author: Powers, J.,

text:
    COMMISSIONER, BALTIMORE CITY POLICE DEPARTMENT v. CALVIN CASON
    [No. 421,
    September Term, 1976.]

      Decided February 1, 1977.

    The cause was argued before Gilbert, C. J., and Powers and Davidson, JJ.

      Millard S. Rubenstein, Assistant Attorney General, with whom was Francis B. Burch, Attorney General, on the brief, for appellant.

      Karl H. Goodman and Lee Gordon, with whom were Gordon & Goodman, P.A. on the brief, for appellee.
   Powers, J.,

delivered the opinion of the Court.

This case entered the judicial arena when Calvin Cason filed in the Baltimore City Court an Order for Appeal from an order of Donald D. Pomerleau, as Commissioner of the Baltimore City Police Department, which terminated Sgt. Cason’s services with the Department. The Order for Appeal was followed by the required Petition. Thus Sgt. Cason invoked his right to judicial review of the administrative actions in the Department which led to his dismissal.

The prelude to the appeal to the Baltimore City Court is found in two charges preferred in August 1974 against Sgt. Cason by Frank J. Battaglia, Deputy Commissioner, Operations Bureau, of the Police Department. The charges alleged violations of the Rules and Regulations for the government of the Police Department of the City of Baltimore.

Charge No. 1 alleged violation of Rule I, Section 5. It set out the section:

“Members of the department shall refrain from making personal contacts with persons of questionable character, or visiting places suspected of violating the law, unless necessary to do so in the performance of their duty.”

The specification of the violation stated:

“For that Sergeant Calvin M. Cason did make personal contacts with one Milton K. Roy, a person of questionable character due to his involvement in violations of the lottery laws of Maryland, such personal contacts not necessary to be made in the performance of his police duty.”

Charge No. 2 alleged two violations of Rule I, Section 30. It set out the section:

“No compensation, reward, gift, or other consideration shall be solicited or accepted by members of the department without special permission of the Police Commissioner. Attention is directed to Section 552 of the City Charter, 1949 edition: ‘Any monies received as a gratuity or extra compensation for any services which he may render, and which are not turned into the possession of the Police Commissioner by the officer receiving same and applying same to his own use, will be cause for dismissal from the force, and he shall be forever ineligible to any position in the force.’ ”

Specification 1 said:

“For that in or about the month of January 1973, and/or in months prior thereto, Sergeant Calvin M. Cason did accept United States currency from Milton K. Roy (aka James M. (‘Brother’) Roy) without the special permission of the Police Commissioner.”

Specification 2 said:

“For that in or about the month of January 1973, and/or in months prior thereto, Sergeant Calvin M. Cason did accept United States currency from Sergeant Robert E. Spangler of the Western District, without special permission of the Police Commissioner.”

A disciplinary hearing was convened on 21 January 1975 before a Departmental Board consisting of Major William F. Rochford, Chairman, Captain Donald E. Einolf, and Lieutenant Stephan Timchula. Sgt. Cason and the Police Department were represented by counsel. After several preliminary matters were considered, the hearing was continued to a date to be set. It was reconvened on 8 April 1975. Evidence was completed, and the Board made a finding of guilt and finding of fact on each specification, and set out its conclusion and recommendation. They were summarized in a report made by the Board to the Police Commissioner , dated 9 April 1975. Its findings of fact were:

On Charge 1
“Based on the testimony from James M. (‘Brother’) Roy (aka Milton K. Roy) that he had met with Sergeant Calvin Cason on at least three separate occasions and paid him sums of money to be safe to operate his number operation in the Western District. Roy identified Sergeant Cason without hesitation and related that he gave the money to Sergeant Cason in his hand.”
On Charge 2, Specification 1
“Based on the testimony from James M. (‘Brother’) Roy (aka Milton K. Roy) that he had met with Sergeant Calvin Cason on at least three separate occasions and paid him sums of money to be safe to operate his number operation in the Western District. Roy identified Sergeant Cason without hesitation and related that he gave the money to Sergeant Cason in his hand. The personnel jacket of Sergeant Cason was introduced into evidence by Mr. Rubenstein to indicate that the Police Commissioner had not granted permission to Sergeant Calvin Cason to accept monies or extra compensation for services which Sergeant Cason had rendered.”
On Charge 2, Specification 2
“Testimony received from Sergeant Robert E. Spangler, retired, Western District, that he paid sums of money to Sergeant Calvin Cason in the men’s room and hallway at the Western District on separate occasions during the period of June 1972 to November 1972 to protect the gambling operation of Harvey Robinson.”
The Board stated as a conclusion:
“The Board recognized the defense’s contention regarding one man’s word against another and that one would tend to nullify the other; however, the collective testimony of James M. (‘Brother’) Roy (aka Milton K. Roy) and Robert Spangler provided sufficient weight for the Board to find a preponderance of proof and a finding of guilty.”

It recommended “that Sergeant Calvin M. Cason’s services with the Baltimore Police Department be terminated.”

The Police Commissioner, Donald D. Pomerleau, took action on 14 April 1975, as evidenced by Personnel Order 362-75, dated 15 April 1975. The order recited the findings and recommendation of the Trial Board, and concluded:

“In the foregoing case of Sergeant Calvin M. Cason the recommended action of the Trial Board is approved. It is hereby ordered that Sergeant Calvin M. Cason be and is hereby terminated from the Baltimore Police Department effective April 14, 1975.”

Sgt. Cason’s appeal to the court followed.

From the inception of the proceeding to its final conclusion Sgt. Cason was and is entitled to the safeguards provided for in Code, Art. 27, §§ 727-734, known as the Law-Enforcement Officers’ Bill of Rights, and Code, Art. 41, §§ 244-256A, Administrative Procedure Act. Moreover, the disciplinary power within the Police Department could be exercised only in accordance with applicable law. And finally, the procedure for judicial review is governed by Subtitle B of Chapter 1100 of the Maryland Rules, comprising Rules B1-B12.

We summarize the petition filed in the Baltimore City Court by Sgt. Cason. It alleged that:

1. The power vested in the Police Commissioner as the ultimate decision maker is unconstitutional, and its exercise in This case was unconstitutional because the decision was arbitrary and capricious.

2. The findings of the Trial Board, and the order of the Commissioner thereon, were made upon unlawful procedure; were affected by other error of law; were unsupported by competent, material, and substantial evidence; were against the weight of evidence; were unsupported by the entire record; and were arbitrary and capricious.

3. The Trial Board proceedings constituted double jeopardy in that Sgt. Cason was previously tried and acquitted on criminal charges in the United States District Court, upon the same or substantially the same evidence; and that the doctrine of equitable estoppel barred the use of that evidence before the Trial Board.

We have carefully read the entire transcript of the proceedings before the Trial Board. Testimony in support of the charges was given by former Sgt. Robert E. Spangler and by James M. Roye (sometimes spelled “Roy”). The testimony of each was limited, by an agreement between counsel, to the period from June to November, 1972.

Before discussing the evidence, we restate in simple terms, the charges against Sgt. Cason:

1. Making contacts with Roye, a questionable character.
2. Accepting currency from Roye without permission.
3. Accepting currency from Sgt. Spangler without permission.

Roye testified that he had been in the business of writing numbers. He operated out of an automobile repair garage. He had been convicted three or four times in Baltimore City for writing numbers. He said he knew Sgt. Cason, and identified him. He said that in 1972 Sgt. Cason came to his garage, said he was the new sergeant, and wanted to know the date the payroll came down. He said he answered that it was usually the 15th, or it might be one or two days late when the boys send the money down. Roye said the money was to operate the numbers game, that he was paying Western District to operate, to be safe to write numbers. Roye testified that he gave money to Sgt. Cason three times, and after that another officer came down “for the bundle.” He said that when Sgt. Cason came he was in uniform, and in a police car, and “would pull up a little ways”. He said that he paid Sgt. Cason $50. — “that was him alone” — and “when he got the bundle he got $245.”

There was much evidence tending to cast doubt on Roye’s credibility. He was an admitted bribe-giver, a law violator, and a convicted criminal. He had been arrested by the F.B.I., and thereafter had cooperated with them. He testified for the government in the trials of several police officers, including Sgt. Cason, on criminal charges. There were some inconsistencies, although not necessarily untruths, in his testimony. He may have had reason to give false testimony.

Spangler testified that he received money about once a month from Harvey Robinson, who was in the numbers business, to protect his gambling operation. Some of the money, Spangler said, was for himself, and some was for other members of the District. He testified that he gave Sgt. Cason $70. approximately three times during that period, because he was instructed to do so by Harvey Robinson. He said the money was given either in the men’s room or hallway at the Western District.

There was much evidence tending to cast doubt on Spangler’s credibility. He was an admitted bribe-taker, and an admitted liar. He had been arrested by the F.B.I., and thereafter had cooperated with them in attempting to gather evidence against other members of the Baltimore City Police Department. He had retired from the Department, apparently with full pension rights. He had testified for the government in the United States District Court trials of several other officers on criminal charges. He was also charged, but received probation. He may have had reason to give false testimony.

Special Agent Masterson of the F.B.I. testified, and described the cooperation of Spangler and Roye with the F.B.I. investigation. He gave no substantive evidence.

Sgt. Cason called ten members of the Police Department as witnesses. Several, who had worked under Sgt. Cason, testified that he never told them to stay away from any gambling operation. Two, who apparently had been accused by Spangler, testified that Spangler did not pay them any money. Several described a generally hostile relationship between Sgt. Spangler, in Operations, and Sgt. Cason, in Patrol, in the Western District.

Concluding the evidence was Sgt. Cason’s own testimony. Asked if, “in the latter part of 1972 did you go to Brother Roye and collect either $50. or $245. three times?”, he answered, “I never knew Brother Roye until June when I was indicted.” He added that he had seen Roye twice before — when he was investigating hold-ups at a bar. Sgt. Cason was asked, “did you accept money from Sergeant Spangler in connection with Harvey Robinson’s gambling operation?” He replied, “I did not. I didn’t even know Harvey Robinson.” Sgt. Cason also brought out that he was charged in the Federal Court on the testimony of Roye, and that the outcome was “not guilty”. He said that Spangler was not what you would call a working sergeant, but was actually a statistical clerk, and went around the police station like he owned it.

The appeal in the Baltimore City Court was submitted to Judge Basil A. Thomas on the record, with written and oral arguments of counsel. A partial transcript of the proceedings before Judge Thomas contains only his oral opinion, in which he summarized the case and the evidence, and stated his findings and conclusions. On 19 March 1976 Judge Thomas signed an order, filed on 22 March 1976, reversing the order of the Police Commissioner, and directing that Sgt. Cason be reinstated, with full rank and full pay, dating from his suspension. The Police Commissioner appealed to this Court from that order.

In his opinion, Judge Thomas first considered Sgt. Cason’s contention that the power vested in the Commissioner, and its exercise in this case, were unconstitutional. He said:

“The Court finds the Commissioner’s procedure and policy was proper and not violative of any constitutional safeguards or due process rights.”

In a very recent case involving the dismissal of 55 members of the Baltimore City Police Department, the Court of Appeals, in Hoyt v. Police Commissioner, 279 Md. 74, 367 A. 2d 924 (1977) discussed the power of discipline in the Department. It said, at 84-85:

“The lower court was satisfied, as are we, that the power to discipline is vested solely in the Commissioner. Code of Public Local Laws of Baltimore City (1969) § 16-7 (7) and (8) respectively provide that the Police Commissioner is authorized:
‘(7) To appoint, promote, reduce in rank, grade or position, reassign, reclassify, retire and discharge all members of the Department in the manner prescribed by law.
‘(8) To regulate attendance, conduct, training, discipline and procedure for all members of the Department and to make all other rules, regulations and orders as may be necessary for the good government of the Department and of its members.’
This grant of authority must be considered, however, in conjunction with § 730 (b) of the Law-Enforcement Officers’ Bill of Rights, which provides:
‘Conduct of hearing — The hearing shall be conducted by the investigating committee of the law-enforcement agency by which the law-enforcement officer is employed. Both the law-enforcement agency and the law-enforcement officer shall be given ample opportunity to present evidence and argument with respect to the issues involved. Both may be represented by counsel.’
“Here, the Commissioner was faced with two requirements: that of performing the duty of the ultimate decision maker imposed upon him by law, and of performing it in a fair and impartial manner. As the court below found, the Commissioner chose not to exercise the investigative function which was performed by the unit headed by Deputy Commissioner Glauser or the prosecutorial function which was performed by the Attorney General, but to act only in an adjudicative role. The Commissioner isolated himself by directing that the Deputy Commissioner initiate the investigation, convene the Boards and supervise the preparation of charges. The Commissioner’s only function was that of accepting, modifying or rejecting the punishment recommended.”

The authority of the Police Commissioner to promulgate rules and regulations was discussed in a somewhat different aspect by the Court of Appeals in Beca v. Mayor and City Council of Baltimore, 279 Md. 177, 367 A. 2d 478 (1977).

Judge Thomas correctly rejected the attack upon the constitutionality of the disciplinary power vested in the Police Commissioner, and the manner in which it was exercised.

The trial judge then stated what he considered to be the question before the court. He said:

“The question is, are the findings of fact of the Hearing Board supported by substantial evidence?
“I am aware of the test of substantial evidence. The Court should not substitute its judgment on the question of whether the inference drawn by the Hearing Board is the right one or whether a different inference would have been better supported. The test is reasonableness, not rightness.”

In discussing the testimony, Judge Thomas expressed the belief, erroneously, we think, that the charges against Sgt. Cason “rise or fall on the strength of the evidence offered in support of the third charge.” He commented that it was solely because of Spangler’s accusation that the third charge was brought, and that charge resulted in bringing disciplinary proceedings on the first two charges as well.

Saying that the only evidence against Sgt. Cason was Spangler’s uncorroborated testimony, Judge Thomas concluded:

“Is this testimony, standing naked and alone, of an admitted grafter, who had previously given false statements to the police, uncorroborated in any detail, vague as to specific dates, and other particulars, of one who had no particular relationship with Sergeant Cason, sufficient to overcome the denial of Sergeant Cason, a police officer, with an unblemished record of 19 years of service, the recipient of 29 commendations, and who apparently had the respect of the men working with him?
“The Court considers the position of a police officer a valuable property interest that can only be terminated by a fair hearing based on substantial evidence.
“Now, while this Court is always reluctant to substitute its judgment for that of the administrative body that makes the decision, that decision, however, must be based on substantial evidence, that is, such as a reasonable mind might accept as adequate to support a conviction. The Court finds that the evidence in this case was less than substantial * *

It is quite apparent that the trial judge found Spangler’s evidence to be “less than substantial” because he believed Sgt. Cason’s denial, and did not believe Spangler. It appears, also, that the judge’s failure to consider Roye’s evidence at all arose indirectly from an issue raised by Sgt. Cason before the Trial Board, and again in the Baltimore City Court.

At the outset of the hearing before the Trial Board, Sgt. Cason filed a written motion, grounded on the doctrine of collateral estoppel, to exclude the testimony of Roye, Spangler, and other persons. The supporting memorandum said that those persons testified against Sgt. Cason in two federal criminal trials concerning Roye’s gambling operation, and in those trials the jury found Sgt. Cason not guilty of conspiring, to facilitate the conduct of illegal gambling. The Trial Board denied the motion, and heard the evidence.

In the petition filed in the Baltimore City Court, the question was raised again, alleged in terms of double jeopardy and collateral estoppel. It was fully argued in the memorandum of law filed in the Baltimore City Court. Judge Thomas, in his opinion, said that he found the questions of res judicata and collateral estoppel inapplicable. After that finding, however, the judge discussed only the third charge, the one to which Spangler’s testimony was directed. He did so, apparently because of a statement made in argument by counsel for the Commissioner. Counsel said that the Police Department would not have brought the first two charges [relating to James M. Roye] unless they had additional information relating to the Harvey Robinson incident.

Within the proper limitations upon the scope of judicial review, the court should have considered the entire record.

The scope of judicial review of the actions of administrative bodies has been discussed and explained in numerous cases. Principles which have been repeated time and again were stated by the Court of Appeals years ago in Heaps v. Cobb, 185 Md. 372, 45 A. 2d 73 (1945). That case questioned the legality of the refusal of the Board of Trustees of the Employees’ Retirement System of Baltimore City to grant a claim for accidental death benefits. In the absence of a statutory provision for appeal, the Court, on petition for a writ of mandamus, reviewed the Board’s action. The Court said, at 878-79:

“Administrative boards in general may be said to act in a quasi judicial capacity insofar as they have the duty to hear and determine facts and, based on them, to make decisions. Moreover, such decisions carry with them the presumption of validity and, where the statute or ordinance provides for an appeal to the courts, will not be disturbed on review if the record shows substantial evidence to sustain the findings.”

The Court quoted the general rule. It said, at 380:

“The doctrine is well illustrated in the review of this subject by Professor McGovney, of the University of California, in these words: ‘The general rule with respect to nearly all Federal administrative agencies and those of other states is that their findings of fact are final if there is substantial evidence to support them. With respect to the issues of fact, the reviewing court examines the evidence taken by the administrative agency, not to re-weigh it, not to substitute the Court’s judgment for that of the agency, but to determine whether the agency acted rationally, that is to say, that it did not arrive at its conclusion arbitrarily.’ Cal. L. R. (1942) Vol. 30, 509.”

A very clear summation of the scope of judicial review was written by Chief Judge Hammond for the Court of Appeals in Insurance Commissioner v. National Bureau, 248 Md. 292, 236 A. 2d 282 (1967). The Court said, at 309-10:

“Whichever of the recognized tests the court uses — substantiality of the evidence on the record as a whole, clearly erroneous, fairly debatable or against the weight or preponderance of the evidence on the entire record — its appraisal or evaluation must be of the agency’s fact-finding results and not an independent original estimate of or decision on the evidence. The required process is difficult to precisely articulate but it is plain that it requires restrained and disciplined judicial judgment so as not to interfere with the agency’s factual conclusions under any of the tests, all of which are similar. There are differences but they are slight and under any of the standards the judicial review essentially should be limited to whether a reasoning mind reasonably could have reached the factual conclusion the agency reached. This need not and must not be either judicial fact-finding or a substitution of judicial judgment for agency judgment.”

In the much more recent case of Dept. of Natural Resources v. Linchester, 274 Md. 211, 334 A. 2d 514 (1975), Judge Digges, for the Court of Appeals, discussed primarily the line of separation between administrative action and the judicial power. Regarding the function of administrative agencies, the Court said, at 222:

“These agencies are created in order to perform activities which the Legislature deems desirable and necessary to forward the health, safety, welfare and morals of the citizens of this State. While these agencies at times perform some activities which are legislative in nature and thus have been dubbed as quasi-legislative duties, they in addition take on a judicial coloring in that frequently, within the exercise of their power, they are called upon to make factual determinations and thus adjudicate, and it is in that sense that they are also recurrently considered to be acting in a quasi-judicial capacity. This dual role which administrative agencies play has long been accepted in this State as being constitutionally permissible.”

The Court said further, at 223-24:

“While administrative agencies, in the proper performance of duties which the Legislature permissibly delegates to them, may use discretion to formulate policy, promulgate rules and adjudicate in order to determine specific questions of fact, they, nevertheless, in doing so are performing nonjudicial functions; on the other hand, the role of the courts in regard to these administrative agency functions is to see that these responsibilities were properly empowered to the agency and have been performed within the confines of the traditional standards of procedural and substantive fair play. In order to perform this essential duty, the courts may be provided with specific authorization to do so by the Legislature through statutory provision, but, even absent such authority, the judiciary has an undeniable constitutionally-inherent power to review, within limits, the decisions of these administrative agencies. Balto. Import Car v. Md. Port Auth., 258 Md. 335, 265 A. 2d 866 (1970); Insurance Comm’r v. Nat’l Bureau, 248 Md. 292, 236 A. 2d 282 (1967); Johnstown Coal & Coke Co. v. Dishong, 198 Md. 467, 84 A. 2d 847 (1951); Heath v. M. & C.C. of Baltimore, 187 Md. 296, 304-05, 49 A. 2d 799 (1946). This power of review, whether authorized by statute or assumed inherently, cannot be a substitution of the court’s judgment for that of the agency. In those instances where an administrative agency is acting in a manner which may be considered legislative in nature (quasi-legislative), the judiciary’s scope of review of that particular action is limited to assessing whether the agency was acting within its legal boundaries (not an issue here); furthermore, when an agency is acting in a fact-finding capacity (quasi-judicial) the courts review the appealed conclusions by determining whether the contested decision was rendered in an illegal, arbitrary, capricious, oppressive or fraudulent manner.”

Citing and quoting from Heaps v. Cobb, supra, and Insurance Commissioner v. National Bureau, supra, the Court added, at 225:

“However, just as the administrative agency has constitutional limitations to its power vis-a-vis the courts, so do the courts have constitutional restrictions limiting their oversight of agency decisions. This follows from the fact that the judiciary is constitutionally ‘without authority to interfere with any [proper] exercise of the legislative prerogative ... or with the lawful exercise of administrative authority or discretion.’ ”

Our consideration of the case before us is based upon the evidence before the Trial Board, not upon the action of the Baltimore City Court, which the appellee, irrelevantly, characterizes as not clearly erroneous. In Public Serv. Comm’n v. Balto. Gas & El., 273 Md. 357, 329 A. 2d 691 (1974), the Circuit Court for Calvert County, on appeal from orders of the Public Service Commission, had reversed the Commission’s findings in certain respects. All parties appealed .from the decree of the circuit court. Pointing to the presumptive correctness of the Commission’s order, the experience of its members and staff, and the focus of judicial review, the Court of Appeals said, at 362:

“We do not, therefore, in considering the legality and reasonableness of the Commission’s decision in this case, afford prima facie correctness to the decree of the court below; nor do we determine merely whether the court abused its discretion in reviewing the Commission’s order, as suggested by the Company. We do not directly review the reasonableness of the determinations made by the lower court, but instead consider whether there was substantial evidence before the Commission on the record considered as a whole to support its [conclusions].”

In Snowden v. Mayor & C.C. of Balto., 224 Md. 443, 168 A. 2d 390 (1961), the Court of Appeals said, at 445:

“The judicial function in appeals from an administrative agency is well established and defined. The court will correct illegal actions and those which are arbitrary and unreasonable because they are not based on substantial evidence but it will not substitute its own independent examination of or its own judgment on the facts for those of the agency to which the carrying out of state policy has been delegated.”

The Court further said, at 448:

“The heart of the fact finding process often is the drawing of inferences from the facts. The administrative agency is the one to whom is committed the drawing of whatever inferences reasonably are to be drawn from the factual evidence. ‘The Court may not substitute its judgment on the question whether the inference drawn is the right one or whether a different inference would be better supported. The test is reasonableness, not rightness.’ Davis, op. cit., Sec. 2905, p. 139.”
“It may be (although we do not so say) that we would have drawn different inferences or conclusions from the evidence, or that we think the Board’s action to have been unfortunate and erroneous, but it is the judgment of the Board, not ours, which controls if reasonable men could have done as the Board did, for, as has been said, the test is reasonableness not rightness.”

The Court of Appeals said in Johnstown Coal & Coke Co. v. Dishong, 198 Md. 467, 84 A. 2d 847 (1951), a workman’s compensation appeal, at 476:

“We add that this Court has no authority to set aside an award of the Commission merely because the Court might weigh or appraise the evidence differently. Where the findings of the Commission are supported by inferences which may be fairly drawn from the evidence, even though the evidence may be susceptible of opposing inferences, the Court will not reject those findings.”

In Board v. Oak Hill Farms, 232 Md. 274, 192 A. 2d 761 (1963), the Court said, at 283:

“Whether the test of substantial evidence on the entire record or the test of against the weight of all the evidence is followed, the courts have exercised restraint so as not to substitute their judgments for that of the agency and not to choose between equally permissible inferences or make independent determinations of fact, because to do so would be exercising a non-judicial role. Rather, they have attempted to decide whether a reasoning mind could reasonably have reached the result the agency reached upon a fair consideration of the fact picture painted by the entire record.”

We have read the many cases in Federal and State courts cited in the briefs. In general they demonstrate that the same standards for judicial review of the actions of administrative agencies prevail throughout the country. We shall refer to two of the state court cases.

In Collins v. Codd, 342 N.E.2d 524 (N.Y. 1976), the Court of Appeals of New York reversed an Appellate Division order which had annulled a determination of the Police Commissioner of the City of New York which disciplined a member of the police force upon two charges of misconduct. A woman who was arrested by the officer, and the woman’s mother, testified to physical mistreatment of the woman. The officer and two or three other witnesses testified and denied the mistreatment. The Court of Appeals said:

“There must be a reversal. The testimony posed a clear-cut issue as to the veracity of the witnesses; and where substantial evidence exists, as it clearly does here, to support the administrator’s determination, that determination must be sustained, irrespective of whether a similar quantum of evidence is available to support other varying conclusions.”

The Court quoted from an earlier case, in which it had said:

“ ‘Where there is conflict in the testimony produced * * * where reasonable men might differ as to whether the testimony of one witness should be accepted or the testimony of another witness be rejected, where from the evidence either of two conflicting inferences may be drawn, the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]. The courts may not weigh the evidence or reject the choice made by [such agency] where the evidence is conflicting and room for choice exists’.”

The Supreme Judicial Court of Massachusetts considered the administrative dismissal of a police officer in Commissioners of Civil Service v. Municipal Court, 338 N.E.2d 829 (Mass. 1975). The officer was indicted on Federal charges of conspiracy to forge and utter postal money orders, and of forging and uttering the same. The Boston police commissioner suspended the officer to await the outcome of the criminal prosecution. The officer was acquitted by jury verdict. The commissioner reinstated the officer, and initiated a disciplinary complaint for conduct unbecoming an officer in violation of departmental regulations. There were two specifications, each charging that the officer associated with a person of known bad character while that person was committing a crime.

After a hearing, apparently before the commissioner, the officer was found guilty, and discharged. Under an applicable statute, there was another hearing by the Civil Service Commission, with the same result. A petition for review was filed in the Municipal Court of Brighton District. There the judge found what he considered to be errors, reversed the commission, and ordered reinstatement of the officer.

The Supreme Judicial Court, on review of the evidence and the proceedings, held that the Municipal Court erred in reversing the commission’s decision. The Court said, at 832-33:

“As to the merits, we think the testimony given by witnesses before the hearing officer supported the subsidiary findings made by that officer and those findings justified the recommendation and decision to discharge. The findings rest on substantial evidence from witnesses * * *.”
“It may be surmised that the judge of the Municipal Court misconceived his role in a § 45 review of a decision of the commission. Section 45, as amended through St.1970, c. 711, makes clear by its express terms what the cases had, in effect, earlier established: to reverse the commission’s decision on the facts, the judge must find it ‘unsupported by substantial evidence’ (§ 45[e]). No such finding could properly be made here. The judge may mistakenly have thought himself free to reevaluate the testimony, although even on such a basis it is not easy to see how he could have come out as he did.”

With respect to the question of collateral estoppel raised below by Sgt. Cason because of his acquittal on the Federal charges of conspiracy, a reading of Ashe v. Swenson, 397 U. S. 436, 90 S. Ct. 1189, 25 L.Ed.2d 469 (1970), makes it perfectly clear that collateral estoppel, as a part of the Fifth Amendment’s guarantee against double jeopardy, had no application to the evidence received by the Trial Board in the present case. The Supreme Court defined the principle as meaning that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. The disciplinary hearing before the Trial Board was not a prosecution by the United States, nor did it involve conspiracy as proscribed by a Federal statute as an issue of ultimate fact.

In the Massachusetts case of Commissioners of Civil Service v. Municipal Court, supra, the Court considered a similar question. In disposing of that issue the Court said, at 834:

“It is then suggested that the fact of the respondent’s acquittal under the indictment in some way made it legally impossible for the commission to find him guilty of the departmental charge of ‘conduct unbecoming.’ The point is put in a variety of ways but, however framed, it may be answered in the words of Davis, J., in Kowal v. United States, 412 F.2d 867, 870, 188 Ct.Cl. 631 (1969), speaking to a case stronger for the employee than the present case because there the adversaries in the discharge and criminal proceedings were the same: ‘The Board [of Appeals and Review of the United States Civil Service Commission] was clearly correct that the decision in the criminal case was not binding upon it as res judicata. [Court’s omitted footnote cites cases.] While the parties to the criminal and the removal proceedings were the same, the charges, though parallel, were not precisely on all fours and the burden of proof was different — a preponderance (or, perhaps, clear and convincing evidence) in the removal proceeding, beyond a reasonable doubt in the criminal. Since only a general verdict was rendered, there is no absolute certainty as to how the jury decided specific issues of fact, and collateral estoppel in the strict sense is therefore not warranted either.’ ”

Extensive quotations from numerous cases dealing with the scope of judicial review have been included in this opinion in order to direct our focus sharply upon the question involved in this case.

A reviewing court may, and should, examine any inference, drawn by an agency, of the existence of a fact not shown by direct proof, to see if that inference reasonably follows from other facts which are shown by direct proof. If it does, even though the agency might reasonably have drawn a different inference, the court has no power to disagree with the fact so inferred.

A reviewing court may, and should, examine any conclusion reached by an agency, to see whether reasoning minds could reasonably reach that conclusion from facts in the record before the agency, by direct proof, or by permissible inference. If the conclusion could be so reached, then it is based upon substantial evidence, and the court has no power to reject that conclusion.

A reviewing court may, and should, examine facts found by an agency, to see if there was evidence to support each fact found. If there was evidence of the fact in the record before the agency, no matter how conflicting, or how questionable the credibility of the source of the evidence, the court has no power to substitute its assessment of credibility for that made by the agency, and by doing so, reject the fact.

The Trial Board which heard the charges against Sgt. Cason was not required to infer unproved facts from proved facts. Nor was it required to engage in a process of reasoning from facts to conclusions. Its task was enormously difficult, yet simple. Before the Trial Board was the testimony of Roye, which said, in effect, “Sgt. Cason came to see me, and I gave him bribe money.” Spangler’s testimony said, in effect, “I gave bribe money to Sgt. Cason.” Sgt. Cason said, in effect, “I received no money from either Roye or Spangler. Their testimony is not true.”

To believe Roye and Spangler was to disbelieve Sgt. Cason. To believe Sgt. Cason was to disbelieve Roye and Spangler. The issue was credibility, and nothing more. Direct evidence of an ultimate fact may be true, or it may be untrue, but it surely cannot be called insubstantial.

It was the responsibility of the Trial Board, and solely of the Trial Board, to find the true facts by assessing the credibility of the conflicting evidence on those facts.

The Baltimore City Court erred when it substituted its assessment of credibility for that of the Trial Board.

Judgment reversed.

Order of the Police Commissioner reinstated.

Appellee to pay costs.

      . The Baltimore City Police Department is a State agency, and appeals from it are governed by the Administrative Procedure Act, Kaufman v. Taxicab Bureau, 236 Md. 476, 204 A. 2d 521 (1964).

      . For an analysis of this and other decisions involving judicial review of administrative action, see the excellent article by Professor Edward A. Tomlinson, Constitutional Limits on the Decisional Powers of Courts and Administrative Agencies in Maryland, 35 Md.L.R. 414. Referring to Insurance Commissioner v. National Bureau, supra, Prof. Tomlinson says:
      “The Maryland Court of Appeals has nevertheless striven mightily to achieve a uniform approach to judicial review of administrative action. The hallmark of this approach has been that a reviewing court should not ‘itself make independent findings of fact or substitute its judgment for that of the agency.’ ”


source: Caselaw Access Project

author: Eldridge, J.,

license: Public Domain

text:
    HALLIE N. STONE v. JOHN P. STONE
    [No. 1326,
    September Term, 1975.]

      Decided February 2, 1977.

      The cause was argued before Marvin H. Smith and John C. Eldridge, Associate Judges of the Court of Appeals and Joseph M. Mathias, Associate Judge of the Sixth Judicial Circuit, all specially assigned.

      Stanley B. Rohd, with whom were Whiteford, Taylor, Preston, Trimble & Johnston on the brief, for appellant.

      David E. Betts, with whom were Betts, Clogg & Murdock and Simpson & Simpson on the brief, for appellee.
   Eldridge, J.,

delivered the opinion of the Court.

On June 4, 1967, the appellant, Hallie N. Stone, and her husband, John P. Stone, voluntarily separated. A separation and property settlement agreement was executed by the parties on December 11, 1972. Subsequently, on May 8,1973, the parties were granted a divorce a vinculo matrimonii in the Circuit Court for Montgomery County. The agreement of December 11,1972, was incorporated into the divorce decree. This appeal involves the refusal of the trial court to order that Mr. Stone specifically perform the separation agreement.

The separation agreement is actually comprised of three documents: the original agreement, an “addendum” and a “second addendum.” All, however, were executed on the same day. The original agreement, insofar as relevant, provided that the husband would not encumber certain life insurance policies so long as he remained obligated to pay for the maintenance of the minor children. He also agreed to furnish Mrs. Stone with proof of compliance with this provision upon her request. According to the terms of the original agreement, Mrs. Stone was to receive “alimony” of $250.00 per month during the joint lives of each spouse or until the remarriage of Mrs. Stone. In the addendum, however, the provision for monthly alimony was cancelled and the husband contracted to make a “single lump sum payment” to his wife for her maintenance and support. The addendum thus provides:

“5) That the Wife does hereby sell and the Husband does hereby purchase . . . the interest of the Wife in . . . [an] undeveloped tract of land containing 17.944 acres ... for the total price of . .. ($100,000.00) and the Husband does hereby pay unto the Wife the sum of ... ($5,000.00) ... as a deposit to be applied as part payment for the purchase of the said 17.944 acres.
“6) Within . . . (180) days from the date of the execution of this Addendum or within . . . (45) days following the entry of a final Decree of Absolute Divorce between the ... [parties], the said parties . . . are required and agree to make full settlement in accordance with the terms of this Addendum ....
“7) That as part of the single lump sum payment of alimony in lieu of periodic alimony payment the Husband agrees to pay, in addition to all other considerations expressed in the aforegoing agreement, the sum of . . . ($225,000.00) in cash within 180 days from the execution of this addendum or within 45 days following the entry of the final Decree of Absolute Divorce between the parties, and that until such . . . ($225,000.00) has been paid the Wife shall not be required to execute any deeds of conveyance for any transfer of property real or personal to the Husband.”

Mrs. Stone filed a bill of complaint in the Circuit Court for Montgomery County alleging, inter alia, that Mr. Stone had failed to tender a lump sum support and maintenance payment of $225,000.00, that he had not completed the purchase of Mrs. Stone’s joint interest in the tract of land for the agreed sum of $95,000.00, reflecting the balance due on the purchase price of $100,000.00, and that he had encumbered certain life insurance policies, all contrary to the terms of the settlement agreement entered into by the parties. Mrs. Stone requested specific performance of the agreement. She also claimed that, because of the failure to tender the lump sum of $320,000.00, she was required to sell certain securities to meet “reasonable and necessary living expenses,” and she requested an award of damages of $7,500.00 representing the alleged loss sustained upon the sale of these securities.

At the trial Mr. Stone testified that, at the time the agreement was executed, he contemplated paying the $320,000.00 from proceeds he hoped to acquire by the sale, development or syndication of the 17.944 acre tract of land. Mrs. Stone testified that she “knew he either would have to borrow it or sell [the tract of land].” She further testified that she “wasn’t sure whether he was syndicating it or what the situation was.” According to the testimony of Mr. Stone, he encountered circumstances subsequent to the agreement’s formation which made it impossible for him to raise the necessary funds from the sources he had originally contemplated. His testimony indicated that a sewer moratorium, which was partially in effect in 1972, became totally effective in 1973 and 1974, precluding any sewer connections for the 17.944 acre tract. As a consequence, he claimed, the property lost its marketability as an area for commercial development. Mr. Stone also testified that he was unable to secure a loan to pay the $320,000.00 because of rising interest rates and the lack of income-producing property to pay off a mortgage or loan since the sewer moratorium precluded any construction on the property. He stated that the lending institutions would not loan funds to him without such collateral as his salary was only $30,000.00 per year.

At the conclusion of the trial the circuit court filed a memorandum opinion, setting forth certain findings of fact. The court found that at the time of the execution of the addendum pertaining to the lump sum payment, both parties contemplated that this payment would be made from the proceeds of “a sale, hypothecation or syndication of the real property in question.” The court further found that, subsequent to the agreement a sewer moratorium, which was only partially in effect at the time of the agreement, became fully effective, preventing any current development of the property. The court went on to find that the sewer moratorium, in combination with a change in the “money market,” frustrated Mr. Stone’s efforts to develop, sell or mortgage the property to raise sufficient funds to perform the agreement. The court concluded that these circumstances presented “an instance of temporary impossibility of performance of the type contemplated by the Restatement of Contracts, Section 462” and that the duty of Mr. Stone to make settlement under the agreement should be suspended until “such temporary impossibility of performance has ended.”

In its opinion the court went on to note that the granting of specific performance is within the sound discretion of the court. It indicated that under the circumstances “such a disposition would be extremely harsh, if not disastrous, to the defendant” and would in all probability “deprive defendant of most, if not all, of his known property” with “little assurance that such a disposition would provide plaintiff with current funds for support and maintenance which the provision for a lump-sum payment of alimony was expected to do.” As to the damages claimed because of the sale of securities, the court found that there was insufficient evidence to establish any loss on the sale. Finally, the court found that Mrs. Stone’s request for information concerning encumbrances on the life insurance policies was rendered moot by testimony at the trial.

Subsequently, an order was filed by the court, in which the court “temporarily suspended” Mr. Stone’s obligation for payment of the $320,000.00 because of “temporary impossibility of performance.” This was the only ground set forth in the order for the refusal to grant specific performance of the promise to pay $320,000.00. The relief requested by Mrs. Stone as to the other provisions of the agreement, including the monetary damages, was also denied.

On this appeal, Mrs. Stone argues that the trial court erred in its application of the principles of temporary impossibility and in “suspending” the obligation of Mr. Stone under the agreement. She also contends that damages arising from the sale of securities, allegedly necessitated by Mr. Stone’s breach of the agreement, should have been allowed. Finally, she argues that the court erred in not finding that Mr. Stone had permitted certain encumbrances on life insurance policies in violation of the settlement agreement and in denying an order to remove those encumbrances.

(1)

Mrs. Stone contends that the doctrine of impossibility of performance was inapplicable to the provisions of the agreement between her and Mr. Stone which required her husband to pay a sum of money and to purchase her joint interest in the 17 acre tract in lieu of periodic alimony. She points out that Mr. Stone’s contractual obligation to pay her money was not contingent upon his ability to obtain a mortgage or to develop the 17 acre tract. Therefore, she argues, any inability on his part to mortgage, syndicate or develop the property due to a county sewer moratorium did not constitute an impossibility to perform the contractual obligation owed to her.

At the outset, we note that separation agreements are subject to general contract principles. Heinmuller v. Heinmuller, 257 Md. 672, 676, 264 A. 2d 847 (1970); Saggese v. Saggese, 15 Md. App. 378, 387-388, 290 A. 2d 794 (1972); Pumphrey v. Pumphrey, 11 Md. App. 287, 290, 273 A. 2d 637 (1971). It is of course true that under well-settled principles of contract law, a contracting party, under certain circumstances, may be discharged from his obligations under a contract because performance is impossible. Thus, the Restatement of Contracts § 462 (1932) provides that a temporary impossibility “of such character that if permanent it would discharge a promisor’s entire contractual duty” will suspend the duty of the promisor while the impossibility exists. Performance may be rendered impossible by events occurring after the formation of the contract as provided in § 457 of the Restatement. Section 457 provides in pertinent part:

“Except as stated in § 455, where, after the formation of a contract facts that a promisor had no reason to anticipate, and for the occurrence of which he is not in contributing fault, render performance of the promise impossible, the duty of the promisor is discharged . ...”

See Acme Moving & Storage v. Bower, 269 Md. 478, 483-484, 306 A. 2d 545 (1973). However, the operation of § 457 of the Restatement is limited by the phrase “except as stated in § 455.” The Restatement of Contracts § 455 provides:

“Impossibility of performing a promise that is not due to the nature of the performance, but wholly to the inability of the individual promisor, neither prevents the formation of a contract nor discharges a duty created by a contract.”

Under the circumstances presented here, we agree with Mrs. Stone that the doctrine of temporary impossibility is inapplicable. The transactions provided for by the contract are the payment of a sum of money and the purchase of a certain land tract in lieu of periodic alimony. By their nature, they are still capable of being performed. Mrs. Stone remains ready, willing and able to convey her joint interest in the 17 acre tract. The tract exists in the same condition as it did at the time of contracting. There has been no subsequent legislative enactment banning or regulating cash transactions of the sort involved here which would render impossible the performance of Mr. Stone’s obligation to make a payment of money. Therefore, the subject matter of the agreement is not incapable of being performed. The subsequent events referred to by the trial court do not render performance objectively impossible, as contemplated by the principle of impossibility of performance. See Levine v. Rendler, 272 Md. 1, 320 A. 2d 258 (1974). Compare Northampton Corporation v. Washington Suburban Sanitary Comm’n, 278 Md. 677, 366 A. 2d 377 (1976).

We believe that the principles of § 455 of the Restatement are applicable under the circumstances here. Any impossibility of performance is due solely to the financial inability of Mr. Stone to perform. Mr. Stone presented evidence that his salary is approximately $30,000.00 a year, certainly insufficient, in itself, to meet a contractual obligation of $320,000.00. At the time the contract was executed, Mr. Stone, according to his testimony, contemplated raising the necessary amount from business dealings involving the 17 acre tract. Subsequently, the Montgomery County sewer moratorium, rising interest rates and a “tight” money market may have, in fact, made Mr. Stone’s efforts to raise the funds in this manner unavailing. Nevertheless, Mr. Stone’s obligations under the contract are not discharged. In Baldi Constr. Eng’r v. Wheel Awhile, 263 Md. 670, 673, 284 A. 2d 248 (1971), the Court of Appeals said:

“[W]e do not believe that the financial'inability of one of the contracting parties to meet the contract price is an adequate ground upon which to grant rescission of a contract on the basis of impossibility of performance.”

See also S. Williston and G. Thompson, Law of Contracts § 1932, (rev. ed. 1938). Mr. Stone’s 'financial inability to settle according to the contract terms is insufficient to bring into operation the doctrine of impossibility of performance.

For these reasons, we find that the trial court erred in temporarily suspending Mr. Stone’s obligations on the theory of impossibility of performance. However, although the order of the court referred only to impossibility of performance as the reason for denying the relief requested by Mrs. Stone, the memorandum opinion discussed the extreme hardship and burden which would be imposed upon Mr. Stone if the agreement were to be specifically enforced. While personal hardship or increased burden caused by events subsequent to the formation of a contract are not a sufficient basis to suspend the obligation under the doctrine of temporary impossibility, they are factors which may be considered by the equity court in determining whether it should exercise its discretion in granting the remedy of specific performance. Zouck v. Zouck, 204 Md. 285, 296, 104 A. 2d 573 (1954). Because it is unclear from the court’s opinion, especially in view of the court’s order denying specific performance, whether these factors represent an alternative ground for denying the requested relief or whether the court merely considered them in determining if the doctrine of impossibility was applicable, we shall remand the case for further proceedings on this issue. Brown v. Brown, 278 Md. 672, 366 A. 2d 18 (1976).

(2)

Mrs. Stone next contends that the trial court erred in refusing to award her damages in the amount of $7,500.00, representing an alleged loss sustained upon a sale of certain securities. Mrs. Stone claims that the sale was necessary to meet living expenses when Mr. Stone failed to make the “lump sum payment” as provided by the agreement.

The trial court found that Mrs. Stone failed to produce sufficient evidence to establish a loss on the sale of the securities. Upon a review of the record, we cannot say that this determination was clearly erroneous. See Maryland Rule 1086. Moreover, there is no evidence that the sale of these securities was required as a consequence of Mr. Stone’s failure to tender the lump sum payment. For these reasons, we shall affirm the trial court’s denial of the $7,500.00 damages.

(3)

Mrs. Stone’s final contention is that the trial court erred in denying her request for an order that Mr. Stone remove certain encumbrances on a life insurance policy. At the time the parties executed the settlement agreement, Mr. Stone had a Northwestern Mutual Life Insurance policy which was encumbered by a loan in the amount of $10,000.00. The agreement provides that he shall not pledge or encumber the life insurance policy. According to the most recent statement received from Northwestern Mutual, however, the “policy loan balance as of November 1, 1974, [was] $14,825.32 which included $3,762.43 in unpaid interest,” a fact conceded by Mr. Stone in oral argument before us. Therefore, the court should order Mr. Stone to remove the encumbrance reflected by the amount in excess of the original $10,000.00 indebtedness.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

Costs to he divided equally.

      . Comment (a) of § 455 explains that:
      “Impossibility may be due to the nature of the thing to be done or to the capacity of the person who has promised to do it. It is the difference between ‘the thing cannot be done’ and ‘I cannot do it.’ Thefirst is objective; the second subjective.... All the following sections in the Chapter relate to objective impossibility.”

      . The doctrine of impossibility of performance would appear to be inapplicable for another reason. As set forth in § 457 of the Restatement, the subsequent event rendering performance impossible must be one which “a promisor had no reason to anticipate.” While the trial court stated that neither party anticipated the sewer moratorium at the time the agreement was executed, Mr. Stone testified that at that time he was negotiating with a lender for a mortgage “on the bare ground only because there was some question of a sewer moratorium for a three year period.” Clearly Mr. Stone had reason to anticipate the imposition of a sewer moratorium at the time he executed the agreement. Cf. Jeffrev Sneider-Maryland, Inc. v. LaVay, 28 Md. App. 229, 345 A. 2d 79 (1975).


author: Morton, J.,

text:
    ERMA V. STONESIFER v. STATE OF MARYLAND, SPRING GROVE STATE HOSPITAL et al. JEROME B. MILBURN v. DEPARTMENT OF CORRECTION, PATUXENT INSTITUTION et al.
    [No. 247,
    September Term, 1976.]
    [No. 248,
    September Term, 1976.]

      Decided February 2, 1977.

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

      William H. Engelman, with whom were Marc P. Charmatz and Kaplan, Heyman, Greenberg, Engelman & Belgrad on the brief, for appellant.

      Edward J. Glusing, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, J. Howard Holzer, Special Assistant Attorney General, and John L. Ulrich, Jr., Assistant Attorney General, on the brief, for appellees.
   Morton, J.,

delivered the opinion of the Court.

These cases are consolidated appeals from orders of the Circuit Court for Baltimore County (Proctor, J., presiding), dated March 19, 1976, which disallowed future compensation to appellants, Erma Y. Stonesifer and Jerome B. Milburn, under Article 101 (Workmen’s Compensation Article) of the Annotated Code of Maryland. The orders were entered on the basis that appellants were receiving pension benefits provided by their employers which were in excess of their workmen’s compensation awards.

Appellant, Erma V. Stonesifer, sustained an accidental injury while in the course of her employment with the State of Maryland at Spring Grove State Hospital on April 22, 1971. After a hearing on the issue of the nature and extent of her disability, the Workmen’s Compensation Commission, on March 8, 1973, awarded her compensation benefits for permanent partial disability in a sum not to exceed $6,125, payable at the rate of $35 per week.

On May 9, 1970, appellant, Jerome B. Milburn, sustained an accidental injury while in the course of his employment with the Department of Corrections at Patuxent Institution. Upon a hearing on the nature and extent of his disability, the Workmen’s Compensation Commission awarded him, on December 28, 1971, compensation benefits for permanent partial disability in a sum not to exceed $10,680, payable at the rate of $40 per week.

The State Accident Fund, the insurer of appellees, made weekly payments in both cases until July 26, 1974, when it informed appellants that future compensation would be disallowed as they were receiving retirement benefits in excess of compensation under Article 101. It is uncontested that both appellants were receiving more benefits from their respective retirement and pension funds supplied by their employers than they were from the State Accident Fund under the Workmen’s Compensation Act.

Article 101, § 33 (c) of the Annotated Code of Maryland, which became effective as of May 28,1971, reads as follows:

“Whenever by statute, charter, ordinances, resolution, regulation or policy adopted thereunder, whether as part of a pension system or otherwise, any benefit or benefits are furnished employees of employers covered under § 21 (a) (2) of this article, the dependents and others entitled to benefits under this article as a result of the death of such employees, the benefit or benefits when furnished by the employer shall satisfy and discharge pro tanto or in full as the case may be, the liability or obligation of the employer for any benefit under this article. If any benefits so furnished are less than those provided for in this article the employer shall furnish the additional benefit as will make up the difference between the benefit furnished and the similar benefit required in this article.”

Upon appellants’ requests, a hearing was held before the Workmen’s Compensation Commission on the issue of the failure of the employer/insurer to comply with the aforementioned Orders of the Workmen’s Compensation Commission. In both cases the Commission disallowed compensation under Article 101 pursuant to a retroactive application of § 33 (c). No payments have been made by the State Accident Fund since July 26, 1974. The parties agree that, aside from the merits of appellees’ contention, there is an unpaid balance due Stonesifer of $1,027.89 and one of $3,332.86 due Milburn.

Appellants filed appeals to the Circuit Court for Baltimore County. Following a hearing in each case, Judge Kenneth C. Proctor affirmed the Orders of the Workmen’s ,Compensation Commission ruling that § 33 (c), which became effective May 28, 1971, a date subsequent to the date of injury in both cases, is retroactive and thus encompasses appellants’ claims.

Appellants contend that the court below erred when it held § 33 (c) to be retroactive.

We hold that the issue of the retroactivity of § 33 (c) is irrelevant with regard to appellant, Milburn. Milburn’s injury, as noted above, was sustained on May 9, 1970. The law is clear that a “claimant’s rights are governed by the statute at the time of the injury and not as of the time of filing the claim.” Mutual, Etc. Co. v. Pinckney, 205 Md. 107, 113 (1954). As of May 9, 1970, the relevant law, then embodied in Article 101, § 33 (a), provided:

“Whenever and so long as by State law, city charter, or municipal ordinance, provision equal to or better than that given under the terms of this article is made for municipal employees injured in the course of employment, such employees shall not be entitled to the benefits of this article.”

In Montgomery County v. Kaponin, 237 Md. 112 (1964), the Court of Appeals interpreted this provision as not allowing a set-off when the employer’s retirement plan provided less benefits than that allowed under the Workmen’s Compensation Act. Thus, unless the employer’s plan was equal to or better than the Commission’s award, a claimant was allowed to recover twice for the same injury.

“In what was apparently a delayed reaction to the Kaponin holding, the 1970 General Assembly deleted the provision [§ 33 (a)] from the law. Acts 1970, ch. 741.” Nooe v. City of Baltimore, 28 Md. App. 348, 350 (1975). This Act, however, did not take effect until July 1, 1970. As such, applying Mutual, Etc. Co. v. Pinckney, supra, the aforementioned § 33 (a) was still the applicable law as of May 9,1970, the date of Milburn’s injury.

While Kaponin was decided on the fact that the employer’s retirement plan was less than the award provided under the Workmen’s Compensation Act, in Milburn’s case the benefits provided by his employer’s retirement plan exceeded that of the Commission’s.

Furthermore, since Milburn is one of the “municipal employees” specifically enumerated in § 33 (a), we reach the inevitable conclusion that he is not entitled to benefits under the Workmen’s Compensation Act by virtue of his employer’s retirement plan being in excess of that of the Commission’s at the time he sustained his injury.

Stonesifer’s injury was sustained on April 22, 1971. Thus, it is clear that her claim is not affected in any manner by former § 33 (a), the repeal of which became effective on July 1, 1970. We note that the General Assembly did not enact a new law on the issue of an employer’s retirement and pension plan vis-a-vis recovery under the Workmen’s Compensation Act until the Acts of 1971, ch. 785 (the present § 33 (c) of Art. 101), the effective date of which was May 28, 1971. It was during this eleven month “gap” that Stonesifer was injured, namely, April 22, 1971. Thus, unless § 33 (c) is to be applied retroactively, Stonesifer will be allowed to receive under both her employer’s retirement plan and the Workmen’s Compensation Act.

The prevailing rule with regard to a statute’s retroactivity vel non was stated by this Court in Wittel v. Baker, 10 Md. App. 531, 539 (1970):

“[T]he courts, under the cardinal rule, should ascertain whether the legislative intent was to have an Act apply prospectively or retrospectively and give that intention effect. When the legislature provides in the Act how it is to be applied the legislative intent is clear. When it does not so expressly or implicitly provide, certain presumptions arise as an aid in determining the legislative intent. ‘The general presumption is that all statutes, State and federal, are intended to operate prospectively and the presumption is found to have been rebutted only if there are clear expressions in the statute to the contrary. Retroactivity], even where permissible, is not favored and is not found, except upon the plainest mandate in the Act.’ * * * ‘This rule of construction is particularly applicable where the statute adversely affects substantive rights rather than only altering procedural machinery.’ ”

In our view, whether an injured employee is allowed to recover under two compensation plans or just one is clearly a question of substantive right. Thus, following the dictates of Wittel v. Baker, supra, unless there are “clear expressions” in § 33 (c) that it is to be applied retroactively, the presumption is that it was intended by the Legislature to be prospective only. Appellees stress the fact that since § 33 (c) begins with the word “[w]henever,” it was the intention of the General Assembly that the statute be retroactive. We do not deem this to be a “clear expression” of the Legislature’s intent. Moreover, “[t]he Workmen’s Compensation Act should be construed as liberally in favor of injured employees as its provisions will permit in order to effectuate its benevolent purposes.” Keene v. Insley, 26 Md. App. 1, 11 (1975). We conclude that § 33 (c) is not to be given retroactive application.

Judgment as to appellant, Mil-bum, affirmed; Milbum to pay one-half the costs.

Judgment as to appellant, Stonesifer, reversed; appellee to pay one-half the costs.


author: Moore, J.,

text:
    JOHN CARROLL DORSEY v. STATE OF MARYLAND
    [No. 288,
    September Term, 1976.]

      Decided February 2, 1977.

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

      Stephen L. Snyder, with whom was Joel L. Berger on the brief, for appellant.

      John Austin, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Henry E. Dugan, Jr., Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Michael Patryn, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.

       Note: Certiorari denied, Court of Appeals of Maryland, May 81,1977.

   Moore, J.,

delivered the opinion of the Court.

Appellant, John Dorsey, was convicted at a jury trial in the Criminal Court of Baltimore (Hargrove, J.) on two counts of distributing a controlled substance, heroin, Md. Code, Art. 27, § 286 (1957 ed., 1976 Repl. Vol.), for which he received two concurrent ten year sentences. On this'appeal, the contention is strongly urged that the court below erred in failing to grant a motion to compel disclosure of the name of an informant used by the State in its investigation. Also raised are issues of pre-arrest delay and denial of appellant’s Sixth Amendment speedy trial right. Finding each contention devoid of merit, we affirm.

In a pretrial motion upon which a full hearing was conducted immediately prior to trial, appellant sought to compel the State to revéal the name of an unidentified informant who introduced Detective Larry Strickland of the Drug Enforcement Detail, Baltimore City Police, to the appellant on July 24,1974. The testimony of Strickland and two other police officers engaged in surveillance disclosed that the informant, referred to as “SE”, met with Dorsey on July 23, 1974, for the purpose of setting up a meeting between Strickland and the appellant for a purchase of heroin. Appellant and “SE” arranged to meet again the following day in the 1800 block of Lorman Street, Baltimore.

Detective Strickland and the informant, riding in an unmarked official government car, with the two other officers observing from a distance, returned as arranged the next day, July 24. As the two pulled up, appellant walked over to their car and immediately inquired of the undercover officer, Strickland, known to him only as “the man from the Eastern Shore,” as to what quantity he desired. Detective Strickland offered to purchase 10 bundles. (This later measured out to 107.5 grams.) Dorsey then told Strickland that the price would be $125 per bundle and instructed him to return in several hours. According to Officer Strickland, the informant took no part whatsoever in the negotiations: “The only part he played in this was introducing me to Dorsey,” he testified.

Between 6:00 and 6:30 p.m., that same day, the detective and “SE” returned to the 1800 block of Lorman Street. They left their car and met the appellant on the street. As they were conversing with Dorsey, an unidentified male, known to the police only as “Alias Ronnie,” informed the appellant that the drugs would not be ready for another twenty minutes. Again, a later meeting was arranged.

Finally, at a third meeting on July 24th, at approximately 9:30 p.m., the purchase was consummated at the same location. Detective Strickland, with “SE” riding in the passenger seat, pulled up next to the appellant. Dorsey thereupon entered the passenger side of the automobile while, as prearranged, the informant exited the vehicle, admittedly “to avoid being part of the transaction.” Immediately thereafter, according to Detective Strickland and the other two officers who were again observing from a safe distance, appellant’s co-defendant drove up and parked behind the government car. “Alias Ronnie,” who had been standing near the car, then entered the co-defendant’s vehicle and emerged with a package under his arm. He gave the package to the appellant who in turn delivered it to Strickland. After examining the contents, Strickland presented $1125 in currency (the serial numbers of which had been previously recorded) to the appellant who shortly departed. The informant was absent from the car during the entire exchange.

A second sale of 5 bundles (67.3 grams) of heroin was transacted on July 31 when Strickland, pursuant to arrangements made with Dorsey on July 24th, returned to the 1800 block of Lorman and met with the appellant. A similar procedure was followed but the informant had nothing to do with this meeting and was not present.

In the ensuing months, there was a continuing series of investigations in the same district of Baltimore City, not involving the appellant, in which Detective Strickland remained “undercover.” For this reason, he did not obtain an arrest warrant for the appellant until January 22, 1975. The warrant was not executed until February 25, 1975. In explanation of the month’s delay, the officers testified they often wait a period of time for arrest warrants to “stack-up” before apprehending the individuals involved.

Right to Withhold Informant’s Name

The right of the State to withhold from disclosure the identity of persons who furnish the police with information concerning criminal activities is not unqualified. Roviaro v. United States, 353 U. S. 53, 60 (1957). In determining whether the State may legitimately keep confidential the name of the informant, the court must balance the public’s interest in effective law enforcement with the accused’s interest in preparing a defense. 353 U. S. at 62. In Roviaro, Mr. Justice Burton, writing for the Court, stated: “Where the disclosure of an informer’s identity, ... is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause,” the balance tips in favor of the accused. 353 U. S. at 60-61. While the particular circumstances of each case are controlling, the factors to be considered are the nature of the crime charged, the possible defenses and the potential import of the informer’s testimony. Id. at 62.

In Drouin v. State, 222 Md. 271, 286, 160 A. 2d 85, 93 (1960), the Court of Appeals stated that where “the name of the informer is useful evidence to vindicate the innocence of the accused, lessens the risk of false testimony or is essential to a proper disposition of the case . ..,” the informant’s identity becomes “relevant and helpful to the defense of an accused” within the meaning of Roviaro. Whether disclosure is necessary to an accused’s defense is within the sound discretion of the trial court. Gulick v. State, 252 Md. 348, 354, 249 A. 2d 702, 706 (1969); Drouin v. State, supra, 222 Md. at 286, 160 A. 2d at 93.

Upon the facts here present, we find this Court’s decision in Nutter v. State, 8 Md. App. 635, 262 A. 2d 80 (1970), to be highly persuasive authority. In Nutter, police placed an informant on the street, in a high volume drug trafficking neighborhood, as part of their investigation. The police watched as the appellant made contact with the informant. Both individuals departed for a short while and when the informant returned he displayed two capsules of cocaine which he claimed he purchased from the appellant. Shortly thereafter the police, armed with a warrant, searched appellant’s barbershop and discovered several more capsules of cocaine in a broken washbasin. Appellant was convicted of having under his control the narcotic drug Cocaine.

Chief Judge Orth, speaking for the court, reversed the conviction because of the trial court’s failure to compel the State to disclose the identity of the informant. In making its determination of guilt, the trial court had relied not only upon the search of the barbershop, but also upon the events of the previous day when the informant allegedly purchased cocaine on the street from the appellant. In light of the fact that the informant was the sole participant in the sale and that appellant completely denied any involvement in the transaction, this Court declared the informant’s identity to be essential to the defense.

Distinguishing cases where an informer is a mere observer as opposed to a participant, the court stated:

“We believe that if an informer is a participant, accessory or witness to the crime it is [only] a factor [and it does not constitute an exception to the privilege in and of itself] to be considered in determining whether his identity is necessary and relevant to a fair defense. And we feel that ‘witness’ as used in Gulick [and Drouin] means a material witness, in the sense that his testimony is important to a fair determination of the cause. . .. Thus in this context ‘material’ may be said to have a meaning more restrictive than its usual meaning. So, although an eyewitness to a crime is clearly a ‘material’ witness as that word is ordinarily used, if he is an informer, simply observing an illegal transaction but not participating in it, the fact that he observes the transaction does not necessarily make his possible testimony so important as to compel disclosure of his identity in the face of the rationale of the nondisclosure privilege.” 8 Md. App. at 639, 262 A. 2d at 83-84.

Where the accused is an active participant, we said:

“Thus where the informer is an active participant in the illegal activities disclosed by him, his actions and identity can become part of the res gestae and concealment of his identity might hamper the accused in making his defense by depriving him of the testimony of a material witness.” 8 Md. App. at 640, 262 A. 2d at 84.

The facts in the case subjudice clearly support the State’s privilege at trial to protect the identity of its informant. Here the uncontroverted testimony reveals that the informant played no role in the actual negotiations or the sale of the illegal drugs. While the meeting on July 23 between appellant and the informer did involve a discussion of drugs, the testimony of Detective Strickland indicates that the meeting was merely for the purpose of informing the appellant that “SE” had a friend who wished to purchase heroin and of performing an introduction. No discussion as to quantity, price or other terms took place at that time. All negotiations were between the appellant and Detective Strickland with the informer acting merely as an observer, from a distance. At the time the actual sale took place, the informer left the area so as not to be a part of the transaction. There is no dispute that “SE” was not involved at all with the July 31 sale. Appellant’s defense was limited to attacking the police officer’s credibility and ability to identify the appellant and we see no reason, in light of the purpose of the privilege, to require the State to produce the informant’s name. The trial court’s ruling was correct.

Right to Speedy Trial

Appellant asserts that an almost 11-month period between the date of his arrest, February 25, 1975, and the date of his trial, January 14,1976, amounted to a delay of constitutional proportions thereby violating his Sixth Amendment right to a speedy trial, applicable to the States through the Fourteenth Amendment. Klopfer v. North Carolina, 386 U. S. 213 (1967). In the resolution of the speedy trial issue, we must scrutinize all the events which took place during this critical period. The relevant dates are as follows:

February 25,1975 Arrest

May 9,1975 Indictment filed

August 8, 1975 Motion for Discovery and Inspection filed

Motion to Disclose Informant filed

August 23, 1975 State’s Answer to Motion for Discovery and Inspection filed

September 10, 1975 - Trial date-Postponed by State

September 29, 1975 Pretrial Motion Hearing-Postponed by State

October 23, 1975 Trial Postponed-Illness of Defendant

December 15,1975 Trial Postponed-Assignment Office

December 16,1975 Trial Postponed-Assignment Office

January 14,1976 Trial

In making our independent constitutional appraisal of whether the appellant’s constitutional right to a speedy trial has been violated, we must “engage in a difficult and sensitive balancing process,” Barker v. Wingo, 407 U. S. 514, 533 (1972), in which “the conduct of both the prosecution and the defendant are weighed.” Id. at 530, by considering the following four factors: (1) length of delay, (2) reasons for the delay, (3) defendant’s assertion of his right, and (4) prejudice to the defendant. Barker, supra, 407 U. S. at 530; Jones v. State, 279 Md. 1, 367 A. 2d 1 (1976), at 6; Epps v. State, 276 Md. 96, 104-09, 345 A. 2d 62, 71-77 (1975).

(1) Length of Delay

As the Supreme Court stated in Barker v. Wingo, supra, 407 U. S. at 530-31:

“The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case.”

For purposes of making a determination as to whether the length of delay was violative of appellant’s Sixth Amendment right, we begin with the date on which the appellant became an “accused,” i.e., the date he was subjected to “actual restraints imposed by arrest and [held] to answer [the] criminal charge,” until the date of trial. United States v. Marion, 404 U. S. 307, 320 (1971); Smith v. State, 276 Md. 521, 528 n.4, 350 A. 2d 628, 633 n.4 (1976). While there is no precise formula for computing an unconstitutional delay, we find the almost 11-month period, in the circumstances of this relatively uncomplicated drug case, between Dorsey’s arrest and trial to be “sufficiently inordinate to constitute a ‘triggering mechanism’ ” to prompt inquiring into the other factors which go into the balance. Epps v. State, supra, 276 Md. at 111, 345 A. 2d at 72. See Barker v. Wingo, supra, 407 U. S. at 530-31; United States v. Butler, 426 F. 2d 1275, 1277 (1st Cir. 1970); Barnett v. State, 8 Md. App. 35, 257 A.2d 466 (1969); Pyle v. State, 34 Md. App. 60 (1976).

(2) Reasons for the Delay

As Justice Powell wrote for the majority, in an oft quoted passage, in Barker v. Wingo, supra, 407 U. S. at 531:

“Closely related to length of delay is the reason the government assigns to justify the delay. Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.” (Footnote omitted.)

At the outset, we conclude that the period between the October 23, 1975 trial date, which was cancelled due to appellant’s illness, and the December 15, 1975 scheduled proceeding, is attributable to the appellant and therefore may not be considered in the determination of whether Dorsey was denied a speedy trial. Strunk v. United States, 412 U. S. 434, 436 (1973); Smith v. State, supra, 276 Md. at 529, 350 A. 2d at 633. The additional one-month delay between the rescheduled trial date of December 15, 1975, and the ultimate hearing on January 14, 1976, caused by a postponement within the assignment office, is chargeable to the State, but we do not find it unreasonable.

It is the eight-month period between Dorsey’s arrest, February 25,1975, and the cancelled trial date of October 23, 1975, which we must examine most carefully. From the docket entries of the Criminal Court of Baltimore in this case, it appears that the first trial date was not scheduled until September 10, 1975. This date was continued, at the request of the State, for reasons unexplained by the record. A pretrial hearing on preliminary motions, set for September 29, was also cancelled by the State, apparently necessitating a trial date of October 23. We note the absence of any evidence that would indicate that the delay in appellant’s trial was attributable in any respect to an effort by the State to hamper the appellant’s defense. However, the State provides no reason at all for the 8-month interval between Dorsey’s arrest and scheduled trial date of October. 23,1975. We must therefore conclude that the 8-month delay is chargeable to the State.

(3) Assertion of Right

Bearing in mind that an accused has no duty to bring himself to trial, Barker v. Wingo, 407 U. S. at 527, nonetheless whether the defendant has asserted his right to a speedy trial and at what stage, are factors to be considered in the balancing process:

“The defendant’s assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” (Emphasis added.) Barker v. Wingo, supra, 407 U.S. at 531-32.

The only time appellant chose to raise the speedy trial issue was in his motion to dismiss, heard in open court on January 14, 1976; trial began two days later and was concluded on January 22. At no earlier time did appellant request a speedy trial. This fact weighs against appellant’s contention.

(4) Prejudice

In considering the issue of prejudice to a defendant whose trial has been delayed, three interests of the defendant protected by the Sixth Amendment speedy trial right have been identified by the Supreme Court: 1) to prevent oppressive pretrial incarceration; 2) to minimize anxiety and concern of the accused; 3) to limit the possibility that the defense will be impaired. Barker v. Wingo, supra, 407 U. S. at 532. Of these, the Court has placed the most emphasis on impairment of the defense of the accused. Id.

A demonstration of actual prejudice by the defendant is not required in order to find a speedy trial violation. Moore v. Arizona, 414 U. S. 25, 25-26 (1973). A delay of constitutional proportions in bringing a defendant to trial may:

“[ S]eriously interfere with the defendant’s liberty, whether he is free on bail or not, and ... may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.” United States v. Marion, 404 U. S. 307, 320 (1971); see Smith v. State, supra, 276 Md. at 533, 350 A. 2d at 635.

Where the delay is “substantial”, prejudice to an accused may be presumed, thus shifting the burden of going forward with evidence to the State. Wilson v. State, 34 Md. App. 294 (1976); State v. Lawless, 13 Md. App. 220, 232-33, 283 A. 2d 160, 170 (1971). As Judge Moylan wrote in Lawless, supra:

“The middle position, and that used in this State, is that a certain quantitative and qualitative degree of delay gives rise to a rebuttable presumption of prejudice and will shift the burden of going forward with the evidence from the accused to the State.” (Emphasis added.) 13 Md. App. at 232-33, 283 A. 2d at 170.

Under the facts presented here, we cannot conclude there was “substantial” delay so as to give rise to a presumption of prejudice. Quantitatively, the lapse of 8 months while significant, was not inordinate. In qualitative terms, we have a situation where the right was not timely asserted and where there is no suggestion of impropriety on the part of the State. See Graham v. State, 6 Md. App. 458, 251 A. 2d 616 (1969). With regard to actual prejudice, the appellant was out on bail, according to the court records, from shortly after his arrest through the conclusion of his trial. While we are mindful of the anxiety created by a protracted delay pending the resolution of criminal charges, we find no evidence before us to indicate any such “anxiety or concern” on the part of the appellant and, under the circumstances of this 8-month delay, we find no factors which would justify a finding of prejudice. See Lee v. State, 32 Md. App. 671, 683, 363 A. 2d 542, 549-50 (1976). Finally, with regard to the issue of prejudice to the ability of the appellant to present his defense, we similarly conclude that no prejudice resulted. Appellant did not himself testify and he presented no testimony of any other person at the pretrial hearing on his motion to dismiss, to show concretely how the delay hampered his defense, or, indeed, involved any other element of prejudice. Í

While we recognize the delay in bringing this appellant to trial, we resolve the issue of whether appellant was denied his right to a speedy trial against the appellant because there is no evidence of prejudice resulting from this delay and appellant failed to assert his right at a more meaningful time.

Pre-Arrest Delay

As previously noted, while the illegal transaction upon which the appellant was convicted occurred in July, 1974, an arrest warrant was not issued until January 22, 1975, and the appellant was not actually placed in custody until February 25. Appellant seeks to draw support from the Fifth and Sixth Amendments to the Constitution for his contention that his rights were violated because of the pre-arrest delay and he claims his ability to prepare a defense was hampered by such delay.

It is beyond question that an individual’s Sixth Amendment right to a speedy trial does not attach until after the individual has been arrested or until formal charges have been brought against him. United States v. Marion, supra, 404 U. S. at 313; Smith v. State, 11 Md. App. 631, 634 (1971); Osborne v. State, 3 Md. App. 161, 238 A. 2d 145 (1968). As the Court of Appeals stated in Miller v. State, 239 Md. 136, 139, 210 A. 2d 394, 395 (1965), “the right to a speedy trial does not arise until a prosecution has been instituted and an accused cannot successfully complain of delay in the institution of the prosecution if it is within the applicable period of limitations.”

As the Supreme Court has recognized, absent a showing of actual prejudice, compared to possible prejudice, “the applicable statute of limitations ... is usually considered the primary guarantee against bringing overly stale criminal charges.” United States v. Ewell, 383 U. S. 116, 122 (1966); see United States v. Marion, supra, 404 U. S. at 322. Where a defendant can demonstrate actual prejudice, however, in circumstances where the delay between the occurrence of the criminal offense and the date of arrest or indictment is unduly íong and the actions of the State in delaying were unreasonable, deliberate and oppressive, the due process clause would demand a dismissal of the indictment. United States v. Manon, supra; Smith v. State, supra. See Daniels v. State, 30 Md. App. 432, 441-42, 352 A. 2d 859, 865-66 (1976).

In the instant case, appellant introduced no evidence of actual prejudice to his case caused by the pre-arrest delay. The State justified the 6-month delay in the issuance of the arrest warrant by the need to maintain Detective Strickland’s undercover status. In addition, the month delay between issuance and execution of the warrant was grounded on considerations of administrative economy. We find no violation of the due process clause.

Judgments affirmed; costs to be paid by appellant.

      . The appellant was tried jointly with a co-defendant, Cheryl A. Jordan, who was charged with conspiracy to distribute a controlled substance and related offenses. The co-defendant was acquitted of that charge but convicted on a possession count.

      . Regardless of the outcome of the balancing test, the State may always opt to retain the confidentiality of its agent at the risk of being compelled to dismiss the criminal prosecution. See Roviaro v. United States, 353 U. S. 53, 61 (1957).

      . Actually, appellant’s counsel never filed a motion to dismiss the indictment but joined in his co-defendant’s motion.