author: Wilner, J.,

text:
    WILLIAM SYLVESTER BUTLER v. STATE OF MARYLAND
    [No. 837,
    September Term, 1978.]

      Decided March 9, 1979.

    The cause was submitted on briefs to Gilbert, C. J., and Moore and Wilner, JJ.

      Submitted by Phillip M. Sutley and Sutley & Marr for appellant.
    Submitted by Stephen H. Sachs, Attorney General, Arrie W Davis, Assistant Attorney General, Warren B. Duckett, Jr., State’s Attorney for Anne Arundel County, and Gerald Anders, Assistant State's Attorney for Anne Arundel County, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

Appellant was convicted in 4;he Circuit Court for Anne Arundel County of possession of “controlled paraphernalia” in violation of Md. Annot. Code art. 27, § 287 (d) (iii), for which he was sentenced to prison for two years. In this appeal, he raises three issues, the first two of which concern the sufficiency of the evidence produced against him and may be dealt with in short order.

Acting upon information received from a drug enforcement agent in Detroit, State Trooper Charles Boyd, assigned to Baltimore-Washington International Airport, observed the arrival at the airport of a particular aircraft and maintained surveillance of two of its passengers. One of these passengers was appellant, the other a man named John Davis. He first saw the two men just after they had deplaned, when they were about 50 yards from the aircraft, walking away from the plane. They were about 10 feet apart. Davis was carrying a tan satchel; appellant was carrying a clothing bag.

The two men entered the terminal building, stopped at the information booth, and had a 10-15 second conversation. They then proceeded outside where they both attempted to enter a cab — together. At this point, Trooper Boyd introduced himself and apparently suggested that they accompany him to the State Police office at the airport, which they agreed to do. Trooper James Simmons met them at that office. Ultimately, with Mr. Davis’ written consent, he searched the satchel, previously in Davis’ physical possession and found therein, among other things, various prescription bottles with appellant’s name on them, two plastic bags containing, together, over 630 grams (approximately one pound six ounces) of a white powder later identified as quinine, and one plastic jar containing nearly 500 grams (just over one pound) of a substance later identified as lactose.

Section 287 of art. 27 provides, in relevant part, that, except as otherwise authorized (which in this instance it was not), it is unlawful for any person:

“(d) To possess or distribute controlled paraphernalia which shall mean ...
(iii) Lactose, quinine ... in sufficient quantity and under such circumstances which reasonably indicate an intention to use any such substance for the illegal manufacture, distribution or dispensing of any controlled substance. Evidence of such circumstances shall include but not be limited to close proximity of any such controlled paraphernalia to any other adulterants, diluents or equipment commonly used in the illegal manufacture and distribution of controlled substances, such as but not limited to any of the following: scales, sieves, strainers, measuring spoons, staples and staplers, glassine envelopes, gelatin capsules, or any controlled substance.”

Appellant’s first argument is that, as the lactose and quinine were found in the satchel carried by Davis, there was no evidence to show that they were ever in his possession. Possession of contraband to be criminal, however, need not be exclusive or actual. There may be joint possession and constructive possession, either of which will suffice to sustain a conviction. Md. Annot. Code art. 27, § 277(s); Garrison v. State, 272 Md. 123, 128 (1974); Folk v. State, 11 Md. App. 508 (1971); Anderson v. State, 9 Md. App. 639 (1970). The proximity of the two men — leaving the plane, conversing in the terminal, and attempting to enter the same cab — coupled with the presence of prescription drugs with appellant’s name on them in the satchel, more than sufficed to establish a joint or constructive possession of the contraband.

Appellant’s second contention is that, absent expert testimony to establish the utilization of lactose or quinine as a “cutting agent” or as to the significance, if any, of the quantities of those substances found in the satchel, the evidence was insufficient to prove that the intended use was an illegal one.

The State’s case was a bit thin. Whether because of complacency or lack of preparation, no evidence was offered to explain the significance of a pound of lactose and nearly a pound and a half of quinine. Such lapses in the record, we caution the prosecutors, are often the progenitor of appellate reversals. Here, however, a fair and rational inference may be drawn sufficient to establish the requisite intent. A pound of lactose in close proximity to more than a pound of quinine — one item of controlled paraphernalia in proximity to another — both in sizeable amounts — does raise an inference that the possession of both is “under such circumstances which reasonably indicate an intention to use [them] for the illegal manufacture, distribution or dispensing of [a] controlled substance”, especially in light of the fact that both of these substances have been statutorily recognized as specifically usable for that purpose.

Appellant’s third complaint deals with procedure and it requires reversal of his conviction. He alleges that “[t]he record does not reflect that [he] knowingly, voluntarily and with full knowledge of the consequences waived his constitutional right to a trial by jury”.

We note that appellant does not allege that he desired a trial by jury or that he was unaware of his right to a jury trial or that he was unaware of what a jury trial entailed. He does not claim that he was denied a trial by jury or that he did not knowingly and voluntarily waive such mode of trial. In short, it is not any constitutional right that he says was violated but only the requirements of a rule of procedure (Maryland Rule 735) which does, however, have the force of law. He does not assert that he was misled or prejudiced in any way by what occurred or failed to occur. His sole complaint was that the court did not comply with the mandatory requirements of Maryland Rule 735, in particular section d thereof.

Rule 735 d provides:

“If the defendant files an election to be tried by the court, the trial of the case on its merits before the court may not proceed until the court determines, after inquiry of the defendant on the record, that the defendant has made his election for a court trial with full knowledge of his right to a jury trial and that he has knowingly and voluntarily waived the right. If the court determines otherwise, it shall give the defendant another election pursuant to this Rule.”

In Biddle v. State, 40 Md. App. 399 (1978), this Court concluded that section d spells out a ritual which the trial judge must follow in accepting the election of a non-jury trial. We concluded that this ritual was a mandatory one — a necessary prerequisite to the commencement of trial before the court. Moreover, drawing from Boykin v. Alabama, 395 U. S. 238 (1969), we held that waiver of a jury trial, which of course is implicit in the election of a court trial, must appear affirmatively in the record and that, if it does not so appear, any judgment of conviction rendered must be reversed.

Appellant was originally charged in the District Court of Maryland, a violation of § 287 of art. 27, being a misdemeanor within the concurrent original jurisdiction of that court. See Courts article, §§ 4-301 (b), 4-302 (c). The record in the District Court shows that on August 22, 1977, the date scheduled for trial in that court, appellant (either personally or through his counsel, Phillip Sutley, Esq.) elected a jury trial, thereby divesting the District Court of further trial jurisdiction and causing the case to be removed to the Circuit Court. See Courts article, § 4-302 (d). The record does not reveal whether appellant personally was in court on August 22, whether the election of a jury trial was made by him or by his counsel, whether Maryland District Rule 751 requiring that the District Court inform a defendant of his right to trial by jury was complied with, or, if it was, in what manner such compliance was effected. We therefore do not know what information, if any, was actually conveyed to appellant with respect to his right to a jury trial when the matter came before the District Court.

As occurs so often and for a variety of reasons, when the day of reckoning finally came in the Circuit Court, nearly a year later and after two postponements, appellant (or his lawyer, the same Mr. Sutley) decided to forego the jury trial that caused the case to be removed in the first place. When the case was called, Mr. Sutley stated to the court:

“Your Honor, I’m Phillip M. Sutley, representing Mr. Butler. His case originally was a jury trial prayed in the District Court. Since that time Mr. Butler has wa/m/his right to have this case tried before a jury. So we’re here today, non-jury trial, enter a plea of not guilty.” (Emphasis supplied.)

The court made no response to this statement, but, accepting it as a valid change of election from jury to court trial, proceeded to take testimony.

It is evident here, as it was in Biddle, that the court made no effort whatever to comply with section d of Rule 735. It obviously made no inquiry of appellant on the record. Neither is there any indication in the record that the court knew what had transpired in the District Court. Accordingly, there was no basis upon which it could have reasonably concluded that appellant had full knowledge of his right to a jury trial and that he was knowingly and voluntarily waiving that right.

The State calls our attention to section e of Rule 735 dealing specifically with cases transferred from the District Court by reason of a request for jury trial. That section provides in such instances that the defendant shall be tried by a jury and may not elect a court trial except with leave of court for good cause shown. This section does not, however, diminish the application or effect of section d. It simply imposes an additional requirement on the court not to permit a court trial without a further additional showing of good cause for the change in election.

Accordingly, the mandatory requirements of section d being both applicable and unsatisfied, the court had no authority to proceed with trial and the conviction must therefore be reversed.

Judgment reversed; case remanded to the Circuit Court for Anne Arundel County for retrial; Anne Arundel County to pay the costs.

      . His full argument as presented in his brief is as follows:
      “Subsequent to the Defendant’s trial on July 25,1978, the case of Biddle v. State, 24 Sept. Term 1978, was decided by the Court of Special Appeals of Maryland. The Biddle case set forth certain criteria which must be satisfied prior to the waiver of an individual’s constitutional right to a trial by jury. It is the contention of Appellant that the record does not reflect the necessary conditions precedent to an effective waiver of a trial by jury.”

      . In FY 1978, nearly 5,600 defendants prayed a jury trial in the District Court. See Statistical Abstract, Annual Report of the Maryland Judiciary (1977-78), Table DC-3, p. 70. Most of these elections (3,775) occurred in Baltimore City. Indeed, the frequency of jury elections in the District Court has increased so dramatically in the City that, in January, 1978, they accounted for 46% of the entire Criminal Court of Baltimore pending caseload and 40% of the number of defendants then awaiting trial in that court. Three years earlier, cases transferred by reason of jury trial elections comprised only 21% of the overall pending caseload ana but 19% of the defendants awaiting trial. See Report of Special Committee to Study Supreme Bench Caseload Increase of District Court Warrant Cases and De Novo Appeals (1978), Appendix A. According to that Report, however, less than 8% of the defendants praying jury trials actually are tried by juries when these cases reach the Criminal Court, a fact which led the Committee to suggest that “a desire for trial by jury is not the reason for praying the same in the vast majority of cases.” Id., p. 3.
      Based upon its review of the data and the general expertise of its members, the Committee suggested nine reasons, other than a sincere desire for a jury trial, to explain this increase. They include the simple desire to gain a postponement, to avoid the particular judge sitting in the District Court, the hope or expectation (often realized) of a favorable plea bargain, and delay in the ultimate reckoning. See also Report of the State’s Attorney of Baltimore City, January 1975 through June 1978, pp. 28-30. These motives are not necessarily peculiar to Baltimore City.
      There is no evidence, of course, that appellant’s course of action in this case was influenced by any of these collateral motives. But, as already noted, neither is there any evidence that he really wanted a jury trial.

      . There is no indication in the record of any prior waiver or attempt at waiver of the previously elected jury trial. In particular, the record does not indicate that appellant ever signed a written waiver form of the type set forth in section b of Rule 735. It is not clear, therefore, what counsel meant when he said that his client “has waived” his right to jury trial.

      . By Order dated November 16,1978, the Court of Appeals substantially amended Rule 735. See 5 Md. Reg. 1787,1788 (12/1/78). The Order provides that the changes “shall take effect and apply to all proceedings commenced on and after January 1, 1979, and insofar as practicable, to all proceedings then pending.” (Emphasis supplied.) Section e of the previous Rule was repealed, ana, in its place, the new Rule states:
      “1. Change of Court Trial Election.
      Subject to the provisions of section d, after an election for a court trial is made, the court may not permit the defendant to change his election except upon motion made prior to trial and for good cause shown. In determining whether to allow a change in the election, the court shall give due regard to the extent, if any, to which trial would be delayed by the change.
      “2. Change of Jury Trial Election.
      After a jury trial has been elected pursuant to this Rule or in the District Court, the defendant may waive his right to a jury trial at any time up to 72 hours prior to the time of trial. The court may allow a change in the election of a jury trial at any time before trial upon motion and for good cause shown.”
      Section d was amended by substituting the word “elects” for the phrase “files an election” as it appears in the first line. At least because of the 72-hour requirement in section e which, of course, could not be complied with in this case, we do not believe it “practicable” to apply the new Rule in this proceeding, notwithstanding its pendency on January 1, 1979, and shall therefore decide this case on the basis of the Rule as it existed prior to the most recent change — i.e., as it stood at the time of trial.


source: Caselaw Access Project

author: Liss, J.,

license: Public Domain

text:
    WILLIAM HARSANYI v. HARTFORD ACCIDENT AND INDEMNITY COMPANY
    [No. 731,
    September Term, 1978.]

      Decided March 12, 1979.

    The cause was argued before Thompson, Lowe and Liss, JJ.

      John F. Somerville, Jr., for appellant.

      Gary G. Leasure, with whom was John J. Coyle, Jr., on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

This is an appeal by William Harsanyi, appellant, from a summary judgment granted in favor of Hartford Accident and Indemnity Company, appellee, by the trial judge in the Circuit Court for Allegany County.

On December 20,1973, appellant was returning home from his work as a coal mine inspector for the Department of the Interior when he fell on an icy road, injuring his left shoulder; he continued to work as a coal mine inspector until March 5, 1974. Appellant contended that he reported his fall the day after the occurrence and was assigned light duty “accident prevention work” until March 5, 1974, when he filed a claim for compensation under the Federal Workmen’s Compensation Act. On May 14, 1974, the appellant was certified as “totally disabled” under the Federal Workmen’s Compensation Regulations. On August 22, 1974, he returned to work where for the next seven months he was assigned to light duty “accident prevention work” and was occasionally engaged in actual mine inspection. Appellant stopped work entirely on March 17, 1975, because of the severe pain in his shoulder which resulted from the accident of December 20, 1973. He began to receive sick leave benefits from his employer which terminated in June of 1975. By motion, appellant reopened his compensation claim and was awarded benefits after the completion of his sick leave. In August 1976, appellant was approved for civil service disability payments of $1,223 per month based on his shoulder injury, a prior knee injury, and silicosis. Payment under this award was deferred until compensation payments ceased.

Appellant was the insured under an insurance policy issued by the appellee on November 15, 1967. The appellant sought permanent total disability benefits under a claim dated August 18, 1976, which indicated that the first date of disability was March 17,1975, and which recited the cause of disability as “capsulitis of the left shoulder” and “degeneration of the left knee.” The pertinent provisions of the insurance policy were as follows:

Upon due written proof, submitted to the Company during the lifetime of an Insured Person, that injury sustained by him prior to his 65th birthday resulted directly and independently of all other causes in total disability (hereinafter defined):
(a) which commenced within 180 days of the accident; and
(b) continued without interruption for a period not less than 12 consecutive months and to the date such proof is submitted to the Company; and
(c) that such total disability will be permanent and continuous during his further lifetime;
the Company will pay the applicable Principal Sum....
The words “total disability” as used in this Benefit mean inability of the Insured Person to engage in any and every occupation or employment for wage or profit....

Appellant claims the benefit of an amendatory rider to the policy issued by the company which became effective on October 1, 1977. Appellee contends — correctly, we believe, that the appellant is not entitled to the benefit of the rider as it became effective long after the date of the accident (December 20, 1973) and the date of the filing of the claim (August 18, 1976). The rider defines total disability as “inability of the insured person to engage in any and every occupation or employment for wage or profit for which he is reasonably fitted by training, education or experience.”

Appellee filed a request for admission of facts in order to verify the terms of the policy and subsequently filed a motion for summary judgment claiming there was no valid dispute between the parties as to the facts or the law. The presiding judge agreed with the appellee and granted the summary judgment. It is from that judgment that this appeal was filed.

The questions to be answered by this appeal are:

1. Did the trial judge err in granting appellee’s motion for summary judgment?
2. Whether an insured may recover for permanent disability under a policy which “requires the insured to suffer permanent disability within 180 days of the accident,” or whether the policy allows the insured to recover for permanent disability which manifests itself more than 180 days after the accident but which under the “process of nature” rule would be considered as immediate and as dating from the time when the injury set the process of nature in motion?
3. Whether this insurance policy required the insured to cease all work within the 180 day period before being entitled to permanent disability benefits?

On numerous occasions the Court of Appeals has stated that the function of the summary judgment procedure is not to try the case or decide the issues of fact raised; it is merely to determine whether there is an issue of fact to be tried, and if there is none to cause judgment to be issued accordingly. Brewer v. Mele, 267 Md. 437, 298 A. 2d 156 (1972); Broadwater v. Arch, 267 Md. 329, 297 A. 2d 671 (1972); Greenwell v. American Guaranty Corp., 262 Md. 102, 277 A. 2d 70 (1971); Delia v. Berkey, 41 Md. App. 47, 395 A. 2d 1189 (1978). We agree with the trial judge that no valid dispute existed as to the facts in the case.

The undisputed testimony in appellant’s deposition disclosed that he was injured on December 20, 1973; that he continued to be gainfully employed until March 5, 1974; that he remained off his job for several months and resumed work on August 22, 1974; and that thereafter he continued to be gainfully employed until March 17, 1975. It is conceded that the policy under which the appellant makes his claim requires that the injury, sustained by the insured, result directly in total disability which commenced within 180 days from the date of the injury. The policy also requires that the total disability continue without interruption for not less than 12 consecutive months. “Total disability” is defined in the policy as meaning: “inability of the insured to engage in any and every occupation or employment for wage or profit____” The appellant, himself, testified that he was gainfully employed until March 8,1975, a period which extended well beyond 180 days after the accident of December 20, 1973. Nor does the record before us reveal that his disability continued for 12 consecutive months, as required by the policy.

The insurance contract in this case must be read and construed in the same manner as any other contract. We are not permitted to ignore a policy provision in order to avoid what appears to be a hardship. Little v. First Federated Life Insurance Company, 267 Md. 1, 296 A. 2d 372 (1972). The words in an insurance contract, absent any ambiguity, must be construed according to their customary and normal meanings. C & H Plumbing and Heating, Inc. v. Employers Mutual Casualty Company, 264 Md. 510, 287 A. 2d 238 (1972).

Appellant urges that we adopt the process of nature rule which was first promulgated in Frenzer v. Mutual Benefit Health and Accident Association, 27 Cal.App. 2d 406, 81 P. 2d 197 (1938), which case held: “[W]hen a disability follows from an accidental injury within such time as the processes of nature consume in bringing the affected person to the state of total incapacity to prosecute every kind of business pertaining to his occupation, such disability is immediate under the terms of the policy.” Id. at 413.

The rule as cited in Appleman’s Insurance Law and Practice, Section 612 (1978), states:

[Wjithin the meaning of the policy provisions requiring disability within a specified time after an accident, the onset of the disability relates back to the time of the accident itself whenever the disability arises directly from the accident within such time as the process of nature consumes in bringing the person affected to a state of total disability.

The rationale for the rule as stated in Rathbun v. Globe Indemnity Company, 107 Neb. 18, 184 N. W. 903, 908, 24 A.L.R. 191 (1921), is as follows:

[I]t may be said to be a matter of common knowledge that in a great many, perhaps in a large majority of instances in which bodily injuries are received, the real nature and extent of said injuries do not reveal themselves until a greater or less time in the future and after the first pains from the hurt shall have passed away. The injured part often lies dormant for an indefinite period, with but little or no consciousness of its existence by the person injured, although from the very moment of the accident, perhaps, the processes of nature may be busily engaged in developing what may have seemed to be but a slight hurt into a most serious and perhaps fatal injury. In such a case it cannot be said that the injury is not continuous and from the date of the accident, nor can it fairly or justly be said that the disability is not continuous and from the date of the accident, because the injured party enjoys a brief respite from pain and suffering, only to be endured to a greater degree when perverted nature again asserts itself.

Appellant argues that our Court of Appeals adopted the process of nature rule in Maryland Casualty Company v. Ohle, 120 Md. 371, 87 A. 763 (1913). We do not agree. That case seems to turn on the issue of notice. Even if we assume, arguendo, that in appropriate circumstances our Court of Appeals might adopt the process of nature rule, we do not believe this case factually falls within the ambit of that legal principle. We note that the assured’s history contains indications that he was suffering not only from the injury to his shoulder but an injury to his knee and a long standing silicosis as well. It was on the basis of any and all injuries he received during his work for the government that he requested and was awarded civil disability benefits. The assured offered no medical testimony by way of affidavit or otherwise from which it could be determined that this was an appropriate case for the application of the process of nature rule. On his application for civil service disability benefits, appellant stated that his disability was at least partially predicated on his shoulder injury, his prior knee injury and on his prior black lung disease. In his deposition, he admitted that it was upon a combination of all three injuries that he claimed the basis for his civil disability retirement.

We conclude: that appellant’s “total disability,” if it did in fact exist, did not commence within 180 days of the accident to his shoulder, and that it did not continue without interruption for not less than 12 consecutive months; that for these reasons, the assured is not entitled to the benefits he seeks under the policy, and that the trial judge did not err in granting the appellee’s motion for summary judgment.

Judgment affirmed.

Costs to be paid by appellant.


author: Gilbert, C. J.,

text:
    EVELYN T. KNIGHT v. STATE OF MARYLAND
    [No. 734,
    September Term, 1978.]

      Decided March 12, 1979.

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

      Phillip M. Sutley, with whom were Sutley & Marr on the brief, for appellant.

      Alice G. Pinderhughes, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, William A.

      Swisher, State's Attorney for Baltimore City, and Jonathan Shoup, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

We herein reverse and remand to the Criminal Court of Baltimore its judgment in which Evelyn T. Knight was sentenced, as the result of a jury verdict of guilty of possession of a controlled dangerous substance (heroin), to one (1) year imprisonment.

We take that action for the reason that the State did not comply with Maryland Courts and Judicial Proceedings Code Ann. § 10-1003, and because we are unable to agree with the trial judge that the State’s failure to comply with the clear mandate of section 10-1003 was harmless error beyond a reasonable doubt.

Inasmuch as our holding is limited in its scope, no useful purpose will be served by our recounting all the facts out of which this case arose. It is enough for our purpose to know that Ms. Knight was arrested following the execution of a search and seizure warrant at her residence, 1607 East 32nd Street in Baltimore City. The search revealed six (6) tinfoil packets of a white powder which chemical analysis proved to be 4.3% heroin. It is the receipt into evidence of that report, absent the “live” testimony of the chemist relative to chain of custody, that is assailed in this Court by the appellant.

By the enactment of Laws 1974, ch. 794, now codified as Courts art. §§ 10-1001 to 10-1003 inclusive, the General Assembly provided that it would not be necessary for the chemist to appear as a witness in a trial of a person for violation of this State’s Controlled Dangerous Substances Laws, Md. Ann. Code art. 27, §§ 276-302, to establish the proper chain of custody unless the defendant complies with the statutory prerequisite spelled out in Courts Art. § 10-1003. Section 10-1002 provides:

“For the purpose of establishing, in a criminal or civil proceeding, the chain of physical custody or control of evidence consisting of or containing a substance tested or analyzed to determine whether it is a controlled dangerous substance defined under Article 27 of this Code, a statement signed by each successive officer or other person having the custody of the evidence that he delivered it to the person indicated on or about the date stated is prima facie evidence that the person had custody and made the delivery as stated, without the necessity of a personal appearance in court by the person signing the statement. The statement shall contain a sufficient description of the material or its container so as to distinguish it as the particular item in question and shall state that the material was delivered in essentially the same condition as received.”

Section 10-1003 states:

“In a criminal proceeding, the prosecution shall, upon written demand of a defendant filed in the proceedings at least five days prior to a trial in the proceeding, require the presence of the chemist, analyst, or any person in the chain of custody as a prosecution witness. The provisions of §§ 10-1001 and 10-1002 concerning prima facie evidence do not apply to the testimony of that witness. The provisions of §§ 10-1001 and 10-1002 are applicable in a criminal proceeding only when a copy of the report or statement to be introduced is mailed, delivered, or made available to counsel for the defendant or to the defendant personally when he is not represented by counsel, at least ten days prior to the introduction of the report or statement at trial.”

Because the State had, in answer to a discovery motion, furnished a copy of the report to the appellant’s counsel, it did not notify her counsel that the chemist was not going to appear at the trial. Appellant’s counsel contended in the trial and here that the furnishing of the report in response to discovery did not comply with section 10-1003 inasmuch as there was nothing in the report to indicate the chemist would not be called to testify. Ergo, appellant, not having received word from the State that it intended to submit the report sine the chemist’s presence at trial, did not make “written demand” that the chemist be physically present to testify. Appellant asserts that the State’s non-compliance with the statute misled her into believing the State would have the chemist testify. She asserts that as a result she had no opportunity to cross-examine the chemist as to the propriety of the chain of custody in order that she might be able to weaken or destroy the impact of the chemist’s report. The sum and substance of her argument is that she has been denied the right to confront the very witness whose report established that the seized material was a proscribed narcotic.

The trial judge agreed with the position taken by the assistant state’s attorney that appellant had a copy of the report in her possession for “almost a year” prior to trial, and that if she wanted the chemist present at trial she should have made the written demand required by Courts Art. § 10-1003.

We do not see the matter in the same light as the trial judge. We note that in answer to the discovery motion the chemist’s report was sent to the appellant’s counsel. There is absolutely nothing written, typed, or printed upon that report that would lead anyone to believe that the State intended to submit the report in lieu of the testimony of the chemist. In fact, a contrary conclusion may be drawn from the State’s response to one of the questions put to it on discovery. The State was asked to “[fjurnish the Defendant with a list of names and addresses of the witnesses whom the State intends to call to prove its case in chief....” The State replied, “The names and addresses of the witnesses the State intends to call to prove its case in chief are as follows:

Dr. Sumer M. Dugan Chemist, Crime Lab,

BCPD”

Clearly, the State’s response to the discovery motion indicated that it intended to call as a witness Dr. Dugan, the chemist who made the analysis upon which the charges were founded. Having been supplied with that information, there was no reason for the appellant’s counsel to believe that the State was not going to call Dr. Dugan to the witness stand. Consequently, it would appear that counsel had no need to make the “written demand” required by Courts Art. § 10-1003.

We think that once the State informed appellant, through her attorney, that it intended to call the chemist, Dr. Dugan, as a witness, the appellant had a right to rely upon that representation. Hence, she was not required to employ Courts Art. § 10-1003 in order to accomplish the very thing the State said that it intended to do. When the State changed its mind and elected to proceed by way of introduction of the chemist’s report through a “chain of custody form” instead of having the chemist testify, it should have notified the appellant’s counsel “at least ten days prior to the introduction of the report... at trial.” In that way, the appellant would be in a position to make timely “written demand” for the “live” testimony of the chemist.

Were we to subscribe to the argument that the appellant possessed a copy of the report and, therefore, should have made “written demand” for the production in court of the chemist, we would, in effect, be holding that when the State answers that it “intends” to call certain witnesses to testify it means that it might introduce a report by using a chain of custody form instead of the testimony of witnesses. To reach that point would require our rewriting of the dictionary. Moreover, notwithstanding the State’s reply to discovery, a defendant would have to make demand under Courts art. § 10-1003 whenever he or she desired the chemist to testify personally. Under such a procedure, section 10-1003 would be devoid of meaning insofar as the State is concerned. Thus, the State could mislead an accused by responding on discovery that it “intends” to call the chemist as a witness, change its mind without notification to the accused, rely upon the chain of custody provisions of the Courts article to introduce the written report instead of having the chemist testify, and then beat back any objection on the ground that the accused did not make “written demand” within five (5) days of trial for the physical presence of the chemist. Such a chain of events seems to us to be practicing law by ambush. We do not countenance it.

We think the appellant was misled by the State to her detriment, and the chemist’s report should not, under the circumstances of this case, have been received into evidence. To admit the report over objection was error going to the fundamental right of an accused to be confronted by her accusers. The report was, as we have seen, the sole basis for concluding that six (6) tinfoil packets found in the purse of the appellant were a proscribed controlled dangerous substance. We have no way of knowing what the cross-examination of Dr. Dugan will produce. The chemist’s testimony might have shown a void in the chain of custody that would cause the rejection of the six (6) packets of heroin. Thus, we cannot conclude that the admission of the report into evidence without the opportunity to cross-examine the author of that report as to the chain of custody is harmless error beyond a reasonable doubt. Dorsey v. State, 276 Md. 638, 350 A. 2d 665 (1976).

We note that this whole issue could have been avoided if, when the objection to the admission of the report was made, the State had withheld the report and produced the chemist. Alternatively, the trial judge could have declined to receive the report and directed the State to produce the chemist to testify.

Because of our disposition of this issue, we do not reach the remaining two (2) questions raised by the appellant. Both deal with rebuttal testimony, and it is likely that they will not be an issue at the retrial of this case.

Judgment reversed and case remanded for a new trial.

Costs to be paid by Mayor and City Council of Baltimore.

      . The preamble to Laws 1974, ch. 794, states that the act is “[f]or the purpose of providing for the admission of written reports of analyses of, and statements of the chain of custody of, suspected controlled dangerous substances as prima facie evidence and for exceptions thereto.”

      . The State’s reply to the discovery motion was dated November 9,1976. The case was tried on July 20, 21, and 22, 1977. We have a different view of what constitutes “almost a year.”

      . The verb “intend” is defined in the American Heritage Dictionary of the English Language (1970 ed.) to mean: “1. To have in mind; to plan. 2. To design for a specific purpose or destine to a particular use. 3. To signify: to mean. ...”


author: Couch, J.,

text:
    STATE HIGHWAY ADMINISTRATION OF THE DEPARTMENT OF TRANSPORTATION v. ANNAPOLIS MALL SHOPPING CENTER CO. et al.
    [No. 749,
    September Term, 1978.]

      Decided March 12, 1979.

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

      Norman Polski, Administrative Special Attorney, with whom were Francis Bill Burch, Attorney General, Nolan H. Rogers, Assistant Attorney General, and Stephen M. LeGendre, Special Attorney, on the brief, for appellant.

      George W. Liebmann, with whom were Morton P. Fisher,

      Jr., Robert B. Levin and Frank, Bernstein, Conaway & Goldman on the brief, for appellees.
   Couch, J.,

delivered the opinion of the Court.

The State Highway Administration, appellant herein, appeals a decree of the Circuit Court for Anne Arundel County by which it held that appellant had no right, title or interest in the portion of the Old Annapolis and Elkridge Railroad Company’s (A & E) right of way which crosses certain real property leased by appellee Annapolis Mall Shopping Center Co. (Annapolis Mall) from appellee Provident Life and Accident Insurance Company, the record owner of the real property adjoining the disputed right of way. Appellant claims fee simple title to the tract.

The parties in the proceedings below stipulated to the chain of title concerning the portion of the right of way presently in controversy. In 1835 Robert Welch of Ben acquired a large tract of land which included the future A & E right of way. Welch of Ben subsequently entered into an 1838 arbitration agreement with the A & E, which was recorded in 1841, whereby it was agreed that,

“the question of damages, (if any), which will be sustained by ... Robert Welch of Ben by occasion of the location of the line of said road (of the A & E) in, over and through the lands of... Welch called The Farm ... and upon the payment to Welch ... of the sum of money, (if any), which shall be so awarded, ... Welch binds himself to convey to the ... company so much of the said land as may be required for the location of said road through his land and in estimating such damages the ... arbitrators ... shall take into consideration all advantages and disadvantages, benefits and injuries, conveniences and inconveniences, on the one side and the other and to the respective parties by the location and construction of said road.”

The arbitrators subsequently awarded Welch of Ben five hundred dollars in damages. The award, also recorded in 1841, provides in pertinent part:

“Having examined the said land and the location of the aforesaid railroad through the same, made by the engineers of the said company and having the allegations and explanation of the parties, ... are of opinion and do adjudge and determine that for the land located for said road as included within the stakes driven, by authority of the said company and for the privilege of constructing its road over the same. The said company ought to pay to the said Welch, the sum of five hundred dollars, ($500.00), current money.”

The strip of land was transferred by quitclaim deed in 1936 by the receiver of Annapolis Electric Railroad Company (successor to the A & E) to the Washington, Baltimore and Annapolis Realty Company, the State Highway Administration’s immediate predecessor in what is claimed to be title. In 1941 the Washington, Baltimore and Annapolis Realty Company conveyed by fee simple deed, duly recorded, the property in issue to the State of Maryland to the use of the State Roads Commission of Maryland.

The trial court found two factors to be dispositive of the question of title: (1) no deed was ever executed between Robert Welch of Ben and the A & E, and (2) if the railroad company had fee simple title to the right of way,

“... there would have been no necessity for the arbitrators to determine anything about ‘the privilege of constructing its road over the same.’ If the Railroad Company had been the unqualified owner, in fee, of this land, it would have had the right, not the privilege, to use its own property as it desired.” Citing McCain v. Whittington, Law No. 3768, fd. Aug. 31, 1953 (Cir. Ct. for Anne Arundel County).

The trial court additionally relied upon the fact that “the arbitrators were to determine damages, if any, which does not imply an intent to grant a fee simple.” After looking at the agreement as a whole, and in view of Whittington, supra, the lower court concluded that Welch granted the railroad a right of way only; the easement having been abandoned at least since 1941, it reverted to appellees, Welch’s successors in title.

The issue presented for this Court’s consideration is as follows:

1. Was the trial judge in error in finding that the Agreement to Arbitrate between Robert Welch of Ben and the A & E and the subsequent Award created only an easement for railroad purposes?

Appellee raises an additional issue:

2. Was the prior decision of the Circuit Court for Anne Arundel County in McCain v. Whittington, supra, involving the identical award dispositive of this case by way of collateral estoppel or stare decisis?

The State Highway Administration bases its claim to a fee simple title to the strip of land by way of analogy to the inquisition procedure in use at the time by railroads. According to the State, the arbitration agreement and award was but another deedless method, much like the inquisition procedure in use at the time, for transferring land pursuant to the A & E’s eminent domain powers delegated to it by the Legislature in its charter. Acts of 1836, Ch. 298. The inquisition procedure to which the State refers can be found in the Baltimore and Ohio Railroad’s Charter, Acts of 1826, Ch. 123, which was incorporated by reference in Section 5 of the A & E Charter. In State Roads Commission v. Johnson, 222 Md. 493, 161 A. 2d 444 (1960), the Court of Appeals concisely described the inquisition procedure:

“Section 15 of the B. & O. Charter authorized the company, if it could not agree with the owner of any land wanted for the construction of the railroad for the ‘purchase or use and occupation of the same,’ to apply to a justice of the peace who ‘shall thereupon issue his warrant’ to the sheriff to summon a jury to meet on the land to fix the damages. The sheriff was directed to administer an oath, to each juror selected, to ‘impartially value the damages which the owner * * * will sustain by the use or occupation of the same required by the company’, and reduce their inquisition to writing. Section 15 provided that such inquisition ‘shall describe the property taken, or the bounds of the land condemned, and the quantity or duration of the interest in the same, valued for the company, and such valuation, when paid or tendered * * *, shall entitle the said company to the estate and interest in the same thus valued, as fully as if it had been conveyed by the owner * * * of the same ***.’” Id. at 496.

Although it was possible for the A & E to obtain fee simple title to property acquired through the inquisition procedure, id. at 498, that method was specifically authorized by the legislature, but there is no such statutory authorization for the passage of title through an arbitration agreement and award.

Acts of 1766, Ch. 14, § 2, which governed conveyances at the time the agreement and award were recorded, provides:

“no estate of inheritance or freehold, or declaration of or limitation of use, or any estate above seven years, shall pass or take effect unless the deed conveying the same shall be executed, acknowledged and recorded ...”

It is conceded that no deed to the right of way was ever recorded, but the State wishes to place in its stead the arbitration agreement and award. It has been said that,

“[W]hen the subject [of the award] is a freehold not transferrable without the solemnity of conveyance, an award declaring the right to property is void, because the necessary solemnity is wanting; and yet the right of a freehold is as submissible, as the property of chattels. The difference is, that in the latter case [award of a chattel] the property is determinable, in the former it is not; but a further act is requisite.” Drane v. Hodges, 1 H. & McH. 262, 270 (1768).

That further act we conclude to be the execution, acknowledgment and recordation of a deed in compliance with the Acts of 1766, Chapter 14, Section 2. See also, 5 Am.Jur.2d, § 55. The language of the arbitration agreement itself confirms this conclusion:

“... and upon the payment to ... Welch of the sum of money, (if any), which shall be so awarded, .. . Welch binds himself to convey to the company so much of the said land as may be required [for the building of the road] ...” (Emphasis added.)

In Davy’s Executors v. Faw, 7 Cranch (U. S.) 171, 3 L. Ed. 305 (1812), Chief Justice Marshall observed that where a dispute concerns title to land, the submission and award must be by deed. Similarly, cases from other states support the proposition that an award cannot operate to convey the legal title to real property, Fore v. Berry, 94 S. C. 71, 78 S. E. 706, 708 (1913); Cox v. Heuseman, 124 Va. 159, 97 S. E. 778, 780 (1919).

The trial court, however, did err in determining that the agreement and award granted an easement. The requirement of a deed in conformity with the Acts of 1766, Ch. 14, § 2, applies with equal force to a grant of an easement for railroad purposes. Dawson v. Western Md. R.R., 107 Md. 70, 93, 68 A. 301 (1907); see also Brehm v. Richards, 152 Md. 126, 136 A. 618 (1927). A right to an easement must be founded on a grant by deed, or upon prescription, for it is a permanent interest in another’s land, with a right of enjoyment.” Id. at 94 quoting Partridge v. Church, 39 Md. 631 (1874). Accordingly, we hold that the Arbitration Agreement and Award between Robert Welch of Ben and the Annapolis and Elkridge Railroad Company was ineffective to pass legal title, be it fee simple or an easement, to the strip of land previously occupied by the A & E Railroad.

Appellees argued below, and the trial judge agreed, that if anything had in fact been conveyed it was an easement which the parties agree has been abandoned. Having determined that the arbitration agreement and award was not a proper substitute for a deed, we deem it unnecessary to speculate as to what kind of interest Robert Welch might have conveyed.

Having decided on the merits in appellees’ favor, we see no need to consider whether collateral estoppel or stare decisis would control the outcome of this case.

Judgment affirmed.

Costs to be paid by appellant.

      . The decree was entered pursuant to Md. R. 329 (Special Case by Consent) (1978) and Cts. & Jud. Proc. Art. § 3-401, et seq. (1974 Repl. Vol.).

      . Title to two parcels was disputed below. Equity No. 24,810 was severed and remanded due to an error in the title examination.

      . Appellant, State Highway Administration, is the successor of the State Roads Commission.

      . Later codified as Annot. Code, Art. 21, § 1 (1951); presently codified as Real Prop. Art. § 3-101 (1974).

      . We note that no claim of title was made by prescription.


author: Thompson, J.,

text:
    JACK R. GROVER v. STATE OF MARYLAND
    [No. 784,
    September Term, 1978.]

      Decided March 12, 1979.

    The cause was submitted on briefs to Thompson, Wilner and Couch, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Thomas J. Saunders, Assistant Public Defender, for appellant.
    Submitted by Francis Bill Burch, Attorney General,

      Stephen Rosenbaum, Assistant Attorney General, Sandra A. O’Connor, State’s Attorney for Baltimore County, and Mark A. VanbavelAssistant State’s Attorney for Baltimore County, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Jack R. Grover, the appellant, was convicted by a jury in the Circuit Court for Baltimore County (Buchanan, J.), of felony murder and committed to the custody of the Division of Correction for the remainder of his natural life. On appeal he contends:

1. His trial counsel was ineffective because he failed to request an instruction regarding the law of voluntary intoxication.
2. The court erred in admitting the appellant’s statement into evidence.
3. The court erred by permitting the State to introduce the autopsy protocol without requiring the presence in court of a certain doctor who prepared a portion of the report.
4. The court erred in admitting certain photographs into evidence.

William Markwitz, a security guard for Baltimore City, was assigned to work at the Baltimore City Courthouse for the 3 P.M. to 11 P.M. shift on December 23, 1977. Between 7:30 and 8:00 P.M. that evening, a patient at Perry Point Hospital and an acquaintance of Markwitz, Vernon Stevens, stopped by to see Markwitz. Both Markwitz and Stevens consumed an unspecified quantity of alcoholic beverages at a Christmas party which was in progress at the courthouse. At 11 o’clock Stevens left with Markwitz in Markwitz’s car. They first drove to the old Post Office Building and picked up the appellant. They then continued on to the Perry Point Hospital.

Thomas Bowman, a nursing assistant at the Perry Point Hospital testified that Stevens arrived at the hospital at 12:30 A.M. December 24 and asked for a refill of his medicine. Bowman stated that Stevens explained that he had been robbed of his medicine while riding on the bus to Baltimore but that the robbers had not taken his money. After the refill was refused, Stevens left.

The appellant’s statement was introduced by the State. In it he admitted going with Markwitz and Stevens to Perry Point. On the way, he said that they had stopped at an isolated location and had gotten out of the car to urinate. Getting back in, the appellant said Stevens had closed the door on his fingers. In retaliation he said he had punched Stevens. Some time later, they again got out of the car and he hit Stevens a second time. The appellant said he got back in the car while Markwitz and Stevens remained outside the car. A few minutes later, Markwitz got back in and gave him $80 or $90. They then drove away leaving Stevens behind.

Around 4:00 P.M. December 24, 1977, Stevens’ body was found in a swamp about twenty feet off the road. No wallet or paper money was found on the body. Dr. Hormez Guard performed an autopsy and concluded that death had resulted from “multiple blunt force injuries to the head.”

Mary Mumford, a neighbor of Markwitz said she had talked to Markwitz and the appellant on December 26, 1977. They told her they had killed a man and asked her for a cleaning solution to remove blood from Markwitz’s car. Around 10:30 A.M. on March 1, 1978, the police arrested the appellant in an apartment in Baltimore City for the homicide and transported him to the Baltimore County Police Headquarters.

I Competency of Counsel

Throughout the trial, testimony was presented that Markwitz, Stevens and the appellant had consumed alcoholic beverages during the evening of the homicide. No specific quantities of consumption were mentioned and there was no direct testimony as to the degree of impairment the drinking had caused. No instructions to the jury regarding the law of voluntary intoxication were requested by the appellant’s trial counsel, no objections to the court’s failure to so instruct were noted and the appellant did not argue any intoxication defense to the jury.

On appeal the appellant notes he was convicted of felony murder and that the underlying felony was robbery. Then, relying on State v. Gover, 267 Md. 602, 298 A. 2d 378 (1973), he argues that if the jury had been instructed that intoxication could negate the crime of robbery, they might have found him not guilty of the underlying felony of robbery and accordingly would have also acquitted him of the felony murder. As his attorney did not raise the issue, he asserts that his' trial counsel was ineffective. The issue of competency of counsel was not raised or considered below and we will not consider it for the first time on appeal. Wilson v. State, 261 Md. 551, 276 A. 2d 214 (1971).

II Admission of Appellant’s Statement

Prior to the admission of the appellant’s statement into evidence, a suppression hearing was conducted to determine whether the statement had been voluntarily made. The appellant’s arrest occurred between 10:30 and 11:00 A.M. He was turned over to Detective Wysham at 1:00 P.M. Wysham testified that he read Miranda rights to the appellant and that at 1:10 P.M. the appellant initialed a card indicating he had received his Miranda rights. At the same time the appellant told Wysham that he was willing to give a statement.

At the hearing the appellant attacked the voluntariness of his statement. First, he claimed that he could not read the waiver because he didn’t have his glasses. Second, he claimed that he had been out drinking the night before, was “hung over” and had an “upset stomach” at the time the statement was given. In Dempsey v. State, 277 Md. 134, 151, 355 A. 2d 455 (1976), the Court of Appeals said:

“In Bryant [v. State, 229 Md. 531 (1962)], and Mundell [v. State, 244 Md. 91 (1966)], the Court set forth the general principle that evidence of mental impairment from drugs or alcohol does not per se render a confession involuntary, and that a court may admit a confession into evidence if it concludes that it was freely and voluntarily made ...

At the conclusion of the suppression hearing, in the instant case, the court said:

“I find that the Miranda safeguards were adequately given. And I also find, considering the totality of the evidence, that the State has met the burden by a preponderance of the evidence that his confession in fact was voluntary. Therefore I am going to overrule your motion as to the admissibility, since I think under the circumstances the statement is in fact admissible.”

Based on our independent review of the record, we concur with the court that the State met its burden of proving the voluntariness of the appellant’s waiver and find the appellant’s contention concerning voluntariness to be without merit.

Ill Autopsy Report

As his third contention, the appellant complains that the court erred in permitting the State to introduce the autopsy report because it contained a statement by Dr. Biagio Azzarelli who did not testify.

Dr. Hormez Guard, who was called by the State, explained that he was a medical examiner for the State; that his job was to investigate “all cases of sudden unnatural deaths and deaths resulting from violence and other problems”; that he was qualified for this work because he was a forensic pathologist; that he had performed an autopsy on Stevens; and that it was his conclusion that Stevens had “died from multiple blunt force injuries to the head.” Dr. Guard also testified that while he was qualified to study brain injuries, the medical examiner’s office did employ a neuropathologist, Dr. Biagio Azzarelli, to whom he generally referred brain injury matters. After eliciting from Dr. Guard that the autopsy report had been prepared in the ordinary course of his business as a medical examiner, the report was admitted. The appellant objected to the admission of the report because it contained a statement by Dr. Azzarelli.

The appellant, relying on Gregory v. State, 40 Md. App. 297, 391 A. 2d 437 (1978), contends that his Sixth Amendment right of confrontation was violated by the introduction of a document prepared in whole or in part by a party not present in court to testify. In Gregory v. State, supra, at 40 Md. App. 326 we said:

“We have here not the routine record of a person’s birth, or death, or body temperature, nor any other similar statement of fact or condition objectively ascertained, generally reliable and normally undisputed, and free from any motive to record falsely. We are dealing with the opinions of supposed expert witnesses, who, in this document, are giving testimony not only as to appellant’s mental condition, but, more importantly, as to whether or not he is criminally responsible. The document was offered without limitation as to purpose, and therefore for its truth. Thus, the jury was not merely advised of the fact that three staff psychiatrists had formed certain opinions; it was asked to accept as true — i.e., to believe — the opinion of these three physicians that appellant was ‘sane’ at the time he entered the bank.”

In Gregory v. State, supra, we noted that the field of forensic psychiatry was an inexact science and that differences of opinion frequently existed between experts in the field. This being so, we concluded that the opportunity to cross-examine a witness giving such opinion evidence could be of crucial importance. It should not be supposed that Gregory stands for the proposition that the confrontation clause of the constitution precludes the admission of all evidence under exceptions to the hearsay rule. Dr. Azzarelli’s statement in the autopsy report did not express any opinion. It merely stated his findings of the physical condition of the decedent’s brain. As such it falls under the category of a “fact or condition objectively ascertained,” and was probably admissible as a business record as provided by the Md. Code, Courts and Judicial Proceedings Article, Section 10-101. It was clearly admissible under Md. Code, Article 22, § 8 which has been construed by Benjamin v. Woodring, 268 Md. 593, 608, 303 A. 2d 779 (1973) to make autopsy reports admissible as to facts, but not as to opinions.

IV Admission of Photographs

The State presented two photographs of the victim taken at the scene where the body was recovered. The photographs were offered into evidence but, in response to the appellant’s objection, were not admitted at that time. At the close of the State’s case, the State again moved that the photographs be admitted and they were admitted without objection. The appellant now claims these photographs should not have been admitted because they were inflammatory. No objection was raised at the time they were admitted, thus the issue has not been preserved for appeal. Md. Rule 1085.

Judgment affirmed.

Appellant to pay the costs.

      . Markwitz was tried separately, convicted of first degree murder and committed to life imprisonment.

      . Dr. Azzarelli’s complete report reads as follows:
      “Brain Note
      “WEIGHT: 1710 grams
      “The dura mater and dural sinuses are not remarkable. The leptomeninges are thin and transparent. There is extensive accumulation of fresh subarachnoid hemorrhage involving the entire brain. The brain is symmetrical. The convolutions are moderately flattened with narrowing of the sulci. The ventricular system is of normal size and symmetrical. There is minimal accumulation of recent blood clots on the posterior horns of both lateral ventricles. The third ventricle is of normal size and symmetrical. There is bilateral uncal notching, but no true herniations. The tonsils are normal. On multiple coronal sections, there are recent contusion hemorrhages involving the anterior third of both gyri recti. Also, recent contusion hemorrhages are observed on the left superior parietal lobe, on the entire length of the occipital temporal convolution, on the inferior surface of the left occipital lobe, and also involving the calcarine cortex of the right occipital lobe. The white matter, basal ganglia, thalami, optic nerves and tracts are not remarkable. The midbrain, pons, cerebellum, and medulla oblongata are normal. The arteries of the Circle of Willis show no vascular malformations or arteriosclerosis. No non-traumatic lesions are observed through the entire brain.
      Biagio Azzarelli, M.D.”