author: Singley, J.,

text:
    KENNETH WILBUR BATES v. STATE OF MARYLAND
    [No. 1188,
    September Term, 1975.]

      Decided June 25, 1976.

    The cause was argued before Frederick J. Singley, Jr., and J. Dudley Digges, Associate Judges of the Court of Appeals of Maryland and James S. Getty, Associate Judge of the Fourth Judicial Circuit, all specially assigned.

      Michael S. Elder, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Bernard A. Baum, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Leonard L. Casalino, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Singley, J.,

delivered the opinion of the Court.

Kenneth Wilbur Bates, convicted of storehouse breaking and grand larceny by a Prince George’s County jury, raises but one issue on appeal: whether his written confession was improperly admitted into evidence. Consideration of this contention requires a summary of the circumstances which led to Bates’ arrest.

On 18 November 1974, a breaking and entering occurred at Weaver’s Texaco, a gasoline service station in Prince George’s County, and a citizens’ band radio, a tape deck and two handguns were taken. On the night of 31 January 1975, Bates, who had parked a U-Haul truck in front of Weaver’s Texaco, was detained and questioned by police as a result of a complaint to the police that Bates was leaning out of the truck, holding a gun and threatening to shoot one Nick Gable.

Meanwhile, the police learned that, there was a bench warrant outstanding against Bates in an apparently unrelated matter. He was arrested on this warrant, and was permitted to drive his U-Haul truck to the Oxon Hill police station, escorted by Detective Earl W. Jones. There, Bates was questioned by Jones in regard to what was referred to as the “Mac’s Arco case,” apparently the break-in of another service station. Bates told Jones that at the time of the break-in, he had been in the company of a tow truck driver named Leer. Jones left to find Leer, and Bates was taken to Upper Marlboro in execution of the bench warrant. Meanwhile, Jones had located Leer and was told that Leer had not picked up Bates until after the crime had been committed.

Jones, apparently believing that this disproof of Bates’ alibi provided probable cause to arrest Bates in connection with the Mac’s Arco case, called the sheriff’s department in Upper Marlboro and left instructions that Bates was to be detained. When Jones reached Upper Marlboro and found that Bates had been released, he radioed Oxon Hill, where the U-Haul truck was parked, and léft instructions that Bates was to be arrested when he returned for the truck. Jones then returned to Oxon Hill about 5:30 a.m. and arrested Bates, who had been detained as he attempted to leave the parking area in the truck.

Jones questioned Bates about the Mac’s Arco case, and the interrogation then turned to the Weaver’s Texaco case. According to Jones,' Bates admitted involvement in the Weaver’s Texaco break-in. Later, Bates’ pregnant wife joined him at the police station. When she began to exhibit signs of difficulty, according to Bates, Jones told him, “I was going nowhere unless I did things his way.” When asked what happened next, Bates said:

“Well, that [a confession] was the only way I was going to be released and take care of the furniture that I had in the truck, and take care of my wife and get her to a doctor. I had to do it.”
“I told him [Jones] to start writing. I would sign what he had.”

Bates testified that Jones wrote the questions and answers which he signed without reading. This was vehemently denied by Jones.

About two hours later on the same morning, Detective M. M. Shapiro, who was investigating the Weaver’s Texaco break-in, apparently took over the interrogation. According to Shapiro, it was he who prepared the statement which Bates signed. The citizens’ band radio and tape deck taken from Weaver’s Texaco were found in the U-Haul truck; and a .25 caliber automatic pistol, which had also been taken, was recovered from an individual to whom Bates had sold it.

When Bates’ counsel moved to suppress the confession, an exclusionary hearing was held out of the presence of the jury, see Lego v. Twomey, 404 U. S. 477 (1972); Gill v. State, 265 Md. 350, 289 A. 2d 575 (1972). There was testimony by Jones and Shapiro, and Bates testified in his own behalf, describing in some detail his version of the circumstances which led to the preparation of the statement. The trial judge, out of the presence of the jury, ruled that the voluntariness of the confession had been established by a preponderance of the evidence and denied Bates’ motion to suppress the confession.

The hearing was then resumed in the presence of the jury, and the statement was admitted over a general objection by the defense. Detective Shapiro testified for the State.

At the end of the State’s case, a motion for a judgment of acquittal was denied. Bates took the stand in his own defense and repeated the testimony he had given at the suppression hearing. He denied any involvement in the Weaver’s Texaco break-in, and said that on the night of the break-in, he was engaged from 11:00 or 12:00 o’clock at night until 7:00 a.m. the following morning in towing a disabled Cadillac to Richmond, Virginia. He explained his possession of the stolen items by saying that they had been given to him by Nick Gable.

Bates’ contention that the statement was improperly admitted must be considered in the light of the circumstances surrounding his arrest and interrogation which were, to say the least, bizarre. In a period of about 12 hours, he had been arrested four times: once by Jones, at 9:30 or 10:00 p.m. on 31.January, when Bates sat in the U-Haul truck, an arrest which aborted when Jones suspected that Bates “was being set up by someone.” The second arrest, on the bench warrant, about an hour later, resulted in Bates’ release on his own recognizance at Upper Marlboro. The third warrantless arrest, by Jones, about 5:30 a.m., related to Mac’s Arco, and was clearly without probable cause. The fourth, by Shapiro, at about 10:00 a.m. on 1 February, for the Weaver’s Texaco break-in, was bottomed on an induced or tainted confession obtained, according to Bates, by Jones in an environment which was both custodial and coercive. It was clearly a product of his arrest in the Mac’s Arco case.

We are satisfied that under these circumstances, the admission of the confession was improper. A careful reading of the record fails to disclose facts sufficient to constitute probable cause for the warrantless arrest of Bates on Mac’s Arco charge. Jones did not explain how he rationalized the arrest, or reveal in his testimony any additionali. facts upon which he relied in his personal conclusion that Bates was the perpetrator of the break-in. It is clear that the information obtained from Leer did not meet the two-pronged test enunciated in Aguilar v. Texas, 378 U. S. 108 (1964) and Spinelli v. United States, 393 U. S. 410 (1969), since while it may have met the test of “basis of knowledge,” it utterly failed to meet the test of “credibility.” The arrest, therefore, was predicated upon nothing except the fact that Bates had given what appeared to be a false alibi. Reasonable men may become suspicious when a false alibi is given, but Leer’s information, not shown to be truthful, fell far short of probable cause to arrest Bates, see Cleveland v. State, 8 Md. App. 204, 218-19, 259 A. 2d 73, 82 (1969). We have no doubt that a warrant to arrest Bates would never have been issued if based solely upon the facts which Jones revealed in his testimony.

The State would have us avoid this phase of the matter on the ground that the specific point was not made at trial. However, this overlooks the principle that a general objection, such as the one made here to the admission of the confession, is sufficient, Robert v. State, 220 Md. 159, 167-68, 151 A. 2d 737, 741 (1959); Giles v. State, 10 Md. App. 593, 598, 271 A. 2d 766, 769 (1970), and that grounds for the objection need not be stated unless requested by the Court, Maryland Rule 522 d 1, made applicable to criminal causes by Rule 725 f. We think that the objection may be regarded as encompassing both the voluntariness of the confession and the taint derived from the illegal arrest.

As we have already held, the warrantless arrest of Bates for the Mac’s Arco break-in at approximately 5:30 a.m. on 1 February was patently illegal because Jones lacked probable cause. As a result, Bates’ subsequent confession was potentially a product of that arrest. At the suppression hearing, the trial court determined, from a preponderance of the evidence, that Bates was given his Miranda warnings and the confession to the Weaver’s Texaco break-in was voluntary. There was, however, no finding that the illegal arrest did or did not taint the confession.

The issue before us today concerns the interplay between the Fourth and Fifth Amendments, and is virtually identical with the one before the Supreme Court in Brown v. Illinois, 422 U. S. 590, 591-92 (1975):

“whether the [inculpatory] statements were to be excluded as the fruit of an illegal arrest, or were admissible because the giving of Miranda warnings sufficiently attenuated the taint of the arrest.”

Essentially, Brown holds that a confession obtained as a result of an illegal arrest must be examined in the light of both the Fourth and the Fifth Amendments. At a suppression hearing, the trial court must determine whether Miranda warnings, Miranda v. Arizona, 384 U. S. 436 (1966), were given and whether, by a preponderance of the evidence, the confession was freely and voluntarily given and not a result of threats or promises on the part of police officers, Lego v. Twomey, supra, 404 U. S. at 478-79; Smith v. State, 189 Md. 596, 603-04, 56 A. 2d 818, 821-22 (1948); Mulligan v. State, 18 Md. App. 588, 598-99, 308 A. 2d 418, 424-25 (1973). These findings are necessary to satisfy the Fifth Amendment’s privilege against self-incrimination and the due process clause of the Fourteenth Amendment.

The trial court’s inquiry at the suppression hearing, however, is not completed upon a finding that Miranda warnings were given and the confession was voluntarily made. Because the arrest was illegal, there must be a Fourth Amendment determination whether the confession resulted from “an intervening independent act of a free will,” Wong Sun v. United States, 371 U. S. 471, 486 (1963). This determination must be made “[i]n order for the causal chain, between the illegal arrest and the statements made subsequent thereto, to be broken,” Brown v. Illinois, supra, 422 U. S. at 602. Chief Judge Orth, for this Court, in Ryon v. State, 29 Md. App. 62, 71-72, 349 A. 2d 393, 400 (1975), recently extracted three factors from Brown v. Illinois, supra, 422 U. S. at 603-04, which should be employed by the trial court in order to establish whether or not the confession obtained after an illegal arrest was tainted by that arrest:

“(i) the temporal proximity of the arrest and the confession;
(ii) the presence of intervening circumstances; and
(iii) ‘particularly the purpose and flagrancy of the official misconduct.’ ”

What we propose to do in the present case is to reverse Bates’ conviction, for we are convinced that the State failed to satisfy its burden of showing, at the suppression hearing, that the confession did not result from exploitation of the illegal arrest, Brown v. Illinois, supra, 422 U. S. at 602; Wong Sun v. United States, supra, 371 U. S. at 486; Ryon v. State, supra, 29 Md. App. at 82. We need not consider the Fifth Amendment problem because, even assuming that proper Miranda warnings were given Bates and the confession was voluntary, we are convinced, upon an independent constitutional review of the evidence, that Bates’ Fourth Amendment guarantees were violated.

(i) Temporal Proximity

Bates’ arrest for the Mac’s Arco break-in occurred at approximately 5:30 a.m. on 1 February, and the confession was obtained through continuous interrogation which began almost immediately following this arrest. There can be no doubt but that the confession was the product of this interrogation, coming somewhere between three and five hours later. This degree of temporal proximity between the arrest and the confession is virtually identical with that found in Ryon v. State, supra; Wong Sun v. United States, supra, and Brown v. Elinois, supra.

(ii) Intervening Circumstances

No intervening circumstances are disclosed by the record. Jones made no effort to present Bates before a judicial officer of the District Court for formal charging or the setting of bail, in response to the mandate of Maryland District Rule 709 a, until after the confession had been signed by Bates.

(iii) Flagrancy of the Official Misconduct

We deem the conduct of Jones, Shapiro, as well as the other police officers involved, to have been flagrantly improper. The record indicates that Bates was arrested four times within a 12 hour period. Furthermore, Bates’ wife was in need of medical advice, yet no effort was made to assist her, nor does Bates appear to have been allowed food, drink, or sleep in the 12 hours which passed.

“All of this, coupled with the fact that they [the police] did not take [Bates] before a judicial officer ... compels the belief that the officers thought that a confession was essential to their case, and to that extent, at least, the arrest at that time was investigatory. The circumstances of the arrest give the appearance of having been calculated to cause surprise, fright and confusion to the end that an inculpatory statement would be made,” Ryon v. State, supra, 29 Md. App. at 84.

In light of Brown v. Illinois, supra, we hold that the State failed to sustain its burden of showing that Bates’ confession was not tainted by the illegal arrest. The trial court erred in failing to grant Bates’ motion to suppress the confession.

Judgments reversed; case remanded for anew trial.

      . There is an intimation that the warrant was issued at the instance of Nick Gable, who alleged that Bates had threatened him with a shotgun.

      . Bates and his wife, who was six-months pregnant, had been evicted earlier on 31 January from the apartment which they occupied. The truck contained their household goods and personal possessions.

      . Subsequently, Mrs. Bates was prematurely delivered of twin boys, who died after several days.


source: Caselaw Access Project

author: Melvin, J.,

license: Public Domain

text:
    JAMES ELLSWORTH BROOKS and ROBERT ARTHUR BROOKS v. STATE OF MARYLAND
    [No. 404,
    September Term, 1975.]

      Decided June 28, 1976.

      The cause was argued before Moore, Lowe and Melvin, JJ.

      Frank M. Kratovil, Assigned Public Defender, with whom were Edward P. Camus, District Public Defender, and Lois C. Rose on the brief, for appellants.

      James G. Klair, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Robert C. Nolly, State’s Attorney for Charles County, and T. Myron Loyd, Assistant State’s Attorney for Charles County, on the brief, for appellee.
   Melvin, J.,

delivered the opinion of the Court.

James Ellsworth Brooks and Robert Arthur Brooks were tried jointly by a jury in Charles County (Mitchell, J. presiding), and found guilty of robbery with a deadly weapon on three separate indictments. The main contention of each on appeal is that the trial judge improperly admitted into evidence confessions of each of the defendants.

On September 26, 1974, the I.G.A. Foodliner store in Waldorf, Maryland, was robbed by at least three armed men. None of the victims could identify any of the robbers, but on October 17, 1974, acting on information provided by an informant, the police obtained an arrest warrant for James Brooks. James Brooks was arrested at home, and while he was sitting in the patrol car, the police fooled James Brooks’ younger brother, William, into going into the house and bringing back a shotgun that was suspected of being used in the robbery. Later that same day Robert Brooks turned himself in to the police.

On October 25, 1974, James was given a lie detector test and, according to police officers he made an oral confession. On October 30, Robert Brooks was also given a lie detector test and signed a confession. The police testified that before the confession was taken from each defendant each was informed of his rights, including his right to an attorney, and that each defendant waived his rights.

Appellants attack the admissibility of the confessions on several grounds.

I

Each asserts that the admission of the confession of the other in their joint trial violated his Sixth Amendment right to confront his accusers. In Bruton v. United States, 391 U. S. 123 (1968), the Supreme Court of the United States held that at a joint trial the admission of a non-testifying co-defendant’s extrajudicial confession implicating the defendant violated the defendant’s constitutional right of confrontation. In the case at hand the extrajudicial confession by each defendant implicated himself and his co-defendant. Under the rule in Bruton neither confession should have been admitted at their joint trial unless the defendant who made the confession testified and was subject to cross-examination.

The trial court in considering the point at the time of the objection gave the following reasons for admitting Robert Brooks’ confession, the first to be offered by the State:

“THE COURT: ... I think your motion would be premature at this time or your objection [sic].
We don’t know until the State has concluded whether the introduction of this confession ... is prejudicial or not.
MR. KRATOVIL: The confession has been read, Your Honor.
THE COURT: Yes, but confessions should be admitted in evidence and considered to be non-prejudicial, if there is other evidence. Until the State has concluded its case, we don’t know what the other evidence might be.”

It is patent thát the trial judge was invoking, anticipatorily, the harmless error doctrine. The harmless error doctrine is of course not a rule of evidence to be applied by trial judges in determining questions of admissibility. While it is true that the Supreme Court in Brown v. United States, 411 U. S. 223 (1973), ruled that violations of Bruton may amount to harmless error where other evidence against the defendants is overwhelming, the Court did not say that the confessions were properly admitted; rather it held that even though the confessions were erroneously admitted, the error was cured.

Even if at the time the State offered the confession of Robert into evidence, the State had already introduced overwhelming evidence against James, the character of the other evidence could not change the status of the admissibility of the confession. In a joint trial, Bruton proscribes the admission of a non-testifying co-defendant’s confession which implicates another co-defendant. It was a clear violation of Bruton to admit either the confession of Robert or James Brooks in their joint trial during the State’s case in chief as was done here.

In this instance, however, any violation of the confrontation clause was cured when each defendant thereafter took the stand and was subject to cross-examination.

In Nelson v. O’Neil, 402 U. S. 622 (1971), the Supreme Court held that where a co-defendant, whose extrajudicial statement is introduced at a joint trial, takes the stand at the joint trial, there is no violation of the Sixth or Fourteenth Amendment since the other co-defendant then has the opportunity to confront his accusers. In the case sub judice, each defendant took the stand to testify after the confessions were admitted in evidence. James Brooks denied making any inculpatory statement at all, and Robert, though admitting he signed a written statement implicating himself and James in the robbery, denied the truth of the statement claiming he was forced to sign by threats of violence made to him by the interrogating officer. Under the circumstances we hold that any Bruton error committed when the confessions of Robert and James were admitted in evidence was cured. Nelson v. O’Neil, supra.

II

Appellants also contend the confessions should not have been admitted because a) they “were not provided with the assistance of counsel until after interrogation and confession in spite of their requests and an apparent referral by the court for such appointment and therefore they could not be found to have waived such rights”; b) they “were subjected to direct inducements which led to the alleged confessions”; and c) James Brooks’ confession was elicited without prior Miranda warnings. We find no merit in any of these contentions.

(a)

The record reflects that promptly after their arrests on October 17, 1974, both appellants were taken before a District Court Commissioner at Waldorf, Maryland, and the following day were brought before the Maryland District Court in La Plata, Maryland. M.D.R. 709. They contend that even though the District Court Judge indicated counsel would be appointed for them, no counsel was appointed until after they were interrogated by the police. James Brooks was interrogated on October 25,1974, and Robert on October 30, 1974. Although the record is silent as to when a public defender was actually appointed to represent appellants, the public defender ultimately assigned to them stated to the court below that he was unaware of his appointment until October 31, 1974. From these facts, appellants argue they were denied their constitutional right to the assistance of counsel at the time they were questioned by the police on October 25, 1974 (as to James) and October 30, 1974 (as to Robert). The difficulty with the argument is that the trial court believed the police testimony that before the questioning took place each appellant was informed of the full panoply of his Miranda rights and voluntarily waived them before answering any questions. The issue of whether appellants were informed of their constitutional rights to counsel created essentially an issue of fact for the trial judge to resolve. We give great weight to his finding on the issue (Walker v. State, 12 Md. App. 684, 694 (1971)), and upon our own independent review of the record find that each appellant was informed of such right, that each had the opportunity to exercise the right, and that each effectively waived the right.

(b)

The contention of each appellant that they were “subjected to direct inducements which led to the alleged confessions” is not supported by the record.

(c)

The claim of appellant James Brooks that his oral confession was elicited without having been given Miranda warnings is based on the testimony of Trooper Rockel that prior to questioning James on October 25 he gave no such warnings. The record is clear, however, that Trooper Rockel questioned appellant immediately after appellant had been questioned by Sergeant Somers in an adjoining room; that Sergeant Somers had fully advised appellant of all his Miranda rights and appellant had waived them before giving substantially the same statement he immediately thereafter gave to Trooper Rockel. Under these circumstances, it was not necessary for Trooper Rockel to renew the Miranda warnings or that James again waive his rights. See Brown v. State, 6 Md. App. 564, 569 (1969), and cases there cited.

Ill

Appellants’ final contention concerning the admissibility of their confessions is that they were “inadmissible under the doctrine of the ‘fruits of the poisonous tree’

During the trial, before the confessions were admitted in evidence, the State made known its intention to offer in evidence the shotgun given to the police by appellants’ younger brother, William, at the time of James’ arrest. Appellants objected, claiming the shotgun was obtained in violation of their Fourth Amendment protections against unlawful search and seizure. A hearing was then held out of the presence of the jury during which evidence was heard concerning the circumstances of the obtention of the weapon by the police. Trooper Rockel described the arrest and how he obtained the shotgun:

“Q.... And would you tell the Court how you came into possession of that weapon?
A. On the 17th I went to the Brooks residence and arrested James Elsworth Brooks. I then took him to the police car and while we were seated in the police car before leaving the residence he stated to me to instruct his brother to remove the frying pan from the stove because —
Q. Which brother was this?
A. He didn’t specify the brother. He indicated he was cooking breakfast at the time he was arrested. Then [I] went to the house and I told his younger brother, his name is William Brooks, I said that your brother wants you take the frying pan off the stove and to bring out a shotgun, the one that is shorter than the others. And he then removed the frying pan from the stove and then went and got the shotgun and brought it to me.
A. I was in the doorway of the, in fact, I didn’t step inside until he was approaching me with the gun. And at that point I stepped toward him to get the gun.”

Trooper Rockel also testified that prior to obtaining the shotgun from William no police officers conducted any search of the premises and that he “had no idea where the weapon was or if in fact it was positively there”. He further testified that James “had requested the frying pan be removed but not that the shotgun be brought out”.

Appellant James Brooks then testified, out of the presence of the jury, that the shotgun belonged to him and had been kept in his bedroom. Appellant Robert Brooks testified, also out of the presence of the jury, that he lived in the house with James and William. The younger brother William was not called to testify by either the appellants or the State.

The trial judge ruled that the seizure of the shotgun was illegal and suppressed it as evidence. The judge felt the circumstances amounted “to an agent of the police going into the house and bringing out the weapon”. “It is so to speak a long arm search and not fitting into any of the categories permitted”. Implicit in his ruling was his conclusion that William was not “in a position to give consent to the policeman by his long arm, to wit, the minor brother going into the room and bringing out this weapon”. For the purposes of this appeal, we shall assume without deciding, that the trial judge was correct in his ruling.

Appellants contend that the shotgun, ruled by the trial judge to have been illegally seized, was used by Trooper Rockel in eliciting their confessions and therefore each confession was inadmissible as being the “fruit of the poisonous tree” and therefore violative of the Fourth Amendment exclusionary rule.

In Ryon v. State, 29 Md. App. 62 (1975), Chief Judge Orth (now an associate judge of the Court of Appeals) considered at length the Fourth Amendment exclusionary rule and the application of that rule in determining the admissibility of confessions following an illegal arrest or an otherwise illegal search and seizure. Chief Judge Orth summarized the law as follows, at 71:

“The teachings of Wong Sun[ ] and Miranda, as explicated in Tucker[] and Brown,[] are clear.
1) The Fourth Amendment exclusionary rule applies equally to statements and tangible evidence obtained following an illegal arrest or an otherwise illegal-search and seizure.
2) Such statements are not rendered inadmissible simply because of the illegal arrest or unreasonable search and seizure.
3) Such statements are not rendered admissible simply because the Miranda warnings were fully given.
4) Admissibility of such statements, vel non, must be answered on the facts of each case, upon consideration of:
(a) the voluntariness of the statement, which is a threshold requirement;
(b) compliance with the Miranda safeguards, which is important in determining whether the statements were obtained by exploitation of the illegal conduct;
(c) other relevant factors, such as
(i) the temporal proximity of the arrest and the confession;
(ii) the presence of intervening circumstances; and
(iii) ‘particularly, the purpose -and flagrancy of the official misconduct.’ ” (Emphasis supplied.)

In the instant case, upon our independent review of the record we find, that the confessions were voluntary in the traditional sense and that all Miranda requirements were met. Consequently, no Fifth Amendment right against self-incrimination was violated. There remains the “other relevant factors” to be considered, keeping in mind that in determining the application of the Fourth Amendment exclusionary rule to a confession the ultimate question to be decided is whether the confession was “sufficiently an act of free will to purge the primary taint” of official misconduct, Brown v. Illinois, 95 S. Ct. 2254, at 2261, and that the question

“ . .. must be answered on the facts of each case. No single fact is dispositive. The workings of the human mind are too complex, and the possibilities of misconduct too diverse, to permit protection of the Fourth Amendment to turn on such a talismanic test”. Id. at 2261.

Temporal Proximity

During the hearing out of the presence of the jury to determine the admissibility of the shotgun, Trooper Rockel testified that he “mentioned” the shotgun “on several occasions” in his interrogation of both appellants:

“Q. All right. You were also involved, were you not, in the interrogation of Robert and James Brooks; is that correct?
A. Yes, sir.
Q. During that interrogation, or in any of the interrogations, or questioning, did you refer to the sawed-off shotgun?
A. Yes, sir.
Q. How may times would you say?
A. Well, with both of them it was mentioned on several occasions. Especially with James it wasn’t necessary to mention it as much because we took the weapon back in the car with him when we took him back to the Barrack.
Q. Yes. What I mean by that, Trooper, to get directly to the point, in your questioning of him, you referred to the fact, ‘Well, we have got the shotgun,’ or words to that effect?
A. Yes, sir.
Q. And it was used as an inducement, was it not, in obtaining information from him?
MR. LOYD: Objection as to the term characterization an inducement.
THE COURT: Objection is overruled.
THE WITNESS: It was not used as an inducement by me because they never told me anything as a result of questioning.
BY MR. KRATOVIL:
Q. All right, let me withdraw the inducement and ask if it was used as an investigative technique?
A. I mentioned the shotgun when interviewing both of them, mentioning the shotgun when I talked with them did not produce any statements. In fact, they both denied knowing anything about the weapon or robbery.
Q. Subsequently they did make statements, though, is that correct?
A. Yes, sir.
Q. Were you present at those statements?
A. I was present not at the time they initially gave a statement admitting to the robbery, but subsequent to that I sat in on an interview with both of them.
Q. Excuse me. I didn’t hear you.
A. I sat in on an interview subsequent to after they told Sergeant Somers about what happened.
Q. In those interviews was the shotgun referred to in the questioning?
A. Yes, I asked questions as to whose shotgun it was.
Q. How many times would you say it was used?
A. Once.
Q. Just one time?
A. In the subsequent questioning when I questioned them I asked them whose it was and they told me.
Q. That was the questioning by you.
Now, how about the questioning by anyone else?
A. I have no idea if it was mentioned.
Q. I mean when you were present.
It was mentioned at least once, was it not?
A. When I was present I asked them once about the weapon. I don’t recall Sergeant Somers, who was the only other man questioning them, asking them at all about the shotgun.”

The record is silent as to when Trooper Rockel’s unsuccessful interrogations of the appellants took place. The record shows that James Brooks orally confessed to him on October 25, 1974, eight days after his arrest and seizure of the shotgun, and that Robert gave him a written confession on October 30, 1974, thirteen days after his arrest. Both confessions to Trooper Rockel followed immediately after each appellant had orally confessed to Sergeant Somers. Sergeant Somers testified that he did not mention the shotgun during the only times he questioned appellants, i.e., on October 25 (James) and October 30 (Robert).

There is no indication in the record that either appellant was questioned by the police between the time they were taken to the Charles County jail in La Plata, on October 17th and the time they confessed on October 25 (James) and October 30 (Robert). It appears, therefore, that Trooper Rockel’s initial and unsuccessful questioning, during which he informed them that “Well, we have got the shotgun”, took place sometime between their arrest around noon on October 17 and the time they were incarcerated at La Plata at approximately 9:00 P. M. that same day.

Assuming as we do that the shotgun was obtained illegally, any information pertaining to the fact that it was in the possession of the police should not have been used by Trooper Rockel in his questioning of appellants, the obvious purpose of which was to extract confessions from them. Such use becomes the “fruit of the poisonous tree” and is proscribed:

“The doctrine of the ‘fruit of the poisonous tree’ extends the scope of the exclusionary rule to bar not only evidence directly seized, but also evidence indirectly obtained as a result of information learned or leads obtained in the unlawful search; in its broadest sense it prohibits the prosecution from using in any manner, prejudicial to the accused, information derived from facts learned as a result of the unlawful acts of law enforcement agents”. (Emphasis supplied.) Everhart v. State, 274 Md. 459, at 481-482.

As made clear by this Court in Ryon v. State, supra, at 62, however, the use of such information does not automatically mandate the exclusion from evidence of a confession that follows .such use. The burden is upon the State to show that the taint of the illegal use has been purged. Bates v. State, 31 Md. App. 108 (1976).

Here, so far as “temporal proximity” is concerned, the improper use of information gained during the illegal search and seizure occurred on October 17 when appellants were told during questioning by Trooper Rockel, “Well, we have got the shot gun, or ‘words to that effect’ ”. James confessed eight days later on October 25 and Robert confessed thirteen days later on October 30. We find nothing improper in the questioning on those dates. Trooper Rockel obviously knew from the victims of the holdup that a sawed-off shot gun had been used by the robbers. Merely asking-who owned the weapon was not improper.

Intervening Circumstances

The record shows that between the time appellants were questioned on October 17 and the time they confessed, appellants were taken before the District Court on October 18 and then returned to the La Plata jail. There is no indication they were thereafter further questioned by the police until October 25 (as to James) and October 30 (as to Robert).

Flagrancy of the Official Misconduct

We deem the misconduct of Trooper Rockel to be minimal in nature and in no way “flagrant”. At the time he questioned appellants on October 17, shortly after their arrest, he had no way of knowing that the manner in which he obtained the shotgun would be deemed illegal by the trial judge, and we think it too much to expect of him that he should have known that his method of obtaining it violated any Fourth Amendment rights of the appellants. Indeed, although we have assumed for the purposes of this appeal that the trial judge’s ruling was correct, we think judicial minds might well differ on the issue. Of course, if the shotgun were legally obtained, the references made to it during questioning of the appellants would have been perfectly proper.

Other Circumstances

Aside from the “relevant factors” described above, there are other circumstances in this case we consider highly relevant to the issue before us. By their own testimony the appellants negate any causal connection between Trooper Rockel’s references to the shotgun and their confessions.

As already mentioned, James Brooks denied making a confession at all. When asked if the police questioned him about the shotgun, he testified as follows:

“Q.. .. After Trooper Rockel came out of the house, was he carrying a shotgun?
A. Yes, he was.
Q. Was your brother carrying it at all?
A. Nope.
Q. What did he do with the shotgun?
A. Brought it to the car.
Q. What did he do with it?
A. Kept it up front with him.
Q. Did he ask you anything about it?
A. Not at the time being.
Q. Later did he?
A. Yes.
Q. You were questioned by the police, were you not?
A. Yes, I was.
Q. At the time they questioned you, they asked you about the shotgun, did they not?
A. Yes.
Q. They mentioned it?
A. I think they did.
Q. Pardon?
A. I think so.”
“Q. Now when you were questioned by Detective Somers and Trooper Rockel, did they mention the shotgun in their questions to you?
A. I can’t remember, no.”

I

At trial, Robert Brooks was asked no questions concerning any references to the shotgun before his confession was admitted in evidence. When asked why he signed his confession his reply was: “Yes, they threatened to beat me if I didn’t give a statement, yes”. After his confession was admitted in evidence, he told the jury the reason he confessed was because of “fear” of being beaten by the police.

Thus, there is no claim or indication by either of the appellants themselves that references to the shotgun induced their confessions. This circumstance, together with the other factors already discussed, convinces us, upon our independent review of the record, that the State met its burden of showing that the “causal chain” (Brown v. Illinois, supra, at 602) between the illegal seizure of the shotgun (and any subsequent use thereof) and the confessions was broken. In short, we find that the taint of any Fourth Amendment violation has been purged and the confessions properly admitted.

IV

Appellant Robert Brooks contends the trial court erred in allowing certain questions on his cross-examination concerning his use of marijuana. Appellant’s brief refers to the questions and answers occurring at pages 228 and 229 of the transcript. There was no questioning of Robert Brooks on pages 228 and 229 of the transcript. On pages 328 and 329 there are several unobjected to references to marijuana. Obviously, if these are the questions appellant is referring to, his contentions have not been preserved for appeal since they were not objected to at trial. Md. Rule 1085. See also Rule 1031 d 4.

There were several questions regarding Robert’s use of marijuana on page 326 of the transcript which were objected to by counsel. Robert had just stated that everything in his confession was a lie. The State was asking about particular statements in the confession and asking if they were lies. The questions to which objections were made referred to the statement in the confession that Robert was riding around getting “high”. Robert responded negatively to the questions about whether he was getting high on marijuana or got high on marijuana every day. In light of appellant’s denials in response to the questions and because we feel the questions were proper cross-examination, we find no merit in appellant Robert Brooks’ contentions.

V

Finally, appellant James Brooks contends that the State should not have been permitted to introduce on rebuttal evidence that James had voluntarily consented to taking a lie detector test. On direct examination James testified he took a lie detector test. On cross-examination he denied signing a consent form. In rebuttal, the State presented evidence that James voluntarily signed the consent form and, over objection, introduced the signed form in evidence. We see no error. Dobson v. State, 24 Md. App. 644 (1975).

Judgments affirmed.

      . Miranda v. Arizona, 384 U. S. 436 (1966).

      . Decided November 26, 1975, after the briefs in the instant case were filed.

      . Wong Sun v. United States, 371 U. S. 471 (1963).

      . Michigan v. Tucker, 417 U. S. 433 (1974).

      . Brown v. Illinois, 95 S. Ct. 2254 (1975).

      . I.e., they were made “freely and voluntarily and at a time when the accused[s] knew and understood what [they] were saying”. Koprivich v. State, 1 Md. App. 147, 151 (1967). See also Hadder v. State, 238 Md. 341 (1965); Wiggins v. State, 235 Md. 97 (1964); Bryant v. State, 229 Md. 531 (1962).

      . We observe, of course, that as to James he obviously already knew this because he saw the weapon in Trooper Rockel’s possession.


author: Moore, J.,

text:
    RUSSELL U. NEFF et al. v. RALPH D. PRYOR PLUMBING AND HEATING, INC.
    [No. 830,
    September Term, 1975.]

      Decided June 28, 1976.

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

      Charles E. Wilson, Jr., with whom were McCarthy & Wharton on the brief, for appellants.

      John P. Corderman, with whom were Meyers, Wagaman, Corderman & Young, P.A. on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

In this case a husband and wife sought damages for the destruction of their home, and its contents, by a fire alleged to have been caused by the negligence of a plumber in the use of a blowtorch. (Their insurer also joined in the action.) Upon a submission of issues, the jury found actionable negligence on the part of the plumber but it also found that the husband was contributorily negligent. On this appeal a single issue is presented, namely, was there sufficient evidence to justify the grant of an instruction on the issue of contributory negligence on the part of the husband? We find that there was.

I

In early 1972, the appellants, Russell U. Neff and his wife, Eva, decided to enlarge their summer cottage located on Antietam Creek below Funkstown in Washington County, and to make it their year-round residence. Mr. Neff was himself a builder and at the time of trial in May, 1975 had been constructing houses for some 21 years. He and his employees were to perform most of the renovations — the addition of bedrooms, enlargement of living areas and installation of a first floor bathroom. The electrical and plumbing work, however, was to be subcontracted. The plumbing subcontractor was the appellee, Ralph D. Pryor Plumbing and Heating, Inc. The plumbing work to be performed was in connection with the conversion of a first floor closet to a full-size bathroom and this in turn involved the extension of water pipes from an existing second floor bath located directly above the closet. Appellee’s employee on the job was Rondell Harshman who had done plumbing work on Mr. Neffs construction jobs for some 7 or 8 years. Harshman was making pipe connections on March 28 and 29, 1972. On those days Mr. Neff himself was working elsewhere but came by to open the house in the morning and lock it at night.

Toward the end of his own workday of March 29,1972, Mr. Neff went to the cottage shortly after 4 p.m. and Harshman was still working. Neff testified that he was “soldering the hot and cold water lines in the bathroom downstairs and I saw him solder them in . . . and I was with him maybe 20 to 30 minutes.” Questioned further on direct examination concerning the manner in which Harshman soldered the connections, Mr. Neff responded:

“A, The first thing he soldered was a pipe right under the ceiling against the paneling, which those pipes I wanted kept close to the wall and he had them against the paneling, I would say about an inch and when he soldered the top joint, he hit the paneling with the flame, and there was a black spot about the size of your hand showed up and when he did that, I don’t know whether he said ‘oops’ or ‘oh’ or something like and I said, ‘Well, I’ll replace that piece of paneling’ and then he went down below and he sweated two joints there and he did the same thing down there and he scorched, I would say, two places, the size of your hand.” (Emphasis added.)

Concerning his observations as to how Mr. Harshman “actually used the torch” Mr. Neff further testified on direct examination:

“A. Well, I seen him use the torch toward the paneling; I seen them use a shield just like an ordinary carpenter’s saw to protect areas from the flame, I have seen them use that, when they didn’t want to throw flame against á wall that was even painted, they use a shield like that, but he didn’t use any shield and the flame went right into the paneling. ”

On cross-examination, Mr. Neff was asked his reaction to the scorching of the paneling. Counsel for the appellee inquired:

j

“Q. And did you make a complaint to him at that ! time? j
A. He sort of said ‘oops’ or something like that after he took the torch off and I said that I would just replace that panel. I
Q. Was that piece of paneling smoking?
A. Yes it smoked for a while and then it went out.”
“Q. Now, did that cause you any concern?
A. Only after he scorched the first time, it did spread just a little bit.
Q. You didn’t ask him to use a shield or anything?
A. No, I didn’t.”

After Harshman completed his work, Neff and he left the premises together. The following morning at approximately 7:00 a.m., Mr. Neff unlocked the door and then went to another job. In the early afternoon of March 30, some 19 hours after the completion of the soldering work by Mr. Harshman, smoke and flames were observed coming from the cottage, by Neff and his employees. They hurried to the scene and endeavored to extinguish the blaze. The fire was eventually brought under control by the local fire department. The house and its contents were severely damaged.

The Neffs sued Pryor Plumbing and Heating in negligence on the theory that the overheating of the paneling caused the paper backing of the fiberglass insulation behind it to smolder and that this process continued for many hours until a blaze occurred. There was expert testimony on behalf of the appellants that the fire originated in the area where Mr. Harshman had scorched the paneling and that there was no indication that the fire was of electrical origin. Expert testimony adduced on behalf of the appellee offered the conclusion that the fire was electrically caused.

In its general instructions to the jury the court advised that they were to return special verdicts — on a typewritten form submitted, by the court — on the issues of primary negligence, contributory negligence and damages. With respect to the negligence issues, the court in its oral instruction stated:

“If you find, and the answer is ‘yes’ to that first question, if you find that the defendant employee was negligent in performing this work, and the next question you have to answer is this: There is of course as a defense, there hasn’t been much said about it, by inference, it is necessary, of course, for the Plaintiff to satisfy you that he was liot guilty, himself, of contributory negligence, that is, that the Plaintiff, Mr. Neff, did not do something, that is, he was not negligent in causing or contributing to the happening of this incident. Now, the burden of proof, of course, in establishing negligence is on the Plaintiff, that is Mr. Neff, and the burden of proof in establishing contributory negligence is on the Defendant and that is Mr. Pryor.”

Toward the conclusion of the instructions the court also paraphrased a written instruction with respect to contributory negligence previously submitted by appellee, and stated: “. . . Before the Plaintiff can recover he must establish that about at the time of the happening of the occurrence that the plaintiff was using reasonable care for the safety of his property and that the defendant’s employee was guilty of legal carelessness or negligence . . . and that such negligence was the proximate cause of the fire. . . .” Appellants’ counsel excepted to the instructions concerning contributory negligence “as the plaintiff had used reasonable care for the protection of his property, ánd I don’t think there is any evidence in this case that would entitle the jury to consider whether or not Mr. Neff was guilty of any negligence.”

Appellants contend that it was error for the trial court to submit the issue of contributory negligence for determination by the jury.

II

As Judge Hammond, later Chief Judge, observed for the Court of Appeals under similar circumstances in Lindenberg v. Needles, 203 Md. 8, 15, 97 A. 2d 901 (1953), the exception of the appellants to the court’s charge on contributory negligence in this case was, in effect, a request for a directed verdict for the plaintiffs on the issue of contributory negligence. Maryland Rule 552. The appellants (plaintiffs) would here be entitled to such a ruling only if there was no evidence from which a reasonable mind could find or infer that Mr. Neff had directly contributed to his own loss by acting as an ordinarily prudent man would not act under the circumstances. Furthermore, in determining whether there was evidence which required the jury to consider the issue of contributory negligence, the testimony must be viewed in the light most favorable to the defendant (appellee) on whom rested the burden of proving contributory negligence. Lindenberg v. Needles, supra; Goldman v. Johnson Motor Lines, Inc., 192 Md. 24, 63 A. 2d 622 (1949).

Viewing the record by these standards, we cannot find error in the court’s instruction to the jury. As the Court declared in Lindenberg:

“Contributory negligence, like primary negligence, is relative, and not absolute, and must be determined by the circumstances of each case. Elzey v. Boston Metals Co., 189 Md. 566, 56 A. 2d 692; Thursby v. O’Rourke, 180 Md. 223, 23 A. 2d 656; Yockel v. Gerstadt, 154 Md. 188, 140 A. 40. The conduct of an actor during a sequence of events which culminate in injury is to be tested by comparison with what an ordinarily prudent man would have done or not done under like circumstances. The relative significance of each of the events and of the conduct of the actor, as they occur, is most appropriately weighed by a jury, who, as ordinary men, must determine what was reasonably to be expected.” 203 Md. at 15-16. (Emphasis added.)

In the instant case, the appellants charged — and the jury found — primary negligence on the part of the appellee in the use by its employee of a torch, without a shield, while soldering the pipes. The appellant Neff, himself an experienced builder, was present when the negligent acts were performed. By his own testimony, he did not object to the use of the torch without a shield; nor did he complain. Indeed, he himself undertook to replace the scorched panel. The plumber, we note, was cross-examined concerning the scorching of the paneling and testified as follows:

“Q. When you scorched the paneling, whether it was at the bottom or the top, did you do anything to make sure that the paneling wasn’t burning? Did you put a wet rag on it?
A. No sir.
Q. Why not?
A. A wet rag?
Q. Yes.
A. I probably felt it and Mr. Neff was there and he said ‘That is okay’.
Q. Meaning that it was alright that you had burned it?
. A. Yes sir.”

Mr. Neff was obviously familiar with the properties and characteristics of the insulation material behind the wood paneling. Nevertheless, the record discloses no precautionary action on his part at the time of the scorching nor even an inspection by him the following morning when he unlocked the house at 7 a.m. Certainly his background, experience and knowledge were matters properly to be considered as fact issues on the question whether he himself was contributorily negligent. Cf. Bean v. Ross Mfg. Co., 344 S.W.2d 18, 24 (Mo. 1961).

It is beyond cavil that the submission of the issue of a plaintiff s alleged negligence is justified only where

“there be some evidence of negligence of the plaintiff contributing to the happening of the accident beyond a mere scintilla, or evidence from which negligence may be legally inferred by reasonable persons. ...” Goldman v. Johnson Motor Lines, Inc., 192 Md. 24, 31, 63 A. 2d 622 (1949). Accord, Gutterman v. Biggs, 249 Md. 421, 240 A. 2d 260 (1968); Baltimore Transit Co. v. State, 184 Md. 250, 40 A. 2d 678 (1945); Greer Transp. Co. v. Knight, 157 Md. 528, 146 A. 851 (1929); Batten v. Michel, 15 Md. App. 646, 292 A. 2d 707 (1972).

We are satisfied that the record before us reflects more than a “mere scintilla” of evidence of negligence on the part of Mr. Neff. We are unable to agree that a jury could not properly find or infer negligence on his part. See, Fowler v. Smith, 240 Md. 240, 246, 213 A. 2d 549 (1965); Wheeler Transp. Co., Inc. v. Katzoff, 242 Md. 431, 219 A. 2d 250 (1966); Witriol v. Pfueller, 247 Md. 177, 186, 230 A. 2d 346 (1967); Mazer v. Stedding, 10 Md. App. 505, 271 A. 2d 381 (1970).

Judgment affirmed; appellants to pay the costs.

      . Erie Insurance Exchange, the Neffs’ insurer, was a coplaintiff asserting a subrogation claim in the amount of $8,000. (The Neffs’ separate claim was for $12,000.)

      . Judge Hammond cited the predecessor Rule 4 (III, Rules of Practice and Procedure).


text:
    J. LAURENCE MILLISON v. JOSEPH ABELL CLARKE et ux.
    [No. 854,
    September Term, 1975.]

      Decided June 28, 1976.

    The cause was argued before Morton, Davidson and Moore, JJ.

      David M. Williams, with whom were Burt, White & Williams on the brief, for appellant.

      Oliver R. Guyther for appellees.
   Moore, J.,

delivered the opinion of the Court.

J. Laurence Millison prevailed in a jury trial upon a declaration for declaratory relief and money damages arising out of a lease of business premises between himself and the appellees, Joseph Abell Clarke and Judith Ann Clarke, his wife. The verdict in his favor was in the sum of $7,500. He contended below that the evidence clearly established that his damages were $11,650 and, on that ground, he filed a motion for judgment n.o.v. On this appeal he claims that the trial court erred in denying his motion.

Although there was no cross appeal, the appellees’ brief argues that the trial court erred in failing to dismiss the appeal pursuant to Maryland Rule 1013, as not timely filed. It is our conclusion that the lower court properly denied appellant’s motion for judgment n.o.v., and we find it unnecessary to consider appellees’ assertion of error.

I

The property involved in this controversy is located in the Lexington Park area of St. Mary’s County. In the summer of 1970 appellant entered into a contract for the construction of a “Mr. Swiss Drive-In” in contemplation of a lease of the premises to an organization called “Mr. Swiss of America, Inc.”, a nationwide “fast food” business bearing the trade name, Mr. Swiss. Although the lease was executed, bankruptcy of Mr. Swiss organization intervened and operations by that company never commenced. On July 18, 1972, Mr. and Mrs. Clarke, the appellees, entered into a lease of the premises for a term of ten years, from September 1, 1972 to August 1, 1982, at a rental of $500 per month for the first year, $750 per month for the second year and $1070 per month for the succeeding eight years. The Clarkes paid a deposit in the sum of $1,000 but never took possession under the lease nor paid any rent. In January 1973 they returned the key of the premises to Mr. Millison. Mr. Millison leased the premises to interim tenants in 1973 and 1974 but formally notified the Clarkes that he was doing so to mitigate their damages and that he reserved all claims against them for unpaid rent.

On February 5, 1974 Mr. Millison filed a suit in equity in the Circuit Court for St. Mary’s County seeking declaratory relief and money damages. On November 14,1974 the action was transferred to the Law Docket and on May 2, 1975 Mr. Millison filed an amended bill for declaratory relief at law. He also prayed damages in the amount of $11,650 representing rentals due for the period September 1, 1972 through April, 1975, less the $1000 deposit and the total rentals received from the interim tenants. The Clarkes interposed a general denial and a counterclaim in the amount of $14,384.72 — the amount of damages claimed against them in a suit by Taylor Freezer Equipment Corporation for equipment which they had contracted to purchase and upon which they had made a deposit of $1,650 as of June 30,1972.

At the trial below the Clarkes defended on several alternative grounds, including (a) that they were denied access to the premises because of road construction up to at least December of 1972; (b) that a part of the demised premises had been conveyed by Mr. Millison to the State Roads Commission after condemnation proceedings; and (c) that they, were induced to enter into the lease by misrepresentation. Mr. Millison moved for a directed verdict in his favor at the close of all the evidence but the motion was denied. The court gave detailed instructions to the jury including a summary of the evidence and defined the circumstances under which the jury might find the Clarkes answerable in money damages. Exceptions were taken by counsel for Mr. Millison to various aspects of the charge, not including the damages to which Mr. Millison would be entitled. At a bench conference concerning exceptions to the charge made by counsel for the Clarkes and relating to the damages claimed in the Clarkes’ counterclaim, appellant’s counsel at one point observed, “I think the damages are stipulated to in the amount of $11,650.” There was no request by appellant for an instruction that appellant’s damages had been so stipulated and, indeed, we find no such stipulation in the record.

As previously noted, the jury returned a verdict for Mr. Millison in the amount of $7,500. The foreman was questioned with respect to the counterclaim and announced that they had failed to consider it. Upon further deliberation, a verdict on the counterclaim was found in favor of Mr. Millison. In his motion for judgment n.o.v. Mr. Millison requested that the $7,500 judgment be set aside and judgment entered in his favor in the amount prayed in the bill, namely $11,650. On this appeal, he poses a single question:

“Did the trial court err in denying the Appellant’s Motion for Judgment N.O.V., because the undisputed evidence showed that the Appellant’s damages were in excess of the $7,500.00 verdict by the jury for the Appellant?”

II

In Cheek v. J. B. G. Properties, Inc., 28 Md. App. 29, 43, 344 A. 2d 180 (1975) we stated, “We find no authority for the use of the judgment n.o.v. to reduce the verdict of the jury.” Similarly, we find no authority for the proposition that a judgment n.o.v. may be used to increase a jury’s verdict. As stated by Chief Judge Brune in Havens v. Schaffer, 217 Md. 323, 325, 142 A. 2d 824 (1958), “If the verdict was inadequate, that could have served as the basis of a motion for a new trial... .” The propriety of a motion for new trial under such circumstances was also recognized in Camden Sewer Co. v. Mayor and Council of Salisbury, 170 Md. 352, 185 A. 126 (1936); Trombero v. McWilliams, 221 Md. 399, 157 A. 2d 801 (1960); Kujawa v. Baltimore Transit Co., 224 Md. 195, 167 A. 2d 96 (1961); 3 Poe, Pleading and Practice § 345 (6th ed. 1975); and 4 Sedgwick on Damages § 1368 (9th ed. 1920).

In his motion below Millison was, in effect, seeking an additur in the amount of $4,150. While this remedy appears not to have been recognized in Maryland, courts elsewhere which have accepted or rejected it have always done so with the understanding that, where the quantum of damages is in dispute, the grant of an additur is an alternative to a new trial and is contingent upon the defendant’s acquiescence in the augmentation of the verdict.

As stated by the Supreme Court of Louisiana, where additur and remittitur were statutorily created and are treated alike,

“As in the federal system, and other state systems, the procedure is connected with the procedures concerning new trials.... [I]t is only when the trial judge is of the opinion that a new trial should be ordered because the verdict is excessive or inadequate that remittitur or additur is available as a means of avoiding a new trial. ” [Emphasis added.] Miller v. Chicago Insurance Co., 320 So. 2d 134, 136 (La. 1975).

In permitting additur for the first time in Nevada, that state’s Supreme Court observed,

“It has been recognized in Nevada that our courts have the power to condition an order for a new trial on the plaintiffs acceptance of remittitur. [Citations omitted]. Our courts, however, have not heretofore had the power to condition an order for a new trial on acceptance of an additur. We believe . . . that they should have such power.” [Emphasis added.] Drummond v. Mid-West Growers Cooperative Corp., 542 P. 2d 198, 205 (Nev. 1975).

Assuming, without deciding, that such a motion could be made in Maryland, its utility in the present case would be nonexistent, since the quantum of damages is here subject to dispute. Quesnel v. Raleigh, 258 A. 2d 840 (Vt. 1969). The jury could, for example, reasonably have found that the Clarkes were denied access to the demised premises for a period of months, thus substantially reducing appellant’s claims for unpaid rentals. At all events, the Clarkes have not acquiesced.

We note further that even if appellant had, pursuant to Maryland Rule 563 (a) 3, conjoined with his motion a motion for a new trial, appellate courts in Maryland have traditionally been loath to disturb “the exercise of the lower court’s discretion in denying a motion for a new trial because of the inadequacy or excessiveness of damages.” Kirkpatrick v. Zimmerman, 257 Md. 215, 218, 262 A. 2d 531 (1970), cited in Carl M. Freeman Assoc., Inc. v. Murray, 18 Md. App. 419, 424, 306 A. 2d 548 (1973).

Judgment affirmed; costs to be paid by appellant.

      . Under Maryland Rule 1035 (a) 2 and (b) 3 we could on our own motion, dismiss the appeal.

      . See, Jehl v. Southern Pacific Co., 59 Cal. Rptr. 276 (S. Ct. 1967); McCall v. Waer, 487 S.W.2d 308 (Tenn. 1972).

      . See, Dimick v. Schiedt, 293 U. S. 474 (1935).

      . La. Code of Civil Pro. art. 1813.


author: Menchine, J.,

text:
    J. RUSSELL KING et al. v. JAMES P. GLEASON et al.
    [No. 857,
    September Term, 1975.]

      Decided June 28, 1976.

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

      Rex L. Sturm, with whom were Brown & Sturm on the brief, for appellants.

      Nathan J. Greenbaum, Assistant County Attorney, with whom were Richard S. McKemon, County Attorney, and Alfred H. Carter, Deputy County Attorney, on the brief, for appellees.
   Menchine, J.,

delivered the opinion of the Court.

J. Russell King (appellant) filed an action in the Circuit Court for Montgomery County seeking to enjoin the County Executive of Montgomery County from the acquisition of property known as “Landfill Site 30” and to enjoin the Montgomery County Council from including that site in the 1975 revision of the Montgomery County Ten Year Solid Waste Management Plan and to compel elimination of such site from that Plan “until and unless a public hearing is held upon the designation of the site.”

He contended that the statutorily required public notice as given in the subject case did not comply with law because publication of such notice failed to disclose with specificity the location of landfill sites proposed as solid waste acceptance facilities in the proposed comprehensive plan.

He maintained that Article 43, § 387C mandates: (a) that landfill sites must be designated with specificity in the required ten year proposed county plan dealing with solid waste disposal systems and solid waste acceptance facilities and (b) that any site thereafter added by the Montgomery County Council by amendment, permissively could be incorporated in the final plan only after notice and public hearing upon the proposed amendment prior to final passage. No constitutional due process issue is suggested.

The chancellor rejected both contentions. As to the first, he said: "... I find no expression of language or phrases that require the delineation of specific sites for public facilities which are to be a part of the system or a part of the plan....” As to the second, the chancellor found that the statute granted to the County Council “a broad discretion with respect to action subsequent to a hearing.” Acting in accordance with those conclusions the chancellor dismissed the bill of complaint. We shall affirm.

Section 387C is a lengthy, somewhat complex statute that, inter alia, imposes a duty upon every county of the State to prepare and to submit to the State Department of Health a comprehensive ten year plan (with annual revisions) “for the provision of adequate water supply systems and sewerage and solid waste disposal systems and solid waste acceptance facilities throughout the county....”

The statutory procedural requisites in the development of such plans in Montgomery County are set forth in subsection (b), par. 1 (III) and read as follows:

“In Montgomery County, the County Council shall have the responsibility for the approval of the plans and annual revisions of such plans for Montgomery County. The County Council shall prepare a statement of the objectives and policies to be achieved and implemented by the plans and which shall include any or all related aspects of planning, zoning, population estimates, engineering, economics and State, regional, municipal, local and area plans to be taken into consideration, included in, or noted by the plans. The County Council may make such annual revisions in its established objectives and policies as it deems necessary. The county executive shall have the responsibility for preparing the plans and annual revisions of plans for Montgomery County to achieve the objectives and policies established by the County Council. The Washington Suburban Sanitary Commission and the Maryland-National Capital Park and Planning Commission shall provide to the Council and county executive such information and assistance as may be reasonably required by either or both of them for their respective above-stated functions in the preparation, review and adoption of the plans and annual revisions thereof, with the procedures for the requests and for the transmittal of responses, including a reasonable timetable therefor, to be worked out among the county executive and the Council and the two commissions. The Sanitary Commission shall provide requested information as to engineering, design, present and future capacities, available service projections and fiscal elements of the water and sewerage plans and annual revisions thereof, and the Park and Planning Commission shall provide requested information as to population, growth projections, planning factors and other developmental criteria specified by the County Council or county executive. The county executive shall prepare and submit to the County Council a preliminary draft for its consideration, revisión, modification, comments and approval as a preliminary plan. The final plans or annual revision of plans shall be prepared by the county executive, conformable with the action of the Council in approving the preliminary drafts, taking into consideration significant intervening planning of development changes. The County Council shall hold a public hearing on the proposed final county plans and the annual revision thereof, ten days notice of which shall be given by one publication in a newspaper or newspapers of general circulation in Montgomery County.,[] At least thirty days prior to the date set for the public hearing, the Council shall transmit its proposed final plans to the Washington Suburban Sanitary Commission and the Maryland-National Capital Park and Planning Commission for their recommendations. After the respective public hearings, the Council shall review and amend as it sees fit and approve the proposed plans or annual revision. However, such approval shall not become final until ten days have expired during which time the county executive may review the plan and make whatever recommendations he may deem necessary or desirable for the Council’s consideration. Thereafter, the Council shall submit the plan or annual revision to the State Department of Health, all within the time requirements as elsewhere set forth in this section.” (Emphasis added.)

The proposed final plan for the 1974-84 decade did not pinpoint the landfill sites proposed for use during the period. It did, however, refer to an “Inventory of Potential Solid Waste Disposal Sites” that in turn included, inter alia, “Landfill Site 30” — the facility at'issue here.

Subsequent to the public hearing of November 14, 1973, the County Council at a session held on January 22,1974, by a five to two vote “accepted Councilwoman Garrott’s motion to amend the proposed Ten Year Solid Waste Management Plan, as follows:

“ ‘The County Council has approved Site 30, located in the northern part of the County, bounded on the northeast by I-70S, on the north by Md. 95, on the northwest by Shiloh Church Road for approximately 4,000 feet and on the southeast by Md. 121 for approximately 4,000 feet, and as more particularly described in “Volume 3, Solid Waste Management Ten Year Plan, July 1974 Disposal System, Inventory of Potential Solid Waste Disposal Sites.” The County Executive will select a specific site from the area (of Site 30) after a public hearing.’ ”

In the lower court appellant referred to a notice of public hearing relating to possible acquisition of seven landfill sites within Montgomery County, complaining that the notice did not include the subject tract. That hearing notice was not given pursuant to any requirement of Code Article 43, § 387C, it was given pursuant to the provisions of Section 20-37 of the Montgomery County Code of 1972 relating to land acquisition. Site 30 was not at that time envisioned for final acquisition. There was, however, a subsequent notice of public hearing for the acquisition of the subject tract under Section 20-37. Appellant attended the hearing and gave testimony.

In his brief, appellant asserts that “[§ 387C] requires that a final plan, including a designated site for a solid waste acceptance facility be developed and that a reasonable opportunity for public hearing be provided.” (Italics supplied.) He contends that such specificity is compelled by subsection (b) 1 (III) quoted supra; and by parts of three other subsections. The latter are: (b) 1 (I), (b) 3 (IX) and (X), and (b) 4 (iii), (iv), (v) and (vi) and read as follows:

“(b) Adoption of county plans; subsidiary plans; contents of plans.
1. (I) The governing body of each county shall, adopt and submit to the Department, a county plan dealing with water supply systems and sewerage systems no later than January 1, 1970, and a complete county plan dealing also with solid waste disposal systems and solid waste acceptance facilities no later than January 1, 1974; and that this plan deal with a systematic program for the collection and disposal of litter, refuse, or other solid wastes; and shall from time to time submit amendments or revisions of such plan, as it deems necessary or as may be required by the Department provided said governing body shall give notice to the principal elected official of any municipal corporation concerned, who shall be granted an opportunity to be heard with respect to such plans, amendments or revisions, and after said governing body has given reasonable opportunity for a public hearing to be held thereon.
3. In accordance with applicable regulations adopted by the State Board of Health and Mental Hygiene pursuant to subsection (c) of this section, each county plan shall delineate those areas where —
(IX) Community solid waste disposal systems must be provided.
(X) Community solid waste acceptance facilities must be provided for use by the residents of the community pending the installation of a programmed collection and transportation system.
4. In addition, every county plan shall —
(iii) Provide for adequate facilities for the treatment, recovery or disposal of solid wastes in a manner that is consistent with the laws of this State relating to air pollution, water pollution and land use;
(iv) Contain adequate information of the existing sewage treatment capacity within each drainage basin or sewage treatment plant service area within the county, the present level of use within each drainage basin and projections for use of sewage treatment plant capacity based upon outstanding building permits and subdivision plats, or, where the county does not have or is not utilizing subdivision authority, projections based upon zoning commitments.
(v) Delineate with all practical precision those portions of the county which community and multiuse water supply systems, community and multiuse sewerage systems and community solid waste disposal systems may reasonably be expected to serve within the succeeding ten-year period, and any portions in which the provision of such services is not reasonably foreseeable, taking into consideration all related aspects of planning, zoning, population estimates, engineering, and economics, and all State, regional, municipal and local plans;
(vi) Establish procedures for delineating and acquiring, on a time schedule pursuant to subsection 4 (v) above, necessary rights-of-way or easements for community water supply, community sewerage or community solid waste disposal systems or acceptance facilities.”

We find nothing in any of the cited subsections to justify appellant’s contention that the Legislature intended to require that the proposed ten year plan must delineate landfill sites with specificity. Nor does the entire § 387C indicate such legislative purpose.

We think that a ten year plan, in growing counties, negates the idea of specificity in site selection. We interpret the subject statute as intended to provide a plan permitting maximum flexibility in implementation by the county governing bodies.

We emphasize that § 387C (b) 1 (III), fully quoted in this opinion supra provides, inter alia: “After the respective public hearings, the Council shall review and amend as it sees fit and approve the proposed plans or annual revision. ” (Emphasis added.)

Where the legislative body possesses such broad powers to amend, there can be no doubt that, in the absence of statutory restrictions to the contrary, no further public notice and hearing is required. In Swarthmore Co. v. Kaestner, 258 Md. 517, 266 A. 2d 341 (1970), wherein public notice and hearings upon initially recommended zoning action were statutorily required, but the statute authorized “such changes or amendments therein as the county council may deem appropriate” it was said at 531-32 [348]:

“. . . after the expiration of such [initial] period of notice (20 days) the County Council may adopt the recommended regulations or maps but it may also make ‘such changes or amendments therein as the county council may deem appropriate.’ In short, the County Council need not follow the recommendations of the planning board and need not have any further or additional hearing in regard to the changes or amendments the County Council may see fit to make.” (Emphasis in original.)

See also: Hewitt v. Baltimore County, 220 Md. 48, 56, 151 A. 2d 144, 148-49 (1959).

The final plan ultimately adopted by the County Council in the exercise of its broad legislative power, is subject alone to the approval or disapproval of the State Department of Health. Section 387C, subsection (d).

In sum, we find in § 387C no statutory requirement for specificity as to landfill sites in the proposed comprehensive county plan nor for further public notice and hearing upon amendments made by the County Council. There is no allegation of other procedural deficiency in the adoption of the plan.

Dismissal of bill of complaint affirmed.

Costs to be paid by appellant.

      [1]. The following publications in newspapers of general circulation in Montgomery County were made:
      The Gaithersburg Gazette
      “SOLID WASTE MANAGEMENT PLAN HEARING
      WHEREAS, the General Assembly of Maryland has by Article 43, Section 387C of the Annotated Code of Maryland (1972 Cumulative Supplement) enacted that the governing body of each county shall adopt and submit to the Maryland State Department of Health and Mental Hygiene no later than January 1, 1974, a complete County plan dealing with solid waste disposal systems and solid waste acceptance facilities and a systematic program for the collection and disposal of litter, refuse, or other solid wastes, and shall from time to time submit amendments or revisions of such plan; and
      WHEREAS, for purposes of clarity it is noted that the above words and phrases are defined in the statute as follows:
      ‘Solid wastes’ means litter and all refuse materials, other than gaseous and liquid wastes, from all public and private establishments and residences, including shopping centers.
      ‘Solid waste disposal system’ means any system, whether publicly or privately owned, which provides scheduled or systematic collection of solid wastes and their transportation to and treatment or other disposition at a solid waste acceptance facility. A solid waste disposal system includes all solid waste acceptance facilities used in connection with the system.
      ‘Solid waste acceptance facility’ means any sanitary landfill, incinerator, transfer station or any other type plant the primary purpose of which is for the disposal, treatment or processing of solid wastes.
      ‘Litter’ means all rubbish, waste material, refuse, garbage, trash, debris, dead animals or other discarded materials of any kind and description; and
      WHEREAS, in accordance with the above cite statue, [sic] the County Executive has prepared and transmitted to the County Council a recommended document entitled ‘Ten Year Solid Waste Management Plan FYS 1975-1984, Montgomery County, Maryland’; and
      WHEREAS, prior to adoption by the County Council, a public hearing must be held on said plan after said governing body has given reasonable opportunity for a public hearing to be held thereon;
      NOW, THEREFORE, BE IT RESOLVED, by the County Council for Montgomery County, Maryland, that a public hearing will be held by the County Council on the proposed Ten Year Solid Waste Management Plan, FYS 1975-1984 on November 14, 1973 at 2 p.m. at the County office Building, Council Hearing Room, Rockville, Maryland; the hearing will recess at 6 p.m. and resume at 8 p.m.”
      The Montgomery County Sentinel
      “Notice of Public Hearing
      Notice is hereby given that the County Council for Montgomery County, Maryland will conduct a public hearing at 2:00 P.M., to recess at 6:00 P.M. and resume at 8:00 P.M. on Wednesday, November 14, 1973, in the Council Hearing Room, County Office Building, Rockville, Maryland, on the ‘Ten Year Solid Waste Management Plan, FY 1975-84, Montgomery County, Maryland’, as recommended by the County Executive in accordance with Article 43, Section 387C of the Annotated Code of Maryland (1972 Cumulative Supplement), to be submitted to the Maryland State Department of Health and Mental Hygiene no later than January 1, 1974, dealing with solid waste disposal systems and solid waste acceptance facilities and a systematic program for the collection and disposal of litter, refuse or other solid wastes.
      Persons wishing to testify are requested to call the Council Office, 279-1231, to place their names on the speakers list.”
      (Pursuant to such notices, a public hearing was conducted by the County Council on November 14,1973.)

      . Under subsection (c) 2 the governing body of a county has the right to appeal the action of the Department to the State Board of Health and Mental Hygiene.


author: Thompson, J.,

text:
    ORNDORFF & SPAID, INC. v. DEPARTMENT OF LICENSING AND REGULATION et al.
    [No. 936,
    September Term, 1975.]

      Decided June 28, 1976.

    The cause was argued before Thompson, Lowe and Mason, JJ.

      Ira J. Smotherman, Jr., with whom were Charles Yumkas, Max Stadfeld, Stokes & Shapiro and Blum, Yumkas, Mailman & Gutman on the brief, for appellant.

      Edward M. Ranier, Special Assistant Attorney General, with whom was Francis B. Burch,.Attorney General, on the brief, for appellees.
   Thompson, J.,

delivered the opinion of the Court.

Following an inspection of the job site of the appellant, Orndorff & Spaid, Inc., a roofing contractor, by the Division of Labor and Industry, pursuant to Md. Code, Art. 89, §§ 28-49A, a Citation and Notification of Proposed Penalty was issued charging appellant with a “serious” violation of the occupational safety and health regulations. This citation was contested before a hearing examiner and a $250.00 penalty was affirméd. The Commissioner of Labor and Industry affirmed the determination of the hearing examiner. The Circuit Court for Prince George’s County affirmed the determination of the Commissioner. We reverse.

The inspection of appellant’s work site, located at 7700 Riverdale Road, New Carrollton, Maryland, revealed eight employees working on a flat roof. At the north section of this roof, where there was a 20 foot drop to ground level, two employees were working approximately six to twelve inches from the edge of the roof. The outside perimeter of the roof was not protected by railings of any type.

The specific standard which the appellant was found to have violated, 29 C.F.R. 1926.500(d)(1) states:

“Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder....”

It is the appellant’s contention that this section is inapplicable to roofs. The hearing examiner and trial judge rejected this contention on the basis that the purpose of the Occupational Safety and Health Act is to assure as far as possible every working man and woman in the State of Maryland safe and healthful working conditions. Md. Code, Art. 89, § 28C. With this overall purpose in mind it was found to be inconceivable that the term “platform” would not include a flat roof.

While the Act is aimed at promoting safe working conditions, it is a primary rule of statutory construction that courts may not attempt under the guise of construction, to supply omissions or remedy possible defects in the statute, or to insert exceptions not made by the Legislature. Slate v. Zitomer, 275 Md. 534, 341 A. 2d 789 (1975). Obviously a similar rule applies in the construction of regulations which have the effect of law.

The terms “open-sided floor” and “roof” are not defined in the Act. In the general provision clause, § 1926.500(a) and the definitions of floor holes and floor openings, § 1926.502(a) & (b) the term “roof” is specifically inserted. The inclusion of the term “roof” in the general provision clause and in these definitions combined with its absence from the open-sided floor and platform provisions can only be construed as an intent to distinguish between a floor or platform and a roof and therefore exclude open-sided flat roofs from the requirement of safety railings. Diamond Roofing Co., Inc. v. Occupational Safety and Health Review Commission, 528 F. 2d 645 (5th Cir. 1976).

Additionally, § 1926.451(u)(3) deals specifically with protection for roof edges. That section provides:

“A catch platform shall be installed below the working area of roofs more than sixteen feet from the ground to eaves with a slope greater than four inches in twelve inches without a parapet. In width, the platform shall extend two feet beyond the protection of the eaves and shall be provided with a guard rail, midrail, and toeboard. This provision shall not apply where employees engaged in work upon such roofs are protected by a safety belt attached to a life line.” (emphasis supplied)

The fact that this section exempts roofs having slopes of less than four inches in twelve indicates that perimeter protection for flat roofs was not contemplated by the writers of the regulations. Langer Roofing & Sheet Metal, Inc. v. Secretary of Labor, 524 F. 2d 1337, 1339 (7th Cir. 1975).

It may well be that workers on flat roofs deserve perimeter protection; if so the Commissioner can promulgate regulations which clearly inform employers what they must provide to remedy these conditions. We hold that § 1926.500(d)(1) cannot be interpreted to require perimeter protection on flat roofs; therefore appellant cannot be found in violation of that section.

Judgment reversed.

Appellees to pay costs.

      . Adopted by the Commissioner of Labor and Industry March 8, 1973, effective July 1,1973.

      . § 1926.500 “(a) General Provisions. This subpart shall apply to temporary or emergency conditions where there is danger of employees or materials falling through floor, roof, or wall openings, or from stairways or runways.” (emphasis supplied)
      § 1926.502 “(a) ‘Floor hole’ — An opening measuring less than 12 inches but more than 1 inch in its least dimension in any floor, roof, or platform through which materials but not persons may fall, such as a belt hold, pipe opening or slot opening.”
      “(b) ‘Floor opening’ — An opening measuring 12 inches or more in its least dimension in any floor, roof, or platform through which persons may fall.”

      . § 1926.502 “(e) ‘Platform’ — A working space for persons, elevated above the surrounding floor or ground, such as a balcony or platform for the operation of machinery and equipment.”

      . The two federal cases cited are construing federal regulations identical with the Maryland regulations. We have found no other cases directly in point.


author: Orth, C. J.,

text:
    SAMUEL LEE ROYSTER v. STATE OF MARYLAND
    [No. 1088,
    September Term, 1975.]

      Decided June 29, 1976.

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

      Robert S. Sherman for appellant.

      Albert Gallatin Warfield, III, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and James Salkin, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

STATEMENT OF THE CASE

On 28 June 1975 Samuel Lee Royster was issued a traffic citation. It charged that he “did unlawfully violate Article 66V2, § 11-902” by “driving while intoxicated.” Prior to trial in the District Court he demanded a jury trial, and the case was transferred to the Criminal Court of Baltimore. He was arraigned on 17 August 1975 and prayed a trial by jury. Trial was set for 22 September. On that date the trial was postponed by “mutual agreement” and scheduled for 4 November. The transcript of the proceedings shows what transpired when the case came on for trial:

“MR. SALKIN [James Salkin, Esq. Assistant State’s Attorney]: At this time, Your Honor, the State will call the case of Samuel Royster as to driving while impaired, warrant number 47504115.
THE CLERK: Samuel Royster under warrant 47504115 the State of Maryland charges you with driving while impaired.
MR. SHERMAN [Robert Sherman, Esq., Defense Counsel]: The plea would be not guilty. The appearance of Robert Sherman entered.
THE COURT: He is not entitled to a jury trial.
MR. SHERMAN: I understand that because the State is only calling B although there is an A charge in this case.”

The trial proceeded without a jury. The verdict of the court was guilty. The sentence was 60 days in the Baltimore City Jail. Royster appealed.

ISSUE FOR DECISION

Royster does not challenge the propriety of the State’s prosecuting him under § 11-902 (b). Section 16-104 of Art. 66V2 provides:

“It shall be sufficient to charge any person with a violation of § 11-901 (reckless and negligent driving) and § 11-902 (driving while intoxicated, impaired or under the influence of drugs) and the court is empowered to make a finding under any subsection of either § 11-901 or § 11-902.”

The citation charged him with violating § 11-902 without designating a subsection, although it expressed the charge as “driving while intoxicated.” See Insley v. State, 31 Md. App. 46 (1976). He claims that he was unconstitutionally denied a jury trial. He presents the contention by asking:

“Is it a violation of due process of law to, in effect, deny a defendant a requested trial by jury by using the simple device of calling for trial a lesser included offense than that charged when said lesser offense carries a penalty not severe enough to warrant trial by jury?”

THE LAW

Courts Art. § 4-301 vests exclusive original jurisdiction in the District Court over certain designated crimes including those in which a person at least 16 years old is charged with violation of the motor vehicle laws. Section 4-302 sets out certain exceptions to this jurisdiction, including those in subsection (d) thereof, which provides:

“Jury trial. — (1) The District Court is deprived of jurisdiction if a defendant is entitled to and demands a jury trial at any time prior to trial in the District Court.
(2) A defendant may demand a jury trial in a criminal case if the penalty for the offense with which he is charged permits imprisonment for a period in excess of three months; the state may not demand a jury trial.”

Section 4-302 (e) provides, with certain exceptions not here applicable, that

“... the District Court does not have jurisdiction of an offense or offenses otherwise within the District Court’s jurisdiction if a person is charged with an offense or offenses arising from the same circumstances but not within the District Court’s jurisdiction. In this case, the circuit court for the. county has exclusive original jurisdiction over all the offenses.”

Driving while intoxicated, proscribed by Art. 6672, § 11-902 (a) is punishable upon conviction by imprisonment for not more than one year, or by fine of not more than $1,000 or both. Art. 6672, § 17-101 (b) (i)'. Driving while ability is impaired by the consumption of alcohol, proscribed by Art. 6672, § 11-902 (b), is punishable upon conviction by imprisonment for not more than two months or a fine of not more than $500, or both. Art. 66V2, § 17-101 (b) (ii). Because of the penalty authorized upon conviction under Art. 66V2, § 11-902 (a), Royster was entitled to demand a jury trial prior to trial in the District Court. His timely demand therefor divested the District Court of its jurisdiction with respect to both the offense under § 11-902 (a) and the offense under § 11-902 (b), and the Criminal Court of Baltimore properly acquired jurisdiction over the offenses, both arising from the same circumstances.

Royster’s question acquires a new dimension in the light of Thompson v. State, 278 Md. 41 (1976). Thompson tells us that the Criminal Court’s continuing jurisdiction over a case is not dependent upon an accused’s being prosecuted in that court for an offense punishable by more than three months imprisonment. The Court of Appeals expressly held that nothing in the provisions of § 4-302 or of any other statute or Maryland Rule indicated that the jurisdiction of the Criminal Court may be subsequently ousted by the State’s dropping an intoxicated driving charge and proceeding on a driving while impaired charge. 278 Md. at 48. More significantly, Thompson also held that a defendant once under the jurisdiction of the Criminal Court by reason of demand in the District Court for a jury trial was entitled to a trial by jury on any criminal charge, regardless of the sentence authorized, even though a jury trial was not constitutionally mandated. The right, the Court found, was under the common law. 278 Md. at 53.

DECISION

It is clear, in the light of Thompson, that Royster was entitled to the jury trial which he sought and that the denial of it was improper. Royster’s question, phrased without the benefit of Thompson, does not now precisely convey the issue. But the import of the issue is there and the answer is that the right to a jury trial is not lost in any event by the prosecution’s proceeding to trial on an offense which carries a penalty not severe enough to warrant a trial by jury under the federal constitution or existing statutes.

Of course, the right to a jury trial may be waived. As the right in the circumstances here does not have a constitutional source, the waiver need not meet constitutional standards. See Johnson v. Zerbst, 304 U. S. 458 (1938). But we see no effective waiver here under any criteria. The trial court precluded any consideration of the point by flatly stating: “He is not entitled to a jury trial.” If defense counsel appeared to agree, it was because both the court and counsel entertained that belief, pursuant to the decision of this Court in Thompson v. State, 26 Md. App. 442, decided 2 June 1975. The Court of Appeals on certiorari to this Court, tells us in its Thompson, supra, that all of us were wrong. See Howard v. State, 31 Md. App. 75 (1976).

As we reverse the judgment and remand for a new trial, there is no need to reach the claim that the evidence was not sufficient to sustain the conviction.

Judgment reversed; case remanded for a new trial; costs to be paid by the Mayor and City Council of Baltimore.

      . This is all according to the docket entries, Warrant Docket 1975, May Term, Number 47504115.

      . Code, Art. 66V2, § 11-902 makes it “unlawful for any person to drive or attempt to drive or to be in actual physical control of any vehicle within this' State while”, subsection (a) “he is in an intoxicated condition,” or subsection (b), “his driving ability is impaired by the consumption of alcohol.”

      . The docket entry reads: “Verdict: Guilty 902B (impaired).”

      . Royster was born 23 June 1935.

      . “Circuit court” includes the Criminal Court of Baltimore. Courts Art. § 4-101 (b).

      . Thompson left open the question of a right to a jury trial in the circuit court upon a de novo appeal from a District Court criminal conviction. 278 Md. at 53-54.

      . The constitutional right to a jury trial for a “petty" offense does not exist. See cases cited in Thompson, note 1 at 46. Thompson declared that Courts Art. § 4-302 (d) “concerns only the right to make a demand, in the District Court, for a jury trial. It has no application to the right to a jury trial for charges pending in the Criminal Court.” 278 Md. at 48.