author: Gilbert, J.,

text:
    STATE OF MARYLAND v. HOUSTON A. HUNT
    [No. 716,
    September Term, 1974.]

      Decided May 29, 1975.

      The cause was argued before Gilbert, Menchine and Davidson, JJ.

      Gary Melick, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Warren B. Duckett, Jr., State’s Attorney for Anne Arundel County, William, E. Brannan, State’s Attorney for Baltimore County, and John A. Austin, Assistant State’s Attorney for Baltimore County, on the brief, for appellant.

      Luther C. West for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

Houston A. Hunt, appellee, was convicted by a jury in the Circuit Court for Anne Arundel County of two kidnapping counts, an assault charge and one other charge. On appeal to this Court, Hunt v. State, 12 Md. App. 286, 278 A. 2d 637 (1971), cert. denied 263 Md. 715 (1971), we affirmed as to one kidnapping and the assault charges only.

In November, 1972, Hunt filed a petition for Post Conviction Relief under the provisions of Md. Ann. Code art. 27, § 645A. Hunt’s assigned reason why he should be afforded a new trial was that he, along with six others who were acquitted, were all represented by the same trial counsel. This fact, Hunt reasoned, denied him his Sixth Amendment right to counsel and the effective assistance of counsel.

Because of the entrance of appearance and subsequent withdrawal of counsel, as well as the amendments to the petition for relief, the matter did not go to hearing in the Circuit Court for Anne Arundel County until May 2, 1974. At the conclusion of the case, Judge Matthew S. Evans determined that Hunt had indeed been the victim of a conflict of interest on the part of his trial attorney. Accordingly, Judge Evans ordered a new trial for Hunt. The State sought leave to appeal to this Court. We granted such leave and placed the matter on the regular appeal docket.

The State contends that Judge Evans erred in his ruling because:

1. “Appellee knowingly waived the contention that he was denied effective assistance of counsel.”
2. “The appellee was not denied his Sixth Amendment right to effective representation by counsel.”

It is here argued by the State that under the provisions of the Post Conviction Procedure Act, Md. Ann. Code art. 27, § 645A (c), any allegation that could have been made on direct appeal is deemed to have been “intelligently and knowingly” waived “unless the failure to make such allegation shall be excused because of special circumstances.” The State correctly notes that the burden of proving such “special circumstances” that would excuse the application of the waiver rule rests upon the appellee. Advancing from that position the State then asserts that appellee did not raise in his direct appeal, see Hunt v. State, supra, any contention, whatsoever, relative to a denial of the effective assistance of counsel. Hence, as the State sees it, the appellee has waived his right to come forward with such an argument, and we should so dispose of the case.

Hunt testified that he recognized during the course of the trial that the possibility of conflict existed when the then attorney allegedly refused to cross-examine a State witness. This being so, the State reasons, Hunt should have interposed an objection, or at the very least have challenged the matter on appeal. The fallacy in the State’s approach is that Hunt used the term “possibility of conflict”, thus indicating something that may or may not have been true. Furthermore, it is highly unlikely that the attorney who allegedly had a conflict of interest would have made the conflict an issue on appeal, even if the attorney had recognized that a conflict existed. We desire to make it unmistakable that we do not imply that the then counsel for Hunt was aware of a conflict. Consequently, if counsel were unaware of a conflict, and did not call it to the attention of the trial court or the appellate Court, it would stretch even credulity to hold that Hunt was bound by his counsel’s failure to recognize a conflict, or having recognized it, ignoring it.

Notwithstanding the testimony of Hunt’s erstwhile counsel that he saw no conflict, Judge Evans found that a conflict actually existed. The judge based his holding on Glasser v. United States, 315 U. S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1942) and Brown v. State, 10 Md. App. 215, 269 A. 2d 96 (1970). In Glasser an Assistant United States Attorney was charged with conspiracy to defraud the United States. The District Court Judge ordered an attorney to represent two different accuseds because of a last minute withdrawal by a counsel. Glasser stated that he preferred to have his counsel represent him, Glasser, alone, but Glasser did not object to the court’s directive that the same attorney represent both accuseds. Mr. Justice Murphy, for the majority, wrote with respect to a claim that Glasser had waived his objection to his attorney’s also representing the accused:

“ . . . [W]e indulge every reasonable presumption against the waiver of fundamental rights. ... We are told that, since Glasser was an experienced attorney, he tacitly acquiesced in . . . [the appointment of his attorney to represent the other accused] because he failed to renew vigorously his objection at the instant the appointment was made. The fact that Glasser is an attorney is, of course, immaterial to a consideration of his right to the protection of the Sixth Amendment. . . .
Upon the trial judge rests the duty of seeing that the trial is conducted with solicitude for the essential rights of the accused. . . .
No such concern on the part of the trial court for the basic rights of Glasser is disclosed by the record before us. The possibility of the inconsistent interests of Glasser and . . . [the other defendant] was brought home to the court, but instead of jealously guarding Glasser’s rights, the court may fairly be said to be responsible for creating a situation which resulted in the impairment of those rights. . . . ” 315 U.S. at 70 - 71.

The Court concluded that trial counsel was placed in the difficult position of having to serve two masters. To determine the precise degree or quantity of prejudice sustained by Glasser, the Court stated, was “at once difficult and unnecessary” inasmuch as the right to counsel “is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” 315 U. S. at 76.

We observe that the appellee in the matter now before us, while literate, had completed five grades of school. If Glasser, a lawyer and presumably experienced prosecutor, could not be said by the Supreme Court to have waived his right to the effective assistance of counsel by his failure to object, we believe it indubitable that Hunt’s similar failure does not constitute a waiver.

This Court in Brown, swpra, speaking through Judge Thompson, set out at 220-21 three key questions, the use of which will resolve most conflict of interest cases. The three cornerstone interrogatories are:

“I. Is an actual or imminent conflict of interest present?
II. Given an actual or imminent conflict of interest in existence,
a. What quantum of prejudice must exist before there is reversible error?
b. Does that amount of prejudice exist in the present case?
III. What responsibility, if any, is on the trial court to raise the conflict of interest sua spontel ”

Judge Thompson then discussed in detail each of the three critical questions, after stating that in this State:

“ . . . [A] conflict of interest begins with a consideration of the requirement that either an actual conflict of interest exists or that a conflict of interest be ‘imminently potential’, Pressley v. State, 220 Md. 558, 155 A.2d 494 [(1959)]____[T]he more complex a case becomes, either legally or factually, the more opportunity exists for a conflict of interest. ...” (Emphasis supplied).

One of the contentions made in the instant case is that Hunt’s trial counsel also represented six other defendants, which severely impaired the effectiveness of his cross-examination. Hunt argues that his former attorney, by representing other defendants, was placed in the position of figuratively having to tread upon eggshells because his questions to adverse witnesses had to be so framed, in Hunt’s view, as to avoid harm to the greatest number, and thus it was Hunt who suffered from counsel’s timidity in cross-examining. Brown, supra, points out at 222 that, “the effectiveness of cross-examination is significantly diminished as a result of actual or imminent conflict of interest.”

The Supreme Court, in Glosser, observed that inability of counsel to cross-examine effectively amounted to an actual conflict of interest. Similar holdings are found in United States v. Gougis, 374 F. 2d 758 (7th Cir. 1967); Craig v. United States, 217 F. 2d 355 (6th Cir. 1954); Application of Buffalo Chief, 297 F. Supp. 687 (S.D.S.D. 1969); People v. Fuller, 268 Cal.App.2d 844, 74 Cal. Rptr. 488 (1969); People v. Bopp, 279 Ill. 184, 116 N. E. 679 (1917); Com. ex rel. Whitting v. Russell, 406 Pa. 45, 176 A. 2d 641 (1962); Commonwealth v. Jones, 215 Pa. Super. 41, 257 A. 2d 367 (1969).

In Brown we took a firm stand, “in line with both Pressley and Glasser” that with respect to prejudice to the party asserting the presence of a conflict that “the prejudice need only be slight before relief is granted.” We noted that “[W]hile Pressley requires a showing of prejudice, Glasser is written in terms too specific to require more than slight prejudice.” 10 Md. App. at 227.

“Ineffective assistance [of counsel] has been found [to exist where] . . . codefendants . . . have disparate criminal records.” J. Cook, Constitutional Rights of the Accused: Trial Rights, § 46 (1974).

See, e.g., Case v. N.C., 315 F. 2d 743 (4th Cir. 1963); United States ex rel. Michelotti v. Price, 230 F. Supp. 505 (W.D. Pa. 1964); People v. Douglas, 61 Cal. 2d 430, 38 Cal. Rptr. 884, 392 P. 2d 964 (1964). See generally, Comment, Criminal Codefendants and the Sixth Amendment: The Case for Separate Counsel, 58 Geo. L. J. 369, 377 (1969), which states:

“ . . . [N]o discernible test for conflict is applied consistently and . . . each fact pattern is evaluated on a case-by-case basis.”

The ABA Standards Relating to the Administration of Justice, The Defense Functions, § 3.5 (a) and (b) (1971) declares:

“(a) At the earliest feasible opportunity defense counsel should disclose to the defendant any interest in or connection with the case or any other matter that might be relevant to the defendant’s selection of a lawyer to represent him.
(b) Except for preliminary matters such as initial hearings or applications for bail, a lawyer or lawyers who are associated in practice should not undertake to defend more than one defendant in the same criminal case if the duty to one of the defendants may conflict with the duty to another. The potential for conflict of interest in representing multiple defendants is so grave that ordinarily a lawyer should decline to act for more than one of several co-defendants except in unusual situations token, after careful investigation, it is clear that no conflict is likely to develop and when the several defendants give an informed consent to such multiple representation. In some instances, as defined in the Code of Professional Responsibility, accepting or continuing employment by more than one defendant in the same criminal case will constitute unprofessional conduct.” (Emphasis supplied).

Judge Evans, based upon the evidence adduced at the post conviction hearing, made certain findings of fact. He said:

“This court has undertaken an extensive review of the transcript and proceedings of this case to determine whether a conflict of interest existed and, if so, whether the petitioner was prejudiced by this conflict. This case involved allegations that the nine defendants, all members of the same motorcycle gang, kidnapped Miss Stec for a period of six days. The evidence indicated that the entire group was traveling together for the majority of this period. Each of the defendants would therefore have a reason to disassociate himself from the group and to try to place the blame on another co-defendant. [See Glasser v. United States, supra.] Hunt would have great difficulty in doing this because he was the leader of the group. Since his counsel was unable to do this, due to his representation of six other defendants, an actual conflict of interest existed and the first requirement of Brown is satisfied.
In considering the second requirement of Brown, it is necessary to study the record to determine whether Hunt’s counsel was as effective as he might have been had the conflict not existed. A careful examination of the record shows that counsel was not as effective. For example, Hunt wanted to take the witness stand in his own defense but was advised by counsel not to do so because counsel feared that Hunt’s prior criminal record would prejudice the other defendants. [See, Case v. N.C., supra; United States ex rel. Michelotti v. Price, supra; People v. Douglas, supra; J. Cook, Constitutional Rights of the Accused: Trial Rights § 46(1971)]
Petitioner was also prejudiced by his counsel’s closing argument in which he admitted that the petitioner was the focal point of the State’s case and thereby drew the attention of the jury to Hunt. In his argument to the jury, Hunt’s counsel also did not have the opportunity to disassociate or minimize Hunt’s actions from those of the other defendants due to his joint representation.
Hunt was represented by the same attorney in both the trial court and the Court of Special Appeals. This is the apparent reason this issue was not presented to the Court when it considered Hunt’s appeal. . . . Hunt first realized there was a conflict of interest when he contacted other attorneys about the possibility of representing him in his quest for post-conviction relief. For these reasons, Hunt should not be foreclosed from raising the issue at this time.” (Emphasis supplied).

Our perusal of the record convinces us that Judge Evans’s findings on the facts are not clearly erroneous, Md. Rule 1086, and that his interpretation of, and ruling upon, the law is correct. The record discloses that the legal representation afforded Hunt during the trial left much to be desired because trial counsel failed to perceive the conflict of interest that existed between Hunt and his co-defendants. No attack on the prosecuting witness’s credibility could be effectively made by Hunt’s lawyer, except at the expense of Hunt’s six co-defendants, represented by the self-same lawyer. This is true because the prosecutrix’s testimony centered on Hunt. If defense counsel through cross-examination pointed out, directly or indirectly, to the witness the omission from her narrative of the culpability of the other defendants, he might have jogged her memory and caused her to relate some facts indicative of guilt on the part of the other six defendants. Counsel thus was placed in a “damned if he did and damned if he didn’t” posture. Hunt’s prior criminal record for two robbery convictions might have influenced the jury against Hunt’s cohorts. Trial counsel was placed in the position of deciding whether to risk the possibility of an unfavorable inference being drawn by the jury against the six co-defendants, because of Hunt’s criminal record, or keeping Hunt off the witness stand. Had Hunt testified, as he desired to do, there is the possibility that the jury may have believed his version of the facts, viz., that the prosecutrix was a willing, consenting partner in the six-day escapade and not the victim. It may well be that the jury would have still believed the prosecutrix, but we are unable to determine with any degree of certainty that such is the case.

We think Judge Evans properly granted Hunt’s application for post conviction relief and ordered a new trial.

In.light of our holding we do not reach a discussion of the third interrogatory, i.e., the duty, if any, of the trial court to have acted sua sponte in this case.

Order affirmed.

      . Nine persons were charged. Seven were represented by the same attorney. Of the other two, each had his own counsel.

      . Mr. Justice Frankfurter dissented and was joined therein by Chief Justice Stone. Mr. Justice Jackson took no part in the consideration of the case.


source: Caselaw Access Project

author: Lowe, J.,

license: Public Domain

text:
    JEANNE SCHWARTZ v. GEORGE M. SCHWARTZ
    [No. 905,

    September Term, 1974.]

      Decided May 29, 1975.

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

      Robert Anthony Jacques for appellant.

      Robert R. Michael, with whom were Alan D. Massengill and Massengill & Michael and William, John Mason on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Conflicts among courts of the States cannot be avoided when litigants are jurisdictional nomads. The parties here were married in Florida wherein they lived together as husband and wife. Presumably, the matrimonial sea was either too calm or too turbulent for after eight years they were divorced in that State. Apparently the divorce did not erase the affection each had for the other. They continued to live together in the same home, and while their marriage was not blessed with a child, their subsequent relationship was. Two years after their divorce their child was born.

Since each of the proceedings we are about to detail dealt with custody, an in rem, action, the jurisdiction of the hearing court depended in the first instance on the domicile of the child. Renwick v. Renwick, 24 Md. App. 277, 284. The Court of Appeals has held that a child’s domicile is that of the parent with legal custody, Taylor v. Taylor, 246 Md. 616, 618-619; accord, Seidlitz v. Seidlitz, 23 Md. App. 327, 336. After issuing a decree, however, the rendering court retains jurisdiction to modify its decree, even though the domicile of the child may then be elsewhere. Berlin v. Berlin, 239 Md. 52. With these principles in mind, we proceed to describe the multitude of litigation to which this child has been subjected.

The child was five years old before Mrs. Schwartz chose to leave her Florida domicile. She went to her parents’ home in Bethesda, Maryland. Soon thereafter, with the help of private detectives, she obtained physical custody of the child contrary to an oral understanding with Mr. Schwartz. Mrs. Schwartz then sought and received temporary custody in the Circuit Court for Montgomery County. Assuming that Mrs. Schwartz was at that time domiciled in Maryland, the court had jurisdiction to render the custody decree. Taylor, supra. Over a year of unpleasantness ensued including contempt hearings regarding alleged violations of visitation privileges.

Mrs. Schwartz then moved out of state. Although she denied that her attorney was not apprised of her whereabouts, no one seemed to know that she had taken up residence in California. Thus, when the Maryland court heard a petition for contempt filed by Mr. Schwartz, Mrs. Schwartz was not physically present, although her attorney and her parents were. The hearing judge transferred temporary custody to Mr. Schwartz. Even though at this point Mrs. Schwartz and the child were living in California, the Maryland court, having rendered the initial custody decree, had jurisdiction to modify the decree to give Mr. Schwartz temporary custody under the continuing jurisdiction doctrine. Berlin, supra, 239 Md. 52. Mr. Schwartz, himself, engaged private detectives to find mother and child and through their efforts, physically took custody of the child and returned with her to his Florida home where he promptly petitioned the Florida court for permanent custody and other relief.

Having commenced those proceedings in Florida where he lived, which was thereby the legal residence of his child, Taylor, supra, 246 Md. 616, Mr. Schwartz did not personally reappear in Maryland when Mrs. Schwartz apparently returned here and petitioned the Montgomery County court for restoration of custody. Mr. Schwartz’s motion to dismiss that proceeding filed by his counsel was denied and the Maryland chancellor awarded temporary custody back to Mrs. Schwartz. Again, the Maryland court had jurisdiction to modify its decree under the continuing jurisdiction doctrine. Berlin, supra, 239 Md. 52.

When Mrs. Schwartz and her own private detectives were physically unable to remove the child from Florida, Mrs. Schwartz filed a Writ of Habeas Corpus there, based on her Maryland decree. The Florida court consolidated Mrs. Schwartz’s writ petition with Mr. Schwartz’s custody petition without objection and proceeded with a full custodial hearing which resulted in custody of the child being awarded to her father on October 2, 1973. No appeal was entered. Mrs. Schwartz’s Maryland proceeding and Mr. Schwartz’s Florida proceeding were practically simultaneous, although the Florida decree was last issued. Both courts had jurisdiction to hear the custody proceeding; Maryland under the continuing jurisdiction doctrine, Berlin, supra, 239 Md. 52, Florida because the child was domiciled there, Renwick, supra, 24 Md. App. 277.

Under the liberal visitation provisions of that Florida decree the child visited her mother in California for a week at the end of 1973 and arranged for a six week visit the following summer in accordance with the decree. On this occasion, however, the child was not returned to her father. Unbeknown to him, Mrs. Schwartz had taken her back to her parents’ home in Bethesda.

Mr. Schwartz filed a petition for Writ of Habeas Corpus which Writ was signed by Judge Ralph G. Shure, who upon the voluntary appearance of mother and child and assurance of subsequent appearance under oath, assigned the issue for hearing before Judge H. Ralph Miller. Following that evidentiary hearing, Judge Miller signed an order affirming Judge Shure’s Writ and directing the delivery of the child to Mr. Schwartz, thereby extending “full faith and credit” to the Florida decree. Mrs. Schwartz appeals that ruling by asserting lack of jurisdiction in the Florida court. She claims now that neither she nor the minor child were domiciled in Florida and further that she appeared for the limited purpose of implementing the Maryland decree.

The record reflects that at the time the Florida jurisdiction was invoked the child was in the custody of her father whose residence is and was throughout, Florida. Furthermore, by petitioning the Maryland courts to restore custody to her, Mrs. Schwartz impliedly admitted that her husband had lawful custody. As we have previously noted, the domicile of the child — determinative of custody jurisdiction, Renwick, supra, 24 Md. App. 277 — follows that of the parent with legal custody, Taylor, 246 Md. at 618-619. The Florida court therefore had jurisdiction, albeit concurrent with Maryland’s continuing jurisdiction. Since a custody decree is “conclusive of the status of the child at the time the decree was rendered” Rethorst v. Rethorst, 214 Md. 1, 13, [emphasis added] custody provisions may change as circumstances change, and the latest decree, viz., Florida, must control.

We have treated the merits of the jurisdiction question even though we need not have. The chancellor below found as a fact that Mrs. Schwartz had appeared generally in the Florida proceeding. The test by which that finding of fact must be reviewed is set forth in Md. Rule 1086, the clearly erroneous rule, Renwick, 24 Md. App. at 282-283, and we do not find that finding of fact to be clearly erroneous.

By participating in the Florida custody hearing, Mrs. Schwartz had a full opportunity to contest the jurisdiction of the Florida court. If she raised that issue and disagreed with the chancellor’s decision, her remedy was to appeal, a remedy which she did not pursue. It matters not whether she actually litigated the jurisdictional issue there, only that she had the opportunity to do so. Considering the same issue in the analogous situation of a divorce proceeding, the Supreme Court held:

“[T]he requirements of full faith and credit bar a defendant from collaterally attacking a divorce decree on jurisdictional grounds in the courts of a sister state where there has been participation by a defendant in the divorce proceedings, where the defendant has been accorded full opportunity to contest the jurisdictional issues . . . .”
“. . .If respondent failed to take advantage of the opportunities afforded him, the responsibility is his own. We do not believe that the dreliction of a defendant under such circumstances should be permitted to provide a basis for subsequent attack in the courts of a sister state on a decree valid in the State in which it was rendered.” Sherrer v. Sherrer, 334 U. S. 343, 351-352; accord, Day v. Day, 237 Md. 229, 234.

Having had her “day in court” on the jurisdictional issue, Mrs. Schwartz is barred by res judicata from now collaterally attacking the Florida judgment. Rethorst, 214 Md. at 13. The Florida decree is entitled to full faith and credit.

We found the opinion of the chancellor below cogently expressed our reactions to this case. After setting forth the factual background, he explained:

“There is a writ of habeas corpus in which the petitioner, the defendant, asked to have full faith and credit extended to the final decree of Florida State, based on concurrent jurisdiction and that being the latest decree; and the Court will have to decide the question whether that decree is entitled to have full faith and credit, because there is some allegation that the plaintiff wife went to Florida only to enforce her Maryland decree.
The Court will take into consideration, also, that the Florida decree is the only decree of this Court, excepting the first pendente lite order to the wife, where the parties were ever really both before the court to litigate their problems.
The Court is not at all happy about what has occurred in this case, particularly with regard to the plaintiff, Mrs. Schwartz. I am not happy, either, with Mr. Schwartz, who did not appear for the custody hearing here. But the home investigation was done on the basis of the California home, and the next thing I know, there is litigation going on in another State and then the wife is back here with her parents.
This child cannot be dragged all over the United States, and I think that the parties did just what was right; and I am not at all convinced by the wife’s testimony that at the time she did not believe that, also. They got together and they litigated the matter, and obviously she is unhappy with the result. There is not any doubt in my mind that she initially went down to Florida simply to enforce her Maryland decree; but the exhibits seem patently clear to me, that once down there they resolved their differences and decided to let that court decide the issue of custody.
I am keeping in mind that this was the first time that had really occurred. It is a later decree, and the Court holds that the Florida court clearly had jurisdiction, concurrent jurisdiction with this State and that it was not just a simple matter of enforcing the Maryland decree.

The fact that [Mrs. Schwartz] did not agree with the Florida attorney is no matter of defense. The Florida decree was passed when both parties were before the court and when, quite obviously from the exhibits, a statement was made by the judge in his decree — and it was based on the testimony and participation of the parties — that they wanted to lay to rest forever their troubles. That is just exactly what they did.

It being a later decree, the Court extends full faith and credit to the decree of the State of Florida. The writ of habeas corpus issued on August the 22nd, 1974, is hereby affirmed.”

We affirm the action of the chancellor.

Judgment affirmed.

Costs to be paid by appellant.

      . We do not consider whether Mrs. Schwartz’s two year stay in Maryland met the requisites of domicile because the issue was never raised nor treated below.

      . The entire Florida proceedings were admitted into evidence below.


author: Menchine, J.,

text:
    THE AMERICAN MUTUAL INSURANCE COMPANY OF BOSTON v. CARYL E. BITTLE
    [No. 616,
    September Term, 1974.]

      Decided June 2, 1975.

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

      Francis J. Ford for appellant-cross-appellee.

      Jaynes E. Davitt, with whom was David J. Humphreys on the brief, for cross-appellant-appellee.

       Note: Certiorari denied, Court of Appeals of Maryland, September 8, 1975.

   Menchine, J.,

delivered the opinion of the Court.

On December 25, 1969 John Eaward Bittle was killed and Caryl E. Bittle and James Bittle were injured when their automobile was in collision with the vehicle of Felix A. Frazier. It was snowing, with the road surface lightly covered with snow. The motor vehicle of Felix A. Frazier was being operated in a northerly direction on Route 1; the motor vehicle of John Edward Bittle was being operated in a southerly direction on Route 1. Route 1 at the point of collision is a four-lane highway, providing travel in both directions without a median divider. The vehicle of Frazier crossed the centerline of the highway and came into collision with the Bittle vehicle.

Frazier was insured by American Mutual Insurance Company of Boston (American Mutual) against automobile liability to a policy limit of $50,000.00. In October, 1970 American Mutual offered to the Bittles the full amount of its policy coverage. The offer was rejected upon the ground that American Mutual had acted in bad faith by refusing earlier to settle pursuant to an ultimatum issued by counsel for the Bittles, demanding that American Mutual pay the full amount of its policy of insurance on or before May 15, 1970, at 5:00 P.M. Suit on behalf of the Bittles had not then been instituted (filed on June 16,1970.)

In the ensuing trial for the motor tort in the Circuit Court for Charles County, verdicts totaling $207,100.00 had been rendered on February 29, 1972. Subsequent to the entry of judgments, American Mutual paid its policy limits in part payment thereof. Frazier, the insured, at no time had requested or demanded that the insurance company pay the policy limits in his behalf. Indeed, Frazier refused to assign to the Bittles any right personal to him as the insured against American Mutual, even after entry of the judgments against him. When Frazier died on June 27, 1972 from natural causes not related to the accident, counsel for the Bittles sought to have his widow obtain Letters of Administration so that suit for the judgment deficit might be instituted by her against American Mutual. She declined.

Thereafter, Caryl E. Bittle applied for and was granted Letters of Administration of the Estate of Felix A. Frazier, deceased, as a creditor of Felix A. Frazier, deceased. No assets in the estate were shown. There were no liabilities other than the Bittle judgment claims. Caryl E. Bittle, then acting as administratrix of the estate of Felix A. Frazier, instituted the subject action against American Mutual to recover as damages the difference between the amount of the policy limits and the amount of the judgments with interest from the date of their rendition. From a judgment in that action for $180,215.00 against it in the Circuit Court for Prince George’s County, American Mutual has appealed.

American Mutual contends “the excess liability of an insurer arises out of the relationship between the insured and his insurance company * * * as a shield to protect the policy holder against bad faith abuses of insurance companies,” and that there was no legally sufficient evidence of such bad faith toward its insured as would require submission of the issue to a jury. We agree and shall reverse.

The ultimatum by counsel for the Bittles to American Mutual, demanding settlement “on or before May 15, 1970 at 5 p.m.,” was the end product of a series of letters from counsel dated March 23, 1970; April 20, 1970; and May 7, 1970.

The letter of March 23, 1970 had stated, inter alia, that: “the investigating police officer and five eye witnesses to this accident, clearly indicate that Mr. Frazier, your insured, is guilty of gross negligence * * *. There is evidence that your insured had been drinking heavily prior to this accident.” The letter added: “Our present fee arrangement with the Bittle family has been modified to provide that our fee will be substantially reduced if the case can be settled within the terms and conditions herein stated” and demanded “in full settlement of all claims the amount of $247,000 or the amount of the applicable insurance coverage, if less, upon condition that we be supplied with satisfactory written proof as to the extent of * * * insurance coverage and a financial statement under oath from Mr. Frazier showing the * * * insurance * * * to be the only substantial asset of [Frazier] * * * available to satisfy a judgment against him * * *. The foregoing offer to settle is expressly conditioned upon acceptance no later than 4 p.m. on April 20, 1970, * *

The letter of April 20, 1970, after referring to requested medical examinations of the surviving Bittles by a doctor of American Mutual’s selection, stated, inter alia, that: “* * * we feel it reasonable to extend the settlement deadline as referred to and conditioned in our letter of March 23, 1970, up to April 30,1970,4 p.m.”

The letter of May 7, 1970, after stating that the requested medical examination of Caryl E. Bittle by Dr. Gordon for the insurer would be refused because “We believe * * * such an examination is not necessary * * * for the purpose of evaluating settlement possibilities * * * then declared that: “ * * we do hereby withdraw the requirement of such a financial statement as a condition to a settlement * * * and extend the time for settlement up to and including May 15, 1970, at 5 p.m. If you do not comply with our settlement request by that date and time, all demands will be withdrawn, all offers for settlement will be refused, * * * we will file a lawsuit forthwith * * *. In the event that a judgment exceeds the applicable insurance * * * we will then proceed on an excess claim against you as outlined in out previous letter of March 23,1970.”

The following facts are undisputed in the record:

1. That it was snowing at the time of the collision and that the roads were lightly covered by snow.

2. That the investigating police officer refused to be interviewed by the representative of the insurer until a date subsequent to that fixed in the ultimatum of counsel for the Bittles.

3. That Frazier, the insured, represented to the insurer:

(a) that he had ingested only a very small quantity of alcohol on the date of the accident;

(b) that he had no conscious recollection of the events immediately preceding and following the collision.

4. That Frazier never requested his insurer to settle the claims against him within the limits of his policy of insurance.

5. That counsel for the Bittles unilaterally had rejected American Mutual’s request for a medical examination of Mrs. Bittle.

Under the recited undisputed facts, shown to exist on May 15, 1970, we are compelled to declare as a matter of law that there was no showing of a failure by the insurer of its duty to exercise good faith and due care towards its insured. Cf. State Farm v. White, 248 Md. 324, 236 A. 2d 269; Sweeten, Admr. v. National Mutual Insurance Co., 233 Md. 52, 194 A. 2d 817; Gaskill v. Preferred Risk Mutual Insurance Company, 251 F. Supp. 66 (D.C. D. Md. 1966).

This insured never had sought to have his insurer settle the claims against him. As was said in Ammerman v. Farmers Insurance Exchange, 430 P. 2d 576, 578 (S. Ct. Utah 1967): “The privilege of deciding whether to do so should be up to him and not up to some third party to inject his interest into the matter.”

The deadline for settlement fixed by counsel for the Bittles was arbitrary and unreasonable, in that it placed the insurer in a position where it would have been required to accept the conditional settlement offer before it had an opportunity to interview the investigating police officer.

The record shows that the services of a firm of court reporters had been engaged to get the testimony of all of the parties, including the police officer, at the traffic hearing initially scheduled for January 11, 1970. That hearing did not in fact occur until June 1, 1970, subsequent to the ultimatum date. The deposition of Thomas R. Clarke, Claims Manager for American Mutual, introduced in evidence by the appellee, explained: “It was absolutely necessary that we interview the police officer in order that he might tell us anything that he knew about this particular case, and of his complete investigation not only at the scene but also at the hospital, in order that we might establish if there was anything that he knew that could shed some light on exactly what happened.” Clarke’s testimony also included the following:

“The entire question was whether our insured’s amnesia was going to come back [sic] and assist us in determining whether there was any liability in this particular case.
Q. I am not sure that I understand you completely, Mr. Clarke. I say that as of the time Mr. Quinn either recommended or requested the authority to settle for policy limits, there was still a question in your mind of the liability of Mr. Frazier?
A. There is a very serious question in my mind today as to the liability in this case. In my own mind, my belief, knowing this particular insured, talking to him, a very hard working individual, lost his only son in the war, a very fine, uneducated man, the circumstances were too bizarre for me to believe that he was responsible for this accident.”

The insured, fully aware of the ultimatum, not only did not demand or request the insurer to settle within the framework of that offer, but steadfastly thereafter declined to participate in any action suggesting that his insurer had acted in bad faith in failing to do so.

We find no evidence legally sufficient to establish that as of May 15,1970 at 5 P.M., American Mutual had shown “bad faith” to its insured as measured by the rule of law announced in State Farm v. White, supra.

All cases cited by the appellees, dealing generally with the duty of an insurer when confronted by a potential conflict of interest arising following offers of compromise, are distinguishable on their facts. The applicable rule of law as to the duty owed by an insurer under such circumstances is substantially uniform. See: Annotation 40 A.L.R.2d 168-226. See Also: Later Case Service 40 A.L.R.2d 168-226. No breach of that duty is shown here.

We do not reach the question whether the absence of proof of monetary loss to the estate of Frazier would operate to bar recovery by the administratrix of his estate.

Cross-Appeal

The administratrix entered a cross-appeal upon two grounds, namely:

1. That the trial court erred in its denial of her demand for production of insurer’s file as to events occurring subsequent to May 15, 1970 at 5 P.M., and
2. That the trial court erred in rejecting her proffer of expert witnesses upon the question of bad faith or negligence.

The Insurer’s File

Both the plaintiffs’ declaration and the proof offered under it fixed May 15, 1970 at 5 P.M. as the deadline for acceptance of the offer of settlement. That deadline specifically was declared to be the date of withdrawal of the conditional offer. The assumption by the plaintiffs of such a position caused all events subsequent to that date to be irrelevant and immaterial to the issue presented in the case.

Expert Witnesses

Our determination that there was no evidence of bad faith or negligence destroys the validity of the cross-appellant’s contention. The testimony of an expert witness to be admissible, must be based upon evidence legally sufficient to support it. State Health Department v. Walker, 238 Md. 512, 520, 209 A. 2d 555, 559-60. Here, there was no such evidence. Moreover, it is well established that when a standard of conduct has been fixed by law, an expert witness will not be permitted to express an opinion as to whether or not the conduct in question measures up to the standard. See: Franceschina v. Hope, 267 Md. 632, 642, et seq. 298 A. 2d 400, 406.

Judgment reversed without a new trial.

Costs to be paid by appellee and cross-appellant.

      . In a letter dated October 28, 1970 acknowledging but rejecting the offer, counsel for the Bittles declared: “It is our clients’ present intention to follow this case through to a final judgment against Mr. Frazier and to thereafter proceed with an excess lawsuit against American Mutual Insurance Company.” No copy of this letter was mailed to Frazier.

      . Counsel for the Bittles by letter dated April 24, 1972 addressed to Frazier, the insured, had stated, inter alia: “I am sure you are aware that under the law you are responsible for the payment of the judgment in excess of the amount of your insurance policy. However as we have stated in a letter to American Mutual Insurance Company dated March 23, 1970, a copy of which we sent to you, we would agree not to attach your property, including your salary, in order to satisfy this judgment, provided you give to our clients an assignment of any rights you might have to make a claim against your insurance company for failing to settle this case for the amount of your coverage when the company had an opportunity to do so.” See, however, Disciplinary Rule DR 7-104 A(2).

      . The record shows that insured’s statement to insurer had denied ingestion of alcohol except for one glass of egg nog “with about 1 tablespoon of scotch in it.” Frazier claimed a condition of amnesia respecting the circumstances of the collision. There was no evidence that the insured ever retreated from the positions he declared in that statement. Although the police report of the accident included a notation that insured “had been drinking,” no charge of driving under the influence of alcohol was placed against him by the investigating officer. This officer refused to be interviewed by American Mutual’s investigator “until after the traffic hearing.” The latter event did not occur until June 1, 1970, 16 days after expiration of the date fixed by counsel for the Bittles in the ultimatum.

      . Under the terms of a document entitled “Modification of Memorandum of Retainer and Authorization of Attorney Originally Signed January 9, 1970” counsel for the Bittles “does hereby agree to reduce his attorney’s fee from a one-third contingent fee to 25 per cent contingent fee for a period of 30 days and an additional period, not to exceed 90 days from the date of this agreement, during which time he will attempt to negotiate a settlement * * *.” The document also contained the following: “If the judgment [settlement failing] is in excess of the applicable insurance coverage, it is our present intention not to make any effort to collect such excess portion of this judgment from Mr. Frazier, that is to say, the excess over and above the amount of the applicable insurance coverage but rather to request from him an assignment of any right he may have to proceed against the insurance carrier for failing to exercise good faith and reasonable care in the negotiations of a settlement within the above stated conditions in return for which we would offer him a written stipulation to stay execution upon that portion of the judgment.”

      . Initially demanded in the letter of March 23,1970.


author: Murphy, J.,

text:
    JAMES HOWARD THOMPSON v. STATE OF MARYLAND
    [No. 766,
    September Term, 1974.]

      Decided June 2, 1975.

      The cause was argued before Orth, C. J., and Mason J., and Robert C. Murphy, Chief Judge of the Court of Appeals of Maryland, specially assigned.

      Benjamin Lipsitz, with whom was Eleanor J. Lipsitz on the brief, for appellant.

      Arrie W. Davis, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Allen, State’s Attorney for Baltimore City, and Marshall H. Feldman, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Murphy, J.,

delivered the opinion of the Court.

Maryland Code (1970 Repl. Vol.) Art. 66 V2, § 11-902 provides, in subsection (a), that it shall be unlawful to drive any vehicle while “in an intoxicated condition”; subsection (b) makes it unlawful for any person to drive any vehicle when “his driving ability is impaired by the consumption of alcohol.” Section 16-104 entitled “Lesser included offenses” provides that “[i]t shall be sufficient to charge any person with a violation of ... § 11-902 (driving while intoxicated [or] impaired . . .) and the court is empowered to make a finding under any subsection of ... § 11-902.” The penalty for violating § 11-902 (a) (drunken driving) may exceed three months’ imprisonment; the penalty for violating § 11-902 (b) (driving while impaired) is a fine of not more than $500.00. § 17-101 (b)(i)(ii). Under Code (1974) Courts and Judicial Proceedings Article, § 4-301, the District Court is vested with exclusive original jurisdiction in cases charging violations of § 11-902 of Art. 66 V2. Under § 4-302 (d)(1) of the Courts Article, the District Court “is deprived of jurisdiction if a defendant is entitled to and demands a jury trial at any time prior to trial in the District Court.” Under § 4-302 (d)(2), a defendant may demand a jury trial if the penalty for the offense with which he is charged permits imprisonment for a period in excess of three months.

On March 23, 1974, a Baltimore City Police Officer issued two traffic citations to the appellant Thompson. In the first citation, Thompson was charged with “driving with ability impaired or intoxicated” in violation of “§ 11-902.” In the second citation, he was charged with “driving and skidding, spinning wheels” in violation of § 11-1117 of Art. 66 V2. On June 24, 1974, when Thompson appeared for trial in District Court, he demanded a jury trial. As a result, the District Court was divested of jurisdiction and jurisdiction became vested in the Criminal Court of Baltimore. See Courts Article, § 1-501; Maryland District Rule 5 (d); Wilson v. State, 21 Md. App. 557, 321 A. 2d 549 (1974); and Smith v. State, 17 Md. App. 217, 301 A. 2d 54 (1973). When the case was called for trial in the Criminal Court on July 11, 1974, the State’s Attorney entered a nolle prosequi to the charge of driving while intoxicated (§ 11-902 (a)) — the only charge against Thompson which carried a penalty of imprisonment in excess of three months. Thompson thereafter moved to dismiss the citation charging violations of § 11-902 on the ground that it violated “the requirement that a traffic charge set out with reasonable definitiveness the basis of an accusation” and because the citation charged alternative offenses and was duplicitous. After the court denied this motion, Thompson demanded that he be afforded a jury trial on the remaining charges. He also contended that because the State had entered a nol pros to the drunken driving charge — the offense which “triggered” the Criminal Court’s jurisdiction — the case should be returned to the District Court for trial. Finding no merit in Thompson’s contentions, the Criminal Court heard the case without a jury. It found Thompson not guilty of the spinning wheels charge but convicted him of driving while impaired.

On appeal, Thompson contends:

(1) that he was denied his statutory right to a jury trial;
(2) that the Criminal Court was without jurisdiction to decide the case;
(3) that the Criminal Court “deprived him of a form of trial ... or of a mode of appellate review assured him by Maryland statutes . . . and thus denied him due process”;
(4) that the citation charging violations of § 11-902 was defective because it set out alternative charges and was duplicitous; and
(5) that there was insufficient evidence to support a finding that Thompson’s ability to drive was impaired by consumption of alcohol.

Thompson argues that the provisions of § 4-302 of the Courts Article fix the place where the type of trial (jury or nonjury) is to be determined, viz., in the District Court; the time when the demand for a jury trial must be made, viz., “at any time prior to trial” in that court; the party who may demand a jury trial, viz., only the defendant; and the criterion which controls the right to jury trial, viz., the penalty for the offense charged. This statutory design is defeated, Thompson contends, if the State is permitted, after a jury trial is demanded and the case removed to the Criminal Court, to nol pros the only charge carrying a penalty in excess of three months and thereby deny a jury trial on the remaining charges. The State argues, on the other hand, that its action in nol prossing the drunken driving charge in no way conflicted with the statutory scheme of § 4-302 (d) because the penalty to which Thompson was ultimately subject constituted the sole determinant of his entitlement to a jury trial. Thompson had no right to a jury trial, the State contends, because he was not subject to a penalty in excess of three months’ imprisonment. Focusing on the case as it was set for trial in the Criminal Court, rather than as it may have existed in the District Court, provides what we think is a commonsense approach to ascertaining the legislative intent underlying the enactment of § 4-302. While this section clearly provides a right to jury trial for offenses carrying a penalty of imprisonment in excess of three months, it plainly makes no provision for a jury trial for lesser offenses. By focusing on the provisions of § 4-302 (d)(1) dealing with District Court jurisdiction and the procedure for demanding a jury trial, Thompson would ignore the clear implication of § 4-302 (d)(2) which establishes the criterion for determining when a defendant may be entitled to a jury trial. Absent a charge carrying a penalty in excess of three months’ imprisonment, Thompson was not entitled to a jury trial.

Thompson advances the alternative argument that when the State entered a nolle prosequi to the drunken driving charge, it not only removed the basis for his entitlement to a jury trial but also divested the Criminal Court of jurisdiction to hear the remaining charges. We disagree. Under § 4-302 (e) of the Courts Article, the Criminal Court has exclusive original jurisdiction of offenses “otherwise within the District Court’s jurisdiction if a person is charged with an offense or offenses arising from the same circumstances but not within the District Court’s jurisdiction.” Thus, when Thompson demanded a jury trial on the drunken driving charge, the District Court was deprived of jurisdiction not only over that charge, but also over the driving while impaired and spinning wheels charges. Once the Criminal Court properly acquired jurisdiction, the subsequent entry of the nol pros had no effect on the continuance of its jurisdiction to decide the remaining charges. In Gray v. State, 6 Md. App. 677, 253 A. 2d 395 (1969), a juvenile was indicted for murder, a capital offense, but convicted only of manslaughter, a noncapital and lesser included offense. Because the juvenile court would have had original jurisdiction of the manslaughter charge, Gray argued that the jury’s verdict deprived the circuit court of jurisdiction. We held, however, that

“once a court lawfully acquires jurisdiction over the person and the subject matter of the litigation, subsequent events will not ordinarily deprive the court of its jurisdiction, although had they existed at the time, they may have initially precluded the court’s jurisdiction.”
6 Md. App. at 682.

Although the entry of a nol pros to the drunken driving charge, had it occurred before Thompson demanded a jury trial in the District Court, would have precluded the Criminal Court from acquiring jurisdiction, it had no effect on the jurisdiction of that court once it had lawfully attached. Compare Dill v. State, 24 Md. App. 695, 332 A. 2d 690 (1975).

Thompson argues that the lower court denied him due process of law by depriving him of a form of trial or of a modé of appellate review guaranteed by Maryland statutes. Specifically, Thompson contends that he was “entitled to rely on his continued entitlement to the jury trial which he demanded in the District Court,” but “the lower court in effect changed the rules on him in the middle of the game”; and that had he been originally tried in the District Court, he would have been entitled to a second de novo nonjury trial in the Criminal Court before a different judge. Thompson relies on Spencer v. State, 20 Md. App. 201, 314 A. 2d 727 (1974), a case in which we held that the “arbitrary and unexplained action” of a court clerk in skipping names on a jurors’ list after both the State and the defendant had exhausted their peremptory challenges amounted to a violation of due process. There we said:

“In the wise expending of his available peremptory challenges, a defendant is entitled to the expectation that the rules which have, in practice, been operating will not strangely cease to operate once his options have been exhausted. That expectation was arbitrarily denied the appellant at bar.” (Emphasis added.)
20 Md. App. at 209.

The arbitrariness condemned in Spencer is not present in this case. Nothing demonstrably arbitrary occurred by reason of the State’s action in entering a nol pros to the drunken driving charge. It may have decided that it lacked sufficient evidence to proceed on that charge. But for whatever reason the charge was nol prossed, that action was committed to the discretion of the State’s Attorney. See Greathouse v. State, 5 Md. App. 675, 249 A. 2d 207 (1969). Nor do we think the lower court was arbitrary or unreasonable in denying Thompson a jury trial or in declining to remand the case to the District Court. As we have indicated, the court’s action was entirely consistent with the law. Of course, entry of the nol pros was to Thompson’s benefit. While he did not have two de novo trials on the remaining charges, with the right of discretionary review by this court (Courts Article, §§ 12-305 and 12-401), he nevertheless was afforded the instant direct appeal as a matter of right (§ 12-301), which he would not otherwise have had if he had been tried originally in the District Court. We see no denial of due process in the circumstances of this case.

Thompson next contends that the traffic citation charging him with “driving while ability impaired or intoxicated” was defective because it was not sufficiently definite, imposed charges in the alternative, and “since two separate potential charges are recited in a single ‘count,’ ” is “clearly duplicitous.” The State acknowledges that charging two substantive crimes in the alternative in one count is impermissible where the offenses grow out of different transactions and involve different intents, but not when a count charges two or more offenses involving the same intent as § 11-902.

It is clear that drunken driving and driving while impaired each bears its own penalty. Under § 16-104, it is “sufficient to charge any person with a violation of . . . § 11-902 (driving while intoxicated [or] impaired . . .) and the court is empowered to make a finding under any subsection of . . . § 11-902.” We think that if, under § 16-104, it is permissible to charge any offense under § 11-902 by reference alone to that statute, it is likewise permissible to allege in the disjunctive in one count the charges of drunken driving and driving while impaired. We are of course aware of the well-established rule of pleading that when a statute creates an offense and specifies several different acts, transactions, means or intents by which it may be committed, a charging document, alleging such in one count must do so conjunctively and not disjunctively, Ayre v. State, 21 Md. App. 61, 318 A. 2d 828 (1974); State v. Beers, 21 Md. App. 39, 318 A. 2d 825 (1974), and that disjunctive allegations in one count of different acts, transactions, means and intents is ordinarily a defect which cannot be cured by amendment. State v. Beers, supra, 21 Md. App. at 44. However, this rule can be changed by statute, subject to due process limitations, as was done by enactment of § 16-104. See State v. Rand, 231 So. 2d 31 (Fla. App. 1970) and State v. Bundy, 91 Ariz. 325, 372 P. 2d 329 (1962).

We see no due process violation in requiring Thompson to stand trial on the driving while impaired charge. The reasons for the disjunctive/conjunctive rule are twofold:

“The first is that the defendant is entitled to be informed with certainty of the offense with which he is charged; the second is that he should be enabled to show, in the event of a subsequent prosecution, that he has previously been convicted or acquitted of the same offense.” Bonneville v. State, 206 Md. 302, 310-11, 111 A. 2d 669, 672 (1955).

When the State entered a nol pros to the drunken driving charge, it removed whatever fair-notice problems that may have existed. The offenses of driving while intoxicated or impaired differ only in the grade of proof required to support a conviction. Quite obviously, Thompson was not hampered in preparing to defend the driving while impaired charge. And in the event of subsequent prosecution, Thompson would have no difficulty in demonstrating his previous conviction of the remaining offense.

Finally, we find no merit in Thompson’s contention that the evidence was insufficient to support his conviction of driving while impaired. Officer Marrow testified that he stopped Thompson after observing his car accelerating as it made a right-hand turn. This, he said, caused Thompson’s wheels to spin. Upon asking Thompson for his driving license and registration, Marrow said he “fumbled through his wallet and placed a card beside him on the front seat.” Marrow asked to see the card which he incorrectly suspected to be lottery play, but Thompson objected and hurled an expletive at the officer. Officer Marrow testified that Thompson

“came out of the automobile. He was very loud about me asking him about the card. He said it was personal. And I watched his actions and mannerisms. He was swaying while he was talking to me, at times he was leaning up against his automobile. So I stepped closer to Mr. Thompson and I could smell a faint odor, moderate odor of alcohol on his breath.”

When the officer advised Thompson he was under arrest for driving while intoxicated, Thompson stated he was not under arrest and was not going anywhere. He then jumped back into the car and shut the door. Before Thompson was removed from the car and subdued, it took four additional officers and a burst of mace.

From this evidence, the lower court concluded that “the Defendant’s conduct can only be explained by consumption of alcohol.” On the record before us, we cannot say that the judgment of the lower court was clearly erroneous. Maryland Rule 1086.

Judgment affirmed; costs to be paid by appellant.

      . For example, in Bundy, the Supreme Court of Arizona said:
      “Defendant’s contention that the information is defective for the additional reason that it charges in one count disjunctive allegations requiring different grades and qualities of proof is without merit since the information charged the crime in the language of the statute, A.R.S. § 13-621, as permitted by 17 A.R.S. Rule Crim. Proc. 115. Moreover, 17 A.R.S. Rule Crim. Proc. 138 permits disjunctive or alternative charges.” 372 P. 2d at 331.