author: Moylan, J.,

text:
    BURL ANDERSON HOWELL v. STATE OF MARYLAND
    [No. 598,
    September Term, 1980.]

      Decided March 4, 1981.

    The cause was argued before Moylan, Couch and Weant, JJ.

      Barbara Mello and Harold P. Dwin for appellant.

      Diane G. Goldsmith, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Donaldson B. Cole, Jr., State’s Attorney for Cecil County, and Paul S. Podolak, Assistant State’s Attorney for Cecil County, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

Advertently or inadvertently, a manipulative and obstructionist defendant maneuvered a trial judge into the treacherous waters between the Scylla of the Sixth Amendment’s right to counsel and the Charybdis of Rule 746’s 180-day mandate. The State’s Attorney’s Office was ready for trial at all times and did not contribute, even peripherally, to the predicament. The trial judge did not create the predicament. For reasons to be more fully explained, the predicament was exclusively the product of the defense, team —• the defendant and his then privately retained lawyer. When suddenly faced with an eleventh-hour crisis, the trial judge tried, nobly and patiently, to extricate the defendant, to the extent still possible, from the predicament. He inquired insistently as to what course the defendant wished him to steer, as to which of the two perils was to be avoided at all costs, if both could not be. For his part, the defendant stood blithely and opportunistically indifferent to whether the ship of State smashed upon the rocks of Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 2d 1461 (1938), or plunged into the maelstrom of State v. Hicks, 285 Md. 310, 403 A.2d 356 (1979). "Which peril would you have me avoid?,” the Captain implored. "I am saying nothing;” the passenger replied, "just make a mistake.” Our undergirding holding is that we simply will not reward such naked obstructionism. The legal reasoning merely elaborates that transcendent judgment.

The appellant, Burl Anderson Howell, was convicted by a Cecil County jury, presided over by Judge William B. Evans, of (1) murder in the second degree and (2) conspiracy to murder. Upon this appeal he raises three contentions:

1. That the trial judge abused his discretion in permitting the appellant’s retained counsel to withdraw his appearance three weeks before the trial was scheduled;
2. That a waiver of a right to the assistance of counsel may not be inferred from the refusal to accept a postponement of the trial even under circumstances where counsel could not be provided unless the trial was postponed; and
3. That since the appellant was compelled to surrender his right to the assistance of counsel in order to assert his speedy trial right, he should be entitled not simply to a reversal and remand but to the total dismissal of all charges against him.
As we prepare to address the three contentions individually, there is a common denominator observation to be made. There is a point, if an entire system of justice based upon the assumption of free will is to endure, that a criminal defendant, if competent, must be treated as a responsible adult agent and may fairly be required to make at times difficult choices and then to live with such choices. This is a first principle of any sane society.

PERMITTING THE WITHDRAWAL OF RETAINED COUNSEL

Maryland Rule 725 c 3, provides:

"If no other counsel has entered an appearance for the defendant, leave to withdraw may be granted only by order of court. The court may refuse leave to withdraw appearance if it would unduly delay the trial of the case, would be prejudicial to any of the parties, or otherwise would not be in the interest of justice. If leave is granted and the defendant is not represented, a summons or other writ shall be issued and served on defendant for his appearance before the court for proceedings pursuant to Rule 723 (Appearance — Provision for or Waiver of Counsel).”

The appellant was indicted on August 21, 1979, for both murder and conspiracy to murder. On August 23, Richard E. Jackson, Esquire, entered his appearance on the appellant’s behalf as privately retained defense counsel. On that day, therefore, the 180-day clock of Rule 746 began to tick. In the months that followed, preparations moved forward in due and unremarkable course toward a timely, mid-winter date at the trial table.

On August 24, the appellant was transferred to the Clifton T. Perkins State Hospital "for emergency treatment,” because the Cecil County Sheriff reported that the appellant was "a high suicide risk” and that the Sheriff did not have the facilities to cope with such a risk. In the meantime, appellant’s counsel requested discovery and on August 31, the State filed its answer. On September 19, appellant’s counsel moved to suppress physical evidence. On September 24, a plea of not guilty by reason of insanity was filed. On the same day, an election of trial by jury was made. On October 8, Clifton T. Perkins was ordered to evaluate the appellant’s sanity. The medical staff forwarded that evaluation to the court on January 7, 1980. On January 16, appellant’s counsel moved to reduce bond; a hearing was held on that motion the next day. A hearing on the suppression motion was scheduled for February 1, with the trial on the merits set for February 20. On January 30, the suppression hearing was postponed until February 15, at the request of the appellant.

To that point, 160 days into the 180-day countdown, no intimation had yet been given to either judge or prosecutor that all was not well within the defense camp. The alarm first clanged on January 30.

In open court on the morning of January 30, Mr. Jackson, the privately retained defense lawyer, announced that "there has been a significant change since our conference in chambers at the end of last week with Mr. Podolak [the Assistant State’s Attorney] and the Court and me.” Mr. Jackson informed the court that, through his conversations with another attorney, he "became aware of a potentially serious ethical problem with my continuing role as Mr. Howell’s attorney.” He pointed out that he would almost certainly be a witness at the suppression hearing and quite possibly at the trial. He pointed to Disciplinary Rule 5-102, mandating his withdrawal as counsel under such circumstances. He pointed out, furthermore, how he, in a bona fide effort to be as ethically correct as possible, had called the "Ethics Hotline number” provided by the Bar Association "to see if I could get a preliminary ruling, some guidance on the issue.” The Bar Association representative who received the call was unable to give a clear-cut answer but indicated that he thought there was a serious problem. Mr. Jackson was advised to write a letter to the Ethics Committee of the Bar Association, but was told that they would next meet in the middle of February. He told the court that he had filed such an inquiry.

In the meantime, however, the 180-day time period was continuing to run and Mr. Jackson realized that time was of the essence. He himself studied the disciplinary rule further and concluded that he was almost certainly going to be required to withdraw as counsel. If he waited, the withdrawal would come hours before the deadline, at best, rather than weeks before. He informed the court that he had contacted the Public Defender’s Office on the appellant’s behalf but was told by them that they would neither involve themselves in the case nor even entertain the application "so long as there is an attorney’s appearance in the case.” In that regard, Mr. Jackson pointed out, with full and commendable candor, that he had run into a secondary problem in terms of the inability of the appellant or his family to raise the full fee. He concluded from this that the appellant was now eligible, in terms of indigency, to be represented by the Public Defender’s Office. It was necessary, however, for his own appearance to be stricken before those other wheels could begin to turn.

He informed the court that there was an alternative, which was to postpone the case, quite probably beyond the 180-day limit, to await the arrival of the formal opinion from the Ethics Committee. Mr. Jackson then pointed out the impediment to this alternative that had just been erected by the appellant himself:

"As I told you in chambers on Friday, I was sure Mr. Howell would agree that he would see it was to his best interest to continue and get an attorney involved, either me or somebody else, who could go ahead and give him a vigorous defense. Ten-thirty last night Mr. Howell called me at home from the jail, told me that he had been talking with some other people whom he did not specify, and that he had changed his mind and would not come into court today and waive on the record his right to be tried within the 180 days. He’s, at this point, refusing to follow my advice in that regard, preferring to listen to other people, which is an additional problem.
But I want to make it clear to the Court that is Mr. Howell’s position. Frankly, Your Honor, 1 think it is going to be difficult, given the factors involved — and the main factor, of course, is the ethics problem — for Mr. Howell to get an adequate defense on or before February 20th.” (Emphasis supplied).

The appellant indicated unequivocally that he thought that "Mr. Jackson’s testimony is crucial” to his defense and that he fully agreed to the court’s allowing Mr. Jackson to strike his appearance as defense counsel. Even so, the court withheld its decision while it explored further the feasibility of getting substitute counsel aboard as soon as possible. The judge pointed out to the appellant that the Public Defender’s Office or some other defense lawyer appointed by the court would be operating under the same time constraints. The appellant was asked whom he would wish, if he had his choice, to represent him. On several occasions he mentioned the local public defender, Harry Goodrick. The morning conference was recessed to be reconvened that afternoon, so that the Public Defender’s Office could be contacted during the recess in order to expedite the process. By early afternoon, the court put its blessing upon preliminary conversations, on the subject of the appellant’s eligibility, between the appellant and the Public Defender’s Office, notwithstanding the fact that Mr. Jackson was still technically attorney of record. It was determined that the appellant was eligible for representation in terms of his indigency. Although no commitment was remotely made by the Public Defender’s Office to go to trial by February 20, that Office did accede to the court’s request to bypass the preliminary bureaucratic stages. In a council of war in open court involving the judge, the appellant, Mr. Jackson, the Public Defender’s Office and the State’s Attorney’s Office, it was agreed that summonses for the witnesses for the forthcoming suppression hearing would be issued immediately and that the list of witnesses and the files of Mr. Jackson would be turned over to the public defender. Throughout all of this, however, the judge and everyone else kept warning the appellant, repeatedly, that the February 20 deadline would probably be impossible to meet.

Only when all of this had been done, did Judge Evans permit Mr. Jackson to strike his appearance. The final and official colloquy went as follows:

"MR. JACKSON: Yes, sir, I do. I wish to say, also, for my own sake, first of all that at this moment,, still counsel of record for the Defendant, I have fully advised the Defendant as to the same things that this Court has advised the Defendant; that he probably could get a continuance and that not getting a continuance will probably be prejudicial to a new counsel defending him.
He takes the position he takes, now, notwithstanding my advice and direction, in contravention to my advice as his attorney. Having said that, I also wish to move at this time that my appearance be stricken on the basis of the problems that are in the record from our discussion this morning. Specifically, the ethics problem.
I have discussed this with Mr. Howell in advance. I discussed it last night, again this morning when he came over here and just a few moments ago when he came to Court.
THE COURT: Thank you, and the Court will permit you at this time to, there’s no objection to this, is there?
MR. HOWELL: Objection that he strikes himself?
THE COURT: Strikes his appearance?
MR. HOWELL: As my attorney?
THE COURT: Yes. There’s no objection. Let that be shown on the record. Your motion to withdraw as attorney in the case is granted as of this date.
MR. HOWELL: Your Honor, I have no objection that I have to have him as a witness rather than an attorney.
THE COURT: Well, that’s another matter. He will appear as a witness, is one way I’ve asked you, not as a witness, he will no longer have the control and the obligation to represent you in this case. That’s what you’re agreeing to, his withdrawal from this case as your attorney, is that correct?
MR. HOWELL: Yes, sir.
THE COURT: All right. Then, as I said before, your appearance will be stricken as attorney as of this time and the Court and the Clerk will so note it on the record.”

The correctness of this decision by Judge Evans is the first issue before us on this appeal. This decision was made on the afternoon of January 30, 1980. Its correctness can only be analyzed in the light of circumstances as they stood on the afternoon of January 30, 1980. We will not, indeed we may not, indulge in hindsight. It was necessary for the trial judge to make his decision then and, quite properly, he did so.

We hold that his decision to permit Mr. Jackson to strike his appearance was correct. The ethical considerations virtually compelled such a decision. In terms of the consequential problem thereby created, Judge Evans cannot be charged with clairvoyant foreknowledge that the appellant would continue in his obstructionism, apparently letting the advice of his "jail-house lawyers” override the strong and contrary advice from Mr. Jackson, from the Public Defender’s Office and from the trial judge himself. It was not unreasonable for Judge Evans to assume that if the Public Defender’s Office concluded that it could not be ready for trial within 20 days, it would prevail upon the appellant to postpone the trial long enough to allow for proper preparation. On this ruling, therefore, we hold that Judge Evans was not in error.

As of January 30,1980, moreover, the consequences of this ruling were locked into history as the new and then prevailing reality. The fact that Mr. Jackson, the privately retained former counsel, was officially and absolutely out of the case, was fait accompli as the next stage of the drama began to unfold. As we seek to compartmentalize cleanly the distinct issues before us, that irreversible departure of former counsel became part of the backdrop against which ensuing events will be viewed.

THE FAILURE TO ORDER A POSTPONEMENT OVER THE OBJECTION OF THE APPELLANT TO SUCH POSTPONEMENT

The appellant would frame this issue in terms of whether the trial judge denied him his constitutional right to the assistance of counsel. Such a framing of the issue would depart too far from reality. It was not the case that the trial judge denied the appellant the assistance of counsel; it was rather the case that the appellant, by his actions, denied himself the assistance of counsel. Appellate scrutiny of the trial judge, therefore, can be undertaken more accurately in terms of was the trial judge, sua sponte, sufficiently superhuman and sufficiently Solomon-like to protect the appellant from himself and, incidentally, to protect the trial process from the appellant’s deliberate effort to sabotage it.

Judge Evans recognized full well what the appellant wanted. He observed at one point, "[H]e wants to have the best part of two worlds.” He pointed out to the appellant the nature of the dilemma that the appellant was posing for the court:

"But you don’t want to continue with him, but you don’t want to extend the time. You’re trying to, it seems to me, somebody’s telling you that this is a mandatory rule and you’re going to get everything dropped from you because of this mix-up and the problem with your attorney.”

Judge Evans labored patiently to explain to the appellant the problem that a newly appointed attorney would have in getting adequately prepared for a serious murder case:

"How would you expect counsel to adequately prepare a case for you for trial, just bringing him in here at the last minute? He’s got to interview witnesses. One of the witnesses, apparently, from what I’ve heard today, one of the chief witnesses on your behalf, as far as the suppression hearing is concerned, is Mr. Jackson.”

The appellant persisted that since Mr. Jackson (his previously privately retained counsel) would be willing to turn over his paperwork to the successor attorney, that new attorney would not need much preparation time. The court pointed out other considerations:

"Well, you’ve got to find out, if I were to appoint an attorney, what this attorney’s schedules are, what his trial schedules are. I mean, he’s just, you want me to appoint an attorney that doesn’t have any clients, and the reason he doesn’t have any clients, if there are such attorneys around here, is because he’s not too competent, or just new, or green. ... So how do you expect this Court, and how would you expect any attorney to adequately represent you if he doesn’t have time to prepare the case?
A lawyer can’t come in here and just devote his entire time to this case because I appoint him. And he may have other things planned, he may want to be going on a vacation, and he may refuse the appointment. He doesn’t have to take it. I mean, I don’t know what information you’re getting. Maybe you think it’s some way — and I don’t really mean to accuse you of this — but it seems to me that the logical thing for your protection in the long run would be that you would get another attorney, that the attorney would have some opportunity to discuss the matter with you, go over the matter with you, review the case with Mr. Jackson, and try to prepare and defend you to the best of his ability.
But if, and I don’t — I think we can grant a postponement on this case beyond the time required because there’s a significant reason for doing so, to protect your rights. You can’t get an attorney in here in the next twenty days and prepare to defend you on a charge of murder. I certainly wouldn’t want my attorney to spend a little more than what time he’ll have in twenty days to come in on a case to represent me on a serious charge like this. If you think there’s somebody up in the jail’s been indicating to you that maybe you can whip outta this clear as a bell.”

It is certainly not the case that the appellant was not informed of the difficult decision that was rapidly approaching. Judge Evans explained again and again that two constitutional protections were on a collision course. The appellant’s apparent preference was for his right to a speedy trial:

"THE COURT: Well, I’ve gotta face certain things to see if your rights are protected at this time. And one of your rights, of course, is to have a speedy trial. Another right is to have the services of a competent attorney. And we’re running into a problem here because you don’t want to extend the time and you want to get an attorney to try to be prepared in the case, regardless of the suppression hearing, for trial, as I understand.
This case is twenty-one days, three weeks away. Now, we have two Constitutional rights that are running head-on into each other here. One, to have the adequate right of an attorney to represent you at all stages of the proceeding and, two, that you’re to have a speedy trial. And it’s just an unusual set of circumstances that we’re involved in that made these come together like a couple of rams fighting up on a mountain bank, they’re banging their heads together-.
MR. HOWELL: Your Honor, I have been in jail close to six months, and I think it’s far time that this case, you know —
THE COURT: We’re trying.
MR. HOWELL: — were tried.”

It was just after this colloquy that the appellant expressed his preference for Public Defender Harry Goodrick. The efforts, which we have already described in great detail, were then made to determine the appellant’s eligibility for representation by the Public Defender’s Office, to turn over the files of Mr. Jackson to the Public Defender, and to get the Public Defender into the case. Judge Evans went further. Over the luncheon break on January 30, he conferred with Judge H. Kenneth Mackey, the Administrative Judge for the County, and had himself, Judge Evans, designated by Judge Mackey as eligible to grant a postponement should one be requested. All of this was done with scrupulous attention to the niceties of Maryland Rule 746. Judge Evans gave the appellant fair warning that the Public Defender’s Office might not be ready to go by the appointed trial date of February 20, and that, in such a case, the appellant himself was going to have to make the difficult choice:

"This matter’s raised some rather serious questions, what we’re gonna do, and I have a responsibility to see that your Constitutional rights are protected as to a speedy trial, but also the other right that you’re entitled to counsel, and competent counsel, at all stages of the proceedings.
Right now, we’re in a conflict on this and it may well be that regardless of, well, I don’t know what we’ll do. You want to go ahead with the trial on the 20th, and it would be rather difficult for me to think that your case could be processed through the Public Defender’s Office and an attorney appointed for you and could go that fast. So, it’s really gonna be where you’re gonna have to make the selection.” (Emphasis supplied).

When the court reconvened on the afternoon of January 30, Judge Evans proceeded to give the appellant a short course on the mandatory nature of Rule 746, as interpreted by State v. Hicks. That discussion serves to state the issue now before us in proper terms. What we are coming to grips with is not the question of whether the appellant knowingly and voluntarily waived his right to assistance of counsel, but whether the appellant took any necessary step, required of him, to avoid the 180-day mandate of Rule 746. The court made it very clear that the State was not seeking a postponement. The court made it very clear that it was not for the judge to declare a postponement sua sponte. The court made it very clear, moreover, that it would rule in the appellant’s favor that he did indeed have "extraordinary cause” for a postponement should he seek one. The court also made it very clear that the burden was upon the appellant so to seek:

"[Y]ou are saying that you want to be tried within the 180 days as provided by Rule 746. And I would read to you from an opinion of the case that went down to the Court of Appeals, which was the State of Maryland against Harvey Robert Hicks, which is Number 130, September Term, 1979 Court of Appeals of Maryland and from the Court’s opinion in that case, on page eight, I would read to you for your benefit and information, 'That not only are the provisions of Rule 746 mandatory in application, but they are also binding upon the prosecutor and the defense alike. They are not mere guidelines or bench marks to be observed if convenient. ’
That’s what our Court of Appeals has said, so, the State in this case is not asking for any continuance of this case from the time it was scheduled for trial on the 20th day of February, 1980.
I would indicate that you would probably have sufficient cause, extraordinary reason to ask for a continuance of this case beyond the scheduled trial date of February the 20th because of the situation of your attorney and because of the need for you to get new counsel because your attorney, as I understand, is shortly, today, going to strike his appearance in this case and will not represent you further in this matter.” (Emphasis supplied).

In a Herculean effort to put the mandatory 180-day question as clearly as possible and to obtain an answer as clear as possible, Judge Evans labored on:

"I’m giving you the chance, now. I’m going to tell you what I’m going to do unless you ask me for a postponement. You’re going to get a continuance or a postponement of the show cause hearing until 1:30 p.m. on the 15th day of February, 1980. This motion to suppress will be held before Judge Mackey, here, in this Courtroom. Unless you request a postponement of the trial of this case, today, the trial, the case will be set for trial on the 20th day of February, 1980 as originally scheduled.
Now, 1 shall hear if you have any request for continuance at this time and I should say you do.
MR. HOWELL: I don’t have any continuance. I’m not going to ask for a continuance of the date of the trial.
THE COURT: You want to go to trial on the 20th of February on the merits, if the case ever reaches that stage, is that correct?
MR. HOWELL: Yes, sir.
THE COURT: All right, you will be granted that right and the trial will stand at that date. If you get new counsel in the case, what he might do or what he might require we’ll wait and see. He will be notified, of course, of your insistence of a trial date. We won’t close the door, but, as entirely on it, but right now, you have made an election and if there’s any postponement beyond the 20th, it’s going to be at your request and you’re going to do so; you’re going to waive the provision of Rule 746; you’re going to do it. The State is not going to do it. They are ready to go to trial and, as I told you and read to you, these laws are as binding on you as they are on the State. And I shall see it’s kept that way.”

The impending crisis hit on February 5. Judge Evans, the State’s Attorney, the Assistant State’s Attorney, the appellant, appellant’s former privately retained counsel and Public Defender Harry Goodrick were all present when Judge Evans brought to everyone’s attention the letter that had been sent to the appellant, dated February 2, from the District Public Defender, John W. Sause, Jr. That letter, after reciting fully the history of this case even as we have recited it, then informed the appellant that the Public Defender could not represent him unless he was willing to agree to a postponement beyond the 180-day meridian. It stated, in pertinent part:

"The charges themselves, while not novel, are not frequently encountered in criminal practice. The number of witnesses thus far disclosed by the State is certainly large; and there are no doubt many witnesses and potential witnesses in your behalf who should be contacted. The defense of insanity and the motion to suppress involve highly technical legal matters, requiring research and study, in addition to the factual preparation which will be required for those purposes.
The point need not be labored. It is enough to say, that it is as obvious to us, as it was to Judge Evans, that adequate preparation cannot be made in the time remaining between the date of your application and the dates of the hearing and trial. Under ordinary circumstances, we should seek a reasonable continuance of both proceedings; but it is our understanding that Judge Evans has already suggested this and you categorically refused to agree to any continuance. In so doing, you have precluded our accepting representation in your case.”

It went on to explain:

"[W]e cannot participate in proceedings which would at most give only an outward appearance that you were being provided the sort of defense to which you are entitled and which this Office always strives to provide. In our opinion, that would be a gross disservice not only to you, but to all who might in any way become involved in the proceedings — and to the criminal justice system itself.”

The appellant then effectively foreclosed any possibility of having Mr. Jackson, his former privately retained counsel, reappointed by the court. In answer to questions put by Judge Evans, he reiterated his belief that Mr. Jackson was a vital witness on the suppression issue, that it was his desire to call Mr. Jackson as a witness and that he fully agreed with the earlier decision to have Mr. Jackson withdraw from the case as his lawyer.

The court then made inquiry and learned from Mr. Goodrick that the Public Defender’s Office considered the appellant fully eligible for representation in terms of his indigency and, further, that they were still willing to undertake his defense, provided only that he agree to the necessary postponement.

In a dozen ways, for page after page, the court thrust and attempted to pin the appellant down to a clear choice:

"Now, I’ve brought you here today and if you, and I’m going to give you a chance to tell this Court whether you want to be tried on the 20th of the month or not tried.”
"Now, do you want the Public Defender to represent you in this case or, and do you want to have, agree to a postponement beyond 180 days, as set forth in the rule, so you can have an attorney who can be well prepared to represent you, both at the hearing on the motion to suppress and on the trial of this case? I wanna know your answer.”
* * *
"I’m not gonna play around with you anymore. I think you’re cute, I think you’re getting smart, and I think you think you’re gonna put the State over the barrel. The State’s ready to go to trial in this case. Unless you ask me today for a postponement, which you will be granted, both for the motion to suppress and the trial itself, these cases will go forward on the 15th, motion to suppress, and the trial on the 20th.
Now, this is your decision, not mine. You make it now or forever hold your peace... .”

In a dozen ways, for page after page, the appellant parried and adroitly dodged the choice:

"MR. HOWELL: Well, Your Honor, I’m not waiving my rights to counsel.
THE COURT: You say you’re not. Well then, do you want a postponement in this case?
MR. HOWELL: And I would like to have counsel appointed from the Public Defender’s Office, but I still want to be tried within 180 days.”
* * *
"MR. HOWELL: I, it appears, Your Honor, that you’re giving me the choice to either waive my rights to counsel and be tried in 180 days, or not waive my rights to counsel and ask for a postponement. And I don’t feel it’s a fair question.”
* * *
"MR. HOWELL: What I want, simply, is I would like to have counsel appointed from the Public Defender’s Office and I would like to be tried within 180 days.”

The very transcript exudes the guile and dexterity of this appellant:

"THE COURT: All right. Let me ask you this, just, this is merely supposition. Suppose I appointed you or got a top lawyer of the whole country, maybe, Lee Bailey, we’ll say, or somebody like that to represent you, or Edward Bennett Williams, in this case. And they said, well, man, we can’t prepare this case and be ready by the 15th on a suppression and the 20th, would you then decide that maybe it might be wise to extend the time, or would you still want to be tried by the 20th?
MR. HOWELL: Your Honor, I can’t answer that question without consulting with counsel, and I don’t have any counsel.
THE COURT: Suppose I appointed a lawyer for you today and he said, 'Look, boy, no way I can prepare this case, I think you’d better get a postponement.’ Would you come and ask the Court for a postponement?
MR. HOWELL: Your Honor, I feel that is an unfair question.
THE COURT: It’s not an unfair question.
MR. HOWELL: I don’t have counsel to consult with right now while I’m here.
THE COURT: Suppose counsel told you you needed additional time to prepare your defense, and I appointed counsel and brought him in and set him in the chair, and he said, 'We gotta have time to prepare this case.’ Would you say, 'Sorry, I want to be tried by the 20th?’
MR: HOWELL: Your Honor, I don’t think I should be asked to answer hypothetical questions.”

Exasperated at long last with the "Artful Dodger” and recognizing the futility of asking, "A or B?,” and receiving the inevitable reply, "Both,” Judge Evans raised the art of questioning to a more sophisticated plane where answering became unavoidable. The required answer was no longer posed in terms of, "Say 'A’ or say 'B’,” but in terms of, "Speak or do not speak.” Judge Evans effectively told the appellant, "If you say, 'postpone,’ I will grant the postponement. If you do not say, 'postpone,’ I will consider that to be an intelligent and voluntary waiver on your part of your right to the assistance of counsel. Speak or keep silent. You cannot avoid this choice.”

"I will treat that your conduct in this case and your stubbornness in this case as a waiver, and an intelligent waiver of your — I don’t think it’s too intelligent, but you are an intelligent person — of a waiver of your right to counsel in a serious case. And if you so waive it you will be tried here and you will represent yourself in this case..
Now, you have that decision to make.”
* * *
"You have one alternative, to ask for an extension of time in which you can be afforded adequate counsel to represent you, or you can say you don’t. If you don’t, I treat it as a waiver and you will be tried without counsel, be that right or wrong as far as my rights and your Constitutional rights.”

On the question of counsel, Judge Evans concluded:

"You said you don’t have to take an option. I’m saying you do.. . If you want to be tried within 180 days, then you’ll be tried in that, and I find that you have intelligently waived, by your conduct here, waived your right to counsel.”

We fully agree with Judge Evans. The appellant argues that the waiver provisions as spelled out federally by Johnson v. Zerbst, supra, and locally by Maryland Rule 719 c had not been complied with. Although by no means essential to our ultimate holding, we do not agree. A defendant may indicate his choice by his actions as well as by his words. Every advantage of having counsel and every disadvantage of proceeding to trial pro se were spread by Judge Evans across the face of this record with meticulous, if not tedious, reiteration. This appellant was demonstrably sensitive to the stakes of the game. The cunning employed was knowing and voluntary. The scenario, to be sure, was not garden-variety Rule 719 c, but, in the unique circumstances of this case, it was the functional equivalent. If on the morning of trial, a defendant should shoot the only lawyer in town, he has waived counsel in the most effective way possible and further dialogue about "relinquishment or abandonment of a known right” becomes idle. This was such a situation.

Once the appellant made the decision to go forward to trial within 180 days regardless of the consequences in terms of counsel, those consequences most assuredly ensued. He had his suppression hearing on February 15 on schedule. He had his trial on February 20 on schedule. He was not represented by counsel on either occasion, as he knew full well he would not be. This was no Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975), situation. The appellant did not wish to represent himself. Indeed, as part of his apparent strategy to create reversible error, he repeatedly disclaimed any competence to do anything at all. After every witness for the State appeared at the suppression hearing before Judge H. Kenneth Mackey, Judge Mackey asked the appellant if he wished to cross-examine. In a litany reminiscent of the later Frank Costello, the appellant religiously intoned that he was unable to decide whether to ask questions or not because he lacked the assistance of legal counsel.

When at trial he was asked whether he wanted a court trial or a jury trial, he disclaimed all ability to exercise a choice without the benefit of a lawyer. When Judge Evans laboriously explained his prerogative in exercising peremptory challenges on voir dire examination, the appellant disavowed any ability to exercise such choices without the advice of counsel. When the appellant was asked if he wished to call witnesses, he professed total ignorance as to whether to do so or not because he lacked the advice of counsel.

The appellant, however, was never under any illusion that this would not be the inevitable consequence of his adamant insistence upon being tried within 180 days. Indeed, even before the suppression hearing, he had yet another appearance before Judge Evans on February 7. In the course of the court’s assisting him to get summonses issued and to get prepared for the suppression hearing, the subject of speedy trial versus right to counsel recurred. Once again, Judge Evans implored the appellant to be reasonable and once again he was refused:

"[Y]ou have the key to the situation. All you have to do is turn the key and you will get effective legal representation. But you are not turning the key that will help you. You might be able to turn the key by granting, going ahead and let a postponement be made in this case. It might unlock the cell door that you’re in. But you’re determined, as I understand it, and you can verify, we’ll verify that again, that you are not gonna give one inch on postponing this trial. Now, is that correct?
MR. HOWELL: If you’re asking me if I will waive my rights to the fast or speedy trial, no, sir, I will not.”

Again and again, Judge Evans pointed out the consequences:

"You’re gonna have to do the best you can. That’s all I can say. You’re gonna have to do the best you can, and the best you can may not be good at all, so that’s your doing, it’s not the Court’s.
It’s by your insistence that your trial and your, be held by the 20th, the suppression hearing be disposed of by the 15th of this month. That is your doing, nobody else’s.”
"You’re your own defense lawyer as far as I’m concerned, and it’s a shame that you’re gonna, you’ve taken this position, but that’s the way you’ve done it.”
"You’re gonna be tried, you’re gonna have your hearing and you may not like it. You may just sit down and do nothing and forget it and say you’ve been denied effective use of counsel. . ..”

Even at that eleventh hour, Judge Evans reassured the appellant that the postponement in order to obtain counsel would be granted:

"And as I’ve told you a dozen times, if it comes down to you finally decide that maybe you want a postponement so we can get a defense attorney for you, I’ve told you, without question, you will get a postponement. So you don’t have to worry about that. That I would promise you.”

On February 14, the day before the suppression hearing, the appellant was back before Judge Evans in order to make his election as to court or jury trial. The problem of counsel versus speedy trial came up again. As clearly as words are capable of making it clear, the consequences of his recalcitrance were drummed into the appellant’s consciousness:

"THE COURT: Well, I tell you what’s going to happen. You’re going to get tried on the 20th. You are going to be allowed twenty strikes; the State will be allowed ten. We are going to bring about forty-five jurors to try you and you’re not going to get away with this by not taking any action.
You’re going to get tried one way or another on 20th because that’s what you wanted. You’ve been playing fast and loose with this Court all along and I’m sick of it. I can tell you that.
You’re going to have your, tomorrow, you are going to have your suppression hearing which is when you asked for it. You wanted a postponement to the 15th and you’re going to be tried on the [20th]. And if you don’t have a lawyer, that’s, that’s a matter that you are going to take up.”
"All you can give me is the old echo, T want a lawyer.’ Well, you’re not going to have a lawyer unless you get some, agree to the postponement of this case. • You won’t do that, which is your Constitutional right.”
"MR. HOWELL: Your Honor, I’m not going to act as my own counsel.
THE COURT: Well, then, you’re going to be tried in this case without counsel.”
"THE COURT: The State doesn’t expect anything. You have got a choice to make. You don’t want to make • a choice, as we talked a hundred times. You have made your mind up; you’re determined that you are going to get both your Constitutional rights, one to a speedy trial and one to the assistance of counsel, but you won’t give an inch and neither will the Court.”

On the day of the suppression hearing, Judge Mackey tried yet again to persuade the appellant to be reasonable:

"THE COURT: All right. All right. Now, I would advise you, Mr. Howell, that the form that you have as to your rights to an attorney apply equally today, and your right to a speedy trial, of course, applies today, and you are insisting upon a speedy trial.
I believe, I know that you’ve been advised by Judge Evans once, if not more often, that the Court would grant you a postponement of the trial if you wish one. All you have to do is indicate that you wish one. And you have steadfastly, I understand, refused to ask for a postponement. And since we’re under an obligation to try you within 180 days of your indictment — isn’t that the rule?
MR. PODOLAK: Yes, sir.
THE COURT: — the indictment, which was August 21, 1979, we have to try you by February 21st, or February 20th, the trial’s set for February 20th, as you know. Otherwise, there’s a possibility that you can ask to be set free and all charges against you would have to be dropped.
Now, for this reason we propose to try you for the offenses with which you’re charged on the 20th of February unless you ask for a postponement, in which case, of course, you would be willing to go beyond 180 days without having the charges dropped. But since you’re not, you won’t do that, why, we’ll go ahead.”

This appellant knew full well what he was doing. This appellant knew full well that trial without counsel was the unavoidable consequence of his insistence upon trial within 180 days. The choice was his. That he should not now be required to live with his choice would be unconscionable.

Waiver by the appellant, moreover, by word or deed, is beside the point. The issue is whether Judge Evans committed error in obeying the mandatory command of Rule 746. Trial without counsel was simply the inevitable and incidental consequence of the Rule’s precise rubrics, which are meant to be followed. Either party, of course, defendant or State, may seek dispensation from those mandatory provisions for "extraordinary cause” (now "good cause”) shown, but neither party did. The State did not need or wish a postponement. It was ready for trial at all times. Indeed, it went to trial within the time limit. The defendant not only did not seek a postponement but affirmatively disavowed any desire for postponement, even when the overwhelming advantages were explained to him by judge, privately retained counsel and public defender alike. Without a request by the State and over the express objection of the appellant, it would have been the height of rashness for Judge Evans to have ordered sua sponte, without any color of authority for such unilateral action in the terms of the Rule, that the mandatory provisions of that rule be disobeyed. If he had erred in that direction, on an admittedly close and difficult question, he would have inflicted upon the society he serves the extreme sanction of never being able to bring to the trial table one we now know to be a convicted murderer. That he did not take it upon himself, without any authority, to run so grave a risk is hardly reversible error. Judge Evans simply followed the Rule.

ENTITLEMENT OF THE APPELLANT TO TOTAL DISMISSAL OF CHARGES AND NOT JUST REVERSAL AND REMAND

Having decided the second issue as we have, it follows that if the appellant is not even entitled to reversal and remand, he thereby is not entitled to a total dismissal of all charges against him so as to bar retrial.

Judgments affirmed; costs to be paid by appellant.

      . Disciplinary Rule 5-102 (A) provides:
      "(A) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5-101 (B) (1) through (4).”
      None of the exceptions mentioned in DR 5-101 (B) are remotely applicable except (4), which provides:

        "(4) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case.”
      Disciplinary Rule 2-110 (C), dealing with the permissive withdrawal of a lawyer, points out that one of the situations where such withdrawal is appropriate is where:
      "(5) His client knowingly and freely assents to termination of his employment.”
      As we have pointed out repeatedly in this case, the appellant did knowingly and freely assent to the termination of employment. His privately retained counsel, moreover, fully complied with the steps set out in Disciplinary Rule 2-110 (A) (2):
      "(2) In any event, a lawyer shall not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including giving due notice to his client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with applicable laws and rules.”
      Ethical Consideration 5-9 appended as an annotation to the Disciplinary Rules, makes it clear that the avoidance, whenever feasible, of the advocate-witness conflict is not simply for the benefit of the client but also for the benefit both of the lawyer himself and of the opposing party, who is entitled to an objective witness free from the stimulus of advocacy:
      “EC 5-9 Occasionally a lawyer is called upon to decide in a particular case whether he will be a witness or an advocate. If a lawyer is both counsel and witness, he becomes more easily impeachable for interest and thus may be a less effective witness. Conversely, the opposing counsel may be handicapped in challenging the credibility of the lawyer when the lawyer also appears as an advocate in the case. An advocate who becomes a witness is in the unseemly and ineffective position of arguing his own credibility. The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively.” (Emphasis supplied).

      . It cannot be maintained that his uncounseled defense at the trial table proves, ipso facto, that his decision was unintelligent. From the strategic point of view of a defendant able to think two moves ahead (to appellate review) rather than one move ahead (to the trial table), the best defense, when there is little else to go with, may well be to present an inadequate defense inadequately rather than to present an inadequate defense adequately. The very fact that we are now much perplexed with a convoluted issue demonstrates the strategic wisdom of his choice. An adequately presented but unsuccessful defense yielding only a contention of evidentiary insufficiency would not perplex us at all. Was this appellant’s choice of strategies, therefore, unintelligent or was it rather intelligence at a more Byzantine level of subtlety? If appellate review, constrained to look no more than one chess move ahead, is pitted against opponents capable of thinking two chess moves ahead, it will always be outwitted. We cannot shut our eyes to the crude genius of the jailhouse bar.

      . Philosophers and jurisprudes might long and profoundly debate the question of which was the greater right and which was the lesser. It is no simple question. From the point of a defendant, it might be argued that the constitutional right to counsel is weightier than the sub-constitutional right to trial within 180 days. From the point of view of society, however, it might be argued that the sanction of dismissing the charges is weightier than that of simply remanding for a retrial and, therefore, the peril more to be avoided. Both points of view must be considered by an impartial judicial figure. We do not presume to answer the question; we only point out that there is no easy answer.


source: Caselaw Access Project

license: Public Domain

text:
    HENRY JOSEPH GOINS v. STATE OF MARYLAND
    [No. 849,
    September Term, 1980.]

      Decided March 4, 1981.

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

      Gary W. Christopher, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Maureen O’Ferrall, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, William R. Hymes, State’s Attorney for Howard County, and A. Gallatin Warfíeld, III, Assistant State’s Attorney for Howard County, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

A legal rule is not an end in itself but only a means toward an end. It is a working tool that is designed with a deliberate purpose to help achieve some desired goal. The service of the rule and the service of its animating purpose will, if it is wisely designed, coincide, in the vast majority of cases. Because no scheme fashioned by mortals can anticipate the infinite variety of human experience, however, there will inevitably be occasions when the blind adherence to a rule and the pursuit of its undergirding purpose are in opposition. On such rare occasions, there can be no doubt but that the service of the deeper purpose is paramount. To fail to recognize this is to cease to be judges and to become mere automatons. As Chief Judge Sobeloff observed for the Court of Appeals in Berry v. State, 202 Md. 62, 67, 95 A.2d 319, "An indispensable ingredient in judgment, in court as well as out of it, is a modicum of common sense.”

Such common sense dictates that we recognize at the outset that the appellant, Henry Joseph Goins, .was convicted by a Howard County jury, presided over by Judge J. Thomas Nissel, of very serious criminal behavior. He was convicted of rape in the first degree, of kidnapping, of armed robbery and of the use of a handgun in the commission of a felony. Judge Nissel saw: fit to impose three concurrent twelve-year sentences, along with a concurrent five-year sentence for the handgun violation. Upon this appeal, the appellant raises the single contention that he should have had all charges against him forever dismissed because his trial commenced on the 195th day following the appearance of his counsel, 15 days beyond the limit imposed by Maryland Rule 746. He iriakes this claim notwithstanding the fact that it was his own dereliction in allowing 72 days to lapse before filing his ¡plea of not guilty by reason of insanity that was the effective cause for not meeting the projected January, 1980, trial date that was well within the 180-day guideline.

As we begin our more detailed recitation, the wisdom of State v. Hicks, 285 Md. 310, 335, 403 A.2d 356, is our ever resounding leitmotif: j

"It would, in our judgment, be entirely inappropriate for the defendant to gain advantage from a violation of the rule when he was a party to that violation.”

The appellant committed his crimes on September 6,1979. He was charged on October 2 and the appearance of his counsel was entered. On that day, the sands of time, as measured by Maryland Rule 746, began to run. Those sands were due to run out on March 30,1980. In the meantime, the appellant petitioned for reverse waiver to the juvenile court, a hearing was held on that petition and the petition was denied. Trial on the merits was scheduled for January 30, 1980. On December 13, however, appellant’s counsel entered the plea of not guilty by reason of insanity, 72 days after his initial appearance. On December 21, the court made a timely referral of the appellant to the Department of Mental Hygiene. Notwithstanding the fact that Article 59, Section 26 (a) gives the Department 60 days after referral in which to forward a report of its findings to the court, the court ordered the Department to report its findings before February 8, hopefully expediting the process by some two weeks. Even if that optimal time schedule had been met, the inexorable course of events dictated that the appointed January 30 trial date would go by the boards, whether such non-event was formally noted or not.

The appellant, as a secondary but related theme to his argument, urges that the literal terms of Rule 746 b were not woodenly complied with:

"Upon motion of a party made in writing or in open court and for extraordinary cause shown, the county administrative judge or a judge designated by him may grant a change of trial date.”

It is enough to note with respect to the January 30 trial date that no trial, in fairness to the defense, could possibly have been held on that day. Everybody knew it and nobody showed up. That neither party, appellant or State, sought a formal obituary for the trial date and that no official words were spoken over its demise, are beside the point. A self-evident event needs no herald.

The central thrust of the appellant’s argument is that the trial did not occur within 180 days. The reason for this is quite apparent. On January 25, a letter was sent by the Clifton T. Perkins Hospital Center to Judge Guy J. Cicone, the County Administrative Judge, which stated in pertinent part:

"Unusually heavy demands from the Division of Correction and from the County detention centers for admission of psychiatrically ill patients for treatment have consumed our bed space. We find ourselves unable to schedule admissions within the specified time period. Therefore, an additional sixty days in which to complete the evaluation is respectfully requested. Should an extension not meet with your approval, please contact this office.”

Recognizing the reasonableness of the request and alluding to the "unusually heavy demands” mentioned in the Department’s request, Judge Cicone, on January 29, extended the time in which to file the report to April 8, 1980. That report was actually received by the court and logged in on April 10. Remarkably, the appellant’s trial commenced four days later on April 14.

The appellant does not question the fact that it was in his best interests to defer the trial until the report from Perkins had arrived. Indeed, the trial would have been a farce without such report. He does not question the fact that the necessary wait for that report constituted "extraordinary cause” for delaying the trial within the contemplation of Rule 746 as then written. He seeks rather a mechanical incantation of Rule 746 b. From that mechanistic coign of vantage, he lays down a broad enfilade of subcharges. He points out that the change in trial date just "grew like Topsy” and that nobody ever "granted” such change in so many words. Compounding that, he urges, no judge was ever "designated by” the County Administrative Judge to grant such a change and the County Administrative Judge himself never knowingly granted the change. In support of this he offered a stipulation from Judge Cicone that when Judge Cicone granted the 60-day extension of time to Clifton T. Perkins, Judge Cicone was dealing with that extension as a self-contained phenomenon and was not even thinking of any impact it might have on the 180-day requirement of Rule 746. The appellant urges yet further than even had an appropriate judicial figure knowingly granted a change of trial date, the Rule’s required predicate that such granting of change be "upon motion of a party made in writing or in open court,” had not been complied with.

If we were to apply that portion of the Rule perversely and mindlessly, as the appellant urges, it would frustrate rather than serve the very purpose that gave birth to it. It is never sufficient to ask, "What does the Rule say?” without making the more significant inquiry, "What was the Rule designed to accomplish?” Fortunately, ample guidance has been provided in that regard. As Chief Judge Murphy carefully pointed out in State v. Hicks, at 285 Md. 318:

"The provisions of Rule 746 are .. . binding upon the prosecution and defense alike. . . .”

The majority of the Court of Appeals in Hicks made it very clear that Rule 746, implementing Article 27, Section 591, is a two-way street. In discerning the legislative intent behind Section 591, the Court of Appeals observed that the vexatious problem the General Assembly sought to remedy was the general problem of trial delay, civil as well as criminal, and operating to the detriment of society and the State just as surely as it sometimes operated to the detriment of criminal defendants. It quoted with approval the words of the late Judge Powers in Guarnera v. State, 20 Md. App. 562, 318 A.2d 243, at pp. 316-317:

"Postponement of cases from dates scheduled for trial is one of the major factors contributing to delay in the administration of justice, civil as well as criminal. Courts and court supporting services spend substantial time 'spinning their wheels’, in rescheduling cases. Available court time is lost. The time of attorneys and witnesses is lost. Witnesses themselves are lost. Those who are not are put to severe inconvenience as well as actual loss, and end up in despair at the frustrations of being involved in the trial of a case in the courts. The very image of the judicial system is in serious jeopardy. Public confidence in the courts as instruments of the people is impaired.”

Most recently, Judge Wilner in State v. Lattisaw, Md. App. , A.2d (No. 883, September Term, 1980, filed on March 3, 1981), pointed out the even-handed purpose of Rule 746. He observed that although the dissent in Hicks had looked upon the Rule "primarily from the perspective of the defendant,” the majority "looked upon it more from a societal point of view, as a device to alleviate the problems caused to the criminal justice system by delays in initially scheduling cases for trial and by the inappropriate postponing of scheduled trial dates.” He went on:

"[T]he Rule was not intended solely to confer new rights upon defendants, but also to hold their feet to the fire. As the Constitutional balancing test under Barker v. Wingo, 407 U.S. 514 (1972), implies, and as this very case so clearly indicates, delays in trial are not always and exclusively attributable to prosecutorial laxity.”

As we now can perceive more clearly with the benefit of such guidance, Maryland Rule 746, under the special circumstances of this case, could have been most appropriately utilized not to protect the appellant from the delay-producing behavior of the State but rather to protect the State from the delay-producing behavior of the appellant. The State was ready for trial at all times. The State did not need to wait upon a report from Clifton T. Perkins; it was entitled to rely upon the universally recognized presumption of sanity. Indeed, it might well have been the State that could have protested the extension of time granted to Perkins or the resetting of the trial from January to April. The State might have urged upon the trial judge that the appellant had not shown "extraordinary cause” for delay because he had been lax in entering the insanity plea in the first instance. At the very least, the State might have insisted that the appellant go through the formality of requesting the postponement "in writing or in open court.” When it saw the purpose sought to be accomplished and the clear benefit to the appellant, the State, with commendable fairness, did not rigidly insist, as was its prerogative, that the appellant go through this idle exercise. That the State should now be pinioned for its fairness, however, is an outrageous suggestion. It was the State that was denied its right to a speedy trial by the appellant, and not vice versa.

When for the clear benefit of the defendant, Judge Cicone gave Clifton T. Perkins the time with which to evaluate the defendant’s competency and sanity, he granted the functional equivalent of a postponement, whether he knew he was granting it or not. At the time, no one knew better than defense counsel what impact this might have on the running of the 180 days and whether, if the insanity defense should prove viable, the delay was worth the candle. As Judge Wilner also pointed out in State v. Lattisaw, supra:

"Defense counsel presumably can count to 180 as well as prosecutors; they know when they entered their appearances — when the clock began to tick — and they can figure out when the time under the Rule expires.”

It may well be in this case that Article 27, Section 591, as implemented by Rule 746, and as interpreted by State v. Hicks, has been violated. If that be the case, it is clear that the appellant has been the violator and the State, his innocent victim. It is but to state the obvious to hold that the appellant will not be permitted to profit from his wrongdoing or, in the words of Hicks, "to gain advantage from a violation of the rule when he was a party fin this case the only party] to that violation.”

Judgments affirmed; costs to be paid by appellant.

      . Effective July 1, 1980, the phrase "good cause” was substituted for "extraordinary cause.”


author: Thompson, J.,

text:
    FRANK LUCAS INSURANCE AGENCY, INC. et al. v. FIREMAN’S FUND AMERICAN INSURANCE et al.
    [No. 616,
    September Term, 1980.]

      Decided March 5, 1981.

      The cause was argued before Thompson, Moylan and Melvin, JJ.

      M. Stanley Radcliffe for appellant Lucas Insurance, Inc. Robert C. Fowler, with whom were Arnold M. Weiner and Melnicove, Kaufman & Weiner, P.A. on the brief, for appellant Frank Lucas Insurance Agency, Inc.

      Amicus curiae brief submitted by Susan B. Orsher, J. Edward Davis and Weinberg & Green for Independent Insurance Agents of America, Inc.

      David M. Buffington and Thomas V. Monahan, with whom were Semmes, Bowen & Semmes on the brief, for appellees.
   Thompson, J.,

delivered the opinion of the Court.

On January 1, 1974, Frank Lucas Insurance Agency, Inc. and Lucas Insurance, Inc., appellants, entered into separate Agency Agreements with Fireman’s Fund American Insurance, et al., appellees. Due to unfavorable loss ratios, the appellees terminated the agreements effective December 1, 1978, pursuant to the termination provisions of the agreements. The appellants filed separate complaints with the Insurance Commissioner contesting the cancellations. The Commissioner found no violation of any statute in the cancellation of the agency agreements. The appellants appeal to the Baltimore City Court, which affirmed the Commissioner’s decision. The validity of the terminations is not at issue in the current proceedings. As required under Md. Ann. Code Art. 48A, § 234B (c), appellees renewed, through the appellants, policies which expired between December 1, 1978 and December 1, 1979. The present dispute arose with respect to renewals of policies made after December 1, 1979.

In the fall of 1979, appellees notified the appellants that they intended to send to the policyholders whose business had been written through the appellants a letter advising them of their rights with respect to renewal. The appellees contend this letter was designed to comply with Maryland statutes. The proposed letter read as follows:

"As your agent no longer represents the Fireman’s Fund Insurance Companies, the above captioned policy will not be renewed through that agency.
"We suggest that you contact your agent to seek replacement of coverage with another Insurer upon expiration of your policy.
"Maryland Statute states that no Insurer shall cancel or refuse to renew the policy of an Insured because of the termination of the agent’s or broker’s contract. You, therefore, have the option to continue your coverage with the Fireman’s Fund Insurance Companies by contacting another agency which represents us; or if you desire, we can issue coverage on a direct basis from our office.
"If we do not hear from you prior to the expiration date of the policy, we will assume you have replaced your coverage with another Insurer.”

The appellants objected to the letter being mailed to their customers and claimed that the agency agreements entitled them to commissions on policies originally placed by them and renewed by the appellants after December 1, 1979. These issues were argued before Assistant Insurance Commissioner Thomas Paul Raimondi, who held in favor of appellants. The appellees appealed to the Baltimore City Court. The court reversed the order of the Insurance Commissioner. It held that neither appellant was entitled to commissions on policies renewed after December 1,1979 and that appellees could send the proposed letter of notification to the policyholders.

Appellant, Frank Lucas Insurance Agency, Inc., now appeals from the holding that neither the Agency Agreement nor the Limited Agency Agreement entitle it to commissions on renewals effected pursuant to Md. Ann. Code Art. 48A, § 234A, i.e., occurring after December 1, 1979. Appellant, Lucas Insurance, Inc., appeals from the holding that the Agency Agreement does not entitle it to commissions on renewals effected pursuant to Art. 48A, § 234A and that the appellees are permitted to mail the notice letter to the policyholders. The appellants raise the following two questions: (1) Whether appellants are entitled to payment of commissions on policies produced by appellants prior to termination of the Agency Contracts but continued or renewed by appellees as required by statute; and (2) whether the letter which appellees undertook to send to policyholders is in violation of the Agency Contracts and misleading.

Before we undertake to discuss the questions presented we think it well to quote from the statute as to the standard of review for determinations made by the Insurance Commissioner. These standards are set out in Md. Ann. Code Art. 48A, § 40 (5):

"(5) Judgment. — The court may affirm the decision of the Commissioner or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the petitioners may have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(i) In violation of constitutional provisions; or
(ii) In excess of the statutory authority or jurisdiction of the Commissioner; or
(iii) Made upon unlawful procedure; or
(iv) Affected by other error of law; or
(v) Unsupported by competent, material, and substantial evidence in view of the entire record as submitted; or
(vi) Against the weight of competent, material and substantial evidence in view of the entire record, as submitted by the Commissioner and including de novo evidence taken in open court; or
(vii) Unsupported by the entire record, as submitted by the Commissioner and including de novo evidence taken in open court; or
(viii) Arbitrary or capricious.”

Md. Ann. Code Art. 48A, §§ 234A and 234B prohibit an insurance company from cancelling or refusing to renew a policy for reasons which are not reasonably related to the insurer’s economic and business purposes and specifically prohibit the refusal to renew because of the termination of the agent’s contract. The trial court found that the appellants’ rights to commissions on the policies here in question were governed by the following section of the Agency agreements:

"III. COMMISSIONS
(5) Agent shall have a vested interest in such commissions as are payable on contracts of insurance which contain a guaranty of renewal or which are continued by order of governmental authority, except where Agent is replaced as agent of record.”

It made a finding, which has not been disputed here, that none of the contracts contained a guaranty of renewal and that the question was therefore to be resolved by determining the meaning of the words "which are continued by order of governmental authority, except where the Agent is replaced as agent of record.” It found that the policies in question were neither "continued” nor were "by order of governmental authority” and that the Agent "was replaced as agent of record.” We disagree with each of these three findings. In making his ruling as to the meaning of the word "continue” the trial judge stated:

"I think that the closest call, if you will, among these three criteria involves the word 'continue.’ What is a policy which is continued? Even though it is a close question, it is the feeling of this Court that it is not synonymous with renewal. It is true that Appellee Lucas’ Exhibit 2 contains the words 'Continuation Notice’ on the top thereof; it is true that there were two expert witnesses who testified that the word 'continue’ and the word 'renew’ are synonymous. However, although these words may be synonymous in the trade I don’t think that is what is called for in the given contract. I think the terms of a particular contract take precedence over general trade custom, practice or usage.”

We think the trial judge was clearly erroneous in his fact finding because he disregarded the testimony of the insurance experts. The Court of Appeals, in Abuc Trading and Sales Corp. v. Jennings, 151 Md. 392, 415-16, 135 A. 166 (1926), stated:

"In Williston on Contracts, par. 607, it is said: 'The ultimate standard then in contracts of which a memorial has been made is the proper local meaning, under the surrounding circumstances, of the words or symbols agreed upon by the parties.’ And while one of the primary rules in the interpretation of a contract is that the common or normal meaning will be given to the words in which it ■ is expressed, yet if those words have locally a meaning different from that commonly or generally given to them, and were so understood by the parties, the local meaning will be accepted as controlling, and by local meaning is meant that which is peculiar to a locality, a trade, a profession and the like.”

The application of this principle to the precise question before the Court illustrates the error of the trial judge in the instant case:

"In the course of the trial a question arose as to whether the term 'scrap copper’ as used in the contract meant pure unalloyed copper, or whether it included all metals in which copper appeared as a basic element. In connection with that question the appellee, who was qualified to answer the question, was asked to state the difference between brass and copper. An objection to that question was overruled and that ruling is the subject of the first exception. The witness, in answer to that question, said that in the trade all compounded metals which depended on copper for their base were known as copper, and that in classifying the metals on 'these boats the expression copper metals was from habit in the trade, and with full understanding of both parties, intended to cover all the metals which contained any percentage of copper, without designating any particular metals as showing certain percentage of the copper base.’ ” Id. at 415.

For a more recent statement of this doctrine, see Truck Insurance Exchange v. Marks Rentals, Inc., 288 Md. 428, 434, 418 A.2d 1187 (1980). The appellees point to a number of cases which have drawn a distinction between the words 'continued’ and 'renewed.’ We do not think those cases are apposite. Here the question is: what does the insurance industry mean by the use of those words? The testimony was undisputed that in the industry the terms are used interchangeably.

The trial court held and the appellees argue that a statute is not an "order by governmental authority.” We do not agree. If the appellees were correct, the result reached in this case would depend upon whether or not the insurer voluntarily carried out the statutory duty to continue the policies or waited until ordered to do so by some court or administrative agency. Whether or not the appellants are entitled to commissions should not be governed by any such construction. This alone is sufficient to distinguish this case from many others cited by the appellees in which courts have drawn a distinction between statutes and orders. We see no point in reviewing such cases in detail. It will suffice to say that in none of them would such a result as granting commissions be based upon whether or not the insurance company voluntarily continued or renewed policies or waited for an administrative or judicial order to do so. "An interpretation that is fair and reasonable is preferred to one which leads to an unreasonable result.” Stanbalt Realty Co. v. Commercial Credit Corp., 42 Md. App. 538, 545, 401 A.2d 1043 (1979). See also, Cadem v. Nanna, 243 Md. 536, 221 A.2d 703 (1966) and City of Baltimore v. Industrial Electronics, Inc., 230 Md. 224, 186 A.2d 469 (1962).

The trial judge likewise ruled that the agent had been replaced within the meaning of the contract words "except where Agent is replaced as agent of record.” Our query is: replaced by whom? The commissions claimed here are exclusively on policies where a new agent has not been named. If the termination of the Agency Agreement automatically resulted in replacement of the agent, then the language of the contract giving the terminated agent certain vested rights in renewal commissions would be meaningless. Under the cases cited above, we cannot accept such an interpretation of the agreement.

It is obvious under Md. Ann. Code Art. 48, §§ 234A and 234B, heretofore quoted, that policyholders are not to be required to take action in order for their coverage to be continued. It is well within the authority of the insurance commissioner to prohibit the company from mailing the insurer’s statement that policyholders would be presumed to have replaced their insurance in the absence of affirmative word to the contrary.

Judgment reversed.

Case remanded for passage of order in conformity with this opinion.

Costs to be paid by appellees.

      . When the agency agreements were terminated on December 1, 1978, this appellant entered into a one year limited agency agreement with the appellees. This agreement was for the period during which appellees were required, under § 234B (c) to renew policies through the appellants.

      . "§ 234A. Unfairness or discrimination in underwriting.

      (a) No insurer, agent or broker shall cancel or refuse to underwrite or renew a particular insurance risk or class of risk for any reason based in whole or in part upon race, color, creed, sex, or blindness of an applicant or policyholder or for any arbitrary, capricious, or unfairly discriminatory reason. In the case of a cancellation of or refusal to renew a policy, provided the insured requests of the Commissioner that a review be undertaken of the insurer’s action prior to the effective date of termination of the policy, and provided the Commissioner initiates action toward issuance of a finding in accord with § 234C, such policy shall remain in effect until such finding is issued. No insurer, agent or broker may cancel or refuse to underwrite or renew a particular insurance risk or class of risk except by the application of standards which are reasonably related to the insurer’s economic and business purposes. At any hearing to determine whether there has been a violation of this section, the burden of persuasion shall be upon the insurer to demonstrate that the cancellation, or refusal to underwrite or renew is justified under the standards so demonstrated.”
      “§ 234B. Cancellation of written agreement with broker or agent or refusal to accept business.

      (a) No insurer may cancel a written agreement with a broker or agent with respect to insurance or. refuse to accept insurance business from such broker or agent unless it complies with the provisions of this section.
      (b) If an insurer intends to cancel a written agreement with an agent or broker, or intends to refuse any class of renewal business from the agent or broker, the insurer shall give the agent or broker not less than 90 days written notice. Notwithstanding any provision of the agreement to the contrary, the insurer shall continue for not less than one year after termination of the agency agreement to renew through the agent or broker any of the policies which have not been replaced with other insurers as expirations occur. This subsection shall not apply to: (1) agents or brokers or policies of a company or group of companies represented by agents or brokers who by contractual agreement represent only that company or group of companies if the business is owned by the company or group of companies and the cancellation of any contractual agreement does not result in the cancellation or refusal to renew any policies of insurance; or, (2) life, health, surety, wet marine and title insurance policies.
      (c) No insurer shall cancel or refuse to renew the policy of the insured because of the termination of the agent’s or broker’s contract.
      (d) Notwithstanding any other provisions of this section, no insurer may cancel or amend a written agreement with an agent, or broker, or refuse to accept business from such agent or broker if the cancellation or amendment is arbitrary, capricious, unfair, discriminatory, or based in whole or part upon the race, creed, color, sex, religion, national origin, place of residency of the agent or broker, his applicants or policyholders.”

      . The appellees’ motion to strike the brief of the amicus curiae is denied.


text:
    SUPERVISOR OF ASSESSMENTS OF WICOMICO COUNTY v. VESTRY OF SALISBURY PARISH CORPORATION
    [No. 644,
    September Term, 1980.]

      Decided March 5, 1981.

      The cause was argued before Thompson and Lowe, JJ., and Charles E. Orth, Jr., Associate Judge of the Court of Appeals (retired), specially assigned.

      Peter W. Taliaferro, Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellant.
    No brief or appearance by appellee.
   Thompson, J.,

delivered the opinion of the Court.

The Supervisor of Assessments of Wicomico County, the appellant, appeals from an order of the Circuit Court for Wicomico County which affirmed, without an opinion, an order of the Maryland Tax Court holding that certain real property, hereinafter described, owned by the Vestry of Salisbury Parish Corporation, the appellee, was exempt from taxation. The order of the Tax Court in turn affirmed the decision of the Property Tax Assessment Appeal Board for Wicomico County which held that the subject property was exempt from taxation under Md. Ann. Code Art. 81, § 9 (d), which provided that the following were exempt:

"Property owned by persons or religious groups and actually used exclusively for the burial of dead persons, and property owned by a cemetery or mausoleum company and used for the burial of dead persons which company is not operated for pecuniary profit and which does not accumulate profits for any purpose other than the maintenance or improvement of the property.”

Under Art. 81, § 229 (o), the "circuit court ... shall affirm the Tax Court order if it is not erroneous as a matter of law and if it is supported by substantial evidence appearing in the record.” See, Comptroller v. Diebold, Inc., 279 Md. 401, 407, 369 A.2d 77 (1977); Comptroller v. Machiz, 42 Md. App. 218, 225, 399 A.2d 946 (1979).

The relevant facts are those presented at the hearing before the Tax Court. See, Md. Ann. Code Art. 81, § 229 (o). Although the appellee was advised prior to the hearing that the Tax Court, in making its decision, would consider only the evidence presented before it and that, if the appellee did not appear, all the evidence favorable to the appellee might not find its way into the record, the appellee chose not to appear at the hearing. As a result, the only evidence presented was that submitted by the appellant; that evidence showed that the subject property was a parcel of land of approximately 1 acre, improved by a two story house, which was located contiguously to a cemetery owned by the appellee and which was used as the residence of the cemetery caretaker. There was no evidence that any burial had occurred on the subject property or that any was contemplated. There was no evidence in the record which showed the subject property was used in any way as a part of the cemetery.

We see no evidence which would allow the Tax Court to find the subject property was used "for the burial of dead persons.” The evidence showed only that the subject property was located next to the cemetery and was the residence of the cemetery caretaker. It was insufficient for the Tax Court to reasonably conclude that the property was within the exemption, which must be strictly construed. Md. Ann. Code Art. 81, § 9 (a). We find that the court erred in affirming the Tax Court decision.

The appellant’s brief contains the following:

"It is conceded that the functions of the caretaker are to maintain the cemetery grounds, to guard the cemetery against vandals, and to help people locate gravesites. A garage on the subject property is used to store lawn mowers and other maintenance equipment.”

This concession in no way alters our decision. Had the facts now conceded by the appellant been stipulated to or introduced into evidence before the Tax Court, we would view the question before us as being closer. These facts, however, were not before the Tax Court, formed no part of the record, and have no bearing on the question of whether the Circuit Court for Wicomico County erred in affirming the order of the Tax Court. We decline to accept the stipulation because it was not before the Tax Court. Cf., Peddicord v. Franklin, 270 Md. 164, 175, 310 A.2d 561 (1973) ("[TJrial court, on its own motion, may decline to accept a stipulation when it finds that a fact set up in the stipulation is untrue.”); Baltimore County v. Smith, 47 Md. App. 237, 422 A.2d 73, 75 (1980) (On appeal stipulations of fact rejected where independent examination revealed them to be unsupported in record). See also, Anderson v. State, 282 Md. 701, 703 n.1, 387 A.2d 281 (1978).

Judgment reversed.

Appellee to pay the costs.

      . See, Art. 81, § 12F-9 which now provides as follows:
      "The local governing body, by ordinance or resolution, may grant a credit against local real property taxation for any improvement located on the site of property that is exempt under subsection (d) of § 9 of this article, if the improvement is used as a dwelling by an employee of the owner of the exempt property.”

      . We do not indicate what our decision would have been had these facts been part of the record before the Tax Court. Although these facts were, alleged in the Tax Court, they were neither proven nor admitted.


text:
    JOHN C. SMITH, Individually, and Trading as United Carpet Brokers v. THE HEARST CORPORATION, THE NEWS-AMERICAN DIVISION
    [No. 654,
    September Term, 1980.]

      Decided March 5, 1981.

    The cause was argued before Moylan, Melvin and MacDaniel, JJ.

      Alan R. Engel, with whom were Robert Allen Sapero and Sapero & Sapero on the brief, for appellant.

      Edward S. Harris, with whom were Sagner, Steven & Harris on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

Judicial notice of a fact is an acceptable substitute for formal proof of such fact, when formal proof is clearly unnecessary to enhance the accuracy of the fact-finding process. Dean McCormick set out the general principles in his Law of Evidence (First Edition, 1954), Section 323, "The Need for and the Effect of Judicial Notice,” pp. 687-688:

"The principal effect of the use of the doctrine of judicial notice is to excuse the party having the burden of establishing a fact from the necessity of producing formal proof of the fact by sworn witnesses and authenticated documents or objective evidence. ...
The requirement of formal proof by witnesses and documents under the restrictions of the preferential and exclusionary rules has thus far been assumed to be justified generally for the ascertainment of facts at judicial trials. But in some situations this cumbrous process of formal proof is plainly not needed at all. In other situations compliance with the process might conceivably give some enhanced accuracy, but the added assurance would be marginal and clearly not worth what it would cost.
What are these situations? First, where the fact in question in known at once with certainty by all the reasonably intelligent people in the community without the need of resorting to any evidential data at all.”

Although there are a number of categories of things of which judicial notice may be taken, the category that concerns us here is that of facts which are a matter of common knowledge. Again, Dean McCormick is instructive at Section 324, "Matters of Common Knowledge,” pp. 689-690:

"The oldest and plainest ground for judicial notice is that the fact is so commonly known in the community as to make it unprofitable to require proof, and so certainly known as to make it indisputable among reasonable men. Though this basis for notice is sometimes loosely described as universal knowledge, manifestly this could not be taken literally and the modern opinions, more reasonably, speak in terms of the knowledge of 'most men,’ or of 'what well-informed persons generally know,’ or 'the knowledge of that every intelligent person has.’ These phrases progressively widen the circle of facts within 'common knowledge.’ Moveover, though usually facts of 'common knowledge’ will be generally known throughout the country, it is sufficient as a basis for judicial notice that they be known in the local community where the trial court sits.” (Emphasis supplied).

Bringing this body of evidentiary law to bear upon the single, narrow issue before us, the trial court in question was Judge John E. Raine, Jr., sitting without a jury in the Circuit Court for Baltimore County. The local community in question was the Baltimore metropolitan area. The fact of common knowledge of which Judge Raine took judicial notice is that The Baltimore News-American is a Hearst newspaper.

Beyond this single fact, the merits are not in dispute. The appellant, John C. Smith, individually and trading as United Carpet Brokers (Smith), was the defendant below in a simple suit on a contract. The plaintiff below is the appellee, the Hearst Corporation, The News-American Division (Hearst). On April 4,1976, Smith entered into a written advertising agreement with Hearst for 13 weeks of advertising copy, supplemented by a verbal agreement between the parties for two additional months of advertising. Hearst ultimately sued Smith for an unpaid balance due on the contract of $6,851.80. Hearst presented its case before Judge Raine in a court trial. After the denial of his motion for a directed verdict at the end of the plaintiffs case, Smith presented no defense. Judge Raine entered a judgment in favor of Hearst for the amount claimed. The appellant’s only contention is that Judge Raine erroneously denied his motion for a directed verdict because of the failure of the plaintiff to establish a connection between The Baltimore News-American and the Hearst Corporation.

To be sure, the contracts which were introduced in evidence bore the name of The News-American and made no reference to the Hearst Corporation. The two witnesses who were called by Hearst testified preliminarily as to the official positions they held with The Baltimore News-American and made no direct reference to the Hearst Corporation. The initial declaration and all subsequent pleadings, however, were brought in the name of "The Hearst Corporation, a body corporate, The News-American Division.” In making his argument for a directed verdict, the appellant did not question the fact that he owed money on the contracts but argued that no proof had been adduced to establish that the plaintiff Hearst Corporation was a party to the contracts. Judge Raine responded to the motion:

"I can take judicial notice, I believe, of what everybody generally knows, to wit: that the News American is a division of the Hearst Corporation.”

A few minutes later, in rendering his formal judgment, Judge Raine reiterated:

"Judgment is entered for the Plaintiff for $6,851.80, the amount claimed. It is true, Mr. Sapero, that the testimony referred to the News American, but the suit is brought by the News American, Division of the Hearst Corporation, a body corporate, and I think that it is an insubstantial objection to the fact that there wasn’t any reference to the Hearst Corporation.
I think I can take judicial notice of what everybody in this general area knows, and that is that the News American is a division of the Hearst Corporation.”

In IX Wigmore on Evidence (Third Edition, 1940), Section 2580, "Notorious Miscellaneous Facts: (1) Commerce, Industry, History, Natural Science, etc.,” pp. 571-572, Dean Wigmore explains the guidelines that should animate our consideration of judicial notice of this variety:

"Applying the general principle, especially in regard to the element of notoriousness, Courts are found noticing, from time to time, a varied array of unquestionable facts, ranging throughout the data of commerce, industry, history, and natural science. It is unprofitable, as well as impracticable, to seek to connect these rulings by generalities and distinctions; for the notoriousness of a truth varies much with differences of period and of place. It is even erroneous, in many if not in most instances, to regard them as precedents. It is the spirit and example of the rulings, rather than their precise tenor, that is to be useful in guidance.”

In Section 2583, "Future of the Doctrine of Judicial Notice,” Dean Wigmore points out hopefully that the doctrine "contains the kernel of great possibilities, as yet not used, for improving trial procedure” and laments "the judicial unreadiness to use boldly this principle.” To illustrate the general truth involved, he refers to the well-publicized 1908-1909 exchange of correspondence that swirled about the case of People v. Schmitz, 94 P. 419 (Cal.), including his own letter to the San Francisco Liberator of January 30, 1909, cited at p. 584:

"Their [rules of judicial notice] essential and sole purpose is to relieve the party from proof, — that is, from proof of facts which are so notorious as not to need proof. When a party has not averred or evidenced a fact which later turns out, in the Supreme Court’s opinion, to be vital, the rule of judicial notice helps out the judge by permitting him to take the fact as true, where it is one so notorious that evidence of it would have been superfluous. Now these helping rules are not intended to bind him, but the contrary, i.e., to make him free to take the fact as proved where he knows the proof was not needed. Moreover, it follows, since these rules cannot foresee every case new times and new conditions will create, that they can always receive new applications. The precedents of former judges, in noticing specific facts, do not restrict present judges from noticing new facts, provided only that the new fact is notorious to all the community. For example, the unquestioned election of William H. Taft as President of the United States is notorious; but no man named William H. Taft has ever before been elected President, and no judicial precedent has noticed the fact. Yet no Court would hesitate to notice this new notorious fact. ...
If, then, a man named Schmitz was notoriously Mayor of San Francisco, and a man named Ruef was notoriously its political boss, at the time in question, that is all that any Court needs; and the doctrine of judicial notice gives it all the liberty it needs.”

The limited thrust of Maryland appellate discussion of this principle points in the same direction. Macht v. Hecht Co., 191 Md. 98, 102, 59 A.2d 754, 756 (1948); Hettleman v. Frank, 136 Md. 351, 110 A. 715 (1920). In the related context of noticing geographically street names in Baltimore City, the Court of Appeals said in Dean v. State, 205 Md. 274, 281, 107 A.2d 88 (1954):

"We think that there is no reason why a judge sitting in Baltimore City should have to close his mind to the fact which is well known in that community, that there are streets in the City known, respectively, as Monument Street, Bond Street, 20th Street, 21st Street and Eden Street.”

By the same token, we think "that there is no reason why” Judge Raine "should have to close his mind to the fact which is well known in [his] community,” that The Baltimore News-American is a Hearst paper. The appellant was fully apprised that Judge Raine took such judicial notice. If the appellant believed that the facts so noticed were not true, he was entitled to offer argument or authority to the contrary. It is clear even now that the appellant does not dispute the truth of the thing noticed but challenges only the process of noticing.

Appellate review of judicial notice of a fact from the store of common knowledge is governed by the clearly erroneous standard of Maryland Rule 1086. We are by no means suggesting that Judge Raine would have been clearly wrong if he had declined to take notice of the fact now in issue. We are simply holding that he was not clearly wrong when he did so notice. The principle that there is a legitimate range within which notice may be taken or declined and that there is efficacy in taking it, when appropriate, was early pointed out by Professor James Bradley Thayer in his Preliminary Treatise on Evidence (1898), at p. 300:

"Courts may judicially notice much that they cannot be required to notice. That is well worth emphasizing; for it points to a great possible usefulness in this doctrine, in helping to shorten and simplify trials. . . . The failure to exercise it tends daily to smother trials with technicality and monstrously lengthens them out.”

In affirming Judge Raine, we harken to the echo of Lord Sumner in Commonwealth Shipping Representative v. Peninsular & Or. Branch Service, App. Cas. 191, 211 (1923):

"To require that a judge should affect a cloistered aloofness from facts that every other man in Court is fully aware of, and should insist on having proof on oath of what as a man of the world he knows already better than any witness can tell him, is a rule that may easily become pedantic and futile.”

To hold otherwise would be to deny that Orson Welles was "Citizen Kane.”

Judgment affirmed; costs to be paid by appellant.

      . The list of categories includes, 1) facts capable of certain verification; 2) judicial notice of domestic and foreign law; 3) facts relating to the personnel, operation and records of the court; 4) other governmental facts; and 5) legislative facts. See generally, McCormick, op. tit., pp.691-707.