author: Mason, J.,

text:
    JAMES HENRY GAYNOR v. STATE OF MARYLAND
    [No. 1716,
    September Term, 1980.]

      Decided February 3, 1982.

    The cause was submitted on briefs to Mason, Liss and Wilner, JJ.
    Submitted by Alan H. Murrell, Public Defender, and
      Michael R. Braudes, Assistant Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney General, Richard B. Rosenblatt, Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and James Maggio, Assistant State’s Attorney for Baltimore City, for appellee.
   Mason, J.,

delivered the opinion of the Court.

James Henry Gaynor, appellant, was convicted at a bench trial in the Criminal Court of Baltimore of robbery with a deadly weapon. He was committed to the custody of the Division of Correction for a term of five years. On appeal appellant contends, in essence, that the court erred in not granting his motion to suppress for the following reasons:

1. That his arrest was illegal because it was executed without a warrant and without exigent circumstances.

2. That his statement should have been suppressed because the conduct of the police between his arrest and confession deprived him of his right to assistance of counsel and privilege against self-incrimination.

The evidence adduced at the pretrial suppression hearing shows that at approximately 6:35 p.m. on 13 March 1980 a black man wearing a blue ski jacket robbed, at gunpoint, two employees of the Commercial Credit Company and seized $882.45 in cash and $1,988.00 in checks. Later, at approximately 10:30 p.m., the police received a telephone call from an employee of the Commercial Credit Company who stated that she had received a telephone call from another employee of the company, Gwendolyn Gaynor, who told her that her husband had committed the robbery. Soon thereafter Mrs. Gaynor, appellant’s wife, called the police and reported that her husband had committed the robbery and was in their basement apartment at 2418 Madison Avenue with the money. Based on this information Detective Kinkead of the Robbery Squad and other officers immediately proceeded to 2418 Madison Avenue. Upon arriving at the apartment the officers knocked on the front door for several minutes, but got no response. One of the officers went upstairs to another apartment to determine whether any of the neighbors knew the whereabouts of Mrs. Gaynor. In addition, the public telephone booth on the block was also checked. As a result of their knocking on the door for ten or fifteen minutes one of the small window panes on the door fell out and through this opening the officers could hear a small child crying. The officers announced their presence and inquired if Mr. or Mrs. Gaynor were at home. When no one answered Officer Kinkead reached inside the displaced window pane and unlatched the door. On entering the apartment the officers found an eight-year old female child sitting in a chair crying and two or more other children asleep in bed. After a short search of the premises the officers found appellant hiding in a corner with approximately $710.00 by his feet and a blue ski jacket nearby. Appellant was arrested and the money and ski jacket were seized. He was then transported to police headquarters where he confessed to the robbery.

I.

Appellant, in reliance on the companion cases of Payton v. New York and Riddick v. New York, 445 U.S. 573 (1980) argues that because his arrest was without a warrant and without exigent circumstances it was illegal, and that the physical evidence seized, i.e., the money and blue ski jacket, should have been suppressed. We disagree.

In Payton and Riddick, the Supreme Court held that a New York statute was unconstitutional which authorized police officers to enter a private residence without a warrant to make a routine felony arrest. The Court, however, specifically noted:

Although it is arguable that the warrantless entry to effect Payton’s arrest might have been justified by exigent circumstances, none of the New York courts relied on any such justification.
Accordingly, we have no occasion to consider the sort of emergency or dangerous situation, described in our cases as 'exigent circumstances’, that would justify a warrantless entry into a home for the purpose of either arrest or search. Id. at 583.

As Payton and Riddick make clear, the question of exigent circumstances was not presented or considered. Therefore, these cases are inapposite.

The State argues, and we agree, that inasmuch as there was ample probable cause and exigent circumstances to effect appellant’s arrest, the seizure of the money and ski jacket, which were in plain view, was legal. As to evidence of probable cause, an employee of Commercial Credit Company notified the police that another employee, Mrs. Gaynor, told her that her husband, the appellant, had committed the robbery. In addition, appellant’s wife telephoned the police and not only told them that appellant committed the robbery, but also told them where her husband could be located with the money.

As to exigent circumstances to justify a warrantless entry into a house to arrest a suspected felon, the Court of Appeals in Nilson v. State, 272 Md. 179 (1974) enumerated the following considerations material to assessing the existence of exigent circumstances:

1. That a grave offense is involved;
2. That the suspect is reasonably believed to be armed;
3. That there exists more than minimum probable cause based upon reasonably trustworthy information to believe that the suspect committed the crime involved;
4. That there is strong reason to believe that the suspect is in the premises being entered;
5. That there is a likelihood that the suspect will escape if not swiftly apprehended;
6. That reasonableness of police attitude and conduct is demonstrated through circumstances demonstrating a peaceable entry.

See also Cook v. State, 35 Md. App. 430 (1977), aff'd, 281 Md. 665 (1978).

We think it clear that virtually all of the factors enumerated in Nilson v. State, supra, are present in this case. The offense in question was a crime of violence; a weapon was used, and there was a reasonable probability to believe that appellant was still armed. There was a clear showing of probable cause that appellant had committed the crime, there was a strong reason to believe that he was on the premises, and there was the likelihood that he would escape if not swiftly apprehended. Moreover, before entering the apartment the police identified themselves, and their entry, under the circumstances, was made peaceably. When the officer was questioned regarding the reason he entered the apartment after he received no response from knocking on the door, he replied:

"... At that point fearing for the children’s safety as well as Mrs. Gaynor, being that she had called in on her husband and —
MR. DEISE: Objection.
THE COURT: Overruled.
THE WITNESS: And also knowing that the hold-up was committed with a handgun, we felt as though there may have been some danger or some harm may have come to Mrs. Gaynor or her children and so we reached inside — I actually reached inside and opened the door and we entered the apartment.”

Although a warrantless and nonconsensual entry into a suspect’s house to make a routine felony arrest is presumptively unreasonable, the warrantless entry into appellant’s apartment was justified because of the existence of probable cause and exigent circumstances. Accordingly, appellant’s motion to suppress the property seized as a result thereof was properly denied.

II.

After appellant was arrested and transported to police headquarters he was asked certain routine questions for booking purposes. Thereafter, Officer Kinkead began to read appellant his Miranda rights. Before the officer could complete the Miranda litany appellant interrupted him and stated that it was unnecessary "to go through all this.” Appellant then confessed to the robbery and told the officers where the stolen checks could be found. During cross-examination of Officer Kinkead the following colloquy occurred:

Q. [By defense counsel] As I understand you, Detective — one final question — you did not — Mr. Gaynor rather did not make his statement to you until you had advised him of the information you had received from his wife, is that correct?
A. [The witness] That’s correct. I believe it was in response to him saying how did you know I was there — something like that. I don’t recall exactly.
THE COURT: I was what?
THE WITNESS: Excuse me. I said — I believe what I said was in response to his saying, well, how did you know I was there. I don’t even recall his words verbatim, but I know that was even how I touched on that at all, because he had said something close to that and I just told him we got a call from your wife telling us you were there and that was it.
Q. And that’s when he admitted everything to you?
A. No, that’s not when he admitted everything to us.
Q. When did he admit everything to you?
A. Why?
Q. When?
A. When?
Q. Yes.
A. Shortly thereafter, I’d imagine. Sometime after that because it was the same night or same morning at that time.
Q. Do you recall what time it was when he actually admitted this to you — when he gave you the statement admitting to where the checks were and where the gun was?
A. I believe I told you before that — I’d say ten to fifteen minutes after when I got him in there — after 12:00. I began to read the rights and at that time he told me that it’s no need for that. So, you can approximate that it was anywhere from ten to fifteen minutes thereafter.

Relying on Brewer v. Williams, 430 U.S. 387 (1977) appellant argues:

Similarly, in the present case Kinkead by telling appellant in effect that the State had overwhelming evidence against him effectively informed him that he had nothing to lose by confessing. This impression was certainly not weakened by then putting appellant through 'routine booking procedures’, also prior to the attempted delivery of Miranda warnings. It is not surprising that appellant under these circumstances shrugged off Kinkead’s attempt to read him the Miranda form and said in effect 'Let’s get it over with.’
In sum, appellant submits that the detective’s statement amounted to custodial interrogation and that the admission of the resulting confession violated his right to counsel and privilege against self-incrimination.

Appellant’s reliance on Brewer v. Williams, supra, is completely misplaced. There, the defendant had obtained an attorney who advised him to remain silent and who had also advised the police not to interrogate him regarding the disappearance of a 10 year old child. Notwithstanding this advice, the police deliberately elicited incriminating evidence from the defendant by urging him to point out the location of the girl’s body because adverse weather conditions would make it impossible to find it at a later date, and because her parents were entitled to give her a "Christian burial.” In the present case appellant’s confession was not the product of interrogation nor was his right to counsel or his privilege against self-incrimination violated. The fact that the police, in response to appellant’s inquiry, told him that they knew where he was because they had received a telephone call from his wife informing them of his whereabouts, was not tantamount to, nor the functional equivalent of, interrogation within the meaning of Miranda. See Edwards v. Arizona, 451 U.S. 477, 68 L.Ed. 2d 378 (1981); Rhode Island v. Innis, 446 U.S. 291 (1980); Vines v. State, 285 Md. 369 (1979); Bryant v. State, 49 Md. App. 72 (1981). Assuming arguendo, however, this amounts to an interrogation, we find the appellant has waived his Miranda rights. See North Carolina v. Butler, 441 U.S. 369, 60 L.Ed. 2d 286 (1979). For the reasons herein stated we affirm.

Judgment affirmed.

Costs to be paid by appellant.


source: Caselaw Access Project

author: Weant, J.,

license: Public Domain

text:
    SUPERVISOR OF ASSESSMENTS OF HARFORD COUNTY v. LOUIS J. OTREMBA
    [No. 335,
    September Term, 1981.]

      Decided February 3, 1982.

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

      Peter W. Taliaferro, Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellant.
    No brief or appearance by appellee.
   Weant, J.,

delivered the opinion of the Court.

Justice Sutherland once said "[t]he legal right of a taxpayer to decrease the amount of what otherwise would be his taxes, or altogether avoid them, by means which the law permits, cannot be doubted.” This case demonstrates one taxpayer’s unsuccessful effort to take advantage of this right and to achieve a reduction in his Harford County real property taxes.

Louis J. Otremba, appellant, was the owner of a single family dwelling at 403 Dunfield Court in Joppatown, Maryland. During the period in question, the property was not occupied by the owner but was inhabited by Mr. Otremba’s daughter and son-in-law; for that privilege they kept up the property and made the mortgage payments. During the course of his endeavor to lighten his tax load the taxpayer became acquainted with the homestead exemption which was available to a single-family or two-family owner-occupied residential dwelling; this amounted to a 5 percent decrease in assessment. Unfortunately, he was also made aware of the unhappy fact that his property was not qualified for this preferential treatment in that it was not owner-occupied.

Feeling discriminated against by this ruling of the Supervisor of Assessments of Harford County and by the Maryland Tax Court, Mr. Otremba appealed to the Circuit Court for Harford County. There he found a more sympathetic ear in the trial judge who declared Md. Ann. Code art. 81, § 14 (b) (1) (iii), which was enacted by Chapter 175 of the 1978 Laws of Maryland, to be unconstitutional.

It is from this ruling that the Supervisor of Assessments of Harford County has appealed, the only issue being the constitutionality of the statute in question which reads: "There is a special allowance equal to 5 percent of the current value of the homestead property in recognition of the unprecedented increase in the value of homestead property due to inflation.”

In finding in favor of Mr. Otremba the Circuit Court for Harford County found that § 14 (b) (1) (iii) violated the uniform provisions of Article 15 of the Declaration of Rights of the Maryland Constitution which reads as follows:

That the levying of taxes by the poll is grievous and oppressive and ought to be prohibited; that paupers ought not to be assessed for the support of the government; that the General Assembly shall, by uniform rules, provide for the separate assessment, classification and sub-classification of land, improvements on land and personal property, as it may deem proper; and all taxes thereafter provided to be levied by the State for the support of the general State Government, and by the Counties and by the City of Baltimore for their respective purposes, shall be uniform within each class or sub-class of land, improvements on land and personal property which the respective taxing powers may have directed to be subjected to the tax levy; yet fines, duties or taxes may properly and justly be imposed, or laid with a political view for the good government and benefit of the community.

However, his constitutional attack on § 14 (b) (1) (iii) seems to be that there was no rational basis for the requirement that the property be owner-occupied and that this distinction was therefore an equal protection violation. Whether the court’s decision was based on the uniformity requirement of Article 15 of the Maryland Declaration of Rights or on an equal protection basis, we think the court erred.

We consider first the trial court’s finding that the homestead provision somehow violates the uniformity provision of Article 15. However, this uniformity requirement pertains to taxation within a sub-classification and we are directed to no such violation in this case. This new sub-classification is simply defined as being a single-family or two-family owner-occupied residential dwelling. As homestead property it is provided a special allowance. This allowance of 5 percent applies to all property qualifying for the new sub-classification. In our view it satisfies the uniform tax treatment mandated by Article 15 in that the assessment of each homestead, both state and local, within each tax district, will bear the same relationship to the market value.

On the other hand, if the court’s constitutional attack on Section 14 (b) (1) (iii) is, as it seems to be, based on the assertion that there is no rational basis for the requirement that the property be owner-occupied and is therefore unlawful, it has raised an equal protection problem under the Fourteenth Amendment to the United States Constitution and Article 24 (formerly Article 23) of the Maryland Declaration of Rights. Hence the validity of the sub-classification is questioned.

In a case strikingly similar to the matter at hand, Howell v. Malone, 388 So. 2d 908 (1980), the Supreme Court of Alabama applied the equal protection standard of the Fourteenth Amendment of the Constitution of the United States to a statute similar to Maryland’s; both states have laws which provide for special tax consideration of "single-family owner-occupied residential property.” The Alabama court concluded that there was no unconstitutionality in the statute creating a distinction between single-family owner-occupied residential property and all other residential property for ad valorem taxation purposes. In so doing the Alabama court borrowed from the case of Allied Stores of Ohio v. Bowers, 358 U.S. 522 (1959), by quoting the United States Supreme Court, when it said, in speaking of the equal protection clause, that it "imposes no iron rule on equality, prohibiting the flexibility and variety that are appropriate to reasonable schemes to state taxation.” At page 911 of Howell v. Malone, supra, the Alabama court stated: "In order for a state taxing classification to withstand a challenge on constitutional grounds under the equal protection clause of the fourteenth amendment, there must be a 'rational basis’ for the possible discriminatory effect of that tax.” The court found that the taxing scheme of Alabama which placed a greater tax burden on those using their residential property for income producing purposes could be justified on the "rational” basis that "the government is either providing more governmental services, on the one hand, or, on the other, is interested in relieving the tax burden on specified property owners to further some social or economic policy.” Id. at 914.

The Court of Appeals of Maryland in National Can Corporation v. State Tax Commission, 220 Md. 418, 153 A.2d 287 (1959), appeal dismissed, 361 U.S. 534 (1960), also relied extensively on Allied Stores, supra, including the statement "[t]hat a statute may discriminate in favor of a certain class does not render it arbitrary if the discrimination is founded upon a reasonable distinction, or difference in state policy.” 220 Md. at 434, 153 A.2d at 297. The Maryland court also said at page 432 of National Can, supra, 153 A.2d at 295, that "[i]t is not incumbent upon the Legislature to state its reasons, motives or policies for adopting a tax classification ... insofar as the Equal Protection Clause is concerned; but if it does so, State action may be tested solely on the basis of the purpose declared.” And in the same case we find this comment at page 435, 153 A.2d 297:

In the present case we think, as we have indicated above, that a state of facts can reasonably be conceived which would support the classification, and we, therefore, find no violation of either Article 15 of the Maryland Declaration of Rights or of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States.

In our case § 14 (b) (1) (iii) gave us the lawmaker’s rationale as being "in recognition of the unprecedented increase in the value of homestead property due to inflation.” Contemplation of the economic policy posed by the legislature’s declaration concerning inflation leads us to a "reasonable distinction” or "rational basis” for the law. The blow of inflation on homestead property cannot be softened through an increase of rents or profits as can other property; hence the legislative body has proposed aid to this class through a 5 percent decrease in assessment to help to provide a place to live for the owner and his family. The record is completely devoid of any indication that the stated basis for this special allowance is not reasonable. In fact, National Can, supra, seems to have had little trouble in holding that an allowance for inflation may be applied as between different classifications.

Finally, we call attention to the case of Pitts v. State Board of Examiners, 222 Md. 224, 160 A.2d 200 (1960). There in the consideration of the constitutionality of an act of the general assembly under the fourteenth amendment and the Maryland Declaration of Rights, the Court had this to say: "The adequacy of the legislative scheme is for the Legislature to determine, and there is a strong presumption in favor of constitutionality. Reasonable doubt in its favor is enough to sustain it.” Id. at 227, 160 A.2d at 201. In our case we think that there is more than reasonable doubt in favor of the constitutionality of the statute in question.

Consequently, we hold that Article 81, Section 14 (b) (1) (iii) withstands both the uniformity attack and the equal protection assault and is therefore constitutional.

Reversed and remanded with instructions to the Circuit Court for Harford County to affirm the decree of the Maryland Tax Court in this matter.

Costs to be paid by the appellee.

      . Gregory v. Helvering, 293 U.S. 465, 469 (1935).

      . Md. Ann. Code art. 81, § 14A(a) (1957, 1980 Repl. Vol.).


author: Moore, J.,

text:
    JOHN B. SHEEHAN et ux. v. ANTHONY POOLS, A DIVISION OF ANTHONY INDUSTRIES, INC.
    [No. 394,
    September Term, 1981.]

      Decided February 3, 1982.

      The cause was argued before Moylan, Moore and Bishop, JJ.

      Walter J. Murphy, Jr., with whom were Welch, Murphy & Welch on the brief, for appellants.

      John J. O’Neill, Jr., with whom were Ford & O’Neill on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

In this products liability case, the host at a private party in Montgomery County fell off the diving board of his swimming pool onto the concrete coping of the alcove from which the board projected. A suit by the host and his wife against the swimming pool company ended with a defendant’s verdict after a three-day jury trial. The central question on appeal, among two other issues, is whether the trial court erred in refusing to instruct that inadvertent or careless use of the board was not a defense. We find reversible error and remand for a new trial.

I

In the spring of 1976, John B. Sheehan and his wife, appellants, contracted with Anthony Pools, a division of Anthony Industries, Inc., for the construction of a Grecian-type swimming pool, equipped with diving board, at their home in Rockville, Maryland. The pool was thereafter built and, on the evening of August 21, 1976, the Sheehans invited a number of guests to their home. After a while, several guests and the host decided to have a swim. Mr. Sheehan had used the pool once before, but not the diving board. On this occasion, he took to the board but fell off the right side and landed on the concrete apron, sustaining severe injuries. The configuration of the pool, with the six-foot diving board, reproduced below, is typical of several Anthony Pool designs, the deep end of the pool curving around the diving board rather than being at a straight angle to it:

The Sheehans’ declaration alleged negligence, breach of warranty and strict liability. Appellants took voluntary nonsuit on the negligence count which alleged that "the diving board was not properly provided with a non-skid surface and the shape of the coping in the area of the diving board was negligently designed.” The case proceeded on the counts alleging strict liability ("the defendant sold ... a defective pool and diving board which was unreasonably dangerous ...”) and breach of an express warranty (that the "diving board was protected by non-skid materials over its entire surface”), and "warranties implied in law.”

Appellants’ witnesses at trial included an individual who was permitted to testify as an expert "on the safe use of diving boards.” His conclusion was:

"That how it was being used with this pool with that five-foot aid used at the end of the deep end and not having the nonslip material leased out to the edges or rolled over slightly on the edges for the entire length of the board, that it was a hazardous board to have in the application like that.” [sic]

At the close of appellants’ case, the court directed a verdict for the defendant on the count alleging breach of warranty, ruling that the contract negated any implied warranties. Before the case went to the jury on the strict liability count, the court rejected both appellee’s requested instruction that contributory negligence was a defense and appellants’ requested instruction that inadvertence in the use of the diving board by Mr. Sheehan was not a defense.

In its instructions on strict liability, the court stated that there were two distinct defects for the jury to consider: "Number one, that the diving board was defective because the non-skid material didn’t extend over to the edge of the diving board, and secondly, that the pool was designed in the diving board area in a fashion so that it was defective.”

In their appeal following the jury’s verdict for the defendant on the strict liability count, the Sheehans assign three grounds of error: (1) That the court below should not have granted a directed verdict on the breach of warranty count; (2) that the court erred in refusing to grant an instruction that "inadvertence or mere negligence in the use by a consumer of a product is not a defense”; and (3) that appellants’ counsel was improperly prevented in final argument from referring to an alleged characterization by the defendant of the diving board as "experimental.”

II

The warranty allegedly breached, according to the Sheehans, was that the diving board was covered with non-skid materials. This was claimed to be express or, at all events, implied in law. The contract between the parties, entitled "Retail Installment Contract” contained a section captioned, "Guarantees and Warranties,” which provided inter alia that "non-pool structure items, including all pool equipment... carry a one-year warranty against defects in workmanship and materials.” Beneath the section, in capital letters appeared the following disclaimer:

"THE EXPRESS WARRANTIES CONTAINED HEREIN ARE IN LIEU OF ANY OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING (WHERE PERMITTED BY LAW) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS, AND OF ANY OTHER OBLIGATION OR LIABILITY, INCLUDING NEGLIGENCE ON THE PART OF ANTHONY

In directing a verdict for Anthony on the warranty count, the court below stated: "The contract takes care of the warranty aspect of the case.”

The court appears to have overlooked the applicability vel non of the Maryland Uniform Commercial Code relating to exclusions of implied warranties. Md.Com.L. Code §§ 2-316 and 2-316.1 (1975 Repl. Vol.). While § 2-316 (2) permits generally the exclusion or modification of implied warranties of merchantability or fitness, § 2-316.1 (1) specifically provides that § 2-316 does not apply "to sales of consumer goods, as defined by § 9-109, services or both”; and § 2-316.1 (2) goes on to declare such exclusions "unenforceable.” That subsection reads as follows:

"(2) Any oral or written language used by a seller of consumer goods and services, which attempts to exclude or modify any implied warranties of merchantability and fitness for a particular purpose or to exclude or modify the consumer’s remedies for breach of those warranties, is unenforceable. However, the seller may recover from the manufacturer any damages resulting from breach of the implied warranty of merchantability or fitness for a particular purpose.”

As Judge Wilner stated for this Court in Maryland Independent Automobile Dealers Association, Inc. v. Administrator, Motor Vehicle Administration, 41 Md. App. 7, 11, 394 A.2d 820 (1978), the above-quoted section "makes absolutely clear, without condition or equivocation, that any attempt by the seller ... to modify or exclude implied warranties is unenforceable. As between seller and buyer, there are no 'ifs, ands, or buts’.”

Attempting to support the trial court’s ruling, Anthony Pools contends in its brief that subsection (2) "relates to a seller and not, as in this situation, a manufacturer.” (Emphasis in original). What this overlooks is that the Code defines "seller” as used in §§ 2-314 through 2-318 to include the manufacturer, distributor, dealer, wholesaler or other middleman, or the retailer. § 2-314 (2). Here, Anthony Pools is a division of the corporate entity, Anthony Industries, Inc. Thus, the appellee is, in fact, both manufacturer and seller.

Finally, the swimming pool package purchased by the Sheehans constitutes "consumer goods” which are defined in § 9-109 as used or bought for use primarily for personal, family or household purposes. The definition is certainly broad enough to encompass a backyard swimming pool. Donnelly v. Mustang Pools, Inc., 374 N.Y.S.2d 967 (1975) (agreement for construction of swimming pool at residence a "consumer transaction” within meaning of a statute defining such transaction as one for personal, family or household purposes.) Because the implied warranties of merchantability and fitness for purpose may not be disclaimed by a seller of consumer goods, the court erred in directing a verdict for the defendant.

Ill

The doctrine of strict liability, an enlightened social policy, came into being in § 402A of the Restatement (Second) of Torts (1965) and was adopted in Maryland in 1976. Phipps v. General Motors Corp., 278 Md. 337, 363 A.2d 955. It subjects to liability one who sells a product in a defective condition and unreasonably dangerous to the user, if the product is used without substantial change. The defect can be of manufacture or design but "in some circumstances the question of whether a particular design is defective may depend upon a balancing of the utility of the design and other factors against the magnitude of that risk.” Id. at 348.

In the instant appeal, the defects alleged were in design: (a) that the diving board was defective because the non-skid material covering the board did not extend over the edges; and (b) that the pool and diving board area were defectively designed because a diver who slipped off the side of the board would fall on the concrete coping.

The trial court carefully instructed members of the jury that their inquiry "is directed not to the care that the manufacturer used in designing this particular pool and board, but your inquiry is rather directed to the pool and diving board itself.” The court continued:

"In this case liability is based on the existence of a defect that makes a product unreasonably dangerous for its intended use. As to this requirement of unreasonably dangerous, the Court instructs you that the product must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who utilizes the product with the ordinary knowledge common to its characteristics.
"To satisfy the unreasonably dangerous requirement, the Plaintiffts] in this case, Mr. and Mrs. Sheehan, must prove not only that the pool and/or the diving board were dangerous to a degree beyond that which Mr. Sheehan could expect, but further that it would be considered dangerous to such a degree by an ordinary consumer.”

The instructions were silent, however, with reference to the manner in which the injured plaintiff used the board and the consequences thereof. Although, as indicated earlier, the trial judge denied the request of Anthony Pools for an instruction on contributory negligence — and properly so — he also declined Mr. Sheehan’s requested instruction that mere inadvertence on his part would not preclude recovery. In closing argument, however, Anthony Pools’ counsel was permitted, over objection, to argue as follows:

"You must find that this defect proximately caused the accident. The clear testimony here from Mr. Weiner and using your common sense is that if someone steps on the board with about an inch of their foot on it, they will fall off the side. That was the proximate cause, the way the board was used, not the design of the board. I am not willing to concede for a moment that there is anything defective about the board when you use the standards which are customary in the industry and any governmental regulations. Even if you feel there was, I ask you to find that the proximate cause was the way Mr. Sheehan used it, not the way it was designed.
Mr. Kane, I think, added another element to this as did Mrs. Christenat. Mr. Kane said he saw the witness taking his arms back. That describes to me what a witness does in a running event. What he did is he turned the corner, he got ready, and just went right off the side, and no other design of this board would have prevented that unless perhaps a railing along the side of the board.
He had a little discrepancy in his testimony. He at first said on direct that he didn’t teeter. Then I read to him from his deposition where he said he teetered, and I asked him what that meant, and I said, did it mean this, and he just threw his arms up and went off.
Mrs. Christenat said that Mr. Sheehan turned and talked to someone. That isn’t my testimony, it is their witness. She said he turned to talk to someone on the right of the pool. That again shows that he wasn’t looking where he was going.” (Emphasis added.)

We think there is substance to the Sheehans’ claim that the jury was left without guidance on a point of critical importance, i.e., the type of conduct on the part of the consumer in the use of the product which could or could not afford a valid defense to the seller; the prejudicial effect of this omission was compounded when Anthony Pools’ counsel was permitted to argue contributory negligence on the part of Mr. Sheehan under the guise of proximate cause.

To begin with, Comment n. to § 402A explicitly states that the contributory negligence of the consumer is not a defense in strict liability cases

"when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence'. On the other hand the form of contributory negligence which consists in voluntarily and unreasonably proceeding to encounter a known danger, and commonly passes under the name of assumption of risk, is a defense under this Section as in other cases of strict liability.” (Emphasis added.)

Comment n. then concludes:

"If the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery.” (Emphasis added.)

The Restatement definition has been followed in numerous appellate opinions. In a leading case, Cepeda v. Cumberland Engineering Co., Inc., 386 A.2d 816 (N.J.1978), the court stated with respect to Comment n.:

"However, it is implicit in Comment n. and the generality of the cases that only a limited range of a plaintiffs conduct not contributory negligence in the sense of mere carelessness or inadvertence can be a defense to an action for strict liability in tort for injuries sustained as the result of a product defect, particularly if the defect is one of unsafe design. See Bachner v. Pearson, 479 P.2d 319, 329-330 (Alas.Sup.Ct.1970); Kenner v. Dayton Electric Manufacturing Company, 445 S.W.2d 362, 365 (Mo.Sup.Ct.1969); Collins v. B.F.Goodrich Co., 558 F.2d 908, 911 (8 Cir.1977); Williams v. Brown Manufacturing Company, 45 Ill.2d 418, 261 N.E.2d 305 (Sup.Ct.1970). We agree with the statement in the latter case that acceptance of'ordinary’ contributory negligence as a defense in actions for strict liability in tort would be incompatible with the policy considerations which led to the adoption of strict tort liability in the first instance. 261 N.E.2d at 310. The manufacturer’s duty is imposed precisely to avert foreseeable inadvertent injury to a user of a product. Bexiga v. Havir Manufacturing Corp., supra, 60 N.J. at 412, 290 A.2d 281. Thus, in the case at bar, plaintiffs carelessness, if any, in getting his hand caught in the plastic strands is not a defense, and so much of the trial court charge on contributory negligence in the present case which could have been otherwise understood by the jury should not be repeated at the retrial.” (Emphasis added.)

Id. at 832.

In Elder v. Crawley Book Machinery Co., 441 F.2d 771 (3d Cir. 1971), where the plaintiff sued in strict liability after losing two fingers in a bookmaking machine, the Court was called upon to determine whether the injured worker had assumed the risk. Affirming a judgment for the plaintiff, the Court stated:

"We conclude, therefore, that if the plaintiffs fingers became placed in a dangerous position in the machine by reason of inadvertence, momentary inattention or diversion of attention, that this would not amount to assumption of the risk.

In the instant case, it is our view that while the trial court was eminently correct in rejecting the defendant’s request for a contributory negligence instruction, the matter should not have ended there. On the basis of the facts involved and of the Sheehans’ specific request, an instruction should have been granted that Mr. Sheehan’s inadvertent or careless use of the diving board and pool would not bar his recovery. On the other hand, giving such an instruction would also have required an appropriate instruction on assumption of risk, i.e., that the defendant was entitled to prevail if Mr. Sheehan had discovered the defect, was aware of the danger, and then proceeded unreasonably to use the diving board and pool.

As stated in Luque v. McLean, 501 P.2d 1163, 1169 (Cal.1972):

"Ordinary contributory negligence does not bar recovery in a strict liability action. 'The only form of plaintiffs negligence that is a defense to strict liability is that which consists in voluntarily and unreasonably proceeding to encounter a known danger, more commonly referred to as assumption of risk. For such a defense to arise, the user or consumer must become aware of the defect and danger and still proceed unreasonably to make use of the product.’ ”

Here, the trial court’s silence on these two aspects of the plaintiff s conduct left the jury bereft of essential guidance and constituted reversible error.

IV

Finally, we consider the court’s refusal to permit closing argument on the manufacture of the diving board. We observe that appellants failed during the course of the trial to link the diving board from which Mr. Sheehan fell with that described in appellee’s manufacturing documents, admitted into evidence as "experimental.” Therefore, appellants could not properly argue that the "defect” stemmed from the experimental nature of the board. There was no error.

Judgment reversed; cause remanded for a new trial in accordance with this opinion; costs to be paid by appellee.

      . In apparent recognition that the expert’s qualifications were far from overwhelming, the court observed: “I will let him testify and I will have to explain about expert testimony in my instructions.”

      . We assume the expert witness’ conclusion to be that the board’s lacks of non-skid material and its position in the pool alcove were "hazardous.”

      . The appellants’ declaration alleges that Anthony Pools’ literature, which induced Mr. Sheehan to purchase the diving board, stated that it was protected by non-skid materials over its entire surface. This "warranty” was breached, the declaration adds, because the board as supplied was not properly and completely covered with non-skid material. However, neither the contract of sale nor the literature in the record contains such language. The contract is silent as to the board and the literature states that non-skid material is molded into the board. The court may have been referring to this claimed "express warranty” when it said that the contract disclaimer takes care of the warranty count.

      . As Judge McWilliams observed in Telak v. Maszczenski, 248 Md. 476, 479, 237 A.2d 434 (1968), "There was a time when swimming pools were appurtenances of the well-to-do. During the past 10 years, however, private residential pools have become both inexpensive and commonplace.” We take judicial notice that in the 14 years since Telak, private residential pools have become as commonplace as multi-car garages.

      . Section 402A is entitled, "Special Liability of Seller of Product for Physical Harm to User or Consumer” and reads as follows:
      "(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
      (a) the seller is engaged in the business of selling such a product, and
      (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
      (2) The rule stated in Subsection (1) applies although
      (a) the seller has exercised all possible care in the preparation and sale of his product, and
      (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”

      . Appellants allude to this risk/utility analysis in their brief, contending that "the cost of extending non-skid covering on the board can hardly be balanced against the danger of slipping off a diving board.” No mention of this point was made at trial. In any case, such balancing involves seven factors, as delineated by Dean John W. Wade in his article, "On the Nature of Strict Tort Liability for Products,” 44 Miss.L.J. 825, 837-8 (1973):
      (1) The usefulness and desirability of the product — its utility to the user and to the public as a whole.
      '(2) The safety aspects of the product — the likelihood that it will cause injury, and the probable seriousness of the injury.

        (3) The availability of a substitute product which would meet the same need and not be as unsafe.
      (4) The manufacturer’s ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility.
      (5) The user’s ability to avoid danger by the exercise of care in the use of the product.
      (6) The user’s anticipated awareness of the dangers inherent in the product and their avoidability, because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions.
      (7) The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance.
      These factors rationalize what most courts do in deciding design cases, although not all the factors are necessarily weighed nor is the risk/utility analysis denominated as such. See Cepeda v. Cumberland Engineering Co., Inc., 386 A.2d 816 (N.J.1978) and cases cited at 827.

      . Ordinary contributory negligence is no bar to recovery in a strict liability case. Khoder v. AMF, Inc., 539 F.2d 1078 (5th Cir. 1976). This case involved an allegation of negligence in the plaintiffs assembly of a bicycle. The court found error in an instruction that contributory negligence, defined as lack of ordinary care, is a defense to a strict liability action. Contra, Cyr v. B. Offen & Co., Inc., 501 F.2d 1145 (1st Cir. 1974), relying on New Hampshire’s refusal to adopt Comment n. to the Restatement (Second) Torts, § 402A (1965).

      . Cepeda was overruled on a single ground, not here pertinent, in Suter v. San Angelo Foundry & Machine Co., 406 A.2d 140 (N.J.1979), but see, Ferrigno v. Eli Lilly & Co., 420 A.2d 1305 (N.J.Super.1980). In Suter, the Supreme Court of New Jersey adhered to a prior holding that, where an employee is injured in an industrial accident due to a defect in a machine being used for its intended or foreseeable purposes, contributory negligence is not a viable defense. 406 A.2d at 153. Ferrigno explains that only one aspect of § 402A has been rejected in New Jersey: "In Suter, supra, the Supreme Court rejected the 'unreasonably dangerous’ qualification of defective conditions.” 420 A.2d at 1317.

      . Refusal to instruct that contributory negligence is not a defense in strict liability required a reversal in Young v. Up-Right Scaffolds, Inc., 637 F.2d 810 (D.C.C.1980). When the jury informed the judge that both sides were at fault, the judge told the jury to find for the defendant. "This was reversible error. The jury did not mention what kind of fault it had found on either side — and should have been told that negligence on the part of Young would not automatically bar his recovery.” Id. at 814.

      . The conduct that may amount to assumption of the risk in strict liability actions is demonstrated in Campbell v. Nordco Products, 629 F.2d 1258 (7th Cir. 1980), where the decedent knew both that operating a lift truck above 12 feet was unreasonably dangerous without stabilizing outriggers and that the limit switch installed to prevent such operation was broken. The court held that whether the decedent had assumed the risk was a jury question; judgment was rendered for the defendants. The court stated that the cognitive elements of this affirmative defense, see n.ll, infra, are measured by a subjective standard, i.e., did this plaintiff knowingly, voluntarily, and unreasonably encounter a known hazard. Id. at 1262. While this subjective state of the plaintiff’s mind may be inferred from extrinsic circumstances, the standard is directly opposite to the objective standard found in contributory negligence — the reasonably prudent person. See generally, Noel, Defective Products: Abnormal Use, Contributory Negligence, and Assumption of the Risk, 25 Vand.L.Rev. 93, 95-105 (1972).

      . Adoption of strict liability in tort has resulted in some semantic confusion with respect to contributory negligence. While ordinary contributory negligence is no defense, as it is in pure negligence actions, that type of plaintiffs conduct which constitutes assumption of the risk is a defense. The three subjective elements that the defendant must show are: 1) the plaintiff actually knew and appreciated the particular risk or danger created by the defect; 2) the plaintiff voluntarily encountered the risk while realizing the danger; and 3) the plaintiffs decision to encounter the known risk was unreasonable. Johnson v. Clark Equipment Co., 547 P.2d 132 (Ore. 1976). See also, McGoldrick v. Porter Cable Tools, 110 Cal.Rptr. 481 (Ct.App.1973) (Error in instruction on contributory negligence and assumption of the risk.) See generally, Frumer & Friedman, 2 Products Liability, § 16A[5][fj, Contributory Negligence; Assumption of Risk.

      "The somewhat comparable defense where breach of implied warranty is claimed is labeled abuse of product or misuse of product.” Belfry v. Anthony Pools, Inc., 262 N.W.2d 909 (Ct.App.Mich.1978). Compare, Westerman v. Sears, Roebuck & Co., 577 F.2d 873 (5th Cir.1978).


text:
    JAMES ALEXANDER MAYES v. STATE OF MARYLAND
    [No. 78,
    September Term, 1981.]

      Decided February 4, 1982.

    The cause was submitted on briefs to Mason, Liss and Wilner, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Bradford C. Peabody, Assistant Public Defender, for appellant.

      Submitted by Stephen H. Sachs, Attorney General, Stephen Rosenbaum, Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Richard Berger, Assistant State’s Attorney for Baltimore City, for appellee.
   Mason, J.,

delivered the opinion of the Court.

James Alexander Mayes, appellant, was convicted at a bench trial in the Criminal Court of Baltimore of first degree rape. He was committed to the custody of the Division of Correction for thirty years. On appeal he contends:

1. That the court erred in failing to comply with the provisions of Maryland Rule 735 d. regarding waiver of a jury trial.

2. That the evidence was insufficient to sustain his conviction of first degree rape.

I.

Regarding Maryland Rule 735 d., the following colloquy occurred prior to trial:

THE COURT: So that at this time we are going to proceed with the trial. You have a right to have your case heard by a jury of twelve people selected at random, that is people from all over the community, and if you want to have a jury trial, those twelve jurors would have to decide, beyond a reasonable doubt, whether you are in fact guilty of committing the crime with which you are charged, and number two, whether or not you are guilty or not guilty by reason of insanity. That is whether you are responsible for committing the act. If they find you committed it because of your mental condition, do you understand what I am saying?
MR. MAYES: Yes, ma’am.
THE COURT: Now, if you wish to do so you may give up your right to be tried by a jury and submit to a determination by the Court, both as to the factual guilt and as to your sanity at the time of the alleged offense. And this is the time when you must make that choice whether you want a jury trial or whether you want to be tried by the Court.
MR. MAYES: I want to be tried by the Court.
MR. ELLIS [Counsel for appellant]: Yes, Mr. Mayes you understand that as the Judge explained to you you do have a right to a jury trial.
THE COURT: Mr. Ellis I have explained it to him. I am satisfied that Mr. Mayes understood what I just told him. I am also satisfied that his very competent counsel yourself, has discussed this matter with him at great length.

Relying on Countess v. State, 286 Md. 444, 408 A.2d 711 (1979) and State v. Ricketts, 290 Md. 287, 429 A.2d 1025 (1981), appellant argues that Maryland Rule 735 d. was not complied with because he was not advised that the jury’s verdict had to be unanimous. In holding that the record must show that the defendant has a basic understanding of the nature of a jury trial, the Court of Appeals in Countess said:

We think that this understanding is generally satisfied when the defendant entitled to a jury trial knows that he has the right to be tried by a jury of twelve persons or by the court without a jury; that whether trial is by a jury or by the court, his guilt must be found to be beyond a reasonable doubt; that in a jury trial all 12 jurors must agree that he is so guilty but in a court trial the judge may so find. Id. at 455.

In the instant case appellant was advised, among other things, that a jury consisted of twelve persons and "those twelve jurors would have to decide beyond a reasonable doubt whether you are in fact guilty of committing the crime with which you are charged.” We find no difference in the meaning of what the trial court advised appellant and what was said in Countess, i.e., "that in a jury trial all twelve jurors must agree that he is so guilty.” Inasmuch as a verbatim recital of the language contained in Countess is neither required nor necessary to convey to a defendant that a jury’s verdict of guilty must be unanimous, we think the language used by the lower court was in compliance with Maryland Rule 735 d. as interpreted by Ricketts and Countess.

II.

As to appellant’s argument that the evidence was insufficient to support his conviction of first degree rape, a review of the record discloses the following facts:

At approximately 7:00 a.m., on 18 September 1978 the victim, a thirty-three year old mother of three children, was grabbed from behind by appellant while she was walking to work on Reisterstown Road. When the victim screamed, appellant smacked her in the face and told her to shut up. He then put his arm around her and dragged her to a wooded area where a discarded box spring was located. At this point appellant told the victim to take off her clothes. According to the victim: "Well, I didn’t take them off. He took them off. And, uhm, he pushed me down on the mattress and, uhm, he had intercourse, then he told me to get up and he said you’re coming with me, and when I stood up I saw a police officer and I screamed and he came over.”

After cross-examination of the victim, the following colloquy occurred between the court and the victim regarding the offense:

THE COURT: Now, do I understand his way of making you submit to him was just using, grabbing you? Did he display any kind of weapon at any time?
A. No, he didn’t show a weapon.
THE COURT: Just using physical force?
THE WITNESS: Yes.
THE COURT: Were you injured in any way other than to be forced to have intercourse?
THE WITNESS: Uhm, I had, where he had smacked me in the face, I had a cut on my lip.
THE COURT: Did he remove all of your clothes?
THE WITNESS: No, just from the waist down.
THE COURT: What about his clothes?
THE WITNESS: He took them all off.
THE COURT: Everything?
THE WITNESS: Yes.
THE COURT: Was that the condition in which you and he were in when the officer arrived?
THE WITNESS: Yes.
THE COURT: He was totally naked and you were, had your clothes off from the waist down?
A. Yes.
THE COURT: What did he do when.the officer arrived that you observed?
THE WITNESS: He didn’t do anything. The police officer told him to put his hands up and he didn’t move.
THE COURT: That’s what he did?
THE WITNESS: Yes.
THE COURT: Did he say anything?
THE WITNESS: I think he said it’s all right she’s my girlfriend or something.
THE COURT: Were you screaming the whole time?
THE WITNESS: No, I wasn’t screaming the whole while.
THE COURT: You screamed when he first encountered you I believe?
THE WITNESS: Yes.
THE COURT: How far from the street were you when he was attacking you?
THE WITNESS: It wasn’t very far, I don’t know exactly. I guess about as far from here over to that window.
THE COURT: Here to where?
THE WITNESS: To that window.
THE COURT: I guess that’s about twenty-five feet.

The statutory elements of first degree rape as set forth in Maryland Annotated Code (1957, 1976 Repl. Vol., 1981 Cum. Supp.) Article 27, section 462, are as follows:

Section 462. First degree rape.
(a) What constitutes. — A person is guilty of rape in the first degree if the person engages in vaginal intercourse with another person by force or threat of force against the will and without the consent of the other person and:
(1) Employs or displays a dangerous or deadly weapon or an article which the other person reasonably concludes is a dangerous or deadly weapon; or
(2) Inflicts suffocation, strangulation, disfigurement, or serious physical injury upon the other person or upon anyone else in the course of committing the offense; or
(3) Threatens or places the victim in fear that the victim or any person known to the victim will be imminently subjected to death, suffocation, strangulation, disfigurement, serious physical injury, or kidnapping; or
(4) The person commits the offense aided and abetting by one or more other persons.

The only sub-section of the first degree rape statute which is conceivably relevant to the facts in this case is sub-section 462 (a) (3). Appellant concedes, as he must, that there was sufficient evidence to establish that the rape was accomplished by force against the will and without the consent of the victim. He argues, however, that in order to elevate a forceable rape to first degree rape one of the specific aggravating circumstances enumerated in section 462 must be established. Therefore, according to appellant:

It is not enough to be merely apprehensive or fearful in general, for the statute specifies that the appellant must 'place’ the victim in fear of 'death, suffocation, strangulation, disfigurement, serious physical injury, or kidnapping....’ Section 462 (a) (3) (emphasis added). Fear of a 'smack’ in the face with the hand, or fear of a bloody lip would hardly suffice under the terms of the statute.

The State, on the other hand, argues that appellant’s striking the victim, under the circumstances in which it occurred, was reasonably calculated to create in the victim’s mind a real apprehension of imminent and serious physical injury. Thus, according to the State, the evidence was sufficient to constitute rape in the first degree.

Under the statutory scheme of things the legislature divided the common law crime of rape into first and second degree. An accused is guilty of rape in the second degree if "he engages in vaginal intercourse with another person by force or threat of force against the will and without the consent of the other person----” Maryland Annotated Code (1981 Cum. Supp.) Article 27, section 463 (a) (1). See State v. Rusk, 289 Md. 230, 424 A. 2d 720 (1981). Unlike second degree rape, in order to find an accused guilty of first degree rape not only must it be established that he had vaginal intercourse with the victim by force against her will and without her consent, it also must be established that he placed "the victim in fear that the victim... will be imminently subjected to death, suffocation, strangulation, disfigurement, serious physical injury, or kidnapping....” See Blotkamp v. State, 45 Md. App. 64, 70-71, 411 A. 2d 1068 (1980) where this Court, in holding that the evidence was sufficient to constitute first degree rape, said: "Appellant’s pointed and repeated reference to having a knife, under the circumstances in which it was made, was certainly calculated — reasonably calculated — to create in Susan’s mind a real apprehension of serious and imminent bodily injury if she did not comply with his wishes; and if she had that apprehension, as she said she did, then she was indeed threatened.”

In this case our concern is not whether appellant had vaginal intercourse with the victim by force against her will and without her consent — that is conceded. Our concern is whether there were sufficient additional elements of aggravation in the commission of this offense to elevate it from an undisputed second degree rape to first degree rape. More specifically, was the evidence sufficient to show that appellant threatened or placed the victim in fear of serious physical injury within the meaning of the statute? Inexplicably, this question was given little, if any, consideration by the court or counsel below. Although appellant was charged in a six count indictment with first degree rape, second degree rape, and four other related counts, the only discussion in the record regarding the first count (first degree rape) vis-a-vis the other counts in the indictment, is as follows:

THE COURT: The Court finds that the State has sustained its burden of proof beyond a reasonable doubt, that at the time of the commission of the alleged act Mr. Mayes was responsible. Therefore, that he was sane. And the verdict will, therefore, be guilty.
* * *
MR. BERGER: If Your Honor please, as to the technicalities, the Court did find the defendant guilty. There are several counts of the indictment. Would that be as to the first count of the indictment?
THE COURT: Yes.

In determining whether appellant placed the victim in fear of serious physical injury, we consider not only the conduct of appellant, but the state of mind of the victim. As to the victim’s state of mind, in State v. Rusk, supra, the Court of Appeals, in discussing Hazel v. State, 221 Md. 464, 157 A. 2d 922 (1964), observed:

While Hazel made it clear that the victim’s fear had to be genuine, it did not pass upon whether a real but unreasonable fear of imminent death or serious bodily harm would suffice. The vast majority of jurisdictions have required that the victim’s fear be reasonably grounded in order to obviate the need for either proof of actual force on the part of the assailant or physical resistance on the part of the victim. We think that, generally, this is the correct standard. Id. at 243-244.

Here, no inquiry was made of the victim regarding her state of mind, i.e., whether she was, in fact, in fear of serious physical injury. Moreover, appellant did not threaten the victim with serious physical injury. There was evidence, however, that appellant grabbed the victim on a public street in the daylight hours, smacked her in her face when she screamed, put his arm around her and dragged her into a wooded area about twenty-five feet from the street, and had intercourse with her. The critical question, as we view it, is whether this evidence, standing alone, was sufficient to constitute placing the victim in fear of serious physical injury as contemplated by the statute. We think not. The statute requires more than the placing of the victim in fear of physical injury generally. It specifically requires the victim to be placed in fear of serious physical injury which, in the context of the statute, means being placed in fear of physical injury analogous to "death, suffocation, strangulation or disfigurement.” This was not the case here.

For the reasons herein stated we conclude that the evidence was insufficient to sustain appellant’s conviction of rape in the first degree. There was sufficient evidence, however, to justify appellant’s conviction of the lesser included offense of rape in the second degree. In finding appellant guilty of rape in the first degree, the trial court implicitly found and appellant conceded his guilt of rape in the second degree. Therefore, we remand this case to the trial court with instructions to enter a judgment of conviction for rape in the second degree and to resentence appellant. See DeMarrias v. United States, 453 F. 2d 211 (8th Cir. 1972), and Maryland Rule 1071(b).

Judgment reversed.

Case remanded to trial court to enter a judgment of conviction for rape in the second degree and to resentence appellant.

Costs are not reallocated as part of the judgment of this court pursuant to Maryland Rule 1082f.

      . Maryland Rule of Procedure 735, section d. If the defendant elects 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.


text:
    WILLIAM JEROME SMITH v. STATE OF MARYLAND
    [No. 460,
    September Term, 1981.]

      Decided February 4, 1982.

    The cause was argued before Morton, Moylan and Moore, JJ.

      Cynthia E. Young, Assigned Public Defender, for appellant.

      Michael A. Anselmi, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Jimmy L. Hill, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

We are confronted here with an appeal by William Jerome Smith and a cross-appeal by the State. Mr. Smith challenges his convictions of armed robbery and use of a handgun in the commission of a felony on the grounds that he was denied a speedy trial and that the Interstate Agreement on Detainers, Md. Ann. Code, Art. 27, § 616A et seq. (1976 Repl. Vol.), was violated. These contentions, we find herein, are without merit, and the judgments of conviction shall be affirmed.

The State, thwarted by the trial court in a pursuit of enhanced punishment under Md. Ann. Code, Art. 27, § 643B (c) (1981 Cum.Supp.), contends that appellant’s two previous convictions for armed robbery pursuant to the Federal Youth Corrections Act, 18 U.S.C. § 5010 (1976 Ed.) may be used to invoke the mandatory sentencing provisions of the Maryland Code, supra, even though they were set aside under § 5021 of the FYCA. We disagree and shall affirm the ruling of the trial court.

I

Appellant was convicted in the Circuit Court for Montgomery County on January 7, 1981, of armed robbery and use of a handgun in the commission of a felony. At sentencing on April 7, 1981, the State offered evidence that he had been twice previously convicted of crimes of violence for which he had served a prior term in a correctional institution. Specifically, the State proffered that appellant was convicted of armed robbery in the District of Columbia on October 4, 1972, and was sentenced to 10 years under the FYCA, 18 U.S.C. § 5010 (c). This conviction was thereafter "set aside” pursuant to 18 U.S.C. § 5021 (a) in April, 1979.

The State also presented evidence that appellant had entered a guilty plea to armed robbery on January 8, 1973, and was sentenced to 10 years under the FYCA, which was likewise set aside pursuant to § 5021 (a) in April, 1979.

The trial court (McAuliffe, John F., J.) refused to sentence appellant as a subsequent offender under the Maryland Code, holding that because his convictions had been set aside pursuant to § 5021 (a) of the FYCA, they could not be considered as prior convictions.

II

The State’s appeal, which we shall address first, presents a narrow issue that has not heretofore been considered by the Court of Appeals or this Court. In Calhoun v. State, 46 Md. App. 478, 418 A.2d 1241 (1980), aff'd, 290 Md. 1, 425 A.2d 1361 (1981), we answered in the affirmative the question of whether a prior conviction under the FYCA would qualify for enhanced punishment under Maryland’s crimes of violence statute. The question now before us, not present in Calhoun, is whether a conviction under the federal statute, which has been set aside pursuant to its provisions, may nevertheless be considered for purposes of enhanced punishment under Art. 27, § 643B. We think the trial court correctly answered this question in the negative.

In support of its contention that the trial court erred, the State argues that the pivotal question is whether § 5021 (a) expunges a conviction or simply removes "the attendant disabilities of a conviction, in futuro.” The decisions of federal courts interpreting the Act reflect divergent views with respect to whether § 5021 is or is not an expunction statute. An erudite and comprehensive analysis of the cases is contained in Doe v. Webster, 606 F.2d 1226 (D.C.Cir. 1979), in an opinion by Harold H. Greene, D.J., sitting by designation.

This Court is inclined to agree with the approach of the United States Court of Appeals for the Fourth Circuit in United States v. Purgason, 565 F.2d 1279 (1977). There the government relied heavily upon United States v. McMains, 540 F.2d 387 (8th Cir. 1976), in which the Court forcefully rejected a contention that § 5021 was an expunction statute. Writing for the Fourth Circuit in Purgason, Senior Circuit Judge Field held McMains inapposite because the youth offender there was requesting the Court to expunge the record of the conviction as well as the conviction itself. But Judge Field went on to say, in effect, that whether § 5021 was an expunction statute was beside the mark:

"We find it unnecessary to decide whether the statute is one of expunction in the broad sense of that term for the answer to the present case is found in the plain language of Section 5021 (b) which states that the unconditional discharge from probation 'shall automatically set aside the conviction * * *.’ To us it is clear that a conviction which is set aside by the court is vacated and can have no further operative effect. Aside from the clarity of the statutory language, such a construction is consistent with the rehabilitative purposes of the Youth Corrections Act which was designed to permit youthful offenders to lead their lives free from the stigma and effects of a felony conviction. Our conclusion accords with that reached by the Sixth Circuit, the only other court of appeals which has had occasion to consider this question. United States v. Fryer, 545 F.2d 11 (1976).” (Emphasis added; footnote omitted.)

We reject the State’s contention in this case that we must determine whether or not § 5021 is an expunction statute. The statute is abundantly clear: Once a youthful offender has been discharged from probation under § 5021, such discharge "automatically” sets aside the conviction. Arguing against the plain meaning of the statute, the State contends that a federal youth offender should not be permitted to use § 5021 as a shield to prevent enhanced punishment for the commission of a subsequent offense under a recidivist statute such as § 643B.

There is surface appeal to the State’s rationale that the fact of rehabilitation of the youth offender as determined under § 5021 is negated by the commission of a subsequent crime. However, Congress has not seen fit to provide that a set-aside conviction is only conditionally set aside. Nor has the General Assembly of Maryland declared that a prior conviction of a crime of violence qualifies for enhanced punishment under Art. 27, § 643B even though set aside under the FCYA.

Therefore, we must reject the State’s contention that the effect of § 5021 can be no greater than an executive pardon which does not preclude enhanced punishment under habitual criminal statutes. See Carlesi v. New York, 233 U.S. 51 (1914). See generally, Annot., 31 A.L.K.2d 1180 (1953). The short answer here is that although judicial discretion precedes the granting of probation or parole under the FYCA, just as the exercise of executive discretion is involved in the grant or denial of the pardon, the effect of the discharge provided under § 5021 is entirely automatic; there are no statutory provisions that the automatic discharge be contingent in any way upon continued rehabilitative behavior.

Ill

When appellant was indicted on March 21, 1980, he was being held in Virginia under an armed robbery indictment in that jurisdiction. He ultimately entered a guilty plea and received a 12-year sentence on May 30, 1980. His trial in Maryland began on January 5, 1981.

Under these circumstances, we perceive no basis for appellant’s argument that he was deprived of a speedy trial on constitutional grounds. The first reasonable opportunity Maryland had to bring appellant to trial was after May 30, 1980, the sentencing date in Virginia. Assuming that the clock began to run in June, 1980, the elapsed time between then and the date of trial was slightly in excess of six months. We cannot agree that the threshold of constitutional dimension was crossed in this case. The balancing process of Barker v. Wingo, 407 U.S. 514 (1972), has not been triggered.

Appellant’s second contention — that the charges should have been dismissed on the ground that he was not tried within the 180-day period specified in the Interstate Agreement on Detainers Act — is also without merit. The provisions of the Act do not become operative until "a person has entered upon a term of imprisonment in a penal or correctional institution of a party state” and has made a written request for "a final disposition” of the charges against him. Art. 27, § 616D (a).

Here, appellant was sentenced for the Virginia conviction on May 30, 1980. A detainer for the Maryland charges was filed on July 3, 1980. The record does not reflect that appellant made any final request for disposition of that detainer. To the contrary, the record before us contains a communication dated August 4, 1980, to the Governor of Virginia from an Assistant Attorney General recommending that the Governor "disapprove the request of the State of Maryland for [appellant’s] custody” based upon a request to that effect by appellant himself. The record also contains a letter dated November 25, 1980, from the appellant to the Assistant Attorney General advising him that he waived any objection to Maryland’s request for custody.

Appellant argues that the Interstate Detainer Act must be liberally construed. As Chief Judge Gilbert stated for this Court in Isaacs v. State, 31 Md. App. 604, 358 A.2d 273, cert. denied, 278 Md. 724 (1976), "the phrase 'liberally construed’ does not mean that courts are free to bend the legislation [The Interstate Detainer Act] out of shape or to remold it to some other form.” Id. at 611. We fail to find in this case any request by appellant for "a final disposition” under the Act of the charges against him. We therefore reject his contention that the 180-day period began on May 30, 1980, when appellant was sentenced.

Judgment affirmed; costs to be divided by appellant and cross-appellant pursuant to Rule 1082b; appellant’s costs not to be reallocated pursuant to Rule 1082f.

      . In Dorszynski v. United States, 418 U.S. 424, 432 (1974), Chief Justice Burger referred to the Federal Youth Corrections Act as "the most comprehensive federal statute concerned with sentencing.” Pointing out that the Act was an outgrowth of recommendations made by the Judicial Conference of the United States in the early 1940s, he added: "The principles and procedures contained in the Conference recommendations were in turn largely based on those developed since 1894 for a system of treatment of young offenders in England, known as the Borstal system.”
      It applies to offenders between the ages of 18 and 22 and affords trial judges four options in sentencing: (1) Suspend sentence and place on probation; (2) sentence the offender for treatment and supervision at a special youth facility, to be discharged in no more than six years; (3) commit the offender to a youth institution for a term which may exceed six years, up to the maximum authorized by law for the offense; and (4) sentence the offender as an adult. 18 U.S.C. § 5010. "The objective of these options represented a departure from traditional sentencing, and focused primarily on correction and rehabilitation.” Id. at 433.

      . Because the State alleges that the trial judge failed to impose the sentence mandated by the Code, this appeal is authorized pursuant to Md. Cts. ■& Jud. Proc. Code Ann. § 12-302 (c) (2) (1980 Repl. Vol.).

      . Pursuant to Rule 734 (c) of the Maryland Rules of Procedure, (1981 Cum.Supp.), the State had, 15 days prior to sentencing, served notice of its intent to seek mandatory punishment under Art. 27, § 643B (c). This section of the Code imposes mandatory enhanced punishment for a third conviction of a crime of violence. It provides as follows:
      "(c) Third conviction of crime of violence. — Any person who (1) has been convicted on two separate occasions of a crime of violence where the convictions do not arise from a single incident, and (2) has served at least one term of confinement in a correctional institution as a result of a conviction of a crime of violence, shall be sentenced, on being convicted a third time of a crime of violence, to imprisonment for the term allowed by law, but, in any event, not less than 25 years. Neither the sentence nor any part of it may be suspended, and the person shall not be eligible for parole except in accordance with the provisions of Article 31B, § 11.”

      . 18 U.S.C. § 5021 (a) provides as follows:
      "(a) Upon the unconditional discharge by the Commission of a committed youth offender before the expiration of the maximum sentence imposed upon him, the conviction shall be automatically set aside and the Commission shall issue to the youth offender a certificate to that effect.”

      . In Maryland, statutory authority for expunction is found in Md. Ann. Code, Art. 27, § 735 et seq. (Criminal Records) and Art. 27, § 292 (Controlled Dangerous Substances — no prior conviction) (1976 Repl. Vol., 1981 Cum.Supp.). Expunction is defined in § 735 as the effective removal of court or police records from public inspection by obliteration or removal to a separate, secure area to which the public and other persons having no legitimate reason for being there are denied access. Ait. 27, § 735 (c) (1) (2). The Court of Appeals has adopted a procedural framework relating to applications or petitions for expungement. See Maryland Rules of Procedure, Rule EX1 et seq. (1977 Repl. Vol.). Expunction under the general statute covers persons charged with but not actually convicted of a crime, § 737(a). The rules are intended to regulate uniformly the practice and procedure to be followed, making the form of action found in Doe v. Commander, Wheaton Police Dept., 273 Md. 262, 329 A.2d 35 (1974) no longer available. The holding there, however — that an equity court has inherent power to order expunction in an appropriate case, especially where no statutory remedy exists — appears undisturbed. See generally, United States v. Henderson, 482 F.Supp. 234 (S.D.N.Y. 1979), where the Court held it was not necessary to rely on its inherent equity power to order expunction because of its holding that § 5021 of the FYCA is an expunction statute.

      . Federal cases viewing § 5021 of the FYCA as an expunction statute include: Mestre Morera v. U.S. Immigration and Naturalization Service, 462 F.2d 1030 (1st Cir.1972); United States v. Arrington, 618 F.2d 1119 (5th Cir.1980); cert. denied, 449 U.S. 1086 (1981); United States v. Fryer, 545 F.2d 11 (6th Cir.1976); but see, United States v. Doe, 556 F.2d 391 (6th Cir.1977); United States v. Klusman, 607 F.2d 1331 (10th Cir.1979); United States v. Doe, 496 F.Supp. 650 (D.R.I. 1980); United States v. Henderson, 482 F.Supp. 234 (D.N.J. 1979). The United States Court of Appeals for the Eighth Circuit básed its flat rejection of § 5021 as an expunction statute on three bases: Had Congress intended to authorize expunction, it would have manifested that intent with far greater clarity; the certificate issued upon the setting aside of the conviction militates against expunction; and finally, expunction would mean inferring a statutory right where none exists. United States v. McMains, 540 F.2d 387 (8th Cir. 1976). Accord, Fite v. Retail Credit Co., 386 F.Supp. 1045 (D.Mont. 1975), aff’d, 537 F.2d 384 (9th Cir. 1976); United States v. Hall, 452 F.Supp. 1008 (S.D.N.Y. 1977); United States v. Heller, 435 F.Supp. 955 (N.D. Ohio 1976).
      The states generally have had little occasion to construe the statute. Those few that have, favor expunction. The Supreme Court of Illinois held in People v. Wunnenberg, 421 N.E.2d 905 (1981) that a defendant’s set-aside conviction under § 5021 should have no subsequent repercussions, either criminal or non-criminal; thus, the conviction could not be considered as an aggravating factor in sentencing. See also, State v. Pacheo, 588 P.2d 830 (Ariz. 1978); People v. Garcia, 402 N.Y.S.2d 164 (1978); State v. Cummings, 607 S.W.2d 685 (Mo. 1980).

      . As Judge McAuliffe observed in his ruling on the motion to dismiss, any earlier request to the State of Virginia would have been futile. He stated: "[E]arlier request in the experience of this Court and as the record indicates in this case ... would have been of no avail. The law does not require the State to take useless actions and file seriatim requests even when they know they are not going to be granted. I suppose one could argue that perhaps an informal request should have been made to borrow him but experience teaches that that is not the way business is done in this tri-state area and that it would have been of no avail and therefore we will not require the State to do a useless act.”

      . As the State points out in its brief, the trial below took place within a month after appellant’s presence in Maryland was procured.

      . The procedures are set forth in Md. Ann. Code Art. 27, § 616D and F (1976 Repl. Vol.). The former, in pertinent part, provides:
      "(a) Notice of imprisonment and request for disposition; time of trial; continuance; certifícate of official having custody. — Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint: ...” (Emphasis added.)

      . The letter stated that the basis for the request was the pendency of two cases filed by appellant in the United States District Court for Maryland "which attack the legality of the detainers.”


author: Bishop, J.,

text:
    MARYLAND COMMISSION ON HUMAN RELATIONS v. BETHLEHEM STEEL CORPORATION
    [No. 509,
    September Term, 1981.]

      Decided February 4, 1982.

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

      Risselle Rosenthal Fleisher, with whom was Philip L. Marcus on the brief, for appellant.

      Amicus curiae brief for Llewellyn B. Wakeman filed. Charles J. Wargo on the brief.

      Douglas D. Connah, Jr., with whom were Venable, Baetjer & Howard on the brief, for appellee.
   Bishop, J.,

delivered the opinion of the Court.

This is an appeal by the Maryland Commission on Human Relations from the issuance of a Writ of Certiorari issued by the Baltimore City Court pursuant to Subtitle K of the Maryland Rules of Procedure commanding the appellant to certify and produce to the court all records in the proceeding, Wakeman v. Bethlehem Steel Corporation, Case No. E38-1281. The petition for the writ, filed by the respondent below and the appellee here, Bethlehem Steel Corporation, alleged that the appellant had exceeded its jurisdiction or authority by reconsidering a previous written finding of no probable cause of discrimination then reversing that finding to an amended written finding of probable cause. This action took place after the appellant reopened the proceedings, in violation of its own rules, a year after concluding them, and eight months after having denied a motion to reconsider.

Question Presented

The issue raised by the appellant is,

Whether the Baltimore City Court had jurisdiction to issue a Writ of Certiorari against an administrative agency pursuant to MRP Subtitle K prior to or in lieu of exhaustion of statutory and administrative remedies.

The issuance of a Writ of Certiorari under the K Rules is not an assumption or jurisdiction by the lower court but only the first step authorized by the rules in order for the court to determine whether it has jurisdiction.

Rule K 47. Hearing. Upon the return of the writ and the receipt of the record certified, the court issuing the writ shall determine its own jurisdiction and the jurisdiction and validity of the proceedings of the inferior tribunal.

The argument of the appellant goes to the merits of the case in its posture as if the lower court had made a determination of its jurisdiction and the jurisdiction of the appellant under K 47, supra. It is clear from the record that the lower court did not rule on the jurisdictional questions but only on the procedural one of whether to issue the writ under K 47. The question of jurisdiction, vel non, has not been ruled on by the lower court and cannot be ruled on until the return of the writ and the receipt of the record. Rule K 47, supra.

The narrow issue that is before us then is not the jurisdiction of the Baltimore City Court but whether that court abused its discretion in issuing the Writ of Certiorari in this case. Therefore, our review is limited to what was before the lower court at the time the writ was issued and whether based on that review the court had the authority to issue the writ under the rules. State v. Rutherford, 145 Md. 363, 370-371 (1922). See also State v. Jacob, 234 Md. 452, 457-458 (1963); State v. Stafford, 160 Md. 385 (1930); Rayner v. State, 52 Md. 368, 376-377 (1879). Cf. Walston v. The Sun Cab Co., 267 Md. 559 (1973). We have carefully reviewed the Petition, the accompanying memorandum, the appellant’s response thereto, the Wakeman pleading, the appellant’s response thereto, the transcript of the argument on the show cause order, the writ itself, the briefs, and the applicable law. We hold that the issuance of the writ is authorized by the K Rules and that the lower court did not abuse its discretion. Accordingly, we affirm the action of the Baltimore City Court in issuing the Writ of Certiorari and remand the case to that court for the purpose of further action under Subtitle K of the Maryland Rules of Procedure.

Amicus Curiae

In his Amicus Curiae brief Llewellyn B. Wakeman raised the question of whether his constitutional rights under Article 24 of the Maryland Declaration of Rights were violated resulting from the lower court’s failure to give him a hearing on his "Pleading ... for a Denial of Bethlehem Steel Corporation’s Petition for Certiorari and Request For a Hearing.” Wakeman had intervened and had a right to be heard. Rule K 48 provides:

"Motion to Quash-Intervention-Any person deeming himself injuriously affected by the proceeding may move to quash the writ or otherwise intervene.”

His counsel had been advised by the Central Assignment office that the argument on the issuance of the writ would be heard at noon. When his counsel appeared at that time he learned that the case had been heard at 10:15 A.M. and as a result he did not have the opportunity to present his argument. Wakeman had a right to appeal the issuance of the writ and to raise as an issue the failure of the lower court to grant him an opportunity to be heard as an intervenor under Rule K 48. He did not do so. Therefore, however meritorious his claim may be, and it is indeed meritorious, it is not before us. An amicus "must take the case as he finds it, with the issues made by the parties.” 3A C.J.S. Amicus Curiae, § 7.

Order affirmed; case remanded for further proceedings; costs to be paid by appellant.