author: Gilbert, J.,

text:
    ROCKY FLOYD ARBAUGH v. DIRECTOR, PATUXENT INSTITUTION
    [No. 1036,
    September Term, 1974.]

      Decided July 28, 1975.

    The cause was submitted on briefs to Moylan, Gilbert and Mason, JJ.
    Submitted by James F. Garrity, Assigned Public Defender, for appellant.
    Submitted by Francis B. Burch, Attorney General, Donald R. Stutman, Assistant Attorney General, Warren B.

      Duckett, State’s Attorney for Anne Arundel Comity, and Joseph V, Reina, Assistant State’s Attorney for Anne Arundel County, for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

Rocky Floyd Arbaugh, appellant, was found by a jury in the Circuit Court for Anne Arundel County, to be a defective delinquent within the meaning of Md. Ann. Code art. 31B, § 5. From that determination Arbaugh sought leave to appeal to this Court, which leave was granted on February 3, 1975, and the case was transferred to the regular appeal docket.

In this Court the appellant strenuously argues that:

“References to charges or [sic] homicide or murder pending against the Appellant at the time of his defective delinquent hearing, but not yet determined by a Court of law are prejudicial to the Appellant at the defective delinquent hearing, where these references were brought out in opening and closing statements by the state and/or elicited in testimony of expert witness at the defective delinquent hearing.”

Md. Ann. Code art. 31B, § 5 provides:

“For the purposes of this article, a defective delinquent shall be defined as an individual who, by the demonstration of persistent aggravated antisocial or criminal behavior, evidences a propensity toward criminal activity, and who is found to have either such intellectual deficiency or emotional unbalance, or both, as to clearly demonstrate an actual danger to society so as to require such confinement and treatment, when appropriate, as may make it reasonably safe for society to terminate the confinement and treatment.”

Seizing upon the phrase “evidences a propensity toward criminal activity”, and the wording of Weeder v. State, 274 Md. 626, 337 A. 2d 67, wherein the Court of Appeals stated:

“ ... at a minimum the report of the staff should include relevant information from the study made by the social worker, a summary of the inmate’s prior arrests and convictions, incident reports, disciplinary infractions, observations made by guards, fellow inmates and staff, . . .” (Emphasis supplied). (Footnote omitted).

the State suggests that the trial judge properly allowed the Assistant State’s Attorney to advise the jury preliminarily, in opening statement, that the appellant was awaiting trial on a charge of murder of a fellow inmate, to make the same point during closing argument and that the trial court also properly allowed into evidence the Patuxent reports concerning that incident.

On cross-examination the appellant’s attorney endeavored to demonstrate that the information concerning the slaying was obtained through guards from fellow inmates. What effect, if any, the fact that the information was obtained from fellow inmates, as distinguished from official personnel, had in minimizing, in the eyes of the jury, the prejudicial nature of the testimony is unknown. Nevertheless, if the above-quoted language from Weeder is read literally, evidence concerning the pending indictment is admissible. We decline so to read Weeder.

As we see it, the Court in Weeder used the phrase “prior arrests and convictions” in its conjunctive, not disjunctive, sense. The phrase simply means arrests upon which convictions have been grounded. In short, the Court used it as a synonym for “prior convictions”. See Middleton v. Director, 235 Md. 623, 201 A. 2d 352 (1964), which holds that prior convictions are admissible in evidence in a defective delinquency case. Observations by Patuxent personnel or by other inmates, for that matter, of a person alleged to be a defective delinquent, may be noted in the institutional record that is admissible. Weeder v. State, supra; Sas v. Maryland, 334 F. 2d 506 (4th Cir. 1964). Although, as we have stated, evidence of the alleged delinquent’s prior criminal record, including convictions without benefit of counsel, have been held to be admissible, Chambers v. Director, 244 Md. 697, 223 A. 2d 774 (1966), we have been directed to no case other than Weeder, nor have we found one, that holds evidence of “prior arrests” is admissible nor have we found any case holding that a pending criminal charge against the person alleged to be a defective delinquent within the meaning of the statute, is admissible.

We think that evidence relative to the fact that there is a pending criminal charge should be deleted from the record before it is offered into evidence. The pendency of a criminal charge may tend to prejudice the jury. Institutional misconduct, which is admissible, may be viewed in one light, but indictments and other pending criminal charges are usually seen in a more ominous perspective.

The State also argues in its brief that the admission of the evidence relative to the pending murder charge was “harmless error”. We disagree. To demonstrate the impact that we think the testimony must have had on the jury, we quote from the opening and closing statements of the Assistant State’s Attorney who tried the case on behalf of the State. In his opening statement, he said:

“ . . . [W]hile awaiting trial, it is alleged and he [appellant] has not been convicted of this . . . it’s simply an allegation, he was indicted for murder of an inmate . . . again, he allegedly utilized a knife in this murder ll and the victim died in July and additionally, he stabbed a guard with a knife.”

In his closing argument, the Assistant State’s Attorney quoted from the report of the independent psychiatrist who had been appointed by the court at the request of the appellant’s erstwhile attorney. That report in pertinent part said:

“ ‘It is easy to envision how he would become involved in aggressive incidents which the patient would perceive as self-defense.’ ”

The Assistant State’s Attorney then went on to say:

“ . . . And shortly after this was written, a man was murdered. He was stabbed repeatedly. And while there is no guilt of that yet attached to the defendant, there has been enough evidence by [sic] the Grand Jury to return an indictment against him [appellant] charging him with first degree murder. What could have been a greater forecaster of what is going to happen than that one sentence, ‘It is easy to see how he would perceive such a situation as requiring defense.’ It didn’t require defense. He was the aggressor. He was the one charged and, indeed, the guard whom he stabbed is also a party to this action [sic].” (Emphasis supplied).

For us to declare, in the face of such an argument, that the admission of the evidence relative to the appellant’s alleged murder of a fellow inmate was “harmless beyond a reasonable doubt” defies common sense.

The general rule is that evidence of pending criminal charges is not admissible in either a criminal or civil case. 3A Wigmore on Evidence § 980 a (J. Chadbourn rev. 1970) declares:

“ ... In some courts attention is given to distinguish a conviction of misconduct from a mere accusation of misconduct. Where this is done, it follows that a mere arrest or indictment will not be allowed to be inquired after; since the fact of arrest or indictment is quite consistent with innocence, and since the reception of such evidence is merely the reception of somebody’s hearsay assertion as to the witness’ guilt. To admit this would involve a violation both of the hearsay rule and of the rule forbidding extrinsic testimony of misconduct.
The only possible ground for allowing the extraction of such facts is that the merely having been arrested or charged is a disgraceful situation which indicates something lacking in the witness’ respectability of character. Such a notion is quite consonant with social ideas in England, at least in a former generation; accordingly we find the fact of arrest on indictment is there treated (and indeed assumed without question) as relevant, in the rulings of the. early 1800s. But this notion has no sound justification, and it carries the injustice of subjecting the witness to suspicion without giving him an opportunity to clear it away.
It should be understood by all courts that the only relevant circumstance is actual conduct, i.e., the fact, not the mere charge, of having misbehaved. If it is improper to attempt to prove this by extrinsic testimony on the stand, it is doubly improper to attempt to prove it by hearsay, and trebly improper when accompanied by a prohibition of any rebuttal of the hearsay by the witness or by others on his behalf: ...” (Footnotes omitted). (Emphasis supplied).

See also 2 Wharton’s Criminal Evidence § § 477, 482 (13th ed. C. Torcía 1972).

Maryland follows the general rule, and it is beyond question that a pending charge against an accused is not admissible into evidence in a criminal trial. Niemoth v. State, 160 Md. 544, 154 A. 66 (1931); Duffy v. State, 151 Md. 456, 135 A. 189 (1926); McLaughlin v. State, 3 Md. App. 515, 240 A. 2d 298 (1968). Similarly, it has been held by the Court of Appeals that such evidence is not admissible in a civil case. See Bonaparte v. Thayer, 95 Md. 548, 52 A. 496 (1902) wherein the Court said:

“ . . . Whatever may be the law elsewhere, the Courts of this State have always recognized the distinction pointed out in 1 Greenleaf on Ev. (16 ed.) sec. 461, between actual misconduct, itself, and the charge of misconduct; and have excluded the latter. It is unquestionably a misfortune for a man to be indicted, but that fact alone is not always equivalent to guilt. An entirely innocent person may be the victim, and it would be a gross injustice, to permit what is only a charge of misconduct, to be used to the prejudice, if not the ruin, of his good character. Especially would this be so, in a case like this where the charge was practically abandoned by the State. In McLaughlin v. Mencke, 80 Md. 88, the Court said that anything that would throw light on the credibility of the witness, may be offered. A mere indictment cannot do this, from the fact, that it cannot be questioned that a mere charge, unsustained by proof, does not have such an effect. This seems to be the view generally accepted by the Courts in most jurisdictions. People v. Gay, 7 N. Y. 378; Jones on Ev., sec. 870; Rapalje on Law of Witnesses, p. 336, sec. 201, where the authorities are collected.” 95 Md. at 559-60.

The same reasoning has been employed by a number of other jurisdictions. See, e.g., People v. Hoffman, 399 Ill. 57, 77 N.E.2d 195 (1948); People v. Morrison, 195 N. Y. 116, 88 N. E. 21, 133 Am. St. Rep. 780, 16 Ann. Cas. 871 (1909); Adams v. State, 18 Ala. App. 524, 93 So. 292 (1922). See also Michelson v. United States, 335 U. S. 469, 69 S. Ct. 213, 93 L. Ed. 168 (1948); and the cases collected in Annot., 20 A.L.R.2d 1421 (1951).

A defective delinquency proceeding is a civil case. McDonough v. State, 253 Md. 547, 253 A. 2d 517 (1969); Director v. Daniels, 243 Md. 16, 221 A. 2d 397 (1966); Bush v. Director, 22 Md. App. 353, 324 A. 2d 162, cert. denied sub nom Mazan v. Director, 272 Md. 745 (1974). The rule of Bonaparte v. Thayer, supra, therefore is both apposite and dispositive.

Thus we reverse the judgment of the circuit court for the reason that, to allow into evidence the fact that a person has been indicted for a particular offense is to permit the use of the rankest type of hearsay. Not only is an indictment an accusation, but it is mere opinion grounded on ex parte evidence.

Fundamental to our system of law is the credo that a person is presumed innocent until he is proven guilty. In re Winship, 397 U. S. 358, 90 S. Ct. 1068, 25 L.Ed.2d 368 (1970). It is impermissible to use in a criminal or civil trial evidence or argument that a litigant has been “indicted”, because such use debases and degrades the litigant and simultaneously distorts the issue. Consequently, such impermissible evidence or argument is in conflict with our dogma of presumption of innocence.

In view of our holding it is unnecessary for us to discuss the other two attacks made on evidentiary rulings by the trial court.

Judgment reversed.

Case remanded for a new trial.

      . We express no opinion as to whether such a holding is still viable in the light of Burgett v. Texas, 389 U. S. 109, 88 S. Ct. 258, 19 L.Ed.2d 319 (1967) and United States v. Tucker, 404 U. S. 443, 92 S. Ct. 589, 30 L.Ed.2d 592 (1972).

      . But see McDonough v. State, infra, where the Court seemed to recognize but not decide the issue.

      . The appellant was incarcerated initially as the result of an attempted murder.

      . The attorney who requested the report was not the present counsel.

      . It would appear from the appellant’s brief that the appellant was charged along with another inmate who was subsequently convicted of the crime, and the charges against the appellant have been “dropped” by the State. We are not informed as to why the charges were dropped. The posture of the case bears a striking similarity to Bonaparte v. Thayer, supra.


source: Caselaw Access Project

author: Powers, J.,

license: Public Domain

text:
    STATE OF MARYLAND v. RALPH E. ENSOR and CHARLES EDWARD PHELPS COMPTON
    [No. 1087,
    September Term, 1974.]

      Decided July 28, 1975.

      The cause was argued before Powers, Gilbert and Melvin, JJ.

      Clare?ice W. Sharp, Assistant Attorney General and Chief, Criminal Division, with whom were Francis B. Burch, Attorney General, Milton B. Allen, State’s Attorney for Baltimore City, and Mark A. Van Bavel, Assistant State’s Attorney for Baltimore City, on the brief, for appellant and cross-appellee.

      Joseph H. H. Kaplan and Paul F. Strain, with whom was Elizabeth H. Trimble, on the brief, for appellee and cross-appellant Ralph E. Ensor. Arnold. M. Weiner, with whom was Francis Brocato on the brief, for appellee and cross-appellant Charles Edward Phelps Compton.
   Powers, J.,

delivered the opinion of the Court.

This appeal by the State brings up for review an order entered by Judge J. Harold Grady in the Criminal Court of Baltimore dismissing a series of indictments against the appellees.

The grand jury of Baltimore City, on 29 March 1974, returned six indictments each against Ralph E. Ensor and Charles Edward Phelps Compton, charging acts of forgery and attempts to obtain money under false pretenses. One of the total of thirteen indictments charged both men with conspiracy to violate the false pretense laws. The charges arose out of alleged alterations made in change orders in connection with State construction contracts.

A motion to suppress certain evidence and a motion to dismiss all of the indictments were filed by the defendants below. After full evidentiary hearings on both motions, Judge Grady filed a memorandum and order granting, in part, the motion of the defendants for suppression, and filed a memorandum and order dismissing all of the indictments. Both orders were dated 6 November, and both were filed on 7 November 1974.

The State filed an appeal from both orders of the court. The appellees, in their brief, urge that the order of the trial judge dismissing the indictments was correct, and further argue, not only that the order of the trial judge granting their motion to suppress evidence was correct, but that the suppression order is not reviewable in this appeal. The defendants below filed a cross appeal, asserting error in certain findings and conclusions of the judge which were adverse to them. In its brief as cross appellee, the State moved to dismiss the cross appeal on the ground that the cross appellants’ brief raises issues not raised or decided below, and because it refers to facts which are not part of the record on appeal.

We are persuaded that the order dismissing the indictments was correct and must be affirmed. This view of the case makes it unnecessary to consider or rule upon any other issues raised.

The entire case turns on whether there was participation of an unauthorized person in the proceedings of the grand jury which returned the indictments. There can be no doubt that it is the law in Maryland that such participation invalidates an indictment or indictments returned by the grand jury in those proceedings. Applicability of that law has been considered in two recent decisions of this Court, Maloney v. State, 17 Md. App. 609, 304 A. 2d 260, cert. denied, 269 Md. 761, 762, 767 (1973), and State v. Aquilla, 18 Md. App. 487, 309 A. 2d 44, cert. denied, 269 Md. 755 (1973).

In Maloney there were motions to dismiss the indictments, grounded upon the appearance of two Assistant Attorneys General before the grand jury of Charles County which returned the indictments. In our opinion in that case Chief Judge Orth, speaking for the Court, said, at 614-16:

“The powers and duties of the Attorney General prescribed in Art. V, § 3 of the Constitution of Maryland include that ‘ * * * when required by the Governor * * *, he shall aid any State’s Attorney in prosecuting any suit or action brought by the State in any Court of this State, and he shall commence and prosecute or defend any suit or action in any of said Courts, on the part of the State, which * * * the Governor, acting according to law, shall direct to be commenced, prosecuted or defended * * *.’ The Governor, acting explicitly under this constitutional authority, directed the Attorney General, by a written, definitive request, to commence and prosecute any action appropriate to the matter of the alleged overpayment in State and County funds to school bus contractors in Charles County, and to aid the State’s Attorney for Charles County in any such action brought by the State. It is apparent that the investigation conducted by the Attorney General, through the two assistants, indicated that crimes had been committed. We find it to be clearly within the ambit of the constitutional provision that the authority of the Attorney General to ‘commence’ an action includes his presence to attend the grand jury to aid in the examination of witnesses and advise on questions of law. Without this concomitant authority, the mandate to ‘commence and prosecute’ any action which the Governor shall direct ‘to be commenced and prosecuted’ would be sterile indeed. We refuse to construe the constitutional provisions requiring the Attorney General to commence and prosecute an action so narrowly as to preclude him from presenting the case to a grand jury. Under the constitutional provisions the Attorney General became the prosecuting officer in the cases before us. We are in accord with the generally prevailing opinion that the prosecuting officer may, and it is his duty as well as his privilege, attend on the grand jurors with matters on which they are to pass, aid in the examination of witnesses, and give such general instructions as they may require, without, however, being present while the grand jury is deliberating on the evidence or voting on a matter under investigation. 4 Wharton’s Criminal Law and Procedure, § 1716 (1957). See Grand Jury, 38 Am. Jur. 2d §§ 34-35; People v. Zara, 255 N.Y.S.2d 43 (1964). Because the Attorney General was authorized to so appear before the grand jurors, Borgerding and Eichhorn could so appear. As we have concluded that the appearance of the Assistant Attorneys General before the Grand Jury for Charles County was authorized, their presence and participation had no adverse effect on the indictments returned. We hold that the court below did not err in denying the motions to dismiss the indictments.
“Both of the Assistant Attorneys General, before attending the grand jurors, were appointed Special Assistant State’s Attorneys for Charles County and were administered the oath of that office. In view of our holding that their appearance before the Grand Jury as Assistant Attorneys General was authorized, we have no need to reach the question whether they were also so authorized in the capacity of Special Assistant State’s Attorneys. We take the view that appointments of them as Special Assistant State’s Attorneys were immaterial, and did not, in any event, render their appearance as Assistant Attorneys General improper.”

In State v. Aquilla, supra, we were called upon to consider the effect upon indictments returned by the grand jury of Baltimore City, of appearances before the grand jury by individuals whose sole authority to appear was derived from their having been appointed and sworn in as unpaid Special Assistant State’s Attorneys for Baltimore City. The Constitution of Maryland, Art. V, § 9, contains the special provision, not applicable in the counties, that “ * * * the State’s Attorney for Baltimore City shall have the power to appoint a Deputy and such other Assistants as the Supreme Bench of Baltimore City may authorize or approve * * In that case, we said, at 494:

“We think it evident that a State’s Attorney generally may assign to his deputies and assistants the performance, subject to his discretion and control, of the duties required of him by law with respect to the institution and prosecution of criminal actions. Thus, the deputies and assistants may attend on the grand jurors at the assignment of the State’s Attorney.”

We further said, at 495-96:

“Having determined that duly appointed Deputy State’s Attorneys and Assistant State’s Attorneys as well as State’s Attorneys may attend on grand jurors, we consider the Assistant State’s Attorneys whose authority to do so is here challenged. Although they were styled Special Assistant State’s Attorneys, they took the oath of office which all regular Assistant State’s Attorneys are given. We think they enjoyed a status sufficiently comparable with other Assistant State’s Attorneys for Baltimore City to enable the State’s Attorney to assign them the duty of attending on the grand jurors investigating the alleged irregularities in the Traffic Division of the former Municipal Court of Baltimore City. It is apparent that they were appointed by the State’s Attorney for Baltimore City under the authorization and with the approval of the Supreme Bench of Baltimore City pursuant to the Maryland Constitution. In the letter from the State’s Attorney seeking the authorization and approval of the Supreme Bench for the appointments, it was made clear that the duties of the Assistants would include interviewing witnesses before the Grand Jury. We think it immaterial with respect to their attendance on the grand jurors that they were not paid by the City or State for their services or that they did not spend full time on their prosecutorial duties and were not answerable to the State’s Attorney for time spent on duties not assigned by him. As far as the constitutional and statutory provisions with respect to the office of State’s Attorney are concerned, we think that the activities carried out by the Special Assistants before the Grand Jury were not proscribed.”

The lower court order dismissing the indictments in Aquilla, reversed by us on appeal, had been required, as the trial judge saw it, by the case of Coblentz v. State, 164 Md. 558, 166 A. 45 (1933). In the opinion for this Court in Aquilla Chief Judge Orth, speaking of Coblentz, said, at 498:

“But it is crystal clear that the nub of the decision was that the lawyer’s appointment as a special assistant was deemed illegal, and therefore his presence before the grand jury was unauthorized. It is on this predicate that the Court, at [164 Md.] 568, quoted with approval Latham v. United States (C.C.A.), 226 Fed. 420, 424:
'The right of the citizen to an investigation by a grand jury pursuant to the law of the land is invaded by the participation of an • unauthorized person in such proceedings, be that participation great or small. It is not necessary that participation should be corrupt, or that unfair means were used. If the person participating was unauthorized, it was unlawful.’ ”

In his memorandum and order dismissing the indictments in the present case Judge Grady said:

“The defendants’ First Consolidated Motion to Dismiss Indictments alleges as its first basis that an unauthorized person, Arrie W. Davis, Esquire, appeared before the Grand Jury and assisted in the presentation of the evidence which resulted in the above captioned indictments. The following facts relevant to the Motion are not in dispute. The indictments against the defendants were returned by the Grand Jury for Baltimore City on March 29, 1974. Evidence leading to these indictments was presented to the Grand Jury at various times starting on February 1, 1974. Mr. Davis appeared before the Grand Jury during the presentation of this evidence on February 1, 1974, and on several other occasions before March 29, 1974. Before, during and after the period of February 1, 1974, to March 29, 1974, Mr. Davis was an Assistant Attorney General of Maryland. The Attorney General of Maryland was not directed by the Governor of Maryland to assist the State’s Attorney for Baltimore City in prosecuting any of the matters which are the subject of the indictments in question. On February 1, 1974, before a Judge of the Criminal Court of Baltimore and before his first Grand Jury appearance Mr. Davis was administered the oath of office given an Assistant State’s Attorney in Baltimore City and was sworn in as a Special Assistant State’s Attorney. There is no claim that Mr. Davis was present during any deliberations or voting by the Grand Jury. There is no claim that Mr. Davis’s presence before the Grand Jury resulted in any actual prejudice to the defendants.”

Judge Grady further said:

“In Maloney the Assistant Attorneys General in question before attending the Grand Jury had also been appointed Special Assistant State’s Attorneys. In Maloney the court pointed out that since the presence before the Grand Jury of the prosecutors in question was authorized under the Constitution, Article V, Section 3, there was no need to reach the question whether they were also so authorized in the capacity of Special Assistant State’s Attorneys.
“The instant case reaches the question reserved in Maloney. The State concedes that Article V, Section 3, of the Constitution was not complied with and that Mr. Davis was not authorized to appear before the Grand Jury in his capacity as an Assistant Attorney General. The State contends that Mr. Davis was duly appointed a Special Assistant State’s Attorney for the City of Baltimore in accordance with the Constitution, Article V, Section 9, and consequently in that capacity his appearance before the Grand Jury was authorized. It is clear that Mr. Davis did not cease to be an Assistant Attorney General upon his becoming a Special Assistant State’s Attorney. Assuming arguendo the validity of his appointment as a Special Assistant State’s Attorney when Mr. Davis appeared before the Grand Jury, he was in fact, holding two offices — Assistant Attorney General and Special Assistant State’s Attorney. The situation here presented then raises the question of whether the presence of a single person before the Grand Jury can be both authorized and unauthorized at one and the same time.”
“The State’s Attorney under this provision [Article V, Section 9] has the general power to appoint as an assistant prosecutor any person whom he deems qualified and upon appointment his assistant may then attend the Grand Jury. However, in my view, if the State’s Attorney selects as an assistant prosecutor an Assistant Attorney General whose prosecutorial powers are already limited by a specific constitutional provision (Article V, Section 3), then the specific limitation of an Assistant Attorney General as a prosecutor, must take precedence over the general prosecutorial authority vested in that appointee by virtue of his becoming an Assistant State’s Attorney. It is conceded that Mr. Davis as an Assistant Attorney General had not been given the prosecutorial authority required for one in his office under Article V, Section 3.
“I conclude that Mr. Davis’s acquisition of general prosecutorial authority as an Assistant State’s Attorney did not validate his presence before the Grand Jury which was considering the indictments against these defendants. Consequently, under the inflexible rule adopted in Coblentz the Defendants’ Motion to Dismiss the Indictments must be granted.”

Although we affirm the order dismissing the indictments for the same basic reason that Judge Grady passed the order — participation of an unauthorized person in the proceedings of the grand jury, we do not get there by the same route. Judge Grady assumed, arguendo, that Mr. Davis lawfully qualified as an Assistant State’s Attorney, but reasoned that because Mr. Davis was also an Assistant Attorney General, and was not qualified in that capacity to be present with the grand jury, that lack of qualification nullified his lawful authorization as an Assistant State’s Attorney.

After concluding that the indictments must be dismissed, Judge Grady expressed the opinion that Mr. Davis did lawfully qualify as an Assistant State’s Attorney.

In our opinion, the facts do not show that Mr. Davis qualified as an Assistant State’s Attorney. The facts show only that earlier in the first day of his participation in the proceedings of the grand jury, Mr. Davis appeared before a single judge of the Supreme Bench and took an oath of office as an Assistant State’s Attorney. The oath was a nullity, unless his appointment had first been approved as required by the Constitution, Art. V, § 9. There is nothing in the record to show that his appointment was approved by the Supreme Bench of Baltimore City, either as a specific individual, or as an authorized position on the staff of the State’s Attorney. Action by the Supreme Bench was required — action by a single member did not suffice.

Under the Constitution . Mr. Davis could have been authorized to participate in the proceedings of the grand jury of Baltimore City, either as an Assistant Attorney General or as an Assistant State’s Attorney. Qualification as either would have been enough. Authorization in one capacity would not be nullified by lack of authorization in the other. But on the facts in this case he had no authority in any capacity. His participation invalidated the indictments.

The right of the State to appeal is limited by Code, Courts Art., § 12-302 (c) to an appeal from the final judgment granting the motion to dismiss the indictments. The State’s specification that it was appealing also from the order granting the motion to suppress evidence was superfluous. That order was interlocutory, and under Maryland Rule 1087, is open to review on an appeal from the final judgment.

Both State v. Siegel, 13 Md. App. 444, 285 A. 2d 671 (1971), affd., 266 Md. 256, 292 A. 2d 86 (1972), and State v. Lohss and Sprenkle, 19 Md. App. 489, 313 A. 2d 87 (1973), rev’d. on other grounds, Lohss and Sprenkle v. State, 272 Md. 113, 321 A. 2d 534 (1974), involved appeals by the State from final judgments dismissing indictments in cases in which interlocutory orders had suppressed certain evidence. We expressed the view that such interlocutory orders were open to review when the final judgment was properly before us on appeal.

It is correct to say that the suppression order is not appealable, but it is equally correct to say that it is reviewable on a proper appeal from a final judgment dismissing the indictments. We note that in Lohss and Sprenkle v. State, supra, the Court of Appeals, reversing the ruling of this Court, held that the State, in agreeing to the dismissals of the indictments in the trial court, had abandoned its prosecution, and had lost its right of appeal. The Court of Appeals also said, at 118:

“To be sure, as the Court of Special Appeals noted, if that court did possess jurisdiction under § 14, [now Courts Art., § 12-302 (c)] it could properly review the trial court ruling on the pretrial motion to suppress to the same extent that it might have reached any other interlocutory order under Maryland Rule 1087.”

Appellees argue that for the suppression order to be reviewable in this appeal, the basis of the dismissal of the indictments must be inextricably intertwined with the basis of the suppression order. They point to a footnote in State v. Siegel, supra, 13 Md. App. at 471. It is perhaps more accurate to say that when a question is preserved, reviewable, and argued on appeal, it will be decided if there is a need to decide it, and it will not be decided if there is no need to do so. In the present case, if a reversal of the suppression order would require reversal of the order dismissing the indictments, we would decide whether the suppression order was correct. Also, if the order dismissing the indictments were to be reversed, for whatever reason, and the case remanded for trial, there would be a need to decide whether the suppression order was correct.

But a review of Judge Grady’s interlocutory suppression order in this case would be fruitless. Whether the order was right or wrong can be of no more than academic interest, and is irrelevant to our decision. The indictments have been dismissed, for a reason totally unrelated to the lawfulness of the seizure of evidence. That dismissal ends the case, and we affirm it for the reasons given.

We do not rule upon the correctness of the suppression order. The cross appeal is likewise moot, and will be dismissed. The State’s motion to dismiss the cross appeal falls with it. The motion of the appellees to dismiss the State’s appeal must be denied.

Motion to dismiss appeal denied.

Motion to dismiss cross appeal denied.

Order filed 7 November 197k dismissing indictments affirmed.

Cross appeal dismissed.

Costs in the appeal to be paid by the Mayor and City Council of Baltimore.

Costs in the cross appeal to be paid by cross appellants.

      . Two of the indictments against Compton name him as C. E. Phelps Compton.


author: Lowe, J.,

text:
    HARRY EDWARD BROCKMAN v. STATE OF MARYLAND
    [No. 1137,
    September Term, 1974.]

      Decided July 29, 1975.

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

      Arnold M. Zenoitz, Assistant Public Defender, and George E. Burns, Jr., Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Gilbert Rosenthal, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A.. Marshall, Jr., State’s Attorney for Prince George’s County, E. Garrison Neal, Assistant State’s Attorney for Prince George’s County, and Michael Patrick Whalen, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

From the facts elicited during the murder trial at which appellant, Harry Edward Brockman, was convicted by a jury in the Circuit Court for Prince George’s County, or from the facts elicited during his plea-bargained deposition, it is clear that he committed one of the most heinous of crimes against his fellow man — murder for hire. Regardless of the contempt in which such persons are held, democracy demands that throughout the prosecution its rules of fair play apply as well to them as to others. Whether the trial concludes with a determination of the defendant’s guilt or innocence, the rigidity of the rules remains.

That Anglo-Saxon concept of procedural fair play, conceived initially to protect the innocent, has expanded to protect the admittedly guilty as well.

Even a guilty plea will not be accepted unless it is shown that the accused is fully aware of the consequences of his act, Boykin v. Alabama, 395 U. S. 238, that the accused was counseled, Moore v. Michigan, 355 U. S. 155 and that the State demonstrates on the record a strong factual basis for the plea. McCall v. State, 9 Md. App. 191, cert. denied, 258 Md. 729. It was but a short step to apply rules of fair play to plea negotiations, if not at the advent of that once questionable procedure, at least after it had become socially respectable. The Supreme Court, the Court of Appeals and this Court have all required the imprimatur of fair play in consummated plea bargains. Santobello v. New York, 404 U. S. 257; Miller v. State, 272 Md. 249; Wynn v. State, 22 Md. App. 165.

One difficulty inherent in the plea negotiation process is determining the point at which the bargain is so complete that the parties cannot withdraw — the point of no return. Clearly at no point prior to the entry of the plea can the accused be compelled to perform specifically, i.e., to plead guilty. The bargain must thus be slightly one-sided since reason tells us the State may not always so freely withdraw; although, we have decided that under proper circumstances the State may, indeed should, abrogate the agreement:

“If prior to the consummation of a plea bargain he foresees that it might endanger society, he has not merely the right, but the responsibility, to withdraw from the agreement.” Wynn, 22 Md. App. at 172.

We have not heretofore dealt with circumstances where the State was bound by its offer. In the case at bar the State attempted to withdraw from a bargain made, and we must now consider whether that decision was allowable.

The Facts

Appellant and a co-defendant were being tried for the murder of Gerald Godbout, Jr. whom appellant shot while the victim was in his automobile, although the intended victim was not Mr. Godbout, but a female occupant of the vehicle. Appellant explained that “A contract to dispose or murder Mrs. Ward, who was with Mr. Godbout, had been taken and it was [being] executed at that time.”

A day and a half after the trial had begun and one or two witnesses had been heard, a renewed effort at plea negotiations was made. It was apparent that the State was anxious to obtain evidence against the person who negotiated, but did not execute, the contract. Appellant’s attorney explained that:

“On the second day, I believe, the 9th of July, as a result of multiple conferences with Mr. Neal, [the Assistant State’s Attorney] the other attorney, myself and Judge Parker, an offer was made by the State, which offer was as follows: If both defendants pled to second degree murder the State would drop the first degree charge and all remaining counts of that indictment. In exchange for that the State would recommend to the judge that for the second degree conviction that no more than ten years be the sentence. For a — in exchange of that plea bargaining each defendant was to give a full statement to the State by way of a sworn deposition and, in addition, was to testify before the grand jury. An explanation: At that time the State felt that Mr. Maness [the co-defendant] and Mr. Brockman were the individuals that, in fact, killed Mr. Godbout [the actual though unintended victim] but that they, the defendants, were, quote, put up to it by a Mr. Ward, who was the husband of the [intended] victim, Mrs. Ward.
Now, after considerable discussions at which Judge Parker was present, and it took place over many hours in chambers, the State agreed to that and'we talked to our respective clients. Mr. Maness accepted the offer. I then advised Mr. Neal and Judge Parker that it was the decision of Mr. Brockman at that time to refuse it.”

With one of two defendants about to plead guilty the court recessed for the day. After consultation with counsel, appellant overnight changed his mind and the following day agreed to accept the offer as had his co-defendant.

“At no time previous to this did Mr. Neal indicate to me. or in my presence that this deal must be accepted immediately. I had advised them it was not accepted, that Mr. Brockman wanted to think about it overnight. There was no time element put on this offer.”

Appellant’s co-defendant, Mr. Maness, had in the meantime fulfilled his part of the bargain by testifying for the State before the grand jury. The State was thus reluctant to continue to hold appellant’s offer open and contended

“. . . that Mr. Brockman had turned down the offer to enter a plea of guilty to second degree murder, that there was no need, in my mind, for the State to accept the plea to second degree murder, based on the evidence that we received from Mr. Maness, and we were able to corroborate as a result of the search warrant that evening.”

As a consequence of appellant’s change of heart, he urged the State to avail him of the offer. The negotiations were concluded in the chambers of the judge — who presumably participated to some degree. Appellant’s attorney indicated that:

“. . . there was an encouragement on the part of Judge Parker, in our presence, to the State to go ahead with the deal.”

The State was more specific:

“A Yes. I recall him indicating we were probably going to be trying this case for the next twenty years in the State and Federal Courts if prosecuted.”

For whatever the reason the State:

“Somewhat reluctantly, but nevertheless in agreement, did agree to take the second degree plea.”

There was little faith evident between the contracting parties. The atmosphere apparent from the record was that of suspicious adversaries approaching each other as if on eggshells. A cautious cooperation prevailed because of this mutual distrust.

“Mr. Brockman had indicated to me that he, in some respects, distrusted Mr. Neal and had reservations about giving a statement for he was fearful that in giving a statement that there would be some waiver on Mr. Neal’s part.”

The State, on the other hand, revealed its own suspicions when it expressed its reservation during appellant’s deposition:

“Over quite some period of time I felt Mr. Brockman was at least parrying with me and was not being straightforward with his answers . . . .”

Our own review of that deposition does not accord with the State’s conclusion. We found the answers elicited to be direct, detailed, complete, without equivocation and totally inculpatory, with but one exception. That exception concluded the deposition and brought about this ground for appeal. Appellant was asked to identify a picture of the man the State, believed had negotiated the murder contract. The public defender described the scene.

“The picture was handed to Mr. Brockman, who looked at it for a significant period of time, enough time that I was starting to wonder why the delay and what was going through his mind. Mr. Brockman then said — when he was asked if he knew who that picture was of he said, ‘No.’ Mr. Neal hesitated, as I recall. I don’t know if he showed him another picture of Ward or not, but it turned out that was a picture of Ward.
There was — then Mr. Brockman leaned over to me shortly thereafter, because I knew something was wrong, and said to me, ‘That was Mr. Ward, but he’s trying to trick me with just one; he’s showing me one photo and he’s trying to trick me and I know that if I don’t testify at Mr. Ward’s trial that this plea bargaining deal won’t go down, and I feel that Mr. Neal is trying to trick me and affect my testimony so bad that it won’t be accepted by the Court.’ In other words, it would be tainted by the single-photo lineup. And so tainted, as Brockman indicated to me, he would not be allowed to testify, would have no use and would be forced to trial thereafter.
- I explained to Mr. Brockman later on that I agreed with him, that the one-photo spread tainted the case, but that would have nothing to do with the deal. We then offered to Mr. Neal to continue the deposition. Mr. Neal indicated words to the effect, ‘That’s it. The man has committed perjury. There’s no deal. Everything is off.’ There were a few words exchanged between Mr. Neal and myself and Mr. Marshall [the State’s Attorney who was presumably present] that were not on the record as to my disagreement with what the understanding was.”

The Law

The renunciation of the plea bargain by the State elicited from appellant a Motion for Appropriate Relief praying what amounted to specific performance of the bargain. Finding that the Santobello, Miller, Wynn trilogy (all supra) was not apposite because the agreement was “in the executory stage,” the judge said that there was nothing:

“. . . from my reading of the Miller case or Wynn case or Santobello case, that says the State must go through with a plea bargaining prior to the time of the acceptance of the plea.”

Restricting those cases to their factual contexts that conclusion may be reached; however, by dicta as well as by logical extension of the principles involved, it is apparent that no such cut and dry limitation was intended. For instance, we recently extended that “trilogy” to apply to “a negotiated plea of not guilty and trial upon a factual stipulation” in Sturgis v. State, 25 Md. App. 628, 336 A. 2d 803.

The principle underlying each of these cases dealing with plea negotiations was that

“This procedure to dispose of criminal charges presupposes fairness.” Wynn, 22 Md. App. at 171; See Santobello, 404 U. S. at 261.

Fairness is not limited to that which follows acceptance of a negotiated plea but includes the circumstance preceding it as well. Even further, it is of little consequence whether «¿^fairness comes to pass because the State is motivated by ill-will or by the best and most charitable of motives.

The Holding

We think it was manifestly unfair for the prosecutor to depose an accused pursuant to an agreement for limited prosecution, elicit from him every fact and detail necessary to reconstruct the crime, request of him a photographic identification which arguably could taint subsequent in-court identification, then — having aroused suspicion and distrust in the accused — renounce the bargain because of an equivocal identification of a man appellant had once seen. Unfair though it may have seemed, that sequence of events does not alone compel our reversal, although it sets the stage. Crucially important here is the paper thin basis on which the State claimed the accused had perjured himself and destroyed his credibility as a witness, when compared with this defendant’s having moved irremediably and prejudicially to his detriment by way of a wholly inculpatory deposition.

Nor is it enough surcease of appellant’s prejudice in the instant case that the judge below sealed all copies of the deposition available to him, including two that were used to obtain search warrants. In doing so the judge explained:

“THE COURT: Well, the intent of the sealing of what I have under my control is a carrying out of that portion of the plea bargaining agreement. It shall not be used in any way, shape or form, and at any time, Mr. Camus, you would feel that any information is coming into this trial that has been gleaned from that statement or the search warrant you appropriately object and I assure you the Court will sustain it.”

Clearly the sealing of the deposition and the offer to preclude objectionable evidence is an impractical and unenforceable - remedy when we consider the unlimited subtle uses to which a prosecutor may put the knowledge gained from appellant’s detailed reconstruction of a crime. Here there was a witness nearby who, while not having seen the shooting, heard the shots and immediately thereafter saw appellant running. The deposition confirmed every detail supporting the State’s case including the witness’s location and presence. With the facts thus verified, circumstantial reconstruction of the facts before a jury was obviously most convincing. Yet to what precisely can appellant point with an evidentiary objection? As the trial judge concluded though for other purpose, the State had been

“MR. NEAL: Just one point of clarification. It probably will have to be used in the trial of Mr. Ward.”
“. . . on a fishing expedition to determine exactly what it was that Mr. Brockman knew about the case, and up to then it’s rather apparent there was no disclosure of any facts by the defense to the State’s Attorney.”

We hold that appellant’s transgression was minor while he was prejudiced beyond redemption once the State was persuaded to interrupt the trial and to proceed, albeit reluctantly, with the bargain. The court’s efforts to protect the appellant and absolve the State fell short of either goal. The sealed deposition was inadequate protection and that judicial absolution provided no remission to. the State.

Anticipating that which has occurred here, we said in Wynn, 22 Md. App. at 172:

“We cannot overlook the fact that a prosecutor has a profound obligation to society. If prior to the consummation of a plea bargain he foresees that it might endanger society, he has not merely the right, but the responsibility, to withdraw from the agreement. Plea bargains should not be specifically enforced in the absence of affirmative evidence of prejudice arising from the bargain, which prejudice cannot be remedied by permitting the defendant to withdraw his plea and commence anew. Only upon a finding of such inexpiable prejudice should a defendant be permitted the option of specific performcmce by the trial court, and even then a full record should be made anticipating the possibility of appellate review.” [Emphasis added].

The prejudice here is clear from the record which contains the deposition.

We should note that the State’s attempt at rescission does not appear so much as “bad faith,” as it was “bad timing.” The prosecutor’s recognition of his “obligation to society,” appears to have come during his hallway meditation just before concluding the deposition. “All foreseeable consequences” of [the] plea bargain should have been considered by counsel before the initial offer was made identically to both defendants. Even at that point, as we indicated in Wynn, the prosecutor was not bound (as may have been so in contract law) by the mere acceptance of the offer. It was the State’s passively permitting, if not overtly leading appellant to a position of prejudice that foreclosed the option of turning back. That error of judgment was compounded by the participation and influence of the court in the decision.

The bargain to be struck is perforce limited to the prosecutor and the defendant, otherwise how can the court maintain the position that it is not bound by the sentencing aspects of the bargain. Here for example the bargain was to agree to a plea of guilty to second degree murder with a recommendation for a ten year sentence. A sentencing recommendation in a proper context is just that — a recommendation. It is one of many factors the court considers in carrying out the sentencing process over which it has “wide discretion” restricted only by “statutory limitations.” Bartholomey v. State, 267 Md. 175, 193-194. Thus the court could ignore the recommendation and give the maximum 30 years if it so chose. Md. Code, Art. 27, Sec. 414. Court participation in negotiations between prosecutor and defendant, . however, impinges on subsequent free exercise of that sentencing responsibility.

The Remedy

In seeking the “ultimate remedy” we are guided by Miller, supra. There the Court obviously followed the remedy expressed in Mr. Justice Douglas’ concurring opinion in Santobello, permitting appellant to elect. Since the trial has been had his election is limited to the result obtained thereby or the fulfillment of his initial bargain and guilty plea to murder in the second degree. As pointed out, if he chooses the latter the State must comply with its recommendation, but the court is not bound thereby in passing sentence. In expressing his election on remand it follows that appellant must also dismiss this appeal as it pertains to the other questions raised at the trial and which we have here left unanswered. If he elects to stand by the trial he has had, the record will be returned for our review of those unanswered issues but he must on the record waive the benefits of his bargain. As we said in Wynn, 22 Md. App. at 173, while

“The State may not sell the cow and continue to sup upon her milk,”

neither may the appellant.

The case is remanded for further proceedings in accordance with this opinion.

      . The facts relating to the plea negotiations were elicited under oath from the Assistant State’s Attorney and the District Public Defender assigned to represent appellant. While each subjected the other to vigorous cross-examination, their testimony was not materially divergent factually.

      . The deposed testimony renounced was:
      “Q And was there any discussion in December of ’70 or January of ’71 regarding the possible murder of Dorothy Mae Ward?
      A No, sir, there was not. I was not even introduced to Mr. Ward at that time. I was never told his name at that time.
      Q Showing you what has previously been marked 2 and 3 for purposes of this hearing, and ask you if you can recognize that person?
      A No, sir, I do not.
      Q You do not?
      A No, sir.
      MR. NEAL: Por the record, State’s Exhibits 2 and 3 for purposes of this record are photographs of one James Edward Ward, of 5409 — 14th Avenue, Hyattsville, Maryland.”
      After several unrelated questions appellant asked to confer with his counsel off record after which the deposing by the State resumed to conclusion.
      “Q On the record. Showing you State’s Exhibit No. 2 and 3 — showing you State’s Exhibits 2 and 3, do you have any further comment to make about those two exhibits?
      A Yes, sir. They are the pictures of Mr. Ward. They are at least pictures of the gentleman I saw at Jesse Stephens’ in December or January — early January of ’71.
      Q You previously indicated you couldn’t identify those photographs, is that correct?
      A Yes, sir, that is true. It does not appear to me that my testimony would be worth anything. It did not appear at the moment when the pictures were placed in front of me that I had any position with the State with regard to my cooperation if I were to identify him at this time and at the trial.
      MR. NEAL: I’m going to break for a minute.
      (Short recess).
      BY MR. NEAL:
      Q I just walked down the hallway thinking in view of what we said when we started this case there wasn’t going to be any misrepresentation of facts for any reason whatsoever. In view of the fact you have already misrepresented the facts here I don’t know whether to believe you or not. But I don’t have any faith in your credibility.
      I think that we have -wasted our time for the reason you materially misrepresented the fact you did not know James Edward Ward. It’s my understanding this cannot be used against you, but I can not accept the responsibility in my own heart and my duty as an assistant State’s Attorney, responsibility for putting you on the stand and proffering your credibility to a jury. I tried to make that very clear to you before we started.
      I think it’s — there’s no thinking to it. Based on the fact you misrepresented a very material fact already in this statement I cannot go forward with the plea that was offered to me. And that’s going to be my decision in this case. I’m sorry it happened that way. I thought that you were prepared to be candid. But you just admitted lying under oath, and that was the purpose for coming up here, and I can’t go forward with it.
      A Well, I could not, Mr. Neal, state absolutely that was Mr. Ward, because I did not know it was Mr. Ward at the time I saw him. And inasmuch as my plea is based on my testimony at the trial I thought I was being given an illegal lineup, a picture placed in front of me to incriminate, one person. To identify him there with one picture would have influenced my testimony at trial.”

      . The State’s comment at the time indicates its possible if not probable continued “supping on the milk” of the cow it sold, then took back; Wynn, 22 Md. App. at 173:

      . Both attorneys testified to some degree of influence by the judge whose expressions of opinion and participation in plea negotiations are of questionable propriety at best.


author: Melvin, J.,

text:
    BALTIMORE CONTRACTORS, INC. v. VALLEY MALL ASSOCIATES et al.
    [No. 1139,
    September Term, 1974.]

      Decided July 29, 1975.

      The cause was argued before Powers, Gilbert and Melvin, JJ.

      George W. McManus, Jr., with whom was Philip O. Tilghman on the brief, for appellant.

      Donald N. Rothman, with whom was Lawrence S. Greenwald on the brief, for appellees.
   Melvin, J.,

delivered the opinion of the Court.

By written contract dated May 1, 1972, the appellant, Baltimore Contractors, Inc. (Baltimore) agreed to perform certain clearing, excavation and grading work on property owned by the appellees, Valley Mall Associates, et al. (Valley Mall) in Washington County consisting of approximately 70 acres. The property is surrounded by three highways, the grading of two of which (Nursery and Massey Boulevards) was included in the work to be performed by Baltimore. The contract provided for a lump sum payment of $475,000 for all work to be performed.

On May 4, 1972, Baltimore entered into a contract with Frank M. Sheesley Co. (Sheesley), apparently to perform the same work it had agreed to do for Valley Mall. There is no privity of contract between Sheesley and Valley Mall, Sheesley’s status being that of a subcontractor.

On February 4, 1974, Baltimore filed a mechanics’ lien against the property. On February 8, 1974, Valley Mall filed in the Circuit Court for Washington County, pursuant to Article 21, §9-106 of the Maryland Code (1973 Repl. Vol.) and Maryland Rule BG75, a “Petition to Compel Defendant to Prove Validity of Mechanics’ Lien and For Declaratory Judgment”. The petition contains two counts. Count I recited, inter alia:

“4. On or about February 7, 1974, defendant filed a mechanics’ lien upon certain property owned by plaintiffs in Washington County and known generally as Valley Mall Shopping Center. Said mechanics’ lien is filed in Mechanics’ lien Liber 7, folio 75, maintained among the mechanics’ lien records of Washington County.
5. Plaintiffs deny the validity of the aforesaid mechanics’ lien.”

Count II of the petition concerns itself only with the merits of Baltimore’s claim against it. It does not mention the mechanics’ lien. It identified Baltimore’s claim in two parts: 1) a claim for $425,922.05 “for allegedly extra grading and excavating costs arising out of the removal of rock found on the subject land, together with overhead, profit and interest”, and 2) a claim for $91,361.00 as “balance due and owing under the prime contract, plus interest”.

The petition admits Valley Mall’s liability for a portion of the $91,361.00 claim and denies all liability for the $425,922.05, alleging “the contract was for a fixed price and plaintiffs did not agree to any change in amount for any additional grading and excavating by change order or other-wise”.

In their prayer for relief Valley Mall, in addition to asking that the defendant be compelled to prove the validity of the mechanics’ lien or have it declared void, sought a declaratory decree holding: a) that Valley Mall is not liable for Baltimore’s claim for extra grading and excavating costs; and b) that Valley Mall is liable only for such portion of Baltimore’s claim of “balance due and owing under the prime contract” as may be proved at trial.

On April, 5, 1974, Baltimore filed its Answer to the Petition stating it “does hereby intend that this proceeding, rather than duplicate proceedings, shall be considered also as [Baltimore’s] bringing of a proceeding in equity to enforce its lien in fulfillment of the Annotated Code of Maryland’s § 9-106.” The Answer asserts the validity of its mechanics’ lien.

With respect to Count II the Answer recites that Baltimore’s claim for $425,922.05 is being litigated in a suit “filed in the United States District Court for the District of Maryland for [by] Frank M. Sheesley Company vs the Petitioner [Valley Mall] and Baltimore Contractors, Inc.” and prayed a continuance of the instant proceedings until final determination of the federal case.

On July 2, 1974, Valley Mall filed a motion for summary judgment citing as a basis therefor “thát the lien at issue fails to meet the requirements of the Mechanics’ Lien Law, Maryland Code, Art. 21, § 9-101 et seq., and therefore, should be dismissed”. A hearing was held on the motion on January 9, 1975, and on January 28, 1975, the trial court filed an order, accompanied by its Memorandum Opinion, declaring the mechanics’ lien “to be invalid and void and of no effect whatsoever”. On January 29, 1975, Baltimore filed its appeal from that order to this Court. Thirteen minutes later on the same date the trial court filed a supplemental order denying Baltimore’s previously filed motions for a continuance and leave to amend the mechanics’ lien. Baltimore has also appealed from the supplemental order.

We conclude that the appeals must be dismissed as premature because of the provisions of Md. Rule 605 a.

So far as the record reveals Count II of Valley Mali’s Petition is still pending before the Circuit Court for Washington County. The basis for the motion for summary judgment and the trial court’s ruling thereon dealt only with whether or not Baltimore’s mechanics’ lien met the technical requirements of the Mechanics’ Lien Law of Maryland and in no way disposed of or attempted to dispose of any of the issues presented by Count II. Those issues deal with the extent to which Valley Mall is liable to Baltimore, not with Baltimore’s security for that liability.

As we see it, Valley Mall has presented in one action two distinct claims for relief which permit results that are not mutually exclusive. See Diener Enterprises v. Miller, 266 Md. 551, 556 (1972). The essence of the first claim (Count I) is that Baltimore’s mechanics’ lien is invalid and affords Baltimore no security for payment of any of its claims against Valley Mall. In its second claim for relief (Count II) Valley Mall seeks a declaration that, aside from the validity vel 7io7i of the mechanics’ lien, it is not liable for the major portion of Baltimore’s claim. Count I was decided by the trial court by its summary judgment order of January 28, 1975, declaring the mechanics’ lien invalid; Count II is still unadjudicated. Under such circumstances, prerequisites to the immediate appealability of that order are that the trial judge make “an express determination that there is no just reason for delay” and that he expressly direct the entry of a final judgment as to Count I. Md. Rule 605a. As we said in Leach v. Citizens Bank of Md., 17 Md. App. 391 (1973), quoting from Tedrow v. Ford, 260 Md. 142, 144 (1970), at 397:

“‘Judge Miller’s order for summary judgment contained neither an expressed determination that there was no just reason for delay nor an expressed direction for the entry of final judgment for costs against Tedrow. The absence alone of these explicit, directions by the trial court prevents the taking of a7i appeal at this time.’ ” (Emphasis Supplied)

See also Blocker v. Harlow, 268 Md. 571 (1973), at 578 where the Court of Appeals said:

“Under Rule 605 a, as we have previously indicated citing Sears, Roebuck & Co. v: Mackey, 351 U. S. 427, the trial judge is expected to be the ‘dispatcher’ and ‘to determine, in the first instance, the appropriate time when each ‘final decision’ upon ‘one or more but less than all’ of the claims in a multiple claims action is ready for appeal.’ (Emphasis that of Mr. Justice Burton in Sears.) No such determination was made here. The order appealed from was not a final order nor does it fall within the category of interlocutory orders from which an appeal may be maintained. Therefore, the appeal must be dismissed. Lang v. Catterton and Harlow v. Blocher, both swpra. It is elementary that parties may not confer appellate jurisdiction by consent upon this Court or the Court of Special Appeals. ” (Emphasis Supplied)

As the issue of prematureness of the appeal was not raised by any of the parties, we must, sua sponte, recognize our lack of jurisdiction arising from the failure to comply with Rule 605 a and dismiss the appeal. Diener Enterprises v. Miller, supra, and Greyhound Lines v. Alderson, 23 Md. App. 224 (1974).

While we must dismiss the appeal as premature, we think it desirable to comment “for the guidance of the lower court” upon the posture of this case upon remand and, hopefully, “to avoid the expense and delay of another appeal to this Court”. Md. Rule 1085. The last sentence of Rule 605 a makes it clear that in the posture of the case the summary judgment order of January 28, 1975, “is subject to revision at any time before the entry of judgment adjudicating all the claims”. As mentioned earlier herein, Baltimore had filed a “Motion for Leave of Court to Amend Mechanics’ Lien” before the summary judgment order of January 28,1975.

In his “Supplemental Order” of January 29, 1975, the trial judge stated that he “did not give serious consideration to the request to amend because the Court is of the opinion that there is no way the claimant can amend this Mechanics’ Lien to make it valid”. For reasons already stated the merits of the case are not properly before us. We therefore express no opinion on the validity or invalidity of the Mechanics’ Lien in question; nor do we venture to say whether, if presently invalid, it can be cured by amendment. We think, however, that the trial judge should not have foreclosed Baltimore’s attempt to do so.

Present Rule 320 c 1, adopted July 1, 1974, provides that “In any case tried before the court without a jury, any amendment may be made at any time before a final judgment or decree is entered”. (Emphasis supplied) Thus, since there is no final judgment in the case and since the summary judgment is “subject to revision” there would seem to be no impediment to Baltimore’s offering amendments when the case is remanded for further proceedings. Rule 320 d 5 provides that, “Amendments shall be freely permitted in order to promote justice”. Rule BG72 provides that pleadings in an action to enforce a mechanics’ lien may be amended pursuant to Rule 320. In the instant case, since the time within which the lien was required to be recorded has expired, any amendments offered may not increase the amount of the lien nor “materially alter the description of the property against which the lien claim was recorded”. Rule BG72.

Real Property Article, § 9-110, provides:

“This Law is remedial and shall be construed to give effect to its purpose. Any amendment shall be made in the proceedings, commencing with the claim or lien to be filed and extending to all subsequent proceedings, as may be necessary and proper. However, the amount of the claim or lien filed may not be enlarged by amendment”.

Subject to the limitations contained in the above-quoted statute and applicable Rules, it is “difficult to imagine any more extensive power of amendment” than that allowed in proceedings concerning mechanics’ liens. See Real Estate Co. v. Phillips, 90 Md. 515 (1900) at 525.

Under the circumstances, upon remand we think the trial judge should strike out the summary judgment order of January 28, 1975 and allow Baltimore a reasonable time to amend pursuant to Rule 320. After due consideration of any objections that may be made by Valley Mall to the amendments, the court should then permit Valley Mall to renew its motion for summary judgment if it desires to do so. If the court is still of the opinion that the motion should be granted, the order granting the motion will be appealable if there has been compliance with Rule 605 a.

Appeal dismissed; case remanded for further proceedings.

Appellant to pay costs.

      . Now codified at Md. Ann. Code, Real Property Article, § 9-106.

      . Md. Rule 605 a provides:
      “Where more than one claim for relief is presented in an action, whether as an original claim, counterclaim, cross-claim, or third-party claim, the court may direct the entry of a final judgment upon one or more but less than all of the claims only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates less than all the claims shall not terminate the action as to any of the claims, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims.”


author: Eldridge, J.,

text:
    HARFORD SANDS, INC. v. LEVITT & SONS, INC.
    [No. 630,
    September Term, 1974.]

      Decided September 5, 1975.

      The cause was argued before Powers and Lowe, JJ., and John C. Eldridge, Associate Judge of the Court of Appeals, specially assigned.

      Peter Parker, with whom were Gordon W. Priest, Jr. and White, Page & Lentz on the brief, for appellant.

      Robert J. Carson, with whom were M. King Hill, Jr., Edward J. Adkins and Smith, Somerville & Case on the brief, for appellee.
   Eldridge, J.,

delivered the opinion of the Court.

This appeal is taken from a “judgment” purportedly entered pursuant to Maryland Rule 605 a, which allows “entry of a final judgment upon one or more but less than all of the claims [for relief presented in an action] only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” Because we do not believe that the “judgment” is a final appealable judgment under Rule 605 a, we shall dismiss the appeal.

The appellant, Harford Sands, Inc., filed suit in the Circuit Court for Harford County seeking monetary damages from and an injunction against the appellee, Levitt and Sons, Inc. Harford Sands’ declaration contained three counts which alleged that Levitt had intentionally caused certain damage to Harford Sands’ property. (Count I — Trespass); that Levitt had negligently damaged Harford Sands’ property (Count II — Negligence); and that the continuing nature of the damage constituted a nuisance (Count III — Nuisance). All three counts of the declaration alleged specifically that “[c]ommencing on or about April 1, 1968, and continuing to the present date, defendant intentionally [or in the alternative negligently], has caused or permitted water, silt, sand, gravel, debris and various by-products of its building operation to flow or run-off onto the property of plaintiff which lies immediately adjacent to defendant’s business premises.” Harford Sands’ declaration also alleged with respect to all three counts that Levitt had removed topsoil from Harford Sands’ property and had deposited earthfill and other debris on its property. According to the declaration, these actions of Levitt resulted in the destruction of trees on Harford Sands’ property; “accumulation of debris on plaintiff’s property, destruction or damage of a portion of plaintiff’s elaborately located survey line; erosion of plaintiff’s land; extermination by suffocation of numerous fish located in a pond on plaintiff’s property; accumulation of sand and silt and other by-products in quantities measured in the tens of thousands of tons; destruction of [a] road on plaintiff’s property; extensive siltation of the streams which pass through the plaintiff’s property; and pollution of stream waters, lower marsh areas and ‘wetlands’ by heavy deposits of building by-products.” The declaration further alleged that the volume of discharge had increased since 1968, and that Harford Sands had expended substantial unreimbursed sums of money “to correct or repair the damages to its property for which defendant has been responsible.” Harford Sands demanded $250,000 in damages under both Counts I and II of its declaration, and requested an injunction requiring Levitt to halt the flow of water, sand and other harmful substances onto Harford Sands’ property under Count III.

Upon the suggestion and affidavit on behalf of Levitt, the case was removed to the Circuit Court for Baltimore County.

Harford Sands’ declaration was later amended by adding to Count I (Trespass) and Count III (Nuisance), allegations that Levitt had intentionally installed a sewage disposal relief valve on Harford Sands’ property which released untreated sewage and that Levitt had begun construction of houses on land adjoining Harford Sands’ tract without filing a required sedimentation control plan. Harford Sands’ declaration was also amended by increasing the amounts demanded under both Counts I and II to $800,000, and by adding a request that Levitt be ordered by the injunction requested under Count III to remove the sewage disposal relief valve from Harford Sands’ property.

Following a pre-trial conference, the circuit court pursuant to Maryland Rule 502 ordered that the legal question of the effect of the Harford County zoning ordinance on Harford Sands’ “right to mine sand on the part of the property involved in this case where the Defendant has dumped dirt” would be decided separately by the court. The parties formulated an agreed statement of facts “for the sole purpose ... of determining the question of law hereinafter stated in advance of trial.” The question of law-presented was stated by the parties in the following words:

“In determining damages to which Harford Sands may be entitled because of the encroachment of earth on its land as a result of Levitt’s grading operations, is Harford Sands, in presenting evidence of its damages, subject to the restrictions on its mining operations on its property contained in the present Zoning Ordinance, or may Harford Sands mine up to the property line without being subject to said restrictions?”

Harford Sands filed a motion for a “partial summary judgment” with respect to this issue of law.

On August 1,1974, a hearing was held on the issue of law presented by the parties. On the same day, the circuit court rendered its opinion in which it concluded that certain setback requirements contained in the Harford County zoning ordinance were applicable to prevent Harford Sands from mining sand within about 60 feet of the property line between its and Levitt’s tracts and that the setback requirements were constitutionally valid. On August 9,1974, the court entered a “partial summary judgment” in favor of Levitt and declared that “Harford Sands, Inc. . . . has sustained no compensable injury or damage by virtue of any inability to mine in or under the area of its property lying within . . . [the distances set forth in the setback requirements of the zoning ordinance] due to any encroaching dirt placed on or over said area by Levitt.” The judgment provided that “the Court . . . [has] determined, pursuant to Rule 605 a of the Maryland Rules of Procedure and without objection by either party to such determination, that there is no just reason for delay in entering final judgment upon the issues involved in said Motion for Partial Summary Judgment.”

An appeal to this court from the circuit court’s order was taken by Harford Sands. The issues presented to us by both appellant and appellee are whether the circuit court properly construed the Harford County zoning ordinance in holding that the setback requirements were applicable to mining on Harford Sands’ property and whether such an application of the zoning ordinance is constitutionally permissible. We do not reach these issues presented by the parties for the reasons stated below.

Neither the appellant nor the appellee presented the issue of whether this court has jurisdiction to decide the appeal. When, at oral argument, we raised the issue of our jurisdiction, counsel for both parties urged us to decide the case on the merits. However, the “jurisdiction of this Court is statutory and may not be conferred by consent of the parties.” Wright v. Nugent, 28 Md. App. 337, 356, 328 A. 2d 362 (1974). See also Blocher v. Harlow, 268 Md. 571, 578, 303 A. 2d 395 (1973). It is our duty to raise and decide, where appropriate, the issue of our jurisdiction overeases appealed to us. Maryland Rule 1035 a 2. Therefore, we have considered the propriety, under Rule 605 a, of this appeal, and conclude that the appeal must be dismissed.

An appeal of the decision resulting from a separate trial of an issue of law cannot normally be appealed until the conclusion of the entire litigation of which the separate trial is a part. Maryland Rule 502 a provides:

“At any stage of the action, the court may, on application of any party or of its own motion if it shall appear that there is a question of law which it would be convenient to have decided before going further, direct such question to be raised for the court’s decision in such manner as the court may deem expedient. All such further proceedings as may be rendered unnecessary by the decision of such question shall upon the decision be stayed. Such proceedings as show the questions so decided and the decision thereon shall form apart of the record and be reviewable upon appeal after final judgment. ’’ (Emphasis supplied.)

Moreover, since this court, with certain limited exceptions not pertinent here, has jurisdiction only over appeals from final judgments, Maryland Code (1974), § 12-301 of the Courts and Judicial Proceedings Article, the appeal in this case could only be justified on the basis of Rule 605 a. That rule states:

“Where more than one claim for relief is presented in an action, whether as an original claim, counterclaim, cross-claim, or third-party claim, the court may direct the entry of a final judgment upon one or more but less than all of the claims only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates less than all the claims shall not terminate the action as to any of the claims, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims.” (Emphasis supplied.)

While, in the instant case, the circuit court did expressly determine that “there is no just reason for delay” and did order entry of a “judgment” on the issues raised by the motion for a “partial summary judgment,” an appeal cannot properly be brought under Rule 605 a because the order entered by the court was not a “final judgment upon one or more but less than all the claims.” What was decided by the circuit court was merely a legal issue which related to one of the many elements of damage alleged by Harford Sands. The court’s decision was not dispositive of any “claim for relief” as is necessary to permit entry of a final appealable judgment under Rule 605 a.

In Suitland Dev. v. Merchants Mort., 254 Md. 43, 54, 254 A. 2d 359 (1969), the Court of Appeals pointed out that a “claim” within the meaning of Rule 605 a must at least consist of a complete cause of action. In Diener Enterprises v. Miller, 266 Md. 551, 556-557, 295 A. 2d 470 (1972), the Court of Appeals indicated that a “claim” for purposes of Rule 605 a was a set of facts giving rise to a legal right. In Diener, the plaintiff had filed a two-count declaration seeking damages in the first count on the basis of alleged fraud and in the second count on the basis of an alleged breach of contract. The facts alleged in each count were virtually identical. The Court concluded that the declaration contained “actually but one claim that was framed in two ways so as to present either one of two legal theories for one recovery.” (Id. at 556.)

Cases dealing with Rule 54 (b), Federal Rules of Civil Procedure, from which Maryland Rule of Procedure 605 a was taken, confirm that the “judgment” in the instant case did not dispose of an entire “claim.” For example, the Supreme Court in Sears, Roebuck & Co. v. Mackey, 351 U. S. 427, 437, 76 S. Ct. 895, 900, 100 L. Ed. 1297 (1956), equated the term “claim” with “basis of liability.” The United States Court of Appeals for the Ninth Circuit stated in CMAX, Inc. v. Drewry Photocolor Corporation, 295 F. 2d 695, 697 (9th Cir. 1961):

“The word ‘claim’ in Rule 54 (b) refers to a set of facts giving rise to legal rights in the claimant, not to legal theories of recovery based upon those facts. ‘Rule 54 (b) was originally adopted in view of the wide scope and possible content of the newly created “civil action” in order to avoid the possible injustice of a delay in judgment of a distinctly separate claim to await adjudication of the entire case.’ (Notes of the Advisory Committee on Amendments to Rules, quoted in 28 U.S.C.A., Rules 52 to 58, at page 204.)”

See Perma Research and Development Co. v. Singer Co., 410 F. 2d 572, 575, n. 10 (2d Cir. 1969); Re Pass v. Vreeland, 357 F. 2d 801, 805 (3d Cir. 1966); Smith v. Benedict, 279 F. 2d 211, 213 (7th Cir. 1960); Schwartz v. Eaton, 264 F. 2d 195, 196-197 (2d Cir. 1959); School District No. 5 v. Lundgren, 259 F. 2d 101, 104 (9th Cir. 1958); Town of Clarksville, Va. v. United States, 198 F. 2d 238, 240 (4th Cir. 1952), cert. denied, 344 U. S. 927, 73 S. Ct. 495, 97 L. Ed. 714 (1953).

The cases make clear that an order which merely decides whether an item of damages can be recovered, but does not decide the entire cause of action, is not a “final judgment upon” a “claim for relief,” and therefore an appeal from such an order will not lie. For example, in Marino v. Nevitt, 311 F. 2d 406 (3d Cir. 1963), the plaintiff had brought suit alleging, in a single count, that the defendant had defrauded the plaintiff of his interest in three separate contracts. On motion of the defendant, the trial court dismissed the allegations with regard to two of the contracts. The United States Court of Appeals for the Third Circuit held that this action of the trial court could not be appealed under Rule 54 (b), F.R.Civ.P., since “[t]he complaint in this action, and the amendment thereto, state a single claim comprised of several elements of damage. The effect of the court’s decision was to eliminate two of these elements as ‘not supportable or provable as a matter of law.’ The decision was a partial adjudication and therefore lacked the finality prerequisite to the right of appeal.” (Id. at 408.)

In Re Pass v. Vreeland, supra, the plaintiff had brought a malpractice action against defendants, two attorneys, alleging in a three-count declaration that the defendants had negligently allowed the period of limitations to expire with regard to a proposed suit the defendants were handling for the plaintiff and that they had negligently failed to inform him that the period of limitations would expire. Prior to trial, the defendants moved for a partial summary judgment on the ground that the plaintiff had suffered no loss from the expiration of the period of limitations with regard to his proposed suit. This motion did not address plaintiff’s contention that he had been induced to spend unnecessary legal fees. The trial court granted the motion and “pursuant to Rule 54 (b)” the court entered final judgment on the issue of law “since this disposition of the case . . . for all practical purposes eliminate[s] from the trial plaintiffs major damage claim. (Id. at 803.) An appeal to the United States Court of Appeals for the Third Circuit followed. That court stated that the plaintiff’s suit was based on a single cause of action, negligence in handling plaintiffs proposed suit, and that the trial court by its order had eliminated only one of the elements of damages resulting from the defendants’ alleged negligence, but did not deal with plaintiff’s allegation regarding the expenditure of legal fees. Therefore, the Court of Appeals concluded that under Rule 54 (b) the trial court’s decision was not appealable, since the single claim presented in the case had not been fully decided.

These cases demonstrate that an order deciding the validity of a particular element of damages is not a “final judgment” upon a “claim for relief” as those terms are used in Maryland Rule 605 a.

Under the cases dealing with the term “claim for relief” as used in Maryland Rule 605 a and Rule 54 (b), F.R.Civ.P., the trespass, negligence, and nuisance counts in Harford Sands’ declaration probably would be deemed to constitute a single claim for relief although they may be distinct forms of action. The factual basis for the trespass, negligence and nuisance counts is the same, except that the first count alleges that Levitt’s wrongful acts were intentional, the second count alleges that they were negligent, and the third count alleges that they were either intentional or negligent. The damages requested under each of the first two counts are the same. The first two counts merely present mutually exclusive alternative legal theories on which recovery of damages could be based. The nuisance count, under which an injuction is sought, alleges the continuing nature of the damages caused either by trespass or negligence. In light of the holding in Diener Enterprises v. Miller, supra, 266 Md. at 556-557, and numerous federal cases, it would appear that Harford Sands’ declaration set forth only one claim for relief.

However, even if we assume arguendo that multiple claims were involved in this case because Harford Sands’ declaration included distinct forms of action with different elements, we would still have to conclude that an appeal does not lie. The circuit court in its order decided only a legal issue with regard to one element of damages claimed under the trespass and negligence counts. The court did not enter a “final judgment” with regard to either count, and the court’s order did not deal at all with the nuisance count under which an injunction was sought. Thus, the court did not finally decide any of the “claims.”

Finally, we observe that to allow appeals from rulings of trial courts on issues of law which determine only a small part of a claim for relief, such as that involved in this case, would open the door to numerous fragmented appeals. This result would be contrary to what was contemplated when Rule 605 a was adopted. The purpose of Rule 605 a was to prevent the delay and expense which result from “piecemeal appeals” while allowing for a separate appeal “in the very infrequent harsh case.” Diener Enterprises v. Miller, supra, 266 Md. at 555-556; Lang v. Catterton, 267 Md. 268, 272, 297 A. 2d 735 (1972); Arteno v. Arteno, 257 Md. 227, 228, 262 A. 2d 493 (1970); Harkins v. August, 251 Md. 108, 111, 246 A. 2d 268 (1968); Schlossberg v. Schlossberg, 22 Md. App. 527, 535, 323 A. 2d 708 (1974); Flores v. King, 13 Md. App. 270, 272-273, 282 A. 2d 521 (1971); Knight v. Tolson, 10 Md. App. 311, 313-314, 270 A. 2d 132 (1970). The instant case is exactly the type of piecemeal appeal which Rule 605 a was designed to prevent.

In sum, we hold the circuit court’s “judgment” in this case did not constitute the entry of a “final judgment” on a “claim for relief” as provided for in Rule 605 a, and thus an appeal from the circuit court’s order may not be taken.

Appeal dismissed.

Costs to be divided equally between appellant and appellee.

      . Since Maryland Rule 605 a was based on Rule 54 (b), F.R.Civ.P., interpretations of the federal rule by federal courts are “especially persuasive” in applying the Maryland rule. Diener Enterprises v. Miller, supra, 266 Md. at 5,54.

      . Rule 605 a would not be determinative in dealing with the grant or denial of an injunction since such an order would be an appealable interlocutory order under Code (1974), § 12-303 (c) of the Courts and Judicial Proceedings Article.