text:
    MARIE LANIER BELL v. STATE OF MARYLAND
    [No. 1164,
    September Term, 1980.]

      Decided May 12, 1981.

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

      Gary W. Christopher, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Ann E. Singleton, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Richard D. Warren, State’s Attorney for Wicomico County, and Stephanie J. Lane, Assistant State’s Attorney for Wicomico County, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Marie Lanier Bell has appealed her convictions of conspiracy to batter and conspiracy to murder from the Circuit Court for Wicomico County, presided over by the Honorable Lloyd Simpkins. She previously appealed a denial of dismissal on double jeopardy grounds arising from a mistrial. Bell v. State, 41 Md. App. 89 (1979); aff'd, 286 Md. 193 (1979). She was not successful on that occasion; she will not succeed on this one either.

I.

Her first argument in this appeal is that the trial court erred in admitting evidence of unlawful wiretaps because the affidavit on the application violated Md. Cts. & Jud. Proc. Code Ann. § 10-408 (a) (3) by failing to include

"A full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.. . .”

Section 10-408 (c) of the Courts Article is the express authority for issuing the order. It authorizes its issuance only "if the [issuing] judge determines on the basis of the facts submitted by the applicant” that four requisites of inclusion have been met, one of which is that "(njormal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous.” § 10-408 (c) (3). The applicant submitted in this case, along with the applications, an affidavit by one of the investigating officers.

Appellant claims that the affidavit "consisted of nothing more than an exhaustive recitation of the substantial investigative measures undertaken in the three days from the commission of the crime until the application.” The hearing judge in denying the motion to suppress, indicated that it was unnecessary to state or allege specifically that other investigative procedures appeared unlikely to achieve a necessary investigative goal.

"Both Federal and State Courts have held in determining the sufficiency of an application for wiretap order, the test is a practical and common sense manner. The State, in a criminal case, is not required to exhaust all investigative procedures before resorting to wiretap. I think that we all would agree with that. In the McCoy case, United States vs. McCoy, it says that common sense dictates that the purpose of the statute is not to foreclose electronic surveillance until every other manner has been unsuccessfully attempted, but simply to inform the issuing judge of the difficulties involved in use of conventional techniques, and that all that needs be found in the affidavit is factual predicate to support a finding that other techniques appear unlikely to succeed.”

It was sufficient, he believed, if an issuing judge could read into the affidavit, together with the application, that other investigative procedures had been tried and failed, or that "other techniques appear unlikely to succeed.”

Chief Judge Gilbert pointed out in Calhoun v. State, 34 Md. App. 365, 374 (1977), that the legislative history of the federal wiretap statute (along which lines our own was tailored, see Baldwin v. State, 45 Md. App. 378, 380 (1980), aff’d, 289 Md. 635 (1981)), noted in regard to the parallel provision to § 10-408 (a) (3) that

" 'Merely because a normal investigative technique is theoretically possible, it does not follow that it is likely. What the provision envisions is that the showing be tested in a practical and common sense fashion, [citation omitted]’ ” (Emphasis added by Judge Gilbert).

The government need not prove to a certainty that such techniques will not succeed if — as stated in the statute — it "reasonably appearls] to be unlikely to succeed.” See, United States v. Webster, 473 F. Supp. 586, 595 (D. Md. 1979). The application, which is to be read along with the affidavit (Calhoun, supra at 373), synopsized the investigative measures undertaken which the affidavit exhaustively recited (as conceded by appellant), and concluded that these were exhaustive of any relevant investigative procedures pertinent to that which was being investigated.

"4. OTHER INVESTIGATIVE PROCEDURES employed to date have included all avenues of regular investigations of homicide, including interviews of all persons known to be related to or to have been acquainted with the victim, neighborhood canvasses, fingerprint dusting, ballistic studies, post-mortem examination. To date such procedure has yielded nothing more substantial than has been related above. Crime Laboratory scene identification and surveillance of the Suspects have likewise provided no useful information. No further investigative measures are available at the Present.”

The issuing judge could certainly "determine on the basis of the facts submitted by the applicant” that:

"Normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed....” § 10-408 (c) (3).

It is difficult for us to see what more the state could say or do in reciting or trying appropriate techniques. While a "normal investigative technique” included in the aforementioned legislative history, Calhoun, supra at 374, the "infiltration of conspiratorial groups by undercover agents or informants,” was not mentioned in the application, such procedure may have been "theoretically possible” with only two conspirators, but "it does not follow that it is likely.” It hardly needs but a small sampling of "common sense” or pragmatism to recognize that two persons are unlikely to be "infiltrated.”

It was, furthermore, implicit in the affidavit and explicit in the application that

"The nature of the relationship between Marie L. Bell and Ralph D. Mason, Jr. is such, and the nature and subject of the conspiracy is such that several conversations, each containing only partial disclosures, is reasonably anticipated. Further, as police investigative efforts present constantly changing stimuli, more frequent contact between the parties may occur.”

It was also implicit in the application that the conspirators having carried out their purpose were avoiding a sense of public togetherness, obviously to avoid suspicion. The affidavit concluded with a paragraph pointing out that there was

"additional information which the police have learned and which neither [of the conspirators! know, and which, when disclosed to Marie Bell will cause her to make efforts to immediately contact Ralph Mason, Jr. Further, based upon Affiant’s own observations as set forth above, your Affiant believes that the relationship between Ralph Mason, Jr. and Marie Bell is a continuing relationship which will involve further telephone contact.”

The issuing judge could easily "determine on the basis of the facts submitted” that the conspirators were likely to conspire by telephone exclusively in covering up that which had been brought to fruition by the murder of Mr. Bell, and that unless one is privy to such conversations the investigation will be thwarted. If such information so exhaustively detailed and synopsized is not sufficient for a judge to determine that normal investigative procedures have been tried and have failed or would be "unlikely to succeed if tried,” our interpretation of the rigid compliance requirement of Giordano and of State v. Siegel, 266 Md. 256 (1972), would be absurd rather than "strict.” It was clear to the issuing judge and to the judge hearing the suppression motion, and it is clear to us, that the wiretap

"procedures were not. . . routinely employed as the initial step in criminal investigation.” United States v. Giordano, 416 U.S. 505 (1974),

which is the danger the provision in question was intended to guard against. As pointed out by the trial judge, the statute was not intended to foreclose electronic surveillance, but rather, as Giordano suggests, it is to assure an issuing judge by showing the unlikelihood of success, or the prior failure of routine procedures, that wiretapping is not being asked for as an initial convenience. See also, Calhoun, supra at 377. In this case we are wont to wonder what else the state might have done to comply.

II.

Appellant’s contention. that she was not present at a "stage of the trial” (because she was absent when a hearing resumed on a motion to suppress) smacks of the specious. Appellant was free on bond, according to the docket entries, and was present at the initial hearing when counsel commenced the discussion of the motion to suppress wiretap evidence. After some argument her attorney indicated that he would submit an additional memorandum of law on the issue. The prosecutor argued briefly but reserved further comment until he received the additional defense memorandum.

Although the docket entry indicates her absence at the subsequent resumption, at no time thereafter when appearing before the court did appellant object or complain; not at the trial, nor upon motion for new trial did she raise the issue, nor does she now allege any prejudice. But even if appellant had not waived the issue for purposes of appeal, it would have availed her naught. The cases upon which she relies are distinguishable. In none of these cases was the hearing commenced and argued, then continued to permit the defendant to submit memoranda. Her failure to appear at the resumed hearing is analogous to a failure to reappear at a trial already in progress. The rule relied upon, Md. Rule 724, provides that a defendant initially at trial waives his right to be present when he voluntarily absents himself after the trial has commenced. That same reasoning is applicable when a defendant voluntarily absents himself (or in this case herself) after having initially been present when the hearing began.

III.

The third contention is that the trial court improperly excluded evidence designed to impeach the prosecuting witness who had been the "trigger man,” killing appellant’s husband at her insistence. Prefatorily we should note that appellant acknowledges that the credibility of the witness (Ralph Mason, Jr.) was "extensively impeached.” Her first complaint, however, is that she was curtailed in her efforts to further impeach him through the testimony of a "psychiatric social worker” who was asked whether he had formed

"an opinion as the capacity of Mr. Ralph Mason to tell the truth concerning this verdict. [Emphasis added.]”

Because the question did not ask for an opinion regarding Mason’s character for truthfulness, appellant does not urge its admissibility under Md. Cts. & Jud. Proc. Code Ann. § 9-115, but citing State v. Conn, 286 Md. 406 (1979), rather contends that where

"sanity is in issue, ... a non-expert witness may give his opinion in evidence, in connection with his personal observations of the facts upon which it is founded, and as derived from them.” Id. at 410, quoting from, Watts v. State, 99 Md. 30, 36-37 (1904).

In this case, however, the basic predicate for admissibility is missing. Mason’s sanity was not an issue. The issue was Mason’s character and appellant expressly concedes that the question was not predicated upon that premise.

Appellant is also chagrined that she was not allowed to call a police sergeant to testify that his investigation of an incident at jail involving an alleged attempt on Mason’s life (inferably from appellant or at her counsel’s instigation) disclosed that Mason had lied and had concocted the incident.

The sergeant’s proffered opinion on Mason’s character for truthfulness was based on an investigation (an interview and a review of medical records). The trial judge had the responsibility of determining whether this was an adequate basis for such an opinion and decided it was not. We do not find that the judge abused his discretion. Durkin v. State, 284 Md. 445, 453-54 (1979). Contrary to appellant’s assertion here, there was no proffer at trial that the officer would testify that

"Mason had admitted to him that he had lied about the purported attack and appellant’s attorneys’ involvement in it. ...”

IV.

While acknowledging the discretionary right of a trial judge to question witnesses, appellant points out that in this case the judge asked at least fifty-four questions which clearly "manifested an opinion adverse to the appellant or to the defense upon which [s]he sought to rely.” Bailey v. State, 6 Md. App. 496, 510, cert. denied, 255 Md. 739 (1969).

Appellant did not object, however, which is a prerequisite to bringing the matter before us. King v. State, 14 Md. App. 385, 393-94, cert. denied, 265 Md. 740 (1972); Bailey, supra at 510. If the contention is that the judge has not been "scrupulously careful to preserve an attitude of impartiality,” Patterson v. State, 275 Md. 563, 578-80 (1975), the proper procedure to preserve a complaint is set forth in Brown v. State, 220 Md. 29, 39 (1959).

The judge’s questioning here was hardly extensive in light of the length of the case and its subsidiary issues. Certainly the questioning was not extraordinarily so. The trial judge’s role is that of an impartial arbitrator and that appearance is not generally compatible with an inquisitorial role. It is the better practice for a trial judge to inject himself as little as possible in a jury case, United States v. Green, 429 F.2d 754, 760 (D.C. Cir. 1970), because of the inordinate influence that may emanate from his position if jurors interpret his questions as indicative of his opinion. See, also, Patterson, supra. The appearance that a judge may have abandoned his role as an impartial arbitrator, is especially hazardous when cross-questioning a defendant.

Yet, if counsel have faltered in their advocacies, it is not improper for a trial judge to be "meticulously careful to make sure that the full facts [are] brought out,” Jefferies v. State, 5 Md. App. 630, 632 (1959), or to seek to discover the truth when counsel have not elicited some material fact, or indeed when a witness has not testified with entire frankness. Annot., 84 A.L.R. 1172, 1193 (1933). Such questioning may even bear upon the credibility of a defendant in a proper circumstance. Madison v. State, 200 Md. 1, 12 (1952); King v. State, supra at 394. This should be achieved expeditiously, however, if at all, for a protracted examination has a tendency to convey to a jury a judge’s opinion as to facts or the credibility of witnesses. Annot., supra.

We are blessed in Maryland by the fact that no judge’s conduct has ever compelled reversal because he has by the form, manner, or extent of his questioning indicated to the jury his opinion as to the defendant’s guilt. While that is a commendable commentary on our judiciary, it leaves us somewhat adrift as to what will constitute an overstep of the line of propriety. A review of the entire record here, however, does not give us any reason to believe that the court exceeded the limits of its properjudicial discretion, Rickards v. State, 129 Md. 184, 190 (1916), or even went dangerously near that boundary. Although the musical observation in Oklahoma, that "he’s gone about as far as he could go,” seems inappropriate to the facts here, we would be more assured if we had precedent before us as to just how far is too far.

In light of all of the testimony in the case, we do not find that the judge’s attitude reflected prejudicial unfairness, partiality, or an opinion of guilt. See, e.g., Hall v. State, 22 Md. App. 240, 246-47 (1974). At worst the interrogation appeared to question some of the defenses upon which appellant sought to rely; it did not, however, manifest an opinion adverse to appellant or adverse to those defenses. This would appear to be where the line is drawn. See Rickards, supra. We admonish any trial judge, however, to avoid brinkmanship and to sin, if at all, on the side of silence.

V.

Appellant contends also that the court erred in summarizing the evidence so as to highlight the State’s case. Although appellant contended on the foregoing issue that it would have been awkward or embarrassing to have objected to the court’s question, we note that her faintheartedness did not last. Presumably accepting the admonition of Edward Burke that there comes a time in every circumstance when forebearance ceases to be a virtue, appellant did object to the evidentiary summarization by the judge.

Our review does not indicate to us that the summarization was prejudicial or inordinately one-sided. Indeed we noted that on nearly a half dozen occasions the judge reminded the jury that it was its function to decide what the true facts were, who to believe or disbelieve, whose recollection of the evidence was correct and what the evidence indicated. The judge was not required to comment upon all the evidence in this extensive case, but was only to provide a fair and impartial summarization. Coby v. State, 225 Md. 293, 296-97 (1961). We find that is precisely what he did here.

VI.

Appellant was sentenced to life imprisonment for the conspiracy to murder her husband because, as the judge stated,

"the crime you conspired to commit was first degree murder.”

Because the issue of premeditation was not submitted to the jury, appellant contends that such an inference is not available to the sentencing judge, despite the evidence that the murder was done by "lying in wait.” Md. Ann. Code art. 27, § 407. She contends that the instructions about that issue became the law of the case despite the evidence before the court. Cf. Quaglione v. State, 15 Md. App. 571, 578-80 (1972). If one conspires to murder, however, the conspiracy itself is the premeditating factor raising the underlying crime from a second to a first degree offense. See, Wise v. State, 47 Md. App. 656 (1981), Williamson v. State, 282 Md. 100, 101 (1978).

VII.

Finally, appellant contends that the court erred in refusing to merge appellant’s separate convictions of conspiracy to batter and conspiracy to murder. There was evidence, however, clearly indicating that there were two separate and distinct conspiracies; the first to have Mason beat her husband (which was subsequently abandoned) and the second (subsequently accomplished) to kill her husband. There was no error.

Judgment affirmed.

Costs to be paid by appellant.

      . Despite appellant’s suggestion, State v. Bailey, 289 Md. 143 (1980), did not upset our right to continue to subscribe to Calhoun’s adoption of the "common sense, pragmatic approach.”

      . But see, Brown v. State, supra at 39, reversing on other grounds, but noting that the Court of Appeals felt "constrained to say that the questions asked were clearly improper.”


source: Caselaw Access Project

author: MacDaniel, J.,

license: Public Domain

text:
    JOSEPH C. RUDDY, JR. v. FIRST NATIONAL BANK OF MARYLAND
    [No. 1251,
    September Term, 1980.]

      Decided May 12, 1981.

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

      Joseph C. Ruddy, Jr., in proper person, appellant.

      Eugene A. Friedman for appellee.
   MacDaniel, J.,

delivered the opinion of the Court.

In March, 1979, appellee First National Bank of Maryland filed suit in the District Court of Maryland for Prince George’s County against Appellant Joseph C. Ruddy, Jr., alleging monies ($1,514.32) due and owing on appellant’s retail credit accounts. Appellant prayed a jury trial, whereupon the case was transferred to the Circuit Court for Prince George’s County. In August, 1980, shortly before trial, appellee moved that the case be heard without a jury; appellant acquiesced in this request, and the trial court granted the motion. Trial was held, and the court entered judgment for appellee in the amount of $1,514.32. Appellant noted a timely appeal to this Court, and presents the following questions for our consideration:

I. Whether the trial court erred in failing to remand the case to the district court once the parties waived trial by jury, since the amount pleaded by appellee was within the district court’s exclusive jurisdiction?
II. Whether appellant was entitled to a recoupment for an alleged breach of contract occurring prior to July 1, 1978?
III. Whether the evidence as to recoupment was sufficient to support appellee’s claim?

I.

Appellant first contends that the circuit court was without jurisdiction to hear the case. He notes that the amount in controversy, $1,514.32, was within the exclusive original jurisdiction of the district court, and argues that the case should have been remanded there once the parties waived their right to trial by jury. Essentially, appellant maintains that when a civil case, properly within the exclusive original jurisdiction of the district court, is transferred to the circuit court because a jury trial is prayed, the circuit court retains jurisdiction only so long as the case is actually tried by a jury. He asserts that if the parties waive trial by jury then their action divests the circuit court of jurisdiction to hear the case, so the matter must be remanded to the district court.

The issue here calls for an examination of the statutory grants of district court and circuit court jurisdiction. It is of course commonplace that, in such inquiries, we look first to the language of the statutes themselves. When the language is plain and unambiguous, there is no need to look beyond the language itself; in such cases the statutes should be given effect in accordance with the plain meaning of their words. See, e.g., Koyce v. State, Central Collection Unit, 289 Md. 134 (1980).

We begin by noting that the grant of general jurisdiction to the Circuit Courts of Maryland is contained in § 1-501 of the Courts and Judicial Proceedings Article of the Annotated Code of Maryland. That section provides:

"The circuit courts are the highest common-law and equity courts of record exercising original jurisdiction within the State. Each has full common-law and equity powers and jurisdiction in all civil and criminal cases within its county, and all the additional powers and jurisdiction conferred by the Constitution and by law, except where by law jurisdiction has been limited or conferred exclusively upon another tribunal. (Emphasis added.)

One "exception” to § 1-501 is the grant of civil jurisdiction to the District Courts of Maryland, which is contained in § 4-401 of the Courts Article. That section provides in part:

"Except as provided in § 4-402, and subject to the venue provisions of Title 6, the District Court has exclusive original civil jurisdiction in:
(1) An action in contract or tort, if the debt or damages claimed do not exceed $5,000; . . . (Emphasis added.)

However, as one of the specific exceptions to the general grant of district court jurisdiction, § 4-402 (e) provides that the district court shall not have jurisdiction to hear cases in which (a) the amount in controversy exceeds $500 and (b) a jury trial is prayed. The statute provides:

"(e) Jury trial. — (1) In a civil action in which the amount in controversy exceeds $500, a party may demand a jury trial pursuant to the Maryland District Court Rules.
(2) ..., if a party is entitled to and demands a jury trial, jurisdiction is transferred forthwith and the record of the proceeding shall be transmitted to the appropriate court.” (Emphasis added.)

Reading the general jurisdictional grant of § 1-501 in conjunction with the jurisdictional grant of § 4-401 (1) and the exception thereto contained in § 4-402 (e), we think it clear that, in a proper case, it is the demand for a jury trial, in and of itself, which acts to divest the district court of jurisdiction and simultaneously to confer jurisdiction upon the circuit court. Furthermore, the transfer is not contingent upon the parties’ subsequent decision to waive the jury trial earlier prayed, since there is absolutely nothing in the statutes to suggest such a contingent investiture of circuit court jurisdiction. Rather, we find the language of the statutes to be plain and unambiguous, and hold that, in accordance with the jurisdictional grants and exceptions contained in them, the circuit court retained jurisdiction to hear the case sub judice notwithstanding the parties’ waiver of their right to a jury trial.

The Court of Appeals’ decision in Thompson v. State, 278 Md. 41 (1976), confirms us in the view we take here. In that case the Court was asked to decide essentially the same question raised here, but with respect to the district court’s criminal, rather than civil jurisdiction. The appellant Thompson was issued traffic summonses alleging violations of the motor vehicle laws — matters normally within the exclusive original jurisdiction of the district court, according to § 4-301 (a) of the Courts and Judicial Proceedings Article. However, one of the alleged offenses, driving while intoxicated, carried a penalty sufficiently severe that it entitled Thompson to demand a jury trial prior to trial in the district court, pursuant to § 4-302 (d). He did so, and thereafter the case was transferred to the Criminal Court of Baltimore for trial.

When the case was called for trial in the criminal court, the State entered a nolle prosequi with respect to the summons charging Thompson with driving while intoxicated. Thompson subsequently reiterated his demand for a jury trial; alternately, he insisted that the case be remanded to the district court for disposition there. The circuit judge acceded to neither request; Thompson was tried by the court and convicted of one of the two remaining charges.

On appeal to this Court, Thompson contended that under § 4-302 (d) he was entitled to a jury trial in the criminal court on the two remaining charges. Alternately, he argued that if he was not entitled to a jury trial then the criminal court was divested of jurisdiction to hear the case, and that it should have been remanded to the district court. We held that Thompson was not entitled to a jury trial, and that once the criminal court lawfully acquired jurisdiction over the case the subsequent entry of the nolle prosequi did not divest it of that jurisdiction. Thompson v. State, 26 Md. App. 442 (1975). However, the Court of Appeals held that Thompson was entitled to a jury trial and so reversed our decision. Thompson v. State, 278 Md. 41 (1976). Nevertheless, the Court agreed with our resolution of the jurisdictional question. We quote the Court’s opinion, at 278 Md. 47-48:

"Section 4-302 deals only with circumstances whereby jurisdiction attaches in the circuit courts over offenses 'otherwise, within the District Court’s jurisdiction.’ Nothing in the provisions of that section or of any other statute or Rule of this Court supports Thompson’s contention that the Criminal Court’s jurisdiction may be subsequently ousted by dropping the intoxicated driving charge. In many circumstances, once a court lawfully acquires jurisdiction over a case, that jurisdiction may continue despite subsequent events, even though those events would have prevented jurisdiction from attaching in the first place. See Automatic Retailers v. Evans Cig. Serv., 269 Md. 101, 105, 304 A.2d 581 (1973); Hardisty v. Kay, 268 Md. 202, 212, 299 A.2d 771 (1973); Ledford Const. Co. v. Smith, 231 Md. 596, 600, 191 A.2d 587 (1963); Kramer v. Kramer, 26 Md. App. 620, 634, 339 A.2d 328 (1975); Gray v. State, 6 Md. App. 677, 253 A.2d 395 (1969).”

We here hold the same to be true with respect to the grant of the district court’s civil jurisdiction, as provided in §§ 4-401, et seq., of the Courts and Judicial Proceedings Article.

Appellant also contends that even assuming, arguendo, that the circuit court had jurisdiction to hear the case, it nevertheless erred in entering judgment nisi and final judgment for $1,514.32 in the circuit, rather than district court. As authority for this proposition appellant cites Maryland Rule 653, which provides:

"Where by reason of the verdict of a jury being below the jurisdiction of the court, a judgment of non pros is entered, the record of such judgment shall be a bar to any action founded upon the same cause of action of any court, the limit of whose jurisdiction shall be greater than the amount of such verdict; but the amount of .such verdict less such costs as may be adjudged against the plaintiff, shall be a debt from the defendant to the plaintiff, recoverable in the District Court.”

The rule is inapplicable here: it applies only to the verdict of a jury, and there was no jury here. See Cheek v. J.B.G. Properties, 28 Md. App. 29, 46 (1975).

II.

Appellant next argues that the trial court erred in denying his claim for recoupment. Appellant claimed damages arising from appellee’s alleged breach of the parties’ credit card agreement as well as the breach of an oral agreement entered into in July, 1978. The trial court ruled that appellant had presented evidence of a set-off, not recoupment, and that a set-off must be pleaded by counter-claim, which appellant had neglected to file. Consequently, the trial court denied appellant’s claim. Appellant argues that the trial court erred in ruling that appellant’s claim was by way of set-off rather than recoupment, but we need not rule upon the precise question. Appellant testified that, in accordance with the July, 1978, oral agreement, he tendered payment of an amount he deemed due as a full accord and satisfaction of all extant claims of indebtedness. There was also evidence that appellee accepted the sums in full payment even though it was less than the amount which it alleged it was owed. In light of this evidence, the trial court ruled that, whether appellant pleaded by set-off or recoupment, any claims arising from appellee’s alleged breach of contracts, antedating July, 1978, were barred by the parties’ accord and satisfaction. The evidence was certainly sufficient to support this conclusion; the trial court’s ruling was not clearly erroneous. Maryland Rule 1086. And see, e.g., Jacobs v. Atlantco Ltd. Partnership, 36 Md. App. 335 (1977); Washington Homes v. Baggett, 23 Md. App. 167 (1974).

III.

Finally, appellant challenges the trial court’s conclusion that the evidence in defense, whether by way of set-off or recoupment, was insufficient. But it is well-established that,

"When an action has been tried by the lower court without a jiiry, this Court will review the case upon both the law and the evidence, but the judgment of the lower court will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses.”

Maryland Rule 1086. Having reviewed the record of the case, we find nothing to suggest that the trial court’s decision was clearly erroneous.

Judgment affirmed.

Appellant to pay the costs.

      . Another exception provides concurrent jurisdiction if the amount in controversy exceeds $2500. This section is not involved here, as the amount in controversy was $1,514.32.

      . Section 4-302 (d) of the Courts and Judicial Proceedings Article provides:

        "Jury trial. — (1) The District Court is deprived of jurisdiction if a defendant is entitled to and demands a jury trial at any time prior to trial in the District Court.
      (2) A defendant may demand a jury trial in a criminal case if the penalty for the offense with which he is charged permits imprison-meat for a period m excess of 90 days; the State may not demand a jury trial.”
      And subsection (e) provides:

        "Several offenses. — Except as provided in Subtitle 5, the District Court does not have jurisdiction of an offense or offenses otherwise within the District Court’s jurisdiction if a person is charged with an offense or offenses arising from the same circumstances but no1 within the District Court’s jurisdiction In this case, the circuit court for the county has exclusive original jurisdiction over all the offenses.”
      For all intents and purposes, these sub-sections correspond to § 4-402 (e), governing exceptions to the district court’s exclusive original jurisdiction in civil cases.


author: Moylan, J.,

text:
    PATUXENT PUBLISHING CORPORATION et al. v. STATE OF MARYLAND
    [No. 216,
    September Term, 1981.]

      Per Curiam Order April 17, 1981.

      Opinion Filed May 12, 1981.

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

      Theodore Sherbow and G. Stewart Webb, Jr., for appellants.

      Alfred L. Scanlan, Jr., and Bernard Raum for appellee.
   Moylan, J.,

delivered the opinion of the Court.

This expedited appeal does not involve the merits of the proposed "gag order” on the ultimate criminal trial undergirding these proceedings. It deals rather with the threshold issue of a "gag order” on the "gag order” hearing. It is our considered judgment, however, that the two postures are not significantly different in terms of the public’s right to know as effectuated by the press’s right to access. To the extent to which there is a right to know what goes on at a criminal trial, there is an equally vital right to know what goes on in a court proceeding that contemplates curtailing that right to know. The litigation of a First Amendment issue can be as sensitive a public concern as the litigation of a violation of the criminal law.

The predicate case involves a Howard County prosecution of Emerson Baxter and a co-defendant for an unusually heinous murder. Because of the fact that the trials of the two defendants will be severed and that information might well come out in the first trial which would be widely disseminated and would arguably impact upon the ensuing trial of the co-defendant, steps were undertaken to minimize the adverse publicity by minimizing, in various ways and measure not yet fully determined, the access of the public and the press to the first trial or to various stages thereof. Several closure orders, the merits of which are not before us, were promulgated by the Circuit Court for Howard County on March 20, 1981 and March 23, 1981. The intervenors, appellants here, representing the press, moved to vacate those orders. On April 16, 1981, the Circuit Court for Howard County scheduled a hearing on these motions to vacate the closure orders. Of immediate concern here is the decision of the Circuit Court for Howard County to close the courtroom to the public and the press when that hearing was to take place. Out of deference to the intervenors, the Circuit Court for Howard County postponed the contemplated hearing until Monday, April 20, 1981, giving this Court the opportunity to convene a special panel and to hear this expedited appeal on Friday, April 17, 1981. We heard the appeal on that day and issued a per curiam order which read as follows:

"This cause coming on for hearing before this Court and counsel having been heard and arguments considered,
It is this 17th day of April 1981, by the Court of Special Appeals,
ORDERED, that the order of the Circuit Court for Howard County of April 16, 1981, closing the courtroom to the public at the hearing scheduled for Monday, April 20,1981, on the issue of vacating the order of the Circuit Court for Howard County of March 20, 1981 and March 23, 1981, be, and it is hereby, vacated; and,
This vacating of the order generally shall not prejudice the right of any party at that hearing to request, at an appropriate time, a limited bench conference or a limited in-chambers discussion to prevent public disclosure of arguably sensitive and prejudicial evidence that might be the subject of immediate consideration of the motions to vacate. Opinion to follow. Mandate to issue forthwith.”

This opinion follows that order by way of setting forth its rationale.

At the outset, it is important to identify the provenance of the public’s right, as opposed to a defendant’s right, here implicated. The Sixth Amendment right to a public trial is one that runs to the criminal defendant alone and not to the people. The majority opinion of Justice Stewart for the Supreme Court in Gannett Co. v. DePasquale, 443 U.S. 368, 387, 99 S. Ct. 2898, 61 L. Ed. 2d 608, 626 (1979), was absolutely clear in this regard: "The Sixth Amendment confers the right to a public trial only upon a defendant and only in a criminal case.” More recently, however, the Supreme Court in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980), recognized that there is a constitutional right of access running to the benefit of the public and the press, although that right is bottomed in the First Amendment rather than in the Sixth Amendment. Chief Justice Burger, speaking for the plurality, held, at 65 L. Ed. 2d 991-992:

"We hold that the right to attend criminal trials is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and 'of the press could be eviscerated.’ ”

The best articulation of the new ground broken by the Supreme Court in Richmond News came in the concurring opinion of Justice Stevens at 65 L. Ed. 2d 993-994, emphasizing not simply the-source of the right but the additional dimension that the right to disseminate news involves the right of access to that news:

"This is a watershed case. Until today the Court has accorded virtually absolute protection to the dissemination of information or ideas, but never before has it squarely held that the acquisition of newsworthy matter is entitled to any constitutional protection whatsoever .... Today, however, for the first time, the Court unequivocally holds that an arbitrary interference with access to important information is an abridgement of the freedoms of speech and of the press protected by the First Amendment.”

Both Richmond News and Gannett make it clear that the First Amendment right of the public to know is not an absolute and may sometimes yield to the countervailing right of a defendant to be shielded from prejudicial publicity. They make it clear, however, that there is a heavy burden upon those who would abridge the First Amendment right to establish clearly upon the record a compelling need for such abridgement. They make it clear that before resorting to so drastic a measure, that all lesser and alternative sanctions be explored, such as sanitizing voir dire examination, sequestration of juries, the continuation of a case to allow the immediate impact of publicity to abate, and the removal of a cause to a more remote trial forum. These alternative sanctions may, indeed, work some inconvenience and dislocation upon the parties (including criminal defendants) but are nonetheless, on balance, to be preferred to curtailing the First Amendment freedom of the press. The combination of Gannett and Richmond News, furthermore makes it clear that this required balancing of interests be undertaken with respect to pre-trial hearings as well as with respect to trials themselves. They make it clear that only so much First Amendment abridgement will be tolerated as is compellingly required. They make it clear that every possible step must be taken to minimize the abridgement.

It was, indeed, the overbreadth of the closure order that concerned us here. At any point where explicit reference to or narration of the allegedly heinous facts of this case should have become necessary, it may well have been appropriate, we indicated, for a brief bench conference or a brief in-chambers conference to have dealt with that sensitive passage sotto voce. The possible need for such a limited cordon sanitaire, however, by no means implies the necessity to declare the entire hearing off limits. There was no need to clap a "top secret” classification on the exploration of alternative sanctions and the argument as to their pros and cons. There was no reason to keep from the public the far-reaching legal discussion of fundamental constitutional issues such as the freedom of the press and the right to a fair trial. The closing of a court proceeding to the public is a drastic step and must not be resorted to lightly or overbroadly, even for the benevolent purpose of protecting a defendant’s rights.

We add one further word of caution. It is, of course, commendable that judge and prosecutor be sensitive to a defendant’s rights and that the prosecutor sometimes even join the defense attorney in agreeing to some limited closure. It is equally important to remember that there is a counterpoint obligation as Gannett Co. v. DiPasquale, supra, reminded us, at 61 L. Ed. 2d 624, n.12:

"The responsibility of the prosecutor as a representative of the public surely encompasses a duty to protect the societal interest in an open trial. But this responsibility also requires him to be sensitive to the due process rights of a defendant to a fair trial. A fortiori, the trial judge has the same dual obligation.” (Emphasis supplied.)

We trust, moreover, that even under circumstances where some limited closure might be appropriate, the prosecuting attorney would never bend over so far backwards as to request closure absent an explicit request from the defendant himself. Such prosecutorial generosity might yield only, in the last analysis, a defendant’s claim that his Sixth Amendment right to a public trial had been abridged and that he had never knowingly and voluntarily waived that right. If and when two constitutional rights are in collision, it is always the cautious course to let the defendant express his choice.


author:
Melvin, J.,
      Moylan, J.,

text:
    HOWARD EUGENE EARHART v. STATE OF MARYLAND
    [No. 589,
    September Term, 1980.]

      Decided May 13, 1981.

      The cause was submitted on briefs to Thompson, Moylan and Melvin, JJ.
    Submitted by llene Cohen for appellant.
    Submitted by Stephen H. Sachs, Attorney General, Thomas Barbera, Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Leslie Stein, Assistant State’s Attorney for Baltimore City, for appellee.
   Melvin, J.,

delivered the opinion of the Court. Moylan, J., filed a concurring opinion at page 713 infra.

At a joint trial in the Criminal Court of Baltimore, the appellant, Howard Eugene Earhart, and a codefendant, Shane McCallum, were found guilty by a jury of robbery and murder committed during the commission of the robbery (felony murder). The trial Judge (Greenfeld, J.) merged the robbery conviction into the murder conviction and appellant was sentenced to life imprisonment.

In this appeal, appellant Earhart presents three questions:

1. Did the court below [commit reversible] error in refusing to sever Appellant’s trial from that of a codefendant?
2. Did the court below err in refusing to strike for cause a juror who worked as a correctional official?
3. Did the court below abuse its discretion in admitting prejudicial and inflammatory photographs of the deceased?

As we answer all of these questions in the negative, the judgment of conviction will be affirmed.

I

About 7:00 P.M. on November 15, 1978, the victim in this case, one John Perkins, was found dead in the bedroom of his first floor apartment in Baltimore City. He had been physically beaten and strangled to death and numerous articles of his personal property had been removed from the apartment. Subsequently, appellant Earhart and McCallum were both indicted for robbery and murder. Both gave inculpatory statements to the police. Prior to trial both Earhart and McCallum filed motions to suppress the statements on the ground of involuntariness. Both motions were denied. Appellant Earhart also filed a pretrial motion for severance, arguing, as he does in this appeal, that a joint trial at which the statement of his codefendant McCallum would be admitted in evidence implicating him (Earhart) in the crimes would be a violation of the rule announced in Bruton v. United States, 391 U.S. 123 (1968). At trial neither defendant took the witness stand. In denying the motion for severance, the hearing judge relied upon the plurality opinion in Parker v. Randolph, 442 U.S. 62 (1979) as authoritative precedent for his action. We think this reliance was misplaced and that there was error in denying the severance. Nevertheless, under the circumstances of this case, we hold that the error was harmless beyond a reasonable doubt.

The Law

The Supreme Court of the United States in Bruton expressly overruled Delli Paoli v. United States, 352 U.S. 232 (1957). Delli Paoli had held that a nontestifying codefendant’s confession, which incriminated a defendant who had not confessed, is admissible at a joint trial over defendant’s hearsay objection so long as the jury is instructed to consider the confession as evidence only against the confessing codefendant and to disregard it in determining the defendant’s guilt or innocence. As said by the majority in Bruton,

"The basic premise of Delli Paoli was that it is reasonably possible for the jury to follow sufficiently clear instructions to disregard the confessor’s extrajudicial statement that his codefendant participated with him in committing the crime. 352 U.S. at 239. If it were true that the jury disregarded the reference to the codefendant, no question would arise under the Confrontation Clause, because by hypothesis the case is treated as if the confessor made no statement inculpating the confessor.” 391 U.S. at 126.
"Delli Paoli assumed that. .. encroachment on the right to confrontation could be avoided by the instruction to the jury to disregard the inadmissible hearsay evidence [in determining the guilt or innocence of the nonconfessing defendant].” 391 U.S. at 128.

In Bruton, the "basic premise of Delli Paoli that a properly instructed jury would ignore the confessor’s inculpation of the nonconfessor in determining the latter’s guilt,” 391 U.S. at 129, was given a full burial and replaced by a completely opposite premise or assumption, i.e., that in spite of limiting instructions, a jury could not and would not disregard the inadmissible hearsay evidence contained in a confessor’s inculpation of the nonconfessor in determining the latter’s guilt. Admission of such an extrajudicial statement at a joint trial, where the declarant confessor does not take the witness stand, would thus violate the defendant’s right of cross-examination secured by the Confrontation Clause of the Sixth and Fourteenth Amendments to the United States Constitution.

"Here the introduction of Evans’ confession posed a substantial threat to petitioner’s right to confront the witnesses against him, and this is a hazard we cannot ignore. Despite the concededly clear instructions to the jury to disregard Evans’ inadmissible hearsay evidence inculpating petitioner, in the context of a joint trial we cannot accept limiting instructions as an adequate substitute for petitioner’s constitutional right of cross-examination. The effect is the same as if there had been no instruction at all.” 391 U.S. at 137. (Emphasis added.)

After Bruton, the application of the rule there announced has been considered by the Supreme Court in a number of cases in which the defendant himself, as well as a nontestifying codefendant, had made extrajudicial inculpatory statements, each of the statements implicating both codefendants in the crimes charged. See Harrington v. California, 395 U.S. 250 (1969); Schneble v. Florida, 405 U.S. 427 (1972); and Brown v. United States, 411 U.S. 223 (1973). Those cases rejected the notion that a Bruton error can never be harmless under Chapman v. California, 386 U.S. 18 (1967). In each of those cases, the Court applied the harmless error doctrine to the claimed violations of Bruton. In none of them did the Court indicate that there was no error. See also Roberts v. Russell, 392 U.S. 293 (1968); and Hopper v. Louisiana, 392 U.S. 658 (1968).

In Parker v. Randolph, supra, the Court undertook to resolve the conflict throughout the country, in both federal and state appellate courts, over the issue of the applicability of the Bruton rule to so-called "interlocking” confessions. Unfortunately, the Court failed in its undertaking. The case was argued before eight of the justices. Justice Rehnquist delivered an opinion, in which the Chief Justice, Justice Stewart and Justice White joined. Those four justices, a mere plurality, stated the issue to be "whether Bruton requires reversal of a defendant’s conviction when the defendant himself has confessed and his confession 'interlocks’ with and supports the confession of his codefendant.” Without explaining either how inculpatory a statement must be before it qualifies as a "confession” or what an "interlock” is, the plurality held that "admission of interlocking confessions with proper limiting instructions conforms to the requirements of the Sixth and Fourteenth Amendments to the United States Constitution.” Id. 75. In reaching that conclusion, the plurality seemed to resurrect the basic premise of Delli Paoli, rejected in Bruton, that a jury could be trusted "to follow sufficiently clear instructions to disregard the confessor’s extrajudicial statement that his codefendant participated with him in committing the crime.” 391 U.S. at 126. Speaking for the plurality Justice Rehnquist said:

"When, as in Bruton, the confessing codefendant has chosen not to take the stand and the implicated defendant has made no extrajudicial admission of guilt, limiting instructions cannot be accepted as adequate to safeguard the defendant’s rights under the Confrontation Clause. Under such circumstances, the 'practical and human limitations of the jury system,’ Bruton v. United States, supra, at 135, override the theoretically sound premise that a jury will follow the trial court’s instructions. But when the defendant’s own confession is properly before the jury, we believe that the constitutional scales tip the other way. The possible prejudice resulting from the failure of the jury to follow the trial court’s instructions is not so 'devastating’ or 'vital’ to the confessing defendant to require departure from the general rule allowing admission of evidence with limiting instructions. We therefore hold that admission of interlocking confessions with proper limiting instructions conforms to the requirements of the Sixth and Fourteenth Amendments to the United States Constitution. Accordingly, the judgment of the Court of Appeals as to respondents Hamilton and Randolph is reversed.” 442 U.S. at 74, 65 and 76. (Footnotes omitted.)

In a separate opinion, Justice Blackmun concurred in the judgment of reversal but only because he found harmless error in the admission of the "interlocking” confessions. He "refrainfed] from joining” the plurality in their approach to the principal issue. He said:

. . [A]s I read it, it abandons the harmless error analysis the Court previously has applied in similar circumstances and now adopts a per se rule to the effect that Bruton is inapplicable in an interlocking confession situation.” Id. 77.
"... I would be unwilling to depart from the traditional harmless-eiror analysis in the straightforward Bruton error situation. Neither would I depart from the harmless-error approach in interlocking confession cases. The fact that confessions may interlock to some degree does not ensure, as a per se matter, that their admission will not prejudice a defendant so substantially that a limiting instruction will not be curative. The two confessions may interlock in part only. Or they may cover only a portion of the events in issue at the trial. Although two interlocking confessions may not be internally inconsistent, one may go far beyond the other in implicating the confessor’s codefendant. In such circumstances, the admission of the confession of the codefendant who does not take the stand could very well serve to prejudice the defendant who is incriminated by the confession, notwithstanding that the defendant’s own confession is, to an extent, interlocking. 1 fully recognize that in most interlocking-confession cases, any error in admitting the confession of a nontestifying codefendant will be harmless beyond a reasonable doubt. Even so, I would not adopt a rigid per se rule that forecloses a court from weighing all the circumstances in order to determine whether the defendant in fact was unfairly prejudiced by the admission of even an interlocking confession. Where he was unfairly prejudiced, the mere fact that prejudice was caused by an interlocking confession ought not to override the important interests that the Confrontation Clause protects.” Id. 78-79. (Emphasis added.)
"Unfortunately, it is not clear that the new approach mandates even an inquiry whether the confessions interlock. Respondents have argued that the confessions, in this case, in fact, did not interlock. Brief for Respondents 34-38. The principal opinion, however, simply assumes the interlock. It thus comes close to saying that so long as all the defendants have made some type of confession which is placed in evidence, Bruton is inapplicable without inquiry into whether the confessions actually interlock and the extent thereof. If it is willing to abandon the factual inquiry that accompanies a harmless-error determination, it should be ready, at least, to substitute an inquiry into whether there is genuine interlocking before it casts the application of Bruton, and the underlying Confrontation Clause right, completely aside.” Id. 80.

In a strongly worded dissenting opinion by justice Stevens, joined by Justice Brennan and Justice Marshall, the dissent disagreed with Justice Blackmun only with respect to his finding of harmless error on the facts of the case. The dissent castigated the plurality for its conclusion that no constitutional error was committed when the confessions of the codefendants were admitted into evidence at their joint trial.

"... Without purporting to modify the Bruton rule precluding the use of a nontestifying codfendant’s extrajudicial admissions against a defendant in a joint trial, the plurality reaches this conclusion by attempting to create a vaguely defined exception for cases in which there is evidence that the defendant has also made inculpatory statements which he does not repudiate at trial.
If ever adopted by the Court, such an exception would seriously undercut the Court’s decision in Bruton by limiting its effect to a small and arbitrarily selected class of cases.” Id. 82, 83. (Footnotes omitted.)
"Evidence that a defendant has made an 'extrajudicial admission of guilt’ which 'stands before the jury unchallenged,’ ante, at 74, 73, is not an acceptable reason for depriving him of his constitutional right to confront the witnesses against him. In arguing to the contrary, and in striving 'to cast the issue’ presented 'in a . . . broader form’ than any of the parties felt necessary to dispose of the case, ante, at 72, the plurality necessarily relies on two assumptions. Both are erroneous. First, it assumes that the jury’s ability to disregard a codefendant’s inadmissible and highly prejudicial confession is invariably increased by the existence of a corroborating statement by the defendant. Second, it assumes that all unchallenged confessions by a defendant are equally reliable. Aside from two quotations from the dissent in Bruton, however, the plurality supports these assumptions with nothing more than the force of its own assertions. But the infinite variability of inculpatory statements (whether made by defendants or codefendants), and of their likely effect on juries, makes those assertions untenable.. .” Id. 84 (footnotes omitted).

Justice Stevens acknowledged that, "It is no doubt true that in some cases a defendant’s confession will constitute such convincing evidence of his guilt that the violation of his constitutional rights is harmless beyond doubt. E.g., Brown v. United States, 411 U.S. 223; Schneble v. Florida, 405 U.S. 427. But in many cases, it is not so convincing.” Id. 86. And he went on to express .the view that it is simply unrealistic to assume that "a jury will obey a command to ignore a codefendant’s confession — whether or not the defendant has himself confessed.” Id. 90, 91.

"Absent admissiblity of the codefendants’ confessions against respondents, therefore, the" controlling question must be whether it is realistic to assume that the jury followed the judge’s instructions to disregard those confessions when it was evaluating respondents’ guilt. The plurality would answer this question affirmatively. But in so doing, it would repudiate much that has been said by the Court and by an impressive array of judicial and scholarly authorities who have addressed the issue.
As the plurality sees it, the answer to this question is supplied by the 'crucial assumption underlying [the jury] system . .. that juries will follow the instructions given them by the trial judge.’ Ante, at 73. This assumption, it is argued, has been applied in 'numerous decisions of this Court’ regarding codefendant’s confessions. Ante, at 74, and n. 6, citing Opper v. United States, 348 U.S. 84, and Blumenthal v. United States, 332 U.S. 539. But this reasoning was advanced just as forcefully in the case that Bruton overruled — a case incidentally, that relied on the same 'numerous’ decisions that the plurality resurrects in favor of its analysis. See Delli Paoli v. United States, 352 U.S. 232, 242.” Id. 87, 88.

We conclude from all of this that the Supreme Court has yet to resolve, by a majority decision, the conflict that exists as to the proper approach to interlocking confession cases. As Justice Rehnquist stated for the plurality in Parker v. Randolph, supra, note 4, pp. 68-69, both federal and state courts are in a state of "disarray” on the issue. The plurality, concurring and dissenting opinions in Parker, serve only to highlight that disarray continues to exist. As we perceive Parker v. Randolph, its binding precedential value is zero and we are left with the other Supreme Court cases involving claimed Bruton errors, cited infra, where the claimant has himself made an inculpatory statement. As we have said, the Court did not hold in any of those cases that the Bruton rule had not been violated and at least three of them were decided by the application of the harmless error doctrine.'

The dissenting opinion in Parker v. Randolph expressed the view that adoption of Justice Rehnquist’s plurality opinion "would squarely overrule” those cases, as in each of them, according to the dissent, "the Court found a Bruton error even though the defendants’ confessions interlocked.” Id. 83, n. 3. Justice Rehnquist, however, writing for the plurality responded, "We disagree” that a Bruton error was found in those cases. Id. 75, n. 8.

If Justice Stevens is correct that those cases decided after Bruton and before Parker v. Randolph represent holdings by the Supreme Court that there is always error when a nontestifying codefendant’s statement inculpating the defendant is admitted at a joint trial (even when the defendant himself has also made an extrajudicial inculpatory statement) and if he is also correct that the Parker plurality opinion would overrule these prior cases, we would not be free to adopt or follow the plurality view. If we did, we would be doing that which the plurality was unable to do, i.e., overrule the prior cases that had applied the harmless error doctrine to Bruton errors. We are not certain whether Justice Stevens is correct or not in his evaluation of the effect the adoption of the plurality view would have upon the prior cases. We are certain, however, that we are not bound to follow the Parker plurality. It may be that we are bound not to follow it, but instead are bound to follow the Blackmun-Stevens approach of continuing to regard Bruton as fully applicable to interlocking confession cases but subject to the harmless error doctrine as applied in the prior cases.

If Justice Rehnquist is correct that the plurality view would not overrule the prior cases, then it would seem that we are free to adopt the plurality view should we decide to do so. But because of its non-binding precedential value we are confident that we are not required to do so.

In any event, until a majority of the Supreme Court makes up its mind in an opinion that affords us a binding precedent to follow, or until the Maryland Court of Appeals holds differently, we shall adopt the approach expressed by Justices Blackmun and Stevens in opposition to the Parker plurality view expressed by Justice Rehnquist. We do not think that the basic assumption of Bruton — that a jury cannot be expected to disregard an extrajudicial statement by a nontestifying codefendant that inculpates the defendant — is any less valid just because the defendant himself has also made an extrajudicial inculpatory statement.

In other words, we hold that the rule of Bruton is not rendered inapplicable to protect the constitutional confrontation right of a defendant who complains of the admission in evidence of an extrajudicial statement of a nontestifying codefendant that inculpates the defendant in a crime for which they are being jointly tried by a jury — simply because the defendant has himself made an inculpatory extrajudicial statement. In such a situation, the admission into evidence of the codefendant’s statement would be constitutional error and warrant reversal unless under all the circumstances it can be said that the error was harmless beyond a reasonable doubt under Chapman v. California, 386 U.S. 18 (1967).

The Present Case

In the case at bar, the extrajudicial written statement of the codefendant McCallum related to the police his version of the events leading up to the death of the victim Perkins. He said that on the evening in question he and the appellant, whom he had known all his life, and a man named Russell Kelly went to a "gay” bar where he (McCallum) tried unsuccessfully to sell "some stuff I make that looks like hash.” The victim Perkins, whom he had never seen before, "started following me around. I was standing by the juke box and he came over and put in about a dollars worth of quarters. That’s when I went back to Gene [appellant] and suggested that we rob him. The queer guy [Perkins] said dirty things to me,” indicating that he wanted a sexual tryst with McCallum. Perkins told McCallum that he was going to another bar, "the Hippopotamus.” Eventually, the three companions (McCallum, Russell Kelly and the appellant) also went to the Hippopotamus. In the meantime, they had gone to "a social place” where McCallum "sold about forty-five dollars worth of hash. I couldn’t sell any more hash, so I figured I’d go up to the Hippopotamus and sell some.” While at the Hippopotamus, Perkins ("the same queer guy I saw earlier”) "came up and grabbed me by the backside.” McCallum tried to sell him some hash, but Perkins said he didn’t have any money. Perkins "kept talking . .. and telling me he wanted to take me home. I told him I had to take Gene and Russell home first.” The three companions then left the Hippopotamus in McCallum’s car and drove to Russell Kelly’s home. Perkins followed in his own car. When they arrived near Russell Kelly’s home, Kelly "got out and made believe that Gene got out too. Gene didn’t get out, but hid in the back seat of the car. I then started following the guy [Perkins] to his house.” Perkins parked his car in a parking lot near his house and McCallum parked "about four or five car lengths away so he couldn’t see Gene in the back seat.”

The statement then relates that McCallum and Perkins entered Perkins’s apartment and after "about 10 minutes,” during which time they drank beer together, McCallum "hit him in the jaw and he fell out”; that McCallum then bound "his wrists, elbows, ankles and thighs” and "gagged him with the sheet off the bed”; that McCallum then "took the sheet off of his mouth because his head was turning purple”; that he "felt his neck and felt a pulse”; that he "also put my hand by his mouth and felt him breathing”; thac he "used the back door” to leave the house and that, "we [obviously referring to himself and the appellant] took all the stuff’ to Russell Kelly’s house; and that he and the appellant then "went to the White Tower and it was 4:55 [A.M.] when I took Gene back.”

McCallum said in his statement that he returned to Russell Kelly’s house the next afternoon and was told by Kelly that he had traded the things stolen from Perkins to a "dope dealer” for six "packets.” When asked, "What was your share of the dope?” he replied: "I was supposed to get 2 packets, but I only got one and I discovered it was only milk sugar. Gene got 3 packets and Russell got 2”. When asked if he had "discuss[ed] the incident with anyone else,” he replied:

"I told my mother and father that I might have killed someone. I told them that I tied someone up, robbed him and may have hit him too hard. I thought maybe he died of a concussion or something. My mother and father didn’t know where this happened or who the man was. I didn’t tell them the details or even that Gene and Russell were involved.”

There can be no question that McCallum’s statement tended to inculpate the appellant Earhart as a principal in the second degree to felony murder, i.e., a homicide committed in the course of a robbery.

In considering Earhart’s pre-trial motion for severance, the court and all parties concerned proceeded on the assumption that if the motion were denied, McCallum’s statement would be admitted in evidence at the joint trial only against McCallum and the jury instructed not to consider it in determining Earhart’s guilt. The court’s denial of the severance motion was therefore tantamount to a ruling that the admission of McCallum’s statement with a limiting jury instruction would not violate Earhart’s Sixth Amendment right of confrontation. In so ruling, the court was under the erroneous impression that, simply because Earhart had also made an extrajudicial inculpatory statement that "interlocked” with McCallum’s statement, the Supreme Court in Parker v. Randolph, supra, had sanctioned such a ruling. As we have already indicated, however, Parker does not represent a holding by the Supreme Court that supports the lower court’s ruling in this case.

In our view, when the court denied the severance motion, there was no way it could determine at that time whether its ruling would or would not ultimately result in a deprivation of Earhart’s constitutional Right of Confrontation, or whether, if it would, the deprivation would constitute harmless error. For example, if McCallum had taken the witness stand at trial, Earhart would have no basis for invoking a Bruton claim now, because the confrontation clause as construed in Bruton "is violated only where the out-of-court hearsay statement is that of a declarant who is unavailable at trial 'for full and effective’ cross-examination.” Nelson v. O’Neil, 402 U.S. 622, 627 (1971) (emphasis in original). See California v. Green, 399 U.S. 149, 158-64 (1970). At the time the court denied a severance, it of course had no way of knowing whether McCallum would testify. Nor did the court know the full extent of the independent evidence against Earhart that would ultimately be presented at trial. Having already ruled on the admissibility of Earhart’s own extra-judicial statement, it was well aware, of course, that the statement would be introduced at trial by the State. The court did not know, however, what attacks, if any, Earhart would make on the credibility or voluntariness of this statement at trial.

We conclude that it was error to deny the motion for severance. As McCallum did not testify at trial, that error was never eradicated. McCallum’s statement inculpating Earhart was, as expected, introduced at trial over Earhart’s objection. Even though the jury was instructed not to consider it in determining Earhart’s guilt, "in the context of a joint trial we cannot accept limiting instructions as an adequate substitute for [Earhart’s] constitutional right of confrontation. The effect is the same as if there had been no instruction at all.” Bruton v. United States, 391 U.S. 123, 137. The mere fact that Earhart also made an inculpatory extrajudicial statement does not cure the Bruton error, although it may be an important circumstance in determining whether the constitutional error was rendered harmless beyond a reasonable doubt.

We now consider whether the Bruton error in this case was harmless beyond a reasonable doubt. Under the circumstances revealed by the record we hold that it was.

"The mere finding of a violation of the Bruton rule in the course of the trial, however, does not automatically require reversal of the ensuing criminal conviction. In some cases the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the codefendant’s admission is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the admission was harmless error.” Schneble v. Florida, 405 U.S. 427, 430 (1972).

Here, although Earhart’s statement was admitted in evidence over his objection, there was little or no challenge before the jury to its voluntariness or credibility. So far as his involvement in the crime was concerned, Earhart’s statement was no less inculpatory than was McCallum’s statement. Independently of either statement, there was other strong and unchallenged evidence that the victim Perkins died as the result of his mistreatment in the course of the robbery. In addition, Russell Kelly testified without objection that when he was being driven home by McCallum and Earhart before the robbery he heard McCallum "talking about how they were going to rob this guy [Perkins]” and that McCallum said, "If he had any trouble with this guy, they were going to have to kill him.” Russell Kelly further testified that when McCallum and Earhart returned to his house after the robbery with the loot from Perkins’s apartment, "they” told him "how they got these items” and that "[t]hey were going to come the next day and sell it for drugs and give me some.” He also testified that Earhart had told him that at the time of the robbery he had gone into Perkins’s apartment and while McCallum was "tussling everything in the house, Earhart was following behind him wiping fingerprints off.”

In this case, upon our independent review of the record, we conclude, as did the Court in Schneble v. Florida, supra, citing Chapman v. California and Harrington v. California, both supra, that "the 'minds of an average jury’ would not have found the State’s case significantly less persuasive had the testimony as to [the codefendant McCallum’s] admissions been excluded [as it would have been had the severance been granted].” The denial of the motion for severance was therefore harmless error beyond a reasonable doubt. See also Hodges v. Rose, 570 F.2d 643 (1978); and Dorsey v. State, 276 Md. 638, 350 A.2d 665 (1976).

From what we have said, it is apparent that when trial judges are presented with a Bruton problem in the context of a pretrial motion for severance, the safer course to follow is to grant the severance, if the defendant who requests the severance is inculpated to any extent by the challenged statement. By not so ruling, the risk is great that the error will not withstand the rigid test of the harmless error doctrine. We do not recommend that trial judges commit constitutional error in the hopes that by the time the trial is over the error will be rendered harmless beyond a reasonable doubt.

II

Appellant’s claim that the trial court erred in refusing to strike for cause "a juror who worked for a correctional official” is without merit. The court elicited from the juror that his job would not affect his ability to render a fair and impartial verdict. Moreover, the record reveals that the juror was peremptorily struck and did not sit on the jury. The record also indicates that appellant used only eighteen of the twenty challenges allowed him. Md. Rule 753a. Consequently, even if the court’s initial ruling had been erroneous, "the error would have been manifestly harmless.” McCree v. State, 33 Md. App. 82, 98 (1976).

III

Appellant finally contends that the trial court abused its discretion in allowing into evidence three photographs of the victim’s body because their admission was "unnecessary and tend[ed] to inflame the passions of the jury” and had "a prejudicial effect far in excess of their probative value.” Two of the photographs were taken at the victim’s apartment and the third was attached to the autopsy report admitted in evidence.

With respect to the first two photographs, the court said:

"First of all, I don’t think they are inflammatory, they are black and white photographs. They also are important or relevant, I should say, to show the manner of strangulation; shows the sheet around the neck and that is an important part of the case as well as the handcuffing behind the back. I must say, I’ve seen much more grissly and gruesome photographs on many cases.”

The third photograph, attached to the autopsy report, was also in black and white and was only a side view of the victim’s head and neck showing the strangulation marks on the neck and tended to corroborate the medical expert’s opinion that the "cause of death was ligature strangulation.” The picture was therefore relevant.

In the circumstances, we find no abuse of discretion. See Clarke v. State, 238 Md. 11, 22 (1965); Cook v. State, 225 Md. 603, 608 (1961), cert. denied, 368 U.S. 970 (1962); Cranford v. State, 36 Md. App. 393, 403 (1977), cert. dismissed, 282 Md. 255 (1978).

Judgment affirmed; appellant to pay the costs.

Moylan, J.,

concurring:

Since I agree with the majority opinion that any error (even assuming there to be error) would be harmless beyond a reasonable doubt, I concur in the judgment of the Court affirming this conviction. For my part, however, I would not reach out gratuitously to reject the interpretation placed upon the Confrontation Clause of the Sixth Amendment by a four-justice plurality of the Supreme Court of the United States. On the issue of what is Sixth Amendment error in a situation very like the case before us, the eight Justices voting split four-to-four. Although we have the undoubted right under such circumstances to be persuaded or to be unpersuaded, I would think it advisable under circumstances such as these, where the decision is so easily deferrable, to wait until the full complement of Supreme Court Justices has spoken. I am doubly disposed to waiting in that the missing voice is that of Justice Powell, who more frequently than not in terms of constitutional-criminal philosophy, is lined up with the Justices in the plurality camp. I would not, therefore, rush to judgment, particularly when, in my own view, we are rushing in the wrong direction.

      . McCallum did not appeal.

      . In Jacobs v. State, 45 Md. App. 634, 660-661 (1980) we cited Parker v. Randolph as a holding of the Supreme Court that the Bruton rule was inapplicable to interlocking confession cases. As we have noted herein, however, the opinion of the Supreme Court in that regard commanded the support of only four justices and is not, therefore, constitutionally binding.

      . Harrington v. California, supra; Schneble v. Florida, supra; and Brown v. United States, supra.

      . We note though that in Harrington v. California the Court said, "... [Tlhe case against Harrington was so overwhelming that we conclude that this violation of Bruton was harmless beyond a reasonable doubt ...” (Emphasis added); and in Brown v. United States the Court said, "... [W]e agree with the Court of Appeals that the Bruton errors were harmless.” (Emphasis added). In Schneble v. Florida, however, the Court said, "In the circumstances of this case, we find that any violation of Bruton that may have occurred ... was harmless beyond a reasonable doubt.” (Emphasis added.)

      . In Schneble v. Florida, supra, as in this case, two non-testifying codefendants were tried jointly; both had given extrajudicial statements; both statements were admitted in evidence with limiting instructions.