text:
    JEROME WILLIAMS and ROOSEVELT SNEED v. STATE OF MARYLAND
    [No. 360,
    September Term, 1981.]

      Decided December 4, 1981.

      The cause was argued before Morton, Lowe and Wilner, JJ.

      Louis P. Willemin, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellants.

      Stephen Rosenbaum, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Charles F. Lamasa, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

In the Criminal Court of Baltimore, Jerome Williams and Roosevelt Sneed were convicted by a jury of felony murder. Sneed was also convicted of unlawful use of a handgun. This was the second attempt by the State to convict those appellants, the first having ended in a mistrial when the jury failed to arrive at a verdict. At the conclusion of the first trial, prior to submission of the case to the jury, the State "abandoned” an attempted robbery count in what appellants saw as "an obvious effort to force the jury into returning a guilty verdict on the greater count” of robbery with a deadly weapon. The new trial proceeded without the attempted robbery count available to the State for appellants’ conviction under it. Although the indictment still contained a robbery with a deadly weapon count when the second trial began, the court granted the appellants’ motions for judgment of acquittal of that charge at the conclusion of the introduction of evidence. That action precluded the jury from concluding that appellants had committed a robbery with a deadly weapon even as the underlying felony for purposes of the felony murder charge. Ford v. State, 274 Md. 546, 551 n. 3 (1975). Acknowledging that concept, the judge instructed the jury that it could consider felony murder only on a theory of attempted robbery as the prerequisite underlying felony.

I

Appellants contend that such an instruction was improper; that by doing so the judge violated the prohibition against twice placing them in jeopardy; and, absent the improper consideration of attempted robbery, the evidence was insufficient because there was no underlying felony upon which to predicate their felony murder convictions.

Although appellants, at argument, confessed some difficulty in articulating precisely that principle upon which they rely, we have by Holmesian reasoning arrived at that contention upon which we believe they must finally rest. Synergistically combining the State’s abandonment of the attempted robbery count at the first trial with Simms v. State, 288 Md. 712, 718 (1980), holding that such an abandonment operates as a nol pros, appellants leap to the conclusion which serves as the foundation for all three of their contentions:

"Thus, the State’s action operated as an acquittal of the charge of attempted robbery in the first trial.”

From there it would have been easy to syllogize that an acquitted charge may not be used by a factfinder as an underlying crime for purposes of a felony murder conviction. See Ford v. State, supra at 551 n. 3. Appellants’ articulable difficulty, however, derives from their need to circumvent or explain why the abandonment, even when viewed as a nol pros, "operated as an acquittal”.

In Ward v. State, 290 Md. 76 (1981), the Court of Appeals, through Judge Eldridge, exhaustively analyzed the effect of a nol pros under varying conditions, quite similar to those before us.

"In light of the defendant’s argument, it is necessary to examine the nature of a nolle prosequi and the often repeated statement that a nolle prosequi, after jeopardy attaches and without the defendant’s consent, 'operates as an acquittal.’ ” Id. at 82.

His examination concluded that there is nothing inherent in the nature of a nol pros which causes its entry to operate as an acquittal of the underlying offense; and thus, the proposition that it " 'operates as an acquittal’ ” is not a characteristic of a nol pros itself. Id. at 85. He therefore found it necessary to analyze the proposition in light of its development under a body of double jeopardy law, finding that it originated as an application of the same double jeopardy principle which prevents a retrial after an unconsented and unnecessary mistrial. Id. at 91-92. The Court then looked at its own cases containing "overly broad language” which, "if taken out of context”, seem to support the principle relied upon by Ward in that case and by appellants here.

Bynum v. State, 277 Md. 703, cert. denied, 429 U.S. 899 (1976), is repeatedly relied upon by appellants here, but was carefully explained by Judge Eldridge as holding only that an unconsented nol pros of a lesser included offense (simple robbery), after jeopardy had attached, did not operate as an acquittal of a greater charge (armed robbery), proof of which implicitly necessitated a conclusion of guilt of the abandoned underlying crime. Ward, supra at 92. The Court then applied its analysis to the facts of the Ward case which contained a contrasting side of the argument presented in the case before us.

In Ward, the accused claimed that an unconsented abandonment of a murder count (using the statutory form set forth in Md. Ann. Code (1957, 1971 Repl. Vol.) Art. 27, § 616, which encompasses murder, manslaughter, or being an accessory thereto), in an initial trial after jeopardy had attached, precluded his retrial upon an accessory charge, the conviction of which had been reversed. Appellant Ward had sought to distinguish Bynum by arguing that Bynum involved only a single trial, whereas Ward involved successive trials following reversal on appeal. Despite Bynum’s holding, argued Ward, that case parenthetically stated the applicable law when it said:

"We therefore hold that the double jeopardy prohibition, though barring subsequent prosecution for offenses charged in counts dismissed by a nolle prosequi entered without the consent of the accused after jeopardy has attached, has no application in the context of the same prosecution which continues on other counts.” Bynum, supra at 709 (emphasis partially added).

That was the "overly broad” language, said Judge,.Eldridge, and it did not contemplate a second trial after a successful challenge to an earlier conviction, but merely attempted to paraphrase the general rule "that the entry of an unconsented nolle prosequi, after jeopardy attaches, ordinarily precludes a subsequent prosecution for the offense.” Ward, supra at 97.

But more important was that which the Ward Court saw as the reason for the Bynum holding:

"The reason for our holding was that settled double jeopardy principles did not preclude the continuation of the same trial on a different count, as the defendant was not being 'twice put to trial.’ Id. at 707.” Ward, supra at 92.

It thus appears that Bynum’s reasoning rested substantially upon the continuing nature of the jeopardy of the greater offense, proof of which required a finding of at least those facts necessary to convict for the nol prossed lesser offense. Consequently the accused’s jeopardy was never interrupted because the underlying crime element remained intact as an ingredient of the major offense, despite its separated disposition out of that context. Ward logically reasoned that the nol pros of the major offense (contextually containing the minor element) was not an acquittal as to the lesser offense as a separate charge, and in no way precluded the continuation of the trial under the separate accessory count which had not been abandoned or adjudicated. Id. at 94. In both cases the defendants were entitled to a verdict without interruption of jeopardy once exposed, which each received.

In the case before us, it is equally clear that the nol pros, as such, does not serve as an acquittal. If the first case had ended on a conviction rather than a mistrial, Bynum, as written, was clearly controlling. Despite the nol pros, appellants could have been convicted of felony murder by using the nol prossed charge as the underlying felony. Ward simply adds emphasis to that by holding that whatever exposure an accused had before appellate reversal, he will have upon retrial afterward. Ward nodded to the "unmitigated fiction” used to avoid double jeopardy that an appellate reversal wipes the slate clean (see Sweetwine v. State, 288 Md. 199, 205 (1980), cert. denied, 447 U.S. 1017 (1980), quoting North Carolina v. Pearce, 395 U.S. 711, 719-721 (1969)), but adhered to the more rational observation of jeopardy continuity in context from initial exposure to final conclusion.

In regard to the felony murder charge (with attempted robbery as its prerequisite felony) in the case at bar, jeopardy attached in the first trial and was not disturbed by the nol pros of attempted robbery as a separate count, nor did the mistrial interrupt that continuity. Upon retrial, as in Ward, the State did not attempt a prohibited subsequent prosecution under the nol prossed count, it simply proceeded to provide appellants that to which they were entitled, a verdict on the felony murder charge, Ward, supra at 94, as if a mistrial had never occurred. Simplified, it seems that Ward carries, among others, the messages:

1. that there is nothing in the nature of a nol pros causing it to operate as an acquittal;
2. that a nol pros of one count after jeopardy affects only the count addressed by the nol pros and not any remaining counts or elements of counts remaining; and,
3. that the continuity of that jeopardy is unaffected by a retrial after an appeal or a properly granted mistrial.

The double jeopardy protection is a constitutional shield, not a procedural weapon. The primary need for that shield is to ward off a second thrust after acquittal by the trier of facts. Despite appellants’ disclaimer that they do not invoke the collateral estoppel tangent of double jeopardy, when synthesized their argument by necessity rests upon the collateral estoppel theory as we have addressed the issue — in that context — most recently in Mitchell v. State, 44 Md. App. 451 (1979), cert. denied, 287 Md. 749, 755 (1980). We reasoned in Mitchell that, unlike an acquittal by the court for insufficient evidence, a dismissal by nol pros terminates the action prior to a decision on the merits, and end the case without an adjudication of the disputed facts necessary to render a judgment on the merits. The same logic applies here. The "critical question” here, as in Mitchell, is whether a nol pros (or its equivalent), entered at the conclusion of the State’s case, but without benefit of any factual predicate or explanation, served as a determination of ultimate issues of fact in the defendants’ favor so as to trigger the application of collateral estoppel. Id. at 458. In Mitchell we thought not and there is nothing in the case before us to change our mind.

We pointed out there, that for collateral estoppel to apply, the prior determination must have been on its merits. Although when the nol pros was entered without the defendant’s consent it served as an acquittal (Simms, supra at 718) for purposes of a subsequent reprosecution (Ward, supra at 97), it nevertheless terminated the cause without an adjudication of the disputed facts: i.e., there had been no determination whether the accused committed the offense alleged. Except for purposes of reprosecution, however, it does not preclude a factfinding determination of the ultimate fact at issue, which may be determined only once, Powers v. State, 285 Md. 269, 288, cert. denied, 444 U.S. 937 (1979), but according to Mitchell at least once, within the limitations of its purpose.

Because the abandonment of the attempted robbery charge did not amount to a confession of not guilty, nor an acquittal, Ward, supra at 84, nor an adjudication on the merits of that ultimate fact, Powers, supra at 288, it was not improper to submit the felony murder charge to the jury predicated upon its preliminary determination of facts not theretofore decided. It did not constitute a violation of the double jeopardy prohibition and, upon review of all of the evidence, we hold that there was sufficient evidence to sustain a conviction pursuant to the standard set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979).

II

Contending next that the State failed to disclose the name of a witness it intended to call "to rebut alibi testimony” which appellant Williams sought to discover pursuant to Md. Rule 741 b, appellant complains that such witness should have been precluded from testifying. The judge held that the testimony did not rebut an alibi, and the rule requiring disclosure was, therefore, not applicable.

The victim’s murder occurred at 3:45 a.m. Appellant Williams’ "alibi” was that he could not have committed the murder because he had spent the night with his girlfriend, who substantiated his presence at her apartment from 11:00 p.m. until the next morning. Williams testified that he had arrived at her apartment around 11:00 p.m. and that "Barney Miller” was on the television. The rebuttal witness called by the State was a television company executive who testified that said program was not shown at all during the night in question.

It is perfectly clear that the rebuttal evidence did naught but impeach the credibility of appellant, who had sought to embellish his ability to recall by reciting a fact related to his recollection of time and place. It did not go to prove that appellant was not present at the time and place he intended to establish by his alibi. It simply indicated that his memory of what occurred at that place at an earlier time was faulty.

Ill

Appellants next point out that a witness for the defense, Robert Smith, testified that he lived in an apartment across the street from the P & M Lounge, where the murder was committed. On the night of the offense, he awoke to the sound of a gunshot. He looked out the window anti observed a man standing over the body lying in the doorway of the bar. The man said, "I got him. Let’s go.” Smith testified that this man could not have been Sneed because Sneed stutters and the man he saw was taller than Sneed. In addition, Smith observed the man run away and could tell that he did not have Sneed’s running style. Smith had known Sneed for about thirteen years.

Over repeated objection, the State was permitted on cross-examination to question Smith at length about a report he made to the judge at the first trial concerning a juror in that trial discussing the case with someone outside of court. Appellants now contend that it was error to permit the State to pursue an irrelevant and confusing line of inquiry in cross-examining a defense witness on matters unrelated to his testimony.

The judge did not abuse his discretion in overruling the objection. The witness had placed at issue his ability to identify appellant Sneed and the cross-examination was simply designed to attack that ability by exposing a prior misidentification testified to in the prior trial. The judge did not abuse his discretion in permitting that line of questioning.

IV

Next appellants claim a violation of their right to argue an "unexplained silence” concerning a possible failure of the police to question a prospective witness who had been present at the bar outside of which the murder occurred. They rely upon Eley v. State, 288 Md. 548 (1980). Even if we assume error when the trial judge sustained an objection to the querulous comment of the defense counsel,

"I wonder why the great investigatory tools of the Police Department didn’t attempt to talk to Pimpy Lee.”,

the record reveals that counsel fully developed the failure by the prosecution to investigate Lee as a possible eyewitness. Beyond a reasonable doubt, the error, if any, was clearly harmless. Dorsey v. State, 276 Md. 638 (1976).

V

Appellants next recited eight instances during the State’s closing argument wherein they interjected an objection. Five were sustained and three overruled. Except for an allusion to "phony alibis”, most of the arguments of which appellants complain concerned the respective roles of two advocates. Such arguments were of questionable relevance and, but for three, were ruled improper argument. The three left standing without sustained objections were: 1) that it was the State’s Attorney’s job "to find justice”, 2) that defense attorneys plant seeds of doubt, and 3) that he (the prosecutor) would not compromise his career just to convict someone. While these also were of questionable relevance they were certainly not beyond the broad scope of permissible argument as set forth in Wilhelm v. State, 272 Md. 404, 412-413 (1974).

But appellants’ complaint seems directed toward the cumulative effect of all instances cited, whether their objections were sustained or overruled and contends that the judge abused his discretion by not declaring a mistrial when they moved therefor after the State concluded its remarks. Their brief contends that:

"It requires no citation of authority to conclude that the prosecutor’s closing argument was highly improper. The prosecutor may not assert his personal belief in the guilt of the accused. Cicero v. State, 200 Md. 614, 92 A.2d 567 (1952). He certainly may not imply that he is the only party to the proceedings who is interested in justice. He clearly may not assert that the defense is 'phony’, thus indicating that perjury has been committed. Reidy v. State, 8 Md. App. 169, 259 A.2d 66 (1969).”

Reidy v. State, supra, does not support appellants’ argument here that it is improper to cast aspersions on, or to suggest disbelief in, an accused’s defense. Reidy addressed an attack on defense counsel which implied he had committed perjury. A prosecuting attorney is free, however, to comment legitimately and speak fully, although harshly, upon an accused’s action and conduct. Wilhelm, supra. And while he may not assert his "personal belief or conviction in the guilt of the accused,” that admonition, like most clichés, is given too much credence at face value. It is the prefatory clause of a sentence more meaningfully concluded by its exception, but common parlance omits the exception. In Riggins v. State, 125 Md. 165, 174 (1915), the Court of Appeals pointed out how foolish it would be to apply the cliché as broadly as appellants would have us do.

" 'It is of course improper for a prosecuting officer to assert his personal belief or personal conviction as to the guilt of the accused, if that belief or conviction is predicated upon anything other than the evidence in the case. But, upon the other hand, such prosecuting officer has the undisputable right to urge that the evidence convinces his mind of the accused’s guilt. Indeed, it would be mere stultification if it were contended that the prosecuting attorney could argue to the jury that the evidence should convince their minds although it did not convince his. A prosecuting officer therefore has the right to state his views as to what the evidence shows.’ ”

In Wilhelm, the Court pointed out that:

"The conduct of the trial must of necessity rest largely in the control and discretion of the presiding judge and an appellate court should in no case interfere with that judgment unless there has been an abuse of discretion by the trial judge of a character likely to have injured the complaining party.” Id. at 413.

We find no such prejudice and no such abuse.

VI

Finally, appellants complain that they were denied a speedy trial. They have dissected the relative time spans from arrest to the second trial (13 months for Sneed and 10 months for Williams) and found them of constitutional dimension sufficient to compel a Barker v. Wingo, 407 U.S. 514 (1972), analysis which, from their viewpoint, they did by brief and argument. From its viewpoint, the State also analyzed the time span according to the Barker formula. The trial judge had done so as well, not only when a motion to dismiss for lack of a speedy trial was heard on December 26, 1979 and January 14, 1980, but when that motion was reviewed at the initial trial in April and again at the second trial on June 2, 1980. Significantly on January 14, 1980, there was an unqualified waiver of appellants’ speedy trial and Rule 746 rights taken from that date until the case was to be tried.

We too have applied our own independent review and analysis in accordance with the Barker formula, as well as having reviewed appellants’ analyses, and that of the State and trial judge. We have considered all factors as related to each period of time, prewaiver and postwaiver, pretrial one, between trials and all other times until final adjudication. Having considered the facts as applied to the formula, and after considering each of the four factors recommended in the Barker balancing test, we hold that appellants have on balance received speedy justice.

We further hold that Appellant Williams’ complaint of noncompliance with Md. Rule 746 a is unjustified. As we have mentioned, the record indicates that the period beyond the 180 day limit of that rule was waived by agreement of counsel. See State v. Lattisaw, 48 Md. App. 20, 27-29, cert. denied, 290 Md. 717 (1981). See also, State v. Mines, 48 Md. App. 30 (1981).

Judgments affirmed.

Costs to be paid by appellants.

      . "How often have I said to you that when you have eliminated the impossible, whatever remains, however improbable, must be the truth. Sherlock Holmes to Dr. Watson, Ch. 6 of "The Sign of Four” by A. Conan Doyle.


source: Caselaw Access Project

author: Lowe, J.,

license: Public Domain

text:
    IN RE: JEFFREY L.
    [No. 371,
    September Term, 1981.]

      Decided December 4, 1981.

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

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

      Jane Pilliod, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Melanie Fishkind, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

If strict compliance with legislatively or judicially enacted procedural protections for defendants wastes the valuable time of overburdened courts (as most taxpayers and even trial judges protest), repetition is a far greater waste when requirements are ignored and, after an appeal, compliance is compelled nonetheless. Probably the most hackneyed phrase in Maryland appellate records is the admonition to both bench and bar that rules, by whomever enacted, are "not guides to the practice of law but precise rubrics 'established to promote the orderly and efficient administration of justice and [that they] are to be read and followed.’ ” Isen v. Phoenix Assurance Co., 259 Md. 564, 570 (1970), quoting Brown v. Fraley, 222 Md. 480, 483 (1960). Judicial novices may upon occasion be forgiven, but even they cannot be excused when an individual’s procedural rights have been denied him.

The appeal before us is from the Circuit Court for Prince George’s County, sitting as a Juvenile Court. It arose after an adjudicatory hearing during which a plea bargain was struck between the State and the juvenile. Under the agreement, the juvenile would admit to shoplifting and malicious destruction of property, for which he would make restitution. Other counts would be stetted or nol prossed.

The judge advised the youth before him of the nature of the charges and the trial rights that he was giving up. He apprised him of the restitution responsibility and the likelihood of commitment to a training school, hospital, or other institution until he was twenty-one years of age. Generally, the judge followed the mandated catechisms, and specifically, he advised the youth that there was a good chance he would be committed to Crownsville Adolescent Unit, a surmise which the judge expressly made from a report he had received based on the juvenile’s prehearing confinement at Boys Village.

"THE COURT: The chances are very good, based on the report the court has before it from Boy’s Village, that I will commit you to Crownsville. Do you understand that?”

The report to which the court alluded was obviously one made pursuant to Md. Cts. & Jud. Proc. Code Ann. (1974, 1980 Repl. Vol.), § 3-818. That section provides that after a petition has been filed, the court may direct an appropriate agency to make a study of the child relevant to the disposition of the case. As part of the study, the child or its parents may be examined mentally or physically by a professionally qualified person. The report of the study is admissible at a waiver or disposition hearing, but not at an adjudicatory hearing.

The statute further provides that the attorney for each party has the right to inspect the report "prior to its presentation to the court”, in order to determine whether its findings should be challenged or impeached, as well as to provide for the presentation of evidence with respect to the study. Md. Rule 905 further implements § 3-818, providing procedural detail. The detailed procedure relating to the presentation of studies or reports under § 3-818 seems a bit at odds with the statutory requirement that counsel see the report prior to its presentation to the court. The rule provides that the study or report

"shall be furnished by the court to counsel for the parties when received by the court ....”

The rule also mandates that counsel must receive it not less than two days before the hearing (i.e., waiver or disposition) at which the results of the examination will be offered in evidence.

It is apparent in this case that the statute and the rule have been violated. Prior to any formal adjudication of delinquency, the court acknowledged that it had considered, and was still considering, the contents of such a study. Furthermore, it is clear from the record that the accused’s counsel had never received a copy of the report although the judge was considering disposition of the case. The judge asked counsel:

"Do you want to send him up for evaluation or just commit him? ”

To which counsel replied,

"I didn’t see the Boy’s Village report, so I don’t know how severe it is,”

clearly indicating that neither the statute nor the rule had been complied with.

The Juvenile Causes statute contemplates a "separate disposition hearing” within thirty days (Md. Rule 915) after an adjudicatory hearing, "unless the petition is dismissed or unless such hearing is waived in writing by all of the parties.” Md. Cts. & Jud. Proc. Code Ann. (1974,1980 Repl. Vol., 1981 Cum. Supp.), § 3-820 (a) (emphasis added). Although the disposition hearing may be held on the same day as the adjudicatory hearing, it may only be done if the notice of the disposition hearing prescribed by the Rules (see Md. Rule 910 c) "is waived on the record by all of the parties”. § 3-820 (a).

In the case before us, the record does not reveal compliance with the procedure to effect a waiver of the disposition hearing, or even waiver of the notice to permit a disposition hearing to proceed on that day. After advising the juvenile of the consequences of his bargain, but before any formal adjudication of delinquency, see In re Roberts, 13 Md. App. 644 (1971), the court appeared to be proceeding toward some sort of a disposition of the matter:

"Very well, then. In these cases, we will, at this time ...”,

when the defense counsel interrupted by saying simply:

"Waive disposition”.

By arguing that the defense counsel "[q]uite obviously” did not intend to waive a disposition hearing, the State’s brief seemingly concedes failure to comply with the joint written waiver requirement, if such had been the intent.

"From the context and subsequent events, it is clear that defense counsel meant that he was waiving notice of the disposition hearing, a procedure which under the Rule would allow the disposition hearing to be held immediately. Quite obviously, he was not by that statement, totally waiving a disposition hearing because he made no objection when the judge proceeded to disposition of the matter immediately thereafter. If by 'Waive disposition’ he had meant that no disposition hearing was to be held, he certainly would have registered disapproval of some sort at the time disposition was made. The court was correct in proceeding as it did, and obviously did so with the acquiescence of both defense counsel and the State’s Attorney.”

Even accepting that assumption, we fail to see conformity with the requirement that waiver of notice be "by all of the parties” and that it show "on the record”. The statute does not permit us to infer a waiver from silent acquiescence by one party. That is not a waiver by that party "on the record”.

But addressing such argument distracts us from the real issue. It is of no consequence whether appellant’s counsel sought to waive the notice or the hearing. The fact remains that there was no hearing and there was no written waiver of a hearing. After, advising the juvenile of the nature and consequences of his plea agreement, the judge posed the question to counsel we noted above, i.e., whether counsel preferred evaluation or commitment. After counsel replied that he had not seen the Boys Village Report, the judge proceeded to dispose of the case peremptorily.

"We will, at this time, commit you — find as a fact that you are in need of care and treatment in these two cases, commit you to the Secretary of the Department of Health & Mental Hygiene for appropriate placement at the appropriate mental health facility, Crownsville Adolescent Unit, not to be released without the court’s permission. They will provide us with a report in about sixty days. Meanwhile, if they want to move you to some drug detoxification unit, they will be able to do that also.”

He did not inform the defendant of his right to allocution personally and through counsel, nor did he afford an opportunity to either to exercise the right. Md. Rule 772 d.

Because it was only one year ago that we pointed out that Md. Rule 772 d was applicable in juvenile proceedings (In re Virgil M., 46 Md. App. 654 (1980)), an overburdened trial judge may be forgiven for his failure to inform the juvenile of his right to allocution, but due to the importance we attached to that right, id. at 657-659, he may not be excused from doing so. Nor is there room for forgiveness when the opportunity to allocute was not even granted the juvenile’s advocate, despite his failure to complain. Had this been the only error, however, it may well have been waived by failure to complain. Logan v. State, 289 Md. 460, 487-488 (1981); Covington v. State, 282 Md. 540 (1978).

Finally, the State’s brief reluctantly concedes procedural error, that the judge’s statement does not conform to the requirements of Md. Rule 915. Subsection b of that rule requires that if there is placement of the child outside the home,

"the judge shall announce in open court and on the record or shall prepare and file with the clerk, a brief statement of the reasons why that placement is necessary.” (Emphasis added).

When, as here, a child is placed in the custody of the Department of Mental Hygiene for inpatient care at a State mental hospital, subsection b of Rule 915, as well as § 3-820 (f), spell out the prerequisites of such commitment, based upon clear and convincing evidence. If the rule is not clear that such findings must be expressed on the record, the statute certainly is:

"(f) The court may not commit a child to the custody of the Department of Health and Mental Hygiene for inpatient care and treatment in a State mental hospital unless the court finds on the record based upon clear and convincing evidence that:
(1) The child has a mental disorder;
(2) The child needs inpatient medical care or treatment for the protection of himself or others;
(3) The child is unable or unwilling to be voluntarily admitted to such facility; and
(4) There is no less restrictive form of intervention available which is consistent with the child’s condition and welfare.”

Should we be disposed to forgive (not excuse) ignorance of that legislative act — effective eight months before trial in this case — we dare not. The Maryland Court of Appeals emphasized its importance by duplicating it on April 18, 1980 as its Rule 915 c, to be effective at the same time as the statute. The significance of such simultaneous stamps of imprimatur pointedly achieved by two such august assemblages cannot be lost upon us.

At the time of argument on this appeal, the State, upon reflection, conceded not merely the § 3-820 (f) error but seemingly the remainder of the conglomerate. It is small wonder that the Court of Appeals has become increasingly annoyed at those on bench or at bar who seem to ignore its rules. Pride Mark Realty v. Mullins, 30 Md. App. 497, 506-509, cert. denied, 278 Md. 730 (1976). Legislators become equally chagrined when courts or counsel fail to comply with their statutory mandates, but they are unable to express their pique as directly as that of the Court (although they often express it more effectively). We hasten to note, however, that while we can react only to the errors of a trial judge, counsel in a case such as this is an equally responsible officer of the court charged with compliance to rule and law. Counsel for both parties owe a responsibility, not only to their clients, but to the court as well to see that procedural niceties mandated by rule or statute are complied with. Especially when dealing with juveniles, short cuts may only be taken by following prescribed paths.

Judgment reversed; case remanded for re-disposition.

Costs not to be reallocated.

Md. Rule 1082f.

      . At argument the State readily conceded that more substantial error had been committed. We assume the concession was that no disposition hearing was held because the attempted oral waiver by defense counsel was ineffective. Since the scope of the concession, like that of the waiver, was somewhat obscure, we feel compelled to respond to the brief rather than possibly to interpret the concession beyond its intended purpose. Repeated reminders to bench and bar may have the Pavlovian result of effecting compliance.


author: Thompson, J.,

text:
    WILLIAM SCARBOROUGH v. STATE OF MARYLAND
    [No. 388,
    September Term, 1981.]

      Decided December 4, 1981.

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

      Howard L. Cardin, Assigned Public Defender, for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Keith Matthews, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

In this case we are primarily concerned with a novel procedure, adopted by the trial judge in a robbery prosecution, in which separate juries were empaneled to try the appellant and a co-defendant simultaneously.

William Scarborough, appellant, was charged along with Maurice King with robbery with a deadly weapon and a handgun violation. The two defendants were tried together as set out above in the Criminal Court of Baltimore. King was acquitted of both charges by one jury while the appellant was found guilty by the other. The appellant was thereupon sentenced to a term of 20 years for the robbery conviction and 5 years for the handgun violation, to be served consecutively.

The appeal presents the following questions:

1. Did the trial court err when it compelled the appellant to be tried along with the co-defendant before two juries?
2. Did the trial court err in instructing the jury that they were the judges of the law?
3. Did the trial court err when it called Laura Batts as a court’s witness?
4. Did the trial court err in permitting improper rebuttal testimony?

FACTS

On the morning of January 11, 1980, Robert Shore, manager of Herb’s Liquor and Cut Rate, accompanied by Henry Floyd, the "clean up man”, went to Carrollton Bank to acquire cash for the business’s check cashing service. After obtaining approximately $10,000 in cash and coins they returned to the store and parked across the street. As they were crossing the street, each was robbed by a different individual. Shore shot several times at the person who robbed him and the robber returned two shots. He testified that he did not see the Floyd robbery. Floyd also testified that he did not see the Shore robbery but that after the shots were fired he did see two persons running in the vacant lot across the street. Robert Shore testified that the robber took from him a package containing approximately $9,900. Subsequently Shore identified the appellant by photo, by line-up and by in-court identification. Henry Floyd testified that the second robber took from him a package containing approximately $100.

Laura Batts, the appellant’s mother, was called at the request of the state as a court’s witness. In the course of her testimony she denied having ever made a statement to an investigating officer that she had seen her son on the morning of the occurrence in question in the company of a man called "Peanut”. Her denial of this statement was later rebutted by the testimony of the investigating officer, Detective Parker. The trial judge ruled that inasmuch as Batts had denied making the statement the state would not be permitted to adduce further testimony from Detective Parker that "Peanut” was the co-defendant King.

Gladys Basilio testified that on the morning of January 11, 1980 she was employed by the Department of Social Services located in Mondawmin Mall and that she had spoken with the appellant at her office between 9:00 — 9:30 a.m., a time within minutes of the robbery of Robert Shore. On cross-examination, testimony was adduced concerning Basilio’s attitude toward police officers, her lack of cooperation with the police and the procedures employed in the course of her work. Thereafter, the state called three witnesses in rebuttal of her testimony. The substance and extent of their statements will be more fully discussed hereinafter.

I Dual Jury System

The appellant contends that the trial court erred in its refusal to grant a severance and in its use of the novel multiple jury system to determine the guilt of the respective defendants. More specifically, the appellant contends that the dual trial resulted in confusion and conflict, thus prejudicing his right to obtain a fair trial.

The multiple jury system is a unique concept in the province of jury trials. The procedure is precarious because all the risks inherent in the traditional jury system become two-fold; as a result, courts which have sanctioned its use have done so hesitantly.

In State v. Corsi, 86 N.J. 172, 430 A.2d 210 (1981), the Supreme Court of New Jersey affirmed the conviction of two criminal defendants who were tried jointly before separate juries. In rendering this decision the court expressed its reservations with respect to the frequent use of this procedure, stating:

"The reason for the lack of widespread adoption of this technique would appear to be the belief that application of appropriate safeguards necessary to protect the rights of defendants in such a trial would be more time consuming than if separate trials were ordered. In addition, inherent in such a complicated procedure is the greatly enhanced possibility of error. It seems clear, therefore, that such procedure remains the rare exception rather than the rule.
"We conclude that the multiple jury procedure utilized in the instant case can involve substantial risks of prejudice to a defendant’s right to a fair trial. As the Appellate Division noted in Hernandez, [State v. Hernandez, 163 N.J. Super. 283, 394 A.2d 883 (App. Div. 1978), certif. den. 81 N.J. 342, 407 A.2d 1216 (1979)] there are too many opportunities for reversible error to take place. We do not recommend it. If it is to be used at all, it should be in relatively uncomplicated situations which will not require the excessive moving of juries in and out of the courtroom and where physical separation of the juries during the entire trial proceedings can be insured. In short, a trial court should carefully weigh the risks involved before attempting to utilize the multiple jury procedure.” 430 A.2d at 213.

Other appellate courts, although finding no reversible error in the trial courts’ use of this procedure, generally condemn its use. See, United States v. Rimar, 558 F.2d 1271 (6th Cir. 1977), cert. denied, 435 U.S. 922 (1978); United States v. Sidman, 470 F.2d 1158 (9th Cir. 1972), cert. denied, 409 U.S. 1127 (1973); State v. Watson, La., 397 So.2d 1337 (1981); People v. Brooks, 92 Mich. App. 393, 285 N.W.2d 307 (1979); Note, Criminal Law — Multiple Jury Joint Trials On the Joint Trial of Two Defendants, the Empanelling of Two Juries Simultaneously is Permissible, 2 Fordham Urban L.J. 407 (1974).

In the present case the trial judge empaneled the juries separately and propounded preliminary instructions cautioning them not to speak of the trial among one another until it was concluded. Additionally, separate opening and closing arguments were given and there were separate jury deliberations and verdicts.

The appellant contends that despite the various measures taken by the court, he nevertheless was deprived of a fair trial. He points to various incidents in the record which allegedly demonstrate prejudice. We fail to see the prejudice, particularly when it is considered that if the trial judge had denied the motion for severance and tried the defendants jointly before a single jury we would have found no abuse of discretion. Md. Rule 745 a provides as follows:

"The court may order two or more charging documents to be tried together if the offenses and the defendants could have been joined in a single charging document.”

Md. Rule 712 permits the charging of multiple defendants in a single document "if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.” It is apparent to us the appellant and his co-defendant below were obviously engaged in a single transaction despite the state having dropped the charges which alleged each was involved in the robbery of both victims. See, Stevenson v. State, 43 Md. App. 120, 130-31, 403 A.2d 812 (1979), aff'd. on other grounds, 287 Md. 504, 413 A.2d 1340 (1980). Appellant had no vested right in shielding himself from the co-defendant’s cross-examination of the victim Floyd. See, Murray v. State, 35 Md. App. 612, 615-16, 371 A.2d 719 (1977). We note particularly that there was no problem of a confession by a non-testifying defendant as arose in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

Although we have found no reversible error, we join the other courts in strongly condemning the use of dual juries.

II Jury as the Judge of the Law

Relying on Stevenson v. State, 289 Md. 167, 423 A.2d 558 (1980), the appellant contends that the trial court committed reversible error in its instruction to the jury that they were the judges of the law, thereby leaving the jury free to interpret for itself numerous federal constitutional rights, i.e., burden of proof, presumption of innocence. Although appellant failed to raise an objection to the instructions at the time they were propounded, he contends that pursuant to Maryland Rule 757 (h) this Court should notice the alleged error. We decline to so exercise our discretion.

Ill Court’s Witness

The appellant contends that the trial court erred in calling Laura Batts, mother of the appellant, as a court’s witness. The state indicated at the time of the request that it could not vouch for the veracity of the witness because she was the mother of the appellant and because her hostility had manifested itself in her failure to appear in court after having received a subpoena. The state bolstered its argument by proffering to the court that upon speaking with the witness she had denied making the statement attributed to her by an investigating officer, namely, that on the morning of the incident she had observed her son together with "Peanut.” The state additionally averred that the witness had refused to answer questions relating to her son. The trial court, satisfied with the relevancy of the proffered testimony and potential hostility of Batts as a witness, granted the request. She denied having ever told the police that she had seen her son with "Peanut” on the morning of the occurrence. The state thereupon placed the investigating officer on the stand to rebut this statement; but, as we stated above, the state was not permitted to elicit from the officer testimony that "Peanut” was co-defendant King.

The leading case in Maryland with respect to the propriety and use of the court’s witness is Patterson v. State, 275 Md. 563, 342 A.2d 660 (1975). In Patterson, the Court oí Appeals recognized that the decision as to whether to call an individual to the stand as a court’s witness lies within the sound discretion of the court, and that such determination will not be reversed on appeal unless there is an abuse of that discretion. Among the various factors discussed by the Court to be considered by the trial judge in determining the necessity of calling a court’s witness were (1) the prosecutor’s inability to vouch for the veracity or integrity of the witness; (2) the close relationship between the witness and the defendant; (3) the existence of contradictory or inconsistent statements by the witness; (4) the hostility of the witness; and (5) the necessity for the testimony, i.e., where the witness possesses material evidence.

We see no abuse of discretion. It appears that the state established a sufficient basis for the court to view Laura Batts as a hostile witness in that (1) Batts was the mother of the appellant, and (2) she had made contradictory statements. In addition, her testimony was relevant and material.

IV Rebuttal Testimony

The appellant asserts that the witnesses offered by the state in rebuttal to the testimony of Gladys Basilio were improperly allowed to testify in that the purpose of their statements was to provide a personal attack on Basilio rather than to explain, contradict or reply to her testimony as required under the rules of rebuttal. See, Mays v. State, 283 Md. 548, 391 A.2d 429 (1978); State v. Hepple, 279 Md. 265, 368 A.2d 445 (1977); Smith v. State, 273 Md. 152, 328 A.2d 274 (1974); Lane v. State, 226 Md. 81, 172 A.2d 400 (1961), cert. denied, 368 U.S. 993 (1962); Riffey v. Tonder, 36 Md. App. 633, 375 A.2d 1138, cert. denied, 281 Md. 745 (1977); Felder v. State, 6 Md. App. 212, 250 A.2d 666, cert. denied, 255 Md. 741 (1969).

Basilio testified that in her capacity as an eligibility worker for the Department of Social Services at the Mondawmin Mall, she met appellant in her office on January 11, 1980 between 9:00 — 9:25 a.m., a time within minutes of the robbery of Robert Shore. On cross-examination she stated that on July 23, 1980 Officer Gammerman had interviewed her. She denied telling Gammerman that she did not want anyone to go to jail or that she hated the police. Upon questioning as to the procedure for interviewing clients at the Department of Social Services, she stated that there was no set standard and that if she observed an individual in the waiting room she would assist them with no additional formality.

Officer Gammerman testified on rebuttal that Basilio had stated to him that she did not want to give the police information that would send someone to jail, that she read the newspapers and had personally observed what police do to people, and that she hated police officers. The second rebuttal witness, Joseph James, District Manager for the Department of Social Services, was called to rebut the testimony of Basilio with respect to whether or not a record would be kept of an individual who had visited the Department of Social Services three or four times during a period of two months. James responded that he was not able to answer that question because he was not the District Manager of the center at that time. He further stated that he had personally checked the files and that there was no open file on the appellant. Finally, Alice Brown was placed on the witness stand to rebut Basilio’s statement that there was no set procedure for interviewing clients. Brown, an employee of the Department of Social Services, contradicted Basilio by averring that the standard procedure for clients walking in the office entailed signing in with the receptionist and being instructed to wait in the "AR” room until a department employee could see him or her.

The general rule with respect to the admissibility of rebuttal testimony has been discussed by the Court of Appeals in Lane v. State, 226 Md. at 90, where the Court stated:

"Any competent evidence which explains, or is a direct reply to, or a contradiction of, material evidence introduced by the accused may be produced by the prosecution in rebuttal, Shanks v. State, 185 Md. 437, 45 A.2d 85 [(1945)]. And what constitutes rebuttal testimony in a criminal prosecution is a matter resting in the sound discretion of the trial court.”

We find no abuse of discretion in permitting the testimony of these witnesses. Appellant’s defense of alibi was predicated upon the statements of Gladys Basilio. The obvious purpose of the introduction of the rebuttal testimony was to discredit the witness and demonstrate the presence of bias. Each of the witnesses sufficiently "explained, replied to, or contradicted” Basilio’s statements. The testimony of Officer Gammerman revealed the potential bias or prejudice of Basilio with respect to her alleged meeting with the appellant at the time of the occurrence in question. Joseph James was presented to reveal the absence of a record of appellant’s appearance at the Department on the date in question, and finally, Alice Brown was placed on the stand to testify as to the existence of standard procedures which Basilio had indicated did not exist. The determination of proper rebuttal evidence is a matter resting within the discretion of the trial court and as such will not be reversed on appeal in the absence of a demonstration that such testimony is manifestly wrong and substantially injurious. Hepple v. State, 31 Md. App. 525, 358 A.2d 283, aff'd. 279 Md. 265, 368 A.2d 445 (1977). We find no reversible error.

Judgments affirmed.

Costs to be paid by appellant.

      . The courtroom was equipped with jury boxes on either side of the room as well as separate jury rooms behind each box. As the result of a faulty air conditioning system the juries were housed in the same jury room except during final deliberation. The appellant urges that he was prejudiced by this commingling of juries. In view of the specific instructions of the trial judge to the jurors not to speak among one another and the absence of any indication that this instruction was not observed, we find no reversible error.

      . We note that the trial judge not only found the evidence to be proper rebuttal, but also said if it were not, he would permit the state to reopen the case.

      . At the hearing for a motion for new trial Joseph James testified that he had erred when he testified that the Department maintained no file on the appellant Scarborough. The records did, in fact reveal a file dated August 1979 which had been renewed for a period of three months in November 1979. The file did not reflect whether the appellant had visited the Department anytime in January 1980 and thus such error did little to improve appellant’s position with respect to his alibi defense.


author: Bishop, J.,

text:
    RANDOLPH THOMAS v. STATE OF MARYLAND
    [No. 243,
    September Term, 1981.]

      Decided December 7, 1981.

      The cause was submitted on briefs to Mason, Liss and Bishop, JJ.
    Submitted by Michael R. Braudes, Assistant Public Defender, and Alan H. Murrell, Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney General, Alexander L. Cummings, Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and John Thompson, Assistant State’s Attorney for Baltimore City, for appellee.
   Bishop, J.,

delivered the opinion of the Court.

Randolph Thomas, the appellant, was indicted for first-degree premeditated murder, felony murder, armed robbery, use of a handgun in the commission of a violent crime, and various lesser included offenses, related to an incident of February 11, 1980. He was tried by a jury in the Criminal Court of Baltimore on September 4-16, 1980.

The jury convicted Thomas of both felony murder and armed robbery. The trial judge merged the armed robbery conviction into the felony murder conviction and imposed a sentence of life imprisonment, suspending all except fifty years of that term.

On appeal Thomas asks:

"1. Did the trial court err in denying Appellant’s motion to suppress predicated upon the lack of specificity of the search warrant?
2. Did the trial court err in failing to provide defense counsel with the complete grand jury testimony of Melvin Thomas?
3. Did the trial court err in denying motions to strike two jurors for cause?
4. Did the trial court err in denying Appellant’s motion to dismiss predicated upon the denial of a preliminary hearing?
5. Did the trial court err in overruling Appellant’s objection to a question by the prosecutor implying that Appellant had committed an unrelated crime?
6. Did the trial court err in instructing the jury that searches and seizures leading to the introduction of evidence against Appellant were valid and authorized?
7. Did the trial court err in permitting the jury to take into the jury room during deliberations only the court’s instructions regarding the definition of the alleged offenses and not matters such as the State’s burden of proof, the presumption of innocence, and the definition of 'reasonable doubt’?
8. Did the trial court err in permitting the prosecutor in closing argument to argue facts not in evidence?”

For the reasons set forth in this opinion we answer each and all of the appellant’s questions in the negative, and we affirm his conviction.

The Facts

On February 11, 1980, at approximately 9:00 p.m., three armed men wearing ski masks entered Charlie’s Bar on East Baltimore Street. At gunpoint one of these robbers took $77.00 from the bar’s cash register. The State contended at trial, and the Baltimore City jury concluded, that this robber was the appellant.

A second gunman, subsequently identified as one Darnell Williams, shot a bar patron in the face with a 12-gauge shotgun, instantly killing the victim.

The third gunman, one Michael Mebane, having previously pled guilty to second-degree murder, testified as a State’s witness at the appellant’s trial. Mebane testified that Thomas was the robber who stole the $77.00 of cash.

Further testimony was provided by Detective James Ozazewski who testified that subsequent to the offense he interviewed Randolph Thomas. According to Detective Ozazewski, the appellant initially admitted involvement in the crime but subsequently denied participation.

The appellant himself testified that he spent the evening of February 11, 1980 watching television. He speculated as to the "actual” identity of the other robber as a friend of Williams and Mebane. Randolph Thomas testified that certain physical evidence of the crime, seized from the appellant’s home, belonged to Mebane.

Additional facts will be presented with the discussion of each issue.

I. Search Warrant

A search and seizure warrant signed by a reviewing judge on February 20, 1980, supported by a written application and attached affidavit, was submitted to the lower court. On the date the warrant was signed, the police executed the warrant at the premises designated in the warrant. Items seized included a pair of tennis shoes and part of a shotgun stock.

At trial the appellant moved to suppress the seized items on the grounds that they were obtained during an illegal search and seizure. Specifically the appellant contended that the search warrant inadequately described the premises of the search.

At the suppression hearing, on September 4, 1980, the lower court learned that the search warrant described the place to be searched as:

"907 E. Lombard Street which is an eleven story high rise consisting of the first floor being a Lombard Street address with a white door with the numerals 907 above the door [,] in the City of Baltimore!.]”

The warrant, which used wording identical to the application for the warrant, listed the concealed property to be seized, namely:

"Black ski mask with yellow rings around the eyes, nose and mouth, red and blue ski mask, revolver, sawed off shot gun, tennis shoes [,] which is evidence relating to the commission of a crime pertaining to Homicide of Robert Lee Perrear and Robbery of Charley’s Bar [.]”

Defense counsel contended that the search and seizure warrant was "too general” because it did not state the appellant’s name, and did not direct the police officers to a specific apartment. No relevant authority was cited in support of these contentions, and defense counsel conceded that no requirement existed for the inclusion of a suspect’s name on a search warrant.

The lower court, seeing the warrant’s affidavit, and learning that the appellant’s brother served as informant for the affidavit, denied the motion to suppress. The court stated that the warrant was sufficiently specific.

In a later hearing, on September 5, 1980, the lower court asked the defense counsel if he had been fully heard in his argument on the motion to suppress. With the court’s indulgence, defense counsel expanded the grounds of the motion to include a challenge to the reliability of the affidavit’s informant, Melvin Thomas, the appellant’s older brother. The lower court again denied the motion to suppress the seized items having read the statements attributed to Melvin Thomas.

The items seized from the residence of the Thomas family were admitted into evidence in the trial of Randolph Thomas. The shotgun stock found at the appellant’s residence was proven to be the murder weapon, and the tennis shoe matched a shoeprint found at the crime scene.

On appeal Randolph Thomas contends that the lower court erred in denying his motion to suppress, and on the same basis, his motion for a new trial.

The basis for his challenge to the search and seizure is now phrased "that the warrant contained a description of the place to be searched which was so general as to fail to meet the specificity requirement of the Fourth Amendment.”

The appellant does not support his contention with reference to apposite Maryland case law, but rather chooses to distinguish cases in which this Court upheld the use of items seized during the execution of search warrants at multiple-unit dwellings.

In his brief the appellant states in part:

"The decisions of this Court on this issue have turned on whether the police knew or should have known that the building was a multiple-occupancy structure. In both Delly v. State, 30 Md. App. 391, 352 A.2d 331 (1976), and Butler v. State, 19 Md. App. 601, 313 A.2d 554 (1974), this Court held that the police could reasonably have believed the relatively small buildings at issue to be single-family dwellings; the street address was therefore sufficiently specific. It is the clear implication of both cases, however, that where a conventional multiple-unit apartment building is at issue, greater specificity is required.”

The appellant then distinguished between the facts of Delly and Butler and his own circumstances, and asserts:

"In the present case, the building at issue is an 11-story apartment structure which could not reasonably have been perceived by anyone as a single-family dwelling. Accordingly, the warrant constituted a 'general warrant’ purporting to give the police the authority to search numerous residences which they had no probable cause to search. The motions to suppress and for a new trial should have been granted.”

Having examined the record and the authority relied on by the parties to this appeal, we find that the search warrant used by the police in this case did not constitute an illegal general warrant.

Maryland law required no stricter test of the specificity of a search warrant than that the warrant, "shall name or describe, with reasonable particularity the ... building, apartment, premises [or] place .... to be searched... Harris and Schmitt v. State, 17 Md. App. 484, 487, 302 A.2d 655 (1973), citing Md. Code Art. 27, § 551.

In Harris, supra, at 486 quoting from Frey v. State, 3 Md. App. 38, 46, 237 A.2d 774 (1968) we found that the purpose of a requirement for specific warrants was the prevention of "a random or blanket search in the discretion of the police in violation of the Fourth Amendment to the Federal Constitution. ..” We then found that this purpose is not well-served by a strict test; Harris, supra, at 487, but rather we observed that:

"There is, of course, no formula which can be used to measure the particularity with which premises must be described in a search warrant, the adequacy of such description in every case necessarily depending on the facts and circumstances there present. Tucker v. State, 244 Md. 488, 496. A description of a place to be searched is ordinarily sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place intended. Steele v. United States, 267 U.S. 498; Saunders v. State, 199 Md. 568. In determining whether the description of the place to be searched meets these standards, it is permissible to look to the affidavit as well as the warrant since the affidavit is a part of the warrant and incorporated by reference therein. See Fry v. United States, 9 F. 2d 38 (9th Cir.).. .quoting Frey v. State, supra at 46, 237 A.2d 774 (1968).

By weighing the facts of this case against the standard set forth above, we find that the appellant’s right to protection against unreasonable searches was not violated. The record clearly discloses that the police officers who applied for and who executed the subject warrant easily identified the premises to be searched. Therefore, in the absence of allegations that the officers conducted a "dragnet” search of the apartment building, we must conclude that the purpose of the Fourth Amendment was not violated. See Marron v. United States, 275 U.S. 192 (1927), holding that the rationale for the warrant requirement is the limitation of police discretion.

Rather than sweeping through the building, the police officers executing the warrant for 907 East Lombard Street traveled directly to the Thomas apartment, and served the warrant on Mr. George Thomas, identified on the back of the warrant as the "suspect’s father.” Once inside the apartment the police found the precise items of contraband they had searched for. The success of this search "dissipated much of [the] force” of the appellant’s contention. Tucker v. State, 244 Md. 488, 496 (1966).

The officers knew which building to enter because of the notation on the front of the search warrant. They knew which apartment to search because of the information in the attached affidavit in support of the warrant. This affidavit does not state the number of the apartment to be searched, but it adequately identifies the apartment by providing the name of the resident, Randolph Thomas, the appellant. The information cited in the affidavit is attributed to the appellant’s brother, Melvin Thomas, who approached the police following the earlier arrests of Randolph Thomas for possession of a sawed off shotgun, and disorderly conduct.

The absence of a suspect’s name from a search warrant, as in this case, does not make the warrant defective, Saunders v. State, 199 Md. 568, 575, 87 A.2d 618 (1952), because the police may learn from the warrant’s affidavit the information they require to make a proper search. See Frey, supra at 46 in which police obtained a warrant for "an apartment house” at 2008 East Pratt Street, and identified the specific rooms by reading the names of the occupants as listed in the attached affidavit. See also Couser v. State, 36 Md. App. 485, 493-494, 374 A.2d 399 (1977), aff'd on other grounds, 282 Md. 125 (1978), in which an otherwise defective warrant was supported by the affidavit’s description of premises which were specifically incorporated by reference in the warrant.

The case of Giles v. State, 10 Md. App. 593, 271 A.2d 766 (1970), cited by the appellant at trial, is clearly inapposite to the present case. In Giles, we held that a search warrant was invalid because it both failed to describe the premise to be searched, and failed to incorporate by reference an affidavit which did describe the premises. In the present case we are not concerned with the abuse of a "blank” warrant. Instead the instant case exemplifies the general rule stated in 79 C.J.S. Searches and Seizures § 78 (1981):

"A description of the premises to be searched, contained in a separate paper attached to and referred to in, the affidavit even though not signed, initialed or otherwise identified as a part thereof, is sufficient.” citing U.S. v. Meeks, 313 F.2d 464 (6th Cir. 1963).

In his brief the appellant refers us to a different summary of the case law at Annot., Search Warrant: Sufficiency or Description of Apartment or Room to be Searched in Multiple-Occupancy Structure, 11 A.L.R. 3rd 1330,1333, (1967), which states:

"Consonant with the general requirement that search warrants contain a particular description of the premises to be searched, a search warrant directed against a multiple-occupancy structure will usually be held invalid if it fails to describe the particular subunit to be searched with sufficient definiteness to preclude a search thereunder of other units located in the larger structure and occupied by innocent persons.”

The author of the above-referenced statement continues, however, and states:

"Even though a search warrant directed against a multiple-occupancy structure fails to physically describe the particular subunit to be searched, it will ordinarily not be held invalid where it adequately specifies the name of the occupant of the subunit against which it is directed.” Id. at 1340.

Based on the foregoing analysis of the law, applied to the present case, we hold that the lower court did not err in denying the appellant’s motion to suppress.

II. Grand Jury Testimony

At the appellant’s trial, Melvin Thomas appeared as a State’s witness and testified concerning his brother’s association with Michael Mebane and Darnell Williams, who were suspects in the Charlie’s Bar crimes.

Melvin Thomas stated that when he questioned his brother about the crime, the appellant told him that he had "heard about” the incident.

At an immediately subsequent bench conference, the State claimed that it was surprised by the trial testimony of Melvin Thomas, and that this testimony was "substantially different” from the witness’s statements to the Grand Jury, which the State produced which showed that Randolph Thomas, in response to his brother’s inquiry about the incident, replied, "I got involved in some thing and the man got hurt.”

Over defense objection the State was permitted to treat Melvin Thomas as a hostile witness. Defense counsel then requested to see the entire minutes of the Grand Jury. The trial court denied this request, after reviewing the testimony and finding that there was a "clear contradiction” between Melvin’s testimony before the Grand Jury and his testimony before the trial court. The court did permit the defense to see relevant portions of Melvin’s prior testimony before the Grand Jury for the limited purpose of cross-examination.

During subsequent direct examination, Melvin Thomas denied that his brother had admitted involvement in the Charlie’s Bar crimes and attributed the information he told the Grand Jury to Michael Mebane. On cross-examination Melvin testified that the police "twisted” his statements to them, and "threatened” him in the presence of his family. On redirect examination Melvin stated that he "had trouble” with not only the police, but also with the co-defendants and "a lot of other people”, and that he had been shot, all of which he believed resulted from his cooperation with the law enforcement authorities.

On appeal Randolph Thomas contends that the trial court erred in not providing his defense counsel with the entire transcript of Melvin’s Grand Jury testimony. Citing Dennis v. United States, 384 U.S. 855 (1966), the appellant argues that "a criminal defendant is entitled to the disclosure of grand jury testimony where he can demonstrate a 'particularized need’ for the information.” He believes that such a need for the complete Grand Jury testimony of Melvin Thomas was shown, and that this need outweighed the interest of the State in protecting Melvin Thomas or preserving the secrecy of the Grand Jury.

The State replies that the appellant received the portions of prior testimony relating to Melvin’s prior inconsistent statement and also that the appellant waived the issue by not seeking to have the entire Grand Jury testimony introduced into evidence for identification at trial, citing Van Meter v. State, 30 Md. App. 406, 410, 352 A.2d 850 (1976).

From our examination of that portion of Melvin’s Grand Jury testimony which was made a part of the record, and from appellant’s arguments concerning his need for the entire prior testimony, we find that á "particularized need” for the additional testimony was not demonstrated. The transcript which was provided to the appellant was adequate for the defense’s stated purpose of conducting an "intelligent cross-examination.” No further purpose was alleged which showed an abuse of the trial court’s discretion in this matter. Sutton v. State, 25 Md. App. 309, 314-315, 334 A.2d 126 (1975).

The appellant’s contention that the State’s interest in protecting Melvin Thomas had "long disappeared” by the time of trial is contradicted by what Melvin Thomas believed was the result of his cooperation with the State including his alienation and his being shot.

Based on the foregoing the trial court did not err in restricting the appellant’s access to the Grand Jury testimony.

III. Jurors

During voir dire examination of the prospective jurors, the trial court asked the panel whether any of them had been a victim of the types of crimes charged in the appellant’s indictment. Among others Juror No. 84 stated that several years before he had been the victim of an armed robbery, and Juror No. 258 stated that several years before she had been robbed and assaulted. Each of these jurors was asked by the trial court whether their victimization would prevent them from rendering a fair and impartial verdict in the appellant’s case. Each of them responded negatively, and the court subsequently denied defense challenges for cause as to these jurors.

On appeal, Randolph Thomas submits that the trial court denied him a fair and impartial jury by the refusal to strike the two subject jurors. We disagree with the appellant’s contention.

The record indicates that neither Juror No. 84, nor Juror No. 258 ultimately participated in the deliberation of the appellant’s case, but rather both prospective jurors were peremptorily challenged by the defense and struck. The appellant does not contend that the trial court’s failure to strike the two jurors for cause compelled him to "waste” his peremptory challenges, although he cites the case of Tisdale v. State, 30 Md. App. 334, 339, 353 A.2d 653 (1976) in which the court accepted such a contention.

The present case is readily distinguishable from Tisdale, supra by the nature of the different causes for which the various jurors were challenged. In Tisdale we held that jurors’ admission that they would give more weight to the testimony of police officers than to the testimony of any other witness was sufficient cause for disqualification. Those two jurors were struck by peremptory challenges of the Tisdale defense, and we held that the trial court had "effectively reduced” the defendant’s alloted peremptory challenges.

The proffered cause for disqualification in the case before us does not rise to the level of Tisdale.

In McCree v. State, 33 Md. App. 82, 98, 363 A.2d 647 (1976), Judge Moylan stated that test:

"A juror may be struck for cause only where he or she displays a predisposition against innocence or guilt because of some bias extrinsic to the evidence to be presented. Johnson v. State, 9 Md. App. 143, 149. [262 A.2d 792 (1976)].”

In McCree, supra this test was applied to sustain a trial judge’s decision not to strike a potential juror who knew a trial witness, but had not socialized with the witness for at least three years. The juror also informed the court that the relationship would neither influence her judgment in the case, nor affect her belief of the witness’s testimony.

In Poore v. State, 39 Md. App. 44, 72, 384 A.2d 103 (1978), we applied the identical test of "predisposition against guilt or innocence,” citing McCree and Tisdale, and sustained the striking for cause of a juror who would absolutely not consider the use of wiretap testimony by the State.

The facts of the present case, in which the two prospective jurors stated that events which occurred several years in the past would not affect their judgment, bears greater similarity to the facts of McCree, than to Tisdale and Poore.

Moreover, the record in the present case indicates that the appellant used only fifteen of his twenty peremptory challenges. A similar circumstance occurred in McCree, supra at 98, where we held that any error was therefore manifestly harmless because the appellant still had peremptory strikes available. Assuming arguendo that the trial court was in error in the instant case, such error, in light of McCree, was harmless beyond a reasonable doubt because there were still five peremptory strikes remaining.

IV. Preliminary Hearing

The appellant was arrested in the early afternoon of February 21, 1980. The next day he appeared before a District Court Commissioner and received a printed Notice of Right to Request Preliminary Hearing form. By this document the appellant learned:

"THAT the state’s attorney may elect to charge him either by way of indictment, or by criminal information;
THAT if he is charged by way of indictment that indictment will not issue unless a grand jury of this State determines that probable cause exists for the issuance of such indictment;
THAT if he is charged by way of criminal information the case will not be presented to the grand jury, but that he has the absolute right to a preliminary hearing by a judge of the District Court, if he requests same; and
THAT he may request a preliminary hearing at the present time, or at any time within ten (10) days from the date hereof.”

Underneath this text of the Notice, the document bears the signature of the commissioner, and the signature of Randolph Thomas with an adjacent notation of "Randy.” In a handwriting distinct from that of the commissioner and the appellant, the Notice is captioned with the appellant’s name, case number and District Court location. The same author of this caption appears to have also added the date "2/22/80” after the commissioner’s signature, and after that portion of the Notice which says, "I hereby request a Preliminary Hearing, and the date of this request is--” The printed box preceding this request is not checkmarked, neither is the box of the subsequent sentence which states, "I have requested that a preliminary hearing be held on.......” The blank space for this latter sentence was filled in by the same distinct hand, with the date "3/14/80 [at] 9 [o’clock] A.M. at 5710 Eastern Ave.....”

On March 14, 1980 Randolph Thomas did not receive a preliminary hearing but rather on that date the Grand Jury for Baltimore City filed an indictment in the case against the appellant. By a motion to dismiss this indictment, filed at the commencement of his trial, the appellant challenged the constitutionality of Md. Code Art. 27, § 592, by which, he contended, the State denied him a preliminary hearing and denied him due process of law.

This Code section provides in pertinent part:

"In any case where the defendant has been charged with a felony, other than a felony within the jurisdiction of the District Court, the defendant shall be advised by the court or court commissioner, at the time of the initial appearance required by the Maryland District Rules, of his right to request a preliminary hearing. The defendant may make that request at the time of the initial appearance or at any time within ten days thereafter. If the defendant fails to request a preliminary hearing within the ten-day period, it is waived.
* * *
If the state’s attorney elects to charge the accused by grand jury indictment, the preliminary hearing is not a matter of right to the defendant but may be afforded in the court’s discretion. A preliminary hearing is not a matter of right in any other case, but may be afforded in any case in the court’s discretion, upon motion of the state’s attorney or the defendant.”

At a hearing on the motion to dismiss, the appellant introduced into evidence the Notice of Right to Request Preliminary Hearing form, which he identified as "my request for right to preliminary hearing.” He told the court that he signed the document and did not "give up the right to a preliminary hearing.”

On cross-examination the appellant, Mr. Thompson (the prosecutor), Mr. Scherr (defense counsel), and the court engaged in the following colloquy:

"BY MR. THOMPSON:
Q Mr. Thomas, you have already identified this as the preliminary hearing form that you signed, is that correct?
A Yes.
Q Now, read this one line to me right here.
A I hereby request a preliminary hearing.
Q You see a box next to it to be checked?
A Yes.
Q Did you check that box? Is there any mark on that box at all?
A No, it’s not.
MR. THOMPSON: Thank you. I have no further questions, Your Honor.
MR. SCHERR: Nothing further.
THE COURT: Let me have that, please. I may have a question of the Defendant also. I would ask the Clerk to show this exhibit to the Defendant, Mr. Thomas. I would call your attention, Mr. Thomas, to that line which the State’s Attorney just showed you where it says, I hereby request the preliminary hearing, the date of this request is, and there is a box there that you state you did not check. Now, I note on that line it has 2/22/80, it looks like, and it appears to me that that date of 2/22/80 was placed there by the Court Commissioner, who filled out all the other forms. I want to make sure that’s not your handwriting there. Show him where I mean, Mr. Clerk.
THE CLERK: (Indicating)
THE COURT: That’s not your handwriting, is it?
A No, this is not my handwriting.
THE COURT: All you did on that form, as I would gather, is sign it at the bottom, is that correct, sir?
A No, it was understood by the Commissioner who issued this to me saying that if I signed this, I would be getting a preliminary hearing within three days and then when I went, I believe I heard at the Police Station while I was waiting for my preliminary hearing I never got, I just never got none.”

Based on the appellant’s testimony and the documentary evidence, the trial court found that Randolph Thomas had been notified of his right to a preliminary hearing, but that he had not requested a preliminary hearing, and had thereby waived the opportunity for such a hearing under Md. Code Art. 27 § 592. The appellant’s motion to dismiss was denied.

On appeal Thomas renews his challenge to Section 592, contending that it creates "a dichotomy between those charged by indictment and those charged by information.” While citing no Maryland authority supporting the proposition that such a dichotomy is unconstitutional, the appellant refers us to the Court of Appeals decision in Crawford v. State, 282 Md. 210, 383 A.2d 1097 (1979).

In Crawford, supra the Court of Appeals affirmed the criminal conviction of an appellant who argued that the trial court unconstitutionally admitted into evidence at trial testimony presented at his preliminary hearing. These facts are clearly distinguishable from those of the present case, but both the appellant and the appellee find support in the dictum of Chief Judge Murphy:

"While there is no constitutional right to a preliminary hearing, the accused is entitled to such a hearing by statute, if, as here, he makes a timely request for it.” Id. at 220-221

In the present case there is a finding by the lower court, that the appellant waived his right to a preliminary hearing, having reviewed the record, and in the lengthy oral opinion of the trial judge, we find that his decision was supported by the evidence, and was not erroneous. Md. Rule 1086, Bell v. State, 286 Md. 193, 200, 406 A.2d 909 (1979).

Even if the appellant had effectively requested a preliminary hearing, the trial court could have found that the appellant’s rights were adequately protected by the Grand Jury process. The court could have then exercised its discretion and denied the requested preliminary hearing. Marshall v. State, 46 Md. App. 695, 697, 420 A.2d 1266 (1980), rev’d on other grounds, 291 Md. 205, 434 A.2d 555 (1981).

V. Other Crimes Question

During the prosecutor’s cross-examination of the appellant at trial the following colloquy occurred:

"Q Mr. Thomas, do you know a boy named Apple?
A Apple?
Q Apple.
A I don’t know, I might. I don’t know.
Q Asa matter of fact, you stole that shotgun from Apple, didn’t you?
MR. SCHERR: Objection.
THE COURT: Overruled.
A No.”

The appellant contends that "the interjection into the case of this phantom offense carried a high risk of prejudice” which constituted reversible error. We disagree because the answer was in the negative and was harmless beyond a reasonable doubt.

VI. Jury Instruction

The appellant next contends that the trial court erred in instructing the jury that the police conducted a "valid, authorized entry” of the appellant’s residence pursuant to a search warrant, even though the warrant was not introduced into evidence. The appellant believes that the court’s remark could have conveyed to the jury an impression that the court considered the seized evidence to be entitled to greater weight than other evidence, or could have indicated that the court thought that Thomas was guilty of the crimes.

To determine whether a trial court’s comments constitute an error, the substance of the comments is examined for indications of unfairness, partiality, or impropriety by the court. Coby v. State, 225 Md. 293, 296-297, 170 A.2d 199 (1961).

The record of the present case reveals the context in which the trial court made its remark. At the start of the trial the court had denied appellant’s motion to suppress evidence seized pursuant to a search and seizure warrant. During the trial the State attempted to introduce into evidence the search warrant for the appellant’s residence. The defense objected and at a bench conference, reminded the court that the warrant listed items that the police sought but did not find. The prosecutor replied that he needed the warrant as evidence of the officer’s authority for the search. The trial court sustained the defense objection, finding that the validity of the police action was undisputed, and the judge informed the jury of this very reason for sustaining the objection.

A virtually identical situation occurred in Meyer v. State, 43 Md. App. 427, 444-445, 406 A.2d 427, cert. denied, 286 Md. 750 (1979), U.S. cert. denied, 446 U.S. 938 (1980). In that case we held that a trial court did not err in providing a jury with a "compromise” instruction explaining why the court had sustained a defense objection to the introduction of an incriminating search warrant.

In the present case, the State’s proffer of the warrant was certainly unnecessary in light of the favorable ruling for the State at the suppression hearing.

The trial court was therefore correct in sustaining the objection to the warrant and thereby preventing prejudice to the defendant. The court’s remark on its ruling, coming as it did prior to the introduction of the seized evidence, may have served to dispel the jury’s questions about the search, and clearly did not usurp the jury’s role in weighing the evidence, Meyer, supra at 445. We cannot say that the court acted unfairly or improperly.

VII. Deliberation Documents

As his penultimate contention the appellant challenges the trial court’s refusal to permit the jury to use during its deliberation various written instructions concerning the burden of proof and the presumption of innocence. Instead the trial court only permitted the jurors to use instructions, provided for them concerning the law of the substantive crimes. The trial judge informed counsel of his belief that the additional matters were "much more readily understood when delivered orally....”

Citing the Court of Appeals decision in Stevenson v. State, 289 Md. 167, 423 A.2d 558 (1980), the appellant argues that the trial court infringed on his constitutional protections by "highlighting” certain areas of the law, and "deemphasizing” other areas. The short answer to this contention is that Md. Rule 757e subjects to the approval of the trial court the deliberating jury’s use of written instructions.

Having reviewed the case law and the record we cannot say that the trial court abused its discretion in limiting the written instructions provided to the jurors.

VIII. Prosecutor’s Argument

In his closing argument to the jury the prosecutor did not discuss the substance of Melvin Thomas’s testimony, but only reminded the jury that they had heard both Melvin’s trial testimony, and had been informed of his Grand Jury statements. Defense counsel subsequently argued to the jury that Melvin Thomas was a "victim” of the police and the State’s Attorney office, who tried to "expose the distortion and deception” of the State’s Attorney’s office.

Responding to this argument the assistant State’s attorney was permitted, over objection and motion for mistrial, to inform the jury that he spoke with Melvin Thomas three or four times prior to the trial. According to the prosecutor’s rebuttal, on those prior occasions, Melvin Thomas assured him that he would provide the same testimony at trial as he had before the Grand Jury.

The trial judge overruled the defense objections, finding that the prosecutor explained why Melvin Thomas was a hostile witness, and why the prosecutor anticipated certain testimony from Melvin.

On appeal Randolph Thomas contends that the trial court committed prejudicial error in permitting the prosecutor to argue from facts not admitted into evidence. The appellee replies that the prosecutor only corrected the statements of the defense counsel, and even if improper, the remark was not grounds for reversal, citing James v. State, 31 Md. App. 666, 681, 358 A.2d 595, cert. denied, 278 Md. 725 (1976).

Our examination of the record and applicable case law compels us to agree with the State. In James, supra we affirmed a murder conviction and found no error in the trial court’s failure to grant a mistrial despite a prosecutor’s dramatic and improper references to the victim’s wounds. We relied on the Court of Appeals decision in Wilhelm v. State, 272 Md. 404, 326 A.2d 707 (1974), and applied the standard that the denial of a mistrial motion is not reversible unless the defendant is clearly prejudiced. James, supra at 680.

In Wilhelm, supra at 413 the Court of Appeals discussed the role of the trial judge in supervising counsel’s closing arguments:

"As a limitation upon the general scope of permissible closing argument this Court in Esterline v. State, 105 Md. 629, 66 A. 269 (1907), cautioned that counsel should not be permitted by the court, over proper objection, to state and comment upon facts not in evidence or to state what he could have proven. Persistence in such course of conduct may furnish good grounds for a new trial. The conduct of the trial must of necessity rest largely in the control and discretion of the presiding judge and an appellate court should in no case interfere with that judgment unless there has been an abuse of discretion by the trial judge of a character likely to have injured the complaining party. 105 Md. at 637, 66 A.2d at 272.”

The prosecutor’s argument that Melvin had previously told him three or four times that he would testify at trial as he had before the Grand Jury was not proper closing argument. The trial judge abused his discretion in allowing the prosecution to proceed with that argument over the appellant’s objection; however, this abuse of discretion was not likely to have injured the appellant because the content of the prosecutor’s remark was information that could have clearly been inferred from the testimony of the witness both as to content and the procedure in obtaining it. Wilhelm, supra.

No prejudice to Randolph Thomas has been shown and attributed to the prosecutor’s remark, and we hold that no reversible error was committed by the trial court.

Judgment affirmed.

Appellant to pay costs.

      . The appellant’s attorney later referred to this court’s decision in Giles v. State, 10 Md. App. 593, 271 A. 2d 766 (1970), but he conceded that the case was "not on point,” and he does not cite the case in his brief. In our analysis, infra we distinguish Giles from the present case.