author: Gilbert, C. J.,

text:
    MAYOR AND CITY COUNCIL OF BALTIMORE v. KELSO CORPORATION et al.
    [No. 1584,
    September Term, 1979.]

      Decided July 11, 1980.

      The cause was argued before Gilbert, C. J., and Lowe, J., and Jacob S. Levin, Associate Judge of the Seventh Judicial Circuit, specially assigned.

      Richard K. Jacobsen, Chief Solicitor, with whom was Benjamin L. Brown, City Solicitor, on the brief, for appellant.

      Jonathan A. Azrael, with whom were Edward Azrael and Azrael & Gann on the brief, for appellees.
   Gilbert, C. J.,

delivered the opinion of the Court.

This appeal is the sequel to City of Baltimore v. Kelso Corp., 281 Md. 514, 380 A.2d 216 (1977) (Kelso I).

The English had a word for the report of the real estate appraiser hired by the Mayor and City Council of Baltimore (City) in this condemnation case. That word was ñoccinaucinihilipiliñcation. It means the habit of estimating things as worthless or of belittling the achievements of others.

A jury in the Court of Common Pleas, presided over by Judge Albert L. Sklar, displayed its disagreement with the City’s evaluation of land and improvements thereon, formerly owned by the Kelso Corporation, et alia (Kelso) and which had been subject to a "quick take” by the City. For details of the "quick take,” see Kelso I, supra. Notwithstanding the City’s appraisal of $78,291 as the value of the Kelso property that had been condemned, the jury, after hearing the evidence and the other evaluations found, by their verdict, the fair market value of Kelso’s property to be $261,275, a sum that is approximately three and one-half times that offered by the City to Kelso.

Patently miffed by what it perceives to be unwarranted generosity on the part of its citizens-jurors, the City has brought its lamentation to this Court wherein they seek to reverse the judgment. The City has propounded three questions for our consideration, namely:

"I. Did the lower court commit reversible error by permitting testimony relating to the re-use appraisal of certain lots which was prepared at the City’s request in conjunction with its plan for the Orchard-Biddle Project and in anticipation of selling said lots to G.S.A.?
II. Did the lower court commit reversible error when it instructed the jury that it could compare the re-use appraisal with the City’s acquisition appraisal?
III. Did the lower court commit reversible error by refusing to allow the City to question Kelso about the amount of its 'investment’?”

So that the reader will have a better understanding of our discussion of each of the three questions, we shall set forth a resume of the facts giving rise to this case.

THE FACTS —

The seeds of this controversy were sown more than seven years ago, when the City, commencing in October 1972, and continuing through May 1973, filed eight separate petitions of condemnation against Kelso. The subject of the condemnation consisted of a number of properties, totalling 52,255 square feet. All were located in Baltimore City in the area bounded by Sarah Ann Street to the north, Saratoga Street to the south, Pine Street to the west, and Pearl Street to the east.

The properties have been consolidated with others and now form a part of the Department of Health, Education & Welfare’s recently constructed Social Security Administration complex.

Initially and ostensibly, the Kelso land was sought by the City for use in its proposed "Renewal Plan for the Orchard-Biddle Neighborhood Development Program Urban Renewal Area.” Baltimore City Ordinance No. 1175 (Nov. 15, 1971).

Battle was joined when Kelso moved to dismiss the City’s petitions to condemn the Kelso holdings. The appellee alleged that the City, "with malice aforethought,” had rezoned the subject properties from Second Commercial to Residential, see Baltimore City Ordinance No. 1051 (April 20,1971), thus depressing the market value. Kelso theorized that the City, after acquiring the property at an advantageous price, planned to rezone the property for commercial use, and then to sell it at a substantial profit to the Federal government for the construction of the Social Security Complex. The trial court, following a hearing, agreed with Kelso and dismissed the petition to condemn.

The matter wended its way to the Court of Appeals after by-passing this Court. That forum, in Kelso I, supra, reversed the trial court, holding that inasmuch as Kelso had not challenged either the right or the authority of the City to exercise its power of eminent domain, the petition should not have been dismissed. Kelso I was remanded to the trial court where Kelso II came into being.

Trial in the matter subjudice commenced on September 5, 1979.

Phillip E. Klein, a real estate appraiser, testified for the City that the neighborhood, immediately adjacent to the Kelso tracts, consisted of "a blighted area, a lot of vacant land, a lot of buildings not being used and partially vandalized.” The appraiser viewed the "highest and best use for the subject property” to be an "assemblage for residential development.” Klein valued the parcels at $86,950 in fee, which, after payment of the underlying ground rents, resulted in the net figure of $78,291, or approximately $1.50 per square foot.

The City put Klein’s "condemnation appraisal” into evidence. It consisted of a single page table, listing the properties, their size, and a brief computation of the appraised value.

To what appears to be the consternation of the City and Mr. Klein, Kelso’s counsel was then permitted to inquire about a "re-use appraisal,” which Klein prepared only two months after the "condemnation appraisal.”

The "re-use appraisal” was intended by the City to be presented to the General Services Administration (G.S.A.) as part of the City’s successful effort to convince that federal agency of the desirability of locating the Social Security expansion in Baltimore City instead of Baltimore County.

The area of the property embraced in the "re-use appraisal” ranged in size from 515,577 square feet to 693,551 square feet. All the Kelso property was included in the re-use appraisal.

In stark contrast to the paucity of information contained in the "condemnation appraisal,” the "re-use appraisal” comprised seventy-four pages. Compared to Klein’s direct testimony, the "re-use appraisal,” it is fair to say, was significant for its stress of the advantageousness of the geographical location of the area in which the Kelso land and that of others was situated. Klein, therein, cited the close proximity of the State Office Building Complex, the University of Maryland at Baltimore, the "central business district,” including "restaurants, and centers of entertainment and culture, the financial district, . . . Charles Center,” hotels and motels, as well as the Maryland General Hospital. Accessibility to the property by both public or private transportation was described as "excellent.” According to the re-use appraisal, the "highest and best use of the subject property is for office building and uses ancillary thereto.” Klein, in response to the questioning of Kelso’s attorney told the jury that in his report, he valued the tract at approximately $8.00 per square foot, a price per square foot of over four times his evaluation of the Kelso land.

Kelso’s counsel drew from Klein the admission that each of his statements regarding the larger tract was equally applicable to the Kelso parcels standing alone. Klein explained to the jury the differences in the appraisal. He said:

"The reason ... [for the difference] is because there were two — the two different interpretations and elements of emphasis were appropriate.
In one instance, I was dealing with a 50 to 52,000 square foot site within — as it existed without the project. Then I attributed the highest and best use as for residential development or possibly at no more value, second commercial development, with a small warehouse.
Now, within the confines of that appropriate appraisal, means of appraisal, and within the confines of the legislative definition, the characteristics of the neighborhood as relate to the benefits of this residential development of one hundred units were to a small commercial development which is one thing. Then we get into an appraisal of a twelve to sixteen acre site, instead of a one and a half acre site, we get into a reuse appraisal of an area where the central core has all been eradicated. There has been a new area completed.
I am looking at a site now where its contemplated use is regional in nature, with multi-thousand or multi-million square foot facility, where thousands of employees will be coming and going and visitors each day.
So that the relationship of that facility, and its utility for the purpose, has an identity with the State Office Building, which is also a governmental facility eight miles away, and has an identity with the cultural and recreational and the financial center of the city. And the subway and the arterial highways become much more important and a more material factor in evaluating this 12.6 acre site cleared of the slums where thousands of people are going to come and go every day. Then it becomes a matter of importance in respect to an appraising a parcel without the benefit — not entitled to the benefit of the project, and a parcel of land a tenth or more or less in size and surrounded by the dilapidated facilities which are proximate to it.”

The City, via its attorney, sought to elicit from Dr. Saul Moses, a stockholder and the Secretary-Treasurer of Kelso, the price Kelso had paid for the parcels of land. Judge Sklar refused to allow the evidence to be heard by the jury because the sales had occurred more than five years prior to the condemnation and "the mass transit Metro Rapid Line ... the station at Lexington Market, ... [and the] extension of Lexington Market” among other changes, foreclosed a fair comparison of the sales. The trial judge did permit the City, however, to question Dr. Moses about one lot inasmuch as that particular lot had been purchased within five years from the date of the "quick take.”

As we have said, the jury returned a verdict in the amount of $261,275, or $5 per square foot.

THE LAW—

The City strenuously objects to Judge Sklar’s permitting the appellee to interrogate Mr. Klein about the "re-use appraisal.” While not specifically articulated by the City, the legal basis of the exception seems to be that of relevance. The City avers that Md. Real Property Code Ann. (1974) § 12-105 (b) forbids the inclusion within "fair market value” of "any increment in value proximately caused by the public project for which the property condemned is needed.” The City reasons that the re-use appraisal was "directly related to the Orchard-Biddle Project” and “was influenced by the project” so that the document was "inadmissible as a matter of law.”

We observe that the Real Property Art. § 12-105 is not a rule of evidence and does not operate so as to circumscribe the scope of cross-examination.

The City’s argument ignores our recent decision in City of Baltimore v. Smulyan, 41 Md. App. 202, 397 A.2d 198 (1979), cert. denied, 285 Md. 728 (1979). The facts in Smulyan are almost identical to those in the matter now before us. The City condemned Smulyan’s land in order to sell it to the Federal government as a situs for the Garmatz Federal Courthouse. At the inquisition, Smulyan was permitted to utilize a similar "re-use appraisal” in order to cross-examine the City’s experts.

The City appealed, contending, as it does now, that the appraisal was irrelevant. Judge Wilner, for the Court, reviewed the authorities and observed that the scope of cross-examination of experts in land acquisition cases is extremely broad. See also Miller v. State Roads Commission, 37 Md. App. 583, 378 A.2d 686 (1977). Rejecting the City’s contention that "a re-use appraisal is ipso facto irrelevant,” Judge Wilner wrote:

"Labels, in this instance, are unimportant, meaningless. Calling the appraisal a 're-use’ appraisal, whether or not it is one, does not and cannot change the nature of the appraisal itself. It purported to be an estimate of the fair value of a 102,250 square foot tract of land, 18,648 square feet of which was the very property under consideration in this case. The appraisal was based upon certain assumptions and conclusions as to highest and best’ use and as to what nearby sales were 'comparable’ that differed significantly from the same types of assumptions made a year earlier and a year later by the same appraiser. Certainly, the City had every right to argue the validity and reasonableness of these differences to the jury, and to suggest that the 1971 appraisal be disregarded. But, as the Idaho court said in State ex rel. Symms [v. Cole Fire Protection District], supra [at 811, 451 P.2d at 1012], 'the opposing party has every right to raise the spectre of inconsistencies and to attempt to impeach the witness thereby.’ That, if nothing else, made the appraisal report and the cross-examination concerning it admissible.” 41 Md. App. at 221-22, 397 A.2d at 209. (Emphasis supplied.)

We think what we said in Smulyan to be dispositive of the issue in the instant case. Moreover, in Kelso I, the Court of Appeals, speaking through Judge Digges, by way of dicta, strongly suggested that on retrial, even if Kelso was unable "to establish a fraudulent intent [on the part of the City] to depress the value of the [Kelso] property, it will still be entitled to show, if it can, the probability that the land would be rezoned within a reasonable time after the condemnation, as well as evidence as to the effect of such a probability upon the property’s value at the time of the taking.” (Citations omitted.) 281 Md. at 520, 380 A.2d at 220.

It appears to us that Judge Sklar did no more than allow Kelso to accept the strong invitation of the Court of Appeals to explore that area that the City seeks to conceal.

We perceive no error in Judge Sklar’s permitting Kelso to inquire of the City’s expert, Klein, as to the content of the "re-use appraisal.”

II.

The City’s second argument is also unavailing. The appellant avers that the trial judge invited the jury to "consider the 'similarities and dissimilarities’ between the re-use appraisal and the acquisition appraisal.” The City contends that instruction was "clearly” reversible error.

What seems to be so clear to the City eludes our vision. Perhaps that is because we must, in reviewing the instruction of the trial judge, look at the complete charge, as a whole, and not selectively examine individual statements which, out of context, appear misleading or improper. Dean v. Redmiles, 280 Md. 137, 374 A.2d 329 (1977). We have in part stated that "[a] jury instruction, 'like a piece of tapestry, is made up of many strands which interwoven make a pattern; to separate a single one and look at it alone, not only destroys the whole, but gives the strand itself a false value.’ ” Burko v. State, 19 Md. App. 645, 661-62, 313 A.2d 864, 873 (1974), quoting Judge Learned Hand, Proceedings in Memory of Mr. Justice Brandéis, 317 U.S. XI (1942). Judge Sklar, the record indicates, told the jury:

"[Y]ou may use a similar or dissimilar factor [in the re-use appraisal] solely for the purpose of judging the weight or the value of the credibility of the ultimate opinion which the City appraiser gave as to the fair market value of the property in this condemnation proceeding, but you cannot use any of the reuse appraisal or the new use appraisal, in order to enhance the value of the subject property, which was brought about by the Orchard-Biddle Project itself in which the subject property is located.” (Emphasis supplied.)

Moreover, in two other instances in the same charge, the trial judge instructed the jury that they were not to consider any enhancement in value caused by the public project for which the land was condemned.

The City, in Smulyan, supra, made the same challenge it now makes here. A virtually identical instruction in that case, we concluded, "was fully consonant with the court’s evidentiary ruling and was entirely correct and appropriate.” Smulyan, supra, 41 Md. App. at 222, 397 A.2d at 209. The City’s argument relative to the instruction is lacking in merit.

III.

Lastly, the appellant asserts that Judge Sklar erred in refusing to permit the Assistant City Solicitor to cross-examine Dr. Moses regarding Kelso’s investment in the subject properties. The City believes that those transactions should have been admitted as "comparable sales.” Appellant suggests that Judge Sklar forestalled the cross-examination simply because the sales took place five years prior to the act of condemnation and, accordingly, abused his discretion.

If the record bore out appellant’s view of the judge’s basis for his ruling, the contention might be pregnant with merit. Our review of Judge Sklar’s ruling, however, indicates to us that the judge prohibited the cross-examination not only because of the elapsed time, but also because of the improvement made in the area surrounding Kelso’s land during the intervening period.

A trial court has wide discretion in determining what sales, if any, are reasonably comparable. Bergeman v. State Roads Commission, 218 Md. 137, 145, 146 A.2d 48, 53 (1958); Lustine v. State Roads Commission, 217 Md. 274, 280, 142 A.2d 566, 568 (1958); Patterson v. City of Baltimore, 127 Md. 233, 241, 96 A. 458, 461 (1915). The Court, in City of Baltimore v. Schreiber, 243 Md. 546, 551, 221 A.2d 663, 665-66 (1966), declared:

"There are a myriad of circumstances to be considered in each case in determining if the time the purchase price was paid was too remote to have any probative value in aiding the jury’s ascertainment of present fair market value. Such circumstances include: degree of change in the condition of the property, changes in the condition of the surrounding property or in the character of the neighborhood, economic growth in the area, etc.” (Citations omitted.)

Whenever there is a question in the trial judge’s mind as to the relevance of a particular sale or sales, the better practice is to admit the evidence, and leave the weight to be accorded it to the jury, City of Baltimore v. Schreiber, supra; Lustine v. State Roads Commission, supra. There is, however, no "hard and fast standard” as to either the admission or exclusion of such evidence. Belworth, Inc. v. City of Baltimore, 256 Md. 369, 374, 260 A.2d 284, 287 (1970).

We perceive no abuse of discretion by Judge Sklar, who observed that there was significant improvement in the surrounding neighborhood between the time of purchase by Kelso and the City’s taking via condemnation of the Kelso property.

Moreover, we note that a number of the properties were purchased by Kelso at tax sales. Such transactions do not ordinarily establish "fair market value,” inasmuch as they are "forced sales” and not voluntary in nature. Under the circumstances of this case, the evidence as to the purchase price paid at a tax sale is irrelevant. It could tend to confuse the jury and might work an injustice to Kelso. Thus, even if there were no significant changes in the neighborhood, we would still affirm Judge Sklar’s ruling as to the admission of the tax sale information.

Judgment affirmed.

Costs to be paid by appellant.

      . S.K. Sperling, Poplollies and Bellibones, A Celebration of Lost Words 98 (1977). The term was coined by linking together four words from an Eton Latin grammar book. The four words are ñocci-nauci-nihili-pili and adding "fication.”

      . Other appellees are Wihner Court, Inc. and Arnold and Eva Cohen. We, for purpose of clarity and simplicity shall refer to all appellees as "Kelso.”

      . The docket entries disclose that by order of the court, dated October 25, 1973, the cases were consolidated, and by agreement, only one inquisition was to be rendered for all the parcels that involved Kelso and the others named in n. 2, supra.

      . Kelso was a reasonably good prognosticator. The property was rezoned by Baltimore City Ordinance No. 774 (Dec. 17, 1974) to commercial usage and was sold to the Federal government so that the Social Security Complex could be built thereon.

      . The Court of Appeals pointed out that Kelso should be permitted to demonstrate, if possible, that the City, through fraud, had depressed the value of the property.

      . The appraisal was in reality an appraisal of three different sized tracts, so that G.S.A. had some flexibility in selecting the size of the Social Security facility.

      . Klein’s report detailed the present bus routes servicing the area and noted that the proposed subway included plans for a station within several blocks of the subject property. Klein also pointed out that both the Greyhound bus terminal and the Pennsylvania Railroad Station were located nearby. The re-use appraisal detailed the streets, both present and future, by which the property could be reached.

      . In the "reuse appraisal” Klein opined that "as of May 1, 1973, the value in re-use of the subject property under the three potential plans of disposition are as follows:
      Plan No. 1 [(515,577 sq. ft.)] $4,050,000 in fee simple [or $7.86 per sq. ft.]
      Plan No. 2 [(610,127 sq. ft.)] $4,950,000 in fee simple [or $8.11 per sq. ft.]
      Plan No. 3 [(693,551 sq. ft.)] $5,800,000 in fee simple [or $8.36 per sq. ft.]”

      . Appellee’s expert testified that in his view, the parcels were worth $323,700, or approximately $6.20 per square foot. Obviously, the jury did not totally accept either expert’s appraisal.

      . See, e.g., Nichols, Eminent Domain § 18.45 (2) (3rd ed. 1969); Slate ex rel. Symms v. Cole Fire Protection District, 92 Ida. 810, 451 P.2d 1011 (1969).


source: Caselaw Access Project

license: Public Domain

text:
    ALFRED W. FEILER v. BENJAMIN ROSENBLOOM et al.
    [No. 1380,
    September Term, 1979.]

      Decided July 14, 1980.

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

      Bernard W. Rubenstein, with whom were Edelman & Rubenstein, P.A. on the brief, for appellant.

      Stuart M. Salsbury, with whom were Max R. Israelson and Israelson & Jackson, P.A. on the brief, for appellees.

       Note: Certiorari granted, Court of Appeals of Maryland, October 24, 1980.

   Gilbert, C. J.,

delivered the opinion of the Court.

Two divergent schools of thought are involved in this appeal. The appellant, Alfred W. Feiler, urges that we follow that expressed by the late Samuel Goldwyn that "[a] verbal contract isn’t worth the paper it’s written on.” The appellees, Benjamin Rosenbloom, Adolph Farber, William Chanoff and Charles Ellerin, suggest we adhere to that stated in Don Quixote "an honest man’s word is as good as his bond.” Indeed, the appellees actually go one step beyond Don Quixote and entreat that "a man’s word be made to be as good as his bond.” Being men of conviction, the appellees invoked the jurisdiction of the Superior Court of Baltimore City (Sklar, J.) to assure that the appellant’s word was not only his bond, but a "negotiable bond.”

After a non-jury trial, a judgment was entered against the appellant for $41,666.67 plus interest. This appeal is an out-growth of that judgment.

—THE FACTS— ■

The facts from which this litigation arose were fully and accurately set out by the trial judge. We, with very minor editing, quote therefrom:

"In the latter part of 1972, the ... [appellant and the appellees] were members of the Board of Directors of .. . [Togs, Inc. (Togs)], a Maryland Corporation, which was concerned in marketing a new concept in the manufacturing of buttons. At that time, the corporation needed additional financing to sustain itself in further business endeavors, including the marketing of buttons.
On December 18, 1972, ... [a] Bank made a $250,000 loan to . .. [Togs] as principal obligor, that loan being due for payment on June 18, 1973. To assure itself of repayment, the [B]ank required certain members of the ... [Togs] Board of Directors to sign the loan note as guarantors.
Testimony at trial [of this case] was that at a meeting of the Board of Directors on December 19, 1972, the note was presented to the parties/directors for their signatures as guarantors. ... [Appellant] objected to his being required to guarantee the loan because of other pending personal financial negotiations which the new bank guarantee might adversely affect.
According to ... Rosenbloom’s testimony, [he, Feiler,] Farber and Kahn left the meeting room to discuss the matter. .. . Mr. Kahn returned to the meeting .. . [but appellant,] Rosenbloom and Farber continued discussing the matter.
Messrs. Rosenbloom and Farber testified that an agreement was reached whereby ... [Feiler] was not required to sign as a guarantor, but [he] would still accept his responsibility for a pro rata one-sixth share of the loan payable to the five signatory guarantors who would be required to pay in the event of default by the corporation.
... Mr. Rosenbloom ... signed the note as a guarantor on the day it was issued. ... Chanoff, Farber and Ellerin testified that they agreed to sign the note as guarantors only because of... [Feiler’s] promise to be responsible for his pro rata share ... [even though he did not sign as a guarantor]. Another director, Mr. Edward Kahn, who also signed the note was subsequently released as a guarantor because of bankruptcy.
In a letter to ... Farber dated December 20,1972, ... the day after the Board Meeting, the ... [appellant] confirmed his separate agreement to pay one-sixth of the note .. . [even though he did not sign] it, but [he] included in that letter a statement 'my share of the financial responsibility would automatically be considered as void if for any reason there might be a change in the Executive Committee as established in yesterday’s meeting of the Board of Directors.’
... [Feiler, however,] admitted in a deposition prior to trial that his oral agreement at the Board Meeting had been unqualified. ... [Appellant’s] deposition reads as follows:
'Q Now, are you saying you did or did not accept a one-sixth share obligation under the statute?
A With qualifications.
Q Now the qualification was what again, please?
A In substance as long as I am in charge of running of the company by an Executive Committee.
Q And did you say that to them on the previous day when you were speaking with them in person?
A I have to answer at length. I said . .
Q No, no, first of all, before you answer at length —
A Yes.
Q — answer yes or no whether you said to them on the previous day the substance of your last answer?
A No.’
. . . Feiler’s answer at the deposition clearly indicates that at the time he orally promised the . . . [appellees] to be partially responsible for the loan guarantee, which promise induced the . . . [appellees] to become guarantors, no condition or qualification of liability was mentioned.
Testimony at trial of Mr. Flagg, Vice-President for Commercial Banking at . . . [the] Bank, revealed that on June 18,1973, the $250,000 six-month loan note of December 18, 1972, was renewed, but at an increased interest rate of 8V2%. In addition, the character of the note was testified to as having changed from a time instrument to a demand one. The bank records revealed that the loan note was further renewed at other times and at various rates of interest.
. . . [Togs] failed to evolve into a profitable business operation. Ultimately, it failed to meet its financial obligations and the guarantors of the $250,000 note were called upon to pay off the loan and accrued interest. Testimony of Mr. Flagg was that the records of the bank show that the note and interest were paid in full by the . . . [appellees] in this action.
. . . [Feiler] resigned from . . . [Togs] on October 9, 1973. ... To date, he has never paid any money to the . . . [appellees], which they claim is owed to them based upon . . . [Feiler’s] agreement to pay a proportionate share of the . . . guarantee, should the need to do so arise. The essence of this case is whether. . . Feiler can be legally required to pay . . . and if so, what amount. . . .”

—THE ISSUES—

Feiler asserts that Judge Sklar erred in a number of respects, namely:

"I. The trial judge erred in finding that the oral guarantee of appellant was not within the Statute of Frauds.
A. Acceptance of collateral liability is within the Statute of Frauds.
B. Intent of the parties governs the transaction.
C. The letter of December 20, 1972, is not a writing as required by the Statute of Frauds.
D. Appellant did not make an admission thereby removing the oral agreement from the Statute of Frauds.
E. Appellees cannot claim detrimental reliance to extract the oral agreements from the Statute of Frauds.
II. The subsequent renewal of the note without the notification or consent of appellent [sic] extinguished his alleged liability.
III. Appellees had a duty to mitigate damages stemming from the obligation to the bank when put on notice that appellant had placed a condition to his acceptance of the obligation which was unacceptable to them.”

—THE LAW—

I.

' Initially, Feiler argues, as he did in the Superior Court, that the oral agreement he made with appellees on December 19, 1972, was an agreement to guarantee "the debt, default or miscarriage” of another. Hence, Feiler says, the agreement was required by the Statute of Frauds, 29 Car. 2, Cap. 3 as presently codified in Md. Ann. Code art. 39C, § 1, to be in writing in order to be enforceable.

Feiler misconstrues both the original Statute of Frauds and that now in effect in Maryland. The current statute, Md. Ann. Code art. 39C, § 1 (1), provides:

"No action may be brought:
(1) To charge a defendant upon any special promise to answer for the debt, default or miscarriage of another person;
Unless the contract or agreement upon which the action is brought, or some memorandum or note of it, is in writing and signed by the party to be charged or some other person lawfully authorized by him.”

The essence of the Statute is the promise to answer for the debt, default or miscarriage of another. The promise Feiler made to his co-venturers in Togs was to pay them a one-sixth share of the indebtedness they incurred for themselves and him. Feiler did not guarantee to pay to the Bank any portion of the loan the appellees obtained for use in Togs. On the contrary, he agreed to indemnify the appellees to the extent of one-sixth of any loss they sustained as a result of the bank loan. Feiler’s promise to pay, by way of indemnity, was a contract with the appellees. No third party was involved, ergo, the Statute of Frauds, past or present, does not apply.

Professor A. Corbin, in his work, A Comprehensive Treatise on the Rules of Contract Law, § 385 (1950), states:

"There is one type of case that presents special difficulties and that has resulted in much conflict of decision. This is a promise to indemnify one who is a surety, a guarantor, or bail for a third person. The following are illustrations: A says to S, (1) 'Indorse P’s note to C as surety and I will indemnify you;’ (2) 'Guarantee P’s debt to C and I will save you harmless’; (3) 'Lend P your credit in the purchase of goods from C and I will see that you lose nothing.’ In cases like these the clear weight of authority is that A’s promise is not within the statute; but a good many decisions have been contra....” (Footnote omitted.)

L. Simpson, Handbook on the Law of Suretyship § 39 (1950), is in accord with the Corbin view. There it is said:

"The type of indemnity contract which has produced the divergence in cases is the four party situation in which it is alleged that the promisor induced the promisee to become surety for P by promising to save him harmless or indemnifying him. The decided preponderance of judicial opinion is that a promise to indemnify is not within the statute.” (Emphasis supplied.)

The contra view is discussed in Williston, 3 A Treatise on the Law of Contracts § 482 (1960) and Restatement of Contracts § 186 (1932). Those courts that have decided to the contrary of Corbin hold that the indemnitor has by his agreement implicitly assumed to answer for the principal debtor’s obligation.

Corbin, supra at section 386, recognizes that approach and addresses it in the following manner:

"What is the solution of the difficulty? It is believed that mere logic and mere verbal interpretation of the statute afford no certain solution. It must be solved chiefly by a consideration of the policies involved. In considering these policies, the writer ranges himself unhesitatingly with the majority decisions: .. . [the indemnitor’s] promise should be held not to be within the statute. In reaching this conclusion he may be somewhat influenced by the conclusion, based upon a reading of some thousands of cases, that the statute of frauds should now be regarded as mainly an in terrorem statute to cause important agreements to be reduced to writing and should be allowed to operate as a technical defense in actual cases as seldom as is consistent with uniformity and a reasonable degree of certainty of law... .
The first and most fundamental reason underlying the majority decisions is that it is a horrid injustice to let the defendant escape his duty to indemnify after inducing the plaintiff to undertake the suretyship obligation for another person. If the courts have seen reason in so many other classes of cases to narrow the operation of the statute in order to prevent contract breakers from escaping the just penalty, there is certainly no less reason in the present case where the promisee has been induced by the promisor to bind himself for another person in whose welfare he has no interest and to do so on the sole credit of the promise of indemnity.
A second reason is that in these cases there is usually little danger of successful perjury and fraud. If the defendant truthfully denies making the promise the circumstances will corroborate him. The past relations of the promisee with the person for whom he becomes surety can be proved and compared with those between the promisor and such person. Usually it appears that the promisee did not have a sufficient motive for becoming surety for the other person in the absence of indemnity promised, but that the promisor did have such a motive. The 'mischief against which the statute is supposed to be directed is less menacing in these cases than in others to which the statute is applied.
A third reason is that the statute of frauds was drawn for the protection of persons in the position of the plaintiff rather than those in the position of the defendant. The plaintiff is the surety, not the defendant. At the defendant’s request the plaintiff has undertaken to answer for the debt or default of another; and if it happens that that other person is under a duty to exonerate and indemnify the plaintiff, this is a mere accidental accompaniment of and is caused by the defendant’s request and promise. The defendant’s promise did not grow out of and was not caused by the undertaking of the other person to exonerate and indemnify the plaintiff, making the defendant’s promise a mere collateral accompaniment of that other’s duty to exonerate and indemnify.” (Footnotes omitted.)

Simpson, supra, points out that "since the promisor is undertaking to indemnify the surety whether or not the principal debtor is under a liability so to do, the scope of the promise is broader than the liability of the debtor ... [and] the oral promise cannot be to answer for another’s default.”

Those courts that hold otherwise, as we have seen, ground their beliefs on the rationale that the indemnitor’s promise to pay the indemnitee is in essence to act as a surety for the principal whose obligation the indemnitee was called upon to satisfy on the principal’s behalf. They conclude the indemnitor is but the surety for the principal as to the indemnitee even though he is not a surety as to the obligee. It appears that the indemnitor is viewed as a surety once removed.

72 Am. Jur. 2d, Statutes of Frauds, § 239 (1973) states:

"The generally prevailing rule in this country, however, is that a promise to indemnify the promisee for becoming surety for a third person, at the request of the promisor, is not within the statute. It has been pointed out that the decisions in this country announcing the contrary view have been, to a large extent, based on what was at the time considered the English view, but which has been overthrown in the later English cases. Accordingly, a promise by one not a party to a note to one who becomes a surety thereon to save the latter harmless is not within the statute of frauds, at least where the surety acts solely upon the promise. In like manner, a promise by one not a party to a bond to one who becomes a surety thereon to save the latter harmless is held not within the statute of frauds.” (Footnotes omitted.) (Emphasis supplied.)

A similar view is expressed in 42 C.J.S., Indemnity, § 3 (1944), as follows:

"A surety is directly and immediately liable for a debt; an indemnitor is liable only after unsuccessful efforts by the indemnitee to collect from the debtor. A contract of surety involves a direct promise to perform the obligation of the principal in the event that the principal fails to perform as required by his contract; a contract of indemnity obligates the indemnitor to reimburse his indemnitee for loss suffered or to save him harmless from liability, but never directly to perform the obligation indemnified. A contract of suretyship requires three parties, the principal, the . . . [obligee], and the surety, while one of indemnity requires two parties, the indemnitor and the indemnitee.” (Emphasis supplied.) (Footnotes omitted.)

While it may be argued that the indemnitor’s agreement to indemnify the indemnitee is actually a contract to pay the debt, default or miscarriage of the principal, by using the indemnitee as an alter ego of the principal, nevertheless, the agreement by the indemnitor runs directly to the indemnitee. It is a contract to pay the indemnitee, not the obligee. Although that agreement might be viewed as a form of surety agreement, the direct promise of the indemnitor to pay the indemnitee for the indemnitee’s loss is not within the statute, 2 Corbin on Contracts, supra at § 386, unless the parties have a different intention and that intention is made clear. Ibid. Such is the holding of the majority of the States that have considered the issue presented in this appeal. We think the majority view to be the better, and we subscribe to it.

The primary purpose behind the Statute of Frauds was to prevent, not foster frauds. The minority outlook on the question of whether promises such as those made in the instant case are surety or indemnity agreements, seems to us to lead to the aiding and abetting of more frauds than it would prevent. To hold the agreement of Feiler to be within the Statute of Frauds and, consequently, unenforceable because it was not in writing, would defeat the purpose of the statute and, simultaneously, approve Feiler’s action as a proper business practice. We shall not do so.

II.

Feiler next posits to us that because the appellees, in concert with Togs, renewed the note at a higher interest rate, he was discharged from all liability on his indemnity agreement. Judge Sklar rejected that contention, observing:

"The indemnity agreement between ... [Feiler] and the ... [appellees], and the guarantee as between the ... [appellees] and the bank were separate and distinct contracts. .. . [Feiler] obligated himself under the contract of indemnity and not under a guaranty. However, he was not a contractual party to the agreement to accept the increase of interest on the guaranteed loan when renewed. Therefore the changes in ... [appellees’] liability for the increased interest on the principal obligation were of no effect on the interest rate of ... [Feiler’s] indemnity contract. As a result, the indemnity agreement remains the same as it was prior to the time the $250,000 loan note was renewed at higher interest rates.
Hence, this Court has determined that .. . [Feiler] is liable to . .. [appellees] under their indemnity contract for one-sixth of $250,000 at percent interest. Such rate of interest shall be calculated as extending from December 19, 1972, until June 17,1977, the date the bank was paid the principal on said note in full.”

We believe Judge Sklar was correct in holding that the renewal of the note at a higher interest rate did not affect the indemnity agreement between Feiler and the appellees. Nevertheless, we do not believe that the appellees should recover the full sum awarded to them by the Superior Court.

The record reveals that the original note of $250,000 at 71/2% interest per annum was to mature on June 18, 1973. At that time only $200,000 of the sum the bank had agreed to loan to the appellees had been drawn against the loan.. The note was then renewed at a higher rate of interest and changed to a demand note. Feiler was not a party to that note, nor did he promise to indemnify the appellees for any payments made by them on the renewed note.

We think it patent that Feiler’s obligation under the indemnity agreement did not extend to the final $50,000 drawn on the original note, because it came after maturity of the note and after renewal thereof on different terms. Hence, Feiler’s liability is limited, as we see it, to a one-sixth share of $200,000. Since interest was charged by the bank at 7 V2% per annum on the face amount of the original note, i.e., $250,000 from December 18,1972 to June 18,1973, Feiler is chargeable with a one-sixth share of that interest.

When we calculate one-sixth of $200,000, we determine Feiler’s share of that sum to be $33,333.33. His share of the interest on the $250,000 face amount of the note is one-sixth of that amount or $1,562.50. Thus, Feiler is liable to the appellees in the total sum of $34,895.83, with interest from the date the judgment was entered against him in the Superior Court.

III.

Finally, in a last-ditch effort to avoid the sturm und drang (storm and stress) of the judgment of the trial court, Feiler asserts that the appellees failed to mitigate their damages when notified of Feiler’s conditional acceptance of liability, which was not ratified by them, and which they considered to be a breach of the oral agreement. The proviso to which appellant alludes is that contained in his letter of December 20,1972, to the appellees in which he stated that he wanted the Executive Committee of Togs to remain the same during the existence of the obligation.

The record contains no indication that the Executive Committee ever changed, nor that Feiler in any wise disavowed the indemnity agreement until such time as he was called upon to make good his word. We fail to see how the damages could have been mitigated where no breach had occurred.

—SUMMARY—

We conclude that Judge Sklar properly held the indemnity agreement to be without the Statute of Frauds; that Feiler was liable on his oral promise to pay a proportionate one-sixth share of $200,000 of the principal and one-sixth of 7 Vz% interest for six months on $250,000; that Feiler’s word was, indeed, his bond and that the "bond” was, under the circumstances, "payable to bearer”; that the Superior Court erred in assessing damages against Feiler on the principal in excess of $200,000 and on interest that accrued after maturity of the original note. We, therefore, modify the judgment of the Superior Court of Baltimore City by entering a judgment against Feiler in the amount of $33,333.33, plus interest of $1,562.50, a total of $34,895.83.

Judgment modifíed in accordance with this opinion and as modifíed, affirmed.

Costs to be paid by appellant.

      . L. Peter, Peter’s Quotations — Ideas for Our Time 287 (1977).

      . Miguel De Cervantes, Don Quixote de la Mancha, Part IV, ch. 34.

      . The Statute was passed by the Parliament in 1676, during what is styled the 29th year of the reign of Charles II. The "reign” apparently is counted from the date of his father’s execution.

      . The original text as enacted by the Parliament read:
      "An bee it further enacted by the authoritie aforesaid That from and after the said fower and twentyeth day of June noe Action shall be brought whereby to charge any Executor or Administrator upon any speciall promise to answere damages out of his owne Estate or whereby to charge the Defendant upon any speciall promise to answere for the debt default or miscarriages of another person or to charge any person upon any agreement made upon consideration of Marriage or upon any Contract or Sale of Land Tenements or Hereditaments or any Interest in or concerning them or upon any Agreement that is not to be performed within the space of one yeare from the makeing thereof unlesse the Agreement upon which such Action shall be brought or some Memorandum or Note thereof shall be in Writeing and signed by the partie to be charged therewith or some other person thereunto by him lawfully authorized.”

      . See, e.g., Alabama: Wilder v. Clark, 263 Ala. 55, 81 So. 2d 273 (1955); Mississippi: Craft v. Lott, 87 Miss. 590, 40 So. 426 (1905);
      New Jersey: Hartley v. Sandford, 66 N.J.L. 627, 50 A. 454 (1901); Ohio: Easter v. White, 12 Ohio St. 219 (1861);
      Pennsylvania: Rapp v. Snyder, 292 Pa. 400, 141 A. 235 (1928); Tennessee: Macey v. Childress, 2 Tenn. Ch. 438 (1875).

      . See, e.g., Connecticut: Grillo v. Cannistraro, 147 Conn. 1, 155 A.2d 919 (1959);
      Georgia: Flemister v. United Bonding Ins. Co., 122 Ga. App. 422, 177 S.E.2d 182 (1970);
      Illinois: Ressetter v. Waterman, 151 Ill. 169, 37 N.E. 875 (1894);
      Indiana: Keesling v. Frazier, 119 Ind. 185, 21 N.E. 552 (1889);
      Iowa: Kladivo v. Melberg, 210 Ia. 306, 227 N.W. 833 (1929);
      Kentucky: Dyer v. Staggs, 217 Ky. 683, 290 S.W. 494 (1927);
      Maine: Smith v. Sayward, 5 Me. 504 (1829);
      Massachusetts: Chapin v. Lapham, 37 Mass. (20 Pick.) 467 (1838);
      Michigan: Boyer v. Soules, 105 Mich. 31, 62 N.W. 1000 (1895);
      Minnesota: Esch v. White, 76 Minn. 220, 78 N.W. 1114 (1899);
      Missouri: Wahl v. Cunningham, 320 Mo. 57, 6 S.W.2d 576 (1928);
      Nebraska: Minick v. Huff, 41 Neb. 516, 59 N.W. 795 (1894);
      New York: Tighe v. Morrison, 116 N.Y. 263, 22 N.E. 164 (1889);
      North Carolina: Newbern v. Fisher, 198 N.C. 385, 151 S.E. 875 (1930);
      Oregon: Rose v. Wollenberg, 31 Ore. 269, 44 P. 382 (1897);
      Virginia: Alphin v. Lowman, 115 Va. 441, 79 S.E. 1029 (1913);
      West Virginia: Faulkner v. Thomas, 48 W.Va. 148, 35 S.E. 915 (1900);
      Wisconsin: Barth v. Graf, 101 Wis. 27, 79 N.W. 1100 (1898).


author: Wilner, J.,

text:
    DAVID GIBSON LINKEY, JR. v. STATE OF MARYLAND
    [No. 1403,
    September Term, 1979.]

      Decided July 14, 1980.

    The cause was argued before Melvin and Wilner, JJ., and J. Louis Boublitz, Associate Judge of the District Court of Maryland for District 11, specially assigned.

      Clarence W. Sharp, Assigned Public Defender, for appellant.

      Kathleen M. Sweeney, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Donaldson C. Cole, Jr., State’s Attorney for Cecil County, and Paul S. Podolak, Assistant State’s Attorney for Cecil County, on the brief, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

On March 16, 1979, appellant was indicted for the first degree murder of one Burl Daniel Howell, Jr. On June 11, 1979, pursuant to Maryland Rule 736, he moved to suppress (1) in general, all incriminating evidence against him, on the theory that it was obtained as a result of either an illegal arrest or an unlawful search and seizure, and (2) in particular, all statements taken from him by the police, on the premise that they were taken in violation of his State and Federal Constitutional rights.

After an evidentiary hearing, the Circuit Court for Cecil County, on July 31, 1979, denied the suppression motion, except as to certain statements made on January 30, 1979, which it suppressed. All other statements were held to be given voluntarily and in compliance with the requirements of Miranda v. Arizona, 384 U.S. 436 (1966), and the other evidence challenged by appellant was held to have been properly obtained.

At some point prior to the commencement of trial on August 9,1979, the parties (and the court) entered into what they considered to be a "plea bargain.” What this involved, essentially, was (1) appellant maintaining his plea of not guilty, (2) the State proceeding upon an "agreed statement of facts” on a charge of second degree murder and agreeing not to prosecute the heavier charge of first degree murder, and (3) the court agreeing (subject to considering a presentence investigation report) to a sentence not to exceed 30 years with the last 12 years suspended, thus involving a maximum period of incarceration of 18 years. The first part of this was made manifest when, at the commencement of trial, the State’s Attorney announced:

"And by agreement, we are going to proceed on an agreed statement of facts. And, basically, Your Honor, with regard to the charge that on or about January 16, 1979, the Defendant, David Gibson Linkey, Jr., proceeded to the home of Burl Howell, Jr., located on Dogwood Road, Cecil County, Maryland, where an argument ensued over Buella Ruth Thompson. Miss Thompson was living at the residence of Burl Howell, Jr. at that time. The Defendant accused Mr. Howell with making improper advances toward Miss Thompson.
The Defendant grabbed a knife from the kitchen and stabbed Mr. Howell several times, which caused his death. This was done with malice, but without premeditation, deliberation, and without justification, excuse or mitigating circumstances.”

This statement was stipulated to by appellant. No other evidence was offered; and no other statements bearing on the facts of the case or on appellant’s guilt were made. Solely upon the stipulation quoted above, the court pronounced appellant guilty. On November 13, 1979, after reviewing a presentence investigation report, the court abided by its part of the agreement and sentenced appellant to 30 years imprisonment, with the last 12 years suspended.

In this appeal, appellant complains only about the denial of his suppression motion. With respect to the various statements he made to the police, he claims that they were coercively obtained and were therefore "involuntary and inadmissible.” The physical evidence obtained by the police from appellant’s girlfriend — certain knives, clothing, and a letter — he says was "illegally seized.” The threshold, and decisive, question before us, however, is whether these issues have been preserved for appellate review. We think they have not.

The reason for this becomes clear when we look at what transpired at appellant’s trial. His conviction rested solely upon an agreed statement of ultimate facts. He stipulated that he had stabbed Howell to death and that he had done so with malice and without premeditation, deliberation, justification, excuse, or mitigating circumstance. All the court was asked to do was to determine whether, as a matter of law, those facts sufficed to constitute second degree murder. See Barnes v. State, 31 Md. App. 25, 35 (1976); Gray v. State, 38 Md. App. 343 (1977), cert. den. 282 Md. 732 (1978).

In light of this agreement as to ultimate facts, it was, of course, unnecessary to offer, or even refer to, any more particular evidence tending to prove those facts. For that reason, we presume, no mention was made of appellant’s statements to the police or of the items obtained from his girlfriend. The "evidence” challenged by appellant was never used as evidence and, from the record before us, was never considered by the court in determining his guilt.

The sanction for obtaining incriminating evidence by unlawful means — in contravention of the Fourth and Fifth Amendments and the prophylactic procedures designed to preserve and enforce them — is to render the tainted items impotent by declaring them unusable to prove guilt. With certain limited exceptions, neither they nor the fruit born from them may be admitted into evidence or considered by the trier of fact in determining the guilt of the accused.

This is a heavy, but not an unlimited, sanction. It does not require an automatic release of the accused or dismissal of the charge against him; it does not avert his trial; it does not prevent the admission and consideration of independent untainted evidence, otherwise admissible; and it does not preclude a verdict of guilty based upon a sufficient quantity of such independent untainted evidence. All that the exclusionary rule does is to keep out of the trial the specific evidence (and the fruits of it) that was improperly obtained. See United States v. Crews, 445 U.S. 463, 100 S. Ct. 1244, 1251 (1980). If such evidence is never admitted (or improperly offered) at trial, it is difficult to see where there could be error based on the Constitutional exclusionary rule; indeed, in such a case, the trial would be entirely consistent and in accord with the exclusionary rule, not in opposition to it. The mere existence of improperly obtained evidence — the mere fact that evidence was obtained improperly — is unimportant insofar as the criminal trial is concerned unless that evidence is at least proffered at the trial.

We are, of course, not unaware that compromise agreements of one type or another — traditional plea bargains involving a plea of guilty or mutations of the sort evident here — are often the product or natural consequence of an adverse ruling on a suppression motion. We are not blind to the natural incentive of an accused to shoot first at suppressing the incriminating evidence gathered against him and, only failing that, to consent by one means or another to a verdict of guilty on a lesser charge. And thus we recognize the indirect effect that such a ruling may have upon the subsequent strategy employed by defendants.

None of this, however, even if applicable in this case, suffices to expand the exclusionary rule beyond what it is or to permit the review of convictions that are, themselves, untainted by the allegedly improper and inadmissible evidence. Notwithstanding the broad language of Maryland Rule 736g. 2, pertaining to the effect of a pretrial ruling on a suppression motion, the validity of such a ruling is preserved for appellate review only if the evidence in question (or its fruits) is admitted at trial. We see no reason why this cannot be done in the context of a compromise agreement; and thus an accused is not necessarily put to the choice of abandoning his challenge to the obtention of critical evidence by entering into an agreement with the State. But to preserve his complaint, he must require the State to utilize the evidence which he has unsuccessfully challenged, and not absolve the prosecutor of that obligation by conceding the ultimate facts sought to be proved by the allegedly improper evidence.

Judgment affirmed; appellant to pay the costs.

      . There is nothing in this record to suggest such a causal connection; nor does appellant allege it in his brief.

      . "If the court grants a motion to suppress evidence, the evidence shall be excluded and shall not be offered by the State at trial, except that suppressed evidence may be used in accordance with law for impeachment purposes. If the court denies a motion to suppress evidence, the ruling is binding at the trial unless the court, in the exercise of its discretion, grants a hearing de novo on a renewal of the motion. A pretrial ruling denying the motion to suppress is reviewable on a motion for a new trial or on appeal of a conviction.” (Emphasis supplied.)


author: Couch, J.,

text:
    ALFRED WALLACE BUTLER v. STATE OF MARYLAND
    [No. 1404,
    September Term, 1979.]

      Decided July 14, 1980.

    The cause was argued before Moore and Couch, JJ., and Jacob S. Levin, Associate Judge of the Seventh Judicial Circuit, specially assigned.

      Joyce R. Branda, Assigned Public Defender, with whom was Robert W. Hesselbacher, Assigned Public Defender, on the brief, for appellant.

      Michael A. Anselmi, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Arthur Marshall, State’s Attorney for Prince George’s County, and Joseph A. Dugan, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Couch, J.,

delivered the opinion of the Court.

In this appeal we are asked to reverse a robbery conviction because the trial court allegedly erred in failing to suppress identification testimony and certain physical evidence pursuant to appellant’s motion. We are also asked to strike a mandatory sentence imposed pursuant to Art. 27, § 643B, since it was illegally imposed.

A brief review of the facts giving rise to the charges against appellant will suffice in light of the limited issues raised on appeal. The record shows that early on the morning of September 22, 1978, Cora Green had stopped at a 7-Eleven store in Seat Pleasant, Prince George’s County, to make a purchase. Upon re-entering her automobile she observed two black males in a "white over red” late model car parked at the store and, when she proceeded to drive to her apartment, they followed her. When she got home and alighted from her car she saw a man running toward her but she did not pay "that much attention.” She was then struck on the right side of her face and her assailant took her pocketbook and fled. She observed this man get into the passenger’s side of the "white over red” car and leave. After reporting the incident to the police, an officer responded and a lookout was placed.

Shortly thereafter a stop of a "white over red” car was made by another officer, and the investigating officer and the victim were notified; they proceeded to the scene of the stop and the victim stated that was not the man or the car involved. A second stop of a similar car was made nearby, but again the victim said the men were not involved. Finally a third stop was made pursuant to the lookout. After responding to the scene of this stop, the victim said one of the two men in the car looked familiar but that her assailant had on dark glasses. An officer then asked this man if he wore glasses, to which the man responded in the affirmative but did not then have them on. Sunglasses, with a missing lens, were found in the glove compartment of the car and the man was directed to put them on. Thereafter the victim made a positive identification of this man as her assailant; however, he was not the appellant. Appellant was a passenger in the car. Both men were arrested and charged but only appellant was tried as his codefendant had absconded prior to trial. On appeal appellant contends that his motion to suppress identification testimony and physical evidence should have been granted, and the imposition of a mandatory sentence was illegal. We shall address each issue in the order set out above.

The Motion to Suppress

Appellant contends that the trial court erred in denying his motion to suppress the identification testimony, as well as the physical evidence found in the car.

(a)

Identification

The thrust of appellant’s argument, simply put, is that the evidence offered by the State was not sufficient to demonstrate those factors set out in Neil v. Biggers, 409 U.S. 188,198,93 S. Ct. 375,381-382,34 L. Ed. 2d 401,411 (1972), namely:

1. the opportunity of the witness to view the criminal at the time of the crime;
2. the witness’s degree of attention;
3. the accuracy of the witness’s prior description of the criminal;
4. the level of certainty demonstrated by the witness at the confrontation;
5. the length of time between the crime and the confrontation.

Preliminarily we observe that the motion to suppress, in part, went to the identification of appellant’s codefendant, not appellant. Appellant contends, that the victim’s identification of his codefendant was impermissively suggestive and should be suppressed, from which it would necessarily follow that there would be no link connecting him to the offense. We have reviewed the record with respect to the motion to suppress and conclude that, when viewed in its entirety, the testimony was sufficient to show clearly and convincingly that there was no substantial likelihood of a misidentification. The victim had the opportunity to see her assailant and gave an accurate description of him to the police. The witness exhibited a high degree of certainty after the sunglasses were put on by appellant’s codefendant. The witness’s elimination of other persons during the prior two stops strengthened her identification of appellant’s codefendant and, finally, the length of time between the crime and the confrontation was short. Appellant raises no issue about the lack of any identification of him. We find no merit to this contention.

(b)

The Physical Evidence

The victim stated that $8.70 had been taken from her during the incident. This amount was found in the car. The trial court concluded, and we agree, that appellant had no standing to object to the search of the car, during which the money was found. Appellant was seen as a passenger after the stop was made. As a passenger, appellant had no right to the expectation of privacy and thus no standing to object. Rakas v. Illinois, 439 U.S. 128, 140, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978).

The Art. 27, § 643B Sentence

At the time of sentencing the trial judge was advised that the appellant had twice previously been convicted for crimes of violence; a 1972 conviction in the United States District Court for the District of Columbia for burglary and robbery for which he was sentenced to five to fifteen years and three to fifteen years, respectively; and a 1979 conviction in the Circuit Court for Baltimore County for robbery for which he was sentenced to eight years imprisonment. Appellant’s attorney advised the sentencing judge that the Baltimore County conviction was on appeal but that said appeal was being dismissed because the transcript had not been timely filed. The trial judge proceeded to sentence appellant pursuant to Art. 27, § 643B (c).

On appeal appellant argues that the trial judge erred in sentencing under § 643B (c) since:

1. the Baltimore County conviction, being on appeal, was not a final conviction,
2. the District of Columbia conviction for robbery was not a proper predicate because it was a foreign conviction and robbery there is not necessarily a crime of violence, and
3. there was no evidence that appellant had served at least one term of confinement in a correctional institution as a result of a conviction of a crime of violence.

The State argues that because appellant did not object to the proof at sentencing or the trial court’s finding that he was a subsequent violent offender under § 643B (c), the issue is not preserved for appellant review. We disagree. As we held in Slye v. State, 42 Md. App. 520, 401 A.2d 195 (1979), manifest injustice would possibly result if we do not review the issue. We shall do so.

With regard to the Baltimore County conviction, we agree with appellant that since it was not a final conviction it may not serve as a proper predicate for the application of sentencing under § 643B (c). Even though information was given to the sentencing judge that the appeal was going to be dismissed, in fact it had not then been done. Our review of the record, filed in this Court, of the Baltimore County conviction, now on belated appeal, clearly demonstrates that appellant’s appeal was stricken by the Baltimore County Circuit Court on November 13, 1979, seven days after the sentencing in the instant case. Thus appellant’s Baltimore County conviction was not final and, in our view, may not be considered as a predicate for sentencing under § 643B (c). Furthermore, the trial court was made aware that a petition for post conviction relief would be filed seeking a belated appeal and that it had a reasonable chance of success because dismissal of the earlier appeal was not the fault of appellant. As a matter of fact a belated appeal was allowed and, as of now, has not been determined. We believe that before the drastic effect of a § 643B (c) sentencing can be allowed to stand, the supporting convictions must be final convictions.

With regard to the District of Columbia robbery conviction, we are unable to determine from the record whether it is a proper predicate to support a § 643B (c) sentencing. Nothing before us indicates whether the robbery was indeed a crime of violence. In the District of Columbia, robbery is defined by statute as:

"Whoever by force or violence, whether against resistance or by sudden or stealthy seizure or snatching, or by putting in fear, shall take from the person or immediate actual possession of another anything of value, is guilty of robbery.”

D.C. Code, Sec. 22-2901 (1973). Thus, as the State concedes, it appears that robbery in the District of Columbia may not be a crime of violence. The facts surrounding that conviction would have to be examined before this determination can be made. So far as the appellant’s argument is concerned that this conviction, being a foreign conviction, cannot be used, we see no merit. The intent of the Legislature in providing enhanced punishment for a subsequent violent offender seems clear to us and should not be thwarted by restricting the predicates to only Maryland convictions.

Appellant also contends that there was no demonstration that he had been confined in a correctional institution for one previous crime of violence. We need not dwell long on this contention. The sentencing judge had before him a pre-sentence report submitted at his request by the Division of Parole and Probation of the Maryland Department of Public Safety and Correctional Services, which showed that appellant was confined at Lorton Reformatory, a District of Columbia correctional institution, as a result of his conviction for burglary and robbery. The record also shows that appellant was asked if he had any corrections to make with regard to the pre-sentence report and that while he did make corrections in certain areas none related to his confinement at Lorton. Accordingly, we believe the requirement concerning confinement was met.

Having concluded that the sentence imposed by the trial court must be vacated, the question then becomes what shall be our disposition? The State would have us remand for a new hearing and sentencing under § 643B (c) and the appellant argues that this is impermissible pursuant to Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978). In that case, the Supreme Court held that where an accused succeeds in obtaining a reversal of his criminal conviction because of insufficiency of the evidence he may not be retried because to do so would violate his protection against double jeopardy.

Appellant supports his contention by reference to Crawley v. Kunzman, 585 S.W.2d 387 (Ky. 1979), and Reed v. State, 581 S.W.2d 145 (Tenn. Crim. App. 1978), both cases relating to subsequent or repeat offenders. Both cases concluded that when reversal was for insufficiency of the evidence on the issue of prior convictions retrial would be improper on the authority of Burks, supra. The only distinguishing factor present in these cases from the instant case is that under the habitual criminal statutes of those states the jury makes the determination during the trial on the merits, whereas in Maryland this is specifically precluded by Rule 734 d. Section e of 734 provides that the court, before sentencing and after giving the opportunity to be heard, shall determine whether the defendant is a subsequnt offender. In our view this is a distinction without a difference; in either procedure there must be proof of the required predicates, i.e., in Maryland two convictions for specified crimes of violence and confinement for at least one. The State urges us to adopt the holding in State of Washington v. Braithwaite, 600 P.2d 1260 (1979), where it was held that the State and United States Constitutions’ double jeopardy clauses were not involved in a matter of this kind since it did not involve a trial to determine guilt, only "status”. We believe the better reasoned rule is as set out in Reed and Crawley, supra. It. seems to us that it is equally as important to an accused not to be subjected to two hearings to determine and enhanced mandatory sentence under § 643B (c) as it is not to be subjected to two trials to determine his guilt in the first place. As a matter of fact, it may well be more devastating to him if a second hearing on sentencing is allowed, as is obviously the case here.

Accordingly, we shall affirm the conviction but vacate the sentence imposed and remand for the limited purpose of imposition of a proper sentence.

Judgment of conviction affirmed. Sentence vacated and case remanded for imposition of a proper sentence.

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

      . "§ 643B. Mandatory sentences for crimes of violence.
      (a) 'Crime of violence’. — As used in this section, the term 'crime of violence’ means abduction; arson; kidnapping; manslaughter, except involuntary manslaughter; mayhem; murder; rape; robbery; sexual offense in the first degree; sexual offense in the second degree; use of a handgun in the commission of a felony or other crime of violence; an attempt to commit any of the aforesaid offenses; assault with intent to murder; and assault with intent to rape.
      The term 'correctional institution’ includes Patuxent Institution and a local or regional jail or detention center.
      (b) Mandatory life sentence. — Any person who has served three separate terms of confinement in a correctional institution as a result of three separate convictions of any crime of violence shall be sentenced on being convicted a fourth time of a crime of violence, to life imprisonment without the possibility of parole. Regardless of any other law to the contrary, the provisions of this section are mandatory.
      (c) Third conviction of crime of violence. — Any person who (1) has been convicted on two separate occasions of a crime of violence where the convictions do not arise from a single incident, and (2) has served at least one term of confinement in a correctional institution as a result of a conviction of a crime of violence, shall be sentenced, on being convicted a third time of a crime of violence, to imprisonment for the term allowed by law, but, in any event, not less than 25 years. Neither the sentence nor any part of it may be suspended, and the person shall not be eligible for parole except in accordance with the provisions of Article 31B, § 11.”


text:
    BERNARD JACKSON v. STATE OF MARYLAND
    [No. 1430,
    September Term, 1979.1

      Decided July 14, 1980.

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

      Arthur A. DeLano, Jr., Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Stephen Rosenbaum, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Olga Bruning, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

This case concerns two appeals involving different cases in the Criminal Court of Baltimore, on two different indictments, tried before the same judge on two different days. In one case the judge presided over a jury that found the appellant guilty of robbery. In the other case, the appellant pled guilty to attempted robbery. The two sentences were exactly the same, except that one is concurrent with the other. "The rule of two” that seems to run through these two cases will prevail on appeal as there are two reversals and two remands.

THE RULE WITH RESPECT TO ADVISORY JURY INSTRUCTIONS IN CRIMINAL CASES —

Md. Rule 757 provides in pertinent part:

"a. Written Requests.
At the close of the evidence, and upon service of copies on all other parties, any party may file written requests that the court instruct the jury as set forth in the requests.
b. How Given.
The court may, and at the request of any party shall, give those advisory instructions to the jury as correctly state the applicable law. The court may give its instructions orally or, with the consent of the parties, in writing. The court need not grant any requested instruction if the matter is fairly covered by the instructions actually given. In every case in which instructions are given to the jury the court shall instruct the jury that they are the judges of the law and that the court’s instructions are advisory only.
h. Appeal.
An objection is not reviewable as of right unless it is made in compliance with section f of this Rule. An appellate court, either upon its own motion or upon the suggestion of a party, may take cognizance of and correct any plain error in the instructions, material to the rights of the defendant even though the error was not objected to as provided by section f of this Rule.”

THE PROCEDURE IN THE INSTANT CASE

The record reveals that after the close of the evidence in the matter presently before us, the appellant, Bernard Jackson, did not present to the trial judge "written requests” for instructions to the jury. The transcript shows the following dialogue between counsel and the trial judge:

"THE COURT: You have any written requests for instructions?
MR. MARCUS [Defense Counsel]: No, Your Honor.
MRS. BRUNING [Assistant State’s Attorney]: No.
THE COURT: Then the case will go to the jury.
MR. MARCUS: Would your instructions include —
THE COURT: You may argue reasonable doubt and so forth. Tell them anything you care to. It is a very simple case.
MR. MARCUS: Your Honor, I think the jury ought to be instructed —
THE COURT: You answered my question, no written requests.
MR. MARCUS: That’s right.
THE COURT: No instructions will be given.”

The trial judge then told the jury that:

"As you all have heard, the evidence has been concluded. You will have one charge to consider, and that is, the robbery of this lady, Annabell Collins, at the conclusion of the case.
Where we are now, the State’s Attorney has the right to make the first opening argument; defendant’s counsel then makes his argument; and the State’s Attorney may make a final argument in rebuttal; after which you will retire to consider your verdict.”

The jury returned a verdict of guilty of robbing Annabell Collins by violently stealing $22 from her. As a result, Jackson was sentenced to ten years imprisonment.

Jackson argues: "The trial judge erred in refusing to consider [ajppellant’s request for advisory instructions.”

THE PROCEDURAL ERROR —

Appellant contends that Md. Rule 757 b requires the trial judge to " 'give those advisory instructions to the jury ... [that] correctly state the applicable law....’”

We think that the trial judge misinterpreted Md. Rule 757 because he apparently was misled by a reading of subsection a. That subsection, quoted above, provides that a "party may file written requests that the court instruct the jury as set forth in the request.” The subsection does not, however, mandate that written requests for instruction be submitted, nor is it to be construed as providing that in the absence of written requests, no instruction need be given. The failure, neglect, or purposeful declination to submit written requests for jury instruction, in criminal cases, does not constitute a waiver of the right to seek advisory instructions. Indeed, subsection b of Md. Rule 757 makes manifest that a trial judge shall "give those advisory instructions to the jury as correctly state the applicable law.” That clause of subsection b simply means that the trial judge, if requested by a party, must instruct the jury as to the law of the particular charge or charges, including those areas of the law that are fairly generated by the evidence. Evans v. State, 28 Md. App. 640, 655-69, 349 A.2d 300, 309-20 (1975), aff'd, 278 Md. 197, 362 A.2d 629 (1976); Byrd v. State, 16 Md. App. 391, 400, 297 A.2d 312, 317 (1972); Peterson v. State, 15 Md. App. 478, 498-99, 292 A.2d 714, 726 (1972); Mason v. State, 12 Md. App. 655, 661, 280 A.2d 753, 758 (1971); Gaskins v. State, 7 Md. App. 99, 105, 253 A.2d 759, 763 (1969).

On oral argument the State conceded that the trial judge erred, but argued that the issue has not been preserved for appellate review, and that we were precluded from considering it. Md. Rule 1085.

The colloquy between the court and counsel indicates to us that the defense did endeavor to request oral instructions, but the trial judge cut counsel short with the remark, "No instructions will be given.” Confronted with the court’s firm stand, counsel had little choice but to accept, at that point, the court’s decision. We do not view counsel’s act of discretion as abandonment of his request for instructions. We think the issue was preserved.

Even if we agreed with the State, we would, nevertheless, invoke Md. Rule 757 h, quoted above, and upon the suggestion of the appellant or on our own motion, take cognizance of what we think to be "plain error .. . material to the rights of the” appellant. Hence, we would arrive at the same conclusion, that is, that the trial judge committed reversible error when he refused to give advisory instructions to the jury because the requested instructions were not in writing.

The sum and substance of what we have said is that requests for jury instruction may be in writing, but written requests are not a prerequisite for advisory instructions. The court must give advisory instructions on any issue of law fairly covered by the evidence whenever it is asked by a party or counsel to do so. Failure to give such instructions is fatal error.

SUFFICIENCY OF THE EVIDENCE —

Prior to the decision of the Supreme Court of the United States in Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978), we would have halted our discussion with the reversal. Burks makes manifest that when sufficiency of the evidence is an issue on appeal and the case is reversed on other grounds, we are required to review the sufficiency question. This' is so because if the evidence is insufficient to sustain the conviction, irrespective of any other error that might necessitate reversal, the appellant should not be required to stand trial again simply because of that procedural defect. If the evidence is insufficient to support the conviction the appellant is then wrapped in the protective garb of the "double jeopardy clause” of the Fifth Amendment of the Constitution of the United States.

The record, in the case now before us, shows that the victim told the jury a young man came to her door and said he had a package. When the victim opened the door, the youngster shoved the bag in her face and told her he had a gun. He demanded money. The victim positively, and without objection, identified the appellant as the robber. That testimony alone is sufficient to sustain the conviction. Gross v. State, 8 Md. App. 341, 259 A.2d 570 (1969). The State did not stop there, however. It produced the testimony of an accomplice, Quinton Rodwell. Rodwell fully corroborated the victim’s account of the crime.

The appellant endeavored to shift the blame to the admitted accomplice, claiming that the accomplice, Rodwell, was the one who forced his way into the victim’s house and held her down. Jackson testified that Rodwell told him to look for money, but that he, Jackson just ran out the back door. According to Jackson he did not know what Rodwell was planning to do, but merely followed Rodwell into the home.

Of course, the jury was not required to believe Jackson, and it obviously did not. Williams v. State, 11 Md. App. 350, 274 A.2d 403 (1971). The evidence adduced by the State, if believed by the trier of fact, was sufficient to sustain the conviction.

THE GUILTY PLEA

Although the record is clear that the appellant, a 17 year old youth, knew that he, in pleading guilty, was surrendering his right to a trial by jury, to a confrontation of witnesses, to cross-examination, to calling witnesses in his own behalf, to remain silent, to be tried by the judge without the interposition of a jury, and that the jury’s verdict had to be unanimous, it is absolutely silent with respect to the fact of his knowledge of the nature of the charges to which he was pleading guilty. Under Priet v. State, 45 Md. App. 1, 410 A.2d 1107 (1980), cert. granted, May 2, 1980, as it interprets Countess v. State, 286 Md. 444, 455, 408 A.2d 1302, 1308 (1979), the failure of the record to show that the appellant understood the nature of the charge necessitates our holding that Jackson did not make a knowing and voluntary guilty plea. The violation dictates reversal.

Judgments reversed and case remanded for further proceedings.

Pursuant to Md. Rule 1082 f, costs are not reallocated.

      . We recognize that the proceedings in this case pre-dated Countess by approximately three and one-half months and Priet by almost twice that time.