text:
    THOMAS JOHN RALEY v. STATE OF MARYLAND
    [No. 800,
    September Term, 1975.]

      Decided September 10, 1976.

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

      Michael S. Libowitz for appellant.

      Arrie W. Davis, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Sandra A. O’Connor, State’s Attorney for Baltimore County, and Edward Seibert, Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Melvin, J.,

delivered the opinion of the Court.

On March 24, 1975, the appellant, Thomas John Raley, was indicted by the Grand Jury of Baltimore County. The four-count indictment charged that on February 17, 1975, the appellant 1) murdered one Joseph Stephen LeFevre; 2) assaulted his wife, Linda Agnes Raley, with intent to murder her; 3) assaulted Linda Agnes Raley; and 4) unlawfully “used a handgun in the commission of a felony or a crime of violence as defined in Section 441, of Article 27, of the Annotated Code of Maryland, to wit: murder;...

The events leading to the indictment can be briefly stated: At about 4:15 A. M. on February 17, 1975, appellant telephoned the Baltimore County Police Department to say that two people had been shot at his home in Baltimore County. After the telephone call was received, Officer Fisher called back to the Raley residence and was told by Raley that he had shot his wife in the chest and a man in the chest. Officer Beatty was dispatched to the address given by Raley, arriving there at 4:27 A. M. Upon arrival, he saw Raley standing in the doorway with a gun in his hand. Raley told Officer Beatty, “I am the one that called you, I shot them both”. Upon entering the house, the officer found the victims, LeFevre and Mrs. Raley, lying on the floor, both fully clothed. LeFevre was dead with a bullet hole in his chest. Mrs. Raley had a bullet wound in her throat but was alive and eventually recovered. Officer Glos arrived at the scene shortly after Officer Beatty arrived. Raley gave to Officer Glos two spent revolver casings and three unspent bullets. Officer Glos heard Raley say, “They both came out of the kitchen” and that he “shot them both”, and, “They didn’t belong there like that”. These statements were not elicited from Raley by any questions put to him by anyone and were made in the kitchen of the home shortly after Officer Glos’ arrival. A baby-sitter whom Mrs. Raley had engaged for the evening testified that Raley and his wife had been separated for about four weeks prior to February 17, 1975, but that Raley had been out with his wife and spent the night with her February 14, 1975.

Mrs. Raley was called as a witness for the state but refused to testify against her husband; Raley elected not to testify in his own defense.

On July 9, 1975, after three days of trial before a jury in the Circuit Court for Baltimore County (Judge John N. Maguire presiding), appellant was found guilty on Count III (assaulting his wife) and Count IV (using a handgun in the commission of a crime of violence), but was acquitted of Count I (murder of LeFevre) and Count II (assault with intent to murder his wife). On July 31, 1975, Judge Maguire sentenced appellant to the custody of the Division of Correction for twenty years as to Count III and for fifteen consecutive years as to Count IV.

In this appeal, appellant seeks reversal of both convictions on several grounds. We conclude there is merit in none and shall affirm both convictions.

I

The first five grounds alleged are related to the propriety of the handgun conviction under Count IV of the indictment.

(a)

In his advisory instructions to the jury concerning Count IV of the indictment, the trial judge said:

“The fourth count of the indictment charges the Defendant with the Use of a Handgun. Under our law, Article 27, section 36B, subsection d, any person who uses a handgun in the commission of any felony or crime of violence, shall be guilty of a separate misdemeanor. That is a separate crime. A handgun shall include any pistol or revolver, or any firearm capable of being concealed on the person, and a crime of violence, of course, would include Murder, Robbery, Rape, or an attempt to commit any of these offenses. The felony alleged in this Count is Murder. ” (Emphasis Added)

No exceptions were taken to this instruction. After deliberating for nearly three hours, the jury sent out a question to the court concerning a “description of charges to be considered”. After conferring with counsel, the jury was brought back to the courtroom and the judge “re-read” to the jury “all the charges with respect to this case of Thomas Raley”, including a word-for-word repetition of his advisory instruction concerning Count IV. When the judge completed the re-instruction, appellant’s counsel said to the judge:

“. .. . They asked for charges, and the Court defined as the fourth count Use of the Handgun. The law specifically says Involuntary Manslaughter is an exception as well as Common Law Assault. It was covered in argument. I would ask that the Court indicate that Involuntary Manslaughter and Assault are specifically excepted from the crime of Handgun Violation.”

The judge declined to supplement the advisory instruction as requested.

Appellant contends the judge’s refusal constituted reversible error. We disagree. Section 36B (d) of Article 27 of the Code provides:

“(d) Unlawful use of handgun in commission of crime. — Any person who shall use a handgun in the commission of any felony or any crime of violence as defined in § 441 of this article, shall be guilty of a separate misdemeanor and on conviction thereof shall, in addition to any other sentence imposed by virtue of commission of said felony or misdemeanor, be sentenced to the Maryland Division of Correction for a term of not less than five nor more than fifteen years, and it is mandatory upon the court to impose no less than the minimum sentence of five years.”

Section 441 (e) of Article 27 provides:

“The term ‘crime of violence’ means abduction; arson; burglary, including common-law and all statutory and storehouse forms of burglary offenses; escape; housebreaking; kidnapping; manslaughter, excepting involuntary manslaughter; mayhem; murder; rape; robbery; and sodomy or an attempt to commit any of the aforesaid offenses; or assault with intent to commit any other offense punishable by imprisonment for more than one year.”

Appellant argues, correctly of course, that “common law assault is a misdemeanor and since it is not listed as a crime of violence, it cannot serve as the basis for a conviction under the handgun violation charged in the indictment”. It does not follow, however, that it was error not to give the requested advisory instruction. Although it is well settled that under Maryland Rule 756 a trial judge, when requested in a criminal case, must give advisory instructions on every point of law essential to the crime charged and supported by the evidence, Christensen v. State, 274 Md. 133 (1975); Mumford v: State, 19 Md. App. 640 (1974); Byrd v. State, 16 Md. App. 391 (1972); Peterson v. State, 15 Md. App. 478 (1972); Hardison v. State, 226 Md. 53 (1961), it is equally settled that a trial judge is not obliged to give a requested instruction that is fairly covered in the instructions actually given, and the jury was not misled upon the subject. Bartholomew v. State, 260 Md. 504 (1971); Brown v. State, 222 Md. 290 (1960); England v. State. 21 Md. App. 412 (1974).

In the present case, under Count IV of the indictment the appellant was charged with the “commission of a felony or a crime of violence ... to wit: murder”. Thus charged, a prerequisite to conviction thereon was proof beyond a reasonable doubt that the appellant used a handgun during the commission of a murder or the lesser included felony or “crime of violence” of voluntary manslaughter. We think this element of the handgun crime charged was fairly covered by the trial judge’s advisory instruction actually given and that the jury was not misled into believing that common law assault could serve as a basis for conviction under that count of the indictment. Having advised the jury of the essential elements of the handgun crime charged, it was not necessary to advise it of elements not included in the charge.

(b)

The appellant contends that the jury verdicts of guilty as to Count IV and not guilty as to Count I (murder in the first or second degree, or manslaughter) and Count II (assault with intent to murder) are fraught with such inconsistency as to amount to a denial of due process of law and equal protection of the law. The verdict as to Count IV, he argues, should therefore be stricken. While we recognize the logic of appellant’s argument, we think the decision of the Court of Appeals in Ford v. State, 274 Md. 546 (1975) is dispositive of the contention. In that case the jury returned not guilty verdicts as to counts in an indictment charging robbery with a dangerous and deadly weapon, robbery, and assault, but guilty of a count charging unlawful use of “a handgun in the commission of a crime of violence”. Answering Ford’s argument that the conviction was illegal because of the allegedly inconsistent verdicts, the Court said, at pp. 550-551:

“We agree with the petitioner that section 36B (d) requires the trier of fact to determine beyond a reasonable doubt, from the evidence, that the accused used a handgun during the commission of either a felony or a crime of violence as a prerequisite to being convicted of unlawfully using a handgun in the commission of either. Nevertheless, in answering the petitioner’s first contention, we think it to be plain from the language of section 36B (d) that the offense delineated in that statute is separate and distinct from the felony or crime of violence during the commission of which the handgun was used. Since this is so, an individual on trial for the handgun charge does not necessarily need to have been separately accused of the commission of a felony or crime of violence in an additional count or indictment before he can be charged with or convicted of the crime established in section 36B (d). And, when the trier of fact considers an indictment containing both a section 36B (d) handgun count and a felony or crime of violence count, a conviction on the former can still be sustained even if the trier of fact returns a finding of not guilty on the latter in fact, a finding of guilt under both, since they are not inconsistent, can each stand. A logical corollary then of each of these statements is that when section 36B (d) dictates that any person who is guilty of the handgun offense shall be sentenced ‘in addition to any other sentence imposed by virtue of commission of said felony or misdemeanor,’ it directs that irrespective of the number of years, if any, the defendant receives for the ‘said felony or misdemeanor,’ the court must impose a penalty, within the limitations for confinement contained in the statute, for the independent handgun offense.” (Emphasis supplied.)

(c)

Appellant argues that the evidence was insufficient to support the handgun violation because the State failed to meet its burden of proving “beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue was properly presented in a homicide case”. As we have seen, the fact that the jury found appellant not guilty of murder, manslaughter, or assault with intent to murder, does not affect the validity of its guilty verdict as to the separate crime of unlawful use of “a handgun in the commission of a felony or crime of violence ... to wit: murder”, contained in Count IV of the indictment. There must, nevertheless, be sufficient evidence from which the jury could have found beyond a reasonable doubt that the appellant used the handgun during the commission of a felony or a crime of violence — in this case murder (in the first or second degree) or voluntary manslaughter. Even if it be assumed that an issue of mitigation was generated (and we do not decide that it was), and that the State failed to prove the absence of the mitigating circumstances (“heat of passion on sudden provocation”), the effect would have been merely to reduce the underlying crime, during the commission of which appellant used a handgun, from murder to the lesser included felony or crime of violence of voluntary manslaughter. In short, our review of the record convinces us that there is ample evidence from which the jury could have found beyond a reasonable doubt that appellant unlawfully used a handgun in the commission of, at the very least, voluntary manslaughter. Such evidence is legally sufficient to support a conviction under Count IV of the indictment.

(d)

Appellant next contends the trial judge erred in “refusing to allow into evidence qualified psychiatric testimony” from Dr. Charles Rafky. After his arrest on February 17, 1975, appellant was ordered by a District Court judge to seek psychiatric treatment as a condition for pre-trial release on bail. He first saw Dr. Rafky on February 20, 1975, “for about one hour”. After obtaining his “history” the doctor recommended that he be admitted to a psychiatric hospital for treatment. Approximately a month later he was released from the hospital and Dr. Rafky saw him thereafter “on two occasions”.

Appellant did not enter an insanity plea to the charges against him.

Appellant argues that the testimony of Dr. Rafky that was rejected by the court would have shown that at the time appellant shot Le Fevre 1) he did so without the premeditation required for murder in the first degree and 2) he acted in the “heat of passion” so as to reduce the killing to manslaughter. Here again, even if the testimony had been admitted into evidence and even if it had the effect of reducing the underlying felony or crime of violence from murder to voluntary manslaughter, it would not have had the further effect of adversely affecting the legal sufficiency of the evidence for conviction under Count IV of the indictment. Thus, assuming without deciding that the trial judge erred in rejecting the doctor’s testimony, the error was harmless beyond a reasonable doubt. Dorsey v. State, 276 Md. 638 (1976).

(e)

Appellant’s contention that the trial judge erred in refusing to instruct the jury that “the burden of proof of the State must be to prove beyond a reasonable doubt that the Defendant did not act in heat of passion” is likewise unavailing to him; for even if error (and we need not so decide), the error was harmless beyond a reasonable doubt so far as conviction under Count IV is concerned. Dorsey v. State, supra.

II

Appellant contends the State failed to establish the corpus delicti of the crime of assault, arguing that “no medical records were entered into evidence describing any injuries to Linda Raley”. The contention is devoid of merit. In addition to appellant’s confession, there is in evidence the uncontradicted testimony of Officer James Beatty describing Mrs. Raley’s condition when he arrived on the scene:

“She was lying on her right side clutching at her throat, had a bullet wound in the throat. Mr. Lefevre, I tried to check him as soon as possible, and I could detect no pulse and no breathing.”

Ill

After a hearing out of the presence of the jury, the trial judge ruled that appellant’s unsolicited oral confession to Officer Joseph Glos was admissible. Appellant contends, for the first time on this appeal, that the judge made his ruling “without affording the Appellant an opportunity to present witnesses on his Motion or to testify himself” and that “The Court’s action deprived the appellant of a full and ample opportunity to assert his Constitutional guarantees”. The contention is not supported by the record. After Officer Glos had testified on direct examination concerning the events leading up to the confession, and after appellant’s counsel had completed his cross-examination of the officer, the record shows the following:

“MR. LIBOWITZ (Defense Counsel): I have no other questions.
THE COURT: Do you want to be heard? I have to rule on the admissibility of the statement made to the officer by Mr. Raley.
MR. SEIBERT (Assistant State’s Attorney): Yes, Sir.
THE COURT: I am ready to rule on it.
MR. SEIBERT: Your Honor, I would use Richardson vs. State, where a police officer, 6 Maryland App., 448 —
THE COURT: How about 2 Maryland App., Carswell vs. State?
MR. SEIBERT: That is just as good. In this particular case, after the Miranda rights were read.”

After stating his reasons, the judge overruled appellant’s objection to the admissibility of the confession. The court then recessed for ten minutes, after which the following occurred:

“THE COURT: Bring in the Jury. All right Gentlemen.
MR. SEIBERT: I will restate the question. Q. The question is this, Officer —
THE COURT: Mr. Libowitz will object and I will rule again.
Q. Now, what if anything, did the Defendant, Mr. Raley, say to you in the kitchen at the time you were there looking for the chalk?
MR. LIBOWITZ: Objection.
THE COURT: Overruled. The reason is the same I gave before, which is in the record.
A. (by the witness) When Mr. Raley stated to me he just blurted it out. He said ‘they both came out of the kitchen’ and that he shot them both, and ‘that they didn’t belong there like that.’ ”

At no time did appellant or his counsel indicate in any way that he wished to present any witnesses or testify himself on the issue of the admissibility of the oral statement. Had he intended to do so, he should have made his wishes known to the court. We think he had ample opportunity to make his wishes known to the court. There is, of course, no indication that had he done so he would not have been allowed to testify himself or present witnesses on his behalf on the issue then before the court. We observe that even after the trial resumed in the presence of the jury, appellant offered no evidence bearing on the voluntariness of his confession, an issue ultimately for the jury to resolve after the judge’s initial ruling on the matter. We note further that appellant in this appeal gives us no inkling of the nature or content of the testimony he claims he was denied. In sum, we find no irregularity in the proceeding about which the appellant has reason to complain on appeal.

IV

Appellant finally attacks his twenty year sentence for assault and his fifteen year consecutive sentence for the handgun violation as being an abuse of discretion and cruel and unusual punishment and therefore violative of his rights under both the Maryland Declaration of Rights and the United States Constitution.

As we understand the argument it is two-pronged. First, he contends the sentences were so disproportionate to the offenses as to evidence an abuse of discretion and to constitute cruel and unusual punishment forbidden by the Maryland Declaration of Rights and the United States Constitution. Second, he contends that having been found not guilty of assault with intent to murder his wife, the sentence for the lesser included offense of assault could not legally exceed fifteen years, the maximum then provided by law for the greater offense. We find no merit in either contention.

As to the first, the imposition of sentence in a criminal case is a matter within the province of the trial judge, Gleaton, v. State, 235 Md. 271, 277 (1964); Reid v. State, 200 Md. 89, 92 (1952), cert. denied, 344 U. S. 848 (1952). And if the sentence is within the limits prescribed by law, it ordinarily may not be reviewed on appeal. Gleaton v. State, supra; Biles v. State, 230 Md. 537, 538 (1964). Assault is a common law crime for which no statutory limit governing punishment is prescribed and there was no limitation at common law. Heath v. State, 198 Md. 455, 467 (1951). As indicated by the Court in Heath, quoting from 2 Bishop, Criminal Law (9th ed. p. 32), the determination of the length of sentence for assault is left to the discretion of the trial court and “it has been the judicial habit to look upon assaults as more or less aggravated by such attendant facts as appealed to the discretion for a heavy penalty. * * * An assault is deemed to be more or less enormous according to the facts of the particular ease”. In the present ease, we think the circumstances were such as to bring the assault well within the definition of “enormous” and “aggravated”. In passing sentence the trial judge was not required to remain oblivious to evidence of appellant’s obvious involvement in the more serious crimes with which he was charged, even though that involvement in the mind of the jury was less than necessary to convict him of those charges. See Henry v. State, 273 Md. 131, 149-151 (1974). Nor is there any indication that in determining the sentences the judge was motivated by passion, ill will, prejudice, or any other motive than that of a sense of public duty. Under all the circumstances we cannot say that he abused his discretion or that the sentences were cruel and unusual. See Smith v. State, 23 Md. App. 177, 180 (1974), holding that “it is firmly established that punishment is not cruel and unusual because sentences are imposed to run consecutively. Bieber v. State, 8 Md. App. 522, 548”. See also Wilkins v. State, 5 Md. App. 8, 22 (1968), and cases there cited, upholding against constitutional attack twenty year sentences for assault and battery.

As to appellant’s second contention, concerning the legality of the twenty year sentence for assault, we think Roberts v. Warden, 242 Md. 461 (1966) is dispositive. In that case the Court of Appeals specifically rejected an identical contention as being “without substantive merit”. Quoting from Gleaton v. State, supra, the Court said, at pp. 460-461:

“There is' * * * in this State no statutory limitation on the penalty which may be imposed for simple assault, and there was none at common law. Heath v. State, 198 Md. 455, 467, 85 A. 2d 43 (1951); Apple v. State, 190 Md. 661, 668, 59 A. 2d 509 (1948). Nor do we construe the penal limits imposable for the statutory assaults as implying a legislative policy to confine sentences for common law assault to not more than those prescribed for the statutory assaults. Statutes in derogation of the common law are strictly construed, and it is not to be presumed that the legislature by creating statutory assaults intended to make any alteration in the common law other than what has been specified and plainly pronounced. Dwarris on Statutes, 695. The matter of imposing sentences is left to the sound discretion of the trial court, and the only restraint on its power to fix a penalty is the constitutional prohibitions against cruel and unusual penalties and punishment found in Articles 16 and 25 of the Maryland Declaration of Rights.” (Emphasis added.)

Judgments affirmed,

      . We further observe that the requested instruction, technically, is not a correct statement of the law, for although involuntary manslaughter is not included within the definition of a “crime of violence” under 8 441 (e) of Article 27, it is a felony and therefore is not “excepted from the crime of Handgun Violation”. See Wilson v. State, 28 Md. App. 168, 179 (1975). And common law assault, although not included within the definition of a crime of violence, is not “specifically excepted from the cri ne of Handgun Violation”. (Emphasis added). Our decision, however, is not based on this technicality.

      . The record indicates that pursuant to Md. Rule 762 there is still pending before a three-judge Review Panel the matter of appellant’s sentences. If this is so, our rejection on this appeal of appellant’s contentions concerning his sentences should not be construed as determinative of that panel’s decision in the matter, for our scope of review is limited by the general rule “that the imposition of sentence is within the discretion of the trial judge and, if within the statutory limits, will not be disturbed on appeal in the absence of a showing that it was dictated, not by a sense of public duty, but by passion, ill will, prejudice or other unworthy motive”. Smith v. State, 23 Md. App. 177, 180 (1974). While such factors are Íwoperly to be considered by the review panel, its scope of review is not so imited, the application being addressed to the wide discretion of the panel in determining the appropriateness of the sentences. To modify a sentence, the review panel need not find that the sentencing judge abused his discretion, only that it does not agree that the sentence was appropriate under all the circumstances, including the accused’s background and prior criminal record.


source: Caselaw Access Project

author: Mason, J.,

license: Public Domain

text:
    FRANK BENJAMIN BURTON v. STATE OF MARYLAND
    [No. 829,
    September Term, 1975.]

      Decided September 10, 1976.

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

      Luther C. West, Assigned Public Defender, for appellant.

      John A. Austin, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Joseph Wase, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Mason, J.,

delivered the opinion of the Court.

The appellant, Frank Benjamin Burton, was convicted by a jury in the Criminal Court of Baltimore of murder in the first degree (two counts), assault with intent to murder, robbery with a deadly weapon, and violation of the handgun statute (three counts). He was sentenced to two concurrent life terms plus consecutive terms totaling thirty-five years.

The appellant contends:

I. The trial court erred in admitting into evidence the appellant’s extra-judicial statements.

II. The trial court erred in not suppressing the testimony of Elaine Lawson.

III. The trial court erred in refusing to instruct the jury as requested.

IV. The trial court erred in not granting the appellant’s motion for judgment of acquittal.

According to the evidence adduced at trial, as Cephus Jackson and Emmanuel Palmer left the Elgin Lounge in Baltimore City around midnight on June 21,1974, they were accosted by two men who demanded money, took Jackson’s watch, and forced them into Jackson’s automobile. The robber with a sawed-off shotgun sat in the back seat with Palmer; the other robber sat in the front seat with Jackson and drove the car. Soon thereafter a fight began between the victims and their assailants. During this fight the shotgun discharged and the assailant who was driving the car was hit in the chest. Whereupon the car came to a stop; the wounded driver got out and after staggering several feet collapsed and died. As Palmer and Jackson attempted to take the shotgun from the remaining assailant, it discharged a second time, fatally wounding Palmer. After a brief fight with Jackson, the man with the shotgun fled from the scene.

The police conducted a search of the area and found the body of Warren Rodell Holden, one of the robbers, and a sawed-off shotgun which was wrapped in a blue windbreaker. Jackson recounted the entire incident to the police. They evidently did not believe him because he was arrested and held for investigation.

During the course of the investigation, the police interviewed the wife of the deceased assailant who informed them that she last saw her husband between 8:30 and 9:30 on the night of the incident with the appellant, her brother. The police left a message for the appellant to call them. The following day the appellant telephoned the police and agreed to come to the homicide office to talk. At the initial interview, the appellant admitted he and Holden were together on the night of the incident. He stated they went to Elaine Lawson’s house and then to the Elgin Lounge where he lent Holden his jacket. Afterwards he and Holden separated and he did not see him again. The appellant denied any knowledge of the robbery and subsequent murders.

After the appellant’s statement placed him with Holden at the time of and near the scene of the crimes, the suspicions of the police were aroused and the appellant was asked to repeat his statement. The appellant repeated this statement without any variation and was then given his Miranda warnings. Thereafter, in addition to repeating the same statement, he made a photographic identification of the jacket in which the shotgun was wrapped as the one he had lent Holden. Following this, the appellant was jailed.

The next day the appellant was again given his Miranda warnings. This time he was falsely told that his fingerprints were found on the shotgun. When asked for an explanation, the appellant admitted that Holden was armed with a shotgun on the night of the incident and that he had handled the gun at Elaine Lawson’s house. He still denied, however, any involvement or knowledge of the crimes.

All the statements made by the appellant together with his signed and initialed Miranda warnings were introduced into evidence. The appellant did not testify or offer any evidence in his defense.

I.

The principal stress of the appellant’s argument is that the two statements made prior to the Miranda warnings were improperly admitted into evidence and violated his constitutional rights. The threshold question, therefore, is whether these two statements stemmed from “custodial interrogation” within the meaning of Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966). In Cummings v. State, 27 Md. App. 361, 341 A. 2d 294 (1975), this Court enumerated several factors to be considered in determining whether custody exists, including the place and time of interrogation, the length and mood of interrogation, and the indicia of formal arrest.

The following testimony illustrates the atmosphere of the interview with the appellant:

Q. [Assistant State’s Attorney] From the time you picked up Mr. Burton on, I think it was June 23rd, when you first picked him up as a witness at the time, you testified, what if anything did you or anyone in your presence say to Mr. Burton to indicate to him that either that he was free to leave or was not free to leave, or what his capacity with respect to his dealings with you were?
A. [Detective LaMartino] At that point, he was a witness. I was seeking information. If Mr. Burton wanted to leave, he could have. There were no restraints on him; no handcuffs. He was not under arrest at that time.
Q. Did he know that?
A. Yes, sir.
Q. How did he know that?
A. Because he was not told he was under arrest. He was told he was being brought in for information only.
Q. Was he told he had to accompany you?
A. No, sir, he agreed to accompany us.
Q. How was he asked to accompany you?
A. “Would you please come down to homicide office?” His response was, “Yes.”
Q. Did you tell him why you wanted him to come to homicide?
A. Briefly, in the car.
Q. What did you tell him?
A. We told him we were investigating a double homicide that had occurred on Francis Street; William Holden was one of the victims, and we wanted to talk about one of the victims that night.
Q. Did you have a suspect in homicide at that time?
A. No, sir.
Q. Did you have anyone in custody?
A. Yes, sir.
Q. Who was that?
A. Mr. Cephus Jackson.
Q. What would have been your response if Mr. Burton had been unwilling to accompany you to homicide?
A. My response would have been to leave the premises of 2524 Druid Hill Avenue and not speak to Mr. Burton.
Q. What would have been your response if once at homicide, Mr. Burton said — I have changed my mind. I want to leave.
A. He could have left.
Q. Up until what point could he have left?
A. Until I advised him of his rights.
Q. Was it at that point he became a suspect in your mind?
A. Yes.

The concept of custody, for applying the Miranda rule, must be determined on a case-to-case basis. In the present case the undisputed evidence shows that the appellant telephoned the police and voluntarily agreed to talk with them at the homicide office. He was not a suspect nor was he made to believe he was one. Moreover, he was not charged, arrested, photographed, fingerprinted, or deprived of his freedom of movement. The police, at this point, were attempting to obtain information regarding the activities of the deceased Holden on the night of his murder and to verify the version of the incident as related to them by Jackson, who was being held for investigation. On being asked if he could assist them in retracing the deceased’s “last steps”, the appellant gave his first statement. When asked to repeat this statement, the appellant did so without any changes. Both of these statements were in a narrative form and not the product of accusatory questions. During this relatively brief interview the police took no notes, nor was the appellant confronted with any evidence against him.

We are not persuaded under the facts of this case that the “place of interrogation” factor was enough to create a custody situation. Certainly, taking a statement from an individual at the police station who might have information regarding a crime is routine police investigative procedure and not “in custody interrogation”.

As to the place of interrogation, in Cummings, supra, this Court stated: “Although the place of interrogation is not the conclusive or sole factor to be considered in determining the fact of custody, it is a vital factor.” 27 Md. App. at 369. We made clear, however, in Matter of Carter and Spalding, 20 Md. App. 633, 318 A. 2d 269 (1974), aff'd, 273 Md. 690 (1975), that every questioning that takes place in a police station is not “custodial interrogation”. See also Clarke v. State, 3 Md. App. 447, 240 A. 2d 291 (1967). In People v. Yukl, 256 N.E.2d 172 (1969), the Court of Appeals of New York held:

. . . the fact that a defendant is being interviewed in the police station does not necessarily mean that he is to be considered “in custody”. (Citations omitted). This is merely one of the factors to be considered in reaching the ultimate conclusion.

See cases cited in Annot., 31 A.L.R.3d 565, § 15 (b).,

Finally, the failure of the police to advise the appellant of his Miranda rights prior to asking him to repeat his statement did not make this second statement an “in custody interrogation”. The request to repeat this statement was not an attempt to elicit additional information, nor did it produce any. The police may well have wanted the statement repeated to confirm their suspicions which the first statement aroused.

Under the “totality of the circumstances” approach, we conclude that the appellant here was not in custody. Therefore, Miranda warnings were not required and the two challenged statements were properly admitted into evidence. In view of this holding, the other issues raised can be disposed of briefly. The appellant contends:

That the two statements made after the giving of the Miranda warnings were the fruits of the two unwarned and inadmissible statements.

That the existence, location, and subsequent testimony of Elaine Lawson were the fruits of the two unwarned and inadmissible statements.

That the court erred in refusing to instruct the jury that if they found the two unwarned statements illegal they should reject the subsequent statements.

That the appellant’s motion for judgment of acquittal should have been granted since the prosecution’s case was based solely on the extra-judicial statements and Elaine Lawson’s testimony.

It is clear the appellant could have only prevailed on these issues provided the two unwarned statements were inadmissible. Since the statements in question were admissible and not the result of a custodial interrogation, the rationale undergirding the appellant’s argument collapses.

Judgments affirmed.

      . Appellant was transported in an unmarked police car to the homicide office between 3:00 and 4:00 p.m. He signed his Miranda waiver at 5:15 p.m.

      . Elaine Lawson testified that she accompanied Holden and the appellant to the Elgin Lounge; that the appellant was carrying a windbreaker and Holden said they had a shotgun; that Holden wanted her to entice a “dude” outside so they could rob him, which she refused to do.


author: Powers, J.,

text:
    FRANK DAMAZO v. HAZEN B. NEAL et ux.
    [No. 878,
    September Term, 1975.]

      Decided September 10, 1976.

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

      Leon B. Pennington for appellant.

      John Wheeler Glenn and Thomas A. Wojdygo, with whom were Edwin F. Nikirk, II, and O’Connor, Preston & Glenn, P.A. on the brief, for appellees.
   Powers, J.,

delivered the opinion of the Court.

Several years prior to 1950 Hazen B. Neal and his wife, Lola B. Neal, in three separate transactions, had assembled a parcel of slightly less than two acres of land fronting some 225 feet on East Street, in an industrial area in the City of Frederick. The parcel extended between parallel lines, at approximate right angles to the street, to a depth of about 350 feet.

In 1974, when the Neals decided to sell part of the ' property, it was improved by several buildings, at least one of which had been used to house an automobile dealership. By a contract dated 9 October 1974 Mr. and Mrs. Neal agreed to sell and Frank Damazo agreed to buy more than half of the land, including a large building and other facilities. They attached to the contract a sketch showing the dimensions of the land to be conveyed, and a right of way reserved by the sellers. The contract provided:

“It is hereby understood and agreed that the property herein conveyed shall be surveyed at the expense of the seller to provide proper legal description, the metes and bounds of which shall conform generally to the attached rough sketch, however, the north line shall be 25 ft. from the north wall of the lubrication room and the Right-of-way shall be 15 ft. in width.”

But for certain requirements imposed or sought to be imposed by the City of Frederick, there is little doubt that the parties would have carried out the terms of their contract in due course.

Settlement was not held, however, and on 2 January 1975 Dr. Damazo filed in the Circuit Court for Frederick County against Mr. and Mrs. Neal a “Bill of Complaint for Specific Performance” in which he prayed that the contract be specifically enforced, and that a trustee be appointed “to complete the necessary sub-division of the property so as to be approved by the City Planning Commission”, and to convey the property to him in accordance with the terms of the contract. Attached to the complaint were several exhibits, including the contract and sketch, several letters exchanged between counsel for the parties, and a plat prepared by a Registered Land Surveyor showing the property as a plan of subdivision.

After the Neals answered the complaint, Damazo took their depositions. The case was set for trial before Judge Samuel W. Barrick on 2 July 1975. Counsel submitted the case on stipulations as to the undisputed documents, and two other stipulations which we quote:

“* * * that the sole issue to be decided by the Court in this case is whether the defendants can avoid specific performance of the contract * * * because they refuse to dedicate any land to the city for street, curb and sidewalks in order to comply with the Frederick City Planning Commission requirements of setback and dedication of land in order to approve resubdivision.”
“* * * without an approved resubdivision of the subject property, the defendants cannot convey a good and merchantable title to the plaintiff as provided for in Paragraph 4 of the contract.”

On 31 July 1975 Judge Barrick filed a Memorandum and Order, and dismissed the Bill of Complaint. Damazo appealed.

The survey called for by the contract was promptly ordered. It appears that the parties were advised and concluded that it was necessary that a subdivision plat be submitted to and approved by the City Planning Commission. It is not clear whether the plat was considered necessary to avoid a statutory penalty for conveying land without a plat, or as a requisite to recording the deed, or as affecting the validity of a deed recorded without reference to an approved plat. In any event, the parties stipulated at the trial that without an approved resubdivision plat the Neals could not convey a good and merchantable title.

According to the contract the purpose of the survey was to provide a proper legal description, by metes and bounds, of the property to be conveyed. The survey was prepared, however, as a “plan of subdivision”, to be submitted to the City Planning Commission for approval. The plat showed East Street to be 60 feet wide. A parcel designated as Lot #1, the parcel to be conveyed, contained 45,651 square feet, and had a frontage of 148.50 feet on East Street. The land to be retained by the Neals was given no lot number designation, but was shown to contain 33,419 square feet, and to have a frontage of 76.79 feet on East Street. The entire frontage on East Street was shown to be subject to a building restriction line 25 feet from the street. The plan showed no dedication to public use.

The surveyor certified that the plan was correct. The owners certified that they “hereby adopt this plan of subdivision, establish the minimum building restriction lines, dedicate the streets and alleys and walks to public use.” The plat, dated 21 November 1974, was submitted to the City Planning Commission.

By a letter dated 11 December 1974 the City Engineer advised that the Commission had given “preliminary and final approval to the subdivision of the above property provided that the front property line be set back 12W in order to meet the requirements of the Master Street Plan. This I2V2' would be dedicated to public use for the widening of East Street.”

Mr. and Mrs. Neal declined to dedicate any of their retained land to public use. The plan of subdivision progressed no further. Counsel for Damazo demanded that settlement be held at noon on 31 December 1974, in accordance with the contract and approved subdivision plan. Counsel for the Neals declined. He reiterated that they were not willing to dedicate any of their property in order to have the City approve the subdivision.

Appellant argues here: (a) that the Neals were bound to dedicate part of their land because the requirement was reasonably foreseeable; (b) that the Commission had no authority to require dedication, and the Neals should have contested the asserted requirement; (c) that the court erred in not decreeing partial specific performance as to the two original parcels which did not require subdivision, with an abatement of the purchase price; and (d) that the court erred in ruling on the defense of frustration of purpose.

In his memorandum Judge Barrick discussed impossibility of performance, which he said was raised as a defense, and likened it to the doctrine of frustration of purpose. He observed that performance in this case was not literally impossible, because the Neals had the capability to put themselves in a position to perform. We agree that this case is not one of true impossibility, such as the Court of Appeals found to exist in Acme Moving & Storage v. Bower, 269 Md. 478, 306 A. 2d 545 (1973), where specific performance of a lease of a warehouse was denied. The evidence in that case showed that compliance by the lessor with a condition for obtaining an occupancy permit would constitute a violation of an existing special exception under the zoning ordinance. The Court agreed that performance was impossible. The lessee sought only specific performance, and did not claim damages.

Levine v. Rendler, 272 Md. 1, 320 A. 2d 258 (1974), was an action at law for damages for failure to perform. The defense of impossibility was raised to excuse non-performance. It was clear from the facts that performance was not truly impossible, merely that it would be more costly than had been contemplated, because of a change in local government regulations. The Court of Appeals said that the trial judge had correctly denied a motion for a directed verdict, holding that the possibility of that change should have been perceived by the parties who promised to perform.

Another case of true impossibility of performance was involved in Wischhusen v. Spirits Co., 163 Md. 565, 163 A. 685 (1933), an action at law for damages for breach of an employment contract. The employer, a distiller of intoxicants during the era of Prohibition, hired the employee “to have the exclusive management and control of all operations at a particular distillery in the production of whiskey.” The distiller could legally operate only with a permit from the federal government. Its application for the permit was denied by the government because it believed the employee to be not trustworthy or competent. Since performance would be illegal, the Court held that it was legally impossible. It also held that under the facts in that case, impossibility of performance excused non-performance.

The applicable principles were considered further by the Court of Appeals in State v. Dashiell, 195 Md. 677, 75 A. 2d 348 (1950), when the Court, citing Wischhusen, said, at 689:

“It is a general rule of the common law that when the impossibility of performance arises after the formation of the contract, the failure of the promisor to perform is not excused. This rule was founded on the theory that if the promisor makes his promise unconditionally, he takes the risk of being held liable even though performance should become impossible by circumstances beyond his control. The unjust consequences of this general rule gave rise to certain exceptions. One of these is that a contractual duty is discharged where performance is subsequently prevented or prohibited by a judicial, executive, or administrative order, in the absence of circumstances showing either a contrary intention or contributing fault on the part of the person subject to the duty. [Citations omitted.] But an order which interferes with the performance of the contract is not an excuse if the circumstances surrounding the formation of the contract are such as to indicate that the possibility of such interference was recognized and the risk of it was assumed by the promisor.
“Thus, in those cases where a regulation of an administrative agency is already in force at the time of the formation of the contract, the decisive question is whether or not the promisor assumed the risk of interference by the regulation.”

After commenting that the subject case was not one where the defense of impossibility of performance should be applied, Judge Barrick considered whether the Neals were obligated by their contract to meet the condition imposed by the City Planning Commission which they would have to meet to enable themselves to perform the contract. In doing so he referred to “the doctrine of frustration of purpose”, and cited Montauk Corp. v. Seeds, 215 Md. 491, 138 A. 2d 907 (1958). In Jeffrey-Sneider Maryland, Inc. v. LaVay, 28 Md. App. 229, 345 A. 2d 79 (1975), we cited a number of other Maryland cases in which a similar or analogous principle has been discussed.

We see no magic in a particular phrase. The basic rule is that a party is bound to do what he promised to do, or, in an appropriate case, to answer in damages. What he promised to do is to be found in the words he used, and in what is reasonably implied by those words. Compliance with a governmental requirement of which he knew, or should have known or foreseen, is reasonably implied.

Judge Barrick held in this case that the subdivision regulations were in existence at the execution of the contract, and the Neals knew or should have known that they would have to comply with those regulations before they could deed the property to Damazo. He also held that there was nothing in the subdivision regulations which put the Neals on notice that a dedication of a part of their retained property would be exacted from them as a condition to approval of a subdivision plat. Appellant does not question these conclusions. Indeed, he contends, alternatively, that the Commission had no authority to exact such a dedication.

The correctness of the conclusion that a requirement of dedication was not foreseeable is fortified by the fact that Damazo likewise failed to foresee it, and even more by the fact that the Registered Land Surveyor who prepared the subdivision plat apparently did not foresee it, because he made no provision for dedication on the plat.

Whether the obstacle to settlement in this case be described in terms of impossibility of performance, or frustration of purpose by unforeseeable governmental intrusion, or simply that the sellers should not be required to do more than they promised to do, we think the answer is properly found in what Judge Hammond (later Chief Judge) said for the Court of Appeals in Perlmutter v. Bacas, 219 Md. 406, 149 A. 2d 23 (1959), at 411:

“A court of equity will decree specific performance almost as a matter of course if the terms of the contract are clear and unobjectionable, and although such relief is addressed to the sound discretion of the court, that discretion is not arbitrary. Where the contract is clearly established, it is the duty of the court to enter the decree. Nevertheless, the discretion of the court will be exercised to deny the relief where to grant it would be to compel the defendant to perform a contract which he did not intend to make or which he would not have entered into had its true effect been understood.” (Citations omitted).

The chancellor correctly held that a requirement that the Neals dedicate a part of their retained land was not reasonably foreseeable. If Damazo felt that the City Planning Commission had no authority to require dedication, a question on which we express no opinion, he could have taken steps to require acceptance of the subdivision plat as submitted. No authority which would place that obligation on the Neals has been suggested to us. They had complied with their promise to have a survey (and, by implication, a subdivision plat) prepared, and presumably the Neals stood ready to convey in accordance with that plat. If they could not convey a good and merchantable title, as the parties stipulated they could hot do, then under the contract the purchaser had the right to rescind, without liability upon the seller for damages.

Appellant’s contention here that the chancellor should have decreed partial performance has no merit for two reasons. It was not raised below, and is not properly before us. Maryland Rule 1085. In addition, it is obvious that it would be impossible for the court to determine an abatement of the price. Excel Company, Inc. v. Freeman, 252 Md. 242, 250 A. 2d 103 (1969). A boundary line determined as appellant suggests would run through the existing building.

What appellant was really asking the court to do was to write a new contract for the parties, and then to compel the Neals to perform the new contract. The chancellor properly declined to do so.

Judgment affirmed.

Appellant to pay costs.


text:
    BENJAMIN L. BRAUN et ux. v. FORD MOTOR COMPANY et al.
    [No. 939,
    September Term, 1975.]

      Decided September 14, 1976.

    The cause was argued before Moylan, Powers and Moore, JJ.

      Sidney Kaplan, with whom was Arthur Guy Kaplan on the brief, for appellants.

      Robert E. Powell, with whom were M. King Hill, Jr., and Smith, Somerville & Case on the brief, for appellee Ford Motor Company.- Stanley B. Rohd, with whom were Whiteford, Taylor, Preston, Trimble & Johnston on the brief, for other appellee.
   Powers, J.,

delivered the opinion of the Court.

Benjamin L. Braun and Phyllis W. Braun, his wife, filed suit in August 1971 in the Superior Court of Baltimore City against Ford Motor Company and against Tower Ford, Inc., a Baltimore dealer, claiming damages for injuries to Mrs. Braun. They alleged that on 4 October 1968 they had purchased from Tower Ford an automobile manufactured by Ford Motor Company. They also alleged, and the evidence at the trial of the case showed, that on 18 April 1969 Mrs. Braun was driving alone in the automobile in a northerly direction on Walther Boulevard in Baltimore when she lost control, collided with a parked automobile, and sustained injuries. It was alleged, and it was contended at the trial, that Mrs. Braun lost control of the automobile because of a defective part which caused it to accelerate improperly.

In the first count of the declaration Mrs. Braun sued both defendants on the theory of breach of warranty. In the second count she claimed against both upon allegations of negligence. In Counts III and IV, Mr. Braun claimed damages for medical and other expenses attributable to his wife’s injuries, and for the loss of heY services, upon the same theories of breach of warranty and of negligence.

Demurrers filed by Ford Motor Company to the two breach of warranty counts were sustained and are not involved in this appeal.

Trial was held before Judge James A. Perrott and a jury from the 6th to the 14th of November, 1975. At the conclusion of all of the evidence at the trial, the court granted a motion of Ford Motor. Company for a directed verdict in its favor. The case went to the jury as to defendant Tower Ford, for a special verdict in the form of written findings upon issues of fact. Maryland Rule 560. The jury found by its answers that Tower Ford was not guilty of negligence; that Tower Ford breached a warranty to the plaintiffs and that such breach was a proximate cause of the accident; and that Phyllis W. Braun was guilty of contributory negligence which was a proximate cause of the accident. Because of its finding that Mrs. Braun was guilty of contributory negligence, the jury did not answer the issues relating to damages.

Each member of the jury was polled separately as to each of the three answers. Each agreed that his answers were as announced, and the Clerk hearkened them to their verdict as the court recorded it. The judge then asked: “Therefore Ladies and Gentlemen, you find for the Defendant, is that correct?” The transcript records that the jury answered, “Yes.” The docket entry shows each of the answers, and contains these further entries:

“Verdict in favor of Defendant, Tower Ford, Inc. for costs.”
“Judgment on Verdict Nisi.”

A motion timely filed by Mr. and Mrs. Braun for a new trial was heard on 6 June 1975 and was denied. On the same day judgment absolute was entered in favor of both defendants for costs. This appeal followed.

The contentions made by the appellants in this Court fall into two separate categories. In the first category, the one upon which appellants principally rely, they pose four questions. Three of them relate to alleged improper conduct by members of the jury in the jury room, and one relates to the qualifications of a juror. In the other category, appellants contend that the trial court erred in granting Ford Motor Company’s motion for a directed verdict.

Nowhere in their brief do appellants contend that the trial judge erred or abused his discretion in denying their motion for a new trial. In fact, in response to a motion filed in this Court relating to the adequacy of their record extract, they state:

“Appellees state the Appellant omitted the transcript of the oral ruling of the Lower Court with reference to their Motion for New Trial. The Appellant is not appealing from the denial of the Motion for a New Trial, but is instead appealing from improper juror conduct and for this reason omitted argument and decision with reference to the new trial which the Appellant believes is not an appealable issue.”

With the exception of a bare statement that the jury’s verdict was contrary to the evidence, appellants’ motion for new trial was, however, confined exclusively to allegations of improper conduct by members of the jury. .

Perhaps the relative functions of appellate courts and trial courts in our system of justice should be more clearly understood. In trial courts, it is the function of the judge to preside over the trial, to direct the course of the proceedings, and to make all rulings on legal questions raised before him at any stage of the case. In a jury trial, the fact finding function is, of course, committed exclusively to the jury, but it remains the duty of the judge to insure that as to all parties concerned the trial is fair, and conducted according to established procedure, to the end that equal justice is afforded to all. Recognizing that judges, being human, may err, the system provides a right of appeal, so that any party who feelá he has suffered an injustice flowing from an error by a trial judge, may have the question reconsidered by other judges.

We know of no principle or practice under which a judgment of a trial court may be reversed or modified on appeal except for prejudicial error committed by the trial judge. It is a misuse of language to label as error any act or failure to act by a party, an attorney, a witness, a juror, or by anyone else other than the judge. In other words, error in a trial court may be committed only by a judge, and only when he rules, or, in rare instances, fails to rule, on a question raised before him in the course of a trial, or in pre-trial or post-trial proceedings. Appellate courts look only to the. rulings made by a trial judge, or to his failure to act when action was required, to find reversible error.

This philosophy finds expression throughout the,appellate process and specifically in Maryland Rules 885 and 1085, which provide that the appellate courts will not ordinarily decide any point or question which does not plainly appear by the record to have been tried and decided by the lower court, and further by the judicially expressed rule that the appellate court will consider only contentions raised and argued in the briefs. See Fidelity & Deposit Co. v. Mattingly Lumber Co., 176 Md. 217, 4 A. 2d 447 (1939); Harmon v. State Roads Comm., 242 Md. 24, 217 A. 2d 513 (1966); Ricker v. Abrams, 263 Md. 509, 283 A. 2d 583 (1971).

One more comment is appropriate. An appeal may be taken, ordinarily, only from a final judgment of a trial court. Code, Courts Art. § 12-301. Orders, rulings, even verdicts, do no harm to a litigant unless they lead up to a final judgment which does him harm. So it is on appeal from the final judgment that appellant has the opportunity to show that the judgment resulted from error by the judge in the trial court.

Appellee Tower Ford, Inc. correctly, we believe, states the question presented as, “Did the court err in refusing to grant a new trial on the grounds of jury misconduct during deliberations?” Accordingly, and because we could not properly entertain the question any other way, we will consider the arguments of the appellants with respect to alleged improper conduct by the jury as a contention that the final judgment was wrong because the trial judge abused his discretion in denying their motion for a new trial.

We shall not analyze or discuss in detail the factual basis for the contention that there was improper conduct by the members of the jury. A brief statement will suffice. During the evening after the jury returned its verdict, counsel for appellants telephoned several of the jurors at their homes. He talked with five of the jurors about the case and its result. He reported to Judge Perrott the next morning that he had developed information which he felt showed misconduct. In the presence of counsel for appellants and of counsel for appellee Tower Ford, Judge Perrott questioned each of six jurors, separately, and gave counsel an opportunity to question them. The entire proceeding was transcribed.

The first point developed was that one of the jurors, who had worked in a doctor’s office, had in her pócketbook in the jury room a clipping of a newspaper article reporting a recent seminar discussion in Detroit on the subject of emotional stresses of women during menopause, and their symptoms. A few of the other jurors saw the article, or heard it discussed, while they were in the jury room.

Appellants argue that this was improper, because of the nature of the injuries claimed by Mrs. Braun. Except for relatively minor physical injuries for which Mrs. Braun received first aid and brief follow-up care, the injury claimed to have been caused by the accident was described as a severe personality disorder, or neurosis. The only medical witness was a psychiatrist, whom she saw twice; the first time on 18 March 1972, almost three years after the accident, and the second time in October 1974, shortly before the trial. The doctor said that he or his associates saw Mrs. Braun a total of seven times, and rendered psychiatric out-patient care. He said that they were not very successful.

The contention is that the similarity between the emotional symptoms of some women in menopause, and the symptoms described by Mrs. Braun, and by her psychiatrist and by her family, impaired the credibility of her evidence.

The second point brought out in the questioning of the jurors was that one of them was the widow of a judge of the District Court of Maryland. One juror said that she felt that the judge’s widow knew the rudiments of court procedure, and “would know whether we were doing right or wrong, not as far as the case was concerned, but our own conduct here * * * .” Another said that “one of the jurors said that they [sic] were quite up on the law.” He thought that the Brauns “should get some adjustment”, and said that he was told that they would. Another said she had the impression that there would be some compensation. Another said, “The way we voted I didn’t really know that we were voting for the defendant.”

A final contention related to misconduct was that the judge's widow had not disclosed that she was acquainted with a member of the same law firm of which trial counsel for Ford Motor Company was also a member. We have examined the eight page transcript of the voir dire examination of the jury panel. There was no question which called for the disclosure of such an acquaintanceship.

At the argument on the new trial motion Judge Perrott correctly pointed out the law relating to impeachment of verdicts, and observed that the issue was resolved when the jury found that Mrs. Braun was contributorily negligent, but went further than he was required to do, and considered the merits of the contentions. He said, “I therefore find totally no basis whatsoever, on the ground of prejudice or any other basis, to grant a new trial here.” He denied the motion.

We agree with Judge Perrott’s denial of the motion for a new trial, and hold that he did not abuse his discretion in that ruling. His consideration of the post-verdict statements by the jurors should not, however, be taken to indicate a change in the long prevailing rule against impeachment of verdicts.

An exhaustive discussion of the rule that a juror will not be heard to impeach his verdict is found in the opinion written by Chief Judge Sobeloff for the Court of Appeals in Williams v. State, 204 Md. 55, 102 A. 2d 714 (1954). The Court said, at 67-68:

“The law in Maryland is well settled that a juror cannot be heard to impeach his verdict, whether the jury conduct objected to be misbehavior or mistake. Browne v. Browne, 22 Md. 103, 113. The reasons for the rule have been stated by this Court in Brinsfield v. Howeth, 110 Md. 520, 530, in these impressive words: ‘Such evidence is forbidden by public policy, since it would disclose the secrets of the jury room and afford an opportunity for fraud and perjury. It would open such á door for tampering with weak and indiscreet men that it would render all verdicts insecure; and, therefore, the law has wisely guarded against all such testimony and has considered it unworthy of notice. It would be a most pernicious practice, and in its consequences dangerous to this much valued mode of trial, to permit a verdict, openly and solemnly declared in the Court, to be subverted by going behind it and inquiring into the secrets of the jury room.’
“Other risks sought to be averted, it has been said, are harassment of jurors by disgruntled losing parties; removal of an' element of finality from judicial decisions; and through allowing jurors to swear to alleged examples of reprehensible conduct, a decrease in public confidence in the judicial process. In an offer to prove facts nullifying the verdict on a motion for a new trial, the theory for exclusion of the jurors’ deliberations during retirement, their expressions, argumented, motives, and beliefs, may, according to Prof. Wigmore, embrace both the Privileged Communications Rule and the Parol Evidence Rule. 8 Wigmore, Evidence, Secs. 2346, 2348.”

The Court in Williams felt it desirable to quote at length from an expression by the Supreme Court of the United States of the public policy upon which the rule is based. We quote further from Williams, at 69-70:

“The latest Supreme Court decision dealing with the problem, McDonald v. Pless, 238 U. S. 264, seems, in language at least, to tend towards return to the stricter rule of exclusion formulated by Lord Mansfield. The defendant moved for a new trial on the ground that a verdict was reached by the jurors’ agreeing to a ‘quotient verdict.’ In upholding the exclusion of the jurors’ testimony, the Supreme Court expounded the reasons. ‘The rule/ Justice Lamar said, ‘is based upon controlling considerations of a public policy which in these cases chooses the lesser of two evils. When the affidavit of a juror, as to the misconduct of himself or the other members of the jury, is made the basis of a motion for a new trial the court must choose between redressing the injury of the private litigant and inflicting the public injury which would result if jurors were permitted to testify as to what had happened in the jury room. These two conflicting considerations are illustrated in the present case. If the facts were as stated in the affidavit, the jury adopted an arbitrary and unjust method in arriving at their verdict, and the defendant ought to have had relief, if the facts could have been proved by witnesses who were competent to testify in a proceeding to set aside the verdict. But let it once be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation — to the destruction of all frankness and freedom of discussion and conference.’ (at 267)”

In Williams the Court of Appeals summarized, at 70:

“We have been referred to no case, and careful independent research has disclosed none, where a verdict was set aside on appeal in any jurisdiction, because of fallacious, unfair or biased arguments advanced by jurors to one another in their deliberations.
“In Maryland there has been no deviation from the rule that what takes place in the jury-room ought to be, as it generally is, known only to the jurors themselves and that their testimony cannot in general be heard to impeach their verdict, whether the conduct objected to be misbehavior or mistake.”

And at 72 the Court said:

“It suffices to say that under the Maryland law the affidavit of a juror is inadmissible as evidence at the hearing on the motion for a new trial, and there is no sound basis for a distinction between civil and criminal cases in this regard.”

In Dixon v. State, 27 Md. App. 443, 340 A. 2d 396 (1975), a criminal case, Judge (now Chief Judge) Gilbert, writing for this Court, reviewed the authorities, including Williams v. State, supra, and held, with respect to a post-trial affidavit obtained from a juror, that the trial judge “did not abuse his discretion in refusing to consider the affidavit, nor in declining to hear testimony relative thereto.” At 449.

The Directed Verdict For Ford Motor Company

The appeal from the judgment in favor of Ford Motor Company merits little discussion. The contention was that the racing of the automobile was attributable to a defective dash pot, a part associated with the carburetor, designed to allow the throttle to return slowly to idle position, to prevent stalling on sudden stops. The only mechanical expert, a witness called by the Brauns, explained the function of a dash pot. He had worked on their automobile. He had attempted, unsuccessfully, to find the reason for its racing. He found no defect in the dash pot, but he said he replaced: it, and the engine did not race any more.

Mr. Shaw, the mechanical expert, was not asked whether he could arrive at any opinion about the dash pot from the fact that the engine did not race after he installed a different dash pot. He expressed none. In fact, he reaffirmed a previously expressed opinion that the dash pot “had nothing to do with this accident.”

Manifestly, a court should not permit “[jurors] to rush in where [experts] fear to tread.” As the Court of Appeals said in approving a directed verdict below in Woolley v. Uebelhor, 239 Md. 318, 211 A. 2d 302 (1965), at 325:

“There was no testimony rising above possibility or speculation that at the time Chrysler sent the car from its plant it knew or should have realized that it was dangerous or potentially dangerous inherently, and hence there was no basis on which a jury could have found it negligent.”

Judge Perrott correctly directed the verdict for Ford Motor Company.

Judgments affirmed.

Appellants to pay costs, eoccept as provided in our order of H January 1976.

      . An appeal before final judgment is permitted from certain interlocutory orders, in criminal as well as in civil cases. Some of them are set out in Code, Courts Art. § 12-303.

      . All concerned appear to have áccepted without question that contributory negligence by a plaintiff bars recovery against a defendant for breach of warranty, as it bars recovery for primary negligence. It appears that the Court of Appeals would so hold. Erdman v. Johnson Brothers, 260 Md. 190, 197-203, 271 A. 2d 744 (1970). The question was not raised here, and we have not considered it.


text:
    LEE OLDSMOBILE, INC. v. ADA N. KAIDEN et vir
    [No. 983,
    September Term 1975.]

      Decided September 14, 1976.

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

      Abel J. Merrill, with whom were Merrill & Lilly, P.A. on the brief, for appellant — cross-appellee.

      Thomas Waxier, Jr., and Lynne A. Battaglia, with whom were Stephen D. Langhoff and Semmes, Brown & Semmes on the brief, for appellees — cross-appellants.
   Powers, J.,

delivered the opinion of the Court.

Lee Oldsmobile, Inc., as a part of its business operation at Glen Burnie, deals in Rolls-Royce automobiles, under the trade name of Gladding Rolls-Royce, Inc. Having learned through a dealer in Brooklyn, New York, that Gladding had on order as a part of its allotted quota of 10 or 11 automobiles for 1973 a Rolls-Royce of the style and color which she wanted, Mrs. Ada Kaiden of Hewlett, New York, sent to Gladding in August 1973, through her dealer, a $5,000.00 deposit on the purchase of the automobile. Lee Oldsmobile confirmed the request by transmitting a regular order form, which Mrs. Kaiden signed and returned. The price was $29,500.00.

Some of the correspondence, as well as a notation on Mrs. Kaiden’s check, indicated that delivery was expected in November. The order form, however, specified no delivery date. Further, it contained a disclaimer of liability for failure to deliver or delay in delivery for a cause beyond the dealer’s control, or without fault or negligence of the dealer.

On 21 November 1973 Mrs. Kaiden notified Lee Oldsmobile by telephone that she had purchased another Rolls-Royce elsewhere. She told the salesman to cancel her order. On 29 November, Lee Oldsmobile notified Mrs. Kaiden that the car was ready for delivery. She declined to accept delivery, and demanded the return of her deposit. The dealer refused. On 17 January 1974 Lee Oldsmobile sold the Rolls-Royce to a purchaser in Atlanta, Georgia, for $26,495.00.

A few months later Mrs. Kaiden, joined by her husband, filed a suit at law against Lee Oldsmobile, Inc. in the Circuit Court for Anne Arundel County, claiming damages of $5,000.00, plus interest.

Trial was held before Judge E. Mackall Childs, without a jury, on 24 April 1975. The ultimate result of the trial was that after receiving memorandum arguments from both sides the court, on 24 June 1975, entered judgment nisi and on 26 June 1975 entered judgment absolute in favor of the plaintiffs against Lee Oldsmobile, Inc. for $2,924.93. Lee Oldsmobile filed a timely appeal from that judgment, and an appeal by the Kaidens followed.

In this Court the appellant raised and argued one question:

“Is a defendant entitled to present evidence in its behalf after moving for dismissal at the end of the plaintiffs case?”

Cross-appellants raised two questions in their brief, but at oral argument they yielded on the first, and argued the second. It was:

“Did the trial court err in deducting from Cross Appellants’ deposit certain incidental damages associated with the automobile’s resale when the resale was not made in a commercially reasonable manner and not in good faith?”

Lee Oldsmobile as cross-appellee, in a separate brief, responded to the brief of the cross-appellants.

Evidence presented at the trial included the testimony of Ada Kaiden and William Kaiden, excerpts from depositions of Anithalee Alex, Jr., salesman, and Ernest Swanson, president, of Lee Oldsmobile, and several exhibits, all offered by the plaintiffs, and one exhibit, offered by the defendant and received in evidence during the cross examination of Mrs. Kaiden.

Counsel for the Kaidens announced that the plaintiffs had concluded their case. Counsel for defendant said, “I move to dismiss under Rule 535.” From that point the case took a somewhat unconventional turn, Jbut one which, upon careful examination of the record, we consider eminently practical, and certainly not impermissible. Counsel for Lee Oldsmobile argued, briefly, that there was uncontradicted evidence of a written retail order for an automobile, with no specific delivery date, and that plaintiff cancelled early, and bought another car. Counsel then said:

“I needn’t belabor the point, I don’t believe. I would like, unless the Court requests me to do otherwise, to move on to the issue of damages. Does the Court wish me ... to say anything else on the issue of liability?”

It is entirely clear to us that this argument was directed to the question of who breached the contract — whether it was Lee Oldsmobile, by failure to deliver as allegedly promised, or Mrs. Kaiden, either by an anticipatory breach, or by refusal to accept delivery when delivery was offered. In the background of this argument, and basic to the entire case, was the established fact that Lee Oldsmobile had received $5,000.00 from Mrs. Kaiden, for which she received nothing in return. If Lee Oldsmobile breached the contract, she was entitled to her money back. If she breached the contract, she was liable for whatever was found to be the proper amount of damages. Those damages could constitute either a partial or a complete set-off against the amount which Mrs. Kaiden, in the absence of damages, would be entitled to recover.

The argument of Lee Oldsmobile then proceeded to the issue of damages. Counsel said:

“I think that in the plaintiffs’ case there is evidence to substantiate what appear as answer five to the plaintiffs’ interrogatories listing the actual damages sustained by the defendant as a result of the plaintiffs’ breach.”

He then proceeded to itemize the figures. As listed later in the Memorandum Opinion filed by Judge Childs, they amounted to $5,080.07. The total was made up as follows:

Difference between contract price of $29,500.00 and sale price of $26,495.00 $ 3,005.00
Commission to salesman on second sale 601.00
Commission to broker on second sale 1,000.00
Floor plan interest on cost of car, 52 days 334.72
Transportation expenses 139.35
Total $ 5,080.07

Counsel further argued, as an alternative claim of damages, that under the liquidated damage clause of the written contract, Lee Oldsmobile was entitled, upon breach by the purchaser, to retain as liquidated damages the entire cash deposit.

Counsel for the Kaidens argued the applicability of the liquidated damage clause, and the proper measure of damages under the law when the seller fails to give notice of intention to resell at private sale.

The trial judge interposed. He said:

“It’s clear to me that there was a breach by the plaintiffs. Now, the only thing that I’m concerned about is whether or not the liquidated damages clause contained in the contract can be applied by the Court. I would like some briefs on that matter, along with arithmetic as to what has been paid. * * * I rule that there was a breach of the contract by the plaintiffs and the only question to be decided or remaining to be decided is to what damages the plaintiff or the defendant is entitled under this breach pursuant to the matters in the Uniform Commercial Code and also the Laws of Maryland. Now, how much time do you want to submit briefs to me on that?”

Lee Oldsmobile’s attorney called to the court’s attention that damages could be as liquidated in an agreement, or the actual harm caused by the breach. He concluded:

“I believe that the Court has before it at this very moment enough evidence as to the actual harm caused by the breach to make a ruling without the necessity for briefs, but if it feels otherwise, I’ll be glad to prepare one.”

The court preferred written briefs. The time for filing them was agreed upon.

We hold that under the circumstances, as we have set them out in considerable detail, both sides submitted the whole case to the trial judge for a decision on the merits. It is true, as is argued in Lee Oldsmobile’s brief, that its counsel, during the course of his argument on the liquidated damage clause, commented that he had intended, and would if necessary, put on a witness to prove that the amount fixed was a reasonable forecast of the damages to be suffered. But our ruling on the applicability of the liquidated damage clause would not be affected by such evidence. As the trial closed with the agreement on the time for filing briefs, there was no suggestion by either party of a desire to offer further evidence. The suggestion was to the contrary.

It may be seen from our reference to the rulings made below, and from the issues raised in this appeal by the parties, that Lee Oldsmobile holds $5,000.00 of Mrs. Kaiden’s money; that Mrs. Kaiden breached her contract to buy a Rolls-Royce automobile; and that whatever damages flowed from the breach should reduce, pro tanto, Mrs. Kaiden’s right to get her money back. The question of law presented is how to determine the damages. The question of fact is their amount.

The order form signed by Mrs. Kaiden contained a clause providing that the dealer shall have the right, upon failure or refusal of the purchaser to accept delivery of the motor vehicle, to retain as liquidated damages any cash deposit made by the purchaser. The Uniform Commercial Code, as in force in Maryland, Code, Commercial Law Art., § 2-718 (1) provides:

“Damages for breach by either party may be liquidated in the agreement but only at an amount which is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty.”

In Traylor v. Grafton, 273 Md. 649, 332 A. 2d 651 (1975), the Court of Appeals reviewed at length numerous decisions dealing with liquidated damage clauses in contracts. Running through many of the cases is the rule that not only must the amount be a reasonable forecast of just compensation, but that actual damages from a breach must be incapable or very difficult of accurate estimation. As Judge O’Donnell said it for the Court in Traylor v. Grafton, at 662:

“If the sum agreed upon is a reasonable forecast of the just and fair compensation for the harm that would result by a breach of the contract and the resultant injury is difficult to estimate accurately or actual damages could not be easily ascertained, such a clause has been held enforceable as liquidated damages.” (Citations omitted).

See Siler v. Marshall, 251 Md. 342, 247 A. 2d 385 (1968), and Goldman v. Conn. Gen. Life Ins. Co., 251 Md. 575, 248 A. 2d 154 (1968).

We reject the application of the liquidated damage clause in the present case, as the trial judge did below, because it is clear that the actual damages are capable of accurate estimation. We do not say this from hindsight made possible because the actual figures claimed were in evidence. We say it because at the time the contract was made, it was clear that the nature of any damages which would result from a possible future breach was such that they would be easily ascertainable.

We set out earlier a tabulation of the items of damages, and the amount of each, which Lee Oldsmobile claimed should be set off against Mrs. Kaiden’s deposit. The itemized claims totaled $5,080.07. The trial judge did not allow the item of $3,005.00, the difference between the contract price of $29,500.00 and the resale price of $26,495.00. That is why Lee Oldsmobile complains. The court did allow the other items, which come to a total of $2,075.07, and set that amount off against the $5,000.00 deposit, resulting in the judgment for the Kaidens in the amount of $2,924.93. That is why the Kaidens complain.

Several sections of the Uniform Commercial Code govern our resolution of the remaining issues. Under § 2-703, where the buyer repudiates, the aggrieved seller may

“(d) Resell and recover damages as hereafter provided (§ 2-706);
(e) Recover damages for nonacceptance (§ 2-708) $ $ $ K

For Lee Oldsmobile to be entitled to claim as damages the difference between the resale price and the contract price, the sum of $3,005.00 in this case, the resale must meet the requirements of § 2-706. That section provides, in part:

“(1) Under the conditions stated in § 2-703 on seller’s remedies, the seller may resell the goods concerned or the undelivered balance thereof. Where the resale is made in good faith and in a commercially reasonable manner the seller may recover the difference between the resale price and the contract price together with any incidental damages allowed under the provisions of this title (§ 2-701), but less expenses saved in consequence of the buyer’s breach.
“(2) Except as otherwise provided in subsection (3) or unless otherwise agreed resale may be at public or private sale including sale by way of one or more contracts to sell or of identification to an existing contract of the seller. Sale may be as a unit or in parcels and at any time and place and on any terms but every aspect of the sale including the method, manner, time, place and terms must be commercially reasonable. The resale must be reasonably identified as referring to the broken contract, but it is not necessary that the goods be in existence or that any or all of them have been identified to the contract before the breach.
“(3) Where the resale is at private sale the seller must give the buyer reasonable notification of his intention to resell.”

The trial court rejected as an item of damage the difference between the resale price and the contract price, because it held that the resale made by Lee Oldsmobile was not made in a commercially reasonable manner, and that no notification was given of its intention to resell at private sale. We need not decide whether the resale was made in a commercially reasonable manner. It is enough that Lee Oldsmobile did not give the Kaidens reasonable notification of its intention to resell. Hawkland, in A Transactional Guide to the Uniform Commercial Code, at p. 275, says:

“If the seller fails to honor these restrictions, he cannot use the resale price as a factor in determining damages. In such a case, he must settle for damages, computed by measuring the difference between the market price and the contract price as provided in section 2-708.”

and further at 277:

“Except for the requirement of notice, section 2-706 imposes no special restrictions on the seller as to the manner of conducting a private resale. The seller must comply, though, with the general standards of good faith and commercial reasonableness. These standards undoubtedly will be employed rather meticulously by courts to prevent the private resale from becoming an instrument of abuse.”

Deprived of the benefits of § 2-706 by its failure to give notice of its intention to resell at private sale, Lee Oldsmobile is still entitled to the remedy set out in § 2-703 (e), to recover damages for nonacceptance, under § 2-708. That section provides, in part:

“(1) Subject to subsection (2) and to the provisions of this title with respect to proof of market price (§ 2-723), the measure of damages for nonacceptance or repudiation by the buyer is the difference between the market price at the time and place for tender and the unpaid contract price together with any incidental damages provided in this title (§ 2-710), but less expenses saved in consequence of the buyer’s breach.”

It will be seen that § 2-708 (1) authorizes two kinds of damage to an aggrieved seller. The first, the difference between the market price at the time and place for tender and the contract price was not claimed in this case, perhaps because Lee Oldsmobile’s salesman testified in his deposition that the market price of a Rolls-Royce was the sticker price. For the incidental damages authorized in § 2-708 (1), one turns to § 2-710, which says:

“Incidental damages to an aggrieved seller include any commercially reasonable charges, expenses or commissions incurred in stopping delivery, in the transportation, care and custody of goods after the buyer’s breach, in connection with return or resale of the goods or otherwise resulting from the breach.”

Every item of damage claimed by Lee Oldsmobile which was allowable under §§ 2-708 and 2-710 was in fact allowed by the trial court as a set-off, to reduce the judgment entered against it. The contention of the Kaidens in their cross appeal that the incidental damages should not have been allowed, because the resale of the automobile was not made in a commercially reasonable manner, cannot prevail. Those incidental damages are allowable to an aggrieved seller under § 2-710, whether he gets there through § 2-706 or through § 2-708. It is only § 2-706 which imposes the condition of a commercially reasonable resale. The remedies under § 2-708 are not related to a resale. Under § 2-710, it is only the incidental damages, not an antecedent resale, which must be commercially reasonable. There is no contention here that the items of damage allowed were not commercially reasonable.

Judgment, affirmed.

Costs to be paid one half by appellant and cross appellee, and one half by appellees and cross appellants.

      . The Kaidens abandoned a contention that the trial judge erred in declining to permit parol testimony to vary the terms of the written purchase order, by showing that delivery was orally promised for November. Since delivery was in fact tendered in November, the contention could have no significance in any event.

      . This item of $139.35 was referred to as being listed in answers to interrogatories, but not placed in evidence. Whether inadvertently or not, Judge Childs allowed it as an expense in calculating the amount of the judgment. The Kaidens do not attack this specific item on that ground.

      . The clerk entered on the docket:
      “At end of the Plaintiffs’ case the Defendant moved for a dismissal. Motion granted. Court holds the matter of damages sustained by the Defendant under advisement.”
      This anomalous entry is patently in error. The transcript shows no ruling on the motion to dismiss, unless the ruling that Mrs. Kaiden breached the contract be construed as a partial ruling. Maryland Rule 535 does not provide for partial rulings. Obviously, if the plaintiffs’ case had been dismissed, there would be nothing to hold under advisement.

      . Formerly Article 95B, prior to 1 July 1975. For convenience we shall refer to the current Code.

      . That the total of the itemized claims, each easily and precisely ascertainable, was almost identical with the amount claimed as liquidated damages, is either a mere coincidence or a demonstration that there would be no difficulty in ascertaining damages in the event of a breach, which robs the liquidated damage clause of a necessary premise.

      . This measure of damage appears to be authorized irrespective of whether the aggrieved seller actually covered himself by a resale, and irrespective, as well, of whether a resale, if made, brought more or less than market price.