author: Morton, J.,

text:
    LARRY RAYMOND WORTHINGTON v. STATE OF MARYLAND
    [No. 299,
    September Term, 1977.]

      Decided January 12, 1978.

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

      Robert W. Baker, Jr., Assigned Public Defender, with whom were Merriman, Crowther & Merriman on the brief, for appellant.

      Kathleen M. Sweeney, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Stephen Tully, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

Appellant, Larry Raymond Worthington, was convicted by a jury sitting in the Criminal Court of Baltimore (Grady, J., presiding) of assault with intent to murder and unlawful use of a handgun. Concurrent sentences of 25 years and 15 years were imposed.

According to the victim, Michael Bray, he and his friend, Catherine Roppelt, were driven to the home of Thomas Goldsborough in Dundalk, Maryland, by appellant and his girlfriend, arriving sometime after 3 a.m. on January 26, 1976. After “smoking a few bowls of pot” Bray was invited to go outside with Goldsborough and appellant, ostensibly to show him “something by the railroad tracks.” Bray testified:

“We walked down to the railroad tracks. He [appellant] said, ‘Look here.’ He showed me something. He pointed to the railroad cars, line of boxcars like this. I went to look like this. And he had a pistol. Shot me right in the back of the head once. I'went down to the ground, stunned me. Busted my skull in the back. First I didn’t know what happened. It’s quick. And it was a flash and knocked me straight to the ground. All I saw was red and like I was half dizzy and knocked out. I shook it off. It was only a matter of seconds. And blood was running on my face. And I looked up, and he was holding a pistol.”

Later, Bray testified that he “was shot three times in the head and once in the back.” On cross-examination Bray stated:

“When I was in the hospital, when I was first shot, I wanted to take matters in my own hands. I wanted to kill Mr. Worthington. Mister — I’m being respectful to him. But after I thought about it, my family, mother and father, everybody talked to me, said it’s best I go to the courts and let the police handle it rather than kill and go to jail. I have been in jail. I don’t want to go back. When I was first in the hospital, I was mad, of course. I was in pain. I was in misery. And I told the police officer that I would take care of matters myself. That was the first statement. The second time I told them I know who did it, I will take care of it.”

Bray denied, however, that he told the police that he did not know who shot him. Appellant attempted to impeach this statement with the testimony of Officer William Chaffinch of the Baltimore City Police Department who stated that when he interviewed Bray on the morning of January 26,1976, Bray told him that “he did not know [who shot him] as he was shot from the rear.”

Endeavoring further to impeach Bray’s credibility, appellant called Leroy Brunner, Jr., a licensed private investigator, to the witness stand. Brunner stated that he interviewed and took a statement from Bray on April 26,1976. Replying to questioning from appellant’s counsel, Brunner read the following, apparently inconsistent excerpts from Bray’s statement into the record:

“ T believe Goldsborough * * * pushed me forward. Then I got shot in the back of the head first, then shot two more times in the head and once in the back. I went down on my knees. When I got myself together and had almost went unconscious, I turned around and saw Goldsborough and Worthington’ — now he has the correction, ‘looking at me, then they ran.’ ”
“ ‘After I was operated on, police interviewed me again. I told them that I didn’t have anything to say. I didn’t know who did it. I made a statement saying two unknown white guys jumped me from behind, and I didn’t get a good look at them.’ ”

Through the testimony of Brunner, appellant also attempted to impeach the credibility of Bray's friend, Catherine Roppelt, who, as a State’s witness, had previously stated that appellant was present and had a gun on the night of the shooting. Brunner read an excerpt from an interview with Ms. Roppelt which he had conducted on August 31,1976, in which she stated that she “was rather intoxicated at the time and really not capable of knowing what was going on.”

On cross-examination of Brunner the State called for the admission of the original statements of Bray and Ms. Roppelt in their entirety. After deleting several extraneous sentences, the statements were then admitted into the record over appellant’s objection. In his argument to the trial judge concerning the admissibility vel non of the entire statement, the prosecutor stated:

“The State’s position, the defense has put in select portions of those two statements to show prior inconsistent statements. I’m offering it in evidence as prior consistent statements as to all the questions which he so carefully avoided bringing up, and I think I have a right to do that. He has waived any contention he has as to work product.”

Appellant now contends that the admission of the Bray and Roppelt statements in their entirety constituted reversible error. He first argues that the statements were not admissible as prior consistent statements, as argued by the prosecutor, because they were “made long after the motive to fabricate existed.” See, e.g., Kelly v. State, 151 Md. 87 (1926); Lanasa v. State, 109 Md. 602 (1909); Boone v. State, 33 Md. App. 1 (1976). We do not agree for we think both statements were properly admitted under the doctrine of “verbal completeness.” The doctrine was discussed by the late Chief Judge Brune in Feigley v. Balto. Transit Co., 211 Md. 1 (1956). There he set forth, at pages 9-10, the following statements from Wigmore on Evidence, 3rd Ed., Vol. VII, § 2114:

“ ‘(4) When a witness of a party has been impeached by prior utterances showing bias or self-contradiction, fairness requires that he be allowed to explain away their effect, if he can (ante, Sections 952,1044 and 1058). One way of explaining may be to give the remainder of what he said at the time. Here, then, the putting in of the explanatory parts is justifiable equally on two principles * *

And in § 2115, the author continues:

‘The general phrasing of the principle, then, is that when any part of an oral statement has been put in evidence by one party, the opponent may afterwards (on cross-examination or re-examination) put in the remainder of what was said on the same subject at the same time. This phrasing leaves something to be desired in definiteness, but it is practically applied without much difficulty and with little or no quibbling.
‘Its most common application is to conversations in general, including the admissions of an opponent and to inconsistent statements of a witness used in impeachment * * V ”

In the case at bar, when appellant sought to impeach the credibility of Bray and Ms. Roppelt by their prior utterances, it was fair and proper to permit the State, under the doctrine of “verbal completeness,” to introduce their prior statements in their entirety. See 3A Wigmore, Evidence § 1045 (Chadbourn rev. 1970); 7 Wigmore § 2113 (3d ed. 1940).

Appellant also contends that the following excerpt from the Roppelt statement is inadmissible by virtue of the rule prohibiting the admission of hearsay:

" 'Question: Did anyone tell you who shot Bray?

‘Answer: Bray told me in the hospital Larry did it. I was asked was that the guy who had the peg leg and Mike said, yes. I asked why he shot him. He wouldn’t say. I asked him if he was going to press charges. Mike said he wasn’t going to press charges. I asked why. Mike said he wanted to get Larry himself. I told him that was crazy, let the police handle it.’ ”

In our view, this contention likewise runs counter to the rule of completeness. McCormick, in his work on Evidence 131 (2d ed. 1972), does point out that the element of hearsay might add new considerations to the rule of completeness and, accordingly, notes that “the trial judge should exclude [such statements] if he finds that the danger of prejudice outweighs the explanatory value.” Our review of the record convinces us that the trial judge did not abuse his discretion in admitting the Roppelt statement in its entirety. Indeed, a perusal of Roppelt’s statement reveals the possibility, by reason of its attention to detail, that when she stated that she was “intoxicated and not really capable of knowing what was going on,” she did not mean to imply, as she testified on cross-examination, that she did not remember what happened at the apartment. By allowing the jury to examine all relevant portions of her statement, the trial judge enabled it to reach an intelligent conclusion as to her intoxication and perception on January 26,1976. Certainly, in balance, we cannot say that its prejudicial effect outweighed its explanatory value.

Appellant argues that the admission of Ms. Roppelt’s statement violated his right to confront all witnesses against him as guaranteed by the sixth amendment to the United States Constitution and article 21 of the Maryland Declaration of Rights. In concluding that this contention is without merit we observe, once again, that Roppelt’s statement was taken by Brunner, a private investigator hired by appellant. As such, it strains our imagination to argue that appellant did not have an opportunity to cross-examine her since, in effect, her entire statement was given in response to appellant’s own out-of-court questioning. Moreover, once appellant initiated questions concerning Ms. Roppelt’s statements to Brunner, it is clear that he could not thereafter “invoke the Sixth Amendment as a justification for presenting what might have been a half-truth.” United States v. Nobles, 422 U. S. 225, 241 (1975).

Appellant next contends that the Bray and Roppelt statements were inadmissible because they were the work product of his trial counsel. In Hickman v. Taylor, 329 U. S. 495 (1947), the Supreme Court recognized that a privilege existed rendering certain materials prepared by an attorney in anticipation of litigation non-discoverable and inadmissible at trial. The Court reasoned, at 510-11:

“In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. * * * This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways — aptly though roughly termed by the Circuit Court of Appeals in this case as the ‘work product of the lawyer.’ Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.”

It is clear that the work-product privilege, when available, also extends to investigators employed to assist in preparation for trial. United States v. Nobles, supra, at 238.

The State, citing Nobles, counters with the proposition that even if the work-product theory were initially applicable to appellant and his counsel, it was waived as a result of appellant’s witness, Brunner, having read into evidence selected portions of Bray’s and Ms. Roppelt’s statements. The factual posture of Nobles is remarkably similar to the case sub judice. There, as here, “defense counsel sought to impeach the credibility of key prosecution witnesses by testimony of a defense investigator regarding statements previously obtained from the witnesses by the investigator.” 422 U. S. at 227. There, as here, the trial judge, in admitting the challenged evidence, ruled that the investigator’s report was relevant to the critical. issue of credibility. While recognizing the continued validity of the work-product doctrine, the Court, in affirming the trial court’s ruling, engrafted upon it a waiver exception applicable under appropriate circumstances. It said, at 239-40:

“The privilege derived from the work-product doctrine is not absolute. Like other qualified privileges, it may be waived. Here respondent sought to adduce the testimony of the investigator and contrast his recollection of the contested statements with that of the prosecution’s witnesses. Respondent, by electing to present the investigator as a witness, waived the privilege with respect to matters covered in his testimony. Respondent can no more advance the work-product doctrine to sustain a unilateral testimonial use of work-product materials than he could elect to testify in his own behalf and thereafter assert his Fifth Amendment privilege to resist cross-examination on matters reasonably related to those brought out in direct examination.”

See generally 35 A.L.R.3d 412, § 33.

It is only too clear that the admission of selected excerpts, carefully drawn from a larger work, could conceivably create an inaccurate impression as to the meaning of what was actually said. As previously noted, if denied an opportunity to examine all relevant portions of the statements, the jury would be unable to assess intelligently the credibility of Bray and Ms. Roppelt. Accordingly, we concur with the State’s assertion that appellant waived his privilege when he elected to have Brunner testify as he did.

Finally, appellant contends that the trial court erred in limiting his cross-examination of Bray concerning Bray’s gambling debts. In this regard the following colloquy ensued at trial:

“Q. [Mr. Byrd, defense counsel] You gamble. Do you know Jack Williams, Mr. Bray?

A. Yes, I do.

Q. He is a gambler, too; isn’t he?

A. Yes, he is.

Q. In fact, you have an outstanding —

MR. TULLY [Prosecutor]: Objection, Your Honor. Let’s approach the bench.

(The following proceedings took place at the bench out of the hearing of the jury:)

MR. TULLY: Your Honor, I have an objection to any questions — defense counsel is going into prior criminal activities, prior record which is not followed in the Supreme Court Maryland decision, that question being, have you ever been convicted of a crime where you were represented by counsel when you were under the age of eighteen. If counsel is going into that area, then I would ask for an instruction in motion limine to that now. If not, ask for a proffer of what area —

MR. BYRD: I’m not going into that. I’m about to demonstrate the motive for killing one, Mr. Jack Andrews, whatever —

THE COURT: Williams, I thought you said.

MR. BYRD: Williams, who has an outstanding debt of sixteen hundred dollars, and I have investigators working on it. And I can establish he has an outstanding debt of sixteen hundred dollars to this man.

THE COURT: Having an outstanding debt and connecting this man with the shooting are two different things. He may owe sixteen hundred dollars to Commercial Credit or to some savings —

MR. BYRD: The whole pattern is to be able to establish that there are a lot of people who would like to hit him in the head.

THE COURT: Are you going to have any evidence to bring this man Williams onto the scene?

MR. BYRD: I have investigators out now.

THE COURT: I’m not going to —

MR. BYRD: We have already obtained a statement from him.

THE COURT: From whom?

MR. BYRD: Williams.

THE COURT: That he was there and shot him?

MR. BYRD: No, that he had an outstanding debt of sixteen hundred dollars.

THE COURT: I’m not going to — that’s just a red herring unless it’s connected with something. You can ask him if he owes sixteen hundred dollars to a lot of people.

MR. BYRD: Don’t you think the jury should be permitted to, for me to be able to argue there were many people that might have wanted to shoot him and that he has reason for picking this man out because he didn’t want to divulge his activities in other fields? I’m also going to go into the drug situation, because he is a drug dealer.

THE COURT: He brought that up. But just to say that now there are five other people wandering around the city of Baltimore that might want to do him harm is no evidence that they did.

MR. BYRD: If my premise in the case is, Your Honor, that he knows who shot him but not this man —

THE COURT: Maybe you’ll get it in a more logical fashion, but just bringing it out of left field at this point, the objection is sustained.”

It is, of course, clear “that the right of cross-examination is included in the right of an accused in a criminal case to confront the witness against him.” Pointer v. Texas, 380 U. S. 400, 404 (1965). It is equally clear, however, that the questions propounded on cross-examination must be reasonably related to the issues at trial. The Court of Appeals, in Dorsey v. State, 276 Md. 638, 643 (1976), set forth the standards by which we are guided when evaluating the relevancy of the questions asked on cross-examination.

“The real test of admissibility of evidence in a criminal case is ‘the connection of the fact proved with the offense charged, as evidence which has a natural tendency to establish the fact at issue.’ MacEwen v. State, 194 Md. 492, 501, 71 A. 2d 464, 468 (1950); Pearson v. State, 182 Md. 1, 13, 31 A. 2d 624, 629 (1943). In Kennedy v. Crouch, 191 Md. 580, 585, 62 A. 2d 582, 585 (1948), our predecessors stated it to be ‘an elementary rule that evidence, to be admissible, must be relevant to the issues and must tend either to establish or disprove them.’ Evidence which is thus not probative of the proposition at which it is directed is deemed ‘irrelevant.’ See C. McCormick, Evidence § 185 at 435 (2d ed. 1972). See also 1J. Wigmore, Evidence § 28 at 409-10 (1940 ed.); Wharton’s Criminal Evidence § 151, supra, at 275; 29 Am.Jur.2d Evidence § 251 (1967); 31A C.J.S. Evidence §§ 158, 159 (1964).”

Moreover, “[t]he allowance or disallowance of certain questions on cross-examination normally is left to the sound discretion of the trial judge.” Beasley v. State, 271 Md. 521, 527 (1974).

Appellant posits that the trial judge, in refusing to permit a delving into Bray’s gambling debts, prejudicially denied him an opportunity to effectively cross-examine Bray. We disagree. While it is conceivable that the existence of animosity by some members of the community toward Bray could raise an inference that they, rather than appellant, were the perpetrators of Bray’s injuries, we feel, as did the trial judge, that such a connection is, in the absence of real evidence pointing toward appellant’s theory, totally speculative and tenuous. Were we to allow questioning into any and every matter calculated only to raise remote inferences vis-a-vis the issues at trial, we have no doubt that in many trials those issues would be obfuscated well beyond the point of recognition. In our view, the trial judge here properly acted, upon objection, to prevent such an pccurrence. We see no abuse of discretion.

Judgments affirmed; costs to be paid by appellant.

      . For the sake of convenience, we shall simply refer to what was admitted at this time as the entire statement.

      . The rule applies to written as well as oral statements. See McCormick, Evidence 131 (2d ed. 1972).

      . It appears to us that the work-product waiver doctrine is, in effect, a specific application of the aforementioned completeness rule.


source: Caselaw Access Project

author: Thompson, J.,

license: Public Domain

text:
    ALVIN THOMPSON v. STATE OF MARYLAND
    [No. 329,
    September Term, 1977.]

      Decided January 12, 1978.

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

      Arnold M. Zerwitz, Assigned Public Defender, for appellant.

      Arrie W Davis, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Samuel Brave, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Alvin Thompson, the appellant, was convicted by a jury of murder in the second degree and use of a handgun in the commission of a crime of violence. Judge Basil Thomas, sitting in the Criminal Court of Baltimore, imposed concurrent sentences of twenty years and five years, respectively. Thompson raises the following questions: (1) whether his reprosecution following a mistrial constituted double jeopardy, (2) whether there was sufficient evidence to support the convictions, and (3) whether the trial judge

abused his discretion in denying a motion for a mistrial. The facts necessary for the opinion will be stated in the discussion of the three contentions.

I Double Jeopardy

The appellant was brought to trial on January 3, 1977. After the jury was sworn the prosecutor, in his opening statement to the jury, made the following comment concerning certain defense witnesses:

“The police are summoned. Officer Shannahan arrives within a half hour or so. The Homicide Squad is on the scene. They gather all the witnesses they can find, including Fannie Parker, the lady I just described, the names of these witnesses that you were asked whether you knew on voir dire. George Ford, Wallace Williams — George Ford, 1800 Calvert Street. Wallace Williams, 2208 East North Avenue. Clarissa Bailey of 1330 Aisquith Street. None of these people, not one of them, ever approached the officer —”

The defense immediately objected and subsequently moved for a mistrial on the grounds the prosecutor had no way of knowing what the testimony of the witnesses would be and, therefore, the comment was both prejudicial and improper. The trial judge granted the motion over the objection of the State. After the appellant was rearraigned, a new jury was impaneled and the trial commenced. The appellant maintains that the mistrial was attributable to prosecutorial misconduct and, as such, the double jeopardy clause operated as a bar to retrial.

Initially we are faced with the problem that a claim of double jeopardy was not raised during the trial. Under Rule 1085 this Court is not required to decide questions not presented below unless they concern the jurisdiction of the Court. The appellant argues the question is properly before the Court as double jeopardy is jurisdictional in nature. We assume a claim of double jeopardy is jurisdictional solely for the purpose of this appeal. Tate v. State, 236 Md. 312, 203 A. 2d 882 (1964); Johnson v. State, 3 Md. App. 105, 238 A. 2d 286 (1968), cert. denied, 250 Md. 732.

Although the double jeopardy clause is designed to protect the defendant against multiple punishments or repeated prosecutions for the same offense, United States v. Dinitz, 424 U. S. 600, 96 S. Ct. 1075, 47 L.Ed.2d 267 (1976), a request by a defendant for a mistrial ordinarily removes any bar to reprosecution even though the motion was necessitated by prosecutorial or judicial error. Lee v. United States, 432 U. S. 23, 97 S. Ct. 2141, 53 L.ED.2d 80 (1977); United States v. Dinitz, supra. This rule is not absolute and where a mistrial is the product of prosecutorial or judicial overreaching, the double jeopardy clause prevents a retrial. Lee v. United States, supra; United States v. Jorn, 400 U. S. 470, 91 S. Ct. 547, 27 L.Ed.2d 543 (1971). The exact boundaries of prosecutorial overreaching, necessary to bar retrial, have not been specifically delineated by the Supreme Court. Other courts which have considered the point generally hold that prosecutorial error attributable to negligence does not amount to overreaching, People v. Baca, Colo., 562 P. 2d 411 (1977),| while intentional misconduct calculated to gain a more favorable chance for conviction or to abort a trial that is going badly prevents reprosecution. United States v. Kessler, 530 F. 2d 1246 (5th Cir. 1976). The appellant argues that prosecutorial overreaching is not confined to intentional misconduct but encompasses gross negligence as well. Commonwealth v. Bolden, 472 Pa. 602, 373 A. 2d 90 (1977). Although in Bolden, the Court noted that it is unclear from the decisions of the Supreme Court whether overreaching is limited to intentional misconduct or whether it extends to gross negligence on the part of the prosecutor or judge, it concluded gross negligence was encompassed in the term after an examination of the purposes underlying the double jeopardy clause. The Court stated:

“A defendant forced to request a mistrial by conduct which conspicuously fails to satisfy professional standards should not be required to bear the heavy burdens incident to reprosecution.” 373 A. 2d at 109.

Although neither the Court of Appeals nor this Court has specifically addressed this issue, we need not define the boundaries of prosecutorial overreaching in this case because no matter what standard we apply the appellant has failed to demonstrate the existence of any conduct which would invoke the bar of double jeopardy.

The statement in question was made by the prosecutor in his opening statement to the jury. The purpose and scope of an opening statement was succinctly stated by the Court of Appeals in Wilhelm v. State, 272 Md. 404, 326 A. 2d 707 (1974):

“The primary purpose or office of an opening statement in a criminal prosecution is to apprise with reasonable succinctness the trier of facts of the questions involved and what the State or the defense expects to prove so as to prepare the trier of facts for the evidence to be adduced. While the prosecutor should be allowed a reasonable latitude in his opening statement he should be confined to statements based on facts that can be proved and his opening statement should not include reference to facts which are plainly inadmissible and which he cannot or will not be permitted to prove, or which he in good faith does not expect to prove. An opening statement by counsel is not evidence and generally has no binding force or effect. To secure a reversal based on an opening statement the accused is usually required to establish bad faith oh the part of the prosecutor in the statement of what the prosecutor expects to prove or establish substantial prejudice resulting therefrom.” 272 Md. at 411-412.

Although the prosecutor in an attempt to anticipate and discredit the testimony of defense witnesses was venturing beyond the facts which he planned to prove, the statement standing alone does not demonstrate intentional misconduct. The appellant attempts to place the action of the prosecutor in the category of intentional misconduct by arguing that opening statements are frequently prepared in advance of trial, and, as one of the witnesses named by the prosecutor had been questioned by the police, he must have known his statement was false. We do not think these facts, by themselves, are sufficient to create a question of intentional misconduct nor can we say on the record before us the statement was so negligent that it conspicuously failed to satisfy professional standards.

II Sufficiency of the Evidence

The appellant’s second contention is that the evidence was insufficient to sustain the conviction. During the course of the trial the State produced several witnesses who had observed the shooting. These eyewitnesses testified, in essence, that the appellant approached the victim with a gun in his hand, made some remarks to him, hit him in the head with the gun, and then shot him. In his defense the appellant asserted the victim had made threatening gestures and his actions were taken as the result of these threats. According to the appellant, the gun was discharged accidentally during the course of mutual combat. Once this issue of mitigation was generated he argues the State was required to prove beyond a reasonable doubt the killing was without justification or excuse under Mullaney v. Wilbur; 421 U. S. 684, 95 S. Ct. 1881, 44 L.Ed.2d 508 (1975), and Evans v. State, 28 Md. App. 640, 349 A. 2d 300 (1975), aff’d. 278 Md. 197, 362 A. 2d 629 (1976). The evidence was insufficient, he argues, because even if the jury disbelieved his testimony there was no evidence to show the lack of an intent to fight on the part of the victim and an inference of malice from the use of deadly force impermissibly relieves the State of its burden of proof under Mullaney and Evans. We fail to see any merit in this argument. Mullaney does not affect permitted inferences of fact. Such inferences do not shift the burden of proof unless they lack a rational connection between the facts established and the facts to be inferred. See Jones v. State, 37 Md. App. 511, 378 A. 2d 9 (1977), Evans v. State, supra. In the instant case there was ample testimony from which the jury could infer an intent to kill the victim and the absence of any mitigating circumstances.

Ill Denial of Mistrial

In the course of closing argument during the second trial the prosecutor stated to the jury:

“That’s the defendant’s testimony, because the judge isn’t even going to instruct you self-defense. I might as well inform you of that now. Put self-defense out of the picture.”
“[T]he judge is not going to instruct you on self-defense, the reason is, there is no evidence of self-defense.”

Defense counsel objected to this statement and asked for a mistrial. On appeal the appellant argues the trial judge abused his discretion in denying the motion. We disagree. The Court of Appeals outlined the standard for the granting of a mistrial in Wilhelm v. State, supra:

“A request for a mistrial in a criminal case is addressed to the sound discretion of the trial court and the exercise of its discretion, in a case involving a question of prejudice which might infringe upon the right of the defendant to a fair trial, is reviewable on appeal to determine whether or not there has been an abuse of that discretion by the trial court in denying the mistrial. Basiliko v. State, 212 Md. 248, 260-61, 129 A. 2d 375, 381 (1957). The decision by the trial court in the exercise of its discretion denying a mistrial will not be reversed on appeal unless it is clear that there has been prejudice to the defendant.”
“The trial court, in the exercise of its discretion, should declare a mistrial only where there is ‘manifest necessity for the act,’ Cornish v. State, 272 Md. 312, 322 A. 2d 880; it should never be granted for light and transitory reasons which do not result in any real prejudice to the accused.” 272 Md. 429-480.

Assuming the statements of the prosecutor were improper, there was no manifest necessity for a mistrial. Indeed, we do not see how the appellant could possibly be prejudiced by the remark. Prior to closing argument, both parties agreed that there would be no instructions given on the issue of self-defense. Rather, instructions would be limited to the issue of excusable homicide. The appellant’s objection to the argument was predicated on the basis the prosecutor’s comments might mislead the jury into thinking neither issue was in the case. The trial judge cautioned the prosecutor to desist from further reference to the issue of self-defense and subsequently instructed the jury on the issue. We think these precautions were more than sufficient to correct the error, if any, in the prosecutor’s argument.

Judgments affirmed.

Appellant to pay the costs.


author: LiSS, J.,

text:
    JUDITH ECKSTEIN v. DONALD ECKSTEIN
    [No. 338,
    September Term, 1977.]

      Decided January 12, 1978.

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

      John B. Low for appellant.

      Thomas B. Yewell for appellee.
   LiSS, J.,

delivered the opinion of the Court.

Judith Eckstein, appellant (hereinafter “wife”), and Donald Eckstein, appellee (hereinafter “husband”), were married in Maryland on May 25, 1968. The wife had one daughter from a previous marriage, Kimberly, who was adopted by the husband after their marriage; and a second daughter, Donna, was born to the Ecksteins. At the time of the separation between the parties the children were eight and six years old respectively. The wife had a history of mental disturbances, and in September of 1973, she sought professional help from a psychiatrist, Dr. Gultken Ovacik. During the course of her sessions with Dr. Ovacik, in January of 1974, the wife was committed to the Prince George’s Hospital Psychiatric Ward for treatment, where she remained confined for a period of 46 days. Dr. Ovacik, who continued to see her at the hospital, testified that her last visit with him during that period was April 3,1974, at which time she advised him that she was not going to see him again because her husband objected to her seeing a psychiatrist. She did not see him again until July 21, 1975. The doctor testified that he found the wife to be suffering from a reactive depression when he saw her in April of 1974 and that the condition had not changed when he saw her in July of 1975. Her history indicated that she had attempted suicide four or five times and that she was hospitalized on at least three occasions as a result of these attempts. Dr. Ovacik indicated that in his opinion she was suffering from the reactive depression well before he first saw her in September of 1973.

The marriage was hardly an idyll of matrimonial bliss, and the parties separated temporarily on a number of occasions. During one of these separations in 1971, the husband had his lawyer, a Mr. Lietch, prepare a separation and property settlement agreement; and on April 13, 1971, the husband took the wife — who had no counsel and was not given an opportunity to consult counsel — to his lawyer’s office. The wife signed the agreement, and later that afternoon, she took an overdose of prescribed drugs and was hospitalized. The husband communicated with her by phone while she was in the hospital, and a reconciliation ensued. Several other separations had occurred between the parties and during one such period (in November of 1970), the wife employed an attorney who prepared a separation agreement more favorable to her than the one she ultimately signed but which her husband refused to sign.

On the evening of February 1, 1975, the wife left the rnarital abode in the parties’ jointly owned 1973 Volkswagen Van with only the clothes on her back. She had no funds and the husband promptly closed the couple’s joint bank account. The wife consulted Legal Aid but was advised that she did not qualify for their assistance. Shortly after the wife left her husband, he discovered her whereabouts and the location of the van and with the assistance of the wife’s stepfather seized and secreted the van. The husband refused the wife’s request to visit or communicate with her children and refused to give her her clothing. He told her that she could see her children and take her clothes only if she signed a separation agreement prepared by Mr. Leiteh, his attorney. Subsequent events disclosed that the agreement was almost an exact duplicate of the one she signed in 1971 after which she attempted suicide.

On February 10,1975, she was directed by her husband to go to Mr. Leitch’s office; she had no money to employ counsel. At Mr. Leitch’s office she was advised that her husband was in the suite but would not talk to her in person. A copy of the separation agreement was given to her to read. She asked several questions of Mr. Leiteh who testified that he did not recollect what the questions were but that he refused to give her any advice because he was representing her husband. He asked her if she wanted to talk to her husband and put him on an inter-office phone to discuss the matter with her. The husband also admitted that the wife asked several questions about the agreement but stated that he could not remember what the inquiries were and he did not answer them. The wife testified that her husband told her that if she did not sign the agreement he would get her for desertion, that she would never see her children again, and that she would get nothing — neither her clothes nor the van — unless she signed the agreement as written. No changes were made in the document, and the wife signed the agreement in Mr. Leitch’s office. Immediately after signing, her clothes were surrendered to her and she was given the keys to the Volkswagen van.

The separation agreement provided that the wife give custody of the children to her husband. She agreed to deed to her husband her interest in the jointly owned home of the parties. She agreed to assign to her husband her interest in a jointly owned new 1975 Chevrolet van; she received the Volkswagen. She waived alimony, support, maintenance, court costs, attorney’s fees, and any right of inheritance in her husband’s estate. She was to receive one-half of the income tax refunds due the parties, of which her share would be approximately $1,000. She was paid $1100 at the time of the execution of the agreement. The husband agreed to retain the wife on his health insurance policy until they were divorced. The wife was to receive any of their furniture which she desired.

On February 10,1976, the husband filed a bill of complaint in the Circuit Court for Prince George's County in which he prayed the court to grant him a divorce a vinculo matrimonii on the ground of voluntary separation and to require specific performance of the third and fourth paragraphs of the property settlement agreement executed by the parties on February 10,1975. These paragraphs concerned the exchange of the titles to the two vans owned by the parties.

The wife filed an answer in which she prayed that the court grant the divorce but alleged lack of mental capacity on her part and coercion, duress, fraud, breach of contract, lack of consideration and gross over reaching on the part of the husband in securing the execution of the agreement, and requested that the court set aside the property settlement between the parties. She also sought custody of the minor children and counsel fees. The trial court, with the approval of both parties, treated the answer filed by the wife as a cross-bill of complaint seeking affirmative relief. At the conclusion of two days of testimony, the trial court granted the husband’s prayer for a divorce a vinculo; granted him custody of the minor children, with visitation rights to the wife; and upheld the validity of the separation and property agreement. All the prayers for relief of the wife were denied, and her cross-bill of complaint was dismissed.

Appellant in this appeal has raised no issue as to the trial court’s granting of the divorce a vinculo matrimonii or the awarding of custody of the minor children of the parties to the husband. The issues to be considered by us are:

1) Did the trial court err in refusing to set aside the separation agreement between the parties on the grounds of duress?; and
2) Was the refusal of the trial court to grant counsel fees to the wife’s counsel reversible error?

Several corollary issues were raised by the appellant, but since we shall reverse on the first of these issues, it will not be necessary for us to consider them. The reversal is dispositive of the second issue, as the waiver of counsel fees is included in the agreement we hold to be invalid.

A separation agreement, being a contract between the parties, is subject to the same general rules governing other contracts. Coffman v. Hayes, 259 Md. 708, 270 A. 2d 808 (1970); Heinmuller v. Heinmuller, 257 Md. 672, 264 A. 2d 847 (1970); 1 Nelson, Divorce and Annulment. §§ 13.05, 13.32 (2d Ed., 1945).

In the recent case of Bell v. Bell, 38 Md. App. 10, 379 A. 2d 419 (1977) Judge Thompson of this Court discussed the present state of the law governing transactions between husband and wife: Maryland does not presume the existence of a confidential relationship in such transactions. Owings v. Currier, 186 Md. 590, 47 A. 2d 743 (1946). Since the adoption of Article 46 of the Maryland Declaration of Rights, i.e., the Equal Rights Amendment, we have abandoned the previous presumption that the husband was the dominant figure in a marriage. Manos v. Papachrist, 199 Md. 257, 86 A. 2d 474 (1951); Trupp c. Wolff, 24 Md. App. 588, n.15, 335 A. 2d 171 (1975); and the Court of Appeals has declared that sex classifications are no longer permissible under that amendment. Rand v. Rand, 280 Md. 508, 374 A. 2d 900 (1977).

The appellant in her brief raises the question of the existence of a confidential relationship between the husband and wife in this case, but the facts disclosed in the record indicate no basis for such a contention. In the absence of such a confidential relationship, separation agreements not disclosing any injustice or inequity on their face are presumptively valid; and the burden is on the party challenging the agreement to show that its execution resulted from coercion, fraud, or mistake. Cronin v. Hebditch, 195 Md. 607, 74 A. 2d 50 (1950); Owings v. Currier, supra; Jackson v. Jackson, 14 Md. App. 263, 286 A. 2d 778 (1972).

Appellant contends that the separation agreement which she signed was on its face unjust and inequitable. Her principal complaint concerns the value of the jointly owned home which she conveyed to her husband for $1100. (See footnote (1)) The wife also alleged an interest in certain secret personal bank accounts held by the husband in his name in trust for himself and the children of the parties, but these accounts have no relevance in this case. In Bell, supra, we held that the relinquishment by a wife of her interest in jointly owned real estate worth $210,000 for approximately $45,000 in property and cash was not sufficient to make a settlement agreement between the husband and wife inequitable and unjust on its face. There, we distinguished the facts in Bell from Eaton v. Eaton, 34 Md. App. 157, 366 A. 2d 121 (1976), where we set aside an agreement in which the wife surrendered her interest in property worth a quarter million dollars for $4300. We cannot say that this agreement on its face is so inequitable and unjust that we are required to set it aside. The appellant, therefore, was left in the position that in order to prevail before the trial court, she had to assume the burden of proving that the agreement which she executed was not made in the exercise of her own free will — but was exacted from her by duress.

In order to establish duress, there must be a wrongful act which deprives an individual of the exercise of his free will. Central Bank v. Copeland, 18 Md. 305 (1862); Restatement (Second) of Contracts, §§ 316-318 (Tent. Draft No. 12,1977); 13 Williston on Contracts, §§ 1606-1607 (3 ed. W. Jaeger ed. 1970). In Central Bank, supra, the Court stated the rule as follows:

“The element of obligation upon which a contract may be enforced springs primarily from the unrestrained mutual assent of the contracting parties, and where the assent of one to a contract is constrained and involuntary, he will not be held obligated or bound by it. A contract, the execution of which is induced by fraud, is void, and a stronger character cannot reasonably be assigned to one, the execution of which is obtained by duress. Artifice and force differ only as modes of obtaining the assent of a contracting party, and a contract to which one assents through imposition or overpowering intimidation, will be declared void, on an appeal to either a court of law or equity to enforce it. The question, whether one executes a contract or deed with a mind and will sufficiently free to make the act binding, is often difficult to determine, but for that purpose a court of equity, unrestrained by the more technical rules which govern courts of law in that respect, will consider all the circumstances from which rational inferences may be drawn, and will refuse its aid against one who, although apparently acting voluntarily, yet, in fact, appears to have executed a contract, with a mind so subdued by harshness, cruelty, extreme distress, or apprehensions short of legal duress, as to overpower and control the will.” Id. at 317-18. (citations omitted).

The Restatement (Second) of Contracts, supra, § 318 (2), speaks of the circumstances under which a threat is improper and may amount to duress:

“A threat is improper if the resulting exchange is not on fair terms, and
(a) the threatened act would harm the recipient and would not significantly benefit the party making the threat, or
(b) the effectiveness of the threat in inducing the manifestation of assent is significantly increased by prior unfair dealing by the party making the threat, or
(c) what is threatened is otherwise a use of power for illegitimate ends.”

The comment in the Restatement on this section indicates that clause (b) is concerned with cases in which the party making the threat has by unfair dealing achieved an advantage over the recipient which makes the threat unusually effective. Typical examples involve manipulative conduct during the bargaining stage that leaves one person at the mercy of another. Clause (c) is concerned with other cases in which the threatened act involves the use of power for illegitimate ends. Illustration 15 postulates the following situation:

“A operates a fur storage concession for customers of B’s store. A becomes bankrupt and fails to pay C $1,000 for charges for storing furs of B’s customers. C makes a threat to B not to deliver the furs to B’s customers unless B makes a contract to pay C the $1,000 plus $2,000 that A owes C for storage of other furs. B, afraid of offending its customers and having no reasonable alternative, makes the contract. If the court concludes that C’s threat to B is a use for illegitimate ends of its power as against B to retain the furs for the $1,000 owed for the storage of furs for B’s customers, C’s threat is improper and the contract is voidable by B.”

13 Williston on Contracts, supra, § 1603, summarizes the manner in which duress may be exercised and gives as one of the methods “any ... wrongful acts that compel a person to manifest apparent assent to a transaction without his volition or cause such fear as to preclude him from exercising free will and judgment in entering into a transaction.” Id. at 663. While the determination of duress is dependent upon the circumstances of each individual case, Williston states that the cases indicate that three elements are common to all situations where duress has been found to exist: “1) that one side involuntarily accepted the terms of another; 2) that circumstances permitted no other alternative; and 3) that the circumstances were the result of the coercive acts of the opposite party.” United States v. Bethlehem Steel Corp., 315 U. S. 289, 62 S. Ct. 581, 86 L. Ed. 855 (1942); French v. Schoemaker, 14 Wall. (U. S.) 314, 20 L. Ed. 852 (1872).

Any agreement, contract, or deed obtained by oppressing a person by threats regarding the safety or liberty of himself, or his property, or a member of his family so as to deprive him of the free exercise of his will and prevent the mutuality of assent required for a valid contract may be avoided on the ground of duress. See Balling v. Finch, 203 Cal. App. 2d 413, 21 Cal. Repts. 490 (1962); Lewis v. Fahn, 113 Cal. App. 2d 95, 247 P. 2d 831 (1952); Annot. 5 A.L.R. 823 (1919).

Nor must the acts or threats which constitute duress be unlawful in order to affect the validity of the agreement. Fowler v. Mumford, 48 Del. 282, 102 A. 2d 535 (1954) stated:

“It is true that under the modern view, acts or threats cannot constitute duress unless they are wrongful; but an act may be wrongful though lawful. Acts that are wrongful in a moral sense, though not criminal or tortious or in violation of contractual duty, may also constitute duress under the doctrine sought to be invoked by the defendant.” 102 A. 2d at 538.

See Restatement of Contracts, § 492 (g).

In Bell, supra, Judge Thompson, quoting Link v. Link, 278 N.C. 181, 179 S.E.2d 697 (1971), pointed out the direction which the law of duress has taken in the more recent decisions:

“ ‘The law with reference to duress has, however, undergone an evolution favorable to the victim of oppressive action or threats. The weight of modern authority supports the rule, which we here adopt, that the act done or threatened may be wrongful even though not unlawful, per se; and that the threat to institute legal proceedings, criminal or civil, which might be justifiable, per se, becomes wrongful, within the meaning of this rule, if made with the corrupt intent to coerce a transaction grossly unfair to the victim and not related to the subject of such proceedings.’ 179 S.E.2d at 705.” 38 Md. App. at 17, 379 A. 2d at 423.

It becomes our responsibility at this point to review the facts as established at the lengthy hearing before the trial court and to review the law of the case. We are, of course, aware of the strictures of Maryland Rule 1086, which cautions that the judgment of the lower court shall not be set aside on the evidence unless clearly erroneous. We are also bound by the oft enunciated principle that the credibility of witnesses is primarily for the trier of the facts, and the appellate courts of Maryland will only overrule the findings of fact of a trial judge when they are clearly erroneous. McDowell v. State, 231 Md. 205, 189 A. 2d 611 (1963); Weaver v. State, 226 Md. 431, 174 A. 2d 76 (1961); Staley v. Staley, 25 Md. App. 99, 335 A. 2d 114 (1975).

We believe, however, that the appellant did, in fact, meet her burden of establishing that the separation agreement executed by her was signed under such circumstances as to preclude a finding that her actions were the product of her own free will. We further find that the facts which established the duress exercised by the husband on the wife in this case are not only found in the testimony of the wife and her witnesses but are in many instances corroborated by the husband and his witnesses. It is, we think, particularly significant that Mr. Leitch, appellee’s attorney, confirmed the appellant’s story concerning the withholding of her property from her until after she signed the agreement. Significant also is the fact that the husband never denied the wife’s statement as to his threat that she would be denied communication and visitation with her children and would not get her clothes and van unless she signed the agreement. See Gonzalez v. Gonzalez, 57 Cal. App. 3d 736, 129 Cal. Rptr. 566 (1976).

Initially, it is clear that the wife had a long history of depressive behavior which indicated mental and emotional instability. Whether or not the trial court chose to accept the opinion of her psychiatrist regarding her mental capacity at the time of the execution of the agreement (which, incidentally, it did not) is unimportant. What is obvious, however, is that the psychiatrist’s undisputed testimony concerning her medical history and hospital confinements was sufficient to establish that the wife had a severe mental and emotional problem both before and after the execution of the agreement.

The testimony discloses that the wife was entirely without funds and without counsel at the time of the signing of the agreement. See, Demaggio v. Demaggio, 317 So. 2d 848 (Fla. App., 1975). The husband had denied the wife access to the funds in their joint checking account and gave her no money from the date of the separation until the date of the execution of the agreement. The wife was unemployed. The record indicates that the wife attempted to get legal assistance from Legal Aid and the Public Defender’s office but was denied assistance because she was found to be ineligible for their services. The record further indicates that when the wife left the husband she took only the clothes that she was wearing and that when she later called and asked her husband for the clothes, he refused to give them to her until she signed the agreement prepared by his lawyer. He also refused to give her the jointly owned Volkswagen van or to permit her to see the children or even to communicate with them until after she signed the agreement. When asked why he would not give her her clothes and the Volkswagen, his answer was, “Why should I?” He admitted that his frame of mind at that time was one of being “mad” and “hurt”.

The circumstances surrounding the signing of the agreement were bizarre, to say the least: We have already described what occurred between the husband and wife prior to her going to the office of her husband’s attorney. When she arrived at Mr. Leitch’s office, the agreement was in the process of being typed; the deed transferring her interest in the home had already been prepared. The wife raised several questions concerning the agreement, but neither the attorney nor the husband would answer them. The latter both admitted in their testimony that she raised some such questions, but, neither could remember what they were. When she told her husband that she would not sign the agreement, which was identical with the one she repudiated in 1971, he repeated his threats that she would get nothing — neither her van, nor her clothes, nor the right to see or communicate with her children. No changes at all were made in the agreement as prepared by Mr. Leitch.

It is significant, we believe, that when under the circumstances she capitulated and signed the agreement, Mr. Leitch immediately delivered to her, in cash, the $1100 she was to receive for her interest in the property, and her clothes and the van were surrendered to her. These facts indicate to us a strong determination by the husband and his lawyer to pressure the wife into then and there executing the agreement.

The trial judge said that he was not “convinced that the contract should be set aside because of any inequity, or any coercion or undue influence or because of a breach of any fiduciary relationship or marital relationship existing between the parties.” He did not, however, state the facts which brought him to this conclusion. He refused to set aside the separation agreement. We believe this was error.

We conclude that it was irregular for the husband and his counsel to prepare a complicated legal document and deeds conveying to the husband her interest in jointly held property without at least offering her an opportunity to have her questions answered by her own legal advisor. It was, we believe, improper to submit the documents to her on a take it or leave it basis and to coerce her signature by withholding her property and threatening to prevent her from seeing or communicating with her children. We might well have reached that conclusion even if the evidence was clear that the wife was a competent, stable, knowledgeable woman; but when, as here, it is obvious that the husband and his lawyer were dealing with an emotionally and mentally unstable individual, we think that the conclusion that the execution of the agreement was obtained by duress is inescapable. With no funds, no lawyer, no clothes, no transportation, and no viable alternative, it is not surprising that the wife capitulated and signed the agreement. We cannot accept that action, under all the circumstances, as one taken by her of her own free will.

That portion of decree incorporating the separation agreement between the parties vacated; all other portions of decree affirmed; case remanded for further proceedings.

Costs to be paid by appellee.

      . At the time of the signing of the settlement agreement in February of 1975, there was no discussion as to the value of the equity of the property. Approximately one month later, the husband secured an appraisal of the property at $74,000. It was later offered for sale in early 1976 for $79,500. At the time of the execution of the agreement, there was a total indebtedness on the property of approximately $40,000, making the husband and wife’s equity between $30,000 and $40,000.

      . The wife contends that the furniture was her sole property from her previous marriage, with the exception of several pieces bought by her mother after her marriage to Eckstein.