge Chasanow, United States v. Brodson, 528 P. 2d 214, and reinforced by Gelbard v. United States, 408 U. S. 41. Notwithstanding such substantive and persuasive authority, common sense dictates that if we do not apply dismissal as a sanction here we will instruct the State sub silentio not to conform to Cts. Art., § 10-407 (or 18 U.S.C. § 2517 (5)) for it if does apply for leave to disclose to the grand jury intercepted wiretap evidence of offenses other than those authorized, that permission might be denied them and, to proceed in the face of an express court order, would be audacious advocacy and judicially dangerous. On the other hand, if permission to disclose is not sought propitiously, as required, its use, while possibly improper, is not yet contemptuous, and an indictment obtained thereby would not be jeopardized since the only available sanction would be a judicial “tsk-tsk”.

That the Court of Appeals in Siegel affirmed dismissal of an indictment as a sanction, while expressly indicating that it would not abide the slightest deviation from the prescribed path of electronic surveillance in pre-intercept and intercept conditions, Poore v. State, 39 Md. App. 44 (1978), compels, rather than persuades, us that the sanction of dismissal chosen by Judge Chasanow was the proper route.

We find no reason to reverse Judge Chasanow’s dismissal of the indictment which was predicated upon Judge Bowie’s interpretation of his authorization for electronic surveillance. We decline appellees’ invitation, however, to exercise our discretion under Rule 1085 and rule upon the derivative evidence question left undecided below.

Judgments affirmed.

Costs to be paid by Prince George’s County.

APPENDIX

18 U.S.C. § 2515

“Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.”

18 U.S.C.

“§ 2517. Authorization for disclosure and use of intercepted wire or oral communications

(1) Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire or oral communication, or evidence derived therefrom, may disclose such contents to another investigative or law enforcement officer to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.

(2) Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire or oral communication or evidence derived therefrom may use such contents to the extent such use is appropriate to the proper performance of his official duties.

(3) Any person who has received, by any means authorized by this chapter, any information concerning a wire or oral communication, or evidence derived therefrom intercepted in accordance with the provisions of this chapter may disclose the contents of that communication or such derivative evidence while giving testimony under oath or affirmation in any criminal proceeding in any court of the United States or of any -State or in any Federal or State grand jury proceedings.

(4) No otherwise privileged wire or oral communication intercepted in accordance with, or in violation of, the provisions of this chapter shall lose its privileged character.

(5) When an investigative or law enforcement officer, while engaged in intercepting wire or oral communications in the manner authorized herein, intercepts wire or oral communications relating to offenses other than those specified in the order of authorization or approval, the contents thereof, and evidence derived therefrom, may be disclosed or used as provided in subsections (1) and (2) of this section. Such contents and any evidence derived therefrom may be used under subsection (3) of this section when authorized or approved by a judge of competent jurisdiction where such judge finds on subsequent application that the contents were otherwise intercepted in accordance with the provisions of this chapter. Such application shall be made as soon as practicable.”

Md. Code, Cts. Art., § 10-405

“Whenever any wire or oral communication has been intercepted, no part of the contents of the communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of this State, or a political subdivision thereof if the disclosure of that information would be in violation of this subtitle.”

Md. Code, Cts. Art.

“§ 10-407. Lawful disclosure or use of contents of communication.

(a) Disclosure by investigative or law enforcement officer. — Any investigative or law enforcement officer who, by any means authorized by this subtitle, has obtained knowledge of the contents of any wire or oral communication, or evidence derived therefrom, may disclose the contents to another investigative or law enforcement officer to the extent that the disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.

(b) Use of contents by officer. — Any investigative or law enforcement officer who, by any means authorized by this subtitle, has obtained knowledge of the contents of any wire or oral communication or evidence derived therefrom may use the contents to the extent the use is appropriate to the proper performance of his official duties.

(c) Disclosure while giving testimony. — Any person who has received, by any means authorized by this subtitle, any information concerning a wire or oral communication, or evidence derived therefrom intercepted in accordance with the provisions of this subtitle, may disclose the contents of that communication or the derivative evidence while giving testimony under oath or affirmation in any proceeding held under the authority of the United States or of this State or any political subdivision thereof.

(d) Privileged character of communication not lost. — An otherwise privileged wire or oral communication intercepted in accordance with, or in violation of, the provisions of this subtitle, does not lose its privileged character.

(e) Communications relating to offenses not specified in order. — When an investigative or law enforcement officer, while engaged in intercepting wire or oral communications in the manner authorized herein, intercepts wire or oral communications relating to offenses other than those specified in the order of authorization, the contents thereof, and evidence derived therefrom, may be disclosed or used as provided in subsections (a) and (b) of this section. The contents and any evidence derived therefrom may be used under subsection (c) of this section when authorized or approved by a judge of competent jurisdiction where the judge finds on subsequent application that the contents were otherwise intercepted, in accordance with the provisions of this subtitle. The application shall be made as soon as practicable.”

      . It should be chronologically noted that Maryland’s new “Wiretapping and Electronic Surveillance Law” became effective on July 1,1977, prior to this hearing.

      . The record does not reveal why Judge Chasanow declined to decide this question.

      . 18 U.S.C. § 2517 and Cts. Art., § 10-407 are appended.

      . "It seems to me that in order to entertain a decision on this petition we would first have to determine what the original order intended according to its clear wording.
      We feel that it is necessary for us to make this determination in order that we even entertain the petition that is involved here, because the petition asked that certain conversations that went on during the wire tap be expanded to include controlled dangerous substances, marijuana and PCP. Another perhaps concerning sports bookmaking.”

      . “At the November 2, 1977, hearing the State conceded that as to indictment 17,837, Counts II through 34 would be based on conversations relating to marijuana and PC?. As to indictment 17,838 counts 10,11 and 12 were so based. As to indictment 17,842, counts 5 through 10 and counts 12 and 13 were so based. The State further admitted that the remaining counts in each indictment might have been affected by the wiretap conversations, at least insofar as the Grand Jury’s considerations were concerned.”

      . "Back to back”. A square dance movement during which the dancers approach each other from opposite lines, circle back to back and return to their original positions.

      . The rule, of course, does not address itself to petitions for disclosure under the wiretap statute. However, to the extent that hearings on such a petition can be analogized to a suppression hearing, as all parties in this case agreed it could, the rule would apply.

      . The indictments were obtained on March 23, 1977, approximately 3 months before the State Wiretap and Electronic Surveillance Law was to become effective. The State counterpart to § 2515 which appears in Md. Code, Cts. Art., § 10-405 is not materially different. We have appended the two sections for comparison.

      . But cf. Hayward v. State, 278 Md. 654, 658, declaring generally that:
      “.... the proper sanction to be invoked where evidence has been seized in violation of Fourth Amendment rights is application of the exclusionary rule, not dismissal of the indictment.

      . It does not affect our decision that Judge Chasanow was moderately influenced by extraneous reasons:
      "Gentlemen, let me say this, with apologies to the appellate court, and I’m sure I’ll be appropriately reminded of my obligation, I will say that I can’t help but be at least minimally influenced by the fact that if by dismissing the indictment at this juncture, jeopardy clearly has not attached, not even arguably attached, that the State is not harmed because the only count that would be effected by limitations are counts that clearly the State would have no utilizable evidence on."


author: Liss, J.,

text:
    JOHN H. MEARS, JR. v. BRUCE, INC.
    [No. 81,
    September Term, 1978.]

      Decided July 11, 1978.

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

      Charles W. Collett, with whom were Goldsborough, Franch & Collett on the brief, for appellant.

      T. Hughlett Henry, Jr., with whom were William H. Price, II, and Henry, Hairston & Price on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

On November 11, 1977, the Easton Board of Zoning Appeals reversed a prior decision of the Town of Easton Building Inspector and directed that a building permit be issued to the appellee herein, Bruce, Inc., for the construction of a 55,000 square foot store to be leased to K-Mart, Inc. The appellant, John H. Mears, Jr., noted an appeal on December 8, 1977 to the Circuit Court for Talbot County, and on December 16, 1977 filed a petition pursuant to Rule B2.e of the Maryland Rules of Procedure. On the day the appeal was noted counsel for appellant communicated with the Town Clerk, Elizabeth M. Willey, and requested that she prepare a transcript of the proceedings before the Board of Zoning Appeals and delivered a cover letter and check for advanced costs, receipt of which was acknowledged on the same date.

There is some confusion as to what occurred on January 5, 1978. Counsel for appellant states that he personally communicated with the Town Clerk’s office to determine if the record would be ready in time for transmittal within the 30-day period prescribed by the Rules which he mistakenly calculated to fall on January 8, 1978. The actual expiration date of the 30-day period was January 16, 1978. He further stated that he was advised that the record was ready and immediately dispatched his secretary to the office of the Town Clerk for the specific purpose of physically transporting the record to the Clerk of the Circuit Court. Appellant’s counsel contends that his secretary was advised that the papers which she picked up from an employee at the Town Clerk’s office was the Bruce, Inc. record and that she delivered them to the Deputy Clerk of the Circuit Court for Talbot County. Prior to that delivery the secretary stopped at her office and made two copies of the transcript, placing one copy in the appellant’s file and delivering one copy to counsel for the appellee. Later that same day the Deputy Clerk called the secretary to request that a title page be prepared for the transcript, and the secretary prepared and delivered it to the Clerk’s Office as requested.

Appellee at least partially contests the appellant’s statement of the facts and points out that the Town Clerk in her testimony did not remember whether her conversation with appellant’s counsel related to the readiness of the transcript or the record. It is conceded by the appellant that the documents delivered to the office of the Clerk of the Circuit Court did not include the exhibits filed before the Board of Zoning Appeals at the original hearing and that, therefore, the record was not complete to that extent.

On Friday, January 20, 1978, appellee filed a motion to dismiss appellant’s appeal on the ground that appellant had failed to comply with the requirements of Rule B7 of the Maryland Rules of Procedure.

On Monday, January 23,1978, the exhibits which had been introduced into evidence before the Board of Zoning Appeals were delivered by the Town Clerk and filed by the Clerk of the Circuit Court in the proceedings pending in that court. On January 26, 1978, the Town Clerk testified that she had no prior knowledge of Maryland Rule B7 and more specifically of the requirements imposed upon her by subsection a of that Rule. On that date, the Circuit Court for Talbot County granted appellee’s motion to dismiss the appeal for failure to transmit the record within the time limitations allowed by law. At a later hearing on appellant’s motion to reconsider, the Circuit Court on February 15, 1978 reaffirmed its prior ruling and this appeal followed.

The issue raised herein is whether the trial court erred in dismissing appellant’s appeal in the Circuit Court on the ground that the entire record had not been transmitted within the time prescribed by the Rules. Appellant urges that his failure to comply completely with Rule B7 is excused by the provisions of subsection c of that rule.

The case sub judice presents a unique situation in which the principal issue arises out of the failure of the clerk of an administrative agency to transmit the entire record within the time prescribed by Rule B7.a. It is agreed by both parties that the transcript of the proceedings before the administrative agency was timely filed but that the exhibits were omitted and not filed for record with the Clerk of the Circuit Court until after the 30-day filing period had expired. That failure is the sole deviation from the requirements of the B Rules, which is charged against the appellant.

The trial judge, in granting the appellee’s motion to dismiss the appeal, based his conclusion on three grounds which he stated as follows: (1) Md. Rule B7.a imposed a duty on the appellant to see that a complete record was transmitted to the Clerk of the Circuit Court within the time allowed by law; (2) the fact that a secretary of counsel for the appellant physically picked up the record from the clerk of the administrative agency and delivered it to the Circuit Court placed appellant on notice that the record was incomplete, and (3) the fact that appellant undertook to transport the record to the Clerk of the Circuit Court and thereafter failed to notify the clerk of the administrative agency that the record was incomplete lulled the administrative clerk into a false sense of believing that her duties had been discharged, and the appellant should, therefore, be estopped from claiming error on the part of the clerk since appellant’s actions precipitated the error. We do not agree and shall reverse.

We note initially that we cannot accept the estoppel theory based upon the premise that the administrative clerk was lulled into believing that her duties had been discharged. By her own testimony, she had no knowledge that she was charged with the duty of delivering the record. She stated that during her 10 years in office she had had a similar case on only one occasion and on that occasion the details were handled by the Town Attorney. It seems clear to us that one who does not know that she is under an obligation to perform can hardly claim that she believed that she had satisfactorily performed a duty which she did not know existed. We find no bar to the appellant’s claiming that it was the clerk’s error which precipitated the delay which led to dismissal of the petition.

A review of the cases decided by the Court of Appeals and this Court dealing with similar controversies establishes two distinct lines of decision. One line of cases is harsh and unyielding in requiring strict adherence to the time limitations imposed by the rules for appeal. Horseman v. Furbush, 124 Md. 581, 93 A. 149 (1915), is illustrative of that approach. There the rules required that the record be filed with the Court of Appeals within 90 days. The . record was mailed from Salisbury, Maryland on August 17, 1914 and arrived in the Annapolis Post Office too late for delivery on August 18, 1914. It was delivered on the 91st day after the order for appeal was filed. In affirming the dismissal of the appeal the Court stated:

“While we are naturally reluctant to enforce the rule when the time it allows for the transmission has been exceeded by such a narrow margin as on this appeal, we could not rightfully modify its express and definite terms, or make its application depend upon a mere measurement of the extent to which it has been transgressed, in order to avoid the prescribed consequence of the delay in a particular case.” Id. at 585.

To the same effect is Stiener v. Harding, 88 Md. 343, 41 A. 799 (1898) which held that a prima facie case for dismissal appearing from the fact that the time has elapsed for proper filing, “this prima facie evidence must be rebutted and overcome by the appellant. He can overcome its effect by showing that the delay was due (first) to the neglect, (second) to the omission or (third) to the inability of the clerk.” Id. at 345.

See: Goldman v. Tauber, 258 Md. 174, 265 A. 2d 225 (1970); Brill v. State, 144 Md. 68, 124 A. 414 (1923); Castelberg v. Hamburger, 133 Md. 42, 104 A. 473 (1918); Horsey v. Woodward, 124 Md. 361, 93 A. 9 (1914).

The Court, however, as far back as 1878 has recognized that there were some circumstances in which a failure of strict compliance with the Rules should be excused. In Wilson v. Merryman, 48 Md. 328 (1878), the Court had before it a motion that an appeal be dismissed because the record had not been transmitted to the appellate court within the prescribed period. The appellant had filed his appeal bond and affidavit promptly after entry of his appeal and had directed the clerk to make up the record for the Court of Appeals. Within the time allowed, the clerk notified the appellant that the record was ready, and counsel immediately paid the cost of preparation of the record. The clerk waited to file the record until he received certain exhibits which the clerk claimed had been lost or misplaced. Appellant was not notified of the delay and did not learn of the failure to transmit until past the time for filing of the record. In refusing to dismiss the appeal the Court said:

“The only parties upon whom the law imposes the duty of preparing and transmitting the record, being the appellant and the clerk, if delay occurs it must ordinarily be ascribed to the act or omission of one or the other of those parties, hence the language of the Rule. The spirit and intent of which is that in such case the onus is on the appellant to prove affirmatively that he has used due diligence to comply with the Rule, and that he has not been guilty of any omission, default or laches.
“In this case, we think this has been satisfactorily shown.” Id. at 335.

It is the duty of the administrative agency to transmit the record (i.e., transcript and exhibits) to the Circuit Court within 30 days after the filing of a notice of appeal. Rule B7 a; Jacober v. High Hill Realty, Inc., 22 Md. App. 115, 321 A. 2d 838 (1974).

In a series of cases the Court of Appeals has indicated that when there has been substantial compliance with the B Rules an appeal should not be dismissed. In Board of Co. Comm’rs of P. G. Co. v. Kines, 239 Md. 119, 210 A. 2d 367 (1965), it was contended that the appellants had failed to serve properly the County Commissioners with a copy of the order of appeal as required by the B Rules. The appellants had timely filed their petition for review in accord with the former practice and had served the Commissioners with a copy. The trial court found that there had been substantial compliance and refused to dismiss the appeal. The Court affirmed concluding that the Commissioners had full and timely notice that the protestants sought to overturn the actions of the District Council in the Circuit Court.

In a case decided on the same day as Kines, supra, Irvine v. Montgomery Co., 239 Md. 113, 210 A. 2d 359 (1965), Judge Oppenheimer stated the Court’s philosophy with regard to the value of compliance with the rules to be as follows: “Compliance with procedural regulations is essential to the fair and efficient administration of justice, but it is the substance of compliance and the fair treatment of the parties, which are determinative.” Id. at 117.

In Town of Somerset v. Montgomery Co. Bd. of Appeals, 245 Md. 52, 225 A. 2d 294 (1968), appellants failed to allege in their petition that they were persons aggrieved by the Board’s order but did state that the appeal was filed pursuant to the B Rules. The trial court in effect dismissed the appeal by granting a demurrer without leave to amend. In reversing, the Court of Appeals stated, “Where there is compliance with the substance of the requirements of statutes or rules and the other parties have not been prejudiced, technical irregularities cannot be made the basis for depriving persons of the opportunity to assert their legal rights____ The demurrer should have been overruled.” (Citations omitted). Id. at 61.

In its most recent expression on this subject, the Court of Appeals, in Border v. Grooms, 267 Md. 100, 297 A. 2d 81 (1972), had before it a case in which parties opposing reclassification of certain property notified the zoning board by letter that an appeal would be taken from its decision granting reclassification, and thereafter filed their order and petition of appeal within the time prescribed by Md- Rule B2 and mailed copies to counsel for the zoning board. Appellant, however, failed to serve a copy of the petition of appeal on the board. Appellees contended that the appeal should have been dismissed under Rule B5 because the appellant had failed to comply with Rule B2.e which required that a copy of the petition be served “on the agency.” The Court of Appeals distinguished the facts before it from two other cases in which appeals had been dismissed. In Volk v. Pugatch, 262 Md. 80, 277 A. 2d 17 (1971), the Court approved the granting of a motion to dismiss where the appellant completely failed to file the petition of appeal required by Rule B2.e and failed to transmit the record and testimony as required by Rule B7.a. In Salisbury Bd. of Zoning Appeals v. Bounds, 240 Md. 547, 214 A. 2d 810 (1965), the Court of Appeals reversed a lower court’s ruling refusing to dismiss an appeal where the appellants failed to file a petition of appeal setting forth the error committed by the agency until 30 days after the time prescribed for such filing by Rule B2.e. In both cases the Court pointed out that such failure to comply did not require a showing of prejudice to the adverse party as a prerequisite to dismissal of the appeal.

In distinguishing Border v. Grooms from these cases, the Court of Appeals noted that this was not a case where the agency’s failure to receive a copy kept it in darkness as it had full and timely notice that its decision had been appealed and therefore, the real purpose of Rule B2.e was satisfied. Concluding that the lack of any prejudice was manifest, the Court held that the failure of the appellant to serve a copy of the timely filed petition “on the agency” did not mandate dismissal of the appeal.

We conclude that the trial court’s order dismissing the appeal to the Circuit Court should be reversed on either of two grounds. We believe that there has been substantial compliance with the requirements of the B Rules. The appellant timely filed his notice of appeal pursuant to Rules B2.a and B4.a; appellant timely filed the petition required by Rule B2.e; appellant properly served notice on the appropriate agency that an appeal had been filed; appellant ordered and paid for the transcript of the proceedings; the record, with the exception of the exhibits, was filed with the Clerk of the Circuit Court prior to the date required by the Rules; the exhibits were, in fact, prepared and offered into the record below by the appellee who was fully aware of their contents; the exhibits were filed on the Monday following the Friday when appellee filed its motion to dismiss. We find absolutely no prejudice in the delay in filing the exhibits and believe that it would be manifestly unfair to deprive the appellant of his day in court on the merits of this matter because of the technical failure to file the exhibits at the time the record was transmitted.

We find further that the duty of preparing and transmitting the record in an administrative appeal to the Clerk of the Circuit Court is by the language of Rule B7.a the responsibility of the agency and that the voluntary action of counsel for the appellant in having his secretary perform the ministerial task of delivering the record from the Town Clerk’s office to the Clerk of the Circuit Court did not impose any additional duty on him nor relieve the clerk from her duty to prepare correctly the entire record. Whatever error occurred in the transmittal of the record was not the fault or responsibility of the appellant but was clearly shown to have occurred by reason of the omission of the clerk.

Order of dismissal of appeal reversed; case remanded for further proceedings.

Costs to be paid by appellee.

Mandate to issue forthwith.

      . “Rule B2. How Appeal Taken,
      e. Petition.

      The appellant shall join with his order for appeal, or shall file with the cleric of the court, within ten days after filing the order, a petition setting forth the action appealed from, the error committed by the agency in taking such action, and the relief sought, and shall serve a copy thereof on the agency.”

      . “Rule B7. Record.
      a. Time Within Which Required — Content.

      Promptly after receipt of a copy of the first petition filed in a case pursuant to section e of Rule B2 (How Appeal Taken) and in any event within thirty days after such receipt, unless a different time shall be fixed by order entered pursuant to section b of this Rule, the agency shall transmit to the clerk of the court the original or a certified copy of the record of its proceedings, including any transcript of testimony and any exhibit filed therein; if the testimony has been recorded but not transcribed prior to the filing of the appeal, the appellant, unless otherwise provided by law, shall, if required by the agency, pay the expense of transcription and that expense shall be taxed as costs____

      . Rule B7, subsection c provides:
      “An appeal shall not be dismissed because the record has not been transmitted within the time prescribed, if it appears to the court that such delay was occasioned by the neglect, omission or inability of the agency or other party other than the appellant; provided, however, that such neglect, omission or inability shall not be presumed, but must be shown by the appellant.”

      . The Court of Appeals has on many occasions noted that the requirements of Subtitle B of the Md. Rules are similar to those found in the 800 and 1000 Rules governing appeals from the Circuit Court. The language of these rules is almost identical with that in the Subtitle B Rules. See: Jacober v. High Hill Realty, Inc., 22 Md. App. 115, 321 A. 2d 838 (1974).


author: Mason, J.,

text:
    JOHN WILLIAM SIMMS v. STATE OF MARYLAND
    [No. 840,
    September Term, 1977.]

      Decided July 12, 1978.

      The cause was argued before Moylan, Davidson and Mason, JJ.

      William H. Murphy, Jr., for appellant.

      Diane G. Goldsmith, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Joseph S. Lyons, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.

       Note: Certiorari denied, Court of Appeals of Maryland, September 22,1978.

   Mason, J.,

delivered the opinion of the Court.

Appellant, John William Simms, was convicted at a bench trial in the Circuit Court for Howard County of felony murder and unlawful use of a handgun in the commission of a crime of violence. He was sentenced to a term of life imprisonment for the murder conviction and a concurrent term of fifteen years for the handgun conviction. Appellant, in his enumeration of errors, contends that the trial judge committed reversible error in allowing the State to introduce evidence of other crimes.

The evidence adduced at trial disclosed that on 29 June 1975, at 5:05 A.M., the body of Sharon Anne Tynes, a twenty-four year old woman, was found lying face down at the intersection of Ridgewood and Garrison Boulevard in the northwest section of Baltimore City. The victim’s handbag, which had not been tampered with, together with her shoes were found on the opposite corner of the intersection. The autopsy report revealed that the victim had been shot twice in the back.

Kenneth Carter, who lived near the intersection, reported that after hearing two or three gunshots, he looked out his window and saw a male figure backing away from a body lying in the intersection. Although Carter’s description of the male figure generally fit that of appellant, he was unable to identify appellant at trial. With the exception of Carter’s description, the police were without any other information or leads regarding the identity of the person who killed Sharon Ann Tynes.

Over a year later, 8 August 1976, Christine Speight notified the police that she had just seen the man who had raped her on 14 May 1975. She gave the police the license number of the automobile he was driving. Tracing this number disclosed that the vehicle was registered in the name of appellant. After Ms. Speight made a photographic identification of appellant as the man who raped her, a warrant was obtained, appellant was arrested, and a .38 caliber revolver was recovered during a search of his house. Ballistic tests revealed that this revolver fired the bullet removed from Ms. Tynes’ body, and also fired the bullet that wounded one Joan McNeill Savage in December of 1975.

According to the testimony of Joan McNeill Savage on 11 December 1975, at 6:15 A.M., while she was waiting for a bus on the corner of Dolfield and White Oak Avenues in the northwest section of Baltimore City, appellant walked by and said “good morning.” He then turned around, pointed a gun, and put his left arm around her waist. With the gun in his right hand, pressed against her side, he ordered her to start walking. While walking, he complimented her on her appearance and remarked “if she did what he said everything would be okay.” After walking about a block, she broke away, threw her handbag to the ground and ran. Disregarding her handbag, appellant chased and caught her, whereupon he struck her in the mouth and shot her in the leg.

Christine Speight testified that on 14 May 1975, at. approximately 5:30 A.M., while waiting for a bus at the corner of Woodhaven Avenue and Garrison Boulevard in the northwest section of Baltimore City, she was approached by appellant.

He walked past me and patted me on my behind just a few feet — and then I told him not to do that no more and he turned when I went back to look at my paper and he came up on me with a gun.

He then put his left arm around her waist and placed a gun, which was held in his right hand, into her side. While leading her away from the bus stop, he told her that “he wanted some pussy.” Appellant led her into an alley and raped her at gunpoint under the back porch of a house.

Appellant testified on his own behalf and denied any involvement in the Tynes murder, the Savage assault or the Speight rape, but admitted the gun belonged to him. He presented alibi witnesses to account for his whereabouts on the days the crimes were committed and presented evidence that other persons had access to his gun on occasion.

The theory of the State’s case is that Ms. Tynes was murdered by appellant during an assault with intent to rape. For the limited purpose of showing identity and intent, the trial court allowed the State to introduce evidence which showed that appellant had also raped Ms. Speight and assaulted Ms. Savage with the intent to rape. Appellant argues that the admission of this evidence was highly prejudicial and constituted reversible error.

The rule in this State regarding the admission of other crimes evidence was lucidly explicated in Ross v. State, 276 Md. 664, 669, 850 A. 2d 680 (1976):

The frequently enunciated rule in this state, followed uniformly elsewhere, is that in 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, even though it be a crime of the same type, is irrelevant and inadmissible. This principle is merely an application of the policy rule prohibiting the initial introduction by the prosecution of evidence of bad character. Thus, the state may not present evidence of other criminal acts of the accused unless the evidence is “substantially relevant for some other purpose than to show a probability that he committed the crime on trial because he is a man of criminal character.”
There are exceptions to this general exclusionary rule which, perhaps, are equally well-recognized. Thus, evidence of other crimes may be admitted when it tends to establish (1) motive, (2) intent, (3) absence of mistake, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, and (5) the identity of the person charged with the commission of a crime on trial. Additional exceptions have also been recognized: When the several offenses are so connected in point of time or circumstances that one cannot be fully shown without proving the other, and to show a passion or propensity for illicit sexual relations with the particular person concerned in the crime on trial, ... and to prove other like crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused.

(Citations omitted). Accord Cross v. State, 282 Md. 468 (1978); McKnight v. State, 280 Md. 604, 612, 375 A. 2d 551 (1977).

As we perceive it, the evidence of the assault on Ms. Savage was admissible because it was substantially relevant to prove the issues of identity and intent, which were essential elements of the crime for which appellant was charged. Likewise, the evidence of the Speight rape was admissible because it was substantially relevant to prove the issue of intent.

IDENTITY

Although evidence of other criminal acts may be offered to prove identity, “a need for proving identity is not ordinarily of itself a ticket of admission, but... the evidence will usually follow, as an intermediate channel, some one or more of the other [exceptions]” Cross v. State, supra, (quoting C. McCormick, Evidence, § 190 at 451.) But see Mollar v. State, 25 Md. App. 291, 333 A. 2d 625 (1975), in which this Court applied the identity exception as the sole grounds for admitting evidence of other crimes. In Cross v. State, supra, however, the Court of Appeals, after observing that there was a dearth of analysis on the identity exception, concluded that:

[P]erhaps the most useful analysis of the identity exception and its scope is contained in Underhill’s treatise on criminal evidence, in which it is stated that evidence of other offenses may be received under the identity exception if it shows any of the following:
(a) the defendant’s presence at the scene or in the locality of the crime on trial;
(b) that the defendant was a member of an organization whose purpose was to commit crimes similar to the one on trial;
(c) the defendant’s identity from a handwriting exemplar, “mug shot”, or fingerprint record from a prior arrest, or his identity through a ballistics test;
(d) the defendant’s identity from a remark made by him;
(e) the defendant’s prior theft of a gun, car or other object used in the offense on trial;
(f) that the defendant was found in possession of articles taken from the victim of the crime on trial;
(g) that the defendant had on another occasion used the same alias or the same confederate as was used by the perpetrator of the present crime;
(h) that a peculiar modus operandi used by the defendant on another occasion was used by the perpetrator of the crime on trial;
(i) that on another occasion the defendant was wearing the clothing worn by or was using certain objects used by the perpetrator of the crime at the time it was committed;
(j) that the witness’ view of the defendant at the other crime enabled him to identify the defendant as the person who committed the crime on trial. [P. Herrick,
1 Underhill’s Criminal Evidence § 210, at 637 (6th ed. 1973 & 1977 Cum. Supp.) (Footnotes omitted).]

Applying the Underhill test to the facts in this case, it is manifest that other crimes evidence is admissible under (c), supra, to prove identity. The use of a ballistic expert to identify the gun from which a bullet had been fired and, by inference, the gunman, is recognized in this State and in Other jurisdictions. See Edwards v. State, 198 Md. 132, 141-44, 81 A. 2d 631 (1951), 3 Wharton’s Criminal Evidence § 613 (13th ed. 1973). We can think of few characteristics of a crime as unique or identical as bullets fired from the same gun.

In State v. Frazier, 550 S.W.2d 590 (Mo. Ct. App. 1977), a state’s witness testified that the defendant had come to her residence, knocked on her door and upon receiving no answer fired four shots through the door. The bullets were removed and a ballistics expert testified that they were fired from the same gun that fired the bullets found in a homicide victim’s body. The defendant, not unlike appellant here, objected to the witness’s testimony on the grounds that it was evidence of a separate and distinct crime, and, therefore, inadmissible. The court noted the exceptions to the other crimes rule and stated:

[T]he acid test for determining whether proof of a separate and distinct crime falls within one or more of the enumerated exceptions is its logical relevancy to a particular exception and its tendency to prove a material fact in issue; existence of the requisite degree of relevancy is a judicial question; and, finally, if the requisite degree of relevancy between proof of a separate and distinct offense and the crime charged and being tried cannot be clearly perceived, the accused should be given the benefit of the doubt, and such proof or evidence should be rejected.
This court concludes that the requisite degree of relevancy can clearly be perceived between the testimony of defendant’s ex-wife as to the separate and distinct offense complained of and the homicide for which defendant was being tried because the former tended to prove defendant’s access to one of the handguns employed to slay the victim and his identity as one of the perpetrators of the homicide.

550 S.W.2d at 596-97 (Citations omitted). E.g. People v. Bolton, 35 Ill. App. 3d 965, 343 N.E.2d 190, 196 (1976); People v. Smith, 73 Mich. App. 463, 252 N.W.2d 488, 492 (1977).

Here the ballistics testimony established that the same gun which fired the bullets killing Ms. Tynes also fired the bullet wounding Ms. Savage. Further, the gun in question was owned by appellant and in his possession on the dates the crimes were committed. This evidence, together with the positive identification of appellant as the person who shot Ms. Savage, clearly supports an inference that appellant also shot and killed Ms. Tynes. “[I]t would appear that if there is purpose to [the identity] exception, the circumstances here were molded to fulfill that purpose.” Mollar v. State, supra, 25 Md. App. at 302.

Accordingly, we conclude that the evidence of the Savage assault was highly probative as to the identity of appellant and, therefore, admissible.

INTENT

Having determined that the evidence of the assault on Ms. Savage was properly admissible to prove the identity of appellant as the killer of Ms. Tynes, we now consider whether evidence of that assault coupled with evidence of the Speight rape is admissible to prove that appellant intended to rape Ms. Tynes, thus rendering the homicide a felony murder. The general rule in this State and in other jurisdictions is that evidence of other similar offenses is admissible if relevant to prove the issue of intent.

In Bryant v. State, 207 Md. 565, 586, 115 A. 2d 502 (1955), the Court of Appeals noted:

Where intent is material, the conduct of the accused is relevant to show that intent. Hence, evidence of collateral offenses is admissible, on the trial of the main charge, to prove the intent. To be admissible as relevant, such offenses need not be exactly concurrent. If they are committed within such time, or show such relation to the main charge, as to make connection obvious, such offenses are admissible to show intent.

Likewise, in Wilson v. State, 181 Md. 1, 3, 81 A. 2d 631 (1942), the Court of Appeals in an abortion case, observed:

[W]here guilty intent is an essential element of the crime charged, the State can prove a relevant fact which tends to show the defendant guilty of the crime charged, notwithstanding that it may also show him guilty of a similar distinct offense. Such evidence is admitted not because it is proof of another crime, but because of its relevancy to the charge in issue. For a person cannot, by multiplying his crimes, diminish the volume of competent testimony against him.

(Citations omitted). See Jones v. State, 182 Md. 653, 35 A. 2d 916 (1944); Hoes v. State, 35 Md App. 61, 368 A. 2d 1080 (1977).

The following example quoted in Wigmore graphically demonstrates the logical theory of evidencing intent from similar assault offenses;

Suppose the one hundred and one persons whom he assaulted were women; suppose he touched no man; suppose he had unsuccessfully attempted to ravish one hundred of them, and were arrested at the instant of his knocking down the one hundred and first, and the question were whether his last assault were a mere assault, or an assault with intent to commit a robbery, or an assault with intent to commit a rape; suppose the last woman assaulted should die of her injuries, and the defendant were indicted for her murder;... how would you expect, if you were the prosecuting officers, to find any better evidence of the defendant’s intent than his attempts upon the other one hundred women? ...

2 J. Wigmore, Evidence § 302 at 198 (3d ed. 1940) (Quoting Mr. Clark, Attorney General, arguing in State v. Lapage, 57 N. H. 245, 261 [Argument being approved by the Court]).

For an instructive comment on the use of evidence of similar offenses where the charge is assault with intent to rape, see 2 J. Wigmore, Evidence § 357 at 266 (3d ed. 1940).

(a) Where the charge is of assault with intent, the propriety of such evidence cannot be doubted. There should be some limitation of time, but merely to avoid the objection of unfair surprise. There need be no limitation as to the person assaulted, because the only purpose is to negative any other than the rape-intent and a previous rape-assault on another woman has equal probative value for that purpose, for it is the general desire to satisfy lust that is involved in this crime, and no particular woman is essential for this. Accordingly, where the charge is assault with intent, former acts of the sort should be received without any limitation except as to time;

Illustrative of cases in which intent to rape is established by evidence of other similar offenses is Burnett v. State, 137 Ga. App. 183, 223 S.E.2d 232 (1976). There the accused was convicted of aggravated assault with intent to rape. On appeal he argued that the trial court erred in permitting two alleged rape victims to testify. The court held:

The testimony of the two rape victims was admissible to prove defendant’s intent in his assault of the prosecutrix. Although defendant’s assault of the prosecutrix was aborted by her screams, the defendant’s intent to rape was properly shown by similar methods he employed in the completed rapes of others. The testimony of these two victims was also relevant to prove identity. Thus, the trial court did not err in allowing these witnesses to testify.

Id. at 233. Of like import see State v.. Frezal, 278 So. 2d 64 (La.. 1973), where the State, in a prosecution for felony murder based on a killing in an attempted aggravated rape, called a witness who testified that the accused had, at an earlier date, attempted to rape her. On appeal the accused, like appellant in the instant case, argued that the trial court erred in allowing the State to introduce evidence of an attempted rape — a different offense from that which he was charged. The court held:

Since it was necessary to prove intent to commit attempted aggravated rape, evidence of similar acts was admissible____There can be little doubt that [the witness’s] testimony concerning the attack on her by Frezal in May of 1963 was evidence of a “similar act” within the meaning of the cited authorities. The modus operandi of the two crimes is identical. In both instances, Frezal entered the residences during the early afternoon while the victims were alone. On each ocassion, he threw a piece of cloth around the victim’s neck or head, and when the woman resisted him, he viciously stabbed her time and time again in the upper part of the body and hit her on the face and head. Frezal could have been charged with attempted murder of [the witness] as well as attempted rape, as details of that offense clearly show. The only difference in the two crimes is that [the witness] did not die of her wounds and, thus, was able to later identify her attacker.

Id. at 72. (Citations omitted). See also State v. Hampton, 215 Kan. 907, 529 P. 2d 127 (1974); Watts v. State, 229 Ind. 80, 95 N.E.2d 570 (1950).

Similar use of other crimes evidence can be found in cases in which evidence of other robberies is admitted to prove intent to rob in a felony-murder prosecution. For example in State v. Evans, 249 La. 861, 192 So. 2d 103 (1966), the accused was charged with a killing during an attempted robbery. The State was allowed to call several witnesses who testified to other robberies and attempted robberies committed by the accused. In affirming, the Court said:

Inasmuch as the charge of murder was made herein under the felony-murder doctrine, it was not necessary to prove intent as to the homicide. However, it was required of the state to establish the armed robbery intent, particularly since the instant attempted robbery had not actually been consummated but was frustrated by the operator’s refusing to hand over the money. It was incumbent on the state to show, in other words, that the killing occurred while the defendants were attempting an armed robbery. Therefore, evidence of the other crimes referred to, they having been similar in nature, indicative of a pattern, and reasonably close in point of time to the crime charged, were admissible to disclose such intent.

Id. 192 So. 2d at 106. See also People v. Wright, 315 Mich. 81, 23 N.W.2d 213 (1946).

The principle distilled from the cases cited is that evidence of similar offenses is admissible when relevant to establish intent. In the case at bar appellant was charged with felony murder based on the theory that the killing of Ms. Tynes occurred during an assault with intent to rape. Although the identity of appellant as the criminal agent was established, the homicide still would not constitute murder in the first degree, unless it was shown that appellant assaulted Ms. Tynes with intent to rape. In consequence thereof, evidence of similar offenses was highly relevant and admissible to prove appellant’s intent.

We think the rape of Ms. Speight and the assault of Ms. Savage bear a striking similarity to each other and to the murder of Ms. Tynes. All three crimes were committed within the same general neighborhood; all three victims were young women, apparently waiting for buses in the early morning hours; all three victims were approached by an assailant armed with a gun; in all three incidents robbery was not the motive, as evidenced by the assailant disregarding the handbags of the victims.

As to further similarities, both Ms. Speight and Ms. Savage identified appellant as their assailant and testified that he used the same technique in forcing them to walk with him, i.e., he placed his left arm around their waist and pressed a gun, held in his right hand, into their side.

In determining the intent accompanying these offenses, we look not only to the similarities of the offenses but to appellant’s words, acts and conduct and the reasonable inferences drawable therefrom. The assault on Ms. Speight culminated in forcible sexual intercourse; thus appellant’s intent in that instance was unmistakably clear — to satisfy his lust. As to the assault on Ms. Savage, appellant’s method was identical to that used in the assault of Ms. Speight. This assault, however, did not result in forcible sexual intercourse, as apparently intended, because the victim was able to make her escape.

Regarding the Tynes assault, the circumstances were the same, i.e., the victim was a young woman, she was assaulted by an assailant with a gun, and it occurred in the early morning hours at a bus stop in the northwest section of Baltimore City. The only difference is that Ms. Tynes, unlike Ms. Savage, died of her wounds and was unable to later identify her attacker. The question of intent is one of fact. Because one’s intent is subjective in nature, proof is seldom direct but is usually inferred from proven circumstances. Weaver v. State, 226 Md. 431, 434, 174 A. 2d 76 (1961). Based on the similarities of the crimes in question, we believe the trier of facts could logically, naturally and by reasonable inference conclude that appellant assaulted Ms. Tynes with the intent to rape.

BALANCING

Having concluded that the evidence of the other crimes was admissible because it was relevant to the issues of identity and intent, two well-established exceptions to the exclusionary rule pertaining to other crimes, we are mindful that

Though the evidence may fall within one or more of the exceptions, the trial judge still possesses discretion as to whether it should be received. In the judicious determination of this issue he should carefully weigh the necessity for and probativeness of the evidence concerning the collateral criminal act against the untoward prejudice which is likely to be the consequence of its admission. In some cases, this may require that evidence of the criminal actions of the defendant be totally excluded; in others, admission of portions or all of the evidence of the defendant's specific criminal actions may be permissible.

Cross v. State, supra. (Citations omitted).

In Jones v. State, 38 Md. App. 432, 381 A. 2d 317 (1978), we noted that evidence of other criminal acts was not automatically admissible simply because it fit one of the certified exceptions to the other crimes rule; rather its admissibility depended on the trial judge appropriately balancing

on the one side, the actual need for the other-crimes evidence in the light of the issues and the other evidence available to the prosecution, the convincingness of the evidence that the other crimes were committed and that the accused was the actor, and the strength or weakness of the other-crimes evidence in supporting the issue, and on the other, the degree to which the jury will probably be roused by the evidence to overmastering hostility.

Id. at 437-38, quoting C. McCormick, Evidence, § 190 at 453. See also Brafman v. State, 38 Md. App. 465, 475-76, 381 A. 2d 687 (1978); Hoes v. State, 35 Md. App. 61, 368 A. 2d 1080 (1977).

Applying the above balancing test, the propriety of admitting the evidence of the Speight rape and the Savage assault is apparent; the State had a real need for this evidence in order to establish identity and intent, which were contested issues in the case. Here appellant was charged with felony murder and the only evidence available to prove his intent in committing the underlying felony, assault with intent to rape, was the evidence that he had committed similar offenses. Likewise, evidence of the assault on Ms. Savage was needed by the prosecution not only to bolster the ballistic testimony that Ms. Savage was shot with the same gun that fatally wounded Ms. Tynes, but also to identify appellant as firing the gun. The need for this evidence was especially significant because appellant presented witnesses who testified that they too had access to this gun.

The convincingness of the other crimes evidence is indisputable. Appellant’s involvement in the other crimes was clear. At the time of trial, he already had been tried and convicted of raping Ms. Speight. In addition, he had charges pending against him for assaulting Ms. Savage with the intent to murder.

As to the degree of prejudice the other offenses would have on the jury, we agree with the following:

Proof that a defendant has engaged in a second criminal act of the same sort for which he is being tried is not likely to rouse the jury to “overmastering hostility,” that phrase refers to instances “where the minute peg of relevancy will be entirely obscured by the dirty linen hung upon it.”
... [The law] does not demand exclusion of highly probative evidence simply to prevent noisome odors about the defendant from reaching the jury’s nostrils.

United States v. Bradwell, 388 F. 2d 619, 622 (1968). (Citations omitted). Nor can appellant “by multiplying his crimes, diminish the volume of competent testimony against him.” Wilson v. State, supra, 181 Md. at 3. We believe the probative value of the other crimes evidence sufficiently outweighed its prejudicial effect; therefore, its admission was proper.

Furthermore, this case was tried before a judge and not a jury of laymen. “The assumed proposition that judges are men of discernment, learned and experienced in the law and capable of evaluating the materiality of evidence, lies at the very core of our judicial system.” State v. Babb, 258 Md. 547, 550-51, 267 A. 2d 190 (1970); See also State v. Hutchinson, 260 Md. 227, 233, 271 A. 2d 641 (1971); Chenault v. Director, 28 Md. App. 357, 361-62, 345 A. 2d 440 (1975). Here the other crimes evidence was admitted and considered with scalpel precision for the limited purpose of showing identity and intent and not to “show a probability that [appellant] committed the crime on trial because he was a man of criminal character.” C. McCormick, Evidence, § 190 at 447.

A further argument of appellant stems from the State’s initial attempt to join for trial several similar but unrelated offenses including the Savage assault charges with the charges in the present case. Appellant contends in essence that because the trial court granted his motion for severance and ordered separate trials, the admission of the evidence of the Savage assault denied him a fair and impartial trial. We disagree. A severance does not mean that evidence of the severed offense is necessarily inadmissible in a separate trial.

In McKnight v. State, supra, the Court of Appeals delineated the standard to guide the trial court in the exercise of its discretion when a motion for severance is made. There the Court held: “that a defendant charged with similar but unrelated offenses was entitled to a severance where he establishes that the evidence as to each individual offense would not be mutually admissible at separate trials.” Id. 280 Md. at 612. The Court, however, in determining whether the evidence of similar but unrelated offenses would have been mutually admissible at separate trials applied the other crimes rule as explicated in Ross, supra.

Thus, even though the trial court severed, for purposes of trial, the Savage assault charges from the charges in the instant case, it was not error to admit evidence of the assault on Ms. Savage. Evidence of this offense was clearly admissible under two well-recognized exceptions to the exclusionary rule pertaining to other crimes — identity and intent.

Having found no error for any reason enumerated in this appeal, we affirm.

Judge Davidson concurs in the result.

Judgments affirmed.

Costs to be paid by appellant.

      . At the time of trial, charges were pending against appellant for the crimes of assault with intent to murder and assault upon Joan McNeill now Joan McNeill Savage.

      . At the time of trial, appellant had been convicted of raping Christine Speight.

      . Although appellant was not charged with assault with intent to rape Ms. Savage, the facts were sufficient to warrant such a charge.

      . “The essential ingredients of the crime of assault with intent to rape are (a) an assault, (b) an intention to have carnal knowledge of a female, and (c) a purpose to carry into effect this intention with force and against the consent of the female.”
      Middleton v. State, 6 Md. App. 380, 385-86, 251 A. 2d 224 (1969); Christensen v. State, 33 Md. App. 635, 638-41, 365 A. 2d 562 (1976).