author: Powers, J.,

text:
    LEONARD E. WILSON et al. v. MAYOR AND COMMISSIONERS OF THE TOWN OF ELKTON
    [No. 191,
    September Term, 1976.1

      Decided April 6, 1977.

    The cause was argued before Morton, Powers and Melvin, JJ.

      Doñs P. Scott for appellants.

      O. Robert Lidums, with whom was Eugene F. Herman on the brief, for appellee.
   Powers, J.,

delivered the opinion of the Court.

The zoning ordinance of the Town of Elkton, adopted in 1963, recognized the continued right to lawful existence of lots, structures, and uses which the terras of the ordinance would not otherwise permit. It provides, Art. I, Sec. 4, Subsection 1:

“Intent — Within the zones established by this ordinance or amendments that may later be adopted there exist lots, structures, and uses of land and structures which were lawful before this ordinance was passed or amended, but which would be prohibited, regulated, or restricted under the terms of this ordinance or future amendment.
It is the intent of this ordinance to permit these non-conformities to continue until they are removed, but not to encourage their survival. Such uses are declared by this ordinance to be incompatible with permitted uses in the zones involved. It is further the intent of this ordinance that non-conformities shall not be enlarged upon, expanded or extended, nor be used as grounds for adding other structures or uses prohibited elsewhere in the same zone.
A non-conforming use of a structure, a non-conforming use of land, or a non-conforming use of a structure and land shall not be extended or enlarged after passage of this ordinance by attachment on a building or premises of additional signs intended to be seen from off the premises, or by the addition of other uses of a nature which would be prohibited in the zone involved.”

Subsection 4 provides:

“Non-Conforming Structures — Where a lawful structure exists at the effective date of adoption or amendment of this ordinance that could not be built under the terms of this ordinance by reason of restriction on area, lot coverage, height, yards, or other characteristics of the structure or its location on the lot, such structure may be continued so long as it remains otherwise lawful, subject to the following provisions:
a) No such structure may be enlarged or altered in a way which increases its non-conformity; * * * ”

Owned by a Mrs. Minnie Rooney from 1960 until she sold it in September 1974, the property involved in this appeal consists of a lot and house known as 143 Main Street, located at the corner of Church Street, in the Town of Elkton. The lot is said to be 14 V2 feet wide and 87 feet long, with a total area of less than 1,300 square feet. It was originally classified in and remains in the Residential-Office Zone R-O, which generally permits multiple family and office uses.

The minimum requirements for a conforming lot in the R-0 zone are that it have an area of 6,500 square feet, a width of 60 feet, a front yard of 20 feet, a rear yard of 30 feet, and a side yard of 5 feet. For a structure having two or more dwelling units, the lot must have a minimum area of 2,000 square feet per dwelling unit. A structure in the R-0 zone may not cover more than 50% of the area of the lot.

The structure in this case, a three story house the same width as the lot, and 60 feet from front to back, leaves no front yard on Main Street or on Church Street, no side yard, and less than the required rear yard.

From the time the zoning ordinance was enacted in 1963, Mrs. Rooney’s lot and structure enjoyed the right to continue to exist, subject to the non-conforming use provisions of the ordinance, although neither conformed with the requirements of the R-0 zone.

In September, 1974, Dr. Charles V. Pasqualini, Jr. purchased the property from Mrs. Rooney. He promptly applied to the Board of Zoning Appeals for the Town of Elkton for a variance, to permit him to construct a new outside stairway to the second and third floors, on the rear of the building. The Board, after a hearing at which Leonard E. Wilson, a neighboring property owner, protested, granted the variance. Mr. Wilson and his wife appealed to the Circuit Court for Cecil County, which reversed the decision of the Board of Appeals. The court did so because the Board failed to make findings of fact, which the ordinance required it to do. The court said in reversing the Board that “the granting of the variance was not in accordance with the law,” but specifically stated that it did “not decide the question of whether * * * [the Board’s action was] arbitrary, capricious and discriminatory.”

Thereafter a new application was submitted to the Board by Dr. Pasqualini, requesting a variance “to provide a rear fire escape from the three existing apartments at this address to comply with the State Fire Marshal’s Office which requires this access pursuant to State Fire Prevention Code * * *.” The application was expressed in greater detail in an amendment made at the hearing before the Board, and accepted by it.

Significant evidence at the hearing before the Board of Appeals was given by Dr. Pasqualini and by Mr. Wilson. Dr. Pasqualini described the building. He said it was a house with three floors; that Mrs. Rooney had lived on the first floor, and had apartments on the second and third floors. The apartments were not occupied when he settled for the property in September 1974, but had been occupied when he negotiated with Mrs. Rooney around June or July. The first time he was in the property was in 1973.

Explaining why he wanted the variance, Dr. Pasqualini said that the first floor had front and rear entrances or exits; from the second floor one could go down the interior stairway to the first floor, or from a platform at the rear, down an outside stair to the ground; but from the third floor the only ingress or egress was through the second floor apartment. He said he had learned that he needed another exit from the third floor, and proposed to build an outside stairway from the rear of the third floor to an enlarged platform at the rear of the second floor. After learning of the requirement of the Fire Prevention Code, he had asked the office of the State Fire Marshal to give him a letter.

The letter, dated May 1, 1975, from John H. Farrell, Assistant Chief Fire Investigator, referred to an inspection made the day before. It said that the State Fire Prevention Code required that every living unit shall have access to at least two separate exits which are removed from each other by travelling in different directions. The letter also said that the exterior stairs being built would be acceptable as complying with the requirement.

A named protestant, who did not testify, was Glen Wilson, owner of the adjoining property, No. 145 Main Street, a two story single family house, about 14 feet wide. The tenant in that house, a Mr. Hopkins, testified about the effect of the variance on other property.

Leonard E. Wilson testified that he owns and lives in the single family house at No. 147 Main Street. He also owns No. 149, where he maintains a law office, and No. 151. He said that he purchased the property at No. 149-151 in April, 1966. Some time before that, he had been shown the Rooney house, which was listed for sale, and had looked at it with the idea of purchasing it.

Mr. Wilson testified that Mrs. Rooney used the first floor for living and the second floor for sleeping, and there was a separate apartment on the third floor. He said that there was no kitchen facility on the second floor, and the second floor was not used as a separate apartment. Mr. Wilson said that he purchased and moved into No. 147 Main Street in 1967, and saw and visited with Mrs. Rooney in her house on occasion. Several years later, about 1971, Mrs. Rooney had a deck at the rear of the second floor closed in and a kitchen installed. There had been none until that time.

The hearing before the Board of Appeals was held on 25 June 1975. On 21 July 1975, the Board filed a majority opinion in which the requested variance was granted. An order for appeal and the required petition, Maryland Rule B2, were filed in the Circuit Court for Cecil County on behalf of the protestants. The applicant did not intervene. The appeal was heard on the record, supplemented by the testimony of one witness, and on arguments of counsel.

The witness whose testimony was heard by the court was the Assistant Chief Fire Investigator, whose letter was in evidence at the Board hearing. He testified that he wrote the letter after he visited the premises at Dr. Pasqualini’s request. He said there was some discussion of the number of dwelling units, but that he did not go inside the premises. He also testified that if there were two dwelling units in the building, his department would have no jurisdiction and no enforcement powers, but if there were three dwelling units in the residence, his office would have jurisdiction, and the letter would be applicable.

The court, J. Albert Roney, Jr., Judge, sustained the order of the Board of Zoning Appeals granting the variance. This appeal was taken by the protestants.

Appellants contend that the lower court erred in holding that the action of the Board of Appeals was not arbitrary, capricious, or illegal, and that the court erred in failing to exercise the proper scope of judicial review in determining the issues. They argue that the Board of Appeals did not comply with the requirements of the zoning ordinance with respect to variances, and that the alleged requirements of the Fire Marshal, upon which the Board placed undue emphasis, were not applicable. Appellants contend that the Board did not make the findings of fact required by the ordinance. Particularly, the appellants emphasize, the Board did not find as a fact whether the structure, at the time it became non-conforming, consisted of three apartments, or two apartments. The issue was a significant and perhaps a controlling one.

The trial judge expressed concern at the close of the court hearing that, as to some questions, the Board had reached conclusions instead of finding facts. In his written Opinion and Order the judge set out what he said the Board had concluded, but held that the Board had resolved each of the issues it was required to determine. With respect to the issue of whether the building contained three apartments, the court said:

“There was testimony from which the Board might find, as they apparently did, that it was a three-apartment unit. As this question was the primary issue in the case, the better practice would have been for the Board to have made a positive finding of that fact; however it is inherent in the conclusion that it reached, i.e., that the erection of the fire escape ‘is not an enlargement or extension of a non-conforming use’, it did so.”

The ordinance, Art. IV, Sec. 3, Subsection 3, gives the Board of Appeals the power to authorize in specific cases,

“such variance from the terms of this ordinance as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of this ordinance would result in unnecessary hardship.”

The Subsection states that a variance shall not be granted unless a written application is submitted, demonstrating certain requirements, after which the Board gives notice of and holds a public hearing, and makes certain findings. The findings which the ordinance requires the Board to make are:

d) That the application demonstrates:

1) That special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not applicable to other lands, structures, or buildings in the same district;
21 That literal interpretation of the provisions of this ordinance would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this ordinance;
31 That the special conditions and circumstances do not result from the actions of the applicant;
4) That granting the variance requested will not confer on the applicant any special privilege that is denied by this ordinance to other lands, structures, or buildings in the same zone.
e) That the reasons set forth in the application justify the granting of the variance, and that the variance is the minimum variance that will make possible the reasonable use of land, building, or structure;
f) That the granting of the variance will be in harmony with the general purpose and intent of this ordinance, and will not be injurious to the neighborhood, or otherwise detrimental to the public welfare.

The Board of Appeals said in its Opinion that:

“In sifting and considering the pro and con testimony in this case, the Board finds as a matter of fact that:
(1) The special condition or circumstance, requiring this appeal is peculiar to this property and improvement for reasons heretofore mentioned and reflected, in detail, in the record.
(2) Literal enforcement of the Ordinance would deprive applicant use of the third floor of his dwelling, a right commonly enjoyed by other properties in the locale.
(3) The existence of circumstances requiring a variance (non-conformity) is not a result of actions on applicant’s part.
(4) Granting a variance will not confer any special privilege, denied to others, on applicant.
Lastly, the Board adopts the essential reasoning of Opinion #139 to the effect that fire escape erection in the instant case is not an enlargement or extension of a non-conforming use, but is merely an accommodation to the structure with the nature and character of use being unchanged; this would not be a change in the existing building to such degree as to be an effective conversion materially changing the use or prolonging the life of the non-conformity.
“Additionally, the Board considers the requirement of the Fire Marshal as a factor of heavy importance in granting the variance; if the fire escape is not permitted, applicant is deprived of use of the third floor.
“In view of the facts and records as presented in this case, pursuant to Section 3-3 of the Ordinance, this Board feels a relaxation is justified in order to permit this minimum variance which will permit reasonable use of the premises.”

The law applicable to non-conforming uses has been stated in many cases. In Jahnigen v. Staley, 245 Md. 130, 225 A. 2d 277 (1967), the Court of Appeals said, at 137:

“The basic premise underlying zoning regulations is to restrict rather than expand non-conforming uses. Phillips v. Zoning Commissioner, 225 Md. 102, 169 A. 2d 410; Grant v. City of Baltimore, 212 Md. 301, 129 A. 2d 363; Colati v. Jirout, 186 Md. 652, 47 A. 2d 613. However, an intensification of a non-conforming use is permissible so long as the nature and character of the use is unchanged and substantially the same facilities are used.”

The Court said further, at 138:

“The right of a landowner to continue the same kind of use to which the property was devoted on the critical date does not confer on him the right to subsequently change or add to that use a new and different one amounting to a drastic enlargement or extension of the prior existing use.”

A similar statement of the law had been made in Phillips v. Zoning Commissioner, 225 Md. 102, 169 A. 2d 410 (1961), where the Court said, at 109-110:

“ * * * the spirit underlying zoning regulations is to restrict rather than increase nonconforming uses. 1 Yokley, Zoning Law and Practice, _§ 153; 2 Rathkopf, Law of Zoning and Planning, § 59-1; Colati v. Jirout, 186 Md. 652, 47 A. 2d 613 (1946). The question, however, as to what is an extension or enlargement of a nonconforming use is ordinarily one of fact, and in determining it the question in each-case must stand on its own facts. 101 C.J.S., Zoning, § 189.
“While it is true that mere intensification of a nonconforming use is permissible so long as the nature of use is not substantially changed, it is generally recognized that the right of a landowner to continue the same kind of use to which the property was devoted on the critical date does not confer on him a right to subsequently change or add to that use a new and different one amounting to a drastic enlargement or extension of the prior existing use.”

Distinguished from a prohibited extension of a nonconforming use is what the courts look upon as a mere intensification of the existing lawful use. Examples found in the Maryland cases are Nyburg v. Solmson, 205 Md. 150, 106 A. 2d 483 (1954) (storage or parking of a greater number of automobiles on the same parking lot) and Feldstein v. Zoning Board, 246 Md. 204, 227 A. 2d 731 (1967) (increase in quantity and height of scrap metal stored on a junkyard).

The key to the present case, as we see it, is whether there was a lawful non-conforming use of the Rooney house as a building containing three dwelling units. A dwelling unit is defined in the ordinance, Art. II, as:

“A group of rooms located within a building and forming a single habitable unit with facilities which are used or intended to be used for living, sleeping, cooking, and eating purposes.”

Judge Roney noted that the Board made no positive finding, but felt that inherent in the Board’s conclusion was a finding that it was a lawful three-apartment building. He said that there was evidence front which the Board might so find. No such evidence is in the record. Dr, Pasqualini never saw the inside of the building before 1978. The testimony of Mr. Wilson stands uncontradicted and uncontroverted that from 1964 or 1965 until about 1971, there were two, and not three, dwelling units in the building.

It is true that there was no direct evidence of the conditions in 1968, but even if a third unit existed at that time, it was later abandoned. Under the ordinance, Art. I, Sec. 4, Subsection 5 (e), a non-conforming use discontinued or abandoned for six consecutive months is lost.

If the Board’s conclusion implied a finding that the house was lawfully used for three dwelling units, such a finding was not supported by evidence, and was arbitrary and illegal.

A requirement of the State Fire Prevention Code precipitated the request for, and the justification for the variance. But the applicability of that Code was premised upon the use of the building to house three dwelling units. It approaches the ridiculous to say that the unlawful extension of the non-conforming use from two units to three units entitles the owner to the blessing of legitimacy for the violation of yet another law.

That the unlawful extension was not the act of Dr. Pasqualini, the present owner, but of his predecessor, is immaterial. The rule is well stated in 2 Rathkopf, Law of Zoning and Planning, § 48-1 (1972), as follows:

“Where property, due to unique circumstances applicable to it, cannot reasonably be adopted to use in conformity with the restrictions of the zoning ordinance, hardship arises which is capable of being relieved through the grant of a variance. The restrictions of the ordinance, taken in conjunction with the unique circumstances affecting the property must be the proximate cause of the hardship. If the peculiar circumstances which render the property incapable of being used in accordance with the restrictions contained in the ordinance have been themselves caused or created by the property owner or his predecessor in title, the essential basis of a variance, i.e., that the hardship be caused solely through the manner of operation of the ordinance upon the particular property, is lacking. In such case, a variance will not be granted; the hardship, arising as a result of the act of the owner or his predecessor will be regarded as having been self-created, barring relief.”

The finding of the Board of Appeals that the circumstances requiring the variance are not the result of actions on the applicant’s part must be read to mean the applicant, or his predecessor. When so read, the finding is directly contrary to the evidence, and must be rejected.

Another finding, that the applicant would be deprived of the use of the third floor of his dwelling, is equally without evidentiary support. All three floors may lawfully be used, as they were for several years by Mrs. Rooney, to accommodate two dwelling units, without any outside structural changes, and without requiring a variance.

A somewhat analogous set of circumstances existed in Salisbury Bd. v. Bounds, 240 Md. 547, 214 A. 2d 810 (1965). An owner, without the benefit of a building permit, but apparently through an inadvertent error in measurement of his lot size, had converted a building for use as a four family dwelling. The applicable ordinance permitted three units, but not four. The owner sought a variance, which was denied by the Salisbury Board of Zoning Appeals. The circuit court reversed, and ordered that a building permit and variance be granted. The Court of Appeals, reversed the circuit court. After quoting from Rathkopf, swpra, the Court said, at 555:

“The instant case fits squarely within the above general rule. The construction of the fourth apartment and the resultant hardship could have been avoided if the appellees had used proper diligence in ascertaining what the density requirements wére for a four apartment dwelling within the district in which this property is located, and then made accurate measurements to see if this particular property met the square footage requirements. The hardship here relied on was entirely self-created and the Board properly refused to allow it to be used as a fulcrum to lift, by way of a variance, the valid limitations imposed by the Salisbury Zoning Code.
“Aside from the fact that the hardship shown to the Board was self-inflicted, it was also shown to be of a purely financial nature, i.e., that the applicants’ return on their investment would be somewhat lower if the fourth apartment should remain unoccupied. Here the appellees made no attempt to show that further structural changes could not be reasonably made so that all the space in the house could be utilized in three apartment units, or that if the fourth apartment remained vacant the return on their investment would be other than reasonable. Under these circumstances we think the Board would have been correct in denying them the requested variance even if the hardship upon which it was based had not been self-inflicted.”

The action of the Board of Zoning Appeals of the Town of Elkton in granting the variance to Dr. Pasqualini was illegal. The circuit court should have reversed the order of the Board. We shall so do.

Orders of the circuit court and of the Board of Zoning Appeals .reversed.

Appellee to pay costs.


source: Caselaw Access Project

author: Mason, J.,

license: Public Domain

text:
    BRUCE ALTON COOK v. STATE OF MARYLAND
    [No. 385,
    September Term, 1976.]

      Decided April 6, 1977.

    The cause was submitted on briefs to Thompson, Davidson and Mason, JJ.
    Submitted by Michael E. Marr, Assigned Public Defender, for appellant.
    Submitted by Francis B, Burch, Attorney General, Arrie W. Davis, Assistant Attorney General, Edwin H. W. Harlan,

      Jr., State’s Attorney for Harford County, and John A. Goodman, Assistant State’s Attorney for Harford County, for appellee.
   Mason, J.,

delivered the opinion of the Court.

The appellant, Bruce Alton Cook, was convicted at a bench trial in the Circuit Court for Harford County of robbery with a dangerous and deadly weapon. He was sentenced to a term of fourteen years.

On appeal the appellant contends:

I. That the evidence seized from his apartment should have been suppressed because the warrantless search was illegal.

II. That the evidence seized from his apartment should have been suppressed under the doctrine of res judicata or collateral estoppel.

III. That the appellant was denied due process of law because the trial judge refused to disqualify himself.

I.

According to the evidence adduced, an unnamed informant told a Baltimore City Police officer that Cook and Roger Wolfe were involved in robberies that occurred in Baltimore County on the 8th and 10th of November, 1973. Having previously used the informant in clearing up several other cases, the officer transmitted the information to the Baltimore County Police. They, in turn, obtained search and seizure warrants for Cook’s residence on Broening Highway and Wolfe’s residence on Bonsai Street in Baltimore City. On November 16, 1973, armed with these warrants, a squad of policemen from Baltimore County and Baltimore City searched both premises, but neither the appellant nor Wolfe was found. Wolfe’s parents, however, told Sergeant Zero of the Baltimore County Police that Wolfe was staying at 126 South Chester Street. The police then proceeded to that address, placed Wolfe under arrest and searched the premises. During subsequent interrogation at the police station, Wolfe admitted his involvement in the robberies and implicated Cook. In addition, Wolfe told the police that Cook also had an apartment at 126 South Chester Street, and that Diane Jorgenson and Roland Bauer, who were involved in the robberies, could probably be found there. Acting on this information and the outstanding arrest warrant for Diane Jorgenson, an escapee from Montrose School for Girls, the police returned to 126 South Chester Street.

The trial judge found the following facts:

Upon their arrival, Sergeant Zero and a few other officers went to Cook’s apartment and knocked on the door. Benjamin Moose opened the door. While the door was open, Sergeant Zero saw a young woman standing in the kitchen who fit the general description of Diane Jorgenson, given in the Montrose report. Moose then tried to close the door but was prevented from doing so when an officer put his foot in the doorway. Sergeant Zero and other officers then entered the apartment and Sergeant Zero went directly to the young woman while other officers began to check the other rooms for other persons. In the course of checking the rooms, various items of evidence relevant to this proceeding were found, including two guns, a quantity of jewelry and Defendant Cook’s wallet. According to the testimony, all items were out in open areas and no probing was necessary to find them other than the checking- of rooms for other persons. All items seen were pointed out to the Baltimore City officers present and were then seized by them. Defendant Bauer was present at the time and was taken into custody. Defendant Cook was also then present but escaped before his identity was known to the officers.

The trial judge ruled the entry into Cook’s apartment and the seizure of the stolen property were valid because they were based on an arrest warrant for Diane Jorgenson, probable cause, exigent circumstances, and the plain view doctrine. We agree.

In the case of Nilson v. State, 272 Md. 179, 321 A. 2d 301 (1974), the Court of Appeals similarly held that a warrantless entry into an apartment and seizure of stolen property were legal because of probable cause, exigent circumstances and the plain view doctrine. In that case a building and loan association was held up at gunpoint by three men wearing ski masks around 9:40 a.m. The police were given a description of the robbers and of the getaway car. Shortly before 11:00 a.m. the police located the abandoned vehicle. A search of the car uncovered a dry cleaning ticket in the name of “McCoy” with an address listed at “2458 Callow”. This information was immediately broadcast and a large contigent of police and FBI agents converged on the three-story, multiple dwelling apartment house at that address. Police investigation of the apartment building revealed that three men lived in apartment 12 on the third floor; that they left the apartment at 8:00 a.m. and returned between 11:00 and 11:30 a.m. At 12:45 p.m. the police proceeded to apartment 12 to arrest McCoy or any other person who fit the description of the robbers. The police knocked on the door but were refused admittance without a search warrant. Upon observing that the man who opened the door resembled one of the suspects and on hearing noises from the back room, the police pushed open the door and arrested the occupants of the apartment, all of whom fitted the general descriptions of the suspects. The police also seized a carbine rifle seen in an open cupboard approximately four feet from the men and a shotgun sticking out of a plaid clothing bag in the rear bedroom that was visible from the middle bedroom.

Like the appellant here, Nilson argued that the warrantless entry and search of the apartment were illegal due to the lack of probable cause and exigent circumstances.

As to probable cause, the Court of Appeals said:

. . . that at the time the police entered apartment 12, they had probable cause to believe that the robbery had been committed by persons then located on the premises. Indeed, as the evidence so dramatically reveals, within minutes after the crime was committed, the police were closely monitoring the movements of the suspected felons and the information which they received led unmistakably to the apartment house at Callow Avenue, and particularly to apartment 12. The police had general descriptions of the three robbers. They knew that at least three men were then in apartment 12 — the same three that earlier that morning had driven off in the white Peugeot, a vehicle previously identified as having been used by the robbers. That one of the robbers was named McCoy was deemed likely because a ticket bearing his name and his Callow Avenue address was found in the stolen Pontiac which was used as the getaway car. Sergeant Shriner’s observation upon requesting entry to apartment 12 that Campbell fit the general description of one of the robbers added materially to the probable cause then possessed by the police. Id. at 184-85.

As to exigent circumstances to justify a warrantless entry into a house to arrest a suspected felon, the Nilson Court cited with approval Warden v. Hayden, 387 U. S. 294, 87 S. Ct. 1642, 18 L.Ed.2d 782 (1967); Dorman v. United States, 435 F. 2d 385 (D.C. Cir. 1970); United States v. Harris, 435 F. 2d 74, (D.C. Cir. 1970) and enumerated the considerations material to assessing the existence of exigent circumstances as set forth in Dorman, supra.

First, that a grave offense is involved, particularly one that is a crime of violence. See, e.g. Warden v. Hayden, supra; McDonald v. United States, 335 U.S. 451, 459, 69 S.Ct. 191, 93 L.Ed. 153 (1948) (concurring opinion Justice Jackson). Contrariwise the restrictive requirement for a warrant is more likely to be retained, and the need for proceeding without a warrant found lacking, when the offense is what has been sometimes referred to as one of the “complacent” crimes, like gambling.
Second, and obviously inter-related, that the suspect is reasonably believed to be armed. Delay in arrest of an armed felon may well increase danger in the community meanwhile, or to the officers at time of arrest. This consideration bears materially on the justification for a warrantless entry.
Third, that there exists not merely the minimum of probable cause, that is requisite even when a warrant has been issued, but beyond that a clear showing of probable cause, including “reasonably trustworthy information,” to believe that the suspect committed the crime involved.
Fourth, strong reason to believe that the suspect is in the premises being entered.
Fifth, a likelihood that the suspect will escape if not swiftly apprehended.
Sixth, the circumstance that the entry, though not consented, is made peaceably. Forcible entry may in some instances be justified. But the fact that entry was not forcible aids in showing reasonableness of police attitude and conduct. The police, by identifying their mission, give the person an opportunity to surrender himself without a struggle and thus to avoid the invasion of privacy involved in entry into the home. 435 F.2d at 392-93. Id. at 188-89.

The Nilson Court further stated:

In the present case, contrary to appellants' contention, the primary mission of the officers in entering the apartment was to arrest the robbers; the arrests were not a mere pretext to conduct a warrantless search of the premises for the fruits and instrumentalities of the crime. Assuming that exigent circumstances are constitutionally prerequisite to a forcible entry into a dwelling by police to make a warrantless arrest upon probable cause, we think that the evidence in this case, as heretofore related, plainly demonstrates the existence of such circumstances consistent with the principles outlined in the cited cases. That the police waited for well over an hour before attempting to enter the apartment does not compel the conclusion that the circumstances underlying their warrantless entry were not exigent. Id. at 190-91.

In this case, the police had an outstanding warrant for the arrest of Diane Jorgenson and reasonable grounds to believe that she was in Cook’s apartment. These facts, without more, would justify the entry into the apartment to arrest Jorgenson. Once lawfully in the apartment, the police could validly seize the two guns which they, without probing, inadvertently observed in plain view. See Graham v. State, 6 Md. App. 458, 251 A. 2d 616 (1968); Hebron v. State, 13 Md. App. 134, 281 A. 2d 547 (1971). Thus the validity of the entry and the admissibility of the evidence are unassailable.

Moreover, in addition to the arrest warrant for Jorgenson, virtually all of the factors deemed important in Dorman to establish exigent circumstances are present in this case. The offenses in question were crimes of violence, i.e., robberies. The police knew that weapons were used and stolen in the perpetration of these crimes and that the suspected felons were armed. In addition there was a clear showing of probable cause and a strong reason to believe that Cook, Bauer and Jorgenson had committed the crimes and were in Cook’s apartment. There was also the likelihood that Jorgenson and Bauer, who did not live at this apartment, would be gone if not swiftly apprehended. In fact, Jorgenson left before the police arrived, and Cook escaped after they arrived. Moreover, the police did not learn of the whereabouts of the suspected felons until approximately 8 P.M. or 9 P.M., whereupon they immediately proceeded to the apartment.

In Dorman v. United States, 435 F. 2d 385, 388-390 (D.C. Cir. 1970), the court stated:

. .. the general requirement of a warrant as a condition for entry into a house is subject to an exception where the entry is for the purpose of making an arrest of a suspected felon. . . ., the requirement of a warrant may be excused, where circumstances do not tolerate delay, like that incident to obtaining a warrant, of an officer making an arrest.

Under the particular facts in this case, we conclude that the entry into the apartment was not only valid under the outstanding arrest warrant for Jorgenson, but the entry for the purpose of apprehending Cook and Bauer was also reasonable and lawful because of exigent circumstances.

II.

As to the appellant’s second contention, the record discloses that Cook and other co-defendants were brought to trial in Baltimore County in June of 1974 for various robberies committed in that county. Cook moved to suppress the evidence seized from his apartment on November 16, 1973 on the grounds that the warrantless search of the premises was illegal. The trial judge, after hearing the evidence, granted the motion.

Gentlemen, without belaboring this matter any further, I am obligated as I see the law, to sustain the objection and to exclude from the evidence any material which was seized as a result of this entry into the apartment on Chester Street, 126 S. Chester Street.

Following this, the court granted Cook’s motion for a mistrial.

In September of 1974, Cook and another co-defendant were brought to trial in Harford County for a robbery committed in that county. Introduced into evidence, over Cook’s objection, were two pistols seized in the November 16, 1973 search of his apartment.

The appellant contends that this evidence should have been suppressed on the doctrine of res judicata or collateral estoppel because the trial judge in Baltimore County had suppressed all the evidence seized on the grounds that the entry and search of his apartment were illegal.

In MPC, Inc. v. Kenny, 279 Md. 29, 367 A. 2d 486 (1977), the Court of Appeals said:

The delineation between res judicata and collateral estoppel was expressed in Sterling v. Local 438, 207 Md. 132, 140-41, 113 A. 2d 389, 393, cert. denied, 350 U. S. 875, 76 S. Ct. 119, 100 L. Ed. 773 (1955):
“.. . If the second suit is between the same parties and is upon the same cause of action, & judgment in the earlier case on the merits is an absolute bar, not only as to all matters which were litigated in the earlier case, but as to all matters which could have been litigated [res judicata]. If, in a second suit between the same parties, even though the cause of action is different, any determination of fact, which was actually litigated in the first case, is conclusive in the second case [collateral estoppel].” (citation omitted), (emphasis supplied).

In order for the doctrine of res judicata to apply in the present case, we must answer in the affirmative the following questions: (1) Were the parties the same in both cases? (2) Were the causes of action the same in both cases? (3) Was there a final judgment on the merits in the first case?

As to the first question, it is evident that the parties in both cases were the same, i.e., State of Maryland v. Bruce Alton Cook. With respect to the second question, the test for determining whether the causes of action are the same was stated by Judge Levine in MPC, Inc. v. Kenny, supra.

Courts elsewhere have applied a variety of tests in determining whether two causes of action are the same for purposes of invoking res judicata. The measure which seems to find favor with most courts and the one which we have applied, is whether the same evidentiary facts would sustain both actions, (citations omitted). Id. at 489.

In applying the “same evidence test” as enunciated above, it is clear that the two cases involved completely different causes of action. In the first case, Cook was charged with committing certain robberies and related crimes in Baltimore County; whereas, in the second case, he was charged with committing a robbery in Harford County. These crimes were chronologically discrete, involving different jurisdictions, different charging documents, and different evidentiary facts. Regarding the third question, there was no final judgment on the merits since the first case ended in a mistrial. It follows, from the views we have expressed, the doctrine of res judicata does not apply.

Turning to the doctrine of collateral estoppel, the Supreme Court stated in Ashe v. Swenson, 397 U. S. 436, 443, 90 S. Ct. 1189, 25 L.Ed.2d 469 (1970):

“Collateral estoppel” is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future law suit.

As we view it, the pivotal question for purposes of collateral estoppel is whether in the first case an issue of ultimate fact was determined by a valid and final judgment. The case of Stevens v. State, 34 Md. App. 164, 366 A. 2d 414 (1976) is instructive on this point. In that case the defendant was charged in the District Court of Maryland for Prince George’s County with receiving stolen goods taken in a burglary from an apartment in Montgomery County. Apparently, as a result of plea bargaining, the defendant was placed on probation without verdict. Subsequently, the defendant was charged with common law burglary and related counts in Montgomery County. He filed a motion to dismiss this indictment on the grounds of double jeopardy, res judicata and collateral estoppel, which was denied.

On appeal this Court reasoned that jeopardy had attached in the proceeding in the district court for receiving stolen goods and that the right against double jeopardy barred the Montgomery County prosecution of the receiving stolen goods and larceny counts in the indictment. The case was remanded for trial on the counts which were not barred from prosecution. The defendant was brought to trial on the remaining counts and was convicted of breaking and entering.

On his second appeal to this Court, he contended that the conviction for breaking and entering was barred by the doctrine of collateral estoppel. This Court ruled that probation without verdict was not a valid and final factual judgment and that the doctrine of collateral estoppel would not bar the conviction. We observed that where probation without verdict is revoked “the case reverts to its pre-probationary status, which in terms of ultimate factual determinations is zero.” Id. at 170.

Likewise, if probation without verdict does not establish that an issue of ultimate fact has been determined by a valid and final judgment neither does a mistrial such as we have here.

In the present case, it is manifest that the declaration of a mistrial extinguished the trial court’s findings of fact and his ruling on the admissibility of the evidence at the suppression hearing. Therefore, an issue of ultimate fact, upon which the doctrine of collateral estoppel is predicated, has not been determined by a valid and final judgment. Moreover, it has long been settled that under such circumstances, the appellant is not exempt from being retried any more than when a jury is unable to agree on a verdict, a motion for a new trial is granted, or a conviction is reversed on appeal. See Neal v. State, 272 Md. 323, 322 A. 2d 887 (1974).

III.

The final argument of the appellant that he was denied due process of law because the trial judge refused to disqualify himself is without merit and can be disposed of briefly.

The record shows that the appellant joined in a motion with co-defendant Bauer for disqualification of the trial judge because the victim’s wife was the manager of the trial judge’s election campaign. The trial judge indicated that the victim’s wife managed his campaign for approximately two weeks, but ceased any real activity thereafter because of illness. He further indicated that he did not know the victim’s wife prior to the campaign and had not seen her since the election.

Under the circumstances here there was no constitutional, statutory, or practical need for the trial judge to disqualify himself. See Ex parte Bowles, 164 Md. 318, 165 A. 169 (1933). Moreover, there was no showing of bias, prejudice or lack of impartiality on the part of the judge.

Judgment affirmed.

Costs to be paid by appellant.

      . The record before us fails to disclose the reason for the mistrial.


author: Gilbert, C. J.,

text:
    VINCENT S. LUKAS v. BAR ASSOCIATION OF MONTGOMERY COUNTY, MARYLAND, INC.
    [No. 820,
    September Term, 1976.]

      Decided April 6, 1977.

    The cause was argued before Gilbert, C. J., and Moylan and Liss, JJ.

      Peter Parker and Gordon W. Priest, Jr., for appellant.

      James A. Sullivan, with whom was Thomas F. Hogan on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

Vincent S. Lukas (Lukas), a self-styled, self-employed “Personnel, Business Consultant,” was enjoined by the Circuit Court for Montgomery County, on complaint by the Bar Association of Montgomery County, Maryland, Inc., from the unauthorized practice of law.

Lukas complains in this Court that Md. Ann. Code art. 10, §§ 26A (action for an injunction), 32 (prohibiting practice for compensation unless admitted to the bar), and 33 (falsely representing self as an attorney) are “so ill-defined by Maryland legislative and judicial authority that prohibition thereof is violative of due process.”

As interesting as that question may be, we are precluded from deciding it because it was not raised in the trial court and, hence, is not properly before us. Md. Rule 1085, Kerpelman v. Bricker, 23 Md. App. 628, 329 A. 2d 423 (1974); Washington Homes, Inc. v. Baggett, 23 Md. App. 167, 326 A. 2d 206 (1974). Even questions of constitutional law must be first raised and decided in the trial court. Hall v. State, 22 Md. App. 240, 323 A. 2d 435 (1974); Palmer v. State, 19 Md. App. 678, 313 A. 2d 698 (1974); Smith v. State, 16 Md. App. 317, 295 A. 2d 802 (1972); Woodell v. State, 2 Md. App. 433, 234 A. 2d 890 (1967). We do not consider the issue.

Stripped of the constitutional challenge, Lukas argues that the evidence was “. . . insufficient to support a conclusion that . . . [he] was engaged in the unauthorized practice of law under any reasonable definition thereof.”

We shall not endeavor to formulate a precise definition of the practice of law because such a definition may, in the words of Justice Stern in Shortz v. Farrell, 327 Pa. 81, 84, 193 A. 20, 21 (1937), “. . . be more likely to invite criticism than to achieve clarity.” We do know, as Justice Stern wrote in Shortz, that:

“[W]hen a lawyer has, through patient years of study, acquired an understanding of the law and obtained a license to engage in its practice, he applies his knowledge in three principal domains of professional activity:
1. He instructs and advises clients in regard to the law, so that they may properly pursue their affairs and be informed as to their rights and obligations.
2. He prepares for clients documents requiring familiarity with legal principles beyond the ken of the ordinary layman — for example, wills, and such contracts as are not of a routine nature.
3. He appears for clients before public tribunals to whom is committed the function of determining rights of life, liberty, and property according to the law of the land, in order that he may assist the deciding official in the proper interpretation and enforcement of the law.
Since, in order to determine such rights, it is necessary first to establish the pertinent facts, which are frequently uncertain, controverted, and best ascertainable, as experience has demonstrated, by the application of rules of evidence tested by centuries of usage, a lawyer, being technically fitted for the purpose, examines and cross-examines witnesses, and presents arguments to jurymen to guide them to a proper determination of the facts. As ancillary to participation in trials and in legal argumentation, he prepares pleadings and other documents incidental to the proceedings.
In considering the scope of the practice of law mere nomenclature is unimportant, as, for example, whether or not the tribunal is called a ‘court,’ or the controversy ‘litigation.’ Where the application of legal knowledge and technique is required, the activity constitutes such practice even if conducted before a so-called administrative board or commission. It is the character of the act, and not the place where it is performed, which is the decisive factor.” Id. at 84-85, 193 A. at 21 (footnote omitted).

The evidence upon which the chancellor based his findings in the instant case shows:

I. Lukas represented Montgomery County employees in their dealings with the Personnel Board. His activities included interpretation of personnel rules and regulations (Montgomery County Code ch. 33), preparing memoranda of law for the benefit of the Personnel Board, reviewing his clients' personnel records after having obtained the requisite power of attorney, and conducting informal discussions which members of the Personnel Board in hopes of resolving his clients’ problems. It is clear that Lukas never appeared at a formal hearing before the Personnel Board.

Lukas received compensation for his services. In one case, he was paid $2,900; in another $1,065.

II. On November 15, 1974, Lukas wrote to Daniel T. Doherty, Esq., the then Chairman of the Workmen’s Compensation Commission, in which he advised Chairman Doherty that he, Lukas, wanted a hearing for one Donald C. Matlock and stated, “I will argue his case concerning his Class Specification Building Service Worker I to show that there was negligence with his superiors which caused him having a heart attack. . . .” In the same letter, he stated, “In my request for a Workmen’s Compensation hearing for the earliest date available. I will prove negligence, malice, and discrimination against the employee who got injured which was caused by his employer.” Fortunately for all concerned, Chairman Doherty advised Lukas that under the law of Maryland Lukas could not represent Matlock before the Commission.

III. Lukas drew an agreement amongst a Mr. Wood, a Mr. Thatcher, and a Mr. Bell. The many covenants of the agreement are not germane to this opinion except to note that the agreement commits Dream World, Inc., to a number of things, but Dream World is not a party thereto.

Lukas also drafted a “working agreement” between Thatcher and Bell. For this “service,” Lukas submitted the following bill on lined 3-3/4 inch by 6-3/4 inch loose leaf paper:

“i$ 50.00 Lease Meeting 26th July, Weaver Bros.
$100.00 Working agreement
$ 25.00 Typist
$ 43.50 Material & car expense’s
$218.50
23.40 Telephone calls
$241.90 Dream World Inc.”

Although Thatcher testified that Lukas represented both Thatcher and Bell, Thatcher paid the bill.

Lukas acknowledged that he had drafted ten to twelve other agreements and “made a form” of a will that Mr. Matlock completed at a fee of $35. The latter occurred when Mr. Matlock was “. . . going to have his heart taken out. . . . Not open heart surgery. He had his heart taken out.”

Significantly, Lukas said that he drew “[agreements, not contracts. An agreement and a contract is two different things.” Shortly after that comment, he stated, “I don’t know what law book you read, but a contract is something that somebody is forced to do.” He illustrated by saying, “A contract is like if I get into a bank and borrow, and I am forced to honor that contract I signed.” Lukas defined an agreement as being “. . . between two parties, that they agree to do something between each other and they are going to work together.”

The chancellor had no difficulty in determining that Lukas was, in fact, engaged in the unauthorized practice of law irrespective of how Lukas chose to characterize his activity. The court then enjoined Lukas from “soliciting, accepting, advising, or attempting to advise any person, firm or corporation, or interpret or attempt to interpret the provisions of any rule, regulation, statute or constitution. Further, he shall not prepare or attempt to prepare any legal document, such as a contract, agreement, pleading, brief, legal opinion or a like legal document on behalf of any other person, firm or corporation.”

The Court of Appeals, in Public Service Commission v. Hahn Transportation, Inc., 253 Md. 571, 253 A. 2d 845 (1969), a case characterized by Lukas as “.. . a decision that must be a monument to loose statutory construction,” said that what constitutes the practice of law is for the courts to determine. See also People ex rel. Chicago Bar Association v. Goodman, 366 Ill. 346, 8 N.E.2d 941 (1937); West Virginia State Bar v. Earley, 144 W. Va. 504, 109 S.E.2d 420 (1959); ABA Comm. on Professional Ethics, Opinions, No. 198 (1939).

Although the General Assembly can and has provided for criminal sanctions for the unauthorized practice of law, Md. Ann. Code art. 10, §§ 32-33, such legislation is merely in aid of and not a substitution for the right of the courts to regulate the practice of law. The power to regulate and define what constitutes the practice of law is vested solely in the judicial branch of government and not the executive nor the legislative. People ex rel. Chicago Bar Association v. Goodman, supra.

We think Lukas’s actions before the Personnel Board and the Workmen’s Compensation Commission fall within the ambit of the rule enunciated in Public Service Commission v. Hahn Transportation, Inc., supra at 580-81, 253 A. 2d at 850, where the Court declared:

“We have no doubt that when an individual on behalf of his employer or another prepares and files pleadings in a contested case before the Commission and appears at and engages in its trial by the examination or cross-examination of witnesses, in light of the law he had determined to be applicable or controlling and by arguing the case in writing or orally he engages in the practice of law.”

The case law makes clear, however, that a licensed attorney is not necessary for the mere filling out of forms supplied by a Workmen’s Compensation Commission. Goodman v. Beall, 130 Ohio St. 427, 200 N. E. 470 (1936); Shortz v. Farrell, supra. While appellant’s activities in re the Workmen’s Compensation Commission amounted to a nullity because of former Chairman Doherty’s response, Lukas’s dealings with the Personnel Board, while not amounting to the filing of pleadings in the trial of a contested case, were something more than the mere mechanical filling out of forms. In this regard, the general rule is:

“Where trial work is not involved but the preparation of legal documents, their interpretation, the giving of legal advice, or the application of legal principles to problems of any complexity, is involved, these activities are still the practice of law. On the other hand, where pure engineering, accounting or clerical work is involved, the practice of law is not present, and in these latter areas the layman can adequately perform.” Vom Baur, Administrative Agencies and Unauthorized Practice of Law, 48 A.B.A.J. 715, 716 (1962).

People ex rel. Chicago Bar Association v. Goodman, supra. See generally West Virginia State Bar v. Earley, supra.

It is well settled that Lukas’s preparation of the two “agreements” constituted the unauthorized practice of law. We think the rule relative thereto is well stated in Annot., 111 A.L.R. 19, 24-25 (1937) that:

“[T]he practice of drawing for others . . . written instruments which require more than the most elementary knowledge of the law, or more than that which the ordinary or average laymen may be deemed to possess, may well be deemed to constitute the practice of law, since special legal knowledge and skill are required.

See also In re Matthews, 58 Idaho 772, 79 P. 2d 535 (1938); People v. Title Guaranty & Trust Co., 180 App. Div. 648, 168 N.Y.S. 278 (1917); State ex rel Seawell v. Carolina Motor Club, Inc., 209 N. C. 624, 184 S. E. 540 (1936); Childs v. Smeltzer, 315 Pa. 9, 171 A. 883 (1934); Blair v. Motor Carriers Service Bureau, 40 Pa. D.& C. 413 (1939).

The chancellor’s finding of fact that Lukas was engaged in the unauthorized practice of law is amply supported by the evidence. His application of the law with respect to that finding is generally correct, and but for the overly broad sweep of the injunction we would have no hesitency in affirming. The injunction, however, is too broad in that it enjoins Lukas from doing those things which he is legally entitled to do, such as the filling out of forms supplied by the Workmen’s Compensation Commission or other purely mechanical type functions. Moreover, the injunction, read literally, forbids Lukas to “. . . interpret or attempt to interpret the provisions of any rule, regulation, statute or constitution . . .” for himself. Not only is such a prohibition unconstitutional, but it is utterly impossible to enforce.

In the light of the broad phraseology of the injunction, we shall remand the matter to the circuit court without affirming. The injunction, however, is too broad in that it injunction may be issued.

Case remanded without affirmance or reversal for further proceedings consistent herewith.

Costs to be paid one-half by appellant and one-half by appellee.

      . Md. Ann. Code art. 10, § 26A (b) authorizes a bar association or bar counsel to initiate a complaint for an injunction against a person who engages in the unauthorized practice of law.

      . Lord Evershed, in Practical and Academic Characteristics of English Law 40 (1906), quotes Lord Greene as saying that the role of a lawyer is “[t]o protect his clients from being persuaded by persons whom they do not know to enter into contracts which they do not understand to purchase goods which they do not want with money which they have not got.

      . There is an indication in the record that subsequent litigation arose between Bell and Thatcher over the “agreement” and its meaning.


author: Thompson, J.,

text:
    JOSEPH A. W. IGLEHART v. H. COURTENAY JENIFER, JR. et al.
    [No. 591,
    September Term, 1976.]

      Decided April 7, 1977.

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

      Francis N. Iglehart for appellant.

      E. Harrison Stone, with whom were Royston, Mueller & McLean, James Dawson, Cable, McDaniel, Bowie & Bond and Charles A. Velte on the brief, for appellees.
   Thompson, J.,

delivered the opinion of the Court.

This is an appeal from a decree passed by Judge Walter R. Haile sitting in the Circuit Court for Baltimore County, sustaining the appellee’s demurrer and dismissing the appellant’s bill of complaint. The sole question presented is did the appellant’s right of first refusal to purchase certain real estate terminate upon the death of the optionor.

In his bill of complaint Joseph A. W. Iglehart, the appellant, alleged the following: (1) on July 30, 1968, he and the late lima M. Jenifer entered into an agreement by which she granted unto Iglehart the right of first refusal or option to purchase her property upon receipt of an acceptable offer to purchase the same from any other person; (2) the said lima M. Jenifer died on October 28, 1975, and that the appellees, H. Courtenay Jenifer, Jr. and Clinton T. Pitts were issued letters as personal representatives of her estate; (3) the personal representatives of her estate listed the Jenifer property with the appellee Piper and Co., Inc., as a result of which Iglehart made an offer to purchase the property; and (4) the personal representatives accepted the offer of “The Lamb of God,” a Maryland corporation, for the price of $260,000.00 without affording appellant an opportunity to match said price under the option agreement and that appellant was ready to match the offer of the price established by the contract with “The Lamb of God.” After other allegations, not here relevant, the bill prayed the court determine the validity and effect of the option. The option agreement was attached to the bill of complaint and in relevant part provided as follows:

“ILMA M. JENIFER, party of the first part, hereby gives and grants unto JOSEPH A. W. IGLEHART, party of the second part, his heirs and assigns, the irrevocable right, privilege and option to purchase the premises described hereinbelow when the said party of the first part receives a firm offer to purchase the said premises by another party, acceptable to the party of the first part, and such right, privilege and option to purchase the said premises shall be for the same price and on the same terms as the said firm offer to purchase by another party.”

We hold, as did the trial judge, that the agreement terminated upon the death of Mrs. Jenifer. In that agreement the parties were very careful to use the words, “heirs and assigns” when referring to the optionee. They were just as careful to eliminate those words when referring to the optionor. The phrase, “heirs and assigns,” as used in this agreement is a legal term with a technical meaning. Ensor v. Wehland, supra at 491. It is obvious that where the parties intended that the rights were to pass to the personal representatives, the relevant phrase was included, and where they intended the obligation to be personal and to cease upon the death of the optionor, it was omitted.

Appellant argues that the inclusion of the phrase, “heirs and assigns” when referring to the optionor might have violated the rule against perpetuities and we agree. See Commonwealth Realty Corporation v. Bowers, 261 Md. 285, 274 A. 2d 353 (1971). That does not mean, however, that had the parties so intended, an agreement could not have been drawn which neither violated the rule against perpetuities nor terminated at the death of the optionor. See, for example, Peterson v. Olson, 253 Iowa 469, 112 N.W.2d 874 (1962), where the parties executed a twenty-year option without making reference to the heirs and assigns of the optionor. The Iowa Court held that plain intent was shown by the establishment of a definite time limit within which the optionee could purchase the land and thus, the death of the optionor would not terminate the agreement.

In Ensor v. Wehland, supra, the Court of Appeals considered an agreement very similar to the one at bar. The Court held that the contract bound the optionor, not her heirs or personal representatives, and the option terminated at her death so long as she had not made the decision to sell during her lifetime. The appellant argues at some length that the agreement in Ensor v. Wehland, supra, required the optionor to make a personal decision to sell before the optionee could purchase, and no such personal decision was required in the case at bar. We are unable to see the distinction. It appears to us that the court in Ensor held the agreement required a personal decision because of the omission to make the agreement binding on the heirs and personal representatives of the optionor just as in the instant case. Under either agreement, the decision could just as well have been made by the personal representatives provided the agreement showed an intent that they should be bound thereby.

Our decision is supported by cases in other states. Mercer v. Lemmens, supra, Old Mission Peninsula School District v. French, supra.

As we have previously noted, the trial judge sustained the demurrer to the bill of complaint and directed that it be dismissed. We do not think the procedure was proper. Inasmuch as the facts are not in dispute and the intention of the parties is clear on the face of the written agreement the trial judge should have declared the law. In Logan v. Town of Somerset, 271 Md. 42, 45-46, 314 A. 2d 436 (1974), the Court said:

“We have concluded that the chancellor should have rendered declarations in regard to the matters for which declaratory relief was sought, rather than obliquely incorporating his opinion on these questions into the preliminary recitation of the decree and then dismissing the amended bill of complaint. Since we are, however, of the opinion that inasmuch as the facts are not in dispute — being stipulated — and further that Judge Moore’s conclusions given in his oral opinion on the various matters for which declaratory relief was sought are correct, we will formulate the appropriate declarations in this opinion, modify the decree of April 18, 1973, by striking out the dismissal of the bill of complaint and substituting the declarations set forth in this opinion in lieu of that dismissal, and affirm the decree as modified.”

For similar cases, see also Donnelly Advertising Corporation of Maryland v. Mayor and City Council of Baltimore, 279 Md. 660, 370 A. 2d 1127 (1977), and Urbana Civic Association v. Frederick County, 23 Md. App. 49, 325 A. 2d 755 (1974). Under these cases, it is apparent to us that the decree of the trial court should have incorporated the views expressed in his opinion with which we concur.

Decree vacated.

Case remanded for passage of a decree in accordance with this opinion.

Costs to be paid by the appellant.

      . Some authorities draw a distinction between an option and a right of refusal, calling the latter a pre-emption. “An option creates in the optionee a power to compel the owner of property to sell it at a stipulated price whether or not he is willing to part with ownership. A pre-emption does not give to the pre-emptioner the power to compel an unwflling owner to sell; it merely requires the owner, when and if he decides to sell, to offer the property first to the person entitled to the pre-emption, at the stipulated price.” 6 American Law of Property, § 26.64, p. 607. See also Mercer v. Lemmens, 230 Cal. App. 2d 167, 40 Cal. Rptr. 803 (1964); Old Mission Peninsula School District v. French, 362 Mich. 546, 107 N.W.2d 758 (1961). The Maryland eases, however speak in terms of a right of refusal as a type of option, as shall we. See Ensor v. Wehland, 248 Md. 485, 221 A. 2d 699 (1966) and Westpark, Inc. v. Seaton Land Co., 225 Md. 433, 445, 450, 171 A. 2d 736 (1961).


author: Morton, J.,

text:
    MELODI MARIE HUSTON a/k/a Wanda Lee King v. STATE OF MARYLAND
    [No. 639,
    September Term, 1976.]

      Decided April 7, 1977.

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

      Victoria A. Salner, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Leroy Handwerger, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Gilbert H. Robinette, Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Nelson Stewart, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

Melodi Marie Huston, appellant, was convicted of second degree murder by a jury sitting in the Criminal Court of Baltimore (Levin, J., presiding) and sentenced to twenty years’ imprisonment. In this appeal she first contends that the “trial court improperly cut off appellant’s right to impeach the credibility of State’s witness Michael Burtpn/vith reference to a prior conviction of Burton’s for the crime of unauthorized use.”

The major thrust of the State’s case was the evidence elicited from Michael Burton who testified that shortly after 3 a.m. on July 25, 1975, he was standing in the area of “The Block” in Baltimore City when he “observed four people across the street, surrounding * * * a human being.” He then heard “a great big blast, which was a shot * * * saw people running in different directions” and “observed [the victim] laying flat on the ground.” Immediately thereafter appellant, whom he knew by the name of Wanda, came “running towards me.” According to Burton, appellant asked him- if she “could come to stay at my place that night, because she had just shot and killed a man.” After Burton refused her request, she departed.

In response to a question by defense counsel on cross-examination, Burton denied that he had ever received any money for lodging from the State or the police prior to or during the trial. Later the prosecuting attorney was called by the defense as a witness and testified that he had given Burton, just prior to and during the trial, a total of $108 for transportation, meals and hotel accommodations.

Also, in the course of cross-examination, Burton was asked if he had ever been convicted of a crime and he replied: “Unauthorized use of a motor vehicle” sometime between “September, '73 to April ’74.” The trial judge immediately announced:

“Well, I’m going to instruct the jury to ignore that testimony in its entirety with respect to being convicted of a crime. Next question.”

After defense counsel argued unsuccessfully that Burton’s acknowledgement of his conviction “should go before the jury as to credibility,” the trial judge stated:

“No, because I don’t think it has anything to do with credibility. The fact that two years ago, or three years ago he was convicted of an authorized use crime, I think has no bearing whatever on credibility. And I think it would be unfair and prejudicial to permit it to stay in to attack his credibility.
There is a very recent case that upheld a trial judge in exactly that ruling. That’s my ruling, sir.”

Later in the trial the judge advised counsel that the case he had in mind was Thomas v. State, 29 Md. App. 45, 53-54 (1975).

In this context we agree with appellant that the trial judge’s reliance upon Thomas was misplaced and that appellant was entitled to have the jury consider Burton’s conviction of the crime of unauthorized use of an automobile in making their appraisal or judgment of his credibility. In Thomas the trial court would not permit the defendant to cross-examine a State’s witness about previous convictions for assault. In affirming the action of the trial judge, we adopted the statement he gave in support of his ruling, in the course of which he said:

“ ‘Well, those are certainly not infamous crimes, and they are certainly not crimes involving moral turpitude. So the question is whether they are crimes which have some tendency to show that the witness is not to be believed under oath. I don’t think they are.’ ”

Whether to admit evidence of an accused’s or a witness’s prior conviction of a crime for the purpose of impeaching his credibility is ordinarily in the sound discretion of the trial judge and the exercise of this discretion will not be disturbed unless it is shown that the admission or rejection of such evidence unfairly prejudiced the accused’s defense. Cousins v. State, 230 Md. 2 (1962); Johnson v. State, 9 Md. App. 166 (1970); Robinson v. State, 4 Md. App. 515 (1968).

While § 10-905 of the Courts and Judicial Proceedings Article provides that “[ejvidence is admissible to prove the interest of a witness in any proceeding, or the fact of his conviction of an infamous crime,” we have held that “[sjuch evidence need not be restricted to infamous crimes or those involving moral turpitude, provided the violation of law may have some tendency to show that the witness is not to be believed under oath.” Robinson v. State, supra at 532. See also Johnson v. State, supra at 169. Otherwise stated, the admissibility of a prior conviction of an accused or witness is governed by the relevancy or irrelevancy it has to the issue of credibility. Is such evidence a legitimate factor in aiding the trier of fact, be it judge or jury, in formulating a judgment concerning the credibility of the individual? If it can be said that it may make a significant contribution to assessing one’s credibility, then it is admissible for that purpose. Otherwise, it should be excluded from the evidence. See Mulligan v. State, 18 Md. App. 588 (1973).

Measured by these standards, we think that Burton’s prior conviction of the crime of unauthorized use of a motor vehicle was entirely relevant to the issue of his credibility in light of the setting in which the case reaches this Court. Burton was the only eyewitness to the crime and without his testimony the State would have been hard put to establish the criminal agency of appellant. The very core of appellant’s defense involved and depended upon a successful attack upon Burton’s credibility. Appellant sought to impeach his credibility by calling as a witness the individual who was prosecuting her on behalf of the State. He unhesitatingly contradicted Burton’s assertion that he had not been paid money by the State.

Appellant next sought to attack Burton’s credibility through the introduction of evidence concerning his prior conviction for unauthorized use of a motor vehicle. While this crime, sometimes known as larceny of use, is similar to the crime of larceny, the essential difference is “that in the larceny there must be an intent to deprive the owner permanently of his property while in larceny of the use the intent to deprive the owner temporarily. Gopshes v. State, 1 Md. App. 396.” Sizemore v. State, 5 Md. App. 507, 516 (1968). See also Robinson v. State, 17 Md. App. 451, 457 (1973).

It has long been held that “[mjurder, robbery and larceny are all infamous crimes in Maryland. State v. Bixler, 62 Md. 354; Garitee v. Bond, 102 Md. 379.” Cousins v. State, supra at 4. While we are not prepared to say that the crime of unauthorized use of a vehicle is an infamous crime because of its substantial similarity to the crime of larceny, we are convinced that it is a crime, unlike assault and battery, which may have some tendency to show that the convicted accused “is not to be believed under oath.” Cousins v. State, supra at 4.

In the context of the record before us, we think the trial judge committed reversible error in refusing to permit the jury to consider Burton’s prior conviction of unauthorized use of a vehicle. In reaching this conclusion, we recognize, as the State points out, that there are decisions in other jurisdictions which have reached an opposite conclusion. We find some support, however, for the result we here reach from a statement by way of obiter dicta in Braun v. State, 230 Md. 82 (1962), where the Court of Appeals refused to consider appellant’s complaint about admission of his past criminal record because the issue had not been properly preserved. The Court stated, at 91:

“Even if it were before us, however, the appellant’s cause would not be aided. He took the stand and thereby put his credibility in issue. The admission of evidence of convictions for larceny, automobile larceny, burglary, embezzlement and the unauthorized use of an automobile was, we think, within the proper discretion of the trial court.” (Emphasis added.)

The State further urges that the conviction should have been excluded on the ground of remoteness since “it was two or three years old.” It has been held that “where the prior conviction was for an infamous crime, evidence of it is admissible without reference to the time of its commission, for such bearing and weight on credibility as the trier of fact may give it under the circumstances.” Cousins v. State, supra at 4, 5. On the other hand where “the conviction was for a crime not infamous, the length of time since it occurred considered with the nature of the crime has been deemed pertinent in deciding relevancy.” Cousins v. State, supra at 4. In the circumstances of this case we think that Burton’s conviction was not so remote in time as to compel a finding that it had become an irrelevant factor in considering his credibility.

In view of our conclusion, we do not reach appellant’s additional contentions.

Judgment reversed; case remanded for a new trial; costs to be paid by the Mayor and City Council of Baltimore.


author: Liss, J.,

text:
    WILLIAM THOMAS BROOKS, JR. v. STATE OF MARYLAND
    [No. 647,
    September Term, 1976.]

      Decided April 7, 1977.

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

      Bradford C. Peabody, Assigned Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Arrie W. Davis, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State's Attorney for Prince George’s County, and Daniel Cassidy, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

William Thomas Brooks, Jr., appellant, was convicted by a jury in the Circuit Court for Prince George’s County of robbery with a deadly weapon, carrying a handgun and use of a handgun in the commission of a crime of violence. Sentences were imposed on each of these convictions, and it is from these judgments that this appeal was taken. It is not necessary for the purposes of this appeal to relate the facts concerning the armed robbery which occurred on February 16,1975, at a restaurant in Langley Park, Maryland.

The appellant offers five grounds for reversal of the judgments against him; we find none to be meritorious and shall affirm. He contends first that the trial court erred in not granting his motion to dismiss the indictment against him on the ground that he was denied a speedy trial. He relies on the criteria set out in Barker v. Wingo, 407 U. S. 514, 92 S. Ct. 2182, 33 L.Ed.2d 101 (1972), as the balancing test to be applied in determining this issue. Erbe v. State, 276 Md. 541, 350 A. 2d 640 (1976), is cited as authority for the proposition that the “triggering mechanism” of Barker is activated prima facie if the lapse between arrest and trial is longer than one year. The total time involved in this case is between March 31, 1975 and May 5, 1976. This delay of 14 months is sufficient to trigger scrutiny and require us to examine the reasons for the delay, the possibility of prejudice to the appellant, and the effect of the assertion or lack of assertion below of the right to a speedy trial. See Jones v. State, 279 Md. 1, 367 A. 2d 1 (1976).

Our task is simplified by appellant’s concession in his brief that only a total of six months of the delay is even allegedly attributable to the State. The remaining eight months are presumably assessed as with that period allowable for the orderly administration of justice and/or appellant’s own dilatoriness, and cannot be charged against the State. See Jones v. State, supra; Lee v. State, 32 Md. App. 671, 363 A. 2d 542 (1976); Ward v. State, 30 Md. App. 113, 351 A. 2d 452 (1976).

The record shows that appellant was incarcerated in Virginia during the six months at issue, and that the Maryland prosecutor was unable to secure the cooperation of the Virginia authorities in producing appellant for trial. On at least one occasion a writ requiring appellant’s presence in Maryland for the purpose of trial was returned with the notation “Writ not honored by Virginia.” A careful consideration of the record convinces us that the State acted in good faith in attempting to have appellant brought to Maryland. As we held in Isaacs v. State, 31 Md. App. 604, 358 A. 2d 273 (1976), cert. den., 278 Md. 724 (1976); Davidson v. State, 18 Md. App. 61, 305 A. 2d 474 (1973); cert. den., 269 Md. 757 (1973), the State cannot be charged with that portion of the delay resulting from appellant’s criminal acts in another state or his wilful absence from Maryland. Accordingly, since no portion of the delay is “attributable” to the State, we need not examine prejudice and assertion of the right to speedy trial, and we conclude that the trial court properly denied appellant’s motion to dismiss for lack of a speedy trial.

The appellant next asserts that the trial court erred in allowing the State to introduce evidence that the appellant, after having already made an exculpatory statement to the police, refused to answer other questions posed by them. The State called as one of its witnesses a Detective John Lew who testified as to certain written and oral statements made by the appellant in the course of a custodial interrogation. It was conceded that the appellant had been advised of his constitutional rights and had signed a “waiver form.” When the State offered the statements into evidence, trial counsel objected on the grounds that certain portions were “not relative to this case.” At a bench discussion, it was ascertained by the court that the appellant’s counsel was disturbed by a statement made by his client to Detective Lew in which he disavowed having committed this crime with a black accomplice because he was prejudiced toward blacks. Counsel contended that the reading of this statement to the jury would be “too inflammatory to help.” The trial court overruled the objection saying:

“I think it’s relevant for the reason that there are allegations made that there are accomplices in the case and of the black race, and I am sure that’s what he was questioning in regard to. Did he commit a robbery with another white and black male, and he, of course answers he’s prejudiced against blacks and wouldn’t commit any crime with a black. I think it’s relevant. Admit the statement in total.”

1 Wharton, Criminal Evidence § 151 (13th ed. 1972), defines relevant evidence:

“Any evidence which is helpful in getting at the truth of a material issue is relevant, even though it is only a link in the chain of facts which must be proved to make the proposition at issue appear more or less probable. . .. Evidence will be excluded as irrelevant, then, when the fact which it would prove or disprove is not material to the prosecution or defense.”

Applying that test, we believe that the trial court was correct in admitting the statement voluntarily made by the accused to the police. Nor do we perceive any prejudice arising from the submission to the jury of one of the reasons given by appellant in attempting to exculpate himself from the crime with which he was charged. See Brown v. State, 29 Md. App. 1, 349 A. 2d 359 (1975). After the exculpatory statement had been read to the jury a colloquy ensued between the State’s Attorney, the trial court and the detective. The appellant contends that this colloquy amounted to an improper infringement of his constitutional right to remain silent in response to police interrogation. The colloquy was as follows:

“STATE’S ATTORNEY: Thank you. During the period of time that you questioned the defendant in regard to this crime, did he ever tell you where he was on this particular night?
DETECTIVE LEW: No, he didn’t.
STATE’S ATTORNEY: Did you ask him where he was on this particular night?
DETECTIVE LEW: Yes.
STATE’S ATTORNEY: Did you ever give him the name of any people he was allegedly with?
DETECTIVE LEW: No, I didn’t.
STATE’S ATTORNEY: Did the defendant make any further statement at this time?
DETECTIVE LEW: No, sir.
THE COURT: Did you ask him where he was that night?
THE WITNESS: Yes.
THE COURT: What’s your answer.
THE WITNESS: ‘Witness did not reply.’ ”

Appeal counsel has very diligently briefed both the Federal and State cases which hold that an accused’s initial waiver of his right to remain silent does not preclude a later assertion of that right. He urges that we ought to apply the principles laid down in Younie v. State, 272 Md. 233, 244, 322 A. 2d 211, 217 (1974), in which our Court of Appeals held that, “Silence in the context of a custodial inquisition is presumed to be an exercise of the privilege against self incrimination....” He contends that permitting the submission to the jury of the fact that the appellant remained silent in response to certain questions asked by the detective was prejudicial error.

There is, however, a fatal flaw in the appellant’s argument. A careful reading of the trial transcript discloses that no objection was made to the questions asked the detective by the State’s Attorney and the trial judge during the colloquy; that no motion was made to strike the testimony, nor was there any constitutional objection raised to the questions asked and the answers given. It is apparent that the appellant’s counsel — with the benefit of the “instant replay” of the trial transcript — elected to raise the issue for the first time in the appeal before us. We have said, in too many cases to enumerate here, that we shall adhere to Maryland Rule 1085 and will not consider on appeal an issue not raised and decided in the trial court, nor will the fact that the question raised is a constitutional one defer us from the application of that rule. Smith v. State, 16 Md. App. 317, 295 A. 2d 802 (1972). We therefore decline to rule on this issue.

As his third ground for reversal, the appellant maintains that the trial court erred in excluding from evidence the partial transcript of the appellant’s trial for another armed robbery alleged to have been committed by the appellant in nearby Virginia. The testimony which the appellant attempted to introduce was that of the owner of a restaurant in Arlington, Virginia, who allegedly stated that the armed robbery occurred on the same date and approximately the same time as the robbery in the case we here consider. The appellant suggests that the testimony would have substantiated his alibi that he was in Virginia at the time that the Maryland robbery was committed and would have explained his silence during his custodial interrogation. The appellant urges as authority for his position Contee v. State, 229 Md. 486, 184 A. 2d 823 (1962), cert. denied, 374 U. S. 841 (1963), and Britton v. State, 2 Md. App. 285, 234 A. 2d 274 (1967).

The appellant’s ingenious effort to stretch these cases to fit his last does not withstand close scrutiny. Chief Judge Gilbert of this Court in the recent case of Thomas v. State, 32 Md. App. 465, 361 A. 2d 138 (1976), discussed the general rule as to the admission of testimony given at a prior trial by a witness who later became incompetent. He there said at pp. 471-72 quoting from Contee:

“It is well settled that testimony taken at a former trial may be admitted, if it be shown that the witness is dead, insane, or beyond the jurisdiction of the court, or on diligent inquiry cannot be located, or that some other circumstance exists which shows that the witness who gave the testimony at the former trial cannot be procured as a witness at the second trial. ... The writers and authorities all agree that where there was an opportunity to cross-examine the witness in the former trial, there is no violation of the right to be confronted with the witnesses against the accused, under Art. 21 of the Maryland Declaration of Rights or under the Due Process clause of the Fourteenth Amendment to the Federal Constitution. Since there is no constitutional right involved, there has been a discernible tendency, we think, to liberalize the rule, which was first applied ex necessitate in the case of death.” (citations omitted)

The mote in appellant’s argument, however, is found in the case of Barber v. Page, 390 U. S. 719, 88 S. Ct. 1318, 20 L.Ed.2d 255 (1968). In that case Barber and Woods were jointly charged with armed robbery. During the preliminary hearing Woods waived his privilege against self-incrimination and testified incriminating Barber. When Barber was tried in Oklahoma several months later, Woods was in a federal prison in Texas. Oklahoma made no effort to obtain Woods’ presence at trial, but introduced, over petitioner’s objection, the transcript of Woods’ testimony at the preliminary hearing on the basis that he was out of the State and unavailable to testify. Barber was convicted; the United States Supreme Court reversed and enumerated the test for determining the admissibility of the previous testimony in such circumstances at pp. 723-25, 88 S. Ct. at 1321-22, 20 L.Ed.2d at 259-60:

“We start with the fact that the State made absolutely no effort to obtain the presence of Woods at trial other than to ascertain that he was in a federal prison outside Oklahoma. It must be acknowledged that various courts and commentators have heretofore assumed that the mere absence of a witness from the jurisdiction was sufficient ground for dispensing with confrontation on the theory that ‘it is impossible to compel his attendance, because the process of the trial Court is of no force without the jurisdiction, and the party desiring his testimony is therefore helpless.’ 5 Wigmore, Evidence § 1404 (3d ed. 1940).
Whatever may have been the accuracy of that theory at one time, it is clear that at the present time increased cooperation between the States themselves and between the States and the Federal Government has largely deprived it of any continuing validity in the criminal law. .. .
... In short, a witness is. not ‘unavailable’ for purposes of the foregoing exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.” (footnotes omitted)

See also Berger v. California, 393 U. S. 314, 89 S. Ct. 540, 21 L.Ed.2d 508 (1969); Dutton v. Evans, 400 U. S. 74, 91 S. Ct. 210, 27 L.Ed.2d 213 (1970); Mancusi v. Stubbs, 408 U. S. 204, 92 S. Ct. 2308, 33 L.Ed.2d 293 (1972) (dissenting opinion); State v. Collins, 265 Md. 70, 288 A. 2d 163 (1972).

In this case we deal not with an assertion of a defendant’s Sixth and Fourteenth Amendment right of confrontation in the face of the State’s attempt to introduce prior testimony; rather, we deal with the parallel situation of a hearsay objection by the State in the face of the defendant’s attempt to introduce prior testimony as a hearsay exception. Under this exception the hearsay testimony is admissible only if a proper foundation has been laid including a showing that the declarant is unavailable. Wharton, Criminal Evidence § 650 (Torcía ed. 1973); McCormick, Evidence § 253 (2d ed. 1972). The burden is on the person offering the prior recorded testimony to show that a good faith effort has been made to produce the witness in court so that the witness may be subject to cross-examination under oath, and so that the trier of the fact may observe the demeanor of the witness while giving his testimony.

The federal government and practically all states have adopted procedures for the securing of the attendance of material witnesses from another state to testify in criminal prosecutions. Both Maryland and Virginia have adopted the “Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings.”

In Britton, supra, and Reckard v. State, 2 Md. App. 312, 234 A. 2d 630 (1967), this Court held that the State need not resort to the provisions of the Uniform Act in order to invoke the rule that testimony given at a former trial may be admitted if it is shown that the tyitness is beyond the boundaries of the State or, on diligent inquiry, cannot be located. In view of the Supreme Court’s subsequent decision in Barber, supra, were the identical issue raised here now, we would reach the opposite result. Analogously, we now hold that a defendant must show that he used the provisions of the Act but was nonetheless unable to secure the attendance of an out-of-state witness before such a witness’ testimony, given at a former trial, may be admitted.

The defendant failed completely in his duty to lay the foundation required before the trial court could consider the admissibility of the prior testimony. There is no showing that the witness was in fact unavailable and no evidence of a good faith effort to secure the attendance of the witness. Under these circumstances, the trial court was correct in sustaining the objection to the admissibility of the . transcript.

Since the unavailability of the witness has not been sufficiently established, we do not reach the questions of whether there was sufficient evidence of identity of issues and parties and sufficient opportunity for cross-examination to qualify the evidence under the prior recorded testimony exception to the hearsay evidence rule. See McCormick, supra, §§ 255-57; 5 J. Wigmore, Evidence §§ 1386-88, 1396, 1404 (3rd ed. 1940).

The appellant asserts as his fourth ground for reversal the trial court’s error in permitting the prosecutor to question the appellant concerning the absence of a witness who was allegedly an accomplice of the accused and who could substantiate the appellant's alibi. The appellant, who testified in his own behalf in this case, had contended that he and the accomplice, one McGurry, had been engaged in the commission of another robbery in Virginia at the time the robbery in this case occurred. Over objection, the State’s Attorney was permitted to ask the appellant, “Did you try to get him here today to testify for you?" The appellant answered in the negative.

The appellant argues that the controlling law is found in 1 Wharton, Criminal Evidence § 148 (13th ed. 1972). Our reading of the legal principles there enunciated convinces us that the cited sections of Wharton deal with the instructions that may be given to a jury as to the inferences which may be drawn from the, failure of a party to call a witness who could testify as to material facts. In this case no such instruction was requested, nor was such an instruction given to the jury. No such inference was called to the attention of the jury in argument. We believe that the question was permissible cross-examination utilized to attack the credibility of the alleged alibi of the appellant. We find no merit in the asserted ground for reversal.

Finally, the appellant urges that his conviction for unlawfully carrying a handgun merged into the more serious offense of use of a handgun in a crime of violence. Again, no such issue was raised in the trial below. The issue is therefore not properly before us on appeal. Maryland Rule 1085.

Judgments affirmed.

Costs to be paid by appellant.

      . Appeal counsel was other than trial counsel.

      . Maryland Code (1974, 1976 Cum. Supp.), Courts and Judicial Proceedings Art. § 9-301 et seq.-, Virginia Code (1950, 1976 Supp.) § 19.2-272 et seq.