text:
    JAMES THOMAS v. STATE OF MARYLAND
    [No. 177,
    September Term, 1967.]

      Decided April 18, 1968.

    The cause was argued before Murphy, C. J., and Morton, 'Orth, and Thompson, JJ.

      Richard K. Jacobsen, with whom was Jmnes J. White, III, on the brief, for appellant.

      Fred Oken, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and William Parsons Pennell, State’s Attorney for Kent County, on the brief, for appellee.
   Per Curiam.

The appellant was found guilty by a jury in the Circuit Court for Kent County of five offenses of uttering a false check. On •each offense the judgment of the court was that he restore the property taken or pay the full value thereof. He was sentenced to imprisonment for a term of 2 years on the first offense. A like term was imposed on each of the other four offenses, each •of those sentences to run consecutively with each of the sentences imposed prior to it.

On appeal the appellant attacks the validity of each of the judgments by contending that the lineup in which he appeared was not conducted in a fair and impartial manner. The short answer is that testimony as to the identification of the appellant at the lineup and his identification in court came into evidence in the State’s case on direct examination of a police officer and six other witnesses without objection and the witnesses were cross-examined at length on the matter by appellant’s counsel. There was no motion to strike the testimony. The point not being tried and decided by the lower court, it is not properly before this Court and we do not deem it necessary or desirable for us to decide it within the purview of Md. Rule, 1085. See Bell v. State, 2 Md. App. 471.

The appellant attacks two of the judgments against him on the ground that the evidence was not sufficient to sustain the convictions with regard to them. The arguments as to the sufficiency of the evidence with respect to the challenged convictions go only to the identification of the appellant.

Evidence adduced by the State showed that 100 blank drafts of the Cnited States Fidelity and Guaranty Company, numbers 222301 to 222401, had been found to be missing from that Company’s supply. Five of them, numbers 222313, 222314, 222316, 222317 and 222399, proved to be forged, were the basis of the charges against the appellant. Each of them, the blanks filled out by typewriter, were identical except for a fictitious claim number. Each was dated July 5, 1966, payable to the order of Floyd Dover, 4008 Cedardale Rd., Baltimore 15, Maryland, in the amount of $95 and designated the date of the accident as February 17, 1966. Each bore an unauthorized countersignature, '“Van Crawford” and each was endorsed “Lloyd Dover.”

Mathilda Wessell, a note teller of the Maryland National Bank, testified that she cashed draft No. 222314. Asked who gave her the check to cash she said, “I think it was the defendant, but I am not absolutely sure. It was a busy evening.” She designated the appellant as the man to whom she referred. She said she had identified the appellant at a lineup. “I picked him out among the group that was there. As I say, the night I cashed the check it was a busy evening, but he was the one that I thought, felt pretty sure was the man I cashed the check for.” She also had picked his photograph from among four photographs shown her. She had no difficulty picking out the photograph of the appellant. “I thought it was the picture. I knew it wasn’t any of the others. I felt pretty sure that this was the picture of the man I had seen, that I cashed the check for. I knew it was not any of the other pictures that I saw.” On cross-examination she said, “I feel sure it was the defendant. I couldn’t swear to it.” Asked, “You’re not positive?” she replied, “No sir.” The police officer who conducted the lineup testified that she had picked the appellant “out as the man who' had cashed the check” but as she “walked out in the hall (after viewing the lineup) she said, ‘I’m sure that’s him, I’m almost sure that’s him.’ ”

Alex Rasin, an employee of The Peoples Bank of Chester-town testified that he cashed draft No. 222317. The appellant and another man came into the bank and came up to the window. Rasin identified the appellant as one of the men. He had been shown some photographs but was unable to identify the appellant from the photographs shown him. Later he attended a lineup and “I was able to positively point out the defendant as one of the two men that presented the check to me * * * I had no difficulty whatsoever then.” Asked during his testimony, “Do you have any doubt now that the defendant in the Courtroom today was one of the men that participated in this transaction wherein a check was cashed by you at People’s Bank * * *?” he replied, “No sir, no doubt whatsoever.” The police officer who conducted the lineup testified that when Rasin viewed the lineup “he pointed to the defendant as the one immediately as he walked in the room.” But while Rasin was positive in his identification of the appellant as one of the two men who came up to his window and requested the draft be cashed, he could not say which of the two endorsed the check and showed him a Maryland driver’s license for identification, representing himself as “Lloyd Dover.” He said, “I cannot remember which one presented the check. They were together and one of them presented it and one of them signed it and one of the men is the defendant.”

The five indictments under which the appellant was charged were consolidated for trial. There was evidence before the jury, as the appellant concedes, sufficient to prove beyond a reasonable doubt that the appellant had uttered three other similar false drafts about the same time he uttered the two here discussed. The evidence with regard to those other three charges was relevant, not only as to the guilt of the appellant as to those specific charges, but also as to his guilt with respect to the drafts cashed at the Maryland National Bank and The Peoples Bank of Chestertown. The Court of Appeals said in Ward v. State, 219 Md. 559, 562-563:

“An accused must be convicted by evidence which shows that he is guilty of the offense charged; and, under ordinary circumstances, evidence that he has done other acts which constitute a crime has no relevance towards showing that he did that with which he is presently charged. If, however, the evidence of another offense has a natural tendency to establish, or offers a reasonable presumption or inference as to, a principal fact at issue or matter in dispute, it should be admitted even though it discloses other offenses, (cases cited). This Court said in Purviance v. State, 185 Md. 189, 196: ‘While guilt cannot be established by proving that the defendant has committed other crimes, it is firmly established that evidence of acts may be admitted to show motive, intent, absence of mistake or accident, a common scheme, or identity embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other.’ ”

Thus the evidence as to the cashing of substantially identical drafts at three other places, at about the same time as the cashing of the two drafts which were the basis of the charges here challenged, was relevant with respect to convictions here attacked on the element of guilty knowledge of the appellant in uttering the drafts, on the issue of a scheme or plan to cash a series of identical forged drafts to obtain goods and money from various merchants and business establishments and on the question of identity. Bishop v. State, 55 Md. 138; Bell v. State, 57 Md. 108; Lyman v. State, 136 Md. 40; Mazer v. State, 212 Md. 60. Further, with regard to the testimony of Mrs. Wessell, the lack of positiveness of the identification of the appellant affected only its weight and the sufficiency of the identification was a matter for the jury to determine. Logan v. State, 1 Md. App. 213, 217. And with regard to the testimony of Rasin, it is clear that the appellant was one of the two men who-participated in the cashing of the draft. It was immaterial whether the appellant was the one who in fact physically presented the draft to Rasin or was the other participant. Assuming that he was not the one who actually presented the draft and forged the endorsement, by his presence in concert with the actual perpetrator, in a position to assist if necessary, or prevent interference or detection, or for the purposes of encouragement at the moment of the commission of the felony, he was a principal in the second degree, the evidence showing that the one here assumed arguendo to have presented the check was a principal in the first degree. Agresti v. State, 2 Md. App. 278, 280; Md. Code (1967 Repl. Vol.), Art. 27, § 44. As to indictment, conviction and punishment, there is no distinction between-principals in the first and second degree. McEntire v. State, 2 Md. App. 449, 453.

This Court does not weigh the evidence presented to the jury, but only determines its sufficiency to take a particular issue, or the entire case, to the jury, when the point is properly preserved. It has been consistently held that in order to overturn a judgment entered on a verdict of a jury for insufficiency of the evidence it is necessary that there be no legally sufficient evidence or inferences drawable therefrom on which the jury could find a defendant guilty beyond a reasonable doubt. Quinn v. State, 1 Md. App. 373, 375. In the instant case, we find that there was such legally sufficient evidence before the jury.

Judgments affirmed.

      . The record includes a written motion for judgment of acquittal which was presented to the court and denied at the close of the evidence offered by the State and “re-presented” and denied at the close of all the evidence. The motions and actions thereon do not appear in the transcript of the trial but are reflected in the •docket entries.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    LEE SANDERS MARSHALL v. STATE OF MARYLAND
    [No. 256,
    September Term, 1967.]

      Decided April 18, 1968.

      The cause was argued before Murphy, C. J., and Morton, Orth, and Thompson, JJ.

      Harvey Rosenberg for appellant.

      Alfred J. O’Ferrall, III, Assislmt Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Robert J. Woods, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Per Curiam.

The Appellant, Lee Sanders Marshall, was convicted of armed robbery by Judge Robert B. Mathias, sitting without a jiiry in the Circuit Court for Prince George’s County, and sentenced to ten years in the Maryland Penitentiary.

The record indicates that on December 30, 1966, a delicatessen in Prince George’s County was robbed by two men, one of whom carried a gun. The owner testified that while he and his wife were alone in the store, a man wearing large dark sunglasses and a small brimmed hat came into the delicatessen, pulled a gun and demanded the money in the cash register and the money in the owner’s pockets. He stated that the gunman was accompanied by another man who wore a mask and held the store entrance door shut with his foot during the robbery. He stated that the Appellant was not one of the two men.

The principal witness for the State was Deputy Sheriff Edwin L. Sellers of Prince George’s County who, on the evening in question, was driving past the delicatessen at the time the robbery occurred. Mr. Sellers testified that he observed a blue and white Pontiac automobile parked about one hundred feet from the delicatessen and further noticed two men leave the car, one wearing dark glasses and a hat pulled down almost over his forehead. Since it was 9:30 at night, the fact that the man was wearing dark sunglasses with a hat pulled down on his forehead appeared to Mr. Sellers “as being something funny.” As he drove past the Pontiac Mr. Sellers related that the man occupying the driver’s seat “just turned around and kept watching me.” Sellers then drove to the corner, made a U-turn and came back noting the license tag number of the automobile. As he slowly drove past the automobile the second time the driver again “kept watching me all the way until I got past the car.” Sellers noted that the two men he had previously seen “were walking just a little past Rose’s Delicatessen.” Unable to make a U-turn because of icy conditions, Sellers went around the block and as he returned to the parked car it had begun to move with its doors open and the two persons he had previously noticed leaving the automobile were “running down the street and jumping in the automobile” which then took off “at a high rate of speed.” Sellers attempted to give pursuit but was unable to do so because of the hazardous road conditions. He positively identified the Appellant as the driver of the getaway car, stating that he had gotten a good look at his face, taking particular note that he was wearing a diamond shaped goatee. He immediately broadcast a description of the individuals and the car over his police radio and later that same evening, identified a picture of the Appellant from among a group shown to him by the local police.

The Appellant testified in his own behalf, claiming that he was in a restaurant in the District of Columbia with his girl friend at the time of the robbery. He admitted that he was the owner of a blue and white Pontiac and that at the time of the robbery he wore a diamond shaped goatee. The Appellant’s friend corroborated his alibi.

In rebuttal, the State produced Detective Everett Husk who testified that he was able to ascertain that the Appellant was the owner of a blue and white Pontiac with the same license tag number as was furnished by Mr. Sellers.

In this appeal, the Appellant contends that he was denied a fair trial and that the evidence was legally insufficient to sustain his conviction.

His asserted denial of a fair trial is based upon a remark by the presiding judge made while he was announcing his reasons for the verdict. In assessing the testimony of Deputy Sheriff Sellers, the judge stated that “he is not a layman who is subject to making mistakes.” The Appellant contends that this demonstrates a bias on the part of the judge in favor of law-■enforcement officers to such an extent “as to deprive the Appellant of his right to a trial by an impartial and unbiased 'Court.” We disagree. It was, in our opinion, fair comment on the part of the judge and it was merely indicative of the weight he was attaching to the witness’ testimony. It is the trial judge’s function in a non-jury trial to weigh the evidence. Dunlap v. State, 1 Md. App. 444; Sadler v. State, 1 Md. App. 383; Dortch and Garnett v. State, 1 Md. App. 173. In our opinion, the statement indicated neither bias nor prejudice on the part -of the trial judge.

Nor do we find any merit in the contention that the evidence was legally insufficient to sustain the conviction. The Deputy Sheriff positively identified the Appellant as the driver of the ■car which sped away from the scene of the robbery with pas- ■ sengers who fitted precisely the description of the holdup men who had just robbed the delicatessen. It is well settled that the 'identification of an accused by a single eyewitness is sufficient to support his conviction. Crumb v. State, 1 Md. App. 98; McIntyre and Davis v. State, 1 Md. App. 586; Hutchinson v. State, 1 Md. App. 362. Moreover, the trial judge, in this in- • stance, was not required to believe the alibi testimony. Logan v. State, 1 Md. App. 213; Thomas v. State, 1 Md. App. 528.

It is the function of this Court in reviewing the sufficiency ■of the evidence in a non-jury case to determine whether the •court below had sufficient evidence from which it could be fairly convinced beyond a reasonable doubt of the accused’s guilt. Sadler v. State, supra. The verdict will not be set aside on the evidence unless clearly erroneous. Md. Rule 1086. Applying 'these principles to the case at bar, it is apparent that there was Ilegally sufficient evidence to sustain the Appellant’s conviction.

Judgment affirmed.


text:
    CARROLL M. BURKE v. WARDEN, MARYLAND PENITENTIARY
    [No. 113,
    September Term, 1967.]

      Decided April 22, 1968.

    Before Murphy, C. J., and Anderson, Morton, Orth, and Thompson, JJ.
   Per Curiam.

This application for leave to appeal from an order dated October 24, 1967, of Judge James A. Perrott presiding in the Criminal Court of Baltimore denying relief prayed under the Uniform Post Conviction Procedure Act, after an evidentiary hearing at which the applicant was represented by counsel appointed 21 October, 1965, is denied for the reasons stated by Judge Perrott in his thorough memorandum accompanying the order. It is noted that the application for leave to appeal fails to contain a statement of the reasons why the order should be reversed or modified as required by Maryland Rule BK 46 b and could be denied for this reason.

The docket entries show that the petition for relief was filed on October 11, 1965, and was heard two years later. There appears in the record an undated eight page document entitled “Petition for a Hearing” apparently prepared by the applicant in proper person in which he requested release for lack of hearing and again set forth and argued many of the allegations appearing in his petition. The date of filing of this Petition for a Hearing does not appear in the record but we assume it was prior to the hearing on the petition for relief. Maryland Rule BK 44 b provides that a hearing on a petition for relief under post conviction procedures “shall be held as soon as possible after all pleadings required or allowed * * * are filed.” The rule does not contain a sanction for violation but in any event, under the circumstances apparent in the instant matter, we do not find that it was violated. The hearing judge said in his memorandum : “The matter was scheduled for hearing and postponed on several occasions because the Petitioner insisted upon the presence of eighteen witnesses * * *. It might also be noted that Petitioner repeatedly requested his counsel, Mr. Maxwell (E. Thomas Maxwell, Jr.), to summons some eighteen witnesses for his Post Conviction hearing. On October 12, 1967, the Petitioner admitted that the only purpose these witnesses would serve is to testify to (and thus relitigate) the question of identification. We agree with counsel that this procedure is not within the purview of the Post Conviction Procedure Act.” Even if it be assumed that a constitutional right of the applicant was violated by the delay in holding a hearing, which we do not decide, he is not helped. A constitutional right may be waived and the applicant waived a hearing earlier than that held by his requests for postponement. See State v. Long and Nelson, 1 Md. App. 326; Brooks v. Warden, 1 Md. App. 1.

Application denied.

      . We understand that this was explained to the applicant by his counsel but that the applicant insisted, until just prior to the hearing, that the witnesses be present at a hearing. Counsel attempted to subpoena them but found that the majority of them were from “transient neighborhoods” and had moved. Hearing was first set for August 16, 1966 and postponed at the request of the Petitioner when all of the witnesses he requested be subpoenaed did not appear. It was postponed on at least three other occasions for the same reason at the applicant’s request.

      . We think it clear that the guarantees of a speedy trial under Article 21 of the Maryland Declaration of Rights and the VI Amendment to the Constitution of the United States apply only to “criminal prosecutions” and that a hearing under post conviction procedures is not a criminal prosecution. We do not decide whether, under the circumstances of a particular case, an unreasonable and oppressive delay in hearing a petition under the U.P.C.P.A. may be a denial of due process of law.


author: Ortit, J.,

text:
    DONALD R. RATH AND CHARLES S. SANDERS v. STATE OF MARYLAND
    [No. 218,
    September Term, 1967.]

      Decided April 22, 1968.

    The cause was argued before Murphy, C. J., and Anderson, Morton, Orth, and Thompson, JJ.

      Robert H. Reinhart for appellants.

      Alfred J. O’Ferrall, III, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Donald

      W. Mason, State’s Attorney for Allegany County, on the brief, for appellee.
   Ortit, J.,

delivered the opinion of the Court.

William George Gowans was working at the Hudson Service Station about 4:30 A. M. on June 13, 1962. A black Chevrolet containing a driver and a passenger pulled in the driveway. The driver asked for $2.00 worth of gasoline and requested that the oil be checked. After the gasoline and two quarts of oil were put in the car Gowans asked the driver for payment and was told the passenger had the money. As he walked around the car to the passenger, the passenger opened the car door. “He had a .22 pistol in his hand” and said, “This is a stick-up.” He demanded the money Gowans had in his pockets, $41.00 .and some change, and asked if there was any money in the station. The driver went into the station and found a black box containing $100. He brought the box out and the passenger forced Gowans at gun point to get in the back of the car, threatening to shoot him if he did not obey. They drove about 4 miles on route 40 and then 1miles up a side road where they stopped. Gowans was ordered out of the car and told to lie face ■down. He did so and was struck on the back of the head. One of the men rolled him over, said, “He’s out,” and the robbers departed in the car. Gowans went to the first house down the road and called the police. The driver was “white, had a mustache, thick rimmed glasses, about five ten, weighed about 140 pounds. He had denim trousers on and a denim jacket and had black wavy hair.” He was in his “early twenties.” The passenger was “white, about five eight, a little bit shorter and a little bit heavier than the driver, and he was younger and he had no glasses or no mustache and he was dressed in a gray outfit.” He had “dark curly hair.” As a result of a teletype description of the robbers sent out by the police, the Maryland State Police received information that three men were being held at Greensburg, Pennsylvania, two of whom answered the description of the robbers. An officer went to Greensburg on June 24, 1962 and interviewed the men in custody. The appellants were presented and indicted for the robbery of Gowans on April 3, 1967. They were jointly tried in the Circuit Court for Allegany County without a jury. Each was found guilty of robbery with a deadly weapon on July 21, 1967 and each was sentenced to imprisonment for a term of 5 years to begin “at the expiration of the time served in Pennsylvania.”

At the trial Gowans identified the appellants as the men who robbed him, Rath as the driver of the car and Sanders as the passenger. He had appeared before a lineup at the Cumberland Police Station on July 13, 1967. The appellants were in the lineup with six other men “similar to the age group of Mr. Rath and Mr. Sanders, as to ages and height and weight.” At the lineup Gowans picked out two men as the ones who had robbed him. Sanders was one of those he identified but the other was a man in no way involved in the crime. Gowans testified that at the time of the robbery, Rath, the driver of the car, had a mustache and wore glasses while no one in the lineup had a mustache. Four men in the lineup had on glasses but Rath and Sanders did not. “I kept thinking of the driver wearing glasses. That is why I said he (the innocent man identified) was driving.” He was also standing next to Sanders in the lineup. The record does not indicate that Gowans knew the appellants by name. Counsel for the appellants were present at the lineup but shortly thereafter, Corporal Milton G. Hart of the Maryland State Police, not in the presence of counsel, told Gowans that “one of the men (he) picked was not one of the guys that held up the station.” Gowans said he was satisfied with his identification of one of the men he had picked out but he did not say which one, Sanders or Rath. Hart testified that he told Gowans, “he had picked out Mr. Sanders but had not picked out Mr. Rath.” He said that he indicated to Gowans that Gowans had picked “the wrong person.” “As soon as I mentioned it to him he realized too that he had picked the wrong one.” He indicated to Gowans who the right ones were but did not “show him who Mr. Rath was.” There was no subsequent lineup. However, the transcript of the testimony of Gowans at the trial shows the following:

“Q. Have you seen any pictures of the two defendants in this case since the day of the lineup ?
A. Since the day of the lineup ?
Q. Yes.
A. No, sir, I don’t believe.
Q. Have you talked to anybody other than Corporal Hart about your identification ?
A. You mean that day or since then ?
Q. Since then?
A. Just District Attorney Mason.
Q. You were not shown a picture of the defendants since that time ?
A. I think the State’s Attorney had some laying on his desk, I think. He asked me if them was the two I picked out up at the gas station from the old photographs and I said yes.
Q. In other words, you saw photographs of these defendants and said that is the two, after the lineup ?
A. Yes, sir.”

The events described in the above examination occurred on the morning of the trial. The photographs of the appellants referred to were taken in Pennsylvania and Corporal Hart, who was present while the State’s Attorney talked to Gowans, saw them on the desk of the State’s Attorney but could not say that he saw Gowans view them—“we were discussing the case in general.” He did say that Gowans could have had an opportunity to view them.

At the close of the evidence offered by the State the appellants each moved for judgment of acquittal “on the basis the State has not proved a case with regard to his identity.” Neither appellant offered evidence in his own behalf. See Md. Rules, 755; Jason v. State, 1 Md. App. 136. The conviction of the appellants depended entirely upon their identification by Gowans. As previously stated at the lineup he did not identify Rath but designated an innocent party as the robber driving the car. Upon being told that one of the two men he picked was not one of the robbers, he was “satisfied about one” he had picked but he did not say which one and did not specifically answer the question asked him, “How did you determine in your own mind then which defendant was correct?”, saying in part answer, “It’s been five years since I seen these guys.” It not being clear from the record which of the identifications made at the lineup he was satisfied was correct, the showing to him on the morning of the trial of a picture of each of the appellants and being asked by the State’s Attorney if they were the two he picked out “up at the gas station from the old photographs”, tainted his courtroom identification not only of Rath, but also of Sanders, whom he had picked out at the lineup. He was not afforded the opportunity to correct any mistake in his identifications either by a subsequent lineup or by a viewing of a number of photographs, but was shown only a photograph of each of the appellants on the day of the trial. We recognize that the weight to be given a courtroom identification is a matter for the trial court, Crumb v. State, 1 Md. App. 98; Hutchinson v. State, 1 Md. App. 362, but we are also aware of the rationale of the Supreme Court in United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149. The Court said at p. 228:

“But the confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial. The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification * * * It is obvious that risks of suggestion attend either form of confrontation (lineup and presentation of a suspect alone to the witness) and increase the dangers inhering in eyewitness identification.”

See also Gilbert v. California, 388 U. S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178. Wade and Gilbert fashioned exclusionary rules to deter law enforcement authorities from exhibiting an accused to witnesses before trial for identification purposes without notice to and in the absence of counsel. But their rules are aimed both at minimizing the possibility of a conviction which rests on a mistaken identification by preventing the unfairness at the pretrial confrontation that experience has proved can occur, and at assuring meaningful examination of the identification witness’ testimony at trial. Stovall v. Denno, 388 U. S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199. In the instant case what occurred at the lineup and thereafter, leading to the courtroom identification, is not in dispute. We think that under the circumstances shown in the record the rationale expressed and inherent in Wade and Gilbert is clearly apposite. The actions of the authorities after Gowans picked out an innocent man at the lineup, failing to identify Rath, seriously and crucially derogated from a fair trial. We find that the appellants were not afforded a fair trial and, so finding, must reverse the judgments.

The appellants also contend that the trial court erred in permitting a police officer to testify as to the descriptions of the robbers given by Gowans shortly after the crime. At the trial the descriptions of the robbers given by Gowans without objection were substantially the same as those stated in the subsequent testimony of the officer. We find no prejudicial error with respect to that contention. See Lewis v. State, 2 Md. App. 318.

Judgments reversed: case remanded for a new trial.

      . Apparently the appellants were then serving a sentence in Pennsylvania for robbery and a detainer had been filed by the Maryland authorities. They were returned to Maryland for trial pursuant to the Interstate Agreement on Detainers Act, Md. Code (1967 Repl. Vol.), Art. 37, §§ 616A-616R.

      . Objection to the admissibility of evidence as to Gowans’ identification of the appellants on July 1, 1962 at the gas station from among five or six photographs shown him by the police was sustained by the lower court.


author: Lowe, J.,

text:
    VIRGINIA LYNNETTE FABRITZ v. STATE OF MARYLAND
    [No. 500 (On Remand),
    September Term, 1974.]

      Decided January 28, 1976.

      The cause was before Morton, Lowe and Melvin, JJ., without any further briefing or further argument being required.
   Lowe, J.,

delivered the opinion of the Court.

The facts surrounding the conviction of Virginia Lynette Fabritz for child abuse, by a jury of the Circuit Court for Calvert County, are detailed in our reports, Fabritz v. State, 24 Md. App. 708, and in those of the Court of Appeals, State v. Fabritz, 276 Md. 416. Suffice to say that her conviction and sentence to 5 years imprisonment were founded upon facts showing that Mrs. Fabritz had neglected to “seek or obtain any medical assistance” for her daughter for a period of eight hours after she should have known, as the Court of Appeals viewed the evidence, that the need therefor was compelling and urgent. 276 Md. 416 at 425.

Our opinion of the intent of the Legislature in enacting the child abuse statute was that an accused must be shown to have caused the injury to be guilty of child abuse, “not simply aggravated it by failure to seek assistance.” 24 Md. App. 714. The Court of Appeals disagreed. It held that “... a parent would be criminally responsible as having ‘caused’ such a physical injury to his child in the sense contemplated by the statute if, as a result of the parent’s ‘cruel or inhumane treatment/ the child suffered bodily harm additional to that initially sustained as a consequence of the injury originally inflicted upon him.” 276 Md. at 424. What was meant by cruel and inhumane treatment within the meaning of the statute was “as those terms are commonly understood.” In the case at bar, the jury below “commonly understood” the terms to mean the failure of a parent to seek or obtain medical assistance for her daughter for eight hours after she had reason to know the daughter had been injured. The Court of Appeals held that the evidence was sufficient to convict under the statute as that Court interpreted it. The Court of Appeals then remanded the case to us for consideration of two other issues that had been presented upon appeal.

Instructions

Appellant set forth two complaints regarding the instructions. The first is clearly answered by the opinion of the Court of Appeals.

Appellant complained that the trial judge erroneously instructed the jury, that if it found that Windy’s death had resulted from appellant’s cruel or inhumane treatment, the death could be the resulting injury contemplated in the definition of abuse in Md. Code, Art. 27, § 35A. The appellant contends there was no testimony before the jury upon which it could have made such a finding, and the court’s instructions permitted the jury to speculate on the proximate cause of Windy’s death. That issue was considered pointedly and implicitly answered by the Court of Appeals. After determining that the Legislature intended that withholding treatment could “cause” a physical injury if such action was cruel and inhumane, the Court proceeded to point out that the crux of the appeal was

“[w]hether, in view of the evidence adduced at the trial, Virginia’s failure to obtain medical assistance for Windy constituted cruel or inhumane treatment resulting in physical injury to the child.. . .”

In answering its question, the Court also answered appellant’s:

“We think the jury properly could have concluded from the evidence that, as a result of Virginia’s conduct, Windy’s condition was permitted to steadily deteriorate until the child’s ordeal was ended by death; that Virginia’s failure to act caused Windy to sustain bodily injury additional to and beyond that inflicted upon her by reason of the original assault and constituted a cause of the further progression and worsening of the injuries which led to Windy’s death; and that in those circumstances Virginia’s treatment of Windy was ‘cruel or inhumane’ within the meaning of the statute and as those terms are commonly understood.” 276 Md. at 425-426.

We are given less direct guidance by the Court upon appellant’s other instructional complaint, but find the answer in its opinion nonetheless. At the conclusion of the court’s instructions to the jury, the appellant made the following request for an additional instruction concerning the principle of gross negligence.

“Mr. Dorsey: Then we would also ask that in order for the jury to determine that the Defendant was guilty of cruel and inhuman punishment, if they accept —

Judge Bowen: Cruel and inhumane treatment.

Mr. Dorsey: Cruel and inhumane treatment, rather, assuming the Court to be correct by saying death itself would be the physical injury. I would like the Court to advise the jury that the failure to provide the medical attention must have been to constitute cruel and inhumane treatment, must be of such an aggravated nature as to shock the conscience of a reasonable amount to, amounting to gross negligence amounting to almost awiljul act.

Judge Bowen: We are not talking about negligence we are talking about something that is life threatening that could produce serious bodily harm.

Mr. Dorsey: Well it didn’t come across to me that way Your Honor.” (Emphasis added).

Although awkwardly articulated, that request adequately preserved the issue of whether appellant was entitled to an instruction commensurate with the definition of gross or criminal negligence, i.e., a “wanton and reckless disregard of human life.” Hughes v. State, 198 Md. 424, 432.

Appellant relied on Craig v. State, 220 Md. 590 which is apposite factually. There, both parents of a child who died from pneumonia were convicted of involuntary manslaughter for withholding medical aid for 2 or 3 days after the seriousness of the child’s illness became apparent. That their withholding of medical aid was predicated upon their religious beliefs (although indicative of an intentional denial of medical aid) was considered by the Court to be

“ . . . beside the point, unless their gross and wanton negligence — ordinary negligence being insufficient — caused the child’s death. We have pointed out above that parents are vested with a reasonable discretion in regard to when medical attention is needed for their children. If we assume that ordinarily careful and prudent parents would have called in medical aid during the initial stages of the child’s illness, and, therefore, the defendants were guilty, at this time, of ordinary negligence in failing to call in a physician, we still find nothing in the testimony that would sustain a finding that during this early period of the child’s illness the parents displayed ‘a wanton or reckless disregard for’ the child’s life; and, if we assume that the seriousness of the child’s illness was easily discernible to them in the last two or three days of its life, so that their failure, at that time, to call in medical aid did constitute gross negligence, the record fails to disclose that this failure was the proximate cause of the child’s death, because, as above noted, the doctors stated that it would then have probably been ineffective to control the disease.” Craig v. State, 220 Md. at 598-599.

The Craig Court then held that the evidence was insufficient to sustain a finding that gross negligence on the part of the defendants was the proximate cause of the child’s death.

The Craigs were tried for involuntary manslaughter. Criminal negligence or “conduct intentionally or wantonly disregardful of any interest of others” is a species of involuntary manslaughter. Perkins on Criminal Law at 70 (2d ed. 1969). Mrs. Fabritz was tried for child abuse and, as the Court of Appeals pointed out in Fabritz, that crime is entirely different. The jury was to determine not whether appellant’s conduct was “intentionally or wantonly disregardful of any interest of others,” but rather whether

“ ... Virginia’s treatment of Windy was ‘cruel or inhumane’ within the meaning of the statute and as those terms are commonly understood.” 276 Md. at 426.

Although we are troubled by the breadth of that definition of “cruel and inhumane” treatment, we find that Judge Bowen’s instruction did not violate the standard so prescribed.

Cross-Examination

The determination of criminal culpability by the jury thus rested upon whether they found Mrs. Fabritz’s delay in seeking medical attention for Windy was poor judgment, though excusable as parental discretion, cf. Craig v. State, 220 Md. at 597; neglect (which was not charged), or inaction amounting to what the jurors “commonly understood” to be cruel or inhumane treatment. The judge described the question in somewhat more narrow terms:

“Somewhere and the Court is not prepared to say to you where that line is to be drawn, somewhere in the relative descending scale actions become abuse as opposed to neglect.
Whether the Defendant’s conduct was actuated by malice or evil intent and whether you find it was .. . within the framework of this case, either neglect or abuse, is the question you ladies and gentlemen have to resolve.”

Therefore, the most crucial testimony in the case was that of the expert medical witnesses produced by the State, one of whom was Dr. Delroy Hire, a pathologist with the State Medical Examiner’s office. For reasons undisclosed, appellant submitted as to Dr. Hire’s qualifications to testify as an expert pathologist.

“Mr. Dorsey: Your Honor, I am sure the State’s Attorney wants the jury to have the benefit of the background of the doctor. We do submit to his qualifications.”

Sometime later, the question concerning Dr. Hire’s qualifications was again raised and the stipulation more clearly defined.

“Mr. Sengstack: For the record Your Honor, it is my understanding that the defense counsel did stipulate that the doctor was an expert.

Mr. Dorsey: Expert as to pathology, Your Honor, not to surgery.”

The testimony disclosed that Dr. Hire had performed an autopsy on Windy which indicated her death had come from generalized peritonitis brought about by “blunt trauma,” that is, multiple bruises about her entire body. More damaging to Mrs. Fabritz was his testimony that symptoms of distress or serious illness should have been apparent from time to time during the elapsed period between trauma and death. This testimony was designed to show that during the eight hour period that she delayed seeking medical attention, Mrs. Fabritz must have been aware of the seriousness of Windy’s condition. Equally critical was the doctor’s testimony that, during at least part of this eight hour period, medical attention might have saved Windy’s life. Obviously, the weight given by the jury to this expert’s opinion that the seriousness of Windy’s physical condition would have been apparent to her mother was determinative of the result the jury reached. The very issue before the jury was whether Mrs. Fabritz should have known from simple observation that her daughter was in critical and immediate need of medical aid. This was pointed out to the jury when the judge instructed:

“Now the question of whether or not such action is called for is one of fact and that must be resolved by you ladies and gentlemen. Critical to the resolution to that question we think and so advise you, is the extent of information or notice that the person having custody of the child had of the necessity for such action. ” (Emphasis added)

On cross-examination appellant therefore sought to discredit the doctor in the eyes of the jury. One attack was based upon his lack of experience as a practitioner of medicine and in treating children of Windy’s age for peritonitis. The court precluded that inquiry giving three reasons for foreclosing that line of examination.

“Q How many three year old children have you treated for peritonitis?

Mr. Sengstack: Objection.

Judge Bowen: Sustained.

Mr. Dorsey: Well Your Honor this certainly goes into — he has made certain —

Judge Bowen: Objection sustained.

Q Well doctor, have you ever actively engaged in the private practice of medicine1*.

Mr. Sengstack: Objection.

Judge Bowen: Sustain the objection. You admitted he was qualified.

Mr. Dorsey: Your Honor I would like to approach the bench please. I do not like to argue in front of the jury.

Judge Bowen: You may do so.

(counsel to bench)

Mr. Dorsey: Your Honor, I objected at the time it was part of his testimony and it was overruled. However, the State’s Attorney has had the pathologist testify to certain objective symptoms that this child would have exhibited so many hours prior to death. I certainly think that I have the right to cross examine him to, at least, attempt to refute his testimony to show he is not qualified, he has had no experience on which to base his opinion as to certain complaints which would be exhibited by this child so many hours prior to her death. He made an unequivocal statement to that effect.

Judge Bowen: You may cross examine him on that, but what does the variety of practice or anything, or any other type of practice have to do with that. He obviously doesn’t practice clinical medicine.

Mr. Dorsey: That is the point I want to bring out to the jury Your Honor. You see, not to attack his report, but to attack his opinions as to

Judge Bowen: You may cross examine about his opinions, but I am not going to let you embarrass him by asking about his private practices.

Q Now doctor you have really concerned yourself in your medical career with the pathology of medicine and I guess in later years you have concentrated on it.

A That is partially true. We are all doctors first and then we specialize.

Q And you specialized in pathology.

A Right.

Q And in the course of — you have actually never treated patients or —

Mr. Sengstack: Your Honor, Mr. Dorsey has been warned about this once already and the State would object. There is a proper way to ask it and an improper way. Mr. Dorsey insists on asking it the improper way.

Judge Bowen: Finish your question.

Q So doctor in the period of time that you have been engaged or graduated from law school —

A Law school?

Q I mean medical school, in the period of time you graduated from medical school, you really have not been familiar with complaints exhibited by patients in the course of treatment.

Mr. Sengstack: Objection.

Judge Bowen: Objection sustained. He doesn’t tend patients.

Q Doctor then you have not been engaged in the practice of medicine in which you would diagnose and treat patients'1.

Mr. Sengstack: Objection.

Q Or have you ever been so engaged.

Judge Bowen: Objection sustained. ” (Emphasis added).

The judge pointed out that appellant had admitted that the doctor was qualified, that it was obvious that the doctor didn’t practice “clinical medicine,” and he should not be “embarrassed” by asking him about his private practice.

We do not find the judge’s reasons for denying that line of cross-examination persuasive. The stipulation by appellant as to the doctor’s qualifications was an admission that he was qualified to express an expert opinion, not that his qualifications were impeccable and unimpeachable. Furthermore, appellant explained that this stipulation that the doctor was qualified was limited to the speciality of pathology. Secondly, although it was “obvious” to the judge that a pathologist is not a treating physician, this fact had not been imparted to the jury and thus the appellant should not have been precluded from further examination. Finally, the judge’s desire to protect the doctor from embarrassment would have been commendable had it not interfered with the rights of appellant. Citing Alford v. United States, 282 U. S. 687, 694, the Supreme Court in Davis v. Alaska, 415 U. S. 308, 320 held that the court is under no obligation “to protect a witness from being discredited on cross-examination, short of an attempted invasion of his constitutional protection from self-incrimination, properly invoked.”

The answers appellant sought to elicit bore directly on the weight the jury should give to Dr. Hire’s testimony, upon which much of the case against Mrs. Fabritz was based. The subject matter was clearly relevant. See C. McCormick, Evidence, § 185 at 435 (2d ed. 1972). Dr. Hire’s opinion that the outward symptoms of illness, malaise and pain must have been manifested by Windy as a result of her condition was the evidence before the jury of “the extent of information or notice” given to Mrs. Fabritz which the judge instructed was critical to the resolution of the case. Thus, the doctor’s believability was crucial to the defense and

“[cjross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness’ story to test the witness’ perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness.” Davis v. Alaska, 415 U. S. 308, 316.

In Wimpling v. State, 171 Md. 362, 376, the Court of Appeals held that opinions of experts should not be allowed on subjects within the range of common knowledge of the average man. In so ruling, the Court emphatically held that expert opinion testimony should only be resorted to when “it clearly appears that it is essential to a full and fair presentation of the case and will aid the trier of fact in dealing with it,” because such testimony is of the “very lowest order and the most unsatisfactory character.” Impliedly then, it should be scrutinized carefully and subjected to rigid cross-examination to test the foundation upon which the opinion was formed. The Court quoted Jones on Evidence, saying:

“ Tt has been said of expert testimony: Tt is not desirable in any case where the jury can get along without it, and is only admitted from necessity, and then only when it is likely to be of some value.’ The evidence of experts is of the very lowest order and the most unsatisfactory character.’ All testimony founded upon opinion merely is weak and uncertain, and should in every case be weighed with great caution. The unsatisfactory nature of such evidence is well known. . .Wimpling v. State, 171 Md. at 376.

One way of attacking an expert opinion is to show the expert’s lack of experience, thus discrediting the source of knowledge upon which he bases his opinion. By doing so, the cross-examiner affords the jury an opportunity to decide that the “expert” has feet of clay and his opinion is not to be valued.

“We cannot speculate as to whether the jury, as sole judge of the credibility of a witness, would have accepted this line of reasoning had counsel been permitted to fully present it. But we do conclude that the jurors were entitled to have the benefit of the defense theory before them so that they could make an informed judgment as to the weight to place on Green’s testimony which provided ‘a crucial link in the proof ... of petitioner’s act.’ Douglas v. Alabama, 380 U.S., at 419, 13 L.Ed.2d 934.” Davis v. Alaska, 415 U. S. at 317.

Davis v. Alaska, supra, dealt with the denial of cross-examination of a witness concerning his juvenile record, but again underscored the Supreme Court’s prior rulings that a denial of the right of effective cross-examination is “constitutional error of the first magnitude [which] no amount of showing of want of prejudice [can] cure... .” Davis v. Alaska, 415 U. S. at 318; Brookhart v. Janis, 384 U. S. 1, 3; Smith v. Illinois, 390 U. S. 129, 131.

Harmless Error

The denial here was error; but, the State argues that, assuming the court improperly restricted the scope of cross-examination, “such action by the trial court was harmless error, for it is well settled that the reception or rejection of improper evidence is not reversible error unless there is demonstrable prejudice. Barger v. State, 2 Md. App. 565 (1967); Duncan v. State, 5 Md. App. 440 (1968); Williams v. State, [15 Md. App. 320 (1972)].” The State points to related testimony permitted by the court arguing that it sufficed to put the doctor’s experience into evidence.

We can find no basic difference between the questions permitted and the questions denied. As indicated in context above, the judge denied answers to three questions, two of which were:

1. “How many three year old children have you treated for peritonitis?”

2. “. .. [I]n the period of time you graduated from medical school, you really have not been familiar with complaints exhibited by patients in the course of treatment.”

While the objections to these questions were sustained, the witness, over objection, was permitted to answer a later question asked by appellant:

“Well, in the period of time since you graduated from medical school and been a doctor, have you ever observed any living person suffering from peritonitis?”

Following an affirmative answer, appellant then pursued by asking:

“And on how many different occasions have you — and what were their ages?”

Again an answer was permitted and further follow-up questions were asked without objection.

Appellant had expressly stated what he sought to elicit by this line of questioning in his colloquy at the bench with Judge Bowen:

“ ... I have the right to ... attempt to refute his testimony to show he is not qualified, he has had no experience on which to base his opinion.. . .

Judge Bowen: You may cross examine him on that, but what does the variety of practice or anything, or any other type of practice have to do with that. He obviously doesn’t practice clinical medicine.

Mr. Dorsey: That is the point I want to bring out to the jury Your Honor. You see, not to attack his report, but to attack his opinions. . . .”

Appellant’s purpose was also reflected in the third question to which an objection was sustained:

3. “Doctor then you have not been engaged in the practice of medicine in which you would diagnose and treat patients?”

Once again we find that the appellant provided an opportunity for the judge to correct his former error and once again, intentionally or not, he did so, this time by permitting the question and answer, uninterrupted by an objection.

“Q What practical experience do you have doctor from subjective complaints made from living persons that you have observed? What practical experience do you have to state your opinion as to the objective and subjective complaints a three year old child would have from suffering from peritonitis some five hours prior to her death?

A In medical school, before you become a doctor you are engaged in diagnosing and treatment of all kinds of diseases, either medical, physical, pediatrics, whatever. I have already stated I am not a pediatrician, I am a pathologist, but as far as the medical diagnosis of patients, I have been engaged in that ever since the days of medical school. As far as treatment of patients, the same.

Q You are then engaged in the practice of medicine?

A Pathology is a practice of medicine, it is a speciality of medicine.

Q You could conduct a test.

A Yes.”

Each question to which an objection was originally sustained was later permitted — practically in totidem verbis. The purpose for which the examination was sought, as expressed by appellant, was fulfilled to appellant’s seeming satisfaction since he voluntarily abandoned that line of questions after successfully covering the issue on his second attempt.

As pointed out in Chapman v. California, 386 U. S. 18, 23, not all “trial errors which violate the Constitution automatically call for reversal.” The error here was rendered harmless because subsequently corrected. Although the trial judge did not expressly reverse his prior rulings, he did so in fact, by a contrary ruling when the question concerning Dr. Hire’s experience was raised a second time. The follow-up questions were asked and answered without objection.

We cannot find that there is a reasonable possibility that the initial erroneous rulings of the trial judge contributed to the conviction. See Chapman, supra at 23. Recognizing that opinion evidence is of the “very lowest order and the most unsatisfactory character,” Wimpling v. State, 171 Md. 362, 376, and thus implicitly should be subjected to rigid cross-examination, we find no question asked, or proffered, which was not subsequently permitted even though initially denied. We conclude that the “minds of an average jury” would not have found the State’s case significantly less persuasive had the questions been permitted when first asked rather than when ultimately allowed. Schneble v. Florida, 405 U. S. 427, 432. The jurors had the benefit of the defense theory before them, cf. Davis v. Alaska, 415 U. S. at 317.

Judgment affirmed.

APPENDIX

“Now the actions which the Statute prescribes are abuse which results from cruel or inhumane treatment. I don’t think that those words need any special definition to you ladies and gentlemen. You know what is cruel and I am sure you know what the word ‘inhumane’ means. If the treatment is cruel or inhumane and it results in physical injury, it is absue within the definition of this Statute. If physical injury results as a result of a malicious act, it is also abuse within the meaning of this Statute. Perhaps the word malicious does need some further explanation for you. An act is done with malice or it is malicious if it is an act that is done with an evil or wicked intent or motive. The term malice implies an evil or imports, I should say, the term ‘malice’ imports an evil wicked purpose in the doing of an act.

In addition to the duty to refrain from doing that sort of thing, a parent or custodian of a child, has by virtue of the position by which they stand and the dependency of the child, a duty to take positive action and affirmative action to see that physical injury does not occur to that child if they are put on notice that the need for such action exists. You may be entitled to do what the Pharisee and the Levite did, that is cross the road and go down the other side if the person who is in danger of expiring is not your child, but when you have a child who is in your care and custody, you have an affirmative duty, not only to provide it with shelter and sustenance, but also those reasonable medical necessities which may mean the difference between its chance to life and death.

Now the question of whether or not such action is called for is one of fact and that must be resolved by you ladies and gentlemen. Critical to the resolution to that question we think and so advise you, is the extent of information or notice that the person having custody of the child had of the necessity for such action.

Now, there are some actions which may be termed under the heading of neglect of children which contravene the criminal law. Neglect generally encompasses the failure to provide the basic necessities for life; that is, minimum shelter, minimum degree of sustenance and minimum degree of supervision and protection. There comes a time in this country when if the treatment of your children falls below what the community expects in these areas and the matter is brought to the attention of the authorities, you will be charged with neglect and the State will step in to provide what the parent or the custodian is deficient in providing.

Some where and the Court is not prepared to say to you where that line is to be drawn, some where in the relative descending scale actions become abuse as opposed to neglect. The Court would suggest that the distinction between abuse and neglect in the failure to do what you ought to do as opposed to doing something you ought not to do in direct relationship to the child, comes when the failure becomes a failure to provide something that is in the absence of its provision life threatening or apt to produce death or serious bodily harm; thus five meals in a row missed, may produce a very hungry and a very distressed child, but alone not necessarily life threatening. There comes a time when medical attention is called for and obviously necessary, if it is not provided, it is life threatening and it is on that position as I understand it that the State is proceeding in this case.

Whether the Defendant’s conduct was actuated by malice or evil intent and whether you find it was of that, as a fact within the framework of this case, either neglect or abuse, is the question you ladies and gentlemen have to resolve.

The State must show that her conduct amounted to cruel and inhumane treatment of this child or that it was a malicious act and that as a result of the cruel and inhumane treatment or the malicious act, physical damage occurred to the child and that combination meets the definition of abuse in the Statute. Anything short of that, the Defendant must be acquitted.

This is not a case where we are trying somebody for neglect, this is a separate criminal act of child abuse.”

      . As the statute is interpreted by the Court of Appeals and noted by Judge Bowen in his instructions, there is no defined line of demarcation between neglect and abuse. It is also noted that the Craig Court pointed out that “parents are vested with a reasonable discretion in regard to when medical attention is needed for their children.” We are not told the standards by which a parent will be held accountable for error in the exercise of such discretion. In the absence of criteria delineating that which is parental discretion, that which is neglect, and that which amounts to abuse under the Court of Appeals’ interpretation of the statute (common understanding of “cruel and inhumane”), failure to seek medical aid for one’s child propitiously, may be proper parental discretion, simple neglect or culpable criminal conduct depending only upon what the jury decides. The Court of Appeals noted that Virginia knew, or should have known, of Windy’s condition for a period of eight hours. We are unable to say at what point during that eight hour period Virginia was 1) exercising discretion in not seeking medical attention sooner; 2) neglectful for not having sought it sooner; and 3) guilty of “cruel and inhumane treatment” for not having sought it sooner than she did. Nor are we able to advise a trial judge what test may be recommended to a jury in their deliberation.
      In pointing this out, we hasten to note that the statute was not questioned on constitutional grounds and we are precluded from deciding that issue here on remand. Vuitch v. State, 10 Md. App. 389, 398.

      . We have appended relevant excerpts of Judge Bowen’s instructions clearly illustrating their compliance with the opinion of the Court of Appeals.

      . Dr. Baban, a general practitioner, also testified for the State concerning the physical manifestations of Windy’s condition.