text:
    BERNARD JEROME LEE v. STATE OF MARYLAND
    [No. 1244,
    September Term, 1975.]

      Decided September 16, 1976.

      The cause was submitted on briefs to  Gilbert, Men-chine and Moore, JJ.
    Submitted by Gerald A. Kroop for appellant.
    Submitted by Francis B. Burch, Attorney General, Bruce C. Spizler, Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and John Denholm, Assistant State’s Attorney for Baltimore City, for appellee.
   Menchine, J.,

delivered the opinion of the Court.

Bernard Jerome Lee was convicted of distribution of heroin in a non-jury trial in the Criminal Court of Baltimore upon submission to the court under a statement of facts. He was sentenced to fine and imprisonment. He thus states the issues on appeal:

1. The trial court erred by denying the appellant’s motion to dismiss the addendum.
2. The appellant was denied a speedy trial with respect to both the main offense and the addendum.

The Addendum

The record shows that although an addendum was filed by the State on May 1,1975, no trial upon the issue whether the appellant was a second offender was ever had. At arraignment and trial no reference was made to the addendum. The sentence imposed upon the appellant, again without reference to an addendum, was less than the maximum authorized for a first offense. In such circumstances we perceive no appellate issue relating to the addendum.

Speedy Trial

On December 10, 1973, the appellant was indicted on a charge of distribution of heroin. He had been arrested the previous day. He was released on bail on December 13,1973.

The record shows that although a panel attorney was appointed for the accused by the office of the district public defender, two experienced private counsel on January 16, 1974, jointly filed a series of motions bearing the following descriptive titles:

1. Motion for a Bill of Particulars.
2. Motion for discovery and inspection with respect to electronic interception or eavesdropping.
3. Motion to compel All State’s witnesses to submit to polygraph tests.
4. Motion for production of exculpatory information.
5. Motion to interview State’s witnesses.
6. Motion for discovery and inspection.

Answers to those motions were filed by the State on June 12, 1974. Hearings on all motions were had on June 12,1974, but held sub curia. No decision upon them by that hearing judge ever thereafter was made. The last docket entry of June 12, 1974, consists of the notation “Reset for trial 28 June 1974.” The record shows that the State was ready for trial at that time but the appellant declared he could not proceed in the absence of rulings upon his several motions. We think he was entirely justified in taking that position. On June 19, 1974, counsel for the appellant filed memoranda of law in support of the motion for particulars and the motion for production of exculpatory information.

Except for a cryptic entry on April 16, 1975, “Pursuant to the motion for discovery and inspection filed,” the docket entries reflect no further action in the case until May 19, 1975, when hearings on preliminary motions were rescheduled before a second judge. All motions were disposed of on May 20 and 22, 1975. Trial was commenced on July 21, 1975.

In Barker v. Wingo, 407 U. S. 514, 33 L.Ed.2d 101, 92 S. Ct. 2182 (1972), the Supreme Court of the United States rejected inflexible approaches to a determination whether the constitutional right to a speedy trial has been abridged. Instead, after announcing that “.. . any inquiry into a speedy trial claim necessitates a functional analysis of the right in a particular context of the case. ..,” (Baker at 522, [112], [2188]), the Supreme Court declared: “The approach we accept is a balancing test, in which the conduct of both the prosecution and the defendant are weighed.” (Barker at 530, [116], [2191-92]).

The Supreme Court then discussed the application of such a test, saying at 530, [116-17], [2192]:

“A balancing test necessarily compels courts to approach speedy trial cases on an ad hoe basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.”

The trial judge denied the motion to dismiss the indictment. The Court of Appeals in Epps v. State, 276 Md. 96, 109, 345 A. 2d 62, 71 (1975), thus succinctly stated the course to be followed in appellate review following rejection of such a motion by the trial court:

“In making our independent constitutional appraisal of whether the appellant was denied his constitutional right to a speedy trial we must under the holding in Barker v. Wingo ‘engage in a difficult and sensitive balancing process’ in which ‘the conduct of both the prosecution and the defendant are weighed’ and ‘considered together with such other circumstances as may be relevant’ the four enumerated and related factors. 407 U. S. at 533. Realizing that Barker ‘prescribes “flexible” standards based on practical considerations,’ Strunk v. United States, supra, at 438, and that the ‘right to a speedy trial is not a theoretical or abstract one but one rooted in hard reality in the need to have [the] charges promptly exposed’ Dickey v. Florida, 398 U. S. 30, 37 (1970), we must determine whether the State did ‘discharge its “constitutional duty to make a diligent, good-faith effort to bring [Epps] [to trial]”.’ Moore v. Arizona, supra, at 26; Smith v. Hooey, supra, at 383.”

We shall, accordingly, examine the record, utilizing the balancing test factors set forth in Barker v. Wingo, supra.

Length of Delay

In Barker v. Wingo, supra, the Supreme Court had said at 530-31, [117], [2192]:

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

The skeletal dates are these:

Arrest December 9,1973
Indictment December 10,1973
Trial July 21,1975.

The full period of time intervening between arrest and trial was nineteen months. Such a delay in and of itself does not demonstrate a violation of the Sixth Amendment’s guarantee of a speedy trial. United States v. Ewell, 383 U. S. 116, 120, 15 L.Ed.2d 627, 630, 86 S. Ct. 773, 776 (1966).

As will be explained in our discussion of the “reason for delay” we do not find this entire time period to constitute the critical period of delay.

In any case, we are persuaded that the length of delay is such as to trigger a necessity for careful consideration of all factors of the balancing process.

Reason for Delay

Our examination of the record shows not the slightest indication that the delay was occasioned by á deliberate attempt to delay the trial in order to hamper the defense. The delay in the subject case, having stemmed from more neutral causes, should not be weighted as heavily against the State. Barker v. Wingo, supra, at 531, [117], [2192].

The period of delay breaks down into two separate segments, namely: (a) from arrest, December 9, 1973 to hearing upon motions, June 12, 1974 and (b) from June 12, 1974 to trial date, July 21, 1975. We find it necessary separately to examine the reasons for delay as to the two periods.

December 10, 1973 to June 12, 1974

Mindful of the admonition that “A defendant has no duty to bring himself to trial,” (Barker v. Wingo, supra, at 527, [115], [2190]), we believe that this period of delay — standing alone — would not, in the circumstances of this case, have triggered k necessity for further consideration of the other factors of the “balancing test.”

We find nothing in the record to indicate other than “neutral reasons” for this segment of the delay and do not consider its length to be beyond reasonable bounds under the facts of this case.

June 12, 197k to July 21, 1975

Shortly after the scheduled hearing (June 12, 1974) upon pre-trial motions, at which the issues had been held sub cuña, the hearing judge was appointed administrative judge and found himself unable to continue to act in the case. At that point the case was sent hack to the criminal assignment office. No reassignment of the case occurred until pending motions were heard and decided on May 19,20 and 22,1975.

The initial hearing judge had directed the State to cause transcripts of certain eavesdrop tapes to be prepared and submitted to the court by June 26, 1974. The State acknowledged that eavesdrop tapes had been made, but announced that its sole reliance would be upon named eyewitnesses, and that the tapes would not be used at trial. Nonetheless the hearing judge ordered that the tapes be prepared and submitted to him for in camera inspection. They were not submitted to the court until “early 1975.” The only explanation by the State for that delay was that the police officer assigned to accomplish the transcription “was transferred from the Narcotics Strike Force to the Northeastern District in the late summer of 1974.” We find that the explanation fails to justify the tardy reassignment of the cause on May 19, 1975. There was testimony, to be sure, by the initially assigned assistant State’s attorney, whose responsibility for the case ended with his appointment as Deputy State’s Attorney, that tends to mitigate to some degree the blame attaching to the State. He testified as follows:

“Q Did Mr. Cardin or Mr. Kroop demand of you that they wanted this case to be set in for trial?
A Did they demand that a trial date be set?
Q Yes, sir.
A I can’t recall that, because they had their Motions outstanding. They wanted those disposed of.
Q Had there ever been a mention to you since June 12th of possibly stetting this case at any period of time on behalf of Mr. Lee?
A I really am not sure that the word stet ever came into it.
Q Or not called to trial for one reason or another?
A Yes.
Q And could you tell the Court what reasons those might have been, to the best of your recollection?
A The suggestion was made that we not try this case or prosecute Mr. Lee here in the State of Maryland until the Federal Indictments against him had been disposed of.” []

The quoted testimony was not denied. Thus the State’s role in the delay is somewhat mitigated. Nonetheless, on balance we conclude that the delay from June 12, 1974 to May 19,1975, should be attributed to State neglect.

The period from May 19, 1975 to July 21,1975, following the hearing and decision upon preliminary motions, clearly is within reasonable bounds.

In sum, we believe that the critical period of delay is from June 12, 1974 to May 19, 1975, a period of eleven months and one week.

Assertion of the Right

In Barker v. Wingo, supra, the Supreme Court declared:

“The defendant’s assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” (at 531-32, [117-18], [2192-93]).

No attempt to obtain a speedy trial was made by two experienced, competent private counsel for the appellant until May 19,1975, when they orally moved for dismissal of the indictment upon the ground that the accused had been deprived of his constitutional right to a speedy trial.

This factor in the balancing test weighs heavily against the accused.

Prejudice

Appellant suggests that Moore v. Arizona, 414 U. S. 25, 38 L.Ed.2d 183, 94 S. Ct. 188 (1973), compels a conclusion “that a delay of 19 months is so lengthy as to require a finding of prejudice as a matter of law.” (Appellant’s brief p. 10). We do not so read the per curiam opinion in Moore. It is true that Moore declared at 27, [186], [190]:

“Moreover, prejudice to a defendant caused by delay in bringing him to trial is not confined to the possible prejudice to his defense in those proceedings. Inordinate delay,
‘wholly aside from possible prejudice to a defense on the merits, may “seriously interfere with the defendant’s liberty, whether he is free on bail or not, and ... may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.” United States v Marion, 404 US 307, 320, [30 L Ed 2d 468, 92 S Ct 455] (1971). These factors are more serious for some than for others, but they are inevitably present in every case to some extent, for every defendant will either be incarcerated pending trial or on bail subject to substantial restrictions on his liberty.’ Barker v. Wingo, supra, at 537, 33 L Ed 2d 101 (White J., concurring).
See also id., at 532-533, 33 L Ed 2d 101 (majority opinion).
Some of these factors may carry quite different weight where a defendant is incarcerated after conviction in another State, but no court should overlook the possible impact pending charges might have on his prospects for parole and meaningful rehabilitation. Strunk v United States, 412 US 434, 439, 37 L Ed. 2d 56, 93 S Ct 2260 (1973).”

That declaration, however, was made in a case wherein the Arizona Supreme Court, without consideration of other factors of the balancing process, summarily had rejected the motion to dismiss the indictment solely because the record did not show an affirmative demonstration of prejudice. In no sense did Moore announce a per se rule that prejudice will result from the mere passage of time. The Court in Moore fully approved the four factors of Barker v. Wingo, supra; adopted its language that “these factors have no talismanic qualities”; and remanded the cause to the Arizona Supreme Court “to reassess petitioner’s case under the standards mandated by Smith, Barker and Dickey.” (Moore at 27-28, [186], [190]).

We see in Moore, supra, no indication that the prejudice factor controls the balancing equation merely because the record shows that there has been an inordinate delay.

Barker, supra, itself destroys such a notion. In that case the delay between arrest and trial was more than five years. Yet, the Supreme Court, counterbalancing that factor, did so upon the ground, inter alia, that prejudice was minimal, (at 534, [119], [2194]).

The trial judge conducted a hearing upon the speedy trial issue. The appellant called two witnesses, namely: 1. the assistant State’s attorney to whom the case initially had been assigned and 2. one Daniel Robinson.

The manifest purpose sought to be subserved in calling as a witness the originally assigned counsel for the State was to develop that there was a delay attributable to State neglect. We have previously stated that we agree that such is the case.

The manifest purpose sought to be subserved in calling Robinson as a witness, on the other hand, was to attempt to show that the delay caused prejudice to the defense. We think his testimony makes a showing directly to the contrary.

Robinson testified that subsequent to June 12, 1974, the door of the home of his consort “was kicked open and a pistol was placed at her head” and “the children was [sic] intimidated and harassed ... and I immediately got panicked because I thought it was all in relation to my being a State’s witness against Bernie Lee.”

Conceding that he had telephoned the appellant, Robinson thus explained the circumstances leading up to his doing so:

“Q And fearing for your wife’s safety and children’s safety, you contacted Mr. Lee?
A Mysteriously, Mr. Lee got a phone number to my wife after this.
Q Which is after the door had been kicked in?
A If I am not mistaken, yeah.
Q All right. So, may I ask you whether or not had the door been kicked in, did you have any intention at all of speaking to Mr. Lee?
A It would have been impossible. I didn’t know his phone number, I didn’t know where he was living at.”

The witness’s testimony concerning his telephone conversations with Lee included the following:

“Q Money was brought up and the purpose of the money being brought up was what?
A The purpose for the money being brought up was to deal with whether or not he was involved in the alleged kicking open of my wife’s door and the threatening of my children to make a deal with them not to mess with them and to make sure that I had got out of the State, that I wouldn’t testify against him provided my family’s life was safe.
Q Well, who suggested that money be paid to you so you could leave the jurisdiction and, therefore, not testify in the case?
A Mr. Lee asked me, would it be, Mr. Lee asked me, is there any way we would arrange there, as I wouldn’t testify against him and he would give me some help and I would give him some help.
Q What did you say to that?
A At the time I was willing to go along with anything for the safety of my family.
Q In other words, you told him at that time for the security and the money you would leave the jurisdiction and not testify against him?
A Yes, for the security of my family. The money was, would mean transportation to get out of the State.”

Robinson also made it plain that he had been available as a witness against appellant as of June 12,1974. He said:

“Q And you had come up to Baltimore June 12th of 1974 to testify against Mr. Lee?
A Yes, I did.
Q And you were willing to testify at that moment?
A Yes, I were.”

Appellant urges that the delay until May 19,1975 in filing the addendum greatly prejudiced the defense and must be weighed heavily against the State in the balancing process. He argues that the filing of the addendum so long after indictment, thereby doubling his potential sentence liability, caused him to conclude a bargaining arrangement with the State in order to avoid the possibility of an increased penalty.

Speaking of the prejudice factor, the Supreme Court had said:

“A fourth factor is prejudice to the defendant. Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” (Barker v. Wingo, supra, at 532, [118], [2193]).

We shall summarize the interests of the appellant under those sub-headings.

(i) Pretrial Incarceration

The record shows that the appellant was released on bail on December 13, 1974 — four days after his arrest. There is no indication that he ever thereafter was incarcerated for this offense prior to his conviction and sentence. The record discloses that at some time in the interval between arrest and conviction for the subject offense he was incarcerated for a Federal offense. Such incarceration is beyond the power and control of State authority and manifestly cannot be charged against the State.

(ii) Anxiety and Concern of the Accused

The only evidence of anxiety and concern by the accused is to be found in the testimony of the witness Robinson. That anxiety and concern addressed itself to the elimination of Robinson as a State’s witness against the appellant. This is not the anxiety and concern of which Barker and Moore, both supra, speak. There is evidence of none other.

(iii) Impairment of the Defense

There is no suggested failure of memory; no loss of witnesses by the passage of time; no showing that investigation or preparation for trial was hampered by delay. The tardy addendum stands alone as the suggested prejudice.

The Balancing

We believe that the delay was untoward. Although there was evidence mitigating State responsibility for that delay we conclude that the factors of delay and the reasons therefor militate against the State in the balancing process.

We consider, however, that the long delay in the assertion of the right to a speedy trial and the absence of any substantial prejudice to the accused plainly tip the scales against the appellant.

Appellant was represented by two experienced, competent attorneys who filed in his behalf an extensive series of both boilerplate and unusual motions. Their failure to include a claim to a speedy trial prior to May 19,1975 serves as some indicia that it was not desired.

There is other evidence of a lack of desire for'a speedy trial. There was no denial that discussions occurred concerning priorities between Federal and State prosecutions whereby it had been suggested that the latter would be deferred to the former. Finally, the testimony of the witness Robinson, brought into the case at the instance of the accused and uncontradicted in the record, demonstrates with crystal clarity that the appellant desired to prevent, rather than to seek, a speedy trial.

The suggested prejudice stemming from the tardy filing of the addendum must be viewed in the light of appellant’s failure to assert his claim. No one knew better than the appellant that he previously had been convicted of a narcotics offense. His trial counsel were fully conscious that such a circumstance posed an added potential danger to the accused. Thus, if any prejudice may have resulted by its tardy filing, the apparent defense decision not vigorously to pursue his Sixth Amendment right was at least its co-equal cause.

In any case, such prejudice does not relate to the guilt or innocence of the accused. Nor did it impose an impediment upon a fair and impartial trial.

Balancing all factors, we see no denial of Sixth Amendment rights.

Judgment affirmed.

      . His appearance was stricken on June 12, 1974. Court proceedings on that date show the following:
      “There has been some confusion in this case with regards to counsel; apparently there is another Bernard Lee. Hilary Caplan’s appearance appears in this case. As a matter of fact, Mr. Kroop or I never received notice from Criminal Assignment. He did receive it from Mr. Murphy. We would move to enter the appearance of Mr. Kroop and myself for the defendant. I go on proper Motion that Mr. Caplan’s name be removed from the file. Mr. Kroop and I do represent Mr. Lee and I think the record and the file should reflect that, so we do get proper notice in the future.
      “THE COURT: Yes. I will instruct the Clerk to make sure that is accomplished. The computer print out does indicate Mr. Hilary Caplan as the Attorney of record.”

      . The names of private counsel were not placed upon the docket until the entry of their formal appearances on June 12,1974.

      . No document bearing that date is to be found in the record.

      . The trial judge at sentencing in the subject case stated: “The sentence will be consecutive to any sentence he is now serving.” The record shows that defense counsel immediately prior thereto had said “... he is under a federal sentence.” The date of the federal trial and sentence does not appear in the record.

      . Smith v. Hooey, 393 U. S. 374, 21 L.Ed.2d 607, 89 S. Ct. 575 (1969); Barker v. Wingo, supra; Dickey v. Florida, 398 U. S. 30, 26 L.Ed.2d 26, 90 S. Ct. 1564 (1970).


source: Caselaw Access Project

author: Moore, J.,

license: Public Domain

text:
    GERALDINE WILLIAMS v. JOHN F. WILLIAMS
    [No. 1268,
    September Term, 1975.]

      Decided September 16, 1976.

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

      Irwin B. Lipman for appellant.

      Joel I. Hoffman for appellee.
   Moore, J.,

delivered the opinion of the Court.

The issue for decision on this appeal is whether the Chancellor erred in dismissing with prejudice a wife’s bill of complaint in a matrimonial cause, pursuant to Md. Rule 422, because of her failure to depose. Upon the facts of record, we find an abuse of discretion and, therefore, we reverse the decree from which the appeal was taken.

I

On July 22, 1975, Geraldine Williams, plaintiff-appellant, filed a bill of complaint for a divorce a vinculo matrimonii against John F. Williams, then a resident of Burke, Virginia, in the Circuit Court for Anne Arundel County on grounds of desertion and abandonment and adultery. On October 31, 1975, the court passed a pretrial order setting a trial date for November 24, 1975, and containing, inter alia, the following provision:

"Discovery under the Maryland Rules will not be permitted after November 15, 1975. All discovery shall have been completed by that date.”

The order also noted that the husband’s answer to the bill of complaint conceded that he had abandoned his wife, and that she was a fit and proper person to receive custody of the children.

On November 24 counsel for the husband moved to dismiss the wife’s bill under the provisions of Md. Rule 422 b.3. on the grounds that he had been unable to secure her deposition concerning certain property issues relative to the divorce notwithstanding the fact that it had been scheduled three times. The record reveals, however, that the first scheduled date, August 29, 1975, was postponed by agreement at the request of her attorney. The second date, October 7, 1975, was continued at the request of the husband’s attorney. The third date, November 10, 1975, was preceded by a settlement conference on November 7 — attended by Geraldine but not John — and it appeared that the negotiations were meeting with some success. At all events, both counsel agreed to continue Geraldine’s deposition until November 17, 1975, and, under date of November 12, 1975, John’s counsel wrote to the trial judge, stating in part:

“Additionally after a meeting with Mr. Lipman, we have agreed to postpone the plaintiff’s deposition until November 17, 1975.
Your pre-trial limits discovery to November 15, 1975. If it will be required, I would appreciate your amending your order to accommodate this date inasmuch as the original deposition date was. scheduled for November 10th but the November 17th date appears to be more convenient for all parties. If there are any problems with any of the matters set forth above, I would appreciate your letting me know.”

At about that juncture, Geraldine notified her attorney that she desired representation by other counsel. Her counsel advised John’s of this development and that her new counsel would undoubtedly desire to be heard as to the time and place of her deposition. On November 17, John’s counsel moved to continue the trial, referring to Geraldine’s decision to engage another attorney and that he wished to take her deposition before trial. Geraldine’s lawyer, who was in fact never replaced, did not appear in court on November 21, the date of the hearing on the motion for continuance, but notified the court that he did not oppose the motion.

There is no transcript of the November 21 proceeding. However, the motion to dismiss, filed on November 24, included the following assertions:

“4. That on November 21, 1975 the Honorable Judge W. Harvey Beardmore instructed the defendant to file this Motion to Dismiss [pursuant to Rule 422].
“5. That although defendant would prefer to continue this matter for a reasonable length of time, with instructions to the plaintiff to appear at a deposition scheduled for a day certain, defendant hereby complies with the request of the court and files this Motion to Dismiss.”

It was also represented in the motion that the husband had been caused to expend $150 in counsel fees and compensation in that amount was requested.

Geraldine, her original counsel and her witnesses were present in court on November 24, 1975, the trial date specified in the pretrial order — and the date on which the motion to dismiss was filed. (Geraldine’s counsel did not receive a copy of the motion until he appeared in the courtroom.) A partial transcript of the proceedings on November 24,1975, appended to appellant’s reply brief, is as follows:

“COURT: Well, I’m willing to consider this, I’m willing to refer it to the Master if both parties consent to it. Otherwise I’m inclined to dismiss it with prejudice.
MR. LIPMAN [Geraldine’s counsel]: Well, frankly, Your Honor, I think the Master could probably handle it. I hope that the other side will agree.
COURT: What’s your position, Mr. Hoffman?
MR. HOFFMAN [John’s counsel]: If the court please, I would prefer the court to hear this matter; and I don’t think I can accede to that.
COURT: All right then. The court has considered this matter and bears in mind that its pretrial order bore a cutoff date for discovery of November 15, 1975. Previous dates — and there were no exceptions for that. It explicitly stated so in the pretrial order, notwithstanding the parties agreed to a deposition of the Plaintiff on November 17th and the court can’t understand why, but apparently it was because Plaintiff was contemplating new counsel. Well, if that’s the case, then the genesis for this problem arises from the Plaintiff’s standpoint not from the Defendant’s standpoint. The Plaintiff has known since the date of the pretrial order, which was October 31, 1975 that this matter was set explictly for November 24, 1975 at ten a.m. and counsel were informed at that time that the court was going to hold to that schedule.
Now the court’s schedule has been disrupted by the failure of this case to go forward, to be prepared at the time, and the court has instructed counsel for the Defendant to invoke Rule 422 of the Maryland Rules. It finds that the Plaintiff did not appear at the deposition as scheduled, and, therefore, the court is going to dismiss the action with prejudice.” (Emphasis added.)

Appellee’s counsel had submitted an Order of Dismissal with the motion. The Chancellor signed that Order and added the words “with prejudice” by interlineation, so that the Order read, “[T]he above referenced action is dismissed with prejudice. . ..” Payment of $150 counsel fees by Geraldine was also ordered.

On this appeal, Geraldine assails the Chancellor’s Order of Dismissal on five separate grounds.- While we find it unnecessary to discuss each of them, we agree with her pervasive thesis that the Order appealed from was improper and must be reversed.

II

First, we observe that the husband’s motion to dismiss incorrectly cited Md. Rule 422 b.3. as its authority. Rule 422 b. is entitled “Failure to Comply With Order for Discovery.” Here, no discovery order had been entered. See Evans v. Howard, 256 Md. 155, 259 A. 2d 528 (1969). The applicable rule was Rule 422 c., bearing the title, “Failure of Party to Attend or Serve Answers to Interrogatories or Respond to Request for Inspection.” Rule 422 c.1. is designated “Motion — Grounds for — Order” and provides in pertinent part:

“If a party ... fails to appear before the officer who is to take his deposition, after being served with a proper notice, . . . the court in which the action is pending on motion may make such orders in regard to failure as are just, and among others it may take any action authorized under subsections 1. [Matter Taken as Established], 2. [Prohibiting Claims, Defenses or Evidence] and 3. [Striking Pleadings — Stay — Dismissal — Judgment by Default] of Section b. of this Rule.”

It is well settled that the application of such sanctions as are provided in Rule 422 is within the sound discretion of the trial court. Evans v. Howard, supra; Tydings v. Allied Painting & Decorating Co., 13 Md. App. 433, 283 A. 2d 635 (1971). As stated by Judge Digges for the Court of Appeals in Mason v. Wolfing, 265 Md. 234, 236, 288 A. 2d 880 (1972):

“In this State, a trial judge has a large measure of discretion in applying sanctions for failure to adhere to the discovery rules. Even when the ultimate penalty of dismissing the case or entering a default judgment is invoked, it cannot be disturbed on appeal without a clear showing that this discretion was abused.”

As for the circumstances where the “ultimate penalty” may properly be imposed, Chief Judge Hammond observed in Lynch v. R. E. Tull & Sons, Inc., 251 Md. 260, 261, 247 A. 2d 286 (1968):

“There have been suggestions that this ultimate sanction usually will be invoked only where the failure is wilful or contumacious [citing cases], but the power of the court to act is not thus limited and there may be other occasions when this gra/vest sanction can properly be invoked.” (Emphasis added.)

Examination of leading Maryland cases involving discovery, where an action was dismissed or a default judgment or decree pro confesso was entered, reveals that in each instance the party against whom this “gravest sanction” was imposed had been guilty of conduct markedly different from that present here. For example:

In Pfeiffer v. State Farm Mutual Automobile Insurance Co., 247 Md. 56, 230 A. 2d 87 (1967), a suit for damages resulting from the insurer’s denial of coverage under an automobile liability insurance policy, plaintiff repeatedly answered defendant’s interrogatories tardily and in an insufficient and evasive manner. Defendant’s exceptions to the answers were twice sustained. The trial court informed plaintiff that his cause would be dismissed if he did not submit adequate answers within fifteen days. When he did not do so, a non pros was entered in favor of the defendants, with costs, including a counsel fee of $50.
On appeal, the Court of Appeals held that the sanctions were properly imposed, sua sponte, but affirmed in part and reversed in part, finding the non pros proper as to three counts of the declaration but improper as to two other counts and remanded the case for a limited trial.
In the leading case of Guerriero v. Friendly Finance Corp., 230 Md. 217, 186 A. 2d 881 (1962), the corporate plaintiff, the holder of a judgment, sought relief in equity to have certain transactions set aside as fraudulent. In July, 1960, it filed interrogatories. After more than six months passed and no answers were made it moved on February 16, 1961 for a decree pro confesso which was entered five days later.
In Miller v. Talbott, 239 Md. 382, 211 A. 2d 741 (1965), after defendant did not answer plaintiffs interrogatories in a suit for specific performance, plaintiff moved for a decree pro confesso. The Chancellor ordered defendant to show cause why the decree should not issue. When the defendant did not do so, the decree issued. As stated there by Judge Barnes:
“Under the circumstances here, when defendants or counsel for the defendants had every opportunity to answer the five interrogatories propounded to them; where the court granted an additional period of time in which to show cause why a decree pro confesso should not be granted, rather than summarily entering such a decree — we can only conclude — assuming abuse of discretion to be the applicable test — that no abuse of discretion was shown in entering the decree pro confesso.. ..” 239 Md. at 388.
The Court of Appeals nevertheless reversed and remanded, holding that the subsequent refusal of the Chancellor to “hear evidence on and to determine the merits of, the defendants’ proffered defenses constituted an abuse of discretion given by Maryland Rule 675 a.3. .. .” Id. at 390.
In Baltimore Transit Co. v. Mezzanotti, 227 Md. 8, 174 A. 2d 768 (1961) the corporate defendant refused to answer four of plaintiffs interrogatories on the ground that they were improper. It continued this refusal even after having been directed by the court to answer. Upon motion of the plaintiff, the court awarded judgment by default, pursuant to former Rule 417 d., now Rule 422 c. The judgment was affirmed.
In Peck v. Toronto, 246 Md. 268, 228 A. 2d 252 (1967) appellant’s suit in proper person was dismissed pursuant to then Maryland Rule 414 a.2. (superceded in 1973 by present Rule 422 c.) for refusal to depose after an order of court to do so. In affirming the dismissal, Chief Judge Hammond gave a chronological recital of the course of the case:
“On September 25, 1965, Peck failed to appear for the taking of his deposition by the appellees at a time and place of which he had due and timely notice. On October 28 following, appellees’ motion to dismiss the case was denied by Judge Bowie when Peck promised thereafter to appear and give his deposition, after the court had advised him of the purpose and nature of a deposition and of his obligation to answer questions after noting an objection (for future action by the court) to any he thought improper. A new notice of a deposition to be held November 16 was sent to Peck, who, on November 12 filed a motion under Rule 406 for an order ‘to protect the party * * * from hardship or oppression or undue expense.’ The motion was denied the same day by Judge Bowie and the deposition was reset for December 11. On November 16 Judge Bowie denied Peck’s motion to set aside his order of November 12. On December 10 Peck filed a motion for the appellees to show cause why he should appear and give his deposition. He failed to appear on December 11, as he had agreed to do.
Appellees filed another motion to dismiss the proceeding. Judge Powers denied the motion, after repeating the explanation as to a deposition that Judge Bowie had made, and telling Peck he would be given ‘one more chance.’ Judge Powers also alleviated one of Peck’s objections — that of going to Montgomery County to give his deposition — by ordering that the testimony be taken in Prince George’s County.
“The deposition was then set for January 29. Peck appeared but refused to answer a number of pertinent and material questions. On February 16, after a hearing which Judge Loveless previously had ordered, Judge Bowie dismissed the case with prejudice.”
Finally, in Kipness v. McManus, 14 Md. App. 362, 286 A. 2d 829 (1972) the opinion of this Court discloses that before a judgment of non pros was granted as to an individual plaintiff (there being also a corporate use-plaintiff) the deposition of the individual had been noted for August 28, September 25 and November 25, that a court stenographer was present and ready to proceed in each instance and that on each occasion the plaintiff declined or refused to attend. Prior to the last occasion, his attorney had been advised that an appropriate motion would be filed if the client failed to appear. The court thereafter entered an Order on December 2 that the individual plaintiff show cause on or before December 17 why judgment of non pros should not be entered against him. He failed to do so. The judgment of non pros was then granted and this Court affirmed.

In virtually every case where the ultimate sanction has been imposed, such action has been taken in the presence of contumacious or dilatory conduct on the part of the plaintiff or when the noncomplying party had disobeyed a direct order of the court to depose, or to show cause, to answer interrogatories, or to respond to his opponent’s motion for dismissal or default judgment. While the Court of Appeals has held that dismissal or default may be imposed even where a party’s failure to comply with a discovery order is neither wilful nor contumacious, Lynch v. R. E. Tull & Sons, Inc., 251 Md. 260, 247 A. 2d 286 (1968), supra, its ground there for affirming such action by the trial court was principally that appellant had not provided a transcript and “[t]hat which is before us does not permit us to find an abuse of discretion in Judge Shure’s actions.” 251 Md. at 262.

The instant record is complete enough to permit us to find an abuse of discretion here. We base our decision on the following grounds:

1) There was no record of delay or contumacious conduct on the part of the plaintiff. She was not herself involved in the earlier postponements of her deposition. Rather, they were dictated by the convenience of her counsel who maintained offices in Silver Spring, Montgomery County, and her husband’s counsel whose office was located in Washington, D. C. Apparently, as an accommodation to each attorney, she had agreed that her deposition be taken in Silver Spring and the record is barren of any evidence of unwillingness on her part to be deposed there at any time. There is simply no indication of any “unwarranted refusal to depose.” Pappalardo v. Lloyd, 250 Md. 121, 124, 242 A. 2d 145 (1968).
2) There was no indication of any prejudice to the husband. Indeed his counsel was seeking a continuance. rather than a dismissal — until the court itself directed him to invoke the penalty provisions of Rule 422.
3) When the husband’s counsel filed the motion to dismiss, obedient to the direction of the court, no adequate notice of the motion was afforded the wife, whose counsel received service of the motion as he entered the courtroom before the motion was granted on the day of trial.
4) The case does not appear to involve any substantial property. The trial itself could have proceeded on the morning of November 24, the trial date specified in the pretrial Order, on the merits of the wife’s grounds for divorce a vinculo and the matter of custody — on which there was no serious issue. If then found necessary, a court deposition of the wife could have been taken and the trial resumed on the issues of alimony and child support. Obviously, if this was not feasible, the case could have been continued for subsequent hearing on the financial aspects and division of any personal property. (We note in this connection that the wife had previously provided the husband’s counsel with a complete financial statement and that the wife’s notice to take the husband’s deposition had been withdrawn.)
5) A dismissal of the wife’s bill of complaint, had it been without prejudice, would have been serious enough in its consequences because she had only with some special effort obtained personal service upon the husband in Maryland, he being a resident of Virginia. Dismissal “with prejudice” would be devastating in its effect — requiring the wife to pursue her husband in Virginia or, as we are told in the husband’s brief, to defend a matrimonial action by him in Virginia.
6) The imposition of a $150 counsel fee upon the plaintiff alone seems unreasonable in the case of a wife who, as here, was of limited means and who had previously found it necessary to execute a pauper’s affidavit and to pursue her husband in the District of Columbia under the Uniform Reciprocal Enforcement of Support Act.

We note finally that while the Chancellor referred to the cutoff date for discovery set forth in its pretrial Order, his action in the dismissal of this case with prejudice was pursuant to Rule 422 only and was not based upon the provisions of Maryland Rule 504, supra, relating to pretrial Orders. In this connection we observe that Rule 504 makes no provision for dismissal of actions for non-compliance with pretrial Orders and, while such authority may be within the inherent power of the court, Link v. Wabash Railroad Co., 370 U. S. 626 (1962), its exercise in the instant appeal would have been an abuse of discretion for the reasons previously stated.

Order of dismissal vacated; case remanded for further proceedings not inconsistent with this opinion; costs to be paid by appellee.

      . Maryland Rule 504, “Pre-Trial Conference,” provides in subsection (c):
      “The court may make an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel. Such order may thereafter be modified, either before or during the trial, as justice may require.”

      . Paragraph 6 of the pre-trial order recited:
      “The parties estimate that 1 day will be needed for the trial of this cause. Priority problem (s): 2 other cases are set for the same day. Earliest filed case has priority. Right-of-way cases may intervene (none scheduled at this time).

      . “If any party or an officer or managing agent of a party or a person designated under section a 2(b) of Rule 405 (Designation of Person to Testify) fails to obey an order requiring him to provide or permit discovery, the court may make such orders in regard to the failure as are just, and among others the following....”
      “An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default or decree pro confesso against the disobedient party.”
      As noted, infra, this Rule was not applicable. The motion should have been filed pursuant to Rule 422 c.

      . The parties stipulated that transcripts of the several court proceedings were not required to be made part of the record on appeal.

      . Appellant moved for reargument and reconsideration on Dec. 4, 1975. After a hearing in open court on Dec. 17, 1975, the motion was denied.

      . The pretrial Order establishing a deadline for the completion of discovery was not an Order pursuant to the discovery rules.

      . Rule 422 c. thus supersedes former Rule 414 a.2. which authorized the imposition of penalties, including dismissal, “if any party ... wilfully fails to appear ... [for] his deposition.” Rule 422 c.2. provides that if the “failure to act was without substantial justification” the court may require the party failing to act or his attorney or both, to pay the reasonable expenses, including attorney’s fees, caused by the failure “unless it finds that other circumstances make an award of expenses unjust.”

      . Unquestionably, the continuance should have been requested by the wife’s counsel, a responsibility which continued notwithstanding his client’s lately found interest to replace him.

      . As previously noted, Rule 422 c.2. authorizes the court to require the party failing to act or his attorney or both to pay reasonable expenses, including attorney’s fees.

      . Maryland Rule 504 was modeled on Federal Rules of Civil Procedure, Rule 16. In federal practice, Rule 41 b. designated “Involuntary Dismissal” is authority for dismissal with prejudice for failure to comply with the provisions of Rule 16 pertaining to pretrial Orders. It has been repeatedly held, however, that dismissal under Rule 41 b. is a “harsh sanction” and should be resorted to only in “extreme cases.” Richman v. General Motors Corp., 437 F. 2d 196, 199 (1st Cir. 1971); Annot: “Dismissal for Failure To Prosecute,” 20 ALR Fed. 488 (1974).


author: Powers, J.,

text:
    WILLIAM I. KEARNEY et al. v. MAYOR AND CITY COUNCIL OF BALTIMORE et al.
    [No. 1277,
    September Term, 1975.]

      Decided September 17, 1976.

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

      Sidney Schlachman, with whom were Gomborov, Steinberg, Schlachman & Diener on the brief, for appellants.

      Neil L. Lewis, Assistant City Solicitor, with whom was Benjamin L. Brown, City Solicitor, on the brief, for appellees.
   Powers, J.,

delivered the opinion of the Court.

Appellants were the three plaintiffs in a suit filed on 28 September 1971 in the Circuit Court of Baltimore City against the Mayor and City Council of Baltimore City, the individual members of the Board of Estimates of Baltimore City, and other officials of the City government. The plaintiffs alleged that they were full time employees of the Baltimore City Police Department, each holding the rank of Sergeant.

The bill of complaint set out certain policies stated in the City’s Administrative Manual with respect to payment for overtime work, described how those policies were implemented in the City’s budget, and alleged that as applied to the plaintiffs and other Sergeants of the Baltimore City Police Department, such policies and actions were unconstitutional, as being unreasonably discriminatory, and as being without any reasonable standard or justification.

Prayers of the complaint asked the court to declare the policies and actions of the City and its officials unconstitutional and illegally discriminatory; to declare the City’s failure to make provision for overtime pay to Police Sergeants to be in contravention of the City Charter; and to declare that the rights of Sergeants in the Baltimore City Police Department are to receive overtime pay under the same conditions as any other full time employee of the City of Baltimore.

After a demurrer filed by all defendants was overruled, they answered, denying any discriminatory or unconstitutional act or policy, and specifically asserting that they were not proper parties to the action.

Appellants followed in February 1973 with a motion for summary judgment, along with an extensive memorandum of law and points and authorities. The City and its officials responded with an answer to the motion, and an affidavit in opposition to the motion. They asserted that the Police Department is a State agency, over which the City of Baltimore had no control, with the exception of working with the Police Commissioner in the preparation of a police budget. They cited the Code of Public Local Laws, Section IV, which created the position of Police Commissioner, who is appointed by the Governor, and which sets forth the respective duties and method of setting the compensation of the members and employees of the Police Department.

The motion for summary judgment was denied on 26 July 1973, apparently without argument. Trial was set for 29 April 1975, but at that time the parties agreed to submit the case to the court, Judge Joseph C. Howard, by filing memoranda on the facts and the law. Thereafter, on 12 November 1975, Judge Howard filed a Memorandum Opinion. He ruled that the language of the Administrative Manual clearly excluded policemen above the rank of patrolman from overtime pay. He discussed the facts, found a rational basis for the policy and the classification, and concluded:

“For the above reasons, it is the decision of this Court that the policy of the Mayor and City Council of Baltimore and its collateral agencies regarding overtime pay to Police Sergeants is not unconstitutional and illegally discriminatory.”

It does not appear in the record that anything more in the nature of an order or a decree was submitted to Judge Howard after he filed his Memorandum Opinion. The docket refers to the opinion as an opinion and order, and we shall construe it as constituting a final decree declaring the rights of the parties. Appellants timely filed an order to the clerk to enter an appeal “from the decision of the Honorable Joseph C. Howard dated November 12,1975.”

The decision of Judge Howard did not reach or decide the issue raised by the City in its demurrer, its answer, its opposition to the motion for summary judgment, and in its memorandum upon which the case was submitted for decision. In that memorandum counsel for the City and its officials said:

“The Respondents have consistently maintained that they are not the proper parties to this action. The method of setting salaries and determining other monetary needs of the Police Department is set forth in the Code of Public Local Laws of Baltimore City, 1969 Edition, Section IV, Article 16-8 and particularly as to overtime in item (c).”

The Code section referred to provides, in part:

“Members of the Department required to work overtime, or whose optional leave time is of necessity cancelled, may be compensated therefor in accordance with such rules and procedures as may be promulgated by the Commissioner and approved by said Board of Estimates.”

Completely absent from the record is any showing that the Police Commissioner ever included in his budget request a provision for payment to Police Sergeants for overtime work, or that he ever promulgated a rule of procedure to authorize such payment.

Counsel for the City and its officials explained further in the memorandum filed below:

“It has apparently been the Commissioner’s position that he does not deem overtime desirable or necessary for police sergeants, as they are supervisory personnel and as such should maintain a level of work performance, including overtime, which distinguishes them from the ‘rank and file’ patrolman.”

Exhibiting the virtues of consistency and tenacity, appellees again argued in this Court, both in their brief and in oral argument, that they are not proper parties in this action — that it is- not the City, but the Police Commissioner, who has the sole authority under the law to initiate the action which the appellants seek to compel the City to take.

While we do not disagree with the rulings of the trial judge on the issues he ruled upon, we think that to embrace those issues is to put the cart before the horse. To decide an issue when the party to be bound by the decision is not before the court is a futile judicial effort. The issue — that the defendants before the court had no legal power to do what the Police Sergeants asked — was raised and argued below, and even though it was not decided there, it is proper for us to decide it here.

Maryland Rule 1085 (counterpart of Rule 885) says, in part:

“This Court will not ordinarily decide any point or question which does not plainly appear by the record to have been tried and decided by the lower court; but where a point or question of law was presented to the lower court and a decision of such point or question of law by this Court is necessary or desirable for the guidance of the lower court or to avoid the expense and delay of another appeal to this Court, such point or question of law may be decided by this Court even though not decided by the lower court.”

The Court of Appeals applied Rule 885 in Kent v. Mer.-Safe Dep. & Tr. Co., 225 Md. 590, 171 A. 2d 723 (1961). That appeal was from an Orphans’ Court order denying on the merits a petition to revoke letters testamentary previously granted to the Trust Company. The Court said, at 593:

“While supporting that holding, the appellee contends that the petition for revocation was filed too late and that the action of the Orphans’ Court should be sustained on that ground. The record shows that the point was raised and argued below, and our authority to consider it is clear under Maryland Rule 885. In the committee note to this rule (Code (1957), Vol. 9, p. 476) it is stated: ‘For instance, a case may present two separate legal questions both of which might be argued fully in the lower court. It might be that the lower court would decide one of the questions and then deem it unnecessary to decide the other. Under this Rule the Court of Appeals could decide both questions.’ ”

We have quoted the applicable section of the Baltimore City Code. That section was cited by the Court of Appeals in Donohue v. Police Commissioner, 267 Md. 612, 298 A. 2d 437 (1973). The Court recognized that the power to authorize compensation for overtime work rested in the Police Commissioner, and even though that suit was directly against the Commissioner, the Court held that he could not be required to authorize compensation for overtime work, except “in accordance with such rules and procedures as may be promulgated”, or in accordance with an applicable statute or other authorization for such extra compensation. Donohue declined to base his claim upon any such rules and procedures, and he alleged no statute or other authorization.

If the pattern of rules and procedures promulgated by the Police Commissioner regarding compensation of members of the Police Department for overtime work resulted in unconstitutional discrimination against any member or group of members of the Police Department, then the complaint should have been brought against the Police Commissioner, who had the legal power to remedy the wrong, and not against the Mayor and City Council of Baltimore City or its officials.

Our mandate will, in accordance with Marylánd Rule 1076 a., modify the decree below so as to declare that the plaintiffs-appellants are entitled to no relief against the defendants-appellees, and to dismiss the bill of complaint.

Declaratory decree entered on 12 November 1975 modified so as to declare that the plaintiffs are entitled to no relief against the defendants, and to dismiss the bill of complaint, and as modified, affirmed.

Appellants to pay costs.

      . Among the grounds stated in the demurrer were:
      “4. That the Complainants are requesting the court to declare certain policies of the Respondents invalid and unconstitutional when, in fact, the policies complained of are not the policies of the Respondents.
      “5. That the Complainants are employees of the State of Maryland and not of the City of Baltimore and as such their working conditions are set by a State employee, the Police Commissioner of Baltimore.”
      These grounds were rejected, upon the recommendation of a Master, apparently on the theory that the demurrer admitted the truth of the allegations. That rule applies, of course, only to facts well pleaded. The legal status of the Baltimore City Police Department and of the Police Commissioner were questions of law.

      . See Laws of Maryland, 1976, ch. 920, effective 1 July 1976, which provides, among other things, that the Police Commissioner be appointed by the Mayor of Baltimore City.

      . Judgment might well have been rendered for the City and its officials, had the court’s attention been called to that part of Maryland Rule 610 d. 1. which says:
      “Where appropriate, the court on the hearing may render judgment for the opposing party even though he has not filed a cross-motion for summary judgment.”

      . Code, Courts Art., § 3-406 says in substance that any person whose _ rights, status, or other legal relations are affected by a statute, municipal ordinance, administrative rule or regulation may have determined any question of construction or validity, and obtain a declaration of rights, status, or other legal relations under it. Section 3-411 says:
      “The declaration may be affirmative or negative in form and effect and has the force and effect of a final judgment or decree.”


author: Menchine, J.,

text:
    ANTHONY GRANDISON a/k/a James Williams v. STATE OF MARYLAND
    [No. 1279,
    September Term, 1975.]

      Decided September 17, 1976.

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

      Robert F. Freeze, Assigned Public Defender, for appellant.

      Deborah K. Handel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Svnsher, State’s Attorney for Baltimore City, and Roy Breslow, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Menchine, J.,

delivered the opinion of the Court.

Anthony Grandison, also known as James Williams, was convicted by a jury in the Criminal Court of Baltimore under an indictment charging that he carried a handgun in violation of Article 27, § 36B. He was acquitted on two more serious charges.

Grandison had been indicted under the following six indictments:

Indictment

No. Date of Offense Offense Charged

57500867 November 6,1974 Assault with intent to murder Samuel Mason.

57500868 November 6,1974 Robbery of Samuel Mason with a dangerous and deadly weapon.

57500869 November 18,1974 Possession of a handgun in violation of Article 27, § 36B

57500870 November 18,1974 Obliterating serial number on handgun.

57500871 November 22,1974 Attempted escape.

57500872 November 22,1974 Assault.

Acting pursuant to Maryland Rule 734 the trial judge ordered indictments 57500867, 8 and 9 to be tried together. Grandison’s motion for a severance was granted as to indictments 57500870,1 and 2 pursuant to Rule 735.

At arraignment, Grandison pleaded not guilty to all three indictments but attempted to obtain a jury trial as to indictments 57500867 and 8 and a court trial as to 57500869. The trial judge declined to permit the case to be so divided, requiring the appellant to go forward as to the three joined indictments either with a jury or a non-jury trial as to all. The case then proceeded to trial before a jury. Grandison was acquitted as to indictments 57500867 and 8. He was convicted under indictment 57500869 and sentenced to a term of eighteen months imprisonment.

He thus suggests the questions presented on appeal:

“I. Was the appellant denied a speedy trial?
II. Was the evidence sufficient to sustain the conviction?
III. Should there have been a severance as to indictments?
IV. Should the pretrial motions have been granted?
V. Should the court have granted a motion for mistrial?”

Speedy Trial

Appellant contends that he was denied his Sixth Amendment right to a speedy trial. He was arrested on November 18, 1974. His trial was commenced on July 23, 1975. We reject his contention and find it necessary only to examine that period of delay.

Following appellant’s arrest on November 18, 1974, a preliminary hearing was scheduled for December 11, 1974. The hearing was postponed at the request of the accused to permit him to obtain private counsel.

A second hearing, scheduled for January 16, 1975, was postponed at the request of private counsel for the accused.

A third hearing, scheduled for February 7, 1975, was postponed when appellant’s private counsel obtained permission to withdraw from the case because he had been informed by a prosecution witness that anonymous telephone calls had been received threatening the latter if he appeared at the next scheduled hearing.

On February 7, 1975, appellant was advised that he could speak to the public defender, but declined to do so because he did not care for representation by the office of the Public Defender.

Private counsel was not thereafter engaged. When it became apparent to assignment authorities of the Supreme Bence of Baltimore City that Grandison had not arranged for private counsel, hearing was scheduled before Judge Shirley B. Jones on May 13, 1975. At that hearing the following colloquy between court and counsel occurred:

“[THE COURT]: When you talk to your lawyer as I indicated, these are matters which you should discuss with him and he will assist you in handling them. They will not be heard today. As a matter of law you will have a lawyer from the Public Defender’s office. This gentleman seated at the trial table here is from that office. I’m going to ask him to have the lawyer contact you promptly so you might discuss with him these various motions and he will know the mechanics for getting them set down for a hearing. When he does contact you, you can go over with him these motions that you filed.
[APPELLANT]: Your Honor, see, I’m serving time. I’m already serving time and that’s why I’m saying you haven’t given me no definite answer when I’ll see the Public Defender.
[THE COURT]: I’m sorry I cannot give you that answer. I am simply directing the Public Defender representative here to have the lawyer come see you as soon as the appointment is made. I cannot tell you when he will be here.
[APPELLANT]: Your Honor, You don’t have the authority to appoint me an attorney other than the Public Defender because I don’t have no confidence in the Public Defender at all.
[THE COURT]: I have no authority to appoint any lawyer other than the Public Defender’s office, []
[APPELLANT]: I don’t want a Public Defender.
[THE COURT]: That’s your choice to make. If you decide or decline their services, you have a right to do that. But he will be available to help you.
[APPELLANT]: In other words you’re saying I can’t refuse to be represented by a Public Defender.
[THE COURT]: You can refuse his services, yes. You have the right to do that.”

Notwithstanding the continued expression of dissatisfaction by the appellant, counsel was appointed for him under the Public Defender Act. (Article 27A). The appearance of an assistant public defender was entered for the appellant on that very date.

Thereafter, on June 5, 1975, an experienced panel attorney filed his appearance for the appellant. The trial, requiring eight trial days, began on July 23, 1975.

If any part of the delay is attributable to the State it is miniscule. We agree fully with the trial judge that under the circumstances shown by this record the delay does not reach constitutional dimensions. Accordingly, “there is no necessity for inquiry into the other factors that go into the balance.” Barker v. Wingo, 407 U. S. 514, 530, 33 L.Ed.2d 101, 117, 92 S. Ct. 2182, 2192 (1972). There is no evidence that the State shirked “its constitutional duty to make a diligent, good faith effort to bring [Grandison] to trial.” Moore v. Arizona, 414 U. S. 25, 26, 38 L.Ed.2d 185, 186, 94 S. Ct. 188, 190 (1973).

Sufficiency of the Evidence

The contention that the evidence was not legally sufficient is frivolous. Two police officers observed that the appellant was carrying a handgun and removed it from his person at the time of a lawful arrest. Seizure and use of the weapon as evidence was lawful.

Severance

Indictments 57500867 and 8 (as to which the appellant was acquitted) charged respectively (a) assault with intent to murder and (b) the robbery with a dangerous weapon, of one Samuel Mason.

At the severance hearing the State made the following proffer:

“MR. BRESLAW: The gun that was recovered on the 18th was missing a portion which was found at Mr. Mason's office on the 6th by the officers and they matched up to be the same gun, a portion of the same gun found on the 6th, matching the portion that was remaining portion found on the 18th and the State feels those four [] charges should be tried together.”

At the conclusion of the appellant’s motion for severance, the trial judge said:

THE COURT: I’ll grant the motion to sever to the following extent, i.e., that the cases 57500867, 57500868, and 57500869 will be tried jointly and separately from the remaining indictments in the case. The remaining indictments which appear on the docket will be treated as not called to trial and will be so entered at the time of the verdict. The reason from colloquy with counsel all of the evidence necessary to prove the case is in 869 would be proffered by the State to be admissible at the time of 867 and 868, the orderly and efficient administration of justice demands that the indictments be tried at the same time and there’s no risk of any prejudice to the Defendant. If it turns out that the State’s proffer is totally incorrect and cannot be proved, that’s a matter for disposition at the time of the trial. Certainly on the proffers made, the Court has no alternative but to permit those three cases to be tried together.”

At trial the proffer by the State was supported fully by evidence.

In Sutton v. State, 25 Md. App. 309, 334 A. 2d 126 (1975), we said at 313, [128-29]:

“One of the factors to be considered in the trial judge’s determination of whether to grant a severance is the saving of the time and the expense that unnecessary separate trials would entail. Mason v. State, 18 Md. App. 130, 305 A. 2d 492 (1973); Peterson v. State, 15 Md. App. 478, 292 A. 2d 714 (1972). Moreover, the decision as to whether to order separate trials is vested in the sound discretion of the trial judge. Maloney v. State, 17 Md. App. 609, 304 A. 2d 260 (1973). If it appears that the facts to be proved in one case are substantially the same as those in the other or that they are so closely related that the evidence necessary to show one crime is intertwined with the other, there is no reason to order a severance unless the joinder is prejudicial.”

The trial court’s discretion clearly was properly exercised in the subject case.

In a second string to his severance bow, appellant attempted to accomplish, by election for a court trial as to indictment 57500869, the severance he was unable to achieve upon his motion for severance. The trial judge rejected his effort thus to divide the trial.

Maryland Rule 741 reads as follows:

“Jury Trial — Election.
An accused may elect to be tried by jury or by the court. Such election shall be made by the accused in open court when first called upon to plead after he is represented by counsel of record or has waived counsel. If an accused elects to be tried by the court, the State may not elect a jury trial. The court may, in its discretion and for good cause shown, at any time prior to the trial permit the accused to change his election.”

Standing alone, Rule 741 lends a surface appearance of validity to appellant’s contention that he was denied a right conferred by rule. But Rule 741 does not stand alone.

In Baltimore Transit Co. v. Mezzanotti, 227 Md. 8, 174 A. 2d 768 (1961) it was said at 19-20 [774]:

. . the wording of Rule 819 is general in its terms and does not, itself, place any limitation on the terms ‘any previous interlocutory order’; but it is equally true that statutes relating to the same subject matter will be construed, when possible, so as to harmonize with each other, and not produce unreasonable or foolish results, and the same rules of construction, we think, apply to the Maryland Rules. If the construction of Rule 819, attributed to it by the appellant, be the true one, it is difficult to discover the purpose and usefulness of Rule 422 (naming sanctions that the trial courts may direct in order to force recalcitrant parties and their officers and agents to answer designated questions, etc.), which, in effect would be rendered nugatory, if a party can flout the order of court directing him to answer certain questions and await the outcome of the appeal on a final judgment, by simply posting a bond. Moreover, such construction would take away from the trial courts their time-honored power and authority to control, and to direct, the course of the proceedings in their respective courts, and place the same in the hands of the litigants. Such dire and drastic results were not contemplated in the adoption of Rule 819.”

Similarly, it was said in Johnson v. State, 274 Md. 29, 41, 333 A. 2d 37, 43 (1975):

“The meaning of a Rule ‘does not depend upon the niceties of definition but upon the reasonable intendment of the language used in the light of the purpose to be effectuated,’ Brown v. State, 237 Md. 492, 504, 207 A. 2d 103, 111 (1965), citing Shub v. Simpson, 196 Md. 177, 191, 76 A. 2d 332, 337-38 (1950), and Darnall v. Connor, 161 Md. 210, 214-16, 155 A. 894, 896-97 (1931); and the Maryland Rules, like statutes, when dealing with the same subject matter will be construed so as to harmonize with each other and not produce an unreasonable result.”

Rule 741 must be read and considered along with Rules 716 and 734. Rule 716 reads in appropriate part as follows:

“Joinder.
a. Offenses.
Two or more offenses may be charged in the same indictment in a separate count for each offense.”

In Wanzer v. State, 202 Md. 601, 608, 97 A. 2d 914, 917 (1953), it was said:

“The defendant cannot demand [severance] as of right where there is no basis for thinking that the joinder of the counts will embarrass him in the trial. Such was the rule at common law and it has been consistently followed in this State.”

Rule 734 reads as follows:

“Joint Trial of Indictments.
The court may order two or more indictments to be tried together if the offenses and the defendants, if there be more than one, could have been joined in a single indictment.”

In Lewis v. State, 235 Md. 588, 202 A. 2d 370 (1964), it was said at 590 [371]:

“Maryland Rule 734 provides that ‘The court may order two or more indictments to be tried together if the offenses and the defendants, if there be more than one, could have been joined in a single indictment.’ The Rule is couched in simple language and its purpose apparent: to save the time and expense of separate trials under the circumstances named in the Rule, if the trial court, in the exercise of its sound discretion deems a joint trial meet and proper.”

Of course, joinder may not be prejudicial to the accused. Rule 735 reads as follows:

“Prejudicial Joinder.
If it appears that an accused or the State will be prejudiced by a joinder of offenses or of defendants in an indictment, or by joinder for trial together, the court may order an election or separate trials of counts, grant separate trials of defendants or provide such other relief justice requires. A motion under this Rule may be made only before the jury is sworn, or, where trial by jury is waived, before any evidence is received.”

We said in Peterson, Deal & Hunt v. State, 15 Md. App. 478, 495, 292 A. 2d 714, 724 (1972):

“Underlying all considerations of the proper exercise of judicial discretion under Maryland Rule 735 as to whether to order separate trials is the fundamental concern of whether ‘it appears that an accused or the State will be prejudiced by a joinder of offenses or of defendants ... for trial together ....’”

The trial courts today are struggling to keep abreast of a seemingly ever growing criminal caseload. The ability of the courts fairly to assure due process of law to all accused of crime would be lessened materially if the salutory joinder provisions of Rules 716 and 734 were susceptible to utter destruction by manipulation of Rule 741 in the manner attempted by this appellant.

We are persuaded and we hold that Rule 741 must be read in conjunction with Rules 716 and 734. When so read, we think that it is apparent that Rule 741 applies to that single trial entity that consists of all joined counts of all joined indictments that have survived attack under Rule 735.

Such an interpretation accords full and complete justice to the accused without production of unreasonable or foolish results. Mezzanotti and Johnson, both supra.

Pretrial Motions

The motion to dismiss the indictments upon the ground that erroneous information had been given to the grand jury was quite properly rejected. Everhart v. State, 274 Md. 459, 486-88, 337 A. 2d 100, 116 (1975).

The motion to suppress use of the handgun is without merit. The weapon was seized as an incident to lawful arrest. It was clearly admissible tangible evidence.

The motion seeking disqualification of the trial judge is equally without merit. See Silbert v. State, 12 Md. App. 516, 537, 280 A. 2d 55, 67 (1971).

Motions for Mistrial

A state witness on one occasion referred to a garment worn by the appellant as “a prison coat.” On a second occasion the same witness declared that a coat worn by the accused “meant something to me.” In both instances the trial judge sustained objections by counsel for appellant and ordered the answers stricken. Although denying trial counsel’s motion to dismiss, the trial judge did advise trial counsel that he would specifically instruct the jury to ignore the testimony or give a general instruction at the trial’s conclusion. Of the two proffered courses by the trial judge, trial counsel elected a general instruction to the jury. It was given.

There was testimony both by the appellant himself and by a representative of the State Work Release Program called by him as a witness, that the appellant was under sentence at the time of the offenses and was participating in the program.

The third motion for mistrial occurred when the prosecutor commented upon the absence of a witness from appellant’s place of employment as to his whereabouts on November 6, 1974. The short answer to a contention that this constituted grounds for a mistrial is that he was acquitted of the offense charged on that date.

In Wilhelm v. State, 272 Md. 404, 326 A. 2d 707 (1974), it was said at 429 [723]:

“A request for a mistrial in a criminal case is addressed to the sound discretion of the trial court and the exercise of its discretion, in a case involving a question of prejudice which might infringe upon the right of the defendant to a fair trial, is reviewable on appeal to determine whether or not there has been an abuse of that discretion by the trial court in denying the mistrial. Basiliko v. State, 212 Md. 248, 260-61, 129 A. 2d 375, 381 (1957). The decision by the trial court in the exercise of its discretion denying a mistrial will not be reversed on appeal unless it is clear that there has been prejudice to the defendant.”

We perceive no prejudice to the appellant.

Judgment affirmed.

      . Article 27 A in appropriate part reads as follows:
      “§ 4. Duty to provide legal representation.

      (a) It shall be the primary duty of the Public Defender to provide legal representation for any indigent defendant, eligible for services under this article. Legal representation may be provided by the Public Defender, or, subject to the supervision of the Public Defender, by his deputy, by district public defenders, by assistant public defenders, or by panel attorneys as hereinafter provided for.
      § 6. Panel attorneys; courts not dep'dved of authority to appoint counsel in certain situations.

      (f) Nothing in this article shall be construed to deprive any court mentioned in § 4 (b)(2) of this article of its authority to appoint an attorney to represent an indigent person where there is a conflict in legal representation in a matter involving multiple defendants and one of the defendants is represented by or through the Office of the Public Defender, or where the Office of the Public Defender declines to provide representation to an indigent person entitled to representation under this article.”
      There was no such exception here.

      . The fourth indictment 57500870, charged obliteration of the serial number of the handgun. The trial judge granted severance as to that indictment.


author: Moylan, J.,

text:
    MORTON ROBERT BOONE v. STATE OF MARYLAND
    [No. 1285,
    September Term, 1975.]

      Decided September 17, 1976.

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

      William F. Mosner for appellant.

      Albert Gallatin Warfield, III, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Andrew Sonner, State’s Attorney for Montgomery County, and Steven A. Shaw, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

The appellant, Morton Robert Boone, was convicted in the Circuit Court of Montgomery County by a jury, presided over by Judge David L. Cahoon, of murder in the second degree and a violation of the handgun law. Because of obviously extenuating circumstances, factually if not legally, the jury gratuitously added to its verdict a recommendation of mercy. The judge sentenced the appellant to a term of ten years for the second-degree murder and then suspended five years of that ten-year sentence, for an effective sentence of five years. This tragic killing arose out of irreconcilable antipathies as to life-style between members of the same family.

The appellant was a successful 52-year-old businessman who enjoyed an excellent reputation with his friends and business associates and lived with his wife in Gaithersburg, Maryland. His daughter Sharon had in 1967 deserted her first husband and her child and had run off to Florida with the murder victim, Richard Bryant. Richard and Sharon were subsequently married and had one child. They adopted a hippie style of life, living in communal surroundings, maintaining an unkempt appearance, having no permanent residence or occupation and being heavily involved in the use of drugs. In the fall of 1974, they moved north with a fellow traveler, Clayton Jester. After some emotionally charged negotiations, Sharon and Richard Bryant, along with Clayton Jester and the Bryant baby, then aged two, moved in with Mr. and Mrs. Boone. The three houseguests maintained a dirty and unkempt way of life, irregular hours and the use of marijuana while at the home of Mr. and Mrs. Boone. The final explosion came during dinner on September 23, 1974. When the child continued to misbehave at the table, Mr. Boone suggested to his daughter that it was time she taught the baby some manners. Sharon took the baby from the table and went into the living room. At that point, Richard Bryant initiated what became a violent argument with his father-in-law, in the course of which he protested that he would not have his daughter conform to the accepted rules of society, that the daughter would not attend school and that the daughter would not be brought up to conform to the rules of a capitalistic society. The appellant, Mr. Boone, countered that he would make it his business to see that his granddaughter did attend school. He criticized Bryant for his attitude concerning the government and offered the observation that the taxpayers were supporting Bryant and others like him. The intensity of the argument grew. Ultimately, the appellant, Mr. Boone, ordered Bryant and the others out of the house immediately. Bryant jumped up, assumed a fighting pose, and threatened to “paste him all over the wall” before he left the house. At that point, Jester also stood up and started to converge upon Mr. Boone. Mrs. Boone became frightened and moved into the kitchen.

The appellant, Mr. Boone, left the room and walked upstairs to his bedroom, where he kept a pistol. Jester followed Mr. Boone upstairs. According to Mr. and Mrs. Boone, this was a continuation of the aggressive pattern displayed below. According to Jester, it was simply an effort by Jester to get his clothes before leaving the house.

The undisputed facts of the case are that Mr. Boone returned downstairs with the gun and that Richard Bryant was fatally shot. The critical issue in the case is whether Mr. Boone shot Bryant deliberately or whether the gun went off accidentally. Jester was in another room and did not observe the critical incident. According to Mr. Boone, he came downstairs with the gun “to make a show of force” so that the intruders would leave his house. He testified that Bryant unexpectedly reached out and grabbed his hand and that, in the ensuing struggle, the gun went off. Sharon, his daughter, testified quite to the contrary. She testified that she saw her father come down the stairs with the gun in his hand and that, without saying a word, he put the gun against Bryant’s stomach and fired. The appellant, Mr. Boone, himself summoned the police and the ambulance. Bryant died on the operating table a few hours later.

The appellant’s first contention is that the jury instruction on the subject of murder violated the dictates of Mullaney v. Wilbur, 421 U. S. 684, in that it did not fully articulate the burden upon the State to negate mitigation. Although noting that mitigation was not an issue in the case because the defense claim is that the pulling of the trigger was accidental, the dispositive answer to this contention is that this trial occurred on June 23 to July 1, 1975. Mullaney v. Wilbur was decided by the Supreme Court on June 9, 1975. As Chief Judge Murphy, specially assigned, made clear for this Court in Squire v. State, 32 Md. App. 307 (1976), defendants and defense attorneys are charged with knowledge of Mullaney v. Wilbur as of June 9, 1975, the day on which that opinion was issued. Indeed, in this very case, counsel for both the defense and the State were discussing Mullaney v. Wilbur at some length and laboring with the trial judge to frame an instruction within its guidelines. The instruction ultimately given was not objected to by the appellant. Md. Rule 756 f. The point now raised was, therefore, not preserved for appellate review. We decline to recognize as “plain error” under Md. Rule 756 g an alleged Mullaney violation where no objection was lodged at the time the instructions were given, when such failure occurs after June 9,1975. Squire v. State, supra.

The appellant’s second contention is that when a firearms expert was on the stand, the following hypothetical question and answer thereto should not have been permitted:

“Q. Now assuming, if you will, that the gun, State’s exhibit 27, was fired by a man holding it in his right hand, do you have an opinion on the effect upon the hand of another person grabbing the exposed portions of that gun?
A. Mr. Wilder: The hand placed on the gun while it was being fired would show marks from the burned powder and burns from the hot escaping gases.”

The coroner had testified that she did not see any burns or powder marks on the hands of the deceased. In view of the testimony of Mr. Boone that the deceased with both of his hands grabbed Mr. Boone’s right hand with the gun in it, we think an adequate factual predicate was shown to support a hypothetical question. At one point in the cross-examination of Mr. Boone, the following testimony was elicited:

“Mr. Shaw: Alright. When he grabbed your right hand, he didn’t grab the gun?
Mr. Boone: He did grab the right hand, the gun and all with both hands, Sir.
Mr. Shaw: Well, was it the gun, or your hand that he grabbed?
Mr. Boone: The gun is in the hand, Mr. Shaw. He grabbed both gun and hand.”

Shortly thereafter, the further elaboration took place:

“Mr. Shaw: You don’t know whether he — well, did he touch your hands?
Mr. Boone: Yes, he did.
Mr. Shaw: And he also touched the gun?
Mr. Boone: Yes, he did.”

The general rule is that a hypothetical question must be based upon the facts in the case. Allison v. State, 203 Md. 1, 6; Tull v. State, 230 Md. 596, 603. We find the testimony here fully supportive of the hypothetical question.

The appellant’s third contention is that the State in rebuttal should not have been permitted to rehabilitate the credibility of State’s witnesses Clayton Jester and Sharon Bryant by showing, through the police and police reports, prior consistent statements on their part. The general rule is that where the credibility of a witness has been impeached in such a way as to indicate that his present testimony may be a fabrication, prior consistent statements are admissible for rehabilitative purposes if they would tend to show that such consistency was present prior to the time of probable fabrication. Harris v. State, 11 Md. App. 658, 661; Borza v. State, 25 Md. App. 391, 410. In the present case, the defense opened the door to such rehabilitation by offering a defense witness, Dr. Hunter, who testified that individuals under the influence of marijuana — clearly referring to both Clayton Jester and Sharon Bryant — would have a tendency to be inaccurate in both perception of observed events and in later recall of those events. Inaccuracy in terms of perception at the time of the crime would have predated the giving of a report to the police and would make the police reports, therefore, irrelevant for rehabilitation purposes. Dr. Hunter’s testimony, however, was also susceptible of the interpretation that what may have been clouded by the regular use of marijuana would be present recollection of those past events. The clear import would have been that the trial testimony was, of necessity, either a fabrication or an inaccurate recall. As to that possibility, the prior consistent statements were relevant rebuttal. We cannot, therefore, say that the trial judge abused his discretion in permitting this inquiry.

The appellant’s final contention is that he was denied the opportunity in surrebuttal to rehabilitate his own credibility by calling witnesses who would testify to his reputation for truth and veracity. He misreads the law in this respect. Such rehabilitation is only permissible in rebuttal where his character or reputation for truth and veracity has been directly attacked. That which he argues was an impeachment of him in this case was simply State’s evidence which controverted his position. This was not such an attack upon credibility so as to permit the type of rehabilitation here urged. Vernon v. Tucker, 30 Md. 456, 462; Sloan v. Edwards, 61 Md. 89; McLaughlin v. State, 3 Md. App. 515. As we held in Hallengren v. State, 14 Md. App. 43, at 50, n. 2:

“The authorities are nearly unanimous in holding that the mere fact that a witness’s testimony is contradicted by opposing testimony does not warrant the introduction of evidence as to his reputation for truth and veracity.”

81 Am.Jur.2d, Witnesses, § 636, is squarely in accord with this position:

“The question as to when and under what conditions a witness may be corroborated by evidence of good character and reputation for truth and veracity is one that has been much discussed by text writers and jurists and upon which there are differences of opinion. There are, however, some established principles which pervade the adjudicated cases and upon which some general conclusions may safely be based. A presumption attends every witness that he is of good character; consequently, until his character has been attacked, evidence in support of his character is not admissible. On the other hand, where a witness has been impeached by an attack on his character or reputation for truth and veracity, proof of his good character or reputation for truth may be received to fortify his credit, whether the attack is by direct evidence or by cross-examination. Thus, some courts admit evidence of general reputation in support of a witness who on cross-examination or by record of conviction has been impeached by acts of immoral or criminal conduct. It has also been held that after specific acts of an adverse witness have been shown for purposes of impeachment, the party calling the witness may sustain his character by eliciting from him evidence explaining those acts or mitigating their effect, even though such evidence would not otherwise be admissible.”

Of similar import is 81 Am.Jur.2d, Witnesses, § 639:

“To warrant the admission of evidence of a witness’ general character or reputation for truth and veracity in support of such witness, there must be some special or particular element introduced in the case by which such witness is impeached or discredited. It may be enough that the witness is impeached by his own contradictory statements. Generally, however, the authorities do not regard the contradiction of a witness by other witnesses as sufficient to justify the admission of testimony in support of the witness’ reputation for truth, honesty, and integrity. Thus, where a defendant in a criminal case elects to testify in his own behalf, and where his credibility is not attacked, except by contradiction of his testimony, evidence sustaining his reputation for truth and veracity is not admissible.”

We see no abuse of discretion by the trial judge in refusing to permit the calling of witnesses by the appellant in surrebuttal for purposes of rehabilitating his allegedly impeached credibility.

Judgments affirmed; costs to be paid by appellant.