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    JAMES REED, JR. v. STATE OF MARYLAND
    [No. 655,
    September Term, 1976. J

      Decided April 7, 1977.

      The cause was argued before Gilbert, C. J., and Moylan and Liss, JJ.

      William T. Wood, Assigned Public Defender, for appellant.

      Deborah K. Handel, Assistant Attorney General, with whom were Francis B. Burch, A ttomey General, Andrew L. Banner, State's Attorney for Montgomery County, and Steven A. Shaw, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

The concept of spectrography had its genesis in World War II. At that time, the Allied Intelligence Service ideated that if the specific identity of German radio operators could be ascertained the Allies would be able to follow the movement of enemy forces in Europe. Bell Telephone Laboratories was requested to, and did, develop the spectrograph for the purpose of identifying speakers.

According to Dr. Oscar Tosi, spectrography “consists of comparing both aurally and visually spectrograms of a questioned voice and a known voice, and on the basis of similarities to decide whether or not the two voices, the questioned and the known voice, are the same or belong to different persons.”

Spectrography, a relative newcomer to the law. of evidence, compared with fingerprints and ballistics, has been admitted in some courts but rejected in others. Those jurisdictions which permit the introduction of spectrography do so on the ground that its reliability has been demonstrated and that the expert through whom the evidence is offered is properly qualified to give an opinion on the subject. People v. Kelly, supra, 130 Cal. Rptr. at 148.

The generally recognized test applied to new scientific techniques was articulated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). There, Justice Van Orsdel stated for the Court:

“Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” [] 293 F. at 1014.

After hearing “Everything you always wanted to know about spectrographs but were afraid to ask,” Judge John F. McAuliffc, in the Circuit Court for Montgomery County, admitted into evidence for the first time in Maryland, spectrography analysis, also known as “voice print,” in the trial of James Reed, Jr., appellant, for rape, perverted practice, robbery, verbal threat and unlawful usé of a telephone.

On appeal to this Court, appellant assigns six reasons, in question form, as to why the judgments of the circuit court should be reversed. We shall discuss each of the issues in the order that they have been posed to us. Antecedent to our discussion, however, we briefly recount the bizarre circumstances from which this case arose.

In the early morning' hours of September 15, 1974, the prosecutrix arrived at her home, parked her car in the driveway, and began walking towards her front door. At that time, she was approached by a man who indicated that he had either a gun or a knife. This man ordered her to go with him to a wooded area behind her house. There he made her disrobe. He removed his penis from his trousers. He commanded her to commit fellatio on him, and then he had sexual intercourse with her.

At approximately 12:30 p.m. of the same day, the victim, whose purse was taken by her assailant, received a telephone call from a person who identified himself as the man who had raped her hours earlier. The prosecutrix notified the police. Corporal Thomas Evans, a detective with the Montgomery County Police Department, affixed, by suction cup, a cassette tape recorder to the prosecutrix’s telephone. The recorder and the tapes belonged to the Montgomery County Police Department. Another detective instructed the prosecutrix on how to use the machine. The rape victim received and recorded telephone conversations on September 15, 17, and 18 (one call was actually recorded by the victim’s daughter). There were eight (8) conversations in all, including the original call.

After each recordation, the prosecutrix telephoned Corporal Evans. He, in turn, would arrange for someone from the police department to pick up the used tape and replace it with another one. Corporal Evans kept the used tapes locked in his desk drawer. After the Corporal made a master composite tape of all the recorded conversations, he returned the individual tapes to the police department secretarial pool for dictation use.

■ During the course of a telephone conversation in which the prosecutrix’s caller asked to have intercourse with her again, she offered to pay him $1,000 in lieu of intercourse “[e]ven though there’s no guarantee that I [the caller] won’t bother you. . . . The only thing you have is my word.” In a subsequent conversation, the prosecutrix and her caller arranged for the prosecutrix to deliver $1,000 in a white envelope to the locker room of the Greyhound Bus Station in the District of Columbia. She was to find the key of locker number 326 on top of an electrical “plug” box, open the locker and place the envelope therein, and return the key to its original location on the box. The prosecutrix then complied with her caller’s instructions.

Thereafter, the appellant appeared at the bus station, entered the locker room, picked up the key from the box and proceeded to locker 326. As he approached the locker, Sergeant Lanigan of the District of Columbia Police Department, who had been watching the locker room from a hole drilled in the door between the locker and boiler rooms, emerged from the boiler room. After a brief struggle with appellant, Sergeant Lanigan placed him under arrest.

The appellant was then placed in a lineup at the Montgomery County Detention Center. The prosecutrix was unable visually to recognize anyone, but after hearing the participants in the lineup speak, she identified with 85-90% certainty the appellant as being the person who raped and called her.

Eventually the master tape was sent to the Michigan State Police where Sergeant Lonnie Smrkovski compared by spectrograph the master tape with voice exemplars made by appellant. Sergeant Smrkovski formed the opinion and was allowed to testify at trial that the voice on the master tape and that in the exemplars was one and the same.

I.
“Did the trial court err in permitting, for the first time in the State of Maryland, the process of voice identification through spectrographic analysis, introduced through a police sergeant, to be used as substantive proof?”

To determine the admissibility of the spectrograhic evidence at trial, a pretrial suppression hearing was conducted. Appellant, through his counsel, vigorously sought to discredit voice identification. Appellant zeroed in on the “error” factor that is present in an effort to succeed in having the trial judge reject testimony concerning spectrographic analysis as unreliable. Doctor Tosi conceded an error rate of roughly 2% in identification through voice print but pointed out that the 2% error rate is in elimination, not identification. In Tosi’s view, a guilty person may be excluded, but an innocent person will not be included. There was expert testimony that the error rate could be considerably higher. Dr. Donald J. Baker, Associate Professor of Hearing and Speech in the Division of Behavioral Social Sciences at the University of Maryland, testified that based upon his readings on the subject of spectrography he thought the error rate for false identification could be as high as 16 %.

One of the problems surrounding spectrographic analysis in general and the spectrograph in particular had its origin with the inventor, Lawrence Kersta, who was with Bell Laboratories, and who announced that voice prints had the infallibility of fingerprints. That statement, seemingly equating his invention to Newton’s Law of Gravity, was a “red flag” for the scientific community. It created an aura of dubiety that still clings tenaciously to the subject of spectrography. Although great strides have been made since Kersta’s comment, there are still many disbelievers.

What has been proven and is acceptable scientifically is usually legally admissible evidence, but what is legally admissible is not necessarily scientifically accepted. Scientists deal in exactitudes, the law in reasonable probabilities. As Judge McAuliffe opined at the pretrial hearing, “If we did not decide cases except where things were absolutely and mathematically certain, we would not ever decide cases. Even in a criminal case proof beyond a reasonable doubt does not require mathematical certainty.”

Were the courts to- rely upon “absolute certainty” in order for forensic evidence to be admissible, many of those area's of scientific expertise commonly received into evidence would of necessity be rejected. By way of example, speed, handwriting, ballistics, neutron activation test, seminal stain test, blood tests, analysis of hair and soot, and fibers, are all “. . . known to be incapable of resulting in positive identification . . .”, People v. Rogers, supra, 385 N.Y.S.2d at 234, yet the acceptance of such evidence is widely upheld.

In the cases that refuse to permit the introduction of voice prints, supra note 4, the common thread permeating them is that 'the science of spectrography has not reached the point where it passes muster under the Frye test. In United States v. Addision, supra, the United States Court of Appeals for the District of Columbia, through a three judge panel, held in 1974 that voice prints were “. . . not now sufficiently accepted by the scientific community as a whole to form a basis for a jury’s determination of guilt or innocence.” 498 F. 2d at 745. Nevertheless, the Court affirmed the judgment on the ground that the error in admitting the evidence was harmless in view of the overwhelming record of guilt. Addison’s application of Frye to the spectrographic analysis, has been questioned by a different panel of judges of the same court in United States v. McDaniel, supra, decided in 1976. 538 F. 2d at 413. McDaniel did, however, apply Addison, and held the voice print testimony to be inadmissible, while arriving at the same ultimate conclusion as Addison, that the error in permitting the introduction of spectrographic analysis was, in the circumstances of the case, harmless.

The Superior Court of New Jersey, Law Division, also declined, in 1968, to allow evidence concerning spectrograms in State v. Cary, supra. That holding was affirmed in 1970, by that State’s Supreme Court, State v. Cary, supra. Two years later, however, the latter court ordered voice exemplars made of two defendants charged with extortion. In so doing, the court said that because of “... developments since Cary, we believe that it is no longer unreasonable to order these defendants to speak for purposes of this test.” State v. Andretta, supra at 648. Thus, the support provided appellant in the instant case by Addison and Cary is somewhat eroded.

The California Court of Appeals split into two factions, those that deem voice prints acceptable and those that do not. The conflict was resolved in 1976 by the California Supreme Court in People v. Kelly, supra. That court spurned spectrograms on the ground that they had not yet reached the “. . . degree of general scientific acceptance as a reliable identification device. . . .” 130 Cal. Rptr. at 146.

Until the recent decision of the Pennsylvania Supreme Court in Commonwealth v. Topa, supra, California was the only jurisdiction, that disallowed spectrograms without a latter day question being raised by the same court as to tire wisdom of its holding.

Pennsylvania’s rejection of spectrographic evidence in Commonwealth v. Topa, supra, centered on the fact that only one expert’s testimony, that of Lieutenant Ernest W. Nash, was available for the court’s assessment of the spectrogfaph’s validity. The court held that Lieutenant Nash’s “. .'. opinion, alone, will not suffice to permit the introduction of such scientific evidence into a court of law.” Pa., 369 A. 2d 1277 at 1281. We observe that the testimony of numerous expert witnesses was available in the instant case, and that, therefore, Topa is inapposite.

We live in a society that wants guaranteed answers to its questions, and we want them now. The difficulty is in finding absolute answers. The law compensates for the lack of positive answers by substituting, in criminal cases, proof beyond a reasonable doubt. That expression, of course, does not mean proof to a mathematical certainty. We accept without question such a standard and subject a person to monetary loss, imprisonment, or even death; yet, in the field of scientific endeavor, we insist upon some higher standard before we admit such endeavor into evidence. Patently, there is something inconsistent in our approach.

We have no hesitancy in allowing a witness to testify that he recognized the voice of a defendant over the telephone, because he was familiar with that voice, even though the witness would be unable to state that the caller was not an impersonator. At the same time, a spectrographic expert, after analysis of defendant’s voice and that of the caller, could reach a more definite result and eliminate to a degree the possibility of an impersonator.

An examination of the cases cited in note 3 will reveal that spectrographic analysis evidence is sanctioned in five States, namely, Florida, Massachusetts, Minnesota, New York, and Ohio, two federal circuits, the 4th and 6th, and by the United States District Court for the Eastern District of Pennsylvania. We believe, in the light of the decisions from those jurisdictions, that the Frye test has been met, and we hold that spectrographic analysis evidence, under proper safeguards, is admissible in Maryland. In so holding, we reject the Addison rationale and that of Kelly. We think that spectrograms have now, in the words of Frye, “. . . gained general acceptance in the particular field in which it belongs.”

In our view, it is better to permit the introduction of relevant scientific evidence and allow the fact finder to assess its weight after cross examination and refutation, unless there is a widely accepted exaggerated popular opinion of the accuracy of a particular technique which causes its use to be misleading or prejudicial. United States v. Bailer, supra, 519 F. 2d at 466; United States v. Stifel, 433 F. 2d 431 (6th Cir. 1970). See also McCormick, Evidence § 203 at 490-91 (2d ed. 1972).

We have indicated that proper safeguards should surround the admission of spectrographic analysis testimony. By that we mean the trial judge must, through carefully worded instructions, see that the jury does not give undue weight to spectrograms because of their relative newness in the evidentiary area, and the jury must be apprised that it may accept or reject the expert's opinion or assign to it whatever weight it believes is merited. People v. Rogers, supra. We share the belief of the Fourth Circuit, “. . . that it is better to avoid using ‘voiceprint’ in favor of a more neutral term such as ‘spectrogram,’ whenever possible.” United States v. Baller, supra, 519 F. 2d at 465, n. 1.

II.

“Was the best evidence rule violated when the trial court permitted either a second or third-hand copy of a criminal voice tape to be used for comparison purposes when the original tape was destroyed by the gross negligence of the investigating police officers, and the second copy lost or destroyed without explanation?”

After keeping for a prolonged period of time the original cassette tapes upon which the conversations between the prosecutrix and her assailant were recorded, Detective Evans re-recorded the contents of the cassettes onto a master tape. The original cassettes were then returned to the department stenographic pool from which they had been on loan. Although a search was made for the originals, they were not found. At trial, the State offered the “master tape” which the trial judge received into evidence over the objection of the appellant that the admission of the “master tape” was a clear violation of the best evidence rule.

To underpin his argument that the trial court erred in permitting the introduction of the secondary evidence, i.e., the master tape, the appellant cites Wharton’s Criminal Evidence (12th ed. 1955) and Corens v. State, 185 Md. 561, 45 A. 2d 340 (1946).

Section 592 of 2 Wharton’s Criminal Evidence (12th ed. 1955) states in pertinent part:

“When the best evidence rule is applicable, primary evidence must be presented if available. If this is not available, secondary evidence may be admitted if the absence of the primary evidence was not due to the fault or negligence of the party offering the secondary evidence.” (Footnotes omitted.)

The same author, in section 593, declares:

“Secondary evidence is admissible to prove the contents of documents that have been lost or destroyed without the fault of the party tendering proof of same, it first having been made to appear to the court that such documents existed, and that efforts have been made, in good faith, to produce them in court.” (Footnotes omitted)!!

The Court of Appeals, in Corens v. State, supra, said,

“When production of the best evidence is shown to be beyond the power of a party not at fault, the rule is satisfied with the best then obtainable. Secondary evidence is admissible to prove records that have been lost or destroyed without the fault of the party tendering proof of the same after it has been made to appear to the court that efforts have been made in good faith to produce them.” 185 Md. at 569, 45 A. 2d at 346.

In Forrester v. State, 224 Md. 337, 167 A. 2d 878 (1961), the Court approved the trial judge’s refusal to allow Forrester to relate alleged conversations which he had heard from a taped wiretap conversation between two other individuals. Noting that “. . . no effort was made to produce the original tape, nor any explanation offered for its nonproduction,” the Court said:

“The best evidence of which the case is capable must be produced, and secondary, or inferior, evidence is only admissible after a proper foundation has been laid, showing good and sufficient reasons for the failure to produce the primary evidence. Corens v. State, 185 Md. 561, 569, 45 A. 2d 340; Gray v. State, 181 Md. 439, 443, 30 A. 2d 744; Barranco v. Kostens, 189 Md. 94, 97, 54 A. 2d 326. 4 Wigmore, Evidence (3rd Ed.), Section 1182.” 224 Md. at 349, 167 A. 2d at 884.

The appellant reasons, based on the quoted sections of Wharton’s, Corens and Forrester, that because Detective Evans re-recorded onto the “master tape” from which he also made other tapes, and sent the original cassettes back to the stenographic pool where they have been either erased or lost, that the fault lies with the State. Appellant then concludes that the secondary evidence is thus rendered inadmissible. To reach that conclusion, however, we would have to interpret the word “fault” to mean a multitude of things, including carelessness, negligence, wantonness and perhaps stupidity.

It is apparent to us that neither Wharton nor the Court of Appeals meant “fault” to have such an all inclusive meaning. Judge Thompson, for this Court in Anderson v. State, 9 Md. App. 532, 539, 267 A. 2d 296, 300-301, cert. denied, 259 Md. 729 (1970), explained that:

“[I]n one sense any document [or tape] in possession of state officials cannot be lost without at least some minor fault by some official or employee of the State; but we think the rule is more fully stated in 1 Jones, Evidence, § 238: ‘If the loss or destruction of the instrument is shown to have been intentional, and for the purpose of making it unavailable at the trial secondary evidence would be inadmissible” citing 4 Wigmore, Evidence, § 1198 (3d Edition) which gives a full discussion of the problem.” (Emphasis supplied.)

Under Anderson, secondary evidence is admissible unless the primary or best evidence was destroyed or lost 1) intentionally and 2) for the purpose of making it unavailable at trial. While it cannot seriously be contended, in the instant case, that the original tapes were not intentionally lost or destroyed, there is no evidence that such was done for the purpose of making them unavailable at trial.

We think Anderson to be dispositive of the appellant’s contention and that Judge McAuliffe properly admitted the secondary evidence.

III.

“Did the trial court err in admitting a copied recording of a telephone conversation as said telephonic interception was not pursuant to a court order and was otherwise illegal?”

The record is not clear whether a suction cup device recorder was placed on the telephone of the prosecutrix at her suggestion or that of Detective Evans, but, in any event, there was no prior court order authorizing the intercept.

Title 18 U.S.C. § 2511 (2) (c), permits an intercept of a wire or oral communication when the interceptor is one of the parties to the communication or one of the parties has given prior consent to the interception. It is obvious that the prosecutrix was either the interceptor or had given her prior consent to the interception. In fact, she operated the recorder whenever she received a telephone call from the rapist, so that the interception clearly falls within the exception spelled out in Title 18 U.S.C. § 2511 (2) (c).

Appellant recognizes the existence of the exception and its validity in this case, but urges that Md. Ann. Code art. 27, § 125A proscribes such interception irrespective of the Title 18 provision.

Md. Ann. Code art. 27, § 125A provides in pertinent part:

“(a) Use without knowledge or consent prohibited. — It is unlawful for any person in this State to use any electronic device or other device or equipment of any type whatsoever in such manner as to overhear or record any part of the conversation or words spoken to or by any person in private conversation without the knowledge or consent, expressed or implied, of that other person.
(b) Prevention of crime or apprehension of criminal Petition for ex parte order authorizing use. — However, if ii shall appear to a duly authorized public law enforcement officer of this State that a crime has been, or is being, or is about to be committed, and that the use of such electronic devices are required to prevent the commission of the said crime, or to apprehend the persons who shall have committed it, then the law enforcement officer or officers shall submit to the State’s attorney of the county or of Baltimore City the evidence upon which the said law enforcement officer bases his contention that an ex parte order authorizing the use of the said electronic devices is necessary; and if it shall appear to the said State’s attorney that there are reasonable grounds to believe that a crime has been committed or is being committed or may be committed then the said State’s attorney shall apply to any of the judges of the circuit court of the county or of the Supreme Bench of Baltimore City .... any such ex parte order shall be issued. . . .”

The question posited by appellant was answered by this Court, speaking through then Chief Judge Orth in Pennington v. State, 19 Md. App. 253, 310 A. 2d 817 (1973), cert. denied, 271 Md. 742, cert. denied, 419 U. S. 1019, 95 S. Ct. 492, 42 L.Ed.2d 292 (1974). In Pennington, we noted that although Md. Ann. Code art. 27, § 125B makes it a misdemeanor to overhear or record, by electronic device, any conversation without the consent of all the parties to that conversation there is no other sanction provided in the statute. We said, “The statute contains no provision for the exclusion of evidence obtained in violation of its provisions as is spelled out in the wiretapping laws, Code, Art. 36,[] § 97, and the federal act, 18 U.S.C., §§ 2515 and 2518 (10) (a).” 19 Md. App. at 278,310 A. 2d at 830.

While it is conceivable, but unlikely, that both the prosecutrix and Detective Evans could be prosecuted for violation of Md. Ann. Code art. 27, § 125A, that occurrence would not affect the introduction into evidence of the recordings which were properly admitted.

IV

“Did the trial court err in permitting the complainant and other state witnesses to testify that the complainant identified the voice of her assailant in a lineup and was the purported identification otherwise unreliable?”

Following the appellant’s arrest, he, along with five other persons, was placed in a lineup. The prosecutrix was advised that the person arrested at the bus station was one of the persons in the lineup. She was unable to identify visually any of the six persons, but after listening to all of them speak, the prosecutrix requested that she be allowed to listen to them on the telephone. Her request was denied. She then indicated that she was 85% to 90% certain that the voice of No. 3 in the lineup, the appellant, was that of her assailant.

At a pretrial hearing, Judge McAuliffe ruled that the identification procedure was not impermissibly suggestive.

The assistant State’s attorney, in his opening statement at trial on the merits, referred, without objection, to the identification made by complainant at the lineup. Later when the prosecutrix was asked about the lineup, a bench conference was held out of hearing of the jury, and it was agreed that the testimony produced at the pretrial hearing would be incorporated by reference, but not repeated. The objection to the introduction of the evidence was overruled.

We believe there ■ is, in this case, no justification for exclusion of the identification. At the suppression or exclusion hearing, the burden is on the defendant to show, prima fade, that the pretrial confrontation was illegal, and if he so shows, the burden then shifts to the State to demonstrate by clear and convincing evidence that the identification was legal. Smith v. State, supra, 6 Md. App. at 68, 250 A. 2d at 291. Our constitutionally mandated independent examination of the record leads us to conclude that the appellant failed to sustain his burden of proof.

The victim, though unable visually to identify her assailant, was familiar with his voice as the result of several telephone calls. She had listened carefully to the voice of the caller on those occasions and was able to state that she was 85% to 90% sure that the appellant was her assailant. In addition, the length of time between the crime itself and the lineup was only four days.

There was nothing in the composition of the lineup itself that could be termed impermissibly suggestive. Despite the fact that there was no advance screening of the lineup participants, no unusual or highly noticeable discrepancies existed. Furthermore, as Judge McAuliffe observed, while the prosecutrix’s knowledge that the man arrested at the bus station would be in the lineup may have placed some additional stress or compulsion ón her to make an identification, it did not render the proceeding impermissibly suggestive.

V.

“Was the appellant wrongfully compelled to give voice exemplars in that he was ordered to speak the very words spoken by the assailant during the commission of the crimes alleged, and to so speak on two separate occasions?”

On motion by the State, and over the strenuous objections of the appellant, he was required to submit to the furnishing of voice exemplars. Furnishing voice exemplars is a relatively simple procedure. The subject merely speaks several words into an electronic device which graphically records the characteristics of his voice. United States v. Askins, 351 F. Supp. 408 (D. Md. 1972). Compelling submission of the exemplars, however, raises the question of possible violations of the Fourth and Fifth Amendments.

It has long been held that the compelled display of identifiable physical characteristics does not infringe upon interest protected by the privilege against compulsory self-incrimination. Holt v. United States, 218 U. S. 245, 31 S. Ct. 2, 54 L.Ed. 1021 (1910).

The Fifth Amendment protects only those communications and physiological reactions which are testimonial in nature. Schmerber v. California, 384 U. S. 757, 86 S. Ct. 1826, 16 L.Ed.2d 908 (1966). “[T]he prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material.” Holt v. United States, supra, 218 U. S. at 252-53, 31 S. Ct. at 6, 54 L. Ed. at 1030, quoted in United States v. Dionisio, 410 U. S. 1, 6, 93 S. Ct. 764, 767, 35 L.Ed.2d 67, 74 (1973).

In United States v, Askins, supra, the defendant advanced the theory that the act of speaking into a machine somehow differs from the act of speaking to witnesses which was held valid in United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926, 18 L.Ed.2d 1149 (1967). The thrust of Wade, however, was not that the defendant was required to speak before live witnesses, but that he was “. . . required to use his voice as an identifying physical characteristic, not to speak his guilt.” United States v. Wade, supra, 388 U. S. at 222-23, 87 S. Ct. at 1930, 18 L.Ed.2d at 1155.

The Supreme Court stated in Schmerber v. California, supra:

“[B]oth federal and state courts have usually held that. . . [the privilege] offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. The distinction which has emerged, often expressed in different ways, is that the privilege-is a bar against compelling ‘communications’ or ‘testimony,’ but that compulsion which makes a suspect or accused the source of ‘real or physical evidence’ does not violate it.”[] 384 U. S. at 764, 86 S. Ct. at 1832, 16 L.Ed.2d at 916.

Wade refutes the contention that the compelled production of voice exemplars violates the Fifth. .Amendment. The exemplars of appellant’s voice were to be used solely to measure the physical properties of his voice, and not for the testimonial or communicative content of what was said. See United States v. Dionisio, supra; United States v. Askins, supra.

Article 22 of the Maryland Declaration of Rights is to be construed in pari materia with the self-incrimination provisions of the Fifth Amendment to the Federal Constitution. State v. Panagoulis, 253 Md. 699, 253 A. 2d 877 (1969). Thus, since there has been no Fifth Amendment violation, it follows that there has been no violation of Article 22 of the Declaration of Rights.

The Fourth Amendment guarantees that all people shall be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. . . .” Any Fourth Amendment violation in the present setting must rest on a lawless governmental intrusion upon the privacy of the person rather than on unlawful interference with “property relationships or private papers.” Schmerber v. California, 384 U. S. at 767, 86 S. Ct. at 1834, 16 L.Ed.2d at 918.

When a defendant’s person is the source of the desired evidence, there is a two-prong test of reasonableness: First, the procedure used to obtain the evidence must neither shock the conscience nor offend society’s traditional sense of justice. Rochin v. California, 342 U. S. 165, 72 S. Ct. 205, 96 L. Ed. 183 (1952). The Fourth Amendment offers no protection for that which “a person knowingly exposes to the public, even in his own home or office. . . .” Katz v. United States, 389 U. S. 347, 351, 88 S. Ct. 507, 511, 19 L.Ed.2d 576, 582 (1967). The physical attributes of a person’s voice, just like his facial features, or his handwriting, are constantly exposed to the public. United States v. Dionisio, 410 U. S. at 14, 93 S. Ct. at 771, 35 L.Ed.2d at 79. Chief Judge Friendly, writing for the United States Court of Appeals, Second Circuit, in United States v. Doe, 457 F. 2d 895, 898-99 (1972) opined:

“Except for the rare recluse who chooses to live his life in complete solitude, in our daily lives we constantly speak and write, and while the content of a communication is entitled to Fourth Amendment protection . . . the underlying identifying characteristics — the constant factor throughout both public and private communications — are open for all to see or hear. . .. Hence no intrusion into an individual’s privacy results from compelled execution of handwriting or voice exemplars; nothing is being exposed . .. that has not previously been exposed to the public at large.”

Second, the police had probable cause in requesting the exemplar following applicant’s arrest at the bus station and his identification at the lineup.

Appellant relies upon Lucas v. State, 271 S.W.2d 821 (Tex. Crim. 1954); State v. Taylor, 213 S. C. 330, 49 S.E.2d 289 (1948); and Beachem v. State, 162 S.W.2d 706 (Tex. Crim. 1942) to support his contention that compelling the production of voice exemplars violates his constitutional rights. All three of those cases held that requiring a person to speak certain words was a violation of the Fifth Amendment right against compulsory self-incrimination. The Supreme Court, in Schmerber and Wade, as the final arbiter of Federal Constitutional rights, decided otherwise. In any event, Lucas and Taylor grounded their holdings on Beachem which was expressly overruled in Olson v. State, 484 S.W.2d 756, 771 (Tex. Crim. 1969). We think that to the extent Lucas and Taylor depend on Beachem their vitality has been vitiated, and, additionally, since the Taylor decision, South Carolina has recognized Wade and upheld the introduction of voice tapes. State v. Vice, 259 S. C. 30, 190 S.E.2d 510 (1972).

We are persuaded that voice exemplars, taken, as here, under proper order of court, based upon probable cause, do not infringe upon an accused’s Fourth or Fifth Amendment rights nor upon his Maryland Constitutional rights. We hold that the court order for the appellant to submit to the voice exemplars was proper.

VI.

“Did the trial court err in admitting into evidence a telephone call made by the appellant to the complainant two days prior to his scheduled trial at a time when he was under indictment and his counsel was not present?”

On December 6, 1975, appellant said that he entered his cell and found a note on his bed, placed there apparently by a guard, Officer Hutchinson, concerning a telephone call. Under prescribed procedures, guards are supposed to give phone messages directly to the inmates. A different guard, Officer Capasso, accompanied the appellant to a telephone, and the guard dialed the number furnished to him by the appellant. Officer Capasso testified that the appellant said something about, “something a couple years ago” and then became very nervous and hung up the telephone. The conversation lasted about 30 seconds. Officer Capasso did not follow the rules and regulations of the detention center in allowing appellant to make the call and did not make a notation about it until he was asked to do so by a representative of the State.

Appellant contends that he thought he was calling a Miss Cynthia Armor at the Visitor’s Service Center,about an emergency pertaining to his detainer. The party at the other end of the line, however, proved to be, in fact, the complaining witness in the instant case. Appellant asserts that everyone in the detention center knew that a positive identification was imperative in his case to secure a conviction. Officer Capasso testified that the Maryland telephone directory is available to the inmates.

At trial appellant orally presented a motion in limine to prohibit the State from using the evidence of the call to the victim. The trial court conducted a hearing and denied the motion.

In denying appellant’s motion in limine, the trial judge found as a fact that the call was made on the initiative of the appellant and not as a result of any State action. Appellant argues that, notwithstanding the trial court’s determination, Blizzard v. State, 30 Md. App. 156, 351 A. 2d 443 (1976) prohibits the use of any post-indictment statement elicited by the State, pertaining to the subject matter for which the accused has been indicted, absent an effective waiver of the right to the presence of counsel. Blizzard v. State, supra, was, however, reversed by the Court of Appeals in State v. Blizzard, 278 Md. 556, 366 A. 2d 1026 (1976), so that appellant’s reliance on this Court’s Blizzard has been blown away.

The Court of Appeals pointed out that, “ ‘The rule [of Massiah v. United States, 377 U. S. 201, 84 S. Ct. 1199, 12 L.Ed.2d 246 (1964)] does not apply to spontaneous or voluntary statements made by the defendant in the presence of government agents.’ ” State v. Blizzard, 278 Md. at 568, 366 A. 2d at 1032-33. See also, Moore v. Wolff, 495 F. 2d 35 (8th Cir. 1974); United States v. Tucker, 435 F. 2d 1017 (9th Cir. 1970); United States v. Garcia, 377 F. 2d 321 (2d Cir.), cert. denied, 389 U. S. 991, 88 S. Ct. 489, 19 L.Ed.2d 484 (1967). Contra, e.g., United States v. Thomas, 474 F. 2d 110 (10th Cir.), cert. denied, 412 U. S. 932, 93 S. Ct. 2758, 37 L.Ed.2d 160 (1973).

Just as the Court of Appeals found in Blizzard, there is no indication in the case now before us that trickery or cajolery was employed by the law enforcement agents. The trial judge noted this was not a setup by the State agents, but, rather, the impetus to make the call was entirely appellant’s independent thought and action. There was no interrogation and nothing was elicited by the authorities. Without a showing of surreptitious behavior on the part of the State, the exclusionary rule of Massiah does not apply. State v. Blizzard, supra. There was no error in admitting into evidence that the appellant telephoned the prosecutrix from the County Detention Center.

Judgments affirmed.

Costs to be paid by appellant.

      . Doctor Tosi is a Professor at Michigan State University. He is the Director of the Speech and Hearing Sciences Research Laboratory of the University, as well as Associate Dean of the College of Communication. Doctor Tosi has authored two (2) books, five (5) chapters in five (5) different .books, and forty-five (45) papers on the subject. Additionally, the Doctor has appeared as an expert witness in excess of fifty (50) times m fifteen (15) states, Italy, Spain, Germany, France, and Canada.

      . “ ‘The sound spectrograph consists of four basic parts: (l)a magnetic recording device, (2) a variable electronic filter, (3) a drum which is coupled to the magnetic recording device and carries a sheet of special-paper, [sensitive to] . . . (4) an electric stylus which marks the paper as the drum rotates. The magnetic recording device is first used to record a short sample of speech; the duration of the speech sample corresponds to the time required for one revolution of the drum [e.g. 2.4 seconds]. The speech sample is then played back over and over again in order to analyze its spectral contents. For each revolution of the drum, the variable electronic filter passes only a certain band of frequencies, and the energy in this frequency band activates the electric stylus so that a straight line of varying darkness is produced across the paper. The darkness of the line at any point on the paper indicates how much energy is present in the speech signal at the specified time within the given frequency band. As the drum revolves, the pass-band of the variable electronic filter moves to increasingly higher frequencies, and the electric stylus moves parallel to the axis of the drum. Thus, a pattern of closely spaced fines is generated on the paper.’ (Comment, Evidence: Admissibility of Spectrographic Voice Identification, 56 Minn. L. Rev. 1235, 1239; Hecker, Speaker Recognition: An Interpretative Survey of the Literature, Am. Speech and Hearing Assn. Monographs No 16 (1971) at pp. 50-51.)” People v. Law, infra, at 114 Cal. Rptr. at 712, n. 7.

      . United States v. Jenkins, 525 F. 2d 819 (6th Cir. 1975); United States v. Baller, 519 F. 2d 463 (4th Cir. 1975); United States v. Franks, 511 F. 2d 25 (6th Cir.), cert. denied, 422 U. S. 1042, 95 S. Ct. 2654 and 56, 45 L.Ed.2d 693 and cert. denied, 422 U. S. 1048, 95 S. Ct. 2667, 45 L.Ed.2d 701 (1975); United States v. Sample, 378 F. Supp. 44 (E.D. Pa. 1974); Hodo v. Sup. Ct., 30 Cal. App. 3d 778, 106 Cal. Rptr. 547 (1973); Alea v. State, 265 So. 2d 96 (Fla. App. 1972); Worley v. State, 263 So. 2d 613 (Fla. App. 1972); Commonwealth v. Vitello, 327 N.E.2d 819 (Mass. 1975); Commonwealth v. Lykus, 327 N.E.2d 671 (Mass. 1975); State ex rel. Trimble v, Hedman, 291 Minn. 442, 192 N.W.2d 432, 49 A.L.R.3d 903 (1971); People v. Rogers, 385 N.Y.S.2d 228 (1976); State v. Olderman, 44 Ohio App. 2d 130, 336 N.E.2d 442 (1975).

      . United States v. McDaniel, 538 F. 2d 408 (D.C. Cir. 1976); United States v. Addison, 498 F. 2d 741 (D.C. Cir. 1974); People v. Kelly, 130 Cal. Rptr. 144, 549 P. 2d 1240 (1976); People v. Law, 40 Cal. App. 3d 69, 114 Cal. Rptr. 708 (1974); People v. King, 266 Cal. App. 2d 437, 72 Cal. Rptr. 478 (1968); State v. Cary, 99 N.J. Super. 323, 239 A. 2d 680 (1968), aff'd 56 N. J. 16, 264 A. 2d 209 (1970) (Notwithstanding Cary, we observe that the question is still open in New Jersey. See State v. Andretta, 61 N. J. 544, 296 A. 2d 644 (1972); Commonwealth v. Topa, Pa., 369 A. 2d 1277 (1977).

      . The Court, In Frye, rejected the lie detector test.

      . With apologies to Dr, David Reuben, author of “Everything You Always Wanted to Know About Se% But Were Afraid to Ask"

      . Sergeant Smrkovski, a member of the Michigan Department of State Police for ten years has been assigned to the “Voice Identification Unit” of the Scientific Crime Laboratory of the Michigan State Police for “a little over five years.” He currently is in charge of the Voice Identification Unit. The Sergeant has studied speech pathology at Northern Michigan University, Michigan Technological University, and holds a bachelor’s degree from Michigan State University in Audiology and Speech Sciences. He is currently working toward his master’s degree. Sergeant Smrkovski has studied under Doctor Tosi and is in daily contact and consultation with Doctor Tosi. The Sergeant has qualified in six or seven states as an expert on voice identification and has never been rejected as an expert in the field by a court.

      . Harry Hollien, Professor of Speech at the University of Florida and Director of the Institute for Advanced Study of Human Communication, witness for the defense, testified, “I cannot conceive of how one [a valid voice comparison for identification purposes] could be made from the quality of spectrogram that had very much use from the high noise levels here.”
      Other experts also testified for the defense at the trial. They were of the opinion, in essence, that the spectrograph has not, as yet, established its reliability for use in evidence.
      Sergeant Smrkovski testified that he spent about eighty (80) hours making the spectrograms, including listening to the tapes and visual analysis. With respect to seven telephone calls made to the prosecutrix by her rapist, the Sergeant stated:
      “In my opinion the ... known voice of Mr. James Reed, Jr. [appellant], and the unknown call in Call 1 are positively one and the same.”
      “I didn’t analyze Call 2 because of its very short duration.”
      “I found 12 different words that were similar. I found similarities which were indicative of the same speaker in Call 3.”
      “My opinion is that the ... known voice of ... [appellant] and the unknown speaker in Call 3 are positively one and the same.”
      “I found 48 words containing similarities between the known and questioned voice, 39 of which were different words on Call 4.”
      “It is my opinion that the ... known voice of ... Reed ... and the unknown'caller in Call 4 were one and the same speaker.”
      “In Call No. 5 I found similarities in 20 different words where he was repeating the sample, and 21 different words where he was reading the sample. . . .”
      “My opinion is that the ... known voice of ... Reed ... and the unknown speaker’s voice in Call No. 5 were one and the same person.”
      “Call No. 6, I found 20 different words in which I found similarities between the known and questioned voice.”
      “My opinion is that the known voice of ... Reed ... and the unknown speaker’s voice in Call No. 6 are positively one and the same.”
      No analysis was made on “Call No. 7” because, “That was distorted. It was very short,”
      We point out that this evidence was produced at trial, not at the preliminary hearing and was, therefore, an issue for the trier of fact — in this case — the jury. See Dobson v. State, 24 Md. App. 644, 649 n. 2,335 A. 2d 124, 127 (1975).

      . The State also produced John A. McCIung, Professor at Wayne State University, and Leendert P.C. Jansen, of the National Physical Research Laboratory, Pretoria, South Africa, as experts. Both men testified as to the reliability ofrthe spectrographic process.

      . In People v. King, supra, the court quotes Kersta as having been able to identify speakers in his test with an accuracy of 99.65%.'

      . The controversy over the admission into evidence of spectrograms brings to mind what Thomas Jefferson wrote to ..the Secretary of the Treasury, September 20, 1808. “It is well known that on every question the lawyers are about evenly divided, . . . and were we to act but in cases where no contrary opinion of a lawyer can be had, we should never act.”

      . United States v. Dreos, 156 F. Supp. 200 (D. Md. 1957); Uhlik v. Kopec, 20 Md. App. 216, 314 A. 2d 732 (1974).

      . Green v. State, 23 Md. App. 680, 329 A. 2d 731 (1974).

      . Edwards v. State, 198 Md. 132, 81 A. 2d 631, 26 A.L.R.2d 874, reh. denied, 198 Md. 152, 83 A. 2d 578, 26 A.L.R.2d 886 (1951); Van Meter v. State, 30 Md. App. 406, 352 A. 2d 850 (1976).

      . Kelly v. State, 16 Md. App. 533, 298 A. 2d 470 (1973).

      . Murphy v. State, 184 Md. 70, 40 A. 2d 239 (1944); Bailey v. State, 16 Md. App. 83, 294 A. 2d 123 (1972); Coward v. State, 10 Md. App. 127, 268 A. 2d 508 (1970).

      . Shanks v. State, 185 Md. 437, 45 A. 2d 85 (1945).

      . Robinson v. State, 18 Md. App. 678, 308 A. 2d 734 (1973).

      . Tomolillo v. State, 4 Md. App. 711, 245 A. 2d 94 (1968).

      . The Court of Appeals, Second District, held such evidence inadmissible in 1968. People v. King, supra. The Fourth District permitted voice print in Hodo v. Super. Ct., supra. Hodo, however, did not directly involve the use of voice print at trial. When the case went to trial on its merit, the defense produced testimony of Dr. Peter Ladefoged to refute that of the State. As a result of the defense expert’s evidence, the spectrographic analysis was stricken.

      . H. Markey, A forum for technocracy, 60 Jud. 365, 366 (1977).

      . In the ordinary civil case, we use a “preponderance of evidence” test, while in suits for fraud and the like we have adopted a “clear and convincing” standard.

      . Both sections 592 and 593 of Wharton’s Criminal Evidence, (12th ed. 1955i appear to have been incorporated into 3 Wharton’s Criminal Evidence § '534 (13th ed. 1973).

      . State v. Siegel, 13 Md. App. 444, 285 A. 2d 671 (1971), aff'd 266 Md. 256, 292 A. 2d 86 (1972) holds that the State may adopt more restrictive provisions relative to wiretapping than those contained in Title 18.

      . The reference should be to Md. Ann. Code< art. 35, § 97, which provides that telephonic or telegraphic communications shall not be intercepted without a prior court order or without the consent of parties thereto, and that any evidence obtained in violation thereof shall be excluded.

      . The State argues that the issue of identification is not properly before us as it was not preserved for review. We see it in a different light.
      Evidence of the identity of a defendant may be challenged by a motion to exclude or suppress made before or during trial or by an objection to the evidence when it is offered. Md. Rules 725 and 522. See Townsend v. State, 11 Md. App. 487, 275 A. 2d 191 (1971); Jones v. State, 9 Md. App. 455, 265 A. 2d 271, cert. denied, 258 Md. 728, cert. denied, 400 U. S. 906, 91 S. Ct. 148, 27 L.Ed.2d 144 (1970); Smith v. State, 6 Md. App. 59, 250 A. 2d 285 (1969), cert. denied, 397 U. S. 1057, 90 S. Ct. 1402, 25 L.Ed.2d 674 (1970). If the motion is made prior to trial, it may be preliminarily determined by the court, or the ruling may be deferred for determination at the trial of the general issue. Md. Rule 725 d. Denial prior to trial of a motion to suppress identification evidence, however, does not preserve the objection to the evidence on appeal. “Further objection must be made to the introduction of the evidence at the trial on the general issue as required by Rule 522 d 2. Under the dictates of that rule objection must be made at the time such evidence is offered, or as soon thereafter as the objection to its admissibility shall have become apparent.” Jones v. State, 9 Md. App. at 457, 265 A. 2d at 272; quoted in Townsend v. State, 11 Md. App. at 488, 275 A. 2d at 192. The transcript reveals that defensé coúnsel in this case was careful about preserving the matter of admissibility for appeal. Appellant’s objection was timely made under Rule 522. Moreover, the appellant also carefully preserved, in the record: the objections made at the preliminary hearing.

      . We think it likely that most victims called to view a lineup are under the impression that the culprit is probably a person in the lineup.

      . In Robinson v. State, supra, 38 Md. App. 678, 692, 308 A. 2d 734, 742 (1973), we commented that:
      “It hás been held that the taking of fingernail scrapings, urine samples, saliva, and clipping of hair are valid. See Cupp v. Murphy, 412 U. S. 291, 93 S. Ct. 2000, 36 L.Ed.2d 900 (1973); Simms v. State, 4 Md. App. 160, 242 A. 2d 185 (1968); United States v. Cox, 428 F. 2d 683 (7th Cir. 1970); Novak v. District of Columbia, 49. A. 2d 88 (Mun. Ct. App. D.C. 1946); rev’d on other grounds, 82 U.S. App. D.C. 95, 160 F. 2d 588 (1947). See also Cook, Constitutional Rights of the Accused, Pretrial Rights (1972), § 57.”

      . But see, Brewer v. Williams, 430 U. S. 387, 20 Cr. L. 3095, decided March 23, 1977.

      . This Court reached a different determination. See Blizzard v. State, supra.


source: Caselaw Access Project

author: Liss, J.,

license: Public Domain

text:
    SALLY L. ROBERTS v. JOHN S. ROBERTS
    [No. 681,
    September Term, 1976.]

      Decided April 11, 1977.

      The cause was argued before Davidson, Melvin and Liss, JJ.

      Ann M. Turnbull for appellant.

      James N. Vaughn for appellee.
   Liss, J.,

delivered the opinion of the Court.

I Kings, Chapter 3 of the Bible, relates that King Solomon dreamed that the Almighty appeared before him and expressed His approval of the efforts of Solomon, His good and faithful servant. The Lord asked Solomon what gift He could give to him and Solomon replied at Verse 9, “Give therefore thy servant an understanding heart to judge thy people that I may discern between good and bad.” This case cries out for the wisdom of Solomon and an “understanding heart.”

The controversy arises out of the “second thoughts” which so frequently occur after a “quickie divorce” has been obtained by Maryland residents in more hospitable jurisdictions.

Sally L. Roberts, appellant (wife), and John S. Roberts, appellee (husband), were married in Maryland on September 27, 1950. They were the parents of four children, two of whom were minors, when the divorce decree dissolving their marriage was signed. The parties separated in January, 1972, and in August, 1972, they entered into a voluntary separation and property settlement agreement by the terms of which the appellant was given the home owned by the parties and custody of the minor children and the appellee agreed to make certain monthly payments for their support and maintenance. At trial the appellee testified, that about six weeks after the separation agreement was signed, his wife’s next-door neighbor called him on the telephone and told him that his minor children were at her house. In response to the telephone call Mr. Roberts went to the neighbor’s house finding the children in a deplorable state and temporarily took them to stay with his relatives. Several days later a divorce decree was issued by a court in Santo Domingo, Dominican Republic, to which jurisdiction the parties had submitted themselves. The separation agreement between the parties was adopted by the Santo Domingo court and made a part of the divorce decree. Shortly thereafter the appellee remarried and brought the children to live with him, his new wife and her three children by a previous marriage.

Paragraph seven of the separation agreement between the parties provided that “Husband shall pay directly unto Wife, and not through the Probation Department of any Court, as permanent alimony, the sum of Five Hundred and Fifty Dollars ($550.00) each month until the first to occur of any one of the following events: (a) remarriage of Wife or (b) death of either of the parties.” Mr. Roberts made the alimony payments as agreed until May, 1974, when all payments to the wife ceased.

In September, 1974, the appellant filed a Bill of Complaint in which she sought specific performance of the voluntary separation and property settlement agreement. In November, 1974, Mr. Roberts filed an answer to the original Bill of Complaint and a Counter Bill in which he petitioned the court to award him permanent custody of the minor children and to rescind that portion of the separation agreement which required him to pay permanent alimony to appellant. An answer was filed by appellant and the case came on for trial before Judge T. Hunt Mayfield. The case was referred to the Howard County Department of Social Services for an investigation and report. The report was substantially delayed and in the meantime Judge Mayfield retired. It was not until May, 1976, that the case was tried de novo in the Circuit Court for Howard County. At the time of trial, Mr. Roberts was 24 months in arrears on alimony payments, the arrearages amounting to more than $13,000.

It is undisputed that the parties’ youngest child, who is now eight years old, has required special schooling and psychiatric help for a long period of time, and that the expenditures made on his behalf by the father have been substantial. Mr. Roberts stated that he stopped paying alimony because of these expenses; but he admitted that these problems did exist at the time he entered into the separation agreement, and that he knew that substantial therapy would be required when he agreed to pay appellant the monthly alimony stipulated in the agreement. The evidence disclosed that appellant had never worked during the 22 years of the marriage but that after her divorce she was forced to take a job as a pantrycook at a take-home salary of $87.87 per week. She worked until May, 1975, when her job was abolished, and thereafter was paid unemployment compensation of $65 per week until the expiration of her eligibility in March, 1976. At the time of trial she was unemployed and had no source of income.

Mr. Roberts is vice president of a corporation and has earned a salary of $30,000 a year since 1971. In 1974 he received a bonus of $12,500 which he stated was expended in the installation of a swimming pool in his home (market value of $180,000 and titled in his second wife’s name). His present wife receives the sum of $450 per month from her former husband for the maintenance and support of her three minor children who live with the Roberts.

The appellant did not oppose the custody of the children being awarded to the husband, but she requested that the court set up a schedule of visitation rights for her. The record revealed that she had seen the children only once since the husband assumed their care in 1972.

The husband in his testimony contended that his former wife was an alcoholic, that she had a “drinking problem” for many years, and that she was frequently drunk. The report from social services indicated that she “occasionally” attended sessions at the Alcohol and Drug Abuse Center. The appellant admitted that while she did drink .occasionally when she had the children in 1972 that it was “not that much, really.”

At the close of testimony, the trial court issued its memorandum and decree in which it stated, “[I]t is the opinion of this [c]ourt that the best interest and welfare of the minor children ... shall be served by awarding custody of them to their father, . . . rights of reasonable visitation by their mother . .. being suspended, subject to the further order of this [c]ourt.” The court continued:

“It is the opinion of this Court that Sally L. Roberts has an alcoholic problem and a propensity toward flagrant misconduct who, if awarded current and future alimony payments, would spare no efforts to squander them. As a result, it is the judgment of this Court that current and future alimony payments shall be suspended, subject to the further order of this Court.”

Then, differentiating between current and future alimony and past due alimony, the chancellor directed as follows:

“In the matter of alimony past due, however, this Court must act in the present and in reference to the ability or inability of parties to earn or provide. While the capacity on the part of John S. Roberts to pay has been materially reduced, the circumstances of Sally L. Roberts are dire. To cancel unpaid, past due arrearages, in light of the respective positions of the parties, would constitute a disregard.
Sally L. Roberts, because of her alcoholic problem, has made herself destitute.
John S. Roberts, on the other hand, has shown an ability to earn a substantial income and an ability to eventually pay the alimony payments which are in arrears and cannot be excused from making those payments which are past due.
Monthly payments of $275, without interest, by John S. Roberts, to Sally L. Roberts, will help to sustain Sally L. Roberts for a period of four years and thus afford her time within which to rehabilitate herself, if such shall be the nature of things to come.”

The appellant urges two reasons why the chancellor erred in suspending her current and future alimony payments. She contends that his finding of fact that the appellant has an alcohol problem and propensity toward flagrant misconduct was not supported by the evidence and was therefore clearly erroneous; and that even if these findings were correct that this should not result in a forfeiture or suspension of her right to current and future alimony payments.

An alcoholic has been defined as “one who is unable consistently to choose whether he should drink or not, and who if he drinks, is unable consistently to choose whether to stop or not.” Obviously, the more that drinking affects the health, the emotional well-being, the personal relationships, the work and the financial situation of the individual, the more serious the alcohol problem becomes. Alcoholism, as such, is not a symptom of basic mental instability. A complicating factor has been the existence of a double standard which makes it “worse” for a woman to be an alcoholic than for a map. Society’s judgment of the alcoholic woman has always been harsher than that of the male alcoholic. We have tended to conceal or deny the problem of the woman alcoholic even though it has been estimated that fully 50 per cent of the alcoholic individuals in the United States are women. A 1973 study drew this profile of an alcoholic female:

“The potential female alcoholic experiences chronic doubts about her adequacy as a woman. These doubts arise in part from inadequate feminine identification on an unconscious level, and they may be enhanced by acute threats to her sense of feminine adequacy, such as marital problems, a miscarriage, or children leaving home. The potential alcoholic does not consciously reject her identity as a woman; rather she consciously values traditional female roles. She may manage to cope with her fragile sense of feminine adequacy for a number of years, but when some new threat severely exacerbates her self doubts, she turns to alcohol in an attempt to gain artificial feelings of womanliness.” (emphasis supplied)

We have carefully considered the record in this case and agree that, while the evidence is not as conclusive as we might have preferred, there is sufficient evidence to justify the chancellor’s finding that the appellant did in fact have an “alcohol problem.” The chancellor, however, went further; he concluded that the appellant had “a propensity toward flagrant misconduct,” basing that conclusion on the reasoning and holdings in Atkinson v. Atkinson, 13 Md. App. 65, 281 A. 2d 407 (1971). For the first time in Maryland — as far as we have been able to determine — the chancellor on the authority of Atkinson suspended the appellant’s right to current and future payments of alimony required by the separation agreement between the parties.

The progenitor of Atkinson was Courson v. Courson, 213 Md. 183, 129 A. 2d 917 (1957). In that case a wife had been divorced a mensa et thoro from her husband and awarded permanent alimony. Thereafter she committed adultery and the husband petitioned for and was granted a suspension of the alimony payments. In a three to two decision the Court of Appeals stated at 187-88, 129 A. 2d at 919-20:

“There is a long line of decisions and authorities that hold where there is no absolute divorce, adultery by the wife is a defense to her suit for separate maintenance and support, or it will justify a modification or revocation of a decree for alimony.”
“In this State, a limited divorce is one from bed and board. It grants unto the injured spouse the right to live separate and apart from the one at fault. However, the parties remain man and wife, and there is no severance of the marital bonds. Alimony stems from the common law duty of a man to support his wife, and, in Maryland, has always been considered as outlined above. We hold the proper rule, supported by reason and authority, is that when a wife, who is living separate and apart from her husband due to his fault and who has obtained no more than a limited divorce from him, commits adultery, she forfeits her right to her husband’s support and the future payments of alimony.”
“It will be noted, we have not been required in this suit to pass upon the right of a wife, who has been granted an absolute divorce and alimony and who thereafter commits adultery, to continue to receive support from the former husband, and express no opinion thereon at this time.”

The dissent in Courson sharply disagreed with the holding of the majority. The minority position was stated by Judge Henderson at 190-91, 129 A. 2d at 921:

“This is a case of first impression in this State, and on principle and authority I think the decision is unsound. A right to support may survive a dissolution of the marriage, which would free her from a duty of chastity. * * * It is generally held that adultery of a wife committed after an absolute decree is not a bar to its enforcement. Cole v. Cole, 31 N. E. 109 (Ill.). Cf. Rang v. Rang, 211 Ill. App. 385; Christiano v. Christiano, 41 A. 2d 779 (Conn.); Suozzo v. Suozzo, 1 A. 2d 930 (N. J.); Hayes v. Hayes, 115 N. E. 1040 (N. Y.). See also Browne, Divorce and Alimony (1890), pp. 16, 296. Other cases are collected in a note, 6 A.L.R.2d 859. * * * In some states it is held that the courts may exercise discretion in modifying or rescinding an award after an absolute divorce, in cases of flagrant misconduct, such as living with a paramour or in prostitution. Lindbloom v. Lindbloom, 230 N. W. 117 (Minn.); Haritos v. Haritos, 202 N. W. 181 (Wis.). In a few states the existence of such resources is merely viewed as bearing upon the need for support, not upon the question of liability.”

Judge Henderson concluded at 194, 129 A. 2d at 923:

“The question whether an award might be terminated under circumstances shocking to the conscience of the court and outraging public morals may be left open.”

In Atkinson, supra, we adopted lanaguage which described flagrant misconduct “as living in prostitution, Courson, supra-, living together as husband and wife when unmarried, Grant v. Grant, 126 P. 2d 130 (Cal. 1942); living openly and notoriously with a paramour, Lindbloom v. Lindbloom, 180 Minn. 33, 230 N. W. 117 (1930); Weber v. Weber, 153 Wis. 132, 140 N. W. 1052 (1913); or gambling or squandering alimony payments, Daniels v. Daniels, 351 P. 2d 236 (Idaho, 1960).” 13 Md. App. at 72, 281 A. 2d at 410.

The chancellor’s conclusion as to the wife’s “propensity toward flagrant misconduct” had no factual basis in any alleged sexual misconduct on her part. Simply and totally it was based on the alleged alcohol problem of the wife. Of the cases cited in Atkinson the only one which might lend some support to the chancellor’s action in this case is Daniels v. Daniels. A close examination of that case however discloses that the language quoted in Atkinson is mere dicta and that the Idaho Court reached an opposite conclusion as to the husband’s right to a reduction of alimony because of his former wife’s alleged adultery. The Court in discussing the status of the parties said:

“Conceding the general duty she owes society, what right does it give the husband to property justly hers, if she violates that duty? The husband owes a like duty to lead a moral and virtuous life. If he fails to perform it, could it be contended that it would give her a right of additional property, or that there should be an increase in her allowance in consequence? Manifestly not.” 351 P. 2d at 239.

We adopt the enlightened view of the Legislature of the State of Maryland which in Maryland Code (1957, 1976 Repl. Vol.) Art. 2C, § 102 (d), states that “[c]hronic alcoholism is an illness that is properly treated under public health, welfare, and rehabilitation procedures.” We hold that alcoholism is not such flagrant misconduct as would justify the reduction or suspension of alimony payments. Nor was the chancellor’s conclusion that the appellant would spare no effort to squander current and future alimony payments a justifiable basis for denying to her that which the separation agreement entitled her to receive. By analogy, could a court cut off alimony payments because a diabetic spent the funds on the purchase of chocolates? We think not. Of course nothing we have here said would interfere with the chancellor’s obligation to consider the circumstances and equities of the case and to subserve the ends of justice and to reach a conclusion which is fair, just and reasonable to the parties. We do not reach the question of the chancellor’s power to impose as a condition for the continuation of alimony payments a requirement that a party who is an alcoholic be required to seek treatment.

The appellee suggests that since the original action by the wife sought specific performance of the separation agreement that the chancellor had the discretionary right to refuse specific performance because of the conduct of the wife. Zouck v. Zouck, 204 Md. 285, 104 A. 2d 573 (1953). We agree that the discretionary right exists but find nothing in the record which justifies the conclusion reached by the chancellor. We shall remand. The chancellor, of course, may consider the effect of any change in the circumstances of the parties and may modify the agreement as to the amount of alimony to be paid if he concludes that the facts support such action. Lott v. Lott, 17 Md. App. 440, 302 A. 2d 666 (1973).

Simultaneously, with the order suspending current and future payments of alimony, the chancellor suspended the mother’s rights of visitation with the minor children. The appellant urges that the chancellor erred in denying her the right to see the children. We are aware that the Court of Appeals in Radford v. Matczuk, 223 Md. 483, 164 A. 2d 904 (1960), indicated that a parent’s right of visitation is not absolute. In that case at page 488 the Court of Appeals quoting from 2 Nelson, Divorce, § 15.26 (2d ed.), stated the general rule to be:

“A parent whose child is placed in the custody of another person has a right of access to the child at reasonable times. The right of visitation is an important, natural and legal right, although it is not an absolute right, but is one which must yield to the good of the child. A parent’s right of access to his or her child will ordinarily be decreed unless the parent has forfeited the privilege by his conduct or unless the exercise of the privilege would injuriously affect the welfare of the child, for it is only in exceptional cases that this right should be denied. And in the absence of extraordinary circumstances, a parent should not be denied the right of visitation, even though the parent has been guilty of marital misconduct. But when it is clearly shown to be best for the welfare of the child, either parent may be denied the right of access to his or her own child.”

Visitation rights, however, are not to be denied even to an errant parent unless the best interests of the child would be endangered by such contact. The Court noted that over a long period of time in a series of cases beginning with Hill v. Hill, 49 Md. 450 (1878), and continuing through Hild v. Hild, 221 Md. 349, 157 A. 2d 442 (1960), it had never had an occasion to deny the right of visitation to an errant parent. Almost 17 years have passed since the Radford case and we find no case either in the Court of Appeals or in this Court where such visitation rights were denied.

Our examination of the record does not convince us that this case is the proper vehicle for such a unique holding. The report of the Department of Social Services does not disclose any information that would indicate that it would be injurious to the children to permit reasonable visitation rights. Exhibits in the case included a report from the doctor at Sheppard and Enoch Pratt Hospital who was treating the younger child and who indicated that visitation by the mother was contraindicated. The social worker at the hospital agreed. It is significant to note that these reports were more than a year old when the case was tried. The only evidence in the case as to visitation with the older child (the daughter now 15 years old) was a statement of the doctor in his report that “I have been told Suzanne had no desire to resume contact with her natural mother.” There is nothing in the record to substantiate this hearsay statement, but even if there were such testimony the same ground was one of those suggested for denying visitation rights to the father in Radford. The Court in refusing to accept this as a basis for denying visitation said at 223 Md. at 491, 164 A. 2d at 909:

“The third circumstance in the contention — the desire of the child — even if it has merit, is not controlling. It is true, of course, that the desire of an intelligent child, who has reached the age of discretion, should be given some consideration in determining custody, but even in a custody case the wish is not controlling. Hild v. Hild, supra; Ross v. Pick, 199 Md. 341, 86 A. 2d 463 (1952). In this visitation rights case, where the father has asked only that he be allowed to see his son at reasonable times, and where the child has not seen or known his father nor had an opportunity to make an independent choice based on something more than what had been imparted to him by others, we think the wishes of the child should be given slight, if any, consideration. A choice based on emotions inspired by one parent is no choice at all and need not be honored by a court. Cf. Casey v. Casey, 210 Md. 464, 124 A. 2d 254 (1956).”

The reports indicate the only contact by the doctor and social worker was with the father and his second wife. Neither of them ever saw or spoke to the natural mother. Almost two years have passed since these reports were written. We believe the question of visitation rights for the mother will require re-examination by the chancellor in the light of the legal principles we have here enunciated and in the light of a more thorough examination of the present situation of the parties.

We shall remand on the issues of modification of alimony and visitation rights but shall affirm such portion of the decree which directs payment of alimony arrearages and awards custody of the minor children to the father.

Decree affirmed as to payment of alimony arrearage and as to award of custody of minor children to father.

Decree reversed as to suspension of current and future alimony payments; decree reversed as to suspension of visitation rights.

Case remanded for further consideration not inconsistent with this opinion.

      . U.S. Department of Health, Education, and Welfare, Alcohol Abuse and Women (1975).

      . Id. citing Dr. Marvin Block, former chairman of the American Medical Association’s Committee on Alcoholism.

      . Wilsnak, S. C., Femininity by the Bottle, Psychobgy Today, 6(1):39-43, 1973.

      . We note Grant, Lindbloom and Weber were all decided a generation ago. We are not certain, in view of the well publicized sexual revolution of the past 30 years, that similar conclusions as to flagrant misconduct would be reached today.