author: Gilbert, J.,

text:
    CARLTON CARL DIXON, the Younger v. STATE OF MARYLAND
    [No. 1125,
    September Term, 1974.]

      Decided July 3, 1975.

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

      Theodore B. Oshrine, Assigned Public Defender, for appellant.

      David B. Allen, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Leslie Stein, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

At approximately 6:15 o’clock on the morning of February 24, 1974, in Baltimore City, a Hong Kong citizen was robbed at gun point by two men, forced to perform fellatio upon one of her attackers, and she was raped by the same individual. The actual rape was interrupted by the arrival of the police. The criminals fled, but one of the assailants was apprehended within a short distance of the scene of the crime. The other culprit, the appellant, Carlton Carl Dixon, was identified by the prosecutrix from police identification photographs, and he was arrested at his home. He was subsequently convicted in the Criminal Court of Baltimore by a jury presided over by Judge Robert L. Karwacki.

On appeal to this Court appellant poses four issues for our review. He asserts:

“I. The Appellant was denied his right ‘to be confronted with the witnesses against him’ when the trial judge failed to hear testimony from the jurors or to grant a new trial where, in a prosecution for rape, the Appellant did not take the witness stand, yet the jurors were advised by another juror as evidenced by Officer Pullen’s Affidavit that the Appellant had a prior rape conviction.
II. The In-Court identification was so tainted by the line-up identification made by the prosecuting witness since the only two men in the line-up who did not have facial hair were the two Defendants.
III. The viewing by the prospective jurors of the Defendants in handcuffs and accompanied by jail guards was so prejudicial as to deny the Defendants a fair and impartial trial.
IV. The denial of the deposition of the prosecuting witness, requested in order that trial counsel have a fair opportunity to prepare for trial, was an abuse of judicial discretion and a denial of due process of law.”

The sufficiency of the evidence necessary to sustain the conviction is not here attacked by appellant, and therefore, no useful purpose, will be gained by a recitation of the sordid facts surrounding the commission of the crimes. We shall recount only such facts as may be necessary to a resolution of the particular issue under discussion.

I.

The primal contention of the appellant is that the trial court erred in refusing to grant appellant a new trial because a member of the jury panel made affidavit that the jury was informed by one of the jurors that appellant had a prior record for rape.

At the hearing on the motion for a new trial the appellant’s trial counsel produced an affidavit of William Earl Pullen, a juror in appellant’s trial. The affidavit reads:

“AFFIDA VIT OF OFFICER JAMES [sic] P ELLEN
I was one of the jurors who sat in the case of State of Maryland v. Carlton Dixon. After all testimony and argument of counsel, the jury retired to the jury room to begin deliberations. During those deliberations, one of the female jurors stated that Carlton Dixon had a prior conviction for rape.
I believe in my own mind that the knowledge of this prior conviction affected the jury’s decision in returning guilty verdicts.
s/ William Earl Pullen tl
Officer James Pullen
I SOLEMNLY DECLARE AND AFFIRM under the penalties of perjury that the above information is true and accurate.
s/ William Earl Pullen
Officer James Pullen”

The theme of appellant’s argument at the time of the hearing on the motion for a new trial and here is that the “female juror’s” alleged remark to the balance of the jury panel denied appellant his Constitutional “right to be confronted with the witnesses against him and to enjoy a trial by an impartial jury.”

The general rule is that a juror will not be heard to impeach his own verdict. The rule was given “its initial impetus as early as 1758 by Lord Mansfield in Vaise v. Delaval, 1 T.R. 11, 99 Eng. Rep. 944.” Williams v. State, 204 Md. 55, 68, 102 A. 2d 714 (1954). The Iowa Supreme Court relaxed in Wright v. Illinois and Mississippi Telegraph Co., 20 Iowa 195 (1866) the Lord Mansfield Rule with the articulation of what is still styled the “Iowa Rule”. That rule allows both “affidavits and testimony of jurors for the purpose of correcting a clerical mistake in the jury’s uttered verdict or to avoid the verdict because of irregularities of conduct, among which are intoxication, separation, private view, consultation of witness or party, acceptance of bribes, and reading of illegal documents.” Williams v. State, supra, 204 Md. at 68.

The Supreme Court of the United States, fifteen years before the promulgation of the “Iowa Rule”, in United States v. Reid, 53 U. S. (12 How.) 361 (1851), modified the Lord Mansfield Rule and accepted a distinction between the juror’s mental processes and extraneous acts which influence the juror’s decision. The Court allowed evidence as to the latter and not the former. Subsequently the Court in Mattox v. United States, 146 U. S. 140, 13 S. Ct. 50, 36 L. Ed. 917 (1892) established the “Iowa Rule” as the rule to be used in the federal courts.

Then Chief Judge Sobeloff of the Court of Appeals of Maryland, in Williams v. State, supra, stated that the Supreme Court in McDonald v. Pless, 238 U. S. 264, 35 S. Ct. 783, 59 L. Ed. 1300 (1915) seemed “in language at least, to tend toward return to the stricter rule of exclusion formulated by Lord Mansfield.” Judge Sobeloff said:

“While there has been some criticism of the federal rule as declared in McDonald v. Pless (see Jorgensen v. York Ice Machinery Corporation, 160 F. 2d 432, 435, cert. denied 332 U. S. 764; Note, 47 Col. L. Rev. 1373), ‘it is beyond doubt a settled rule that jurors in the federal courts will not be heard “for the purpose of impeaching the verdict returned where the facts sought to be shown are such that they essentially inhere in the verdict,” ’ Rakes v. United States, 169 F. 2d 739, 745, cert. denied 335 U. S. 826; Edwards v. District of Columbia, 68 A. 2d 286, 288. The federal rule has been summarized by Wigmore as making inadmissible jurors’ misunderstandings, motives, beliefs and improper remarks and the like. See 8 Wigmore, Sec. 2349.” 204 Md. at 70.

Maryland, however, has not deviated from the rule that what occurs in the jury room, generally, remains in the jury room. That is to say that jurors cannot ordinarily be heard to impeach their own verdict “whether the conduct objected to be misbehavior or mistake.” Williams, supra at 70. See also 2 J. Poe, Pleading and Practice at Law § 348 (5th ed. H. Tiffany, 1925); Kelly v. Huber Baking Co., 145 Md. 321, 328, 125 A. 782 (1924); Brinsfield v. Howeth, 110 Md. 520, 530, 73 A. 289 (1909), Ford v. State, 12 Md. 514, 546 (1859); Bosley v. Chesapeake Insurance Company, 3 G. & J. 450, 473, footnote (1831).

The reasoning behind the Maryland Rule is that public policy forbids the disclosure of jury secrets inasmuch as such a disclosure opens wide the door for possible fraud, penury and tampering. Therefore, the law has wisely guarded against an invasion by litigants or others of the jury room, and the law has continuously endeavored to safeguard and hold inviolate the secrets of the jury deliberation.

Courts, however, are reluctant to lay down an ironclad rule which would, under all circumstances, preclude jurors from impeaching their own verdict. This is so, in the words of Chief Justice Taney, because “cases might arise in which it would be impossible to refuse . . . [the affidavits of jurors impeaching their own verdict] without violating the plainest principles of justice.” United States v. Reid, supra at 366. See also United States v. Rees, 193 F. Supp. 861 (D. Md. 1961). We, in Maryland, have recognized that “a juror’s affidavit, or testimony tending to prove the fact set forth in t'he affidavit, might be introduced in an appropriate independent criminal proceeding.” Williams v. State, supra at 71. Chief Judge Sobeloff concluded in Williams at 71, however, that “under no circumstances” is a juror’s affidavit or testimony “admissible to impeach the juror’s (non verdict at the hearing of the motion for a new trial.” (Emphasis supplied). To the same effect see also Kelly v. Huber Baking Co., supra, at 329 wherein it is stated, “under no circumstances could” a juror’s “affidavit be considered for the purpose [impeachment of the verdict] at the hearing of the motion for a new trial.”

In the instant case the above quoted affidavit was produced at the hearing on the motion for a new trial. At the same time, the trial judge was advised that two (2) to four (4) of the jurors who heard appellant’s case had journeyed to the Baltimore City Jail for the purpose of advising appellant that the Assistant State’s Attorney who prosecuted this case in the trial court had improperly advised the jury of the appellant’s prior criminal record. To counter such assertion, the State introduced seven (7) “Baltimore City Jail Visitor Pass” forms, dated subsequent to the trial. The seven passes, which were the only passes used by persons going to see the appellant, were used by a total of four persons, one of whom was trial counsel and none of whom was a member of the jury panel.

In any event, neither the affidavit of the juror, nor the testimony of that juror or other jurors, was admissible at the hearing on the motion for a new trial. Williams v. State, supra. Judge Karwacki did not abuse his discretion in refusing to consider the affidavit, nor in declining to hear testimony relative thereto. State v. Devers, 260 Md. 360, 272 A. 2d 794 (1971).

II.

The appellant argues that the in-court identification of him by the prosecutrix was tainted. He grounds this assertion upon allegations that there were five persons in a line-up that was held in the Central Police Station, but that only the appellant and his co-defendant “did not have facial hair.” Although the prosecutrix acknowledged in her testimony that the co-defendant did not have facial hair, she was of the opinion that the appellant did have, “if you look real hard.” The photograph that was taken of the line-up was not made a part of the record, and it is thus impossible for us to make an independent appraisal thereof. We do note, however, that according to the prosecutrix’s testimony, she spent a period of fifteen to twenty minutes with the appellant during which time she had ample opportunity to observe him. The prosecutrix testified that the lighting conditions were such that she was able to see readily the appellant. Moreover, without hesitation, she selected the photographs of the appellant and his co-defendant from among fifteen police “mug shots”, and the line-up occurred subsequent to the photographic identification procedure.

We are required by mandate of the Supreme Court of the United States to exercise an independent review of the evidence surrounding or concerned with the identification procedure that is employed in a given case. Neil v. Biggers, 409 U. S. 188, 93 S. Ct. 375, 34 L.Ed.2d 401 (1972); Foster v. State, 272 Md. 273, 323 A. 2d 419 (1974). Bearing in mind our constitutional duty, when the testimony of the prosecutrix is weighed on the scale of Neil v. Biggers, supra, as articulated in Dobson v. State, 24 Md. App. 644, 335 A. 2d 124, cert. denied, June 2, 1975, it is apparent that because of her fifteen to twenty minutes’ opportunity to view the appellant under circumstances where his facial features were visible, the emphatic certainty of her photographic identification of appellant, which occurred within a matter of hours following the rape, the relationship in point of time of the line-up to the crimes, i.e., within five days thereof, we are led to the conclusion that the line-up identification was not impermissibly-unnecessarily suggestive. See Dobson v. State, supra. The trial judge properly declined to suppress the judicial identification.

III.

Appellant penultimately contends that as a result of his being led, handcuffed, into the courtroom, in the presence of the jury, he was denied a fair trial. The short answer to this contention is that the appellant was shackled only while being led into the courtroom and away from the courtroom. This action was necessitated, in the opinion of the trial judge, because:

“ . . . We are in a period at the Baltimore City Jail with some problems regarding the handling of prisoners awaiting trial inasmuch as the Baltimore City Jail personnel are now on strike and the custody of the prisoners is being handled in conjunction with the Baltimore City Police Department and the Sheriffs office. The defendant Dixon made a rather audible comment to one of the Sheriffs at the conclusion of the proceedings this morning to the effect that ‘If you touch me again M. ---F. — I’m going to punch you in the nose.’ In light of that, and I think it is perfectly reasonable for these personnel to take what security measures are necessary for the protection of the people in the courtroom and the Court and counsel as may be dictated by a recalcitrant defendant. I don’t see any prejudice to these defendants, but, moreover, whatever prejudice that resulted from the appearance of shackles, they brought on themselves.”

If an accused so deports himself as to disrupt or threatens to disrupt the orderly process of the trial, or threatens to do bodily harm to the judge or courtroom attendants, the trial judge, in keeping with his obligation to assure the swift and proper administration of justice, is justified in taking such precautions as may be necessary to carry out his duty subject, of course, to appellate review in order to protect an accused from a denial of due process of law. See Illinois v. Allen, 397 U. S. 337, 90 S. Ct. 1057, 25 L.Ed.2d 353 (1970); N. Dorsen & L. Friedman, Disorder in the Court (Report of the Association of the Bar of the City of New York, Special Committee on Courtroom Conduct 1973).

Under the circumstances of this case, we observe no abuse of discretion, nor are we able to conclude, on the basis of the record before us, that the appellant’s wearing of handcuffs at the time of his entrance into the courtroom, and his being re-handcuffed upon exiting the courtroom, amounted to a denial of due process or deprived the appellant of a fair and impartial trial. See Dunphy v. State, 13 Md. App. 671, 677, 284 A. 2d 631 (1971).

IV.

Ultimately appellant argues that the trial court erred in not allowing the appellant to depose the prosecutrix prior to trial. The basis of appellant’s desire to take the prosecutrix’s deposition was that the audio recording, taken at the time of the preliminary hearing in the District Court, was “full of inaudibles.” No contention is made that the State purposely caused such “inaudibles”, nor did trial counsel, insofar as we can tell, heed the suggestion of the judge and refer to counsel’s own notes presumably taken at the time of the preliminary hearing. There is no constitutional right to depose, in a criminal case, a State’s witness, nor is there a provision in the Maryland Rules for such discovery. Indeed, the only time that a deposition, in a criminal case, may be taken is specified in Md. Rule 727 a. It provides:

“If it appears that a prospective witness may be unable to attend or prevented from attending a trial or hearing, that his testimony is material and that it is necessary to take his deposition in order to prevent a failure of justice, the court, may, in its discretion, upon motion of an accused or State’s attorney and notice to the parties order that the testimony of such witness be taken by deposition and that any designated book, paper, document or tangible object, not privileged, be produced at the same time and place.”

The purpose of the rule is patently for the perpetuation of evidence, not its discovery. Kardy v. Shook, 237 Md. 524, 207 A. 2d 83 (1965). Moreover, the Court of Appeals in Kardy said that trial courts lack an inherent power to direct the taking of depositions. See also Collins v. State, 12 Md. App. 239, 278 A. 2d 311 (1971), aff'd 265 Md. 70, 288 A. 2d 163 (1972). The long and short of the matter is, simply stated, that at the present time an accused has no right to discovery by way of a deposition in a criminal case.

Judgments affirmed.

      . Appellant had been convicted of rape in July, 1969. He was sentenced to ten years imprisonment, but was paroled on December 3,1973.

      . The data relative to the jury panel from which Mr. William E. Pullen was selected discloses that Pullen was a “Correctional Officer, Balto. City.” We glean therefrom that Mr. Pullen was a guard at the Baltimore City Jail.

      . The eo-defendant is not a party to this appeal.


source: Caselaw Access Project

author: Lowe, J.,

license: Public Domain

text:
    RICHARD WILLIAM LAWLESS v. DIRECTOR, PATUXENT INSTITUTION
    [No. 1037,
    September Term, 1974.]

      Decided July 7, 1975.

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

      David E. Manoogian, Assigned Public Defender, with whom were MacDonald & Manoogian on the brief, for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Donald R. Stutman, Assistant Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Jerome C. Schaefer, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

The issues are too clear and the law too well settled to require extended factual synopses or lengthy legal analyses to arrive at our result. Richard William Lawless, a young man whose name is not new to appellate reports, was received in Patuxent Institution for examination December, 1969, by order of the Circuit Court for Montgomery County. There followed a series of legal attempts by appellant to overcome that referral. These attempts covered a two year period. Following their unsuccessful conclusion, the State requested a hearing on September 15, 1972 presumably based upon the Diagnostic Staff Report dated August 22, 1972.

There was an unexplained hiatus of more than two years before the trial was finally held on December 12, 1974, before a jury of the Circuit Court for Montgomery County. Dr. Charles Cherry, a staff psychologist, was the only State witness. Through him the Patuxent records relating to Mr. Lawless and the August 22, 1972 evaluation report were introduced. A full reading of the record reveals that Mr. Lawless consistently refused examination and it appears the Patuxent officials acquiesced in that refusal.

Dr. Cherry’s testimony clearly revealed that he did not personally examine Lawless and he further indicated that neither had the director nor the resident psychiatrist who also signed a Diagnostic Staff Report on Lawless dated August 22, 1972. Dr. Cherry admitted he had not even seen Lawless in over a year. He testified that his evaluation, and inferentially that of all the staff members who signed the report, was made on the strength of Lawless’s record which contained prior examination reports and evaluation from the Clifton T. Perkins Institution.

At the close of the State’s case appellant moved for a directed verdict grounded upon the State’s failure to show compliance with Md. Code, Art. 31B, Sec. 7 which requires that an evaluation of defective delinquency shall be upon examination

“ . . . made by at least three persons on behalf of the institution for defective delinquents, one of whom shall be a medical physician, one a psychiatrist, and one a psychologist.. . .”

This examination, following a compilation of pertinent information about the person to be examined, provides the basis for the staff determination.

“On the basis of all the assembled information, plus their own personal examination, and study of the said person, they shall determine whether in their opinion, or in the opinion of a majority of them, the said person is or is not a defective delinquent. . . .” [Emphasis added].

Although comprehending the purport of appellant’s motion, the trial judge utilized Dr. Cherry’s testimony to explain that the Patuxent officials’ interpretation of the statute was contrary to the statute’s words. Unfortunately the judge adopted that interpretation.

“As I understand his motion, though, as presented, is that there was no personal examination in the prescribed review by — by prescribed I mean that prescribed by the Staff, and that is not in conformity with the decisional law on this matter now. They have determined that the phrase used in the statute is, does not mean that, that it is necessary to have a personal examination, and that it is appropriate to present this matter at the staff evaluation in the form of prior reports, and which have been reviewed by the staff and wherein their opinion, those prior reports, broad enough in significance, enough for them to make the finding that they have declared, and in this case the staff which included a physician-psychiatrist and a psychologist, that they concluded from all of the available evidence that they had, accumulated records and recent past examinations, that they had an opinion.
Now, under those circumstances, particularly where it was buttressed by the testimony from the psychologist who participated in that, that it was not merely a matter of having prior reports and evaluations available, but weighing and considering them, there was no necessity deemed by the Institution to seek the examination which might be undertaken by way of contempt and whether or not they are correct in their determination or the method that they used to proceed to determine it and the value of it is a matter for the jury to decide, and the motion must be overruled because I can’t indulge in the propensity that I might have to weigh the evidence.”

That ruling would have been in accord with our opinion in State v. Weeder, 22 Md. App. 249, where we held such diagnosis could not be frustrated by an uncooperative inmate if the diagnosis could be based on historical data. However, on May 7, 1975 the Court of Appeals reversed us in Weeder v. State, 274 Md. 626, and flatly held that our Court “. . . was incorrect in its necessarily implied conclusion that a commitment could be based solely on a patient’s prior medical record.”

As if in direct response to the trial judge’s holding here, Judge Singley wrote for the Court:

“In our view, the examination mandated by Art. 31B, Sec. 7 (a) cannot be finessed simply because an inmate declines to be interviewed. We do not propose here to delineate with any precision the alternate procedures to be followed by the medical, psychiatric and psychological team, because we regard this as far beyond the horizons of judicial expertise. It occurs to us, however, that at a minimum the report of the staff should include relevant information from the study made by the social worker, a summary of the inmate’s prior arrests and convictions, incident reports, disciplinary infractions, observations made by guards, fellow inmates and staff, and at least a minimal personal confrontation between the inmate and staff.
It seems to us that the time has come when a clear delineation must be made between an interview and the term ‘personal examination and study’ used in Art. 3 IB, Sec. 7 (a). The statutorily mandated examination normally contemplates both an interview and observation. The recalcitrant inmate, who refuses to talk does not necessarily insulate himself from examination, however. He may still be observed and studied, and, in a proper case, a valid diagnosis reached.”

The Court of Appeals quoted from McNeil v. Director, 407 U. S. 245, 251-252 to reaffirm the possibility of making such an evaluation despite an inmate’s refusal to cooperate. The requisites recited by Weeder, supra, as “a minimum the report of the staff should include” were for the most part complied with here save the last set forth:

“ . . . and at best a minimal personal confrontation between the inmate and staff.”

Our reversal is based upon a total absence of even “minimal personal confrontation between inmate and staff”; however, compliance with our remand will be less clear. Like the Court of Appeals

“We do not propose to delineate with any precision the alternate procedures to be followed by the medical, psychiatric and psychological team, because we regard this far beyond the horizons of judicial expertise.” Weeder, supra.

Appellant raised three other issues, response to which yields to our reversal here. However, since there was a preliminary Motion Ne Recipiatur and To Strike filed by appellee, we find it more orderly to respond to that motion.

The motion was for the court not to receive and to strike affidavits of jurors reciting reasons for their verdicts, which reasons formed a basis for a dual attack upon the verdict by appellant. We unhesitatingly grant the motion to reject that which was not a part of the record on appeal, Md. Rule 1026 c and represented an issue which had not been tried and decided by the lower court. Md. Rule 1085. Even the substance of that attack, founded as it were upon jurors’ renunciations, is not an issue upon which the case law is equivocal:

“[I]n Maryland it is ‘well settled that a juror cannot be heard to impeach his verdict, whether the jury conduct objected to be misbehavior or mistake. Browne v. Browne, 22 Md. 103, 113. The reasons for the rule have been stated by this Court in Brinsfield v. Howeth, 110 Md. 520, 530, in these impressive words: ‘Such evidence is forbidden by public policy, since it would disclose the secrets of the jury room and afford an opportunity for fraud and perjury. It would open such a door for tampering with weak and indiscreet men that it would render all verdicts insecure; and, therefore, the law has wisely guarded against all such testimony and has considered it unworthy of notice. It would be a most pernicious practice, and in its consequences dangerous to this much valued mode of trial, to permit a verdict, openly and solemnly declared in the Court, to be subverted by going behind it and inquiring into the secrets of the jury room.’ ” Christ v. Wempe, 219 Md. 627, 641. For an in depth discussion on this point, see J. Gilbert’s opinion in Dixon v. State, 27 Md. App. 443.

Judgment reversed.

Case remanded for retrial following evaluation in compliance 'with Weeder v. State, 274 Md. 626.


text:
    DARYL RENARD STEVENS v. STATE OF MARYLAND
    [No. 1076,
    September Term, 1974.]

      Decided July 7, 1975.

      The cause was submitted on briefs to Orth, C. J., and Davidson and Lowe, JJ.
    Submitted by Sanford Z. Berman and Pickett, Houlon & Berman for appellant.
    Submitted by Francis B. Burch, A ttomey General, James G. Klair, Assistant Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Ronald G. Scheraga, Assistant State’s Attorney for Montgomery County, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Because the Court of Appeals has provided for an immediate appeal from a denial of a motion to dismiss based upon double jeopardy, Neal v. State, 272 Md. 323, appellant is properly before us. Although his motion to dismiss, denied in the Circuit Court for Montgomery County, asserted grounds of collateral estoppel and res judicata as well as double jeopardy, none of these questions may be reached without crossing the threshold of the jural effect of probation without verdict.

Appellant was arrested as the result of a warranted search of his Prince George’s County abode and the seizure of some 28 items which we will assume for purposes of this appeal were stolen from a household in Montgomery County. Apparently as a result of a plea bargain he was charged in the Prince George’s County District Court on June 13, 1974 with receiving stolen goods under $100.00. The judge said to appellant “the Court is convinced of your guilt beyond a reasonable doubt.” He then went on to say:

“The Court will accept the recommendation of the State Mr. Stevens, therefore, we will enter a finding of probation before verdict, place you on 12 months unsupervised probation. Any difficulties in the 12 months Mr. Stevens and you’re brought back and I — find you guilty. Do you understand what I’m saying? ”

Meanwhile in Montgomery County, appellant had been indicted on June 5, 1974 for burglary (both common law and statutory), daytime housebreaking, breaking and entering, larceny and receiving stolen goods. It is clear from the indictment that the goods he was charged with purloining or intending to purloin or receive were the same he had been charged with receiving in Prince George’s County. Appellant moved in the Circuit Court for Montgomery County to dismiss the indictment. The denial of that motion gave rise to this appeal.

Appellant admits that the probation without verdict he received in Prince George’s County is incompatible with a guilty verdict, and the latter must yield to the former. The accused can — indeed must — be retired ab ovo upon violation of that probation. In Duppins v. State, 17 Md. App. 464, 467 we quoted ourselves for emphasis from Bartlett v. State, 15 Md. App. 234, 241.

“Should the probation thus granted be revoked at a subsequent hearing for that purpose, the case reverts to its status at the time the probation was granted, and determination of guilt, by plea or trial, must follow before any sentence may be imposed.”

As construed by these two cases, the effect of probation without verdict is the conditional suspension of both the State’s right to prosecute and the various protections afforded an accused prior to trial, e.g., the presumption of innocence. This statutory hybrid provides a second chance for an accused to avoid the stigma of conviction. State v. Jacob, 234 Md. 452, 455.

Bartlett and Dwppins, both supra, point out the contradiction of imposing a sentence “without finding a verdict.” The Legislature has authorized the imposition of restitution by a court in such cases, C. 795, Acts of 1974, but awaited the 1975 session to meet the problem of what to do with respect to the original offense in the event of violation of the conditions of probation. Perhaps to preclude an errant probationer from simultaneously violating his probation and re-donning the cloak of presumed innocence (not to mention the necessity of the State re-shouldering the heavy burden of proof beyond a reasonable doubt, made heavier by passage of time) the Legislature recently eliminated the de novo trial upon violation of probation. The Legislative remedy so drastically changed the concept of Sec. 641 as to virtually eliminate probation without verdict in the orthodox sense. C. 527, Acts of 1975. We are, however, not concerned with the revised version, being restricted to the effect of Sec. 641 as it appeared prior to either the 1974 or the 1975 amendments.

Our Bartlett and Duppins opinions on the older version provide the necessary guidance. The trial judge correctly read those cases as implying “that there should be a retrial upon revocation” but erroneously extended that to mean that “there would not be a question of jeopardy.” Presumably acknowledging that jeopardy attached, he was “not satisfied that it necessarily matured.”

His reasoning would have been appropriate to considerations of the evidentiary rules of collateral estoppel and res judicata since these principles are both conditioned upon an issue of ultimate fact having been once determined by a valid and final judgment. Ashe v. Swenson, 397 U. S. 436. However, when faced with the Fifth Amendment constitutional question of double jeopardy applied to the states through the Fourteenth Amendment by Benton v. Maryland, 395 U. S. 784 we are concerned with the question of whether jeopardy attached rather than if it “matured.” Cf. Blondes v. State, 273 Md. 435. It makes no difference that the ultimate disposition of the Prince George’s County charge of receiving stolen goods was conditional. The warrant was amended, a not guilty plea was entered, a finding of not guilty on a coincident assault charge was accepted in the absence of an evidentiary proffer by the State and a stipulation of facts was submitted to the court relative to the receiving charge. Preliminarily the court explained to the accused:

“Judge: Just a moment, just a moment. Sir, we’re going to proceed without witnesses being called against you, you — of that, what I’m saying?
A Yes sir.
Judge: And you have no right to cross examine or question any witnesses. The State is going to tell the Court what happened, do you understand the way we’re proceeding?
A Yes sir.
Q Do you have any objections to the manner in which we’re proceeding?
A No I don’t.
Judge: Alright, counsel?”

There followed the factual recitation upon which the judge declared that the evidence convinced him of appellant’s guilt beyond a reasonable doubt.

In an analagous situation considered by the Supreme Court, a juvenile was transferred from Juvenile Court to a Superior Court after an adjudicatory hearing to determine if he had violated a criminal statute. Concluding that the subsequent trial placed him in jeopardy twice for the same offense the Supreme Court in Breed v. Jones, U. S., 17 Crim. L. R. 3047 held that “Jeopardy attached when respondent was ‘put to trial before the trier of facts (United States v. Jorn, 400 U. S. 470, 479)’ ibid., that is, when the . . . Court, as the trier of facts, began to hear evidence. See Serfass v. United States, 420 U. S. at .”

The Court went on to describe in detail what constitutes “jeopardy”:

“Jeopardy denotes risk. In the constitutional sense, jeopardy describes the risk that is traditionally associated with a criminal prosecution. See Price v. Georgia, 398 U.S. 323, 326, 329 (1970); Serfass v. United States, 420 U.S. 377 (1975). Although the constitutional language, ‘jeopardy of life or limb,’ suggests proceedings in which only the most serious penalties can be imposed, the Clause has long been construed to mean something far broader than its literal language. See Ex parte Lange, 85 U.S. (18 Wall.) 163, 170-173 (1873).
As we have observed, the risk to which the term jeopardy refers is that traditionally associated with ‘actions intended to authorize criminal punishment to vindicate public justice.’ United States ex rel. Marcus v. Hess, supra, at 548-549. Because of its purpose and potential consequences, and the nature and resources of the State, such a proceeding imposes heavy pressures and burdens — psychological, physical, and financial — on a person charged. The purpose of the Double Jeopardy Clause is to require that he be subject to the experience only once ‘for the same offence.’ See Green v. United States, 355 U.S. 184, 187 (1957); Price v. Georgia, 398 U.S., at 331; United States v. Jorn, 400 U. S. 470, 479 (1971).”

In light of that discussion, we would be hard pressed to exempt a criminal proceeding which ends in probation without verdict from the strictures of the double jeopardy clause. Clearly it is the nature of the proceeding and not the suspension of verdict which controls.

That jeopardy attached here when the stipulated facts were submitted to the court is evident from a comparison with the facts in Blondes, 273 Md. at 446:

“When the prosecution asks for a ruling on the admissibility of the chief documentary evidence against a defendant, when it begins offering other documentary evidence against the defendant, and when it offers the testimony of a witness as a necessary condition to the admissibility of such evidence, then the court has begun ‘to hear the evidence.’ And under the alternate test of ‘swearing the first witness,’ jeopardy attached when Mr. Miller took the oath.”

In Blondes, the commencement of the trial placed the appellant in jeopardy, after which the State elected to enter a nolle prosequi to conclude it. Here the stipulated factual recitation had the same effect and the agreed condition of “probation without finding a verdict” suspended the State’s right to prosecute in the absence of a violation of the conditions of probation.

Consequently, appellant’s Motion to Dismiss the Indictment should have been granted as to the Seventh and Eighth Counts of the Montgomery County Indictment for receiving the same stolen goods for which he had been once placed in jeopardy in Prince George’s County. It follows logically that the Fifth and Sixth Counts charging larceny of the same items should also have been dismissed since one may not be convicted of stealing that which he has been determined to have received. Bell v. State, 220 Md. 75; Heinze v. State, 184 Md. 613, 617.

However, we affirm the denial of the Motion to Dismiss the first through fourth counts charging common law burglary, statutory nighttime housebreaking, statutory daytime housebreaking and breaking and entering. Each of these crimes has elements different from and/or in addition to the crime of receiving stolen goods for which appellant is serving his probationary period. Generally, for double jeopardy to bar subsequent prosecution for other crimes arising from the transaction for which appellant had once been brought to trial, the offenses charged must be the same in law and in fact. United States v. Ewell, 383 U. S. 116; Rouse v. State, 202 Md. 481. The Court of Appeals in Bennett v. State, 229 Md. 208, 214 has termed that principle the Blockburger rule from its origin in Blockburger v. United States, 284 U. S. 299, 304:

“ ‘Each of the offenses created requires proof of a different element. The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.’ ”

We carry coals to Newcastle by adding that elements of the crimes charged in counts one through four require proof of facts that receiving stolen goods does not.

Judgments affirmed in part and reversed in part.

Case remanded for compliance with this opinion.

Costs to be divided equally between appellant and appellee.

      . The District Court" transcript contains a notarized “Certificate which reads:
      “I HEREBY CERTIFY this 17th day of September, 1974 that the foregoing transcript was typed by me as heard from the recordings provided by the District Court. Any errors or omissions are due solely to the inability of the undersigned to clearly hear said recordings."

      . The Prince George’s County Inventory of property seized itemizes the personalty found in appellant’s abode. For purposes of appeal we accept their being the same as those described in counts of the Montgomery County indictment. But for a typographical spelling error the victim’s identification is the same.

      . The prosecution was on behalf of the State — the sovereign — whether or not it was conducted in Prince George’s or Montgomery County. Political subdivisions such as counties “never were and never have been considered as sovereign entities. Rather, they have been traditionally regarded as subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions.” Reynolds v. Sims, 377 U. S. 533, 575 cited in Waller v. Florida, 397 U. S. 387, 392. Thus we are not faced with responsibility for an offense against dual sovereigns as discussed in Moore v. Illinois, 55 U. S. 13 and Bell v. State, 22 Md. App. 496, 509-510.

      . We do not decide whether a different result would obtain had appellant previously been acquitted of crimes with common elements arising from the same transaction. Ashe v. Swenson, supra, 397 U. S. 436.


author: Moylan, J.,

text:
    IN RE APPEAL NO. 1124 (1974) from the Circuit Court of Baltimore City, sitting as a Juvenile Court
    [No. 1124,
    September Term, 1974.]

      Decided July 7, 1975.

    The cause was argued before Moylan and Lowe, JJ., and John C. Eldridge, Associate Judge of the Court of Appeals, specially assigned.

      Arnold M. Zerwitz, Assistant Public Defender, and George E. Bums, Assistant Public Defender, with whom were Alan H. Murrell, Public Defender, and Richard G. Bartholomee, Assistant Public Defender, on the brief, for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Allen, State's Attorney for Baltimore City, and
      Jack Terzin, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

The juvenile appellant in this case was found to be delinquent in the Circuit Court of Baltimore City sitting as a Juvenile Court by reason of the illegal possession of a handgun. Upon this appeal, he raises four contentions:

(1) That he was erroneously denied a continuance for purposes of producing a necessary defense witness;
(2) That the court erred in applying the “missing witness” rule;
(3) That there was not shown an adequate legal basis for the finding of delinquency; and
(4) That the evidence did not show that the gun in question was a “handgun” within the contemplation of Article 27, § 36B.

The factual posture of the case is very simple. The only witness called by the State was Officer Timothy Murry of the Baltimore City Police Department. Officer Murry testified that on October 2, 1974, at approximately 11:50 a.m., he was seated in his marked police car parked in the 400 block of E. 25th Street. An unidentified informant approached him and told him that there were three black male juveniles with a gun in a house on the corner. When three boys came out of the house, Officer Murry stopped them and frisked them. The frisk produced a .32 caliber automatic and a clip. Both the gun and the clip were empty. The gun was not operable. All three juveniles were arrested, and the informant was paid a $100 bounty. The critical testimony implicating the appellant was the testimony of Officer Murry that it was the frisk of the middle man of the threesome that produced the automatic and that the appellant was that middle man.

The appellant took the stand in his own defense. He testified that he was awakened on October 2, 1974, by his cousin, Joseph Thompson, and a third boy, Raymond Hansley. It was the cousin, Joseph Thompson, who possessed the .32 automatic. He showed the appellant the gun but never let it out of his own hands. The cousin said that he wanted to turn the gun into the police department for the bounty that was at that time being offered for handguns. He asked the other two juveniles, Hansley and the appellant, to accompany him to the police station, and he offered to split the bounty three ways. When the three boys emerged from the house, they were stopped and frisked by Officer Murry. According to the appellant, however, it was the cousin, Joseph Thompson, who was the middle boy and who possessed the gun at the time of its seizure.

The identification of the appellant as “the middle boy” was, therefore, the pivotal issue of the entire case. At the initial hearing on October 28, 1974, the appellant took the initiative in this regard and called to the stand the third juvenile, Raymond Hansley. Hansley was present and was sworn in as a witness. Just as the direct examination was beginning, the trial judge sua sponte questioned the juvenile witness on the subject of possible self-incrimination. After an exchange that consumed some five pages in the trial transcript, the court concluded that it did not want the witness to go forward with his testimony until he had been allowed an opportunity to consult with a lawyer:

“THE COURT: I am not so sure that this witness, considering his age, is fully aware of the advice that I have been trying to give him, and the implications that there may be in his testifying, and consequently, it is my own personal opinion — my own personal view that he ought not be called as a witness at this time, until he has had an opportunity to receive advice either from his family members, or from a lawyer, or both.
MR. BARTHOLOMEE: Well, under those conditions, then, your Honor — would your Honor be in a position to continue the case, is that what you are suggesting?
THE COURT: If you wish to have a continuance, I would grant you a continuation.
MR. BARTHOLOMEE: Well, I certainly wish the testimony of this witness.
THE COURT: Well, you are certainly entitled to try to have him as a witness, yes, and certainly entitled to a continuance in order to achieve this purpose.”

A continuance was granted until November 8, 1974. Although we certainly applaud the solicitude of the trial judge for the juvenile witness, we note that the continuance on that occasion was not caused in any way by the appellant, who had his defense witness in court ready to testify.

When the case was called on November 8, neither the appellant nor his witness were present. It was revealed, however, that the entire problem with respect to November 8 was because of a bureaucratic mix-up in the Public Defender’s Office. Several members of the Public Defender’s staff, with administrative responsibilities, took full responsibility for the mix-up. It was clear that the appellant was not derelict in any fashion.

The critical occasion for present purposes was the reconvening of the trial on November 21, 1974. On that occasion (and for the first time), the defense witness, Raymond Plansley, was inexplicably missing. In terms of diligence, however, it was developed that the appellant had issued a summons for him. In terms of reasonable expectation that he would appear to testify, it was developed that the appellant had spoken to him as late as the day before and had been reassured that he was willing and ready to testify. Appellant’s counsel represented to the court:

“The young man in question is not here, and I am most respectfully requesting a further continuance. I believe, as I stated on October 28th, that his testimony is indeed crucial to the defense of this respondent, and I need his testimony. I know what it’s going to be. I know the nature of it, and I believe that it will completely exonerate my client. Therefore, I am asking for a further continuance in this case. If this Court feels it is necessary, although I’m not certainly recommending it, or requesting it, but if that’s the only way that it can be obtained, I would suggest issuing a warrant so that he can be brought in. I don’t have any explanation as to his absence today. All I can present to the Court is from my client’s contact with him, his willingness as late as yesterday to come in to testify. All I can assume from that is something must have happened, either in the family, or something to prevent his being here today, because he certainly had made every plan to be here.
THE COURT: Was a summons issued for him to be here?
MR. BARTHOLOMEE: It’s my understanding a summons was issued, yes, Your Honor.”

The court denied the motion for continuance, stating:

“I’m going to deny counsel’s request for postponement. As I recounted before, this is the third time this matter has been in for hearing. And each time, we have attempted to move ahead with the defense. The last time the State was able to proceed. Today the defense is unable to proceed, without any explanation where the witness is. Why he’s not here, although the respondent did have communication with him yesterday. I just do not feel we can put this matter off until a fourth time, and who knows what may happen then. I think three trial dates for the Court prepared to hear the defense is adequate for the respondent. I think there has to be a point at which these proceedings reach a conclusion. I think that under the circumstances, we have reached that point here today.”

The standard by which we review the exercise of discretion by the trial court in these matters is clear. As we said in Hainesworth v. State, 9 Md. App. 31, at 36:

“We have consistently held, however, that in order to show an abuse of that discretion it is incumbent upon an accused who seeks such continuance to show that the testimony of the absent witness was competent and material; that the case could not be properly tried without such evidence; that he had made diligent and appropriate efforts to procure the witness; and that he had reasonable expectation of procuring the attendance of the witness in court within some reasonable time. Nichols v. State, 6 Md. App. 644; Clark v. State, 6 Md. App. 91. The circumstances of each particular case must be looked at to ascertain whether the lower court’s action amounted to an abuse of discretion. Walter v. State, 4 Md. App. 373.”

See also Thanos v. Mitchell, 220 Md. 389; Plank v. Summers, 205 Md. 598; Clark and Richardson v. State, 6 Md. App. 91; Boone v. State, 2 Md. App. 80.

In the present case, no jury was, of course, involved. Other witnesses were not being inconvenienced. The first continuance was necessitated by the wholly appropriate actions of the judge himself. The second continuance was attributed solely to the bureaucratic machinery of the Public Defender’s Office. The request by the appellant here invoked no phantom witness, but a named witness who had been present and willing to testify on October 28. He was a direct eyewitness to the critical event and it was represented to the court by appellant’s counsel that his testimony would corroborate and, therefore, tend to exonerate the appellant. A summons had been issued for him and the appellant had talked to him as recently as the day before trial. Under the circumstances, we hold that the denial of the request for a continuance in this case was an abuse of discretion and that a reversal of the adjudication of delinquency is called for.

In view of our disposition of the case in this regard, it is unnecessary to deal with the second and third contentions raised by the appellant.

For the guidance of all parties upon a possible retrial, we do note one comment with respect to the appellant’s fourth contention. It was testified to by Officer Murry that the gun in this case was “inoperable.” The State has argued that not much was required to make it operable. No expert witness was called by either side. We do not know what, if any, parts were missing. We do not know how much or little would be required by way of repairs or substitute parts to have made the gun operable. With the issue a very real one in this case as to whether the gun was a “handgun” within the contemplation of Article 27, § 36B, we would hope that a retrial, if there be one, would more fully develop all of the surrounding facts bearing upon this issue.

Judgment reversed; case remanded for anew trial.


author: Moore, J.,

text:
    JESS LEWIS HAGER v. STATE OF MARYLAND
    [No. 605,
    September Term, 1974.]

      Decided July 23, 1975.

      The cause was argued before Orth, C. J., and Menchine and Moore, JJ.

      EarlE. Manges, Assigned Public Defender, for appellant.

      Leroy Handwerger, Assistant Attorney General, with whom were Francis B. Burch, Attorney General and Lawrence V. Kelly, State’s Attorney for Allegany County, on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

Appellant, Jess Lewis Hager, one of three young men involved in the abduction and rape of a 30-year old married woman, received a total sentence of 40 years after his conviction by a jury in the Circuit Court for Allegany County (Getty, J. presiding) of the crimes of kidnapping, rape, perverted sex acts, robbery and larceny of a motor vehicle. Pretrial motions to dismiss the four indictments against him and for suppression of evidence were denied.

On this appeal he alleges error in the denial of these motions and also contends that the court erred in denying his motion for removal; in denying a trial motion that the indictments be dismissed or that witnesses who allegedly heard, in a related proceeding, certain statements of fact by the State’s Attorney be precluded from testifying; and finally in admitting “various exhibits and testimony as to oral statements of the defendant.” Upon careful review of the entire record and exhibits, we find the assignments of error unsubstantiated. We shall treat appellant’s claims seriatim.

I

Pretrial Motions to Dismiss and to Suppress

As the trial court found, the motions to dismiss and to suppress raised essentially the same issue, namely, the validity of the arrest of the appellant in the Commonwealth of Pennsylvania. With respect to the motion to dismiss the indictment, we hold that even if the appellant’s arrest had been unlawful, this would not be grounds for dismissal of the indictments. Hammond and Couser v. State, 7 Md. App. 588, 594 (1969); Westcott v. State, 11 Md. App. 305, 308 (1971); Silbert v. State, 12 Md. App. 516, 524 (1971).

The trial judge, in a careful memorandum opinion filed at the conclusion of the pretrial hearing on the motion, held that there was a valid warrantless arrest in Pennsylvania. He stated:

“The testimony adduced at the hearing on a Motion to Dismiss establishes clearly that the arrest of the Defendant, Hager, by a Pennsylvania Police Officer, Clish, was a valid warrantless arrest based upon probable cause (McCray v. Ill. 386 U. S. 300, Ker v. California 374 U. S. 23, Commonwealth v. Kenney, Pa., 297 Atl. 2d 794). At the time of arrest the officer knew from the confession of a Co-defendant that a felony had been committed in Maryland and that the Defendant had been implicated as the perpetrator thereof. He further knew the description of the vehicle involved and had seen the Defendant, Hager, and the Co-defendant who had involved Hager, in the car several days previously. Nothing further is necessary to provide probable cause for the Defendant’s arrest without a warrant.”

Our examination of the record demonstrates to us that there was abundant support for the above findings. Indeed, the evidence discloses a remarkable performance of cooperative investigatory and detective work by state and local Maryland police officers and police officers in nearby Pennsylvania, acting swiftly and effectively in the apprehension of appellant and his two companions.

The other individuals were Joseph John Albert (a co-defendant, age 19, who was sentenced to 30 years upon his plea of guilty) and Robert Lee Clark (who had not been apprehended at the time of trial in this case but was subsequently tried and convicted on February 21, 1975, and was also sentenced to a 30-year term.) The trio, residents of Washington County, Pennsylvania, came together in the afternoon hours of Monday, March 4, 1974, when they consumed two (2) fifths of vodka and smoked marijuana. They had the use of a 1967 Ford, with Pennsylvania license tag number 7Y-2267, a vehicle which had been borrowed by Albert to provide transportation to and from his employment at a junkyard. Later in the day, the young men started to ride in the direction of Cumberland. Enroute, appellant and Clark decided to steal cars in Maryland. Clark thereafter stole a truck in Frostburg which he later abandoned. He then rejoined the other two and, in a shopping center parking lot outside Cumberland, he stole a Pontiac GTO in which he followed his cohorts into Cumberland proper.

In Cumberland, Albert noticed the victim walking on Green Street. The testimony developed that she was about to mail a letter and intended then to take a walk, an exercise in which she and her husband engaged almost daily. (On this occasion, however, he was not present.)

Joseph Albert motioned appellant Hager to stop the vehicle and appellant did so. Albert alighted, followed the victim, overcame her struggles and then dragged her into the front seat of the Ford. She was transported to a location in the eastern slope of Big Range Mountain above Frostburg where she was raped by all three. This was preceded by unnatural and perverted acts which appellant required her to perform enroute to the scene. Jewelry was snatched from her neck and a small amount of money removed from her purse. Beaten about the face and head by appellant she sustained a broken jaw and a broken finger when she resisted the efforts of her captors to steal her wedding band and engagement ring.

The abduction had been witnessed by youths riding on motorcycles and by an adult citizen. The Maryland State Police in the Cumberland-Frostburg area and the Cumberland City Police were alerted for the Ford car with Pennsylvania license plates.

The assailants returned the victim to the vicinity of Green Street at approximately 9 p.m. and sped from the scene. Shortly thereafter the state and local police were in hot pursuit of the vehicle and it was abandoned by the fleeing trio in front of the Continental Motel in Cumberland. They took refuge in the dense woods behind the motel and escaped.

(a) The Suppression Hearing

One week prior to appellant’s trial, Judge Getty held an evidentiary hearing on the motions to dismiss. Appellant Hager testified in support of the motions and the State offered the testimony of Corporal John F. McGowan, Criminal Investigator for the Maryland State Police from Barrack “C” in LaVale; Frank Douglas Clish, Chief of Police of the Central Borough Police Department in Washington County, Pennsylvania, and William F. Baker, County Investigator, Office of State’s Attorney for Allegany County. The testimony developed the facts that the Maryland police ascertained the identity of the owner of the Ford by inquiry to the police department in Washington County, Pennsylvania and this information led them to the home of Joseph Albert. On March 5, the day after the crime, Corporal McGowan went to the California Police Department in Washington County, Pennsylvania, in the company of William Baker and Lieutenant Morrisey, a Cumberland detective. This occurred at approximately 2:15 p.m. Informed by the desk operator that Chief Clish already had Joseph Albert in custody, the Maryland officers interrogated Albert from 4:25 to 5:00 p.m.

They obtained from Albert a written statement in which he implicated Hager and Clark, describing their roles in the crimes committed. After advising Chief Clish of the confession and the implication of Hager and Clark, Corporal McGowan testified that . . Chief Clish informed me that he was very familiar with both men, that he would leave and try to see if he could locate them for us”; and that prior to his departure, Corporal McGowan and Mr. Baker related to him the details of the kidnapping and rape of the previous evening, Mr. Baker having interviewed the victim in the early morning of March 5, 1975 at Memorial Hospital in Cumberland where she was hospitalized.

At approximately 8 p.m. Corporal McGowan received a radio message from Chief Clish that appellant Hager was in custody. A half hour later Chief Clish delivered appellant to the California, Pennsylvania Police Department.

During the course of the testimony of Mr. Clish, it was brought out that he had had occasion to arrest appellant Hager previously and had known Albert for 2V2 to 3 years. His search for Hager and Clark led him first to Clark’s residence and then to the residence of James Tallman. Chief Clish was accompanied by Officer Ronald Shumar of Redstone, Pennsylvania, as well as by Lieutenant Morrisey of Cumberland. He was driving a Pennsylvania police vehicle. Lieutenant Morrisey remained in the car when they arrived at Tallman’s. Chief Clish quickly noticed appellant departing the house by a rear window, drew his revolver and ordered him to halt. Appellant complied. Appellant was placed in a police vehicle of Redstone Township, Pennsylvania. The vehicle was operated by Pennsylvania Officer Shumar. Chief Clish operated his own vehicle back to the California Police Department.

Mr. Baker testified that he did not see appellant until approximately 8:50 p.m. when be began to interview him after giving him his rights. He was jailed in California overnight and taken the next afternoon, March 6, to Republic, Pennsylvania, where, between 4 and 4:30 p.m. he was taken before a magistrate.

Appellant’s suppression testimony confirmed the fact of his apprehension at the residence of James Tallman. He testified that he had learned earlier, at the home of Robert Clark, that the police had called his (appellant’s) mother. It was she who informed appellant that Joseph Albert was in police custody. He testified, however, that after Chief Clish “pulled a gun on me,” the Maryland police came around and informed him that he was under arrest for a rape in Maryland. He confirmed his interrogation by Mr. Baker and that he had given a brief oral statement but had refused to discuss any participation on his part in the alleged crimes, stating that he was not “going to hang myself.”

He also testified that on March 6, between 12 and 1 p.m., while still in jail in California, Pennsylvania, he was “served with a Maryland warrant” and that between 4 and 4:30 p.m. he was taken to a magistrate’s office in Republic, Pennsylvania. He also testified that between the time of his arrest and the time he was taken before the magistrate in Republic, the police officers took samples of his hair, including pubic hair, and went to his house and obtained from his wife the underclothing which he wore the night before.

The trial court was not, of course, required to accept Hager’s version of the facts surrounding his apprehension at the Tallman residence. The testimony of Chief of Police Clish, a Pennsylvania officer, was believed by the trial judge and was sufficient to establish that the arrest was made by Chief Clish, that it was a warrantless arrest but that it was made with probable cause. The legality of appellant’s arrest must be determined by applying the law of the Commonwealth of Pennsylvania. Berrigan v. State, 2 Md. App. 666, 668 (1968), citing Miller v. United States, 357 U. S. 301 (1958); United States v. DiRe, 332 U. S. 581 (1948); Stanley v. State, 230 Md. 188 (1962). Furthermore, as this Court stated in Edwards v. State, 7 Md. App. 108 (1969), where we were concerned with a warrantless arrest of a Maryland suspect by Pennsylvania police: “[Wjhile the legality of the appellant’s arrest must be determined by the law of Pennsylvania, the jurisdiction in which made, Berrigan v. State, 2 Md. App. 666, we think that under the law of that State, as in Maryland, a police officer may make an arrest without a warrant where he has reasonable grounds or probable cause to believe at the time of the arrest that a felony has been committed and that the person arrested has committed the offense. See Commonwealth v. Negri, 198 A. 2d 595 (Pa.).”

A later Pennsylvania case is confirmatory of the above statement of the law. Commonwealth v. Kenney, 297 A. 2d 794, 796 (1972). In language strikingly appropriate to the present case the Court there stated: “. . . the probable cause for the warrantless arrest can be found in the information received by Lieutenant Patterson from Barry Marabel’s confession, wherein he implicated appellant as the individual who committed the crime. The confession of a co-defendant which implicates the suspect will supply the probable cause for a warrantless arrest. Cf. Comm. v. Matthews, 446 Pa. 65, 285 A. 2d 510 (1971).” (Emphasis added.)

We think it plain that any warrant of arrest issued in Maryland and served upon appellant in Pennsylvania would be ineffective because a Maryland warrant has no validity beyond the boundaries of the State, Berrigan v. State, supra. The record does not contain evidence, independent of appellant’s testimony, concerning the attempted execution of any such warrant in Pennsylvania. More importantly, however, upon the evidence above outlined, we hold that the trial court correctly ruled that there was a valid warrantless arrest by Chief Clish, based upon probable cause.

(b) Pennsylvania Criminal Rule of Procedure 118

Appellant argues at some length that the evidence against him should have been suppressed because of noncompliance with Pennsylvania Rule 118 relating to “proceedings initiated by arrest without warrant.” The rule provides:

“When a defendant has been arrested without a warrant, he shall be taken without unnecessary delay before the proper issuing authority where a complaint shall be filed against him.” (Emphasis added.)

The Rule thereafter provides that if the complaint charges a “court case” the defendant shall be given an immediate preliminary arraignment but that if the complaint charges a “summary offense” he shall have the option of an immediate trial or the opportunity for release upon security for his appearance at a trial within a time specified.

The evidence at the suppression hearing developed that the Maryland police officers were not aware of the Rule nor were they advised of it by the Pennsylvania officers. Chief of Police Clish of Pennsylvania was, of course, cognizant of it and testified that there was not at that time in Washington County, Pennsylvania, a procedure whereby magistrates were available on a 24-hour basis; and that, after arresting appellant, he telephoned two magistrates in Washington County and one magistrate in Fayette County — the only three available — but could not reach any of them. He was unable to state a reason why appellant was not taken before a magistrate earlier than 4 or 4:30 p.m. on the following day. The inference is plain, however, that he did not attempt to reach a magistrate on the morning of the 6th and the record is silent as to any such efforts being made by the Maryland State Police.

The Supreme Court of Pennsylvania interpreted Rule 118 in Commonwealth v. Futch, 290 A. 2d 417 (1972). See also, Commonwealth v. Hancock, 317 A. 2d 588 (1974). In the Futch case the Court was called upon to determine the effect of a 14-hour “unnecessary delay” between arrest and arraignment on identification evidence obtained by the police during the period of the delay. Observing that Pennsylvania Rule 118 closely parallels Rule 5 (a) of the Federal Rules of Criminal Procedure (“An officer making an arrest . . . shall take the arrested person without unnecessary delay before the nearest available commissioner”), the Court noted that the United States Supreme Court had fashioned the so-called McNabb-Mallory exclusionary rule (Mallory v. United States, 315 U. S. 449 (1947); McNabb v. United States, 318 U. S. 332 (1943)) which precluded the use of any evidence obtained during an “unnecessary delay.” The Futch Court noted, however, that the exclusionary rule is subject to the “common sense caveat that the ‘unnecessary delay’ must have contributed to the securing of the evidence” (emphasis supplied), citing United States v. Mitchell, 322 U. S. 65 (1944). The Court then made the following observation with respect to the possible adverse effect of police conduct which deviates from the language of Rule 118:

“We have held that failure to comply with Rule 118 does not ipso facto render inadmissible evidence obtained by the police during the ‘unnecessary delay’ and that it is incumbent upon defendant to show some prejudice from the delay, [citing cases] While this Court has never articulated precisely what constitutes ‘prejudice’ in the context of ‘unnecessary delay’ proscribed by Rule 118, we think it appropriate to follow the federal approach and exclude all evidence obtained during ‘unnecessary delay’ except that which, as in Mitchell, supra, has no reasonable relationship to the delay whatsoever. ” (Emphasis added.)

The ultimate result in Futch was a holding that the Commonwealth had satisfied its burden of showing by “clear and convincing evidence” that in-court identifications made by six eyewitnesses had a basis independent of a lineup rendered impermissible because it was held during the period of unnecessary delay.

For similar reasons, relief was denied an appellant who had been held in custody for over 19 hours before being taken to the “proper issuing authority” in Commonwealth v. Hancock, 317 A. 2d 588 (1974), supra. There, the Court restated the rule in Futch, observing: “We held [there] that the violation of the rule results in all evidence obtained during an ‘unnecessary delay’ between arrest and arraignment, except that evidence unrelated to the delay, being subject to a rule of exclusion.” (Emphasis added.) The Court in Hancock made it plain, moreover, that the investigatory process need not cease at the time of a warrantless arrest:

“While we do not require that the investigatory process cease at the time of a warrantless arrest we do require compliance with Rule 118 prior to any investigative procedure conducted for the purpose of gathering further evidence against the accused if that procedure is dependent upon the waiving of a constitutional right.”

In the instant case, the trial judge in his memorandum opinion held that Pennsylvania Rule 118 was procedural and not applicable in Maryland but even if it was, the seized evidence would nevertheless be admissible. Under the rationale of the McNabb-Mallory Rule and the recent decision of the Supreme Court in Gerstein v. Pugh, 95 S. Ct. 854, filed February 18, 1975, holding that the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint on liberty following arrest, we think it more correct that Pennsylvania Rule 118 was indeed applicable.

We agree, however, with the result reached by the trial court, namely, that the evidence sought to be suppressed was admissible even under the provisions of Rule 118.

On the basis of the evidence before us, it appears plain that the delay through the evening of March 5th was not “unnecessary,” there being no magistrates available. Thereafter, it would appear that efforts should have been made on the morning of March 6th to bring the appellant before a magistrate and that such action was unnecessarily deferred until late that afternoon. It is important, therefore, to determine whether or not, within the teaching of the Pennsylvania cases cited, there was any evidence sought to be suppressed which was related to the delay. We think substantially all of the evidence was unrelated. While the specific categories of evidence are not carefully described in .appellant’s brief, we infer that his objection relates to the following:

1. Hair Samples (head and pubic)

These samples were taken from the defendant after his arrest by Chief Clish, on the evening of March 5th. They are therefore unrelated to the delay and are otherwise constitutionally permissible. Schmerber v. California, 384 U. S. 747 (1966); Robinson v. State, 18 Md. App. 678 (1973).

2. Photographs

Appellant presumably challenges the admissibility of pictures taken of him at the California Police Department following his arrest showing scratches on his arms and legs as a result of his flight into the woods in back of the Continental Motel in Cumberland. The objection is again based solely on the “unreasonable delay” issue under Rule 118 but this claim is unavailing. The pictures were taken on the evening of his arrest on March 5th and are totally unrelated to the delay which occurred on the following day.

3. Vacuumed Residue from’67 Ford

As previously stated, appellant and the other two escapees abandoned the ’67 Ford in front of the Continental Motel some time after 9 p.m. on March 4th. The Crime Investigation Unit of the City of Cumberland vacuumed the vehicle in the early morning of March 5th, many hours before the arrest of appellant in Pennsylvania. There is no issue presented under Pennsylvania Rule 118; and appellant has no other grounds for objection, nor indeed any standing to object, since the car had been abandoned by him and had been impounded by Corporal McGowan on the evening of March 4th. See, Lopata v. State, 18 Md. App. 451 (1973).

4. Appellant’s Oral Statement

The statement to which we have previously adverted, made to Mr. Baker by appellant after he had been arrested by Chief Clish and brought to the California Police Department on the evening of March 5th, was taken within a half hour of his arrival at the California Police Department. Again, no issue under Pennsylvania Rule 118 was presented. Furthermore, it is abundantly clear from the record that the Miranda requirements were fully complied with; hence, the statement was clearly admissible.

5. Appellant’s Underpants

In our judgment, only one category of evidence should have been excluded, namely, appellant’s undergarments which were obtained by Corporal McGowan and Mr. Baker at appellant’s home where they visited his wife at approximately 1 a.m. on the morning of March 6th. (Rose Marie Lanzetta, a chemist employed by the Maryland State Police, testified that “spermatozoa, positive semen, and human blood were identified on this item.”)

Our holding is unrelated to Pennsylvania Rule 118 but is, however, mandated by the fact that the record is devoid of evidence to show consent on the part of appellant’s wife and clearly the seizure of appellant’s clothing at his home was not pursuant to a warrant and could not be justified as a result of a search incident to a lawful warrantless arrest. Ker v. California, 374 U. S. 23 (1963); United States v. Edwards, 415 U. S. 800 (1974). In view, however, of the overwhelming evidence against appellant, this error on the part of the trial court is not reversible but is indeed harmless error beyond a reasonable doubt. Chapman v. California, 386 U. S. 18 (1967).

II

Right of Removal

Appellant argues that because under the Maryland Constitution, Art. IV, § 8, there is an absolute right of removal in “indictments for offenses which are or may be punishable by death” he was entitled to an absolute right of removal because kidnapping and rape (Art. 27, § 337 and § 461) are punishable by death. The court therefore erred, he claims, in denying his suggestion for removal which was timely filed.

The basis for the suggestion was that appellant could not have a fair and impartial trial in Allegany County “due to the widespread publicity and notoriety given to this case in the County, and that it would be impossible to have an impartial and unbiased jury in said County due to the nature of the case.”

Appellant overlooks the decision of the Court of Appeals in Bartholomey v. State, 267 Md. 175 (1972) which invalidated death sentences under the discretionary statutes that impose them, as unconstitutional, under Furman v. Georgia, 408 U. S. 238 (1972). Furthermore, in Johnson v. State, 271 Md. 189 (1974) the Court of Appeals flatly held that there is no longer a constitutional and absolute right of removal in cases formerly punishable by death.

In addition, there was no showing in the record below of grounds for removal as a discretionary matter. See, Gibson, Tate and Austin v. State, 17 Md. App. 246 (1973). In Gibson, Judge Gilbert observed that it is incumbent upon the petitioner for removal to show “the pretrial publicity was of such intensity that it permeated the community to the extent that the appellants were denied their right to a fair and impartial jury trial as mandated by both the Sixth Amendment to the Constitution of the United States and Art. 21, Maryland Declaration of Rights.”

In the instant appeal we have merely the bald assertions quoted above in support of the suggestion for removal. We find no error in the refusal of the court to grant a removal.

Ill

Denial of Motion to Dismiss or to Exclude Certain Witnesses

The record in this case is far from clear concerning the basis for appellant’s claim that the trial court improperly denied a motion at the outset of the trial that the case be dismissed or that certain witnesses present in the courtroom during proceedings out of the presence of the jury be excluded from testifying in the case. The motion was made at a bench conference at which the following statement was made by counsel for the appellant:

“Your Honor, I didn’t realize this till we were half way through the previous arraignment, but all the witnesses for the State or a good many of them were sitting in the Courtroom all the time when Larry was giving the facts of the case, reading the statement of Albert and so forth. Now if I would have realized it at the beginning I would have said something at that time so that they could have been put out. But we were half way through Larry’s statement when I realized that a great majority of the State’s witnesses are sitting there listening to the State’s version of the case.” (Emphasis added.)

The State’s Attorney responded by stating that “the statement of facts that he gave was purposely very vague as to details” and he added that “most of the witnesses that are present were only witnesses as to small pieces of this case.”

Thereafter counsel for the appellant rejoined, “Well the case hadn’t started. We excluded the jury but forgot about the witnesses.” In this state of the record we can only surmise that the “previous arraignment” may have related to appellant’s co-defendant, Joseph John Albert, and it is highly questionable whether the matter has been preserved for appellate review. Maryland Rule 1085. Furthermore, it does not appear that there was any request, pursuant to Maryland Rule 753, that the witnesses be excluded from the courtroom. Indeed, it appears from the statement of appellant’s trial counsel that both sides “forgot about the witnesses.”

At all events, even if there had been an exclusion order, violation thereof is not per se reversible error. It must be shown that some prejudice resulted to the defendant as a result of the failure to observe the rule. In re Fletcher, 251 Md. 520 (1968); Williams v. State, 19 Md. App. 582 (1974). Appellant’s claim of error is without foundation.

IV

Alleged, Error in Admitting Certain Exhibits and Testimony

Appellant’s fourth argument is repetitive of contentions of error made in connection with the denial of the motion to dismiss or to suppress. One claim of error not heretofore considered with respect to the denial of the aforesaid motions is an assertion of error in permitting testimony of the victim concerning her viewing of a T.V. show relating to a rape victim and the discussion of it with her friends. As we read the record we perceive that this testimony dealt with the reasons given by the victim for her delay in calling the police, namely, her feelings of embarrassment stemming in part from the T.V. show which she had witnessed and had admittedly discussed. We consider that this testimony was admissible as bearing upon the victim’s state of mind and that appellant’s claim of prejudice must be rejected.

Judgments affirmed.

      . Ch. 252 of the Laws of Md., 1975, Art. 27, § 413, effective 7/1/75, provides for the imposition of the death sentence if a person is convicted of first degree murder in 8 enumerated situations.