author: Gilbert, J.,

text:
    GENE PIERRE HOPKINS v. STATE OF MARYLAND
    [No. 297,
    September Term, 1974.]

      Decided December 19, 1974.

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

      Durke G. Thompson, Assigned Public Defender, for appellant.

      Leroy Handwerger, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, Reginald W. Bours, III, Deputy State’s Attorney for Montgomery County, J. James McKenna and William T. Wood, Assistant State’s Attorneys for Montgomery County, on the brief, for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

Gene Pierre Hopkins was indicted by the grand jury for Montgomery County on charges of murder, assault with intent to murder, assault with intent to maim, assault and battery, assault and carrying a dangerous weapon. The indictment grew out of a racially based escapade by three young white men who, for a “lark”, decided on the night of August 18, 1972 to “raise a little hell” with the black people who lived in the Ken-Gar area of Montgomery County. As the three youths drove along Plyers Mill Road they threw firecrackers at the people they saw. The vehicle in which the youths were riding was driven by Mark Stephen Murray who was eighteen years old. According to the testimony of one of the youths, the perverted form of entertainment decided upon by the three young men was Murray’s idea. After the firecrackers were hurled at various pedestrians and bystanders, the vehicle continued on Plyers Mill Road to what proved to be a cul-de-sac. There the three observed that they were being approached by a group of black men. One of the trio fled afoot, the other two, including Murray, remained in the vehicle. When the group of black men surrounded the vehicle they told the two remaining white youths to get out of the car. Murray responded with the question, “Can’t we talk this over?” One of the group of black persons possessed a gun and discharged the gun three times in a downward motion into the ground. Either ricochets or gravel came in contact with the underside of the motor vehicle. Instead of alighting from the car, Murray began to drive the car forward and the person with the gun fired twice. The vehicle ground to’ a halt, and Murray exclaimed that he had been hit. He slumped forward over the wheel. The other white youth got out of the car and was beaten about his head and body. Murray died as a result of a gunshot wound that entered his back, punctured both lungs and his aorta vein. The youth who was beaten by the group of black men positively identified the appellant, Hopkins, as the person who discharged the firearm into the ground. As a result of a search and seizure warrant, a .25 caliber pistol was recovered from the residence of Hopkins, and that weapon was positively identified by a ballistics expert as the weapon from which the fatal projectile was fired. The jury convicted Hopkins of manslaughter, assault and wearing or carrying a handgun.

Prior to trial Hopkins moved for a dismissal of his indictment on the ground that “the Grand Jury was not an impartial body, in violation of the due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution, and of Article 23 of the Maryland Declaration of Rights, for the reason that a Montgomery County police officer was a member of the Grand Jury.”

At the hearing before the three-judge panel, on November 16, 1972, Matthew Hyatt, a Montgomery County police officer, testified that he had been summoned as a grand juror for Montgomery County, and that when he appeared before the jury judge he stated that he “didn’t think that. . . [he] would be able to serve and observe in an unbiased manner.” He stated that he knew most of the police officers who would appear before the grand jury panel, and that in his view when an arrest was made he felt that that in itself was sufficient to warrant an indictment. The officer acknowledged that from time to time his advice was sought by members of the grand jury, and that on at ldast one occasion, his vote had been the crucial one. The officer further said that he believed it was impossible for him to serve as a police officer six days a week and be an impartial member of the grand jury on the seventh day. He opined that he lived in dread of making a felony arrest and then having to appear as a State witness before the self-same grand jury of which he was member. This latter eventuality did not occur, however. Officer Hyatt also told the panel that there were occasions when his “right to express” himself “might have been a factor involving persuading other people to change their vote” for indictment. Officer Hyatt was asked: “. .. [W]ould it be fair to say that in every case that came before that grand jury, that you evaluated the testimony of each and every witness honestly and fairly and as completely as you could pursuant to your oath as a grand juror? ” Mr. Hyatt responded: “I did serve as best I could under the oath of being a grand juror.”

When the jury judge was called to testify he told the panel of judges that he remembered Officer Hyatt because Hyatt had initially returned the grand jury questionnaire unanswered with the notation “across the top . . . that he was a police officer and that he wasn’t subject to grand jury service.” The officer was instructed as a result of the jury judge’s phone call to the police officer to send a completed jury questionnaire. Thereafter according to the judge’s “only clear recollection”, Officer Hyatt stated that service on the grand jury would require him “to give up his day off each week.” Jury service, he said, “would deprive him of accompanying his wife on shopping trips and doing other errands”, and that such service “would be very inconvenient to him and a hardship upon him.” The judge said that he had “no independent recollection” of any reference to “bias on account of [Hyatt’s] employment.” The judge also testified that he was “unconvinced that [Hyatt] would not be able to render impartial service.” There was testimony that two other law enforcement officers had been excused from the grand jury because their excuses were found to be “credible”. The record reveals the following questions put to the jury judge and his answers thereto:

“Q. He was qualified to be a grand juror by the fact that you didn’t think he was a truthful person; is that it?
A. I thought he was emotionally upset and he wasn’t presenting a credible story as to why he should be excused.
Q. But this was at least his second or third attempt to be excused; right?
A. Well, his first attempt was to not fill out the questionnaire, and he cited in his questionnaire respondent filled out that he was a police officer and he wasn’t supposed to serve on a jury.
Q. Did any information come to you after he served, after he was sworn, that he still wanted to get off, that at this time he wanted to get off the grand jury?
A. I don’t recall any request made during the jury service.
Q. Do you know if your office received any letters from him or an attorney who represented him, or telephone calls from an attorney who represented him?
A. I don’t recall any. My secretary would have the letters, if they were received.
Q. Did you receive any letters or requests from any of his superior officers in the Police Department?
A. Any requests that he be excused?
Q. Yes.
A. None whatever.”

The three judge panel, on December 22, 1972, denied the appellant’s motion to dismiss the indictment.

On appeal to this Court appellant attacks the ruling of the three judge panel. He argues that the Due Process Clause of the Constitution of the United States “protects a defendant from jurors who are actually incapable of rendering an impartial verdict based on the evidence and the law.” Further, he asserts that “the U.S. Supreme Court has held that a State may not subject a defendant to indictment and trial by grand and petit juries that are plainly illegal in their composition.” In support of his contention appellant cites Jordan v. Massachusetts, 225 U. S. 167, 32 S. Ct. 651, 56 L. Ed. 1038 (1912); Moore v. Dempsey, 261 U. S. 86, 43 S. Ct. 265, 67 L. Ed. 543 (1923) and Peters v. Kiff 407 U. S. 493, 92 S. Ct. 2163, 33 L.Ed.2d 83 (1972). We think appellant misreads Jordan, Moore and Peters, and then misapplies them to the instant case.

Jordan dealt with a member of the petit jury who was insane. Moore was concerned with a petit jury’s being intimidated by “threat of mob violence.” Peters involved a Caucasian’s challenge to the systematic governmental exclusion of black persons from both the grand and petit juries. Clearly, Jordan and Moore are inapposite and need no discussion. Peters does not stand for the proposition that in order for an indictment to be valid the grand jury must be free of bias. Mr. Justice Marshall, writing for the plurality, opined at 501:

“.. . [I]f a State chooses, quite apart from constitutional compulsion, to use a grand or petit jury, due process imposes limitations on the composition of that jury.
Long before this Court held that the Constitution imposes the requirement of jury trial on the States, it was well established that the Due Process Clause protects a defendant from jurors who are actually incapable of rendering an impartial verdict, based on the evidence and the law.”

In our view, Peters v. Kiff, supra, does not modify the holding of the Supreme Court in Beck v. Washington, 369 U. S. 541, 82 S. Ct. 955, 8 L.Ed.2d 98 (1962). In that case the Court upheld the State of Washington’s high Court’s affirmation of Beck’s conviction. Beck had argued that the grand jury was biased because of adverse magazine and newspaper publicity in which Beck’s guilt was accepted as having been established as fact. The Supreme Court said that there had been no showing of actual prejudice. It went on, however, to state flatly that it did not “remotely intimate any view” on whether an accused is entitled under the Due Process Clause to an unbiased grand jury.

Appellant’s reading of Peters v. Kiff, supra, appears to be overly broad. Patently a grand jury does not “render a verdict”, but merely determines from the one-sided presentation of facts whether there is sufficient proof before it upon which to bring a charge. It is the trier of fact, the petit jury, that hands in a verdict. Had the Supreme Court intended to depart from its decision in Beck, supra, and intimate its view, it would, in our opinion, have done so. Significantly, the Supreme Court did not deviate from the course it chose in Beck.

Although historians disagree as to the origin of the grand jury, G. Edwards The Grand Jury 2 (1906) states:

“Strictly speaking there is no obscurity surrounding the origin of the ‘grand jury’, for it was not until the 42nd year of the reign of Edward III (A.D. 1368) that the modern practice of returning a panel of twenty-four men to inquire for the county was established and this body then received the name of ‘le graunde inquest’. ”

The Englishmen who first settled in the colonies brought with them “all the civil rights which they enjoyed in their native land, and with them came the grand jury.” Id. at 31. The Constitution of the United States, as originally adopted, contained no provision guaranteeing a presentment or indictment by a grand jury. The omission was corrected by the ratification of the Fifth Amendment, December 15, 1791. The Fifth Amendment provides in pertinent part:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger, . . .”

The above-quoted portion of the Fifth Amendment has not been held to be applicable to the several States, Peters v. Kiff, supra, Hurtado v. California, 110 U. S. 516, 4 S. Ct. 111, 28 L. Ed. 232 (1884), although it is indubitably binding upon the Federal Government.

The grand jury system has been both praised and damned. There are those who view the grand jury as the “security of Englishmen’s lives”, “the grand bulwark of his liberties”, and “the noblest check upon the malice and oppression of individuals and states”. On the other hand, its critics view it as “purely mischievous”, a “relic of barbarism”, and a “rubber stamp” for prosecutors.

As Chief Judge Murphy noted in his address to the General Assembly of Maryland, n. 7, supra, there is nothing in the Maryland Constitution that mandates indictment by a grand jury as a prerequisite to trial. Moreover, the Legislature heeded the advice of Chief Judge Murphy and conferred upon State’s Attorneys a qualified right to elect to proceed against an accused either by way of indictment or information. Md. Ann. Code art. 27, § 592.

The Court of Appeals and this Court have stated that a grand jury is: Hopkins v. State, supra. See also Coblentz v. State, 164 Md. 558, 166 A. 45, 88 A.L.R. 886 (1933). In Coblentz the Court of Appeals considered a case wherein the president of a bank was charged with accepting deposits even though he knew that his bank was insolvent. The Court, speaking through Chief Judge Bond said at 570:

“ . . . [A]n inquisitional and accusatory body. It does not determine the guilt or innocence of the accused as that decision is vested in the petit jury or court, if there be a non-jury trial.”
“A second objection advanced in the plea was that nine members of the grand jury were disqualified from serving in the investigation and from finding this particular indictment because they had been subject to losses as depositors in the Central Trust Company, or in other depositaries which had been merged with that company, and were embittered against the defendant; and because the foreman, one of those depositors, had publicly declared his hostility to the defendant and charged him with fraud. This objection we find insufficient to support the plea. The grand jury, as has been observed, is not a judicial body; it is an accusing body, permitted to act upon knowledge obtained by its members from any source. Under the requirements of the statute law of the state, Code, art. 51, secs. 7 to 10, they are chosen with judgment and discretion with reference to their intelligence, sobriety, and integrity; and they are sworn to present no person for envy, hatred, malice, or ill will. But there are no statutory provisions in Maryland, as there are in some other states, prescribing additional cautions or qualifications, and we find no ground for imposing a requirement that they must be unprejudiced, as the objection demands. On the contrary, such a requirement would seem inconsistent with their freedom to accuse upon their own knowledge, for persons who come with knowledge sufficient to serve as a basis of indictment are likely to come with the conclusion and prejudice to which that knowledge leads. They must act upon their own convictions, after conferring secretly and without any interference; but they are not required to come without any prejudice.”

It has been held that a person is not disqualified to serve as a grand juror on the ground that: (a) he was the prosecutor of the case, U. S. v. Williams, 28 F. Cas. 666 (No. 16,716) (C.C.D. Minn. 1871); (b) he was a relative of the person the accused was alleged to have injured, Collins v. State, 3 Ala. App. 64, 58 So. 80 (1912); (c) the complaining witness, Holmes v. State, 160 Ark. 218, 254 S. W. 470 (1923); (d) the son-in-law of the murder victim, Oglesby v. State, 83 Fla. 123, 90 So. 825 (1922); (e) the father of a rape case prosecutrix, Zell v. State, 15 Ohio App. 446, 32 Ohio C. A. 385 (1922); (f) the committing magistrate, State v. Chairs, 9 Baxt. (Tenn.) 196 (1877); (g) a member of a petit jury before whom perjury was alleged to have been committed, State v. Wilcox, 104 N. C. 847, 10 S. E. 453 (1889); (h) a special police officer, Commonwealth v. Hayden, 163 Mass. 453 (1895); (i) a member of an organization the object of which was to detect crime, Musick v. The People, 40 Ill. 268 (1866); (j) that he had previously issued a warrant for and expressed an opinion as to the guilt of the accused, United States v. Belvin, 46 F. 381 (1891); (k) a deputy sheriff, Owens v. The State, 25 Tex. App. 552 (1888).

Note, 111 U. Pa. L. Rev. 1000,1001-02 (1963) discussed the reason that the general rule as to impartiality of grand juries has not been superseded by the Supreme Court in its recent grand jury racial discrimination cases. The author stated:

“The asserted right [by Beck] to an unprejudiced grand jury was based primarily upon the Court’s statement in Cassell v. Texas [339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839 (1950)]: ‘Review was sought in this case to determine whether there had been a violation by Texas of petitioner’s federal constitutional right to a fair and impartial grand jury.’ ”
Cassell marked the culmination of the development, in a long line of racial discrimination cases, of a rule that ‘a Negro is denied the equal protection of the laws when he is indicted by a grand jury from which Negroes as a race have been intentionally excluded.’ This principle is not applicable by analogy to the ‘impartiality’ question in the instant case. Systematic discrimination against the race is the sole issue in the Negro cases, and there is no inquiry as to the state of mind of the grand jurors concerning the defendant. Mr. Justice Douglas’ interpretation of Cassell as insuring impartiality towards the defendant overlooks the fact that it is the manner of selection — as opposed to the mental attitude of those selected — that violates the equal protection rule enunciated in Cassell. Exclusion of Negroes from the panels is not indicative of the mental attitude of the white persons actually selected, and the Court has never held that a defendant has a vested right to representation of his race.
The majority opinion expressly disclaimed any intimation on whether due process requires impartiality vis-a-vis the defendant, but did cite dicta in three recent cases to show that a colorable argument to this effect might be made. But until the Court either adopts Justice Douglas’ position and extends the meaning of ‘impartiality’ beyond protection of minority groups, or reverts to a viewpoint that has been criticized in the past half century — that the function of the grand jury is to stand between the prosecutor and the accused — , due process does not seem to require that grand jurors be completely impartial toward prospective defendants.” (Footnotes omitted).

By Laws of 1969, ch. 408, the legislature repealed and reenacted Md. Ann. Code art. 51, Juñes. In doing so it eliminated all exemptions from jury service. Subsequently at the next legislative session two exemptions were added, viz., “members of the organized militia duly certified as such by the military department”, and those persons “seventy (70) years or older” who are exempted if they in writing so prove.

We observe that then Md. Ann. Code art. 51, § 9 provided that a person could be excused from jury duty,

“(ii) ... by the court on the ground that such person may be unable to render impartial jury service or that his service as a juror would be likely to disrupt proceedings, or . . . (vi) excluded upon determination by the court that his service as a juror would be likely to threaten the secrecy of the proceedings, or otherwise adversely affect the integrity of the jury deliberations.”

The quoted provisions of § 9 are by the permissive language utilized directed to the sound discretion of the court.

It is apparent from the record that the jury judge, who considered Officer Hyatt’s request to be excused from jury duty, believed that the officer’s request was motivated by: (1) the officer’s desire not to perform jury duty on his “day off”, and (2) the officer’s desire to be with his wife, and to go shopping with her. The fact that Officer Hyatt was a police officer did not, as we have already observed, per se disqualify him from grand jury duty, and Mr. Hyatt’s status as a policeman did not in and of itself demonstrate bias or prejudice, nor is there anything in the record before us that shows that Mr. Hyatt’s jury service disrupted those proceedings, threatened their security or adversely affected the integrity of the jury’s deliberations.

Although we think the jury judge did not abuse his discretion in refusing to exclude a policeman from grand jury service, we believe the better course of action would have been to have excused the officer. We repeat, however, that there is nothing in the Constitution of the United States or the State of Maryland, nor the statutes of the State of Maryland that exempts police officers from grand or petit jury service. If such a provision is to be written, it is for the General Assembly to do so and not the Court.

We note that permitted attacks on the composition of grand juries, because of alleged prejudice or bias on the part of a grand juror or grand jurymen, would wreak havoc with the orderly administration of criminal justice, impede speedy trials and generally create a chaotic condition. Each person who had been indicted might, in an effort to have that indictment dismissed, seek to challenge the membership of the grand jury upon the hopeful ground that at least one of the grand jurors had some bias toward the accused as the result of ingrained prejudice, adverse publicity, a relationship to the victim or a witness or some other type of kindred connection with the State’s charges. Needless to say, such a procedure could result in each member of the grand jury’s possibly being subjected to a voir dire “fishing expedition” by each and every accused indicted by that grand jury. In our view the Due Process Clauses of the Constitution of the United States do not require us to substitute a chaotic condition for the orderly administration of criminal justice. Moreover, as we see it, so long as the accused is indicted by a grand jury that is chosen without systematic exclusion of any race or creed, and the accused is afforded a right to a petit jury that he may subject to voir dire in order to eliminate the possibility of prejudice, the constitutional protection of due process is met.

Next, appellant asserts that the trial judge erred when he allowed into evidence irrelevant testimony that was highly prejudicial to the appellant. Richard Clarence Dorsey was jointly indicted with the appellant, but apparently he struck some sort of “bargain” with the State. Seemingly in exchange for Dorsey’s testimony he was to be allowed to plead guilty to “assault” and the State would recommend imposition of a sentence of less than one year. The record reveals that when Dorsey was called as a witness the prosecutor asked him:

“Q. When you saw me last night, what were you concerned about or were you worried about anything at all?
A. At that point I was a little bit worried because
[Defense counsel]: Objection. He has answered the question.
(The Court): Overruled.
By [Assistant State’s Attorney]:
Q. Why were you worried?
[Defense counsel]: I object, irrelevant.
(The Court): Overruled.
(The Witness): Well, I was worried because if I come and testified against Mr. Hopkins, that maybe some things I would say would probably help him, but that a lot of people would get the wrong idea about the thing and probably would do something to my family instead of me. ” (Emphasis supplied).

Appellant’s counsel moved for a mistrial which was denied. Counsel then requested the court for a clarifying instruction to the jury. The court declined to give it. In this Court appellant contends that the testimony of Dorsey as to his mental state was designed to show that appellant was a violent man.

We do not see it that way. The above quoted questions posed to the witness by the State are, in our view, improper, and the objections should have been sustained on the ground of irrelevancy. Nevertheless, we do not perceive the answers to the questions to have conveyed to the jury an inference that Hopkins was a violent man. On the contrary, the witness’s answer makes it pellucid that he was not referring to Hopkins, but to a “lot of people” who would misconceive the witness’s motive in testifying. Although the State was patently engaged in a bootstrap operation in that they were endeavoring to elevate the witness’s credibility, we cannot, on the basis of the record before us, hold that the questions were designed “to blast” Hopkins’s character before it had been put in issue by him. Cf. MacEwen v. State, 194 Md. 492, 504, 71 A. 2d 464 (1950). In the course of a trial, and particularly a lengthy trial, errors may be committed in ruling on evidentiary matters. All errors, however, are not reversible as some are deemed, under the totality of the circumstances of the particular case, to be harmless. This is such a case. Even though the trial judge erred in overruling the objections to the above quoted questions we cannot find, in the light of the totality of the evidence, that the jury was misled or likely to have been misled by the witness’s answer as to why he was worried. In actuality, Hopkins opts for a perfect trial. While ideally that lofty aim is desired, it is not required. Hopkins, as are all other accused, is entitled to receive a fair trial, not a perfect one. Moore v. State, 23 Md. App. 540, 329 A. 2d 48 (1974); Burnett v. State, 11 Md. App. 550, 275 A. 2d 176 (1971); Shotkosky v. State, 8 Md. App. 492, 261 A. 2d 171 (1970); Boblits v. State, 7 Md. App. 391, 256 A. 2d 187 (1969). See also State v. Babb, 258 Md. 547, 267 A. 2d 190 (1970). The Fourteenth Amendment to the Constitution of the United States commands that the several states shall afford an accused “due process of law.” Judge Morton, for this Court, in Burnett v. State, supra, stated that, “The sphere of [the Fourteenth] Amendment mandates that every individual accused of a crime shall receive no less than a fair and impartial trial.” In our view Hopkins received the fair and impartial trial which he was constitutionally guaranteed.

Hopkins next argues that the trial judge committed reversible error when the judge interrupted the jury argument of appellant’s counsel. The record reveals that defense counsel had stated to the jury:

“Do you really think that the State of Maryland and the Montgomery County State’s Attorney thinks that Dorsey is truthful? If they thought he was truthful, they would have to think he was telling the truth, that he might be wrong, but they would have to think he was telling the truth when he testified, did you hear Dorsey say that Gene Davis had bribed the police — excuse me — that the police had bribed Gene Davis with twenty-five dollars and a bottle of wine in order to get him to give false information to them so they could get a search warrant, or words to that effect. He used the word ‘bribe.’ I didn’t say that.” (Emphasis supplied).

Thereafter the trial judge interposed:

“THE COURT: [Counsel], I feel compelled to present to the jury that the confusion was solely yours and not the Court’s. The Court out of courtesy to you gave your instruction, . . . and on the rule of law that the jury is the judge of the law as well as the fact, the Court has permitted you to argue it to them. I gave them as a courtesy to you your instruction, and I am tired of hearing you comment on matters that are not in the evidence.
Ladies and gentlemen of the jury: I also am compelled to tell you that counsel a few minutes ago told you in relation to the testimony of Mr. Dorsey, who testified that Davis told him that the police bribed him with twenty-five dollars and a bottle of wine, [Counsel] commented to you that the police bribed him to get him to give false testimony, to perjure himself so that they could get a search warrant.
I instruct you at this stage, and I am sorry to have to interrupt counsel to do it, that there is no such evidence that those police bribed Davis or paid him to get him to suborn perjury so they could get a search warrant. ” (Emphasis supplied).

In order to place the judge’s comments upon the argument of counsel in proper perspective, we quote from pertinent portions of Dorsey’s testimony.

“REDIRECT EXAMINATION (Resumed)
By [the Assistant State’s Attorney]:
Q. Would you like to explain the answer to the last question?
A. Yes. The reason why I was locked up, anyway, is because two of the police had bribed Mr. Davis and gave him twenty-five dollars to tell him who was in the crowd down there the first night, the night that the incident happened.
Q. The night this happened, did you talk with the police or did the police try to talk with you?
A. Yes, sir. The police had tried to talk to me.
RECROSS-EXAMINATION (Resumed)
By [Defense Counsel]:
Q. Did I understand when you mentioned Gene Davis, that was just asked you by the prosecutor, that you were expressing indignation that the police had gotten Gene Davis to talk to them and give them false information by giving him twenty-five dollars, is that it?
[Assistant State’s Attorney] I object. That is just outrageous, to characterize it that way. He said nothing of the kind, and I object to that question.
[Defense Counsel] He said they —
(The Court) I am going to overrule the objection. It is cross-examination. I think it is proper. Do you understand the question?
(The Witness) Yes, I do.
By [Defense Counsel]:
Q. And they also gave Gene Davis not only twenty-five dollars but twenty-five dollars and a bottle of wine, is that correct?
A. Yes.
(The Court) What was that answer? Yes? They not only gave him twenty-five dollars but that —
[Defense Counsel] He is testifying that the police bribed Gene Davis with twenty-five dollars.
(The Court) I know what he said. You said something. I cannot understand half of what you say.
[Defense Counsel] I’m sorry, Your Honor.
(The Court) Read me what he said.
(Whereupon, the Court Reporter read back the last question.)
By [Defense Counsel]:
Q. By ‘they,’ you meant the police?
A. Yes.
(The Court) That is what I didn’t understand, about the sneaky-pete.
By [Defense Counsel]:
Q. The point is you were angry that Mr. Davis became an informer?
A. No, I’m not angry with him.
Q. All right. Let me ask you this: Did you testify that you considered, Mr. Dorsey, when you are testifying, and when you talked to [the Assistant State’s Attorney] that you were doing so for a bribe of getting a sentence not to exceed one year imprisonment and a dropping of all other charges against you? Can you answer that yes or no?
A. I did not quite understand the whole thing.
Q. Do you think that you have been bribed the way Gene Davis has been bribed, except that instead of getting twenty-five dollars and a bottle of wine, you are getting a first degree murder charge dropped against you at the top risk of one year imprisonment?
A. No, sir.
REDIRECT EXAMINATION (Resumed)
By [Assistant State’s Attorney]:
Q. Mr. Dorsey, the information that Mr. Davis may have given to the police, did you hear him talking to the police?
A. Well, he had come and told me his self after two other people had called me that — early that morning and saw him in the car with the police, which I saw him, too.
Q. Okay. So you talked to Gene Davis after it happened?
A. Yes, I did.
Q. And he told you, I presume, that the police gave him twenty-five dollars and a bottle of wine?
A. Yes, that morning he did.
Q. And to you that is a bribe, is that correct?
A. I guess that is what you call it.”

Nowhere in the testimony of Dorsey is there a statement to the effect that the police had bribed Davis in order to get false information from him in order to obtain a search warrant. It is beyond question that Dorsey considered the payment of twenty-five dollars and a giving of a bottle of wine to Davis as a “bribe”, but notwithstanding what he considered it, he did not say nor did he imply that the information supplied by Davis was false or that it was for the purpose of getting a search warrant. According to Dorsey the “bribe” was offered to elicit “who was in the crowd down there . . . the night that the incident happened.”

This Court has on occasion commented upon the jury remarks of prosecutors. Fryson v. State, 17 Md. App. 320, 301 A. 2d 211 (1973); Reidy v. State, 8 Md. App. 169, 259 A. 2d 66 (1969); Conway v. State, 7 Md. App. 400, 256 A. 2d 178 (1969); Holbrook v. State, 6 Md. App. 265, 250 A. 2d 904 (1968).

In Holbrook we said:

“Of course, the prosecutor may not make statements to, the jury which exceed the limits of permissible comment. What exceeds the limits of permissible comment depends a good deal upon the facts of each case.... It is the duty of the prosecutor to confine himself in argument to facts in evidence, and he should not state or comment upon facts not in evidence or to state what he could have proven.”

For an in-depth discussion of permissible and impermissible jury argument by prosecutors, see the comprehensive opinion of Judge O’Donnell in Wilhelm v. State, 272 Md. 404, 326 A. 2d 707 (1974).

While our discussions have heretofore been confined, basically, to those instances of alleged impermissible prosecutorial jury argument, what we have said applies equally to arguments of defense counsel. It is no more permissible for defense counsel to engage in improper jury argument than it is for the State’s prosecutorial arm. Trial judges are under an obligation to see that the rights of the parties, both the State and the accused, are protected so that judicial proceedings are conducted in a fair and unprejudicial manner. Fryson v. State, supra; Little v. Duncan, 14 Md. App. 8, 284 A. 2d 641 (1971); Ferry v. Cicero, 12 Md. App. 502, 280 A. 2d 37 (1971). See also DeMay v. Carper, 247 Md. 535, 233 A. 2d 765 (1967).

Although the appellant sees error in the judge’s interruption of defense counsel’s jury argument, we do not see it in the same light. It is the obligation of a trial judge to “maintain strict control over the trial”, Ferry v. Cicero, supra, and, the judge “should have no reluctance to exercise, sua sponte if necessary,” that duty. Ibid. In the instant case it is apparent that defense counsel’s argument as to what Dorsey had stated exceeded the bounds of what Dorsey, in fact, said. Counsel was wrong. Dorsey did not testify that Davis gave “false information” nor did he indicate that such information was for the purpose of police obtention of a search warrant.

We think the judge acted correctly and in accordance with his duty to conduct a fair and impartial trial. Fryson v. State, supra; Ferry v. Cicero, supra.

Judgments affirmed.

      . The particular occasion was not specifically identified because of the secrecy of the grand jury proceedings.

      . The officer was asked by one of the judges of the panel why he took the oath that was given to the grand jury. Officer Hyatt responded that he felt compelled to take the oath in view of the jury judge’s refusal to dismiss him from grand jury service. He stated, “What other choice did I have? ”
      The following occurred:
      “[The judge]: Officer, I would say the choice you would have had was to stand up to your full height and say, ‘Go to hell. I can’t serve.’
      The witness: As I remember, I almost did.
      [The judge]: We are not going to have an America if you people and the rest of you don’t start doing that.”
      Perhaps the officer was more cognizant of the jury judge’s summary contempt power than the jury judge’s colleague. See State v. Roll, 267 Md. 714, 298 A. 2d 867 (1973); Thomas v. State, 21 Md. App. 572, 320 A. 2d 538 (1974), cert, denied by the Court of Appeals, September 11, 1974; Meyers v. State, 23 Md. App. 275, 326 A. 2d 773. We cannot help but observe that we may not “have an America” if everyone decides to take the law into his own hands and judges advocate, from the bench, disrespect for law. In short, the judge was wrong. He would have done well to remember the words of J. Locke, Second Treatise of Government, § 57 (1690), where it is written:
      “The end of law is not to abolish or to restrain, but to preserve and enlarge freedom; for in all the states of created beings capable of laws, where there is no law, there is no freedom.”

      . The Motion to Dismiss was joined into by twenty-four other accuseds, but their cases are not before us. The motion contained other grounds for dismissal. The other grounds/are not raised in this appeal. We have previously considered the issues, however, in other cases, and we have decided them adversely to the position taken by the twenty-five accused. See Wilkins v. State, 16 Md. App. 587, 300 A. 2d 411 (1973); aff'd. Wilkins v. State, 270 Md. 62, 310 A. 2d 39 (1973); Hopkins v. State, 19 Md. App. 414, 311 A. 2d 483 (1973), cert, denied Court of Appeals, March 18,1974.

      . W. Shakespeare, Twelfth Night, III, ii (c. 1600) states there “have been grand-jurymen since before Noah was a sailor.”

      . The Constitution was submitted to the several States by the Constitutional Convention on September 17, 1787. It became operative on March 4,1789 by virtue of its ratification by the Constitutional Conventions of nine of the original thirteen States. Maryland was the seventh State to ratify the Constitution. It took that action on April 28,1788.

      . The first ten amendments to the Constitution were proposed by the Congress, September 25,1789.

      . We note that Chief Judge Robert C. Murphy, in his Report on the State of the Judiciary to the Legislature of Maryland on January 31, 1973, said:
      “One needless source of considerable delay ... between apprehension and trial of guilty felons, is the long-standing requirement of our common law, now codified as part of our criminal code, that, in all felony cases, absent _ waiver, no prosecution may begin unless and until the accused is indicted by a grand jury. Nothing in either the Maryland or Federal Constitutions requires grand jury indictment as a prerequisite to formally charge persons unth the commission of felonies in State courts; indeed, most of the states have abolished any such rigid requirement; and 1 suggest to you that Maryland, in the interest of creating a more effective criminal justice system, permit prosecutors to file complaints against accused felons by way of informations, as they are now permitted to do in misdemeanor cases, rather than be compelled in all felony cases to obtain a grand jury indictment as the one and only permissible charging device. I do not suggest abolition of the grand jury; I would preserve the institution, but make it more responsive to the needs of the public by utilizing it, not as it is presently primarily utilized — to screen cases about which the grand jurors have absolutely no information other than what the State’s Attorney and police present to them, but instead to concentrate its energies on its historical investigatory function, considering matters of real importance where no prior arrest has occurred, such as cases involving allegations of public corruption....” (Emphasis supplied).

      . J. Somers, The Security of Englishmen’s Lives, etc., (1694).

      . 4 W. Blackstone, Commentaries *349.

      . G. Edwards The Grand Jury, supra at 1.

      . 2 J. Bentham, Rationale of Judicial Evidence 312 (1827).

      . Spencer v. Wilson, 29 L.T. 21, 24 (1873).

      . This section took effect July 1, 1973. It was not operative at the time of the indictment in the instant case.

      . See cases collected in Annot., “Prejudice of member of grand jury against defendant as ground of attack on indictment,” 88 A.L.R. 899 (1934), which states that “The general rule is that bias or prejudice of a member of the grand jury is not ground for an attack on the indictment. Many cases are to this effect, usually proceeding on the theory that a grand jury is an accusatory and not a judicial body, and has the right and obligation to act on its own information, however acquired.” 88 A.L.R. at 900. See also 38 Am. Jur. 2d, Grand Jury, § 7 (1968) which declares “Generally in the absence of a controlling statutory provision, a person is not disqualified or incompetent to serve as a grand juror by reason of bias or prejudice on his part, by the fact that he has heard or read about the case under investigation or has even formed or expressed an opinion as to the guilt of the accused, or by his interest in a prosecution other than a direct pecuniary interest.” (Footnotes omitted).

      . The three cases cited were Lawn v. United States, 355 U. S. 339, 349-350, 78 S. Ct. 311, 2 L.Ed.2d 321 (1950); Costello v. United States, 350 U. S. 359, 363, 76 S. Ct. 406, 100 L. Ed. 397 (1956); Hoffman v. United States, 341 U. S. 479, 485, 71 S. Ct. 814, 95 L. Ed. 1118 (1951).

      . Md. Ann. Code art. 51 is now codified as Courts and Judicial Proceedings Article §§ 8-101 — 8-401 (1974).

      . Laws of 1970, ch. 408, now codified as Courts Art. § 8-209. In addition Courts Art. § 8-209 b imposes certain limitations not here applicable.

      . Now Courts Art. 8-210.


source: Caselaw Access Project

author: Orth, C. J.,

license: Public Domain

text:
    DAVID MICHAEL GLASS v. STATE OF MARYLAND
    [No. 325,
    September Term, 1974.]

      Decided December 19, 1974.

      The cause was argued before Orth, C. J., and Moylan and Lowe, JJ.

      R. Moss Carrico, Jr., with whom was Richard R. Marchesiello on the brief, for appellant.

      Gilbert Rosenthal, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and William B. Spellbring, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

On 28 March 1974 in the Circuit Court for Prince George’s County DAVID MICHAEL GLASS pleaded guilty under the indictment filed against him in Criminal Trials No. 14065 to attempting to carnally know and abuse Wanda Marie Slaughter, a female not his wife, who was between the ages of fourteen and sixteen years (6th count) and to the assault and battery of her (4th count), both on 17 October 1973. On 10 May 1974, upon receipt of a presentence report of investigation, he was sentenced to 5 years on the assault and battery conviction and to a concurrent sentence of 3 years on the attempted carnal knowledge conviction. The State entered a nolle prosequi as to the remaining eight counts. On 13 May the court ordered the sentence under the 6th count reduced to 2 years to run concurrently with the sentence under the 4th count. See Code, Art. 27, § 464. On 16 May Glass filed a petition for modification or reduction of his sentence. On 6 June he applied for a review of his sentences and the same day he noted an appeal from the judgments. The petition for modification or reduction of the sentences was denied on 12 June. In the interim, on 7 June, by order of the Administrative Judge of the Seventh Judicial Circuit a panel of three judges was assigned to consider the application for review of the sentences. The record transmitted to us shows nothing further concerning the review of sentence.

Appellant’s brief was filed on 16 September 1974 and appellee’s brief was filed on 14 October 1974. On 31 October 1974, however, appellant filed a “Motion to Correct Record.” It alleged that on 13 June 1974 appellant mailed a motion for appropriate relief to the court below and the presiding judge which was received by the court on 18 June. The motion prayed for an order granting an extension of time within which to submit additional information to be considered in the review of sentence. The order was signed on 18 June but not filed until 30 July. The Motion to Correct Record further alleged that on 16 August a “Determination and Order on Application for Review of Sentence” was signed by the court below confirming the sentences imposed. Appellant requested that this record be corrected to include the motion for appropriate relief filed below, the cover letter of 13 June 1974 and the order of the lower court affirming the sentences. On 6 November the State answered, opposing the grant of the Motion. For reasons which will be apparent in our disposition of this appeal, the Motion to Correct Record is denied.

Glass presents five questions for determination on appeal. The first three concern procedures alleged to have been followed in the proceeding with respect to the review of the sentences imposed.

(1)

Review of criminal sentences is provided by Code, Art. 27, §§ 645JA-645JG, and the statutes are implemented by Maryland Rule 762. The review is by “. . . a panel of three (3) or more trial judges of the judicial circuit in which the sentencing court is located. ...” Section 645JA. The panel has the power to order a different sentence to be imposed or served or the panel may decide that the sentence under review should stand unchanged. Section 645JC.

The appellate jurisdiction of the Court of Special Appeals of Maryland is bestowed by legislative enactment. The statutes provide no right of appeal to that Court by a person from an order of a sentence review panel nor is an appeal from such an order designated to be within its appellate jurisdiction. Under Courts Art. § 12-301 “. . . a party may appeal from a final judgment entered in a civil or criminal case by a circuit court. The right of appeal exists from a final judgment entered by a court in the exercise of original, special, limited, statutory jurisdiction, unless in a particular case the right of appeal is expressly denied by law.” A sentence review panel is not a court. “ ‘Circuit court’ means the circuit court for a county . . .” and the courts of the Supreme Bench of Baltimore City. Courts Art. § 12-101 (d). The right of appeal from the order of a sentence review panel is clearly not within the contemplation of Courts. Art. § 12-301. Courts Art. § 12-308 specifically designates those actions, cases, causes, suits or proceedings with respect to which the Court of Special Appeals of Maryland has exclusive initial appellate jurisdiction. Proceedings before a sentence review panel is not among them. It is patent that the appellate review Glass seeks by his first three questions is not authorized by law and is without the jurisdiction of this Court. They are not properly before us. That part of the appeal which attempts to obtain review of the proceedings before the sentence review panel and the order issued by it are dismissed.

(2)

Glass asks if the transcript shows that his sentence “. . . was dictated by passion, prejudice, ill will, or other unworthy motive or violated due process and therefore should be reviewed on appeal.” And he asks further whether the 5 year sentence for assault and battery constituted cruel and unusual punishment.

Any sentence within the limits prescribed by law is valid and does not constitute cruel and unusual punishment in violation of constitutional protections, Charles v. State, 1 Md. App. 222, 231, unless dictated by passion, prejudice, ill-will or any other unworthy motive, Logan v. State, 1 Md. App. 213, 316. See Towers v. Director, 16 Md. App. 678, 681. Assault and battery are common law crimes for which no statutory punishment is prescribed in this jurisdiction. Weddle v. State, 4 Md. App. 85, 90 and 94. An attempt to commit an offense constitutes a common law misdemeanor. In Maryland no statutory limitation is imposed with respect to sentence for attempted carnal knowledge, and in the case of an attempt, the sentence is not necessarily controlled by the statutory penalty for the completed offense. Dailey v. State, 234 Md. 325, 329; Tillett v. Warden, 215 Md. 596, 597; Fisher v. State, 1 Md. App. 505, 510. A sentence for a common law crime for which no sentence is fixed by statute is not invalid unless it amounts to cruel and unusual punishment or is imposed in violation of due process of law. Therefore, a trial judge in this State generally has wide discretion in determining what sentence to impose, and in making that determination, he may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come. United States v. Tucker, 404 U. S. 443, 446; Towers v. Director, 16 Md. App. 678, 680-681.

At the penalty stage of the proceedings the court observed that Glass had been involved in a similar offense in Montgomery County as a result of which he was seeing a psychiatrist or psychologist. The court said:

“Mr. Glass, the Court cannot stand, society cannot stand, this type of conduct, it’s that simple.
It’s apparent that you have had the benefit of counseling at the expense of the State, and it has served no purpose for you to become involved in a similar offense the second time.”

The sentences were imposed to begin the day of sentencing because Glass had not “spent any time in jail” awaiting trial.

We see no abuse in the wide discretion enjoyed by the trial judge in his sentencing authority. The sentences did not exceed the maximum permitted by law, they were not cruel and unusual, and they were not imposed in violation of due process of law. No unworthy motive was indicated. The court was not obliged to follow recommendations made by pre-sentence investigators. Church v. State, 5 Md. App. 642.

Insofar as the appeal pertains to proceedings before the sentence review panel, it is dismissed; the judgments under the Uth and 6th counts of the indictment in criminal trials No. 11065 are affirmed; costs to be paid by appellant.

      . Glass was jointly indicted with Timothy Allen Master and James Edward Master. The other eight counts charged related offenses arising from the same incident. Glass was charged under all counts. The two Masters were charged under all except the 5th and 6th counts. The 5th count charged carnal knowledge.

      . The State’s answer to the petition was filed the day after the petition was denied.

      . The first three questions as presented are:
      “1. Should the Defendant be granted another review of sentence since a decision in writing was not rendered within thirty days from the date of filing an application for review of sentence as required by Maryland Rule 762?
      2. Should the Defendant be granted another review of sentence since no hearing was held and the panel did not afford the convicted person, his attorney, or the prosecuting attorney an opportunity to present information to the panel as required by Maryland Rule 762?
      3. Should the Defendant be given another review of sentence since there is no evidence the review panel actually met and its determination and order is signed by only its chairman?”

      . Sections 645JA-645JG of Art. 27 were formerly §§ 132-138 of Art. 26. They were transferred and renumbered by ch. 2, Acts 1973,1st Sp. Sess.

      . The judge who sentenced the convicted person shall not be one of the members of the panel, but if he so desires, he may sit with the panel in an advisory capacity only. Code, Art. 27, § 645JA.

      . We note that Art. 27, § 645JA provides that “. . .no person shall have the right to have any sentence reviewed more than once pursuant to this section.”

      . We point out that the notice to enter the appeal was filed 6 June 1974 and was from “. . . the judgment of conviction in counts four and six in the above noted case [State v. Glass, Criminal Trials No. 14065].” The three judges composing the sentence review panel were not assigned until 7 June, and, according to appellant, the order of the panel was not issued until 16 August.
      We have a further observation. The sentence upon the conviction of attempted carnal knowledge was reduced to 2 years to run concurrently with the 5 year sentence for assault and battery. Review is authorized only for sentences of more than 2 years. Code, Art. 27, § 645JA and 645JB. Glass was not entitled to a review of the 2 year sentence in any event.

      . The court at first remarked that Glass was on probation at the time of the current offense. Defense counsel corrected that impression: “He has never been convicted of anything. * * * There was an allegation of the offense in Montgomery County, but there were no charges placed with the Court. It was recommended that he see the psychiatrist over there, which he did, and that was transferred to Prince George’s County.”


author: Lowe, J.,

text:
    IN RE APPEAL NO. 321 from the Circuit Court of Baltimore City, sitting as a Juvenile Court
    [No. 321,
    September Term, 1974.]

      Decided December 20, 1974.

    The cause was argued before Powers, Gilbert and Lowe, JJ.

      Solomon Reddick, Assistant Public Defender, for appellant.

      Bernard A. Raum, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Allen, State’s Attorney for Baltimore City, and David Katz, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

The juvenile appellant was found to be delinquent for having broken into a grocery store in company with another. On the same date that he was found delinquent, his mother was ordered to make full restitution. While acknowledging the constitutionality of the vicarious liability imposed upon parents by Courts Art. § 3-839, Matter of Sorrel, 20 Md. App. 179, on this appeal she enticingly questions the constitutionality of-the enforcement clause of that section which gives the court:

“. . . full power to cite for contempt for a violation thereof if the facts of a particular case before him indicates sufficient ability of such parent to comply with such order.”

Appellant argues that the exercise of contempt power to enforce a money judgment violates Art. Ill, § 38 of the Maryland Constitution, prohibiting imprisonment for debt. The only exception to that prohibition is for the support of a wife or dependent children. That exception was provided for by constitutional amendment as part of § 38.

Enforcement by Contempt

Unfortunately the mother’s argument is premature. Although the debt was incurred, she has not been held in contempt for violation nor has payment of the restitution order been otherwise enforced. Consequently she is unharmed and unaffected, and her argument is only hypothetically posed on the basis of what might eventually happen. “The best teaching of judicial experience admonishes us not to entertain constitutional questions in advance of the strictest necessity.” Minner v. Minner, 19 Md. App. 154, 158 quoting Wilkins v. State, 16 Md. App. 587, 598; see also United States v. Raines, 362 U. S. 17, 21. Intriguing as it appears, the issue must await determination until it comes to us on surer footing.

The generally awkward posture in which the case is presented to us crystallizes the inherent procedural complications of the novel concept of vicarious liability. It is incongruously codified as a juvenile cause, appears to be a civil judgment, and is enforceable by incarceration. Further evidencing that incongruity, if further evidence is needed, is the peculiar position of the delinquent’s mother as a party appellant represented by the Public Defender assigned to defend her son, who, on her behalf, attacks a money judgment against her. Before exercise of the enforcement clause would have been possible (as noted, its exercise was a pre-condition to a justiciable controversy here) the statutory requirement that the mother be shown to possess “sufficient ability ... to comply with [the] order ...” must have been met. Any such finding would hardly be compatible with the indigency prerequisite to her present representation by a public defender.

Apportionment of Restitution

The second question raised is far more ingenuous. Since the juvenile appellant’s cohort was not before the court, the entire loss was assessed to the mother who now argues that she should be responsible only for so much of the loss as was attributed to her son. We do not agree. The statute limits such parent’s liability only by a dollar amount, i.e., one thousand dollars, not to a pro rata share of the mischief accomplished by the juvenile. In the event joint restitution is prescribed against another, or the parents of a co-delinquent, contribution may be sought. Notwithstanding the right to such contribution the restitution so ordered should assure the injured of payment within the prescribed limit in a manner comparable to the liability of a joint tort-feasor Were we to rule otherwise, only partial restitution would be had where a co-delinquent’s parent was without the ability to pay. That the recovery was intended to follow the ability to pay, is comprehended by the Legislature’s restriction of the questioned enforcement clause to parents “with sufficient ability ... to comply.” The vicarious liability is imposed as a consequence of a presumed neglect of parental responsibilities, but it is aimed at restoring a measure of the injury incurred.

Judgment affirmed.

      . Affirmed by the Ct. App. in Wilkins v. State, 270 Md. 62.


text:
    JOHN JOSEPH GRADY v. STATE OF MARYLAND
    [No. 329,
    September Term, 1974.]

      Decided December 20, 1974.

      The cause was argued before Powers, Gilbert and Lowe, JJ.

      Joseph A. DePaul and James E. Kenkel, with whom were DePaul, Willoner & Kenkel, P.A., on the brief, for appellant.

      George A. Eichhom, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Elias Silverstein, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

John Joseph Grady, appellant, was charged in Prince George’s County, under a criminal information with three counts of perverted practices, Md. Ann. Code art. 27, § 554. Each of the three counts alleged appellant’s involvement with separate female victims, two of whom were age seven and one age nine. The information additionally charged three separate counts of assault and battery. Appellant was convicted by a jury on all six counts, and he was sentenced to three ten-year concurrent terms of imprisonment for the perverted practices charges. The sentences were suspended and appellant was placed on probation for a period of five years.

The Court of Appeals in Kucharczyk v. State, 235 Md. 334, 201 A. 2d 683 (1964), announced at 337 what has become known as the “Kucharczyk Doctrine”. Kucharczyk involved a conviction for an unnatural and perverted sex act and assault and battery. The prosecuting witness was a sixteen year old boy who had a full scale I.Q. of 56, and was characterized as “mentally deficient”. On cross examination the young man testified contradictorily to the version that he had stated on direct examination. Judge Sybert, writing for the Court of Appeals in Kucharczyk adopted from civil cases the rule that if a witness’s testimony is so self-contradictory as to lack probative force, the trier of fact may not be allowed to speculate as to which of the versions is true. See Balto. Tr. Co. v. Presherry, 233 Md. 303, 196 A. 2d 717 (1964); Kaufman v. Baltimore Transit Co., 197 Md. 141, 78 A. 2d 464 (1951); Slacum v. Jolley, 153 Md. 343,138 A. 244 (1927). In Slacum the Court said:

“When a witness says in one breath that a thing is so, and in the next breath that it is not so, his testimony is too inconclusive, contradictory and uncertain to be the basis of a legal conclusion.”

See also Eisenhower v. Balto. Transit Co., 190 Md. 528, 59 A. 2d 313 (1948). Judge Sybert noted that while Kucharczyk involved a criminal case, nevertheless, the rationale of Kaufman, Presherry, Slacum and Eisenhower was apposite. Thus Kucharczyk’s conviction was reversed because of the glaring inconsistencies in the prosecuting witness’s testimony.

This Court, in Bailey v. State, 16 Md. App. 83, 294 A. 2d 123 (1972), speaking through Judge Moylan, said at 95-97:

“Despite the limited utility of the doctrine, the life of Kucharczyk has been amazing for the number of occasions on which and the number of situations in which it has been invoked in vain. Kucharczyk does not apply simply because a witness’s trial testimony is contradicted by other statements which the witness has given out of court or, indeed, in some other trial. Brooks v. Daley, 242 Md. 185, 191-192; Edwardsen v. State, 243 Md. 131, 137-138; Wilson v. State, 261 Md. 551, 556-558; Alexander v. State, 4 Md. App. 214, 218; Moore v. State, 7 Md. App. 495, 502; Jones v. State, 10 Md. App. 420, 428; Tumminello v. State, 10 Md. App. 612, 616; Sun Cab Company v. Carter, 14 Md. App. 395, 407. Nor does Kucharczyk apply where a witness’s trial testimony contradicts itself as to minor or peripheral details but not as to the core issues of the very occurrence of the corpus delicti or of the criminal agency of the defendant. Bell v. State, 2 Md. App. 471, 472; Poff v. State, 3 Md. App. 289, 292-293; Chesley v. State, 3 Md. App. 588, 596; Eley v. State, 4 Md. App. 230, 234; Rasnick v. State, 7 Md. App. 564, 568; Lindsay v. State, 8 Md. App. 100, 103; Gardner v. State, 8 Md. App. 694, 700-701; Dorsey v. State, 9 Md. App. 80, 87; Pinkney v. State, 9 Md. App. 283, 295; Hunt v. State, 12 Md. App. 286, 292; Crenshaw v. State, 13 Md. App. 361, 372. Nor does Kucharczyk apply where the testimony of a witness is ‘equivocal, doubtful and enigmatical’ as to surrounding detail. Thompson v. State, 5 Md. App. 191, 196-197. Nor does Kucharczyk apply where a witness is forgetful as to even major details or testifies as to what may seem improbable conduct. Gunther v. State, 4 Md. App. 181, 184-185. Nor does Kucharczyk apply where a witness is initially hesitant about giving inculpatory testimony but subsequently does inculpate a defendant. Wilkins v. State, 239 Md. 692, 693. Nor does Kucharczyk apply where a witness appears initially to have contradicted himself but later explains or resolves the apparent contradiction. Wilson, Valantine and Nutter v. State, 8 Md. App. 653, 674. Nor does Kucharczyk apply where a State’s witness is contradicted by other State’s witnesses. Scott v. State, 2 Md. App. 709, 713-715; Tillery v. State, 3 Md. App. 142, 148; Gunther v. State, supra; Hunt v. State, supra. Nor does Kucharczyk apply where a State’s witness is contradicted by defense witnesses. Johnson v. State, 3 Md. App. 219, 222. Nor does Kucharczyk apply where a witness does contradict himself upon a critical issue but where there is independent corroboration of the inculpatory version. Tucker v. State, 237 Md. 422, 424; Chesley v. State, supra, 596. In each of those situations, our system of jurisprudence places reliance in the fact finder to take contradictions or equivocations properly into account and then to make informed judgment in assessing a witness’s credibility and in weighing that witness’s testimony. Even in a pure Kucharczyk situation, the ultimate resolution is solely in terms of measuring the legal sufficiency of the State’s total case and not in terms of the exclusion of the contradictory witness’s testimony.”

A review of the testimony reveals that one of the prosecuting witnesses was extremely reluctant, and in the final analysis said nothing. The other two juvenile witnesses did make glaring, inconsistent statements in that each affirmed and denied that she had touched the appellant’s penis. The message comes through, however, loud, clear and consistently that each had performed fellatio upon the appellant.

The testimony, viewed in the light of Kucharczyk as explicated by Bailey, does not reveal a pure KucharczyJc situation. Although there is present in the instant case some self-contradiction on the part of the witnesses and some ambiguity as to whether Mr. Grady’s penis was between his legs or “in front of him”, the two girls testified unambiguously and clearly to performing acts of fellatio on appellant on one or more occasions. We think the testimony of the two children is not devoid of probative force and that the trial judge properly declined to grant a motion for judgment of acquittal. The evidence as to fellatio, if believed, was legally sufficient to sustain the conviction.

Notwithstanding the non-application of KucharczyJc, we must reverse all convictions.

The trial judge instructed the jury:

“Now, there is evidence in this case, or been offered in this case, or introduced, the defendant was not present at the time and the place where the offenses allegedly were committed. This may be referred to as a defense of alibi. The Court tells you that a defense of alibi is a legitimate, legal and proper defense. The defendant may not be convicted of the offense with which he is charged unless the government proves beyond a reasonable doubt that the defendant was present at the time when, and at the place where, the offenses were committed.
If, after a full and fair consideration of all the facts and circumstances in evidence, you find that the government has failed to prove beyond a reasonable doubt that the defendant was present at the time when, and the place where, the offense charged was allegedly committed, you must find the defendant not guilty.
With reference to alibi, a defendant may be entitled to acquittal if you believe the alibi testimony as his not being present at a time and place of the alleged offense, by taking into consideration this testimony with all the other evidence raising a reasonable doubt of guilt, but in order to prove an alibi conclusively the testimony must cover the whole time in which the crime by any possibility might have been committed, and should be subjected to rigid scrutiny. ” (Emphasis supplied).

The word “conclusively” is defined in the American Heritage Dictionary of the English Language (1970) to mean:

“Serving to put an end to doubt or question; Decisive; Final.”

Similar definitions are found in Webster’s New International Dictionary of the English Language (2d ed. unabridged, 1947) and Funk and Wagnals Standard College Dictionary (Text ed. 1963).

An analysis of the judge’s instructions discloses the following: The State must prove its charges against the defendant beyond a reasonable doubt, but a defendant is required to prove his alibi conclusively. As we read the charge, the defendant is held to establish an alibi by a degree of proof that is above and beyond that required to determine his guilt. The State, the jury was also told, must show guilt beyond a reasonable doubt which, of course, does not mean to a mathematical certainty or beyond any doubt, while the defendant (appellant here) would seem to be required to establish his alibi beyond any doubt. This Court in Jackson v. State, 22 Md. App. 257, 322 A. 2d 574 (1974) said:

“There appears to be some confusion among the Bench and Bar that a defendant in a criminal case who raises the defense of alibi has, ipso facto,

placed upon him the burden of proof of establishing his alibi by a preponderance of the evidence. Such, of course, is not the case. Robinson v. State, [20 Md. App. 450, 316 A. 2d 268 (1974)]. The popular, albeit erroneous, belief concerning an alibi defense apparently stems from a tendency to believe that an ‘alibi defense’ is an ‘affirmative defense’ thus carrying a burden of proof, but it is not. An affirmative defense is one that concedes the basic position of the State but, nevertheless, asserts that the accused is not guilty, e.g., self-defense. An affirmative defense requires the person asserting it to establish its existence by a preponderance of the evidence. Davis v. State, 237 Md. 97, 205 A. 2d 254 (1964); Chandler v. State, 7 Md. App. 646, 256 A. 2d 695 (1969); Morris v. State, 4 Md. App. 328, 242 A. 2d 582 (1968); Long v. State, 3 Md. App. 638, 240 A. 2d 620 (1968). When the State charges that a particular individual committed a certain violation of the Criminal Laws it assumes an obligation to establish that individual’s guilt of the offense charged beyond a reasonable doubt. The State carries its burden throughout the entire trial, and its onus of proof as to the substantive offense charged is never lifted from its shoulders and shifted to the accused. An alibi defense, on the other hand, merely requires an accused to go forward with such exculpatory evidence as he may wish to present for the trier of fact to consider in determining whether the State has met its burden. The trial judges are cautioned not to instruct that an accused has the ‘burden of proof of establishing alibi because such an instruction is wrong. Moreover, an instruction that places the ‘burden’ upon an accused to prove by a preponderance of the evidence his alibi, may effectively erode the only defense available to an accused, and thus, cause him to stand naked and defenseless before the State’s accusation.

It is for the trier of fact, be it a judge in a non-jury trial or the jury, to ascertain whether the alibi testimony, when considered and weighed on the same scale as all other evidence in the case, creates a reasonable doubt of the defendant’s guilt. Floyd v. State, 205 Md. 573, 581, 109 A. 2d 729, 732 (1954). See also Basoff v. State, 208 Md. 643, 655, 119 A. 2d 917, 923 (1956).”

See also Daniels v. State, 24 Md. App. 1, 329 A. 2d 712, and Robinson v. State, supra. We note that Robinson, Jackson and Daniels were all filed subsequently to the trial in the instant case.

Although appellant did not except to the trial judge’s jury instructions, we, under the “plain error” provision of Md. Rule 756 g, take cognizance of those instructions. See Robinson v. State, supra at 457, Jackson v. State, supra at 264, and Daniels v. State, supra at 7. In Jackson we refused to agree that the alibi instruction was, as the State there argued, harmless. We stated at 264:

“. . . The testimony . . . boils down to the credibility of the prosecuting witness, vis a vis the appellant. In sum, it is a ‘Yes, you did’ versus ‘No, I didn’t’ type of confrontation. We cannot hold that the jury should have believed the prosecuting witness over the accused as it is not our function to judge the credibility of witnesses nor to weigh the evidence.” (Citations omitted).

In the case now before us for review, the appellant, because of the State’s inability to demonstrate the time frame in which the alleged events took place, had cast upon him by the Court’s instruction the Herculean task of establishing an alibi for the entire period of time that he had known the children. The predicament in which appellant found himself is made more clear when one realizes that the appellant had known the girls for a period of two to three years.

The instruction as given required the appellant “to prove” his “alibi conclusively” for that entire period. He was put to the task of accounting for every minute of every day for the two or three year period. It is doubtful that anyone in free society could meet such an incubus.

We are aware that in Floyd v. State, 205 Md. 573, 109 A. 2d 729 (1954) the Court of Appeals used the language, “But in order to prove an alibi conclusively, the testimony must cover the whole time. . . .” (Emphasis supplied). As we read Floyd it is apparent that the Court meant that if an alibi defense is to be effective it should blanket the entire period of time in which the offense is alleged to have been committed. Clearly the Court did not intend to place upon an accused a duty to prove his alibi conclusively.

Turning briefly to the convictions for assault and battery, we observe that Judge McWilliams stated for the Court in Turner v. Hammond, 270 Md. 41, 310 A. 2d 543 (1973) that if “it takes ten gossamers to make a scintilla, then the appellees’ evidence . . . falls well short of five gossamers.” Judge McWilliams may well have been speaking of the case now before us as we are unable to find “five gossamers” of evidence pertaining to the assault and battery.

Judgments reversed.

Case remanded for anew trial.

Costs to be paid by Prince George’s County.

      . Sentence was not imposed upon appellant for the assault and battery convictions. The docket entries reveal merely that the court “suspended generally” the imposition of sentences upon the assault and battery charges.

      . Appellant assigned four reasons for reversal. We think he is right on three of them, although we do not find it necessary in this case to discuss all three reasons. One contention not discussed is directed toward the time frame in which the events are alleged to have occurred. Because of the ambiguity surrounding the time of the occurrence or occurrences, appellant perceives a denial of due process. Cf. Brunner v. State, 154 Md. 655, 141 A. 346 (1928). Another reason that appellant advances for reversal of the trial court’s judgment was the admission into evidence, over objection, of an indubitable hearsay statement by one of the prosecuting witnesses to the effect that another prosecuting witness had told her what she had done to the appellant at appellant’s request.


text:
    IN RE APPEAL NO. 371, September Term, 1974 from the Circuit Court for Howard County, SITTING AS A JUVENILE COURT
    [No. 371,
    September Term, 1974.]

      Decided December 20, 1974.

    The cause was argued before Orth, C. J., and Morton and Thompson, JJ.

      Orrin J. Brown, III, Assigned Public Defender, for appellant.

      James I. Keane, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Richard J. Kinlein, State’s Attorney for Howard County, and Richard J.

      Wilkinson, Deputy State’s Attorney for Howard County, on the brief, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

I

The only way we can account for the course of this case below is that it ran afoul of our opinion in Matter of Trader, 20 Md. App. 1, decided 11 February 1974. It once was that an order of a juvenile court waiving its exclusive jurisdiction over a delinquent child was a final order, and, as such, immediately appealable. Code (1957), Art. 26, § 70-16 (c). See Aye v. State, 17 Md. App. 32, 36-40; Wheeler v. State, 10 Md. App. 624, 626; Thomas v. State, 10 Md. App. 458, 461. By ch. 773, Acts 1973, however, except for Montgomery County, a waiver order was designated to be interlocutory, and no longer immediately appealable. Courts Art. § 3-817. In our Trader we held the law making the waiver order interlocutory to be void because under the public local law applicable to Montgomery County such an order was still final and immediately appealable. We thought this difference between the public general law and the public local law mounted up to an invidious discrimination violative of the equal protection clause of the constitution. There were other areas with respect to juvenile causes wherein difference between the law applicable to Montgomery County and the law governing the remainder of the State would, under the Trader rationale, be unconstitutional and void. One of these areas concerned the jurisdiction of a juvenile court. By ch. 514, Acts 1972, § 1, effective 1 July 1972, originally codified as Art. 26, § 70-2 (d) (3), an additional exemption was designated in the general law to the exclusive original jurisdiction of a juvenile court. As amended and now codified as Courts Art. § 3-808 (4), it provides that a juvenile court does not have jurisdiction over a child 16 years or older alleged to have committed the crime of robbery with a deadly weapon, unless an order removing the proceeding to the juvenile court was filed by the court exercising jurisdiction. Again, Montgomery County was exempted from the provisions of the general law, and no similar provision exempted children from treatment of juveniles under the Montgomery County law. Because of this, the Criminal Court of Baltimore, relying principally on our Trader, granted a motion to dismiss an indictment charging a child, Emmit W. Stokes, with robbery with a deadly weapon, there being no waiver by the juvenile court of its jurisdiction over the child. The State appealed to this Court in both Trader and Stokes. Under our affirmance of the dismissal of the indictments in Trader, the Court of Appeals granted the State’s petition for the issuance of a writ of certiorari. In Stokes it granted certiorari prior to decision by us. It decided both cases in an opinion filed 13 September 1974, Matter of Trader, 272 Md. 364.

The effect of the opinion of the Court of Appeals was that, contrary to our holding in Trader, and the holding of the Criminal Court of Baltimore in Stokes, both the general law designating a waiver order as interlocutory and the general law exempting the jurisdiction of a juvenile court over a child charged with committing the crime of robbery with a deadly weapon, were in full force and effect. In short, the law stood as it did before our Trader opinion. See Broadway v. State, 23 Md. App. 68.

II

On 25 February 1974, in the interim between our decision in Trader and the Court of Appeals’ decision in Trader, a petition was filed in the Circuit Court for Howard County, sitting as a Juvenile Court, alleging that the appellant here, born 11 November 1956, was a delinquent child “For the reason on or about the first day of October, 1973, in the County [of Howard] the said juvenile did use a dangerous and deadly weapon and did steal from Aaron Nicholas Kundrat approximately $40.00 in U.S. currency, and said juvenile did use á handgun in the commission of an armed robbery of Aaron Nicholas Kundrat.” On 6 March 1974 the State filed a petition for waiver of juvenile jurisdiction. On 9 April there was a hearing on the motion, and, on the same date, the court issued an order waiving its jurisdiction to the Circuit Court for Howard County, so that appellant would be held for trial under the regular procedures of that court under its jurisdiction over the offense if committed by an adult. Courts Art. § 3-816 (e). Appellant noted an appeal from the waiver order.

III

The State included a motion to dismiss the appeal in its brief. Maryland Rule 1036d. The ground for the motion is that the waiver order appealed from was not a final order, the Court of Appeals’ Trader having “rendered the legal basis for this appeal moot.” We dismiss the appeal, but not for that reason.

As we have indicated, the State is correct in its assertion that under the present status of the law an order waiving the jurisdiction of a juvenile court is interlocutory and not immediately appealable. But here, under Courts Art. § 3-808 (4), the Circuit Court for Howard County, sitting as a Juvenile Court, had no jurisdiction over appellant. All the proceedings concerning him were no more than form, having no substance and no validity. The order waiving the court’s jurisdiction was a nullity; there was no jurisdiction in the court for it to waive. Its order was void ab initio. The order being void, there was nothing from which to appeal. The appeal noted therefrom must be dismissed.

IV

The dismissal of the appeal leaves the child here under the jurisdiction of the court having jurisdiction had the offense been committed by an adult. Aye v. State, swpra. The procedures to be followed with respect to him are those procedures which would be followed were he an adult. If he is duly charged, as an adult would be charged, with the crime of robbing Aaron Nicholas Kundrat with a deadly weapon, then he is subject to trial in the Circuit Court for Howard County under its criminal jurisdiction, unless that court by its order filed pursuant to Code, Art. 27, § 594A removes the proceeding to the Juvenile Court.

Appeal dismissed; costs to be paid by Howard County; mandate to issue forthwith.

      . The removal order must be filed pursuant to Code, Art. 27, § 594A, which as amended, effective 1 July 1972, provided:
      “In any case involving a child who has reached his fourteenth (14th) birthday but has not reached his eighteenth (18th) birthday at the time of any alleged offense excluded under the provisions of § 70-2 (d) (1) or (3) of Article 26, the court exercising jurisdiction may transfer the case to the juvenile court if a waiver is believed to be in the interests of the child and/or society.”
      There was further amendment by Acts 1974, ch. 865, § 3, effective 1 July 1974. which substituted “§ 3-808 of the Courts Article of the Code” for “§ 70-2 (d) (1) or (3) of Article 26.”

      . The opinion also decided two other cases spinning off of our Trader opinion. The cases decided by the opinion were docketed in the Court of Appeals as follows: Matter of Trader, No. 29; State v. Stokes and Matter of Faulkner, No. 32; Matter of Thomas, No. 54, all September Term, 1974. We cite the opinion with respect to all the cases as Matter of Trader.

      . “In cases involving delinquency, the age of the child at the time the alleged delinquent act was committed controls the determination of jurisdiction under this subtitle.” Courts Art. § 3-814 (a).

      . What proceedings had taken place before the filing of the petition, except as hereinafter discussed, are not reflected in the record submitted to us. We do not know, from the record, whether there was an indictment returned and later dismissed.
      Included in the record is a partial transcript of a bail hearing in the District Court at which appellant was placed on bail in the amount of $5000 pending trial.
      At the waiver hearing on 9 April 1974 the State told the court: “A previous waiver petition regarding the use of a handgun in the commission of a felony was heard before Judge Macgill and he refused to waive and that case is now appealed to the Court of Special Appeals.” We dismissed the appeal as from an interlocutory order pursuant to the Court of Appeals’ Trader. In re Appeal No. 51, September Term, 1974 from the Circuit Court for Howard County, sitting as a Juvenile Court, 22 Md. App. 616.

      . At the hearing the State told the court, Mayfield, J., about the refusal of Judge Macgill to waive the jurisdiction of the juvenile court as to the handgun charge, see note 4, supra, and explained: “That charge was erroneously placed in the — with this waiver petition. What we are intending to have waived today is the armed robbery and the lesser included offenses which would be robbery and assault, but we do not feel that it would be appropriate to again request a waiver on the handgun charge considering the present status of the earlier waiver petition.” The State dismissed “its petition insofar as the charge of a use of a handgun.” Counsel for appellant said: “Your Honor, I had understood that from the beginning, although I realize that the petition was probably incorrectly drawn.”

      . For a discussion of the appealability of orders waiving juvenile jurisdiction under the present status of the law see In re Appeal No. 961, September Term, 1973 from the Circuit Court of Baltimore City, sitting as a Juvenile Court, 23 Md. App. 9, 11-13.

      . The effect on the proceedings is the same as when a juvenile is tried in a criminal court without a waiver from a juvenile court having exclusive jurisdiction over that juvenile. Franklin v. State, 264 Md. 62; Matter of Ingram, 15 Md. App. 356; Aye v. State, supra.