author: Lowe, J.,

text:
    LOUIS COMI v. STATE OF MARYLAND
    [No. 898,
    September Term, 1974.]

      Decided June 3, 1975.

      The cause was argued before Orth, C. J., and Gilbert and Lowe, JJ.

      Alexander R. Martick, with whom was Isaac S. Kershner on the brief, for appellant.

      David B. Allen, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Allen, State’s Attorney for Baltimore City, and Stephen Tully, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Louis Comi was tried before a jury in the Criminal Court of Baltimore on indictments and informations charging fourteen counts of receiving stolen goods. He was convicted on all but one count, upon which the jury returned a not guilty verdict. Judge Robert Karwacki imposed a ten year sentence on each of the thirteen counts of which Mr. Comi was found guilty, but permitted each to be served concurrently, thus permitting appellant to serve 130 years while immured but for ten.

Appellant assigns error in the denial of his motion for separate trials, the denial of a mistrial following an “inflammatory” suggestion in opening statement, the failure to suppress evidence, the admission of photographs, the failure to grant his motion to acquit and sentencing. In short he claims that the State’s mistakes began before the trial and ended after conviction.

Factually the most difficult complaint relates to the seizure of what the prosecutor later regretted having termed “the largest cache of stolen goods in Baltimore City.” The evidence was seized from two buildings, 4016 and 4020 Lombard Street. Louis Comi admittedly resided at least part time in 4016, and while his son owned 4020, the evidence provides no further link between appellant and 4020.

The evidence was seized on the strength of two search warrants. On February 15, 1973 warrant #1 was issued authorizing a search of 4016 Lombard. Upon that search, the officers discovered that 4016 and 4020 were two separate buildings. On February 16, 1973, the police applied for and received a warrant to search 4020 which authorized as well their return to 4016. Thus warrant #1 is as the horseshoe nail for which a kingdom was lost, since warrant #2 was largely founded upon information obtained during the execution of warrant #1. It follows that unless the information in warrant #1 amounted to probable cause and complied with the requirements of Aguilar v. Texas, 378 U. S. 108 both warrants must fall. On the other side of the coin however, the validity of #1 will not serve as a guarantee of the validity of #2.

Search Warrant Number One

The affiant is a police officer eminently qualified by service in criminal investigation and extensive experience in search and seizure. He recites information received from an unidentified confidential informant who had provided the affiant “with accurate information in the past three months that had led to the recovery of approximately $300.00 worth of stolen property and the arrest of three people for burglary.” The three had not as yet been tried. Furthermore, the police officer knew personally that his informant had given truthful and accurate information to other officers though it had not as yet culminated in an arrest.

We note from the hearing transcript that appellant’s first counsel conceded that the informant was “credible or reliable.” Aguilar v. Texas, 378 U. S. 108, 114. Though that concession would seem to preclude appellant’s attack on credibility here, we find in any case that the affidavit fit within the “pattern . .. derived from the cases cited ...” in State v. Kraft, 269 Md. 583, 614-615 and adequately established credibility.

The Court of Appeals pointed out in Kraft, supra, that there was no requirement to assert convictions from the arrests reasoning that it could be assumed that a prudent officer would not mislead the court by swearing to an arrest that had resulted in acquittal. Further we can equate affiant’s personal knowledge of the truthful and accurate information given by the informant to other officers, with a Kraft example of one who was described as having on “repeated occasions in the past furnished reliable and credible information,” citing United States v. Rich, 407 F.2d 934. The affidavit far exceeded that of State v. Perry, 59 N. J. 383, cited by Kraft with approval, 269 Md. at 611.

If further verification of the informant’s credibility were required, it was found when the affiant independently corroborated certain of the information given him by the informant. Spinelli v. United States, 393 U. S. 410, 415; Stanley v. State, 19 Md. App. 507, 529.

The adequacy of the informant’s “basis of knowledge,” the second Aguilar prong, is not as clear cut as was his “credibility.” The informant related in great detail that at about 11:00 p.m. on February 14, 1973 Larry Boardwine, whom he described, met with Gene Comi, from whom he received $100 in exchange for several pieces of property. The affidavit says “they” then went to 4016 E. Lombard Street. We know “they” included Boardwine but cannot determine whether it also included the informant. In any event, the goods were delivered to Louis Comi at the above address.

The informant next named four persons, whom he described, as responsible for the theft of the described items of property from a private residence in Howard County the same day. The informant concluded by saying that one of the burglary participants, Gary Jacob Huster, “related to him/her” that the burglars had stolen stereo speakers from the house, but decided to leave the stereo components behind because they “got frightened.” He further related that they had proceeded to Larry Boardwine’s house immediately after the burglary. Although this latter information is inartfully expressed, we infer the informant’s suggestion that the burglary was within a few hours of the Boardwine sale of goods to Gene Comi at 11:00 p.m., which, in February, would have been after dark.

The affiant contacted a State Trooper in Howard County who told him that there had been a residential burglary on the day in question, during which items precisely matching five of the six items allegedly sold to Comi were taken. Burned paper matches were found, indicating that the burglary was at night, and although two stereo speakers were stolen, the components were not. The complaint report was attached to and incorporated into the affidavit.

The “basis of knowledge” prong of Aguilar, 378 U. S. at 113, serves to insure that the information included originated as personal knowledge. At no point in this affidavit are we told that the informant “saw” or “heard” or participated in the activities described, the kind of assurance Aguilar prescribes. Spinelli, however, in its explication of the Aguilar requirements, permitted the “self-verifying detail” alternative for establishing an informant’s basis of knowledge. 393 U. S. at 416-417. In the description of the delivery of goods to Gene and Louis Comi the informant provides such detail — including brand names, colors, the name of the cafe, time, the amount and form of payment — that we may safely conclude that he spoke from personal knowledge.

The remainder of his story, however, suggests that he was told about the burglary by one of its participants, Gary Jacob Huster. We have held that a chain of informants may serve as the basis of a valid search warrant, but that each informant in the chain must meet the Aguilar-Spinelli requirements. Thompson v. State, 16 Md. App. 560.

In assessing the credibility of the secondary informant, we note first that he was named in the affidavit:

“The confidential source further stated that Gary Jacob Huster related to him/her that. . ..”

As we have previously observed:

“.. . in dealing with a named source, the very naming of the source and the relationship of the source to the observed information may go a long way (or even be sufficient unto itself) under the facts of a particular case, to establish the credibility of that source or the reliability of his information.” Dawson v. State, 11 Md. App. 694, 699.

In addition to the source being named, his information was, to some extent, buttressed by the affiant’s independent verification of the Howard County burglary, particularly the revelations concerning burned matches and stereo components. Watson v. State, 18 Md. App. 184, 193.

Even if “credibility” were not adequately established by the foregoing (we think it is), the underlying circumstances of his recitation suggest that his information was reliable. Credibility and reliability are alternative methods of establishing the veracity prong of Aguilar, Thompson v. State, 16 Md. App. 560, 562-563. The secondary source here was not a paid police informer, nor promised any sort of inducement to speak. In fact, he had no way of knowing his information would eventually arrive at police headquarters. He was merely relating an occurrence to a friend. We conclude that Huster had no motive to lie and his information was conveyed in circumstances consistent with its reliability.

The secondary informant’s “basis of knowledge” was obviously established by his admitted participation in the burglary. Aguilar, 378 U. S. at 113.

The requisite tests having been met, the combination of direct and hearsay information in this affidavit was properly relied upon in the determination of probable cause. Dawson v. State, 11 Md. App. 694, 697. We hold that those facts were sufficient to establish probable cause in that they were:

“. . . such as to justify a prudent and cautious man in believing that the offense has been committed.” Dean v. State, 205 Md. 274, 284.

Execution

The warrant was executed and the search revealed a vertible warehouse of coins, jewelry, cameras and appliances in the cellar of 4016. To the chagrin of the police they were unable to locate the items whose seizure the warrant commanded, all of which had been stolen from the Howard County home. In plain view, however, they saw and seized Hash pipes and narcotic syringes, arguably if not clearly contraband, and seizable as such. Hughes v. State, 14 Md. App. 497, 511. They also wrote down the serial number of one of several television sets, and seized a rifle which was not among the items listed in the search warrant. Without deciding whether at that point in the investigation the sheer quantity of goods observed, coupled with other police knowledge of the occupants’ activities provided probable cause to believe the rifle stolen, Anglin v. State, 1 Md. App. 85, we will assume the rifle was illegally seized as outside the scope of the warrant, Hughes, 14 Md. App. at 510. Its suppression does not alter our position on the validity of the second warrant.

Search Warrant Number Two

Appellant argues primarily that the second search warrant is bad either because it relies on an invalid first warrant, or because it relies on illegal seizures during the execution of the first warrant. The first alternative is nullified by our foregoing conclusion as to search warrant #1.

The second warrant affidavit incorporated the first by reference, and requested authority to search 4020 E. Lombard Street for the same items the police had unsuccessful sought at 4016. This was because the officers did not discover that the pool room at 4016 E. Lombard Street was really two separate buildings, 4016 and 4020, until they executed the first warrant.

In addition, the second warrant recited that the rifle and television serial number had been seized, that the affiant had discovered that those items had been stolen in a Montgomery County burglary (the complaint report was attached), and described the tremendous volume of items the officers had observed during their first visit to 4016. The affiant then listed all of the items taken in the aforementioned Montgomery County burglary and sought authority to seize them from 4016.

We need not consider the warrant affidavit as it relates to 4020 since we hereafter decide that 4020 was inadequately linked to appellant. As to 4016, however, the affidavit was clearly adequate. The television set serial number had been in plain view at 4016 during the officer’s first visit, and had been seen by virtue of a prior valid intrusion, viz. the first warrant. Its seizure was permissible under the plain view doctrine, Coolidge v. New Hampshire, 403 U. S. 443; Brown v. State, 15 Md. App. 584. The attachment of the Montgomery County police report listing the television as stolen consummated the probable cause equation. This is true notwithstanding our assumed illegality of the rifle seizure. The information regarding the television was an adequate basis, independent of and untainted by the rifle seizure, to support the second warrant:

“If an affidavit for a search and seizure warrant contains improper information which should not be considered by the court [in issuing the warrant] the court is nonetheless justified in issuing the warrant if additionally the affidavit contains within it sufficient proper information to show the existence of probable cause.” Carter v. State, #51, Sept. Term, 1974, (Court of Appeals, filed April 11,1975).

Execution of Number Two

When the officers arrived at 4016 E. Lombard Street the second time they seized items they knew to be fruits of the Montgomery County burglary as well as a tremendous number of other items including jewelry, stereos, television sets, cameras, silver, fur coats, coins, guns, etc. Appellant argues that all but the items specifically described in the warrant should be suppressed as outside the scope of the warrant’s mandate.

In analyzing the validity of the seizures we must keep in mind that the officers knew the items from the Montgomery County complaint report were in fact stolen. Furthermore, many of the other items they observed were engraved or monogrammed with names and initials of persons with no ostensible relation to the Comi family. Perhaps most unexplainable was the presence of literally truckloads of goods in a poolroom. On this latter point, in a case strikingly similar to the case at bar, Anglin, supra, 1 Md. App. 85, we held that the officers do not have to “know” the goods are stolen to seize them, rather need only have “reasonable cause” to believe they are. Judge Orth’s words in Anglin, 1 Md. App. at 91 are most appropriate here:

“With this knowledge and confronted with the great array of merchandise, literally enough to stock a store, we do not feel that justice requires the police officers to close their minds and eyes. We think there was more than reasonable cause for them to believe the property was stolen.”

The seizures under warrant number two were valid.

Motion for Judgment of Acquittal

Appellant contends that because there was no evidence of dominion or control of the 4020 premises by Louis Comi no inference of possession or receipt of stolen goods found there may be ascribed to him. As previously indicated, with this contention we find no fault. He projects his reasoning, however, to a point beyond which we are willing to go. He reasons that:

“the goods seized from the premises of 4020 Lombard Street were not distinguished from the goods seized from the premises of 4016-18 East Lombard Street, so that a reasonable doubt can be said to exist with respect to the particular goods and properties that were seized from the respective locations; and accordingly, the confusion of properties, the locations from which they were seized precludes a verdict of Guilty on any of the property introduced into evidence.”

The State had prosecuted appellant on 14 different counts, each of which asserted that Louis Comi had received goods stolen from an identified household. The State then collated the stolen goods into 14 separate groups corresponding to the persons from whom taken as indicated in the 14 counts. A schematic drawing was prepared and as the seizing officers testified they were asked the location where each group of goods had been found. As the witness identified the locations of the seizures, the name of the person(s) from whom the goods had been stolen was written on the drawing. Our own review included an item by item check, the result of which shows that only one count was based solely on a seizure from 4020 — a silver bowl which had been stolen from a Mr. Rosenstein — and it was upon that charging document only, Criminal Information No. 27400751, that the jury returned a not guilty verdict. On every other charge some of the stolen goods had been found in 4016. Thus, though we agree that 4020 was inadequately linked to Louis Comi and his motion for judgment of acquittal should have been granted as to Criminal Information No. 27400751, the error of the court was corrected by the verdict of the jury. Appellant was in no way harmed. Appellant’s bald allegation “that the goods seized from the premises of 4020 East Lombard Street were not distinguished from the goods seized from the premises of 4016-18 East Lombard Street . ..” is simply inaccurate. If appellant did not understand it, the record reflects it. If the judge overlooked it, the jury obviously did not.

Separate Trials and Thirteen Sentences

We dismiss peremptorily appellant’s contention without citation that the court erred in imposing thirteen separate sentences. Being within the statutory máximums they are not subject to review on appeal. Powell v. State, 1 Md. App. 495, 499. Because the charging documents were all amended to recite the same date for each offense detracts not a whit from the evidence produced from the victims of the thefts that the goods were stolen on different dates. The jury could properly infer from that evidence that the goods were received on different dates so long as the thefts preceded the date appellant was charged with receiving the goods.

The reasoning to support appellant’s contention that the denial of his motion for separate trials of the offenses charged, fails to comport with the reasoning behind his complaint of separate sentences; however, we are given no more difficulty in answering the one than the other.

Whether or not to order separate trials is a matter within the sound discretion of the trial court, Baumgartner v. State, 21 Md. App. 251, 253; Jennings v. State, 8 Md. App. 312, 315. That much is acknowledged by appellant. He then fails to point to anything indicating an abuse of that discretion, save an allegation of confusion by the amount of stolen goods and the number of people from whom it was stolen. The perceptiveness of the jurors in parcelling out from whence the items were seized in each case, as we have indicated above, belies the argument of their confusion. The trial judge’s discretion was not abused. Indeed, had fourteen separate trials been granted possibly before fourteen separate sentencing judges, the likelihood of concurrent sentences might well have been diminished to appellant’s misfortune.

Admission of Photographs

Appellant asks:

“Did the Court err in admitting photographs of alleged stolen property which photographs contained pictures of some goods which were seized from the premises that were not under the control of the accused and without any legal sufficient evidence to establish that the accused had ever exercised any dominion, control or possession over such stolen goods? ”

Appellant’s entire argument is again without authority and again assigns prejudice without basis:

“Several of the photographs admitted into evidence over the objection of the Appellant contained pictures of goods that were identified as stolen, which goods were seized from the premises of 4020 East Lombard Street and 431 Ellwood Avenue. The evidence clearly shows that the accused exercised no dominion or control over either of the premises at 4020 East Lombard Street or 431 Ellwood Avenue, and there was no evidence to demonstrate that he ever possessed or controlled any of the goods seized from said premises. It is the contention of the Appellant that the admission of photographs containing pictures of such goods constituted prejudicial error which warrants a reversal of the verdict in this case.”

Our response is as brief as is appellant’s argument. We are able to perceive no prejudice. To the contrary, we once more note that the verdict showed a careful and discriminating analysis by the jury indicating the very opposite of what appellant implies.

The Largest Cache of Stolen Goods in Baltimore City

We are less comfortable with the possible prejudice that might have arisen from the remark of the State’s Attorney in opening statement that the case before the court involved “the largest cache of stolen goods in Baltimore City.” Equal concern was expressed by the trial court upon timely objection by appellant, indicating that it would grant a mistrial if it decided the statement was “not a genuine issue.” The judge then deferred ruling on the issue. The first day of trial ended with the conclusion of the State’s opening statement.

The following day after court convened but before appellant offered his opening statement the court addressed the jury:

“Members of the jury, in the opening statement made to you yesterday by the Assistant State’s Attorney, Mr. Tully, an improper remark was made to you with regard to something along the line that this was the largest cache of stolen goods in the history of the City of Baltimore. And you will remember there was an objection to that statement. You will also remember from your orientation charge and from your service as jurors in this courthouse during this term, that the proper function of an opening statement is to prove to you, not prove to you, but is to outline for you what will be proven as part of each party’s case. The statement I’ve just alluded to is not and could not strictly be proven to you in this case, because it’s improper and irrelevant evidence. Therefore, any mention of such an item in the opening statement was improper. You are directed to disregard that statement, and I am going to admonish the State’s Attorney that there will be no further remarks along that line. And furthermore, that, as he understands from our discussion in chambers, that this was improper in his opening statement. Mr. Tully.”

Whereupon being recognized by the court, the State’s Attorney profusely apologized to court and jury:

“Yes, Your Honor. Your Honor, I would like to point out to the Court and to the jury it was inadvertance and I realize what the Judge had referred me to the law last night that it was improper, and I so apologize to the jury for bringing it up, and apologize to this Court and members of this Court for bringing it up; pointing out again it was inadvertent, I did not realize that I was stepping beyond the ramifications of this trial.”

The court then denied the motion for a mistrial:

“Gentlemen, in the course of the opening statement, a remark that I’ve just alluded to in front of the jury was made and a motion for mistrial was made by the defense.”

The applicable law was succinctly stated by Judge O’Donnell in Wilhelm v. State, 272 Md. 404, 411-412:

“The primary purpose or office of an opening statement in a criminal prosecution is to apprise with reasonable succinctness the trier of facts of the questions involved and what the State or the defense expects to prove so as to prepare the trier of facts for the evidence to be adduced. While the prosecutor should be allowed a reasonable latitude in his opening statement he should be confined to statements based on facts that can be proved and his opening statement should not include reference to facts which are plainly inadmissible and which he cannot or will not be permitted to prove, or which he in good faith does not expect to prove. An opening statement by counsel is not evidence and generally has no binding force or effect. To secure a reversal based on an opening statement the accused is usually required to establish bad faith on the part of the prosecutor in the statement of what the prosecutor expects to prove or establish substantial prejudice resulting therefrom. Clarke v. State, 238 Md. 11, 19-20, 207 A. 2d 456, 460 (1965); Ott v. State, 11 Md. App. 259, 266, 273 A. 2d 630, 634, cert. denied, 262 Md. 748 (1971).”

Had the State described the size of the cache in comparative rather than superlative degree there would not even have been need for sustaining an objection in light of the facts proved. In consideration of the thorough and adequate instruction given by the judge, the State’s abject public admission of error, and the humiliation emanating from a public apology, we can hardly say that the use of the superlative was prejudice.

In a 1907 case involving a remarkably similar situation the Court of Appeals eloquently reached the same conclusion we have:

“This remark was objected to as improper, and the Court in the presence of the jury told the State’s Attorney that it was not proper for him to make that statement. The State’s officer then apologized for making it and promptly withdrew the objectionable statement. It is not to be presumed that a body of competent and honest men, sworn to try the issue of the traverse upon the evidence produced before them, would permit the statement to influence their finding, after the Court had pronounced it to be improper, and after it had been withdrawn from their consideration.” Esterline v. State, 105 Md. 629, 637.

In the absence of any evidence of “bad faith,” the remark was clearly not ground for mistrial.

Judgments affirmed.

Costs to be paid by appellant.

      . We treat the issue arising from the prosecutor’s opening statement infra.

      . We shall depict as 4016 Lombard Street what was originally two row-type buildings known as 4016 and 4018. They were joined by reconstruction and made one large building operating in part as a pool parlor, with a single common entrance. 4020 was immediately appurtenant to, but had no entrance from, 4016. To go from one to the other it was necessary to leave one building and enter the other by an outside door.

      . Some of the photographs admitted were taken at the police station where the goods had been sorted into piles relating to the place from whence they had been stolen. Appellant’s complaint is that by so doing the goods taken from the various locations were intermingled.


source: Caselaw Access Project

license: Public Domain

text:
    OLIVER F. PERKINS v. STATE OF MARYLAND
    [No. 901,
    September Term, 1974.]

      Decided June 3, 1975.

      The cause was argued before Orth, C. J., and Gilbert and Lowe, JJ.

      R. Roland Brockmeyer, Assigned Public Defender, for appellant.

      James I. Keane, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and J. Owen Wise, State’s Attorney for Caroline County, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Oliver F. Perkins was convicted by a jury of the Caroline County Circuit Court for unlawful distribution of marijuana, conspiracy to violate the controlled dangerous substance laws and of maintaining a common nuisance. The indictment contained nine counts; five of distributing marijuana, one of conspiracy and three charging common nuisance.

Appellant was arrested by warrant prior to the issuance of any indictment or information. A preliminary hearing thereafter resulted in a finding that there was insufficient evidence of probable cause to justify the detention of the accused on all but two counts, viz. 4 and 5 charging distribution to Trp. Davis and conspiracy with Kermit Rogers. Despite the outcome of the preliminary hearing, the State three weeks later charged appellant by means of criminal information, Md. Rule 708 with the same series of crimes for which he was originally arrested. Appellant evidently preferred the result of the preliminary hearing and, when arraigned, pled only to Counts 4 and 5.

Two months later an indictment was handed down by the grand jury charging appellant with all nine counts, for each of which the petit jury found him guilty. The sentence imposed was three years on each of counts 2 and 3 to run consecutively and “fine of $500.00 on each count; sentence suspended generally under remaining counts.” It is thus obvious why appellant strenuously contends that:

“I
Having chosen to charge the accused by criminal information and preliminary hearing, . . . the State [was] prevented by collateral estoppel from thereafter obtaining a grand jury indictment.”

The record does not reflect that appellant requested a preliminary hearing; however, he contends that having been granted one, the State is estopped from proceeding against him on any matters therein dismissed. Presumably, his reasons are grounded upon both double jeopardy which he raised by reference to Benton v. Maryland, 395 U. S. 784 and collateral estoppel by reliance upon Ashe v. Swenson, 397 U. S. 436, and Waller v. Florida, 397 U. S. 387. We find these last two authorities inapposite, however, since each deals with collateral estoppel to litigate an issue previously determined by a valid and final judgment between the same parties. A preliminary hearing is obviously not a final judgment in any sense.

The double jeopardy argument, while equally unpersuasive, is not so readily dismissed, although both the Supreme Court and the Maryland Court of Appeals have decided that jeopardy does not attach to the findings of a district court at the preliminary hearing level. United States v. Serfass, 420 U. S. 377, 43 LW 4315; Wampler v. Warden, 231 Md. 639. Double jeopardy applies only after jeopardy has attached, Cf. Blondes v. State, 273 Md. 435, and that occurs when the defendant is “put to trial before the trier of the facts. . . United States v. Jorn, 400 U. S. 470. In United States ex rel. Rutz v. Levy, 268 U. S. 390, 393, the Supreme Court said:

“Under state law it has uniformly been held that the discharge of an accused person upon a preliminary examination for want of probable cause constitutes no bar to a subsequent preliminary examination before another magistrate. Such an examination is not a trial in any sense and does not operate to put the defendant in jeopardy.”

In Wampler, 231 Md. at 648 the Court of Appeals wrote:

“Maryland practice has always, so far as we are informed, been in accord with the [Rutz] rule above stated; indeed this appears to be the first time that the rule has ever been challenged in this Court. The absence of any prior decision of this Court on the point indicates the long and general acceptance of the rule, for there have been many instances in which indictment and prosecution have followed the discharge of an accused person following a preliminary hearing before a magistrate. We adhere to the general and well settled rule.”

1 Wharton, Criminal Law and Procedure, § 137 is in accord:

“No jeopardy arises when the first proceeding is merely a preliminary investigation which is dismissed in favor of the accused, who is then later indicted in spite of such earlier disposition of the matter.”

When charging a prospective defendant with a felony, other than a felony within the jurisdiction of the District Court, the State may proceed by way of criminal information, subject to the defendant’s right to a preliminary hearing, Art. 27, § 592 (a). When an accused waives his preliminary hearing right by not requesting it within the prescribed 10 day period, Art. 27, § 592 (b) (1), or the preliminary hearing results in a finding of probable cause, the Prosecutor’s information consummates the charging process. Md: Rule 708.

In the case at bar, the appellant’s preliminary hearing resulted in the opposite finding: no probable cause and the dismissal of most charges. At that point the State was obviously without authority to charge a Circuit Court felony by way of information. Had the State left it at that, appellant might have had an argument. Apparently, however, the State realized its error and proceeded to obtain an indictment. Since the information coupled with a probable cause hearing is simply an alternative to grand jury indictment which the prosecutor may or may not choose to utilize, a deficiency in the information has no bearing on the validity of a subsequent indictment.

In attempting to expedite criminal trials while preserving an accused’s right to grand jury indictment — a process not acclaimed for expedition — the General Assembly by statute, Art. 27, § 592, and the Court of Appeals by Rules 708 and 709, enlarged the State’s prerogative of charging by information, but tempered that authority with the prerequisite of a finding of probable cause at a preliminary hearing,* or a waiver of that hearing.

Prior to the expansion of the State’s information authority, the primary purpose of the preliminary hearing was to protect the accused from a unilateral decision to arrest with the accompanying likelihood of incarceration while awaiting grand jury action, or as the Court of Appeals phrased it, of:

“insuring him against being committed for action by the grand jury on charges which are groundless.” [Emphasis added], Williams v. State, 214 Md. 143, 154.

The liberal provisions which now exist for release of an accused on his own recognizance prior to trial, Art. 27, § 638A while not preventing the arrest, frequently prevent the commitment.

Conspiracy

Appellant questions the sufficiency of the evidence to prove that a conspiracy existed between appellant and one Kermit Rogers. The difficulty arises from the exclusion of testimony of conversations with, and statements by, appellant’s alleged co-conspirator. The exclusions left us with but inferential evidence of circumstances from which a jury could determine the existence of a conspiracy. Jones v. State, 8 Md. App. 370, 377-378. The State’s case included two segments of testimony from which an inference of conspiracy could arise.

One undercover officer testified that he asked the alleged co-conspirator Rogers if he had any “pot.” An objection to the balance of the conversation was sustained; however, the witness was permitted to say that:

“A conversation took place between the occupant of the vehicle that I was in [Rogers] and Mr. Perkins, concerning purchase of a quantity of marijuana.”

There followed an evidentiary colloquy among court and counsel which we omit. The witness then continued:

“A. After the conversation, Perkins went to the trunk of his — at the rear of his 1970 Pontiac and opened the trunk and removed a clear plastic bag, containing what appeared to be — appeared to me to be marijuana. And he got it from the trunk, he brought it over to the car and he handed it to me. And I was examining the contents of the bag and after looking at the substance, and I was pretty sure in my mi-nd it was, in fact, marijuana, I gave the Defendant, Mr. Perkins, $20.00 bill in US currency. And this took place approximately 7:50 P.M. And a short time after this transaction took place, contact with the Defendant was terminated.
Q. And how long were you and Mr. Perkins in each other’s sight or in contact with each other on this date?
A. It was approximately five or ten minutes.
Q. Was there any particular reason you only paid him $20.00 on this occasion whereas you paid him forty the preceding week?
A. Well, because I only purchased one ounce of marijuana this time and the previous time, it was two.
Q. How far from your vantage point was the vehicle from which he obtained this substance?
A. He parked right adjacent to the vehicle that I was in. I was seated in the driver’s side and he parked right next to the — to the driver’s side.
The Court: Did he recognize you?
A. No sir, I don’t believe he did. At the time.
The Court: This having been a customer on a prior occasion.
A. Well, he — he knew other people that were in the car.
The Court: Knew other people in your car?
A. Yes sir.
The Court: Well, who was in the car with you?
A. Kermit Rogers was in the car and another person by the name of Anthony.
The Court: MMMm — He came over and spoke to them?
A. Yes sir, he did.
The Court: What did he say?
A. Kermit —
The Court: No, what did Perkins say to them?
A. Well, he was asked if he had any marijuana and the Defendant said, Yeh, how many do you want? And I told him just one. Meaning one ounce of marijuana.
The Court: What did he say to that?
A. He then — he then — I can’t remember what he said then, but he went to his — then he went to the rear of the Pontiac and opened the trunk and obtained the ounce of marijuana and brought it back over to me and at that time, I gave him the $20.00.”

The second instance involved the testimony of another undercover officer:

“A. On November 20th, I returned to Denton, Caroline County and was at the area known as Truxton’s Bar, when I met with another subject, named Kermit — George Kermit Rogers. Mr. Rogers advised me that he did not have —
Mr. Hairston: Objection to what Mr. Rogers advised him.
The Court: You can’t testify to what Rogers said.
A. Yes sir.
The Court: At this point, anyway.
Q. After talking to Mr. Rogers what did you do?
A. Drove to an address on High Street and Third here in Denton, Caroline County. I parked my vehicle next to a 1970 Pontiac that was the same vehicle that I had seen Mr. Perkins operate on November the 13th. At this time, Mr. Rogers got out of my vehicle, went into the residence — a residence where the Pontiac was parked. Mr. Rogers and Mr. Perkins walked out of the residence. Mr. Perkins went to the rear of the Pontiac, opened the trunk and the trunk light was on. I observed Mr. Perkins reach into a brown bag, bring up two plastic envelopes — plastic baggies — hand the two plastic baggies to Mr. Rogers. Mr. Rogers handed Mr. Perkins some money which Mr. Perkins put into his pocket. Mr. Perkins then took out the largé brown bag that had contained the plastic bags and took it into the residence and that was the last time I saw Mr. Perkins on that date.”

These two instances provide sufficient circumstances from which a jury could properly find that a conspiracy existed.

After defining conspiracy as “a combination by two or more persons to accomplish a criminal or unlawful act, or to do a lawful act by criminal or unlawful means,” [Chief] Judge Orth in Jones v. State, 8 Md. App. at 377, 378 provided the answer to appellant’s concern whether that evidence of conspiracy was sufficient:

“Combination results from an agreement. But conspiracy is the combination resulting from the agreement, rather than the mere agreement itself. However, there must be a meeting of the minds — a unity of design and purpose — to have an agreement, but it is not necessary that a formal agreement be shown. It need not be manifested by any formal words, written or spoken. ‘It is enough if the parties tacitly come to an understanding in regard to the unlawful purpose, and this may be inferred from sufficiently significant circumstances, although evidence which merely creates suspicion will not be adequate.’ Perkins, supra, at p. 530. In Seidman v. State, 230 Md. 305, 322, the Court said:
‘A conspiracy may be shown by circumstantial evidence from which an inference of a common design may be drawn and it is not necessary to demonstrate that the conspirators met and agreed in terms to a design and to pursue it by common means.’

In Lawrence v. State, 103 Md. 17, 22, the Court said:

‘Concurrence of action on a material point is sufficient to enable a jury to presume concurrence of sentiment, and from this the actual fact of conspiracy may be inferred.’
See also Hill v. State, 231 Md. 458, 461, in which those principles of law were applied in finding that certain overt acts of concurrence of action by three persons, of whom defendant was one, on material points showed guilty knowledge on the part of the defendant, and that they were all acting in concert; Boddie and Brooks v. State, 6 Md. App. 523; Harper v. State, supra; Price v. State, 4 Md. App. 701.
In the instant case the lower court could have properly drawn from the evidence before it an inference of a common design. . . .”

Appellant concludes his conspiracy issue by arguing that “[t]his would not be a conspiracy since you cannot have a sale unless you have both a seller and a purchaser.” Wharton’s rule or the concert of action rule provides that:

“ & combination to commit an offense which can only be committed by the concerted action of two persons does not amount to conspiracy if only those two are involved.” R. Perkins, Criminal Law (2d ed.) at 620.

Whether appellant’s argument would be correct when considered in the abstract, it has nothing to do with his case. The alleged conspirators here were not the buyer and seller, but two sellers, appellant and Kermit Rogers.

Entrapment

We find it difficult to follow appellant’s argument that he was a “victim of entrapment.” Presumably he is contending that because the officers simulated smoking marijuana in his presence and an officer “lulled” and “beguiled” him into believing that the officer, like himself, acquired the smoking habit in Viet Nam, he was “entrapped.”

Appellant concedes that “the question of entrapment is a jury question.” Apparently he recognizes that he had the initial burden of showing that the police did “induce the Defendant to commit the offense charged in the indictment . . .,” Simmons v. State, 8 Md. App. 355, 362, since he asserts that the State failed to meet its responsive burden, viz., to show that he had “a predisposition to commit the offense . . . due to his own readiness. . . .” Simmons, supra. Appellant then cites Simmons, supra, and Byrd v. State, 16 Md. App. 391 as authority for his conclusion that this is a case wherein the “criminal design originates with the officials of the government, and they implant in the minds of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.” Sherman v. United States, 356 U. S. 369, 372. He would not merely persuade us as a matter of fact, but would also have us reach that conclusion as a matter of law, as was done in Sherman. However, in Sherman, the entrapment defense was considered on the basis of undisputed testimony and thus was established as a matter of law. We noted in Simmons, supra, on that very subject that:

“In our jurisdiction, where the jury are the-judge of the law as well as the facts, we think that both questions pertaining to the issue of entrapment must be for the jury.” Simmons, 8 Md. App. at 365, n. 7.

The two questions dealt with in Simmons were “(1) did the appellant meet the burden of showing that he was induced by the police directly or through their agent to commit the offense? and (2) did the State meet its burden of showing that the appellant’s criminal conduct was due to his own readiness and not to the persuasion of the police or their agent?” Byrd v. State, 16 Md. App. at 403.

The evidence submitted to the jury was clearly sufficient to permit a finding that either the appellant did not meet his burden or that the State did meet its. Appellant failed to show the requisite “repeated and persistent solicitation of a previously law abiding citizen in order to overcome his reluctance to commit a crime.” Stewart v. State, 232 Md. 318, 321. As there was no inducement there was no entrapment and the conviction would be proper on that ground.

Even assuming that there was an inducement, we reach the same conclusion we did in Simmons, 8 Md. App. at 367

“[T]he evidence was sufficient for the trier of fact to find beyond a reasonable doubt that the accused had a predisposition to commit the offense — that he was ready and willing without persuasion and awaiting any propitious opportunity to sell marijuana. We believe it clear that the trier of fact could have properly found that the criminal conduct of appellant was not ‘the product of the creative activity’ of the police agent but that the police agent merely afforded opportunity for the commission of the offense. We have no difficulty in determining on which side of the line drawn between the trap for the unwary innocent and the trap for the unwary criminal appellant falls; he is on the side of the trap for the unwary criminal. Thus entrapment was not established and the conviction would be proper for this reason.”

Here appellant took the stand and admitted not only to the use of marijuana but that he sold it to friends:

“A. No, I never have. I feel that way because I’ve been — I’ve been smoking it for quite awhile and it never bothered me and I — I — and when I went to California, I just got the idea when I was there that it would be legalized because they had a petition at the time that everybody signed before it legalized marijuana. So when I came back home I didn’t hide the fact that I did smoke marijuana and I had some friends that would, you know, ask me if I had, you know — you know, occasionally or something like this and I would do it just for a friend’s sake, not —
The Court: Do you mean — you say you’d do it, you mean let them have it?
A. Yes sir.
The Court: That what you mean?
A. Yes sir.
The Court: Would you give it to them or sell it?
A. I would give it to them, sir. If — if —
The Court: At $20.00 an ounce, you were giving it to them?
A. Yes sir, ‘cause that’s what I give for it, sir. In other words, it was —
The Court: Would you give then an ounce or just a cigaret?
A. I would give — if they asked — whatever they asked, sir, if a friend, I would — I believe a person, the way I feel about people, if you’re a friend of mine, if I call a friend, I would give it to you. I feel like if I could come up to you and ask you for $30.00, if I’m a friend, if you have any faith in me, you would lend it to me.”

Such an admission is hardly compatible with the stance of a reluctant law abiding citizen being overcome by repeated and persistent solicitations.

Lab Reports

Appellant asks “Was the chemist’s report admissible without a proper foundation being laid for admission of the confiscated goods?” Since he had by stipulation agreed in open court to the admission of the lab reports the question is imprudently raised.

Argument

Appellant claims that the State’s rebuttal argument was “so improper and inflammatory as to prevent the jury from returning an impartial verdict.” In the abstract, the argument may cause some concern. In context it appears less intemperate.

Appellant’s complaints seem to fall into three categories:

1. The prosecutor’s defense of the police officers on rebuttal.
2. The prosecutor’s expressed concern for the “ruination of children . . . that get hung on marijuana and have to . . . find a way to pay ... to maintain the habit. . . .” and
3. The allusion to the sales to the police officers whom appellant “thought were people like you and I, like our children and our brothers. He cold to them nevertheless and he would sell to your children or relatives just as quickly.”

To gain perspective, we must first review the remarks appellant had made and to which the State was responding. Appellant’s closing argument was long and detailed. It centered substantially around two issues, entrapment and the appellant’s philosophy of selling only to friends. On the entrapment issue appellant commenced by attacking the police for “enticing people into committing” crimes rather than enforcing the law. As the cresendo of attack rose and the accusations of inducement increased the record reflects that appellant’s counsel physically pointed his accusing finger toward the officers. He said:

“The trap was well laid. They used the people, they used the sympathy, they used everything at their disposal just to get someone across the line so they could hit him with a sledge hammer the moment he crossed the line. That’s what’s been done. It’s said in a number of ways. It’s said that we have police officers that have to engage in this kind of an activity. I suggest to you Ladies and Gentlemen it is not really a proper activity for the police officers of this State or any State to be enticing, to be inducing, to advocate, to even suggest, to even to say Can you break the law for me? This is what was said. Can you break the law for me? If that’s the position that we want our police officers to be in, to say go out and break the law, I’m asking you to do it, I’m giving you a song and a dance, I’m telling you lies. Did he tell any lies? To him? Sure he did. He said I went to Vietnam, I’m a Patrol man, combat duty and I smoked some good strong stuff over there.”

He depicted the actions of the police as

“ a guise, it’s a ruse, it’s a con job — it’s a con job to get somebody to do something they wouldn’t otherwise do. That’s what it is. It is one great big con job to con this man into doing something — to con him into doing something that he wouldn’t otherwise do.”

When the State commenced to respond to that portion of appellant’s argument it was interrupted

“Mr. Wise: I find lately I — spend more time defending the police than I do prosecuting criminals and I wish to say a word or two to you for those who must remain silent and are unable to speak for themselves. The undercover men came into this County at the request of me and the Sheriff. They didn’t just come into —
Mr. Hairston: Objection, Your Honor, I don’t believe there’s any testimony on this and I think we’re getting way beyond the scope of any permissible argument.
The Court: I’m going to overrule the objection.”

The objection came after the prosecutor stated that the undercover men came into the county at the request of the State’s Attorney and the Sheriff. While the fact was not in evidence it was hardly prejudicially inflammatory. Judge O’Donnell for the Court of Appeals said that a prosecutor in closing argument could draw upon:

“ . . . Reasonable and legitimate inferences from the facts which had been offered in evidence, from the facts which were of such general notoriety as to be matters of common knowledge and matters with the cognizance of the jury from their own observations.” Wilhelm v. State, 272 Md. 404, 445.

The statement objected to gave us far less concern than the balance of the State’s rebuttal argument although the latter came in without objection and for that reason, though argued on appeal, it is not properly before us. Our concern compelled that we review it, however, and in context that concern was somewhat assuaged. It reads in its entirety as follows:

“Mr. Wise: The Defense Counsel would have you believe that the undercover narcotics men have nothing to do but go around and pick on poor people like Oliver Perkins. I assure you such is not the case. They had a reason to be here. The reason they were here is quite apparent in the nine charges which are before you. Obviously, there is a lot of illegal activity going on, and obviously, they perform their work very well. Rather than being chastised for good police work, I think they should be rewarded for it. The very purpose of having laws and the purpose of having police is to prevent the violation of them. If you want police officers and law enforcement officers to sit around until some guy jumps off a building because he’s blown his mind on marijuana, we can have that kind of law enforcement. Defense Counsel was worried about the Defendant and the ruination of his life. I think the Defendant has already ruined his life if you want to call it that. And I’m worried about the ruination of the children, the young adults, teenagers, people that make $80.00 a week that get hung on marijuana and have to pay — to find a way to pay $20.00 an ounce to maintain the habit as Mr. Perkins has and which he admits to. I submit there’s a very good reason why, even assuming Mr. Perkins wasn’t making any profit on this — he was buying it for $20.00 and selling it for $20.00 — after you get a person hooked on marijuana or any other drug, he’s got to have a source to keep it up. If you’ve got a monopoly, then you can raise the price on it. And that’s when you make your money. So there’s a good motive why he would have been so-called doing this for free for his friends. Finally, so I won’t detain you much longer, Defense Counsel has made much of the fact that if it were not for the police officers, this would not have happened. He raised that specific question to you. And I submit the answer is exactly what I am talking about and very disturbing to me and the reason why you shouldn’t condone this. Mr. Perkins didn’t know they were police officers, he thought they were people like you and I, like our children and our brothers. He sold to them nevertheless and he would sell to your children or relatives just as quickly. That is why 45 years or not, he belongs off the street.”

Appellant complains now (although he failed to do so at trial):

1. First that “the State was asking the jury to bring in a verdict not based on innocence or guilt but as a reward to the police officers. . . .” The phrase alluded to in context clearly dispels that inference.
2. That “no where in the State’s case is there any reference to other sales being made . . .” but would confine the jury to his own testimony that he only sold to friends. While that fact has little relevance to the charge of distributing, it seems clear that the five sales to police officers gives rise to a permissible inference that appellant might sell to anyone. Williams, supra.
3. Finally appellant cites Holbrook v. State, 6 Md. App. 265, 278 to dispel from us any notion that the State would be justified for its dramatizations or its deviations from evidentiary facts in responding to appellant’s accusations, if not excesses.
“We cannot say that the argument of the prosecutor was justified because defense counsel ‘was given considerable latitude in reading from Trial Magazine, relating their personal experience of the Bunny Club, reciting prayers of Benedictine Monks, and quoting poetry in their closing argument.’ Nor can we find, on the record before us, that there was no ground for complaint because the improper remarks of the prosecutor were provoked by similar remarks of defense counsel or replied to in like manner.”

We recognize and repeat that provocation does not justify prejudicial excesses in response. Nor do we retreat from our refusal to accept the eye for an eye argument, i.e., because unwarranted latitude is given one it may be offset by allowing equal excesses to the other.

Here, however, when the defense of entrapment is buttressed by appellant’s seething attack on the police officers whose testimony comprised the State’s case, to require the State to stand mute in the face of that attack would tend to imply that appellant’s charges of, “guise, ruse, con job ... lie used to induce . . . charade . . . trap . . . enticing people into committing [crimes] ... so they could hit him with a sledge hammer the moment he crossed the line,” were well founded.

Both appellant and the State went beyond the bounds of propriety, though neither went beyond the limitations set by Holbrook, swpra. A jury argument may be more persuasively delivered in quiet tones of equanimity, yet that is sometimes alien to our human capacities for outrage and indignation.

Sufficiency of the Evidence

Having discussed the conspiracy, noted testimony of five sales of marijuana to police officers and referred to an admission of appellant that he sold to friends, it seems we need add little to fulfill the sufficiency requirement. We should note, however, that the appellant’s automobile was the repository from which appellant extracted the marijuana each time he sold it, and it contained envelopes, bags and baggies used for packaging to sell. Such was the common nuisance maintained.

Judgments affirmed.

      . Although the docket entry shows “1974 Jan. 15” Transcript of record from District Court charging (1) Marijuana distribution and (2) Conspiracy fd.”, we assume the dismissal of all counts except 4 and 5 based on argument raised below on motion to dismiss and briefs here submitted and not contradicted by the State.

      A. The right to a preliminary hearing so retained removes us from the ambit of Gerstein v. Pugh, 420 U. S. 103, 95 Sup. Ct. 854.

      . Williams, decided in 1957, and Wampler v. Warden, 231 Md. 639 decided May 15,1963 obviously were not discussing Md. Rule 708 and 709 as presently written since they were amended to their present form in 1972 and 1973. Nor were those cases discussing the present Art. 27, § 592 which was enacted in its present form in 1973, Ch. 840. The original § 592, discussed in the cases cited, was repealed by Acts 1953, Ch. 551, § 1. Its purpose was to permit charge by information but the procedure arose from the action of the accused who had to seek it by an elaborate petition. He may still waive the grand jury indictment, less elaborately under Rule 709 to expedite proceedings.

      . For an extended discussion of the rule and the policy reasons for it, see Iannelli v. United States, 420 U.S. 770, 43 LW 4423.

      . It is ironic that appellant objects to facts not in evidence after discussing with the jury his personal experience, his private practice and a previous case, none of which were evidence or even relevant.
      “I was on vacation last week and I came back on Monday and a client of mine was a victim of assault and battery. We tried it in Cambridge. And in this particular case, a woman walked through the front door. She went in there and was asked to leave, was slapped on that occasion and went over and attempted to phone the police. The phone was hung up on her, she was choked, taken in to — on assault and battery charge. The woman was convicted and given a $25.00 fine. That’s Monday of this week. Tuesday of this week, right here in this Court room, a young man was sentenced to three years for one Count of Distribution of marijuana.”

      . The objects of the concern expressed by both appellant and the State were similar. The State was “worried about the ruination of the children, the young adults, teenagers . . . that get hung on marijuana. . . .” Appellant was concerned lest “anybody’s sons and daughters, brothers or sisters, or any other loved ones” would be entrapped and brought before that court and that jury for judgment.


text:
    FRANKLIN DELANO BOULDIN v. STATE OF MARYLAND
    [No. 907,
    September Term, 1974.]

      Decided June 3, 1975.

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

      Geraldine Kenney Sweeney, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Gilbert Rosenthal, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Allen, State’s Attorney for Baltimore City, and Peter Semel, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Franklin Delano Bouldin was convicted by a jury in the Criminal Court of Baltimore of possession of heroin with intent to distribute and possession of a manufactured article (a motorcycle) from which the serial number had been removed, defaced or obliterated. He appealed those convictions with the primary thrust of his contention being that the evidence introduced was the fruit of an illegal warrantless search.

Officer Aston testified for the State that he had been routinely called to investigate a serious motor vehicle accident. Upon arrival at the scene he observed a motorcycle lying on its side behind an automobile, the rear of which obviously had been struck by the cycle. Appellant was lying in a semiconscious state about twenty-five feet away from the cycle. He was being attended by personnel from an ambulance already at the scene.

At appellant’s request, as he was being placed in the ambulance an attendant picked up appellant’s “black leatherette flight bag type of suitcase .. . which had been on the motorcycle with him,” and put it in the ambulance with appellant. The ambulance then proceeded with its occupants to the Union Memorial Hospital.

Meanwhile, back at the scene, Officer Aston sought identification of the injured appellant by radioing the license tag number to the Department of. Motor Vehicles. In a matter of moments he was advised that the “license plate and the license plate only had been reported stolen under Baltimore City Complaint Number 2K27183. At that time I responded to the hospital. . .

Mr. Semel: Would you stop there, Officer?

The Court: Well, was the defendant -subsequently placed under arrest because of this?

A Yes, Your Honor.”

Appellant withdrew his initial objection to that testimony when it was argued that such testimony could not be used “to actually prove that [the license plate] was stolen,” but “only to establish why he [appellant] was arrested.” The court then explained to the jury why the evidence was admitted:

“THE COURT: All right. Well, members of the jury, I wanted to explain to you that this last answer was permitted into evidence with regard to the report that the plate was stolen only to explain why the Defendant was arrested by the police officer and for that purpose only.”

Before Officer Aston “responded to the Union Memorial Hospital ...” he attempted to ascertain a vehicle identification number from the motorcycle but found that it was not visible. There were “fresh filing marks upon the motor block in the vicinity of where the serial number should have been.”

Officer Aston, with a twofold purpose in mind, then went to the hospital where appellant had been taken “ ... to check on Mr. Bouldin’s condition and to place him under arrest.” Upon arrival he found him lying on a roll-type stretcher. His clothes had been removed and placed on a shelf beneath him, along with the black flight bag. Although Mr. Bouldin was unconscious, he was being cleaned up by an attendant preparatory to examination by a doctor. Officer Aston then:

“ . . . took the clothing to try and ascertain some identification of Mr. Bouldin looking for a driver’s license or any kind of identification. And in the jacket that Mr. Bouldin was wearing in the upper breast pocket I recovered an amount of U.S. currency and a bundle of glassine bags wrapped in a rubber band, a later — a later count revealed twenty glassine bags, each containing a similar looking white powdery substance which I had reason to believe through my — ”

Within five minutes of this discovery, an attendant gave Officer Aston some personal effects which had been taken from appellant for safekeeping which included appellant’s wallet and identification. In the meantime the officer telephoned the “on call narcotics officer ..for assistance with “a narcotics case at the hospital and would they please respond, which they did.”

“A When Officers Dugent and Thornton responded to the emergency room of Union Memorial, I made a more thorough search of the patient’s property in company with Officers Dugent and Thornton. One piece of the patient’s personal property being the black leatherette flight bag. In one zipper compartment of the flight bag I found an additional thirteen bundles of glassine bags containing a white powdery substance. The total count was three hundred and twenty-four bags in the suitcase along with the twenty bags that were in his coat pocket.”

Officer Aston was then asked as a narcotics’ expert to explain what he meant by “a bundle.”

“A A bundle of heroin is the most common, convenient way that heroin is packaged for I’d say middle level street sale. The addict would rarely see one and would never have occasion to buy one. A bundle would be something that only a dealer would have in his possession. It is a number anywheres from twenty to thirty bags. One bag street level now is about one, one and a half percent heroin content is the average dose for a heroin addict. And, like I said, the average bundle is twenty to thirty bags.”

Aside from the previously mentioned withdrawn objection, all of the preceding testimony came in without objection. Most significantly, appellant had at no time filed a motion to suppress. To the contrary appellant had expressly declined to object either to the arrest or the search. Appellant withdrew the objection he had made when the officer was about to testify that he radioed the Department of Motor Vehicles because, in his view, if the evidence were offered “for the purpose of establishing the arrest, of course, I don’t think I would have an objection.” The court then asked:

“THE COURT: Well, is there a challenge as to the legality of the arrest and search?
MR. SUTLEY: No. No, not really. But, if it comes in just for that, to establish just an arrest —”

The agreement resulted in the limiting instruction heretofore noted.

Although no motion to suppress was filed and no objection to the arrest or search imposed, when the State reached the point of offering the physical evidence, appellant asked:

“May we approach the bench, Your Honor? ”

At the bench, the following colloquy ensued:

“MR. SUTLEY: Mr. Semel I thought was going to introduce this through another officer but he is ready to introduce the evidence now. I would like to question the officer as to the admissibility and perhaps we ought to excuse the jury for four or five minutes.
THE COURT: Well, there is a motion to suppress this evidence or you want to question him first?
MR. SUTLEY: Well, I really wasn’t sure how the testimony was going to come out because the officer has refused to speak to me.
MR. SEMEL: He did?
MR. SUTLEY: Yes. So, that is why I — the report doesn’t say much at all so that is why I didn’t file a frivolous motion, not knowing what he was going to say. But, I will ask a few questions. I do have some concerning his testimony.
MR. SEMEL: Well, I guess that is his right.”

The court excused the jury and permitted a lengthy interrogation of Officer Aston by appellant, at the conclusion of which it summarized the evidence so elicited, assumed the existence of either a motion to suppress or objection, then ruled on it. Among other things the court concluded:

“Now, these two factors, that is, the stolen tag, or at least what at this point the officer believed to be a stolen tag, plus the obliteration of the number on the vehicle certainly gave him probable cause to place the Defendant under arrest. The officer did not go through all the formalities of the arrest because the man was being worked on on the table in the hospital, but he was for all intents and purposes under arrest in connection with these two items which the officer had found out .... My ruling is that the search of these items was proper because, first of all, it was incident to a lawful arrest; secondly, the officer had the right to try and find out at least from the clothing some identification of the victim; and, thirdly, under the principle of Waugh versus State in 20 Maryland Appellate 682 this black bag or satchel was the kind of object which could very well have been removed and its contents could have been destroyed and under the theory of the Waugh case the officer did have the right to go through that bag and search it under these circumstances. I am not sure whether there — assuming you did make a formal motion to suppress this evidence, Mr. Sutley, I am going to deny the motion and I will overrule the objection.”

The State then laid the foundation for introduction of the physical evidence by having the witness identify it. When it was actually offered appellant entered his first objection “for the record.” Although no reason was expressed, he disclaimed any concern over the chain of custody of the evidence. The evidence was admitted over the objection.

On appeal it is now claimed that “This evidence, and testimony concerning its seizure .. .” should not have been admitted because the seizure was violative of appellant’s Fourth Amendment rights.

Appellee asserts various theories of admissibility including waiver, emergency search, Vauss v. United States, 370 F. 2d 250 (D.C. Cir.) and search incident to a lawful arrest made pursuant to Md. Code, Art. 27, § 594B. Although somewhat analogous, this case doesn’t fit any one theory precisely enough to permit us to comfortably rely thereon without further analysis.

In Floyd v. State, 24 Md. App. 363, we held that a hospital search of a shooting victim’s clothes could be justified either as a search for evidence of the shooting or “to determine the shooting victim’s identity.” In either case, the officer’s actions did not constitute an unreasonable search proscribed by the Fourth Amendment. The issue Judge Gilbert treated in Floyd was as here “the reasonableness vel non, of the search by [the officer] of the clothing of a . . . victim, at a hospital emergency room where the search is conducted for the purpose of ascertaining the identity of the victim and inadvertently contraband is discovered.” While that language is apposite, Floyd’s factual premise prevents it from being dispositive. The present search is difficult to justify as seeking identity in a medical emergency as in Floyd, when Bouldin was already hospitalized and being prepared for examination before the search began. The absence of medical rationale was obvious from the police officer’s testimony where he expressed a vastly different purpose in going to the hospital, viz., to arrest appellant. We shall therefore explore the more persuasive of appellee’s arguments — search incident to that arrest.

Central to all of appellant’s arguments is his comatose condition at the time of the search. He argues from that fact an arrest could not be effected, although he acknowledges for purposes of argument that the officer had probable cause to arrest, having ascertained appellant’s possession of stolen goods under $100, Md. Code, Art. 27, § 341, his possession of a manufactured article from which the serial number has been obliterated not to mention the apparent “speed greater than reasonable under the circumstance” traffic violation. Officer Aston expressly testified that he went to the hospital intending to arrest appellant and in response to the trial court’s question he added that he did so. Appellant then asks how an arrest of an unconscious person is manifested, if indeed an unconscious person can be arrested at all.

A close reading of the record shows that Officer Aston fell just short of consummating an effective arrest under traditional standards. The Court of Appeals

“ ... has built a working definition of an arrest — the detention of a known or suspected offender for the purpose of prosecuting him for a crime. It has been said that there is detention only when there is a touching by the arrestor, although some cases have found a detention where there was no touching but the offender, upon being told that he was under arrest, submitted. Certainly, where there is no touching the intention and understanding of the parties are decisive for, if there is to be an arrest in such case, there must be an intent on the part of one to arrest the other and an intent on the part of such other to submit.” Cornish v. State, 215 Md. 64, 67-68.

Here there was no evidence of “touching,” nor could there have been in appellant’s unconscious state “an intent ... to submit.” We pause but to look askance at that latter criterion and wonder how to determine when even a conscious arrestee intends to submit. However, for purposes of a search incident it would seem that technical finding of intent to submit is hardly necessary. The Supreme Court in United States v. Robinson, 414 U. S. 218, 232 quotes then Chief Judge Cardozo of the New York Court of Appeals on the subject of arrest and search incident thereto. He ascribed little significance to conformity to the technical aspects of an arrest such as a touching, emphasizing rather detention after “grounds for arrest... have been discovered”:

“Search of the person becomes lawful when grounds for the arrest and accusation have been discovered, and the law is in the act of subjecting the body of the accused to its physical dominion.”

While strict conformity to the technical prerequisites of arrest may be necessary for some purposes, it is clear to us under Robinson that grounds for the arrest coupled with the intent of the arresting officer to detain the suspect suffice if the condition of the arrestee precludes the other prerequisites to consummation of a custodial arrest. Obviously if conditions warrant the prerequisite verbal or physical communications, the intent to arrest should be communicated to the arrestee.

Since we hold that appellant had effectively been arrested for the previously enumerated offenses, the subsequent search must find justification in the search incident to arrest exception to the warrant requirement.

At the outset we must decide whether the search of appellant’s clothing more closely resembled a search of his “person,” Robinson, supra, 414 U. S. 218; or a search of the area within his control, Chimel v. California, 395 U. S. 752; Dixon v. State, 23 Md. App. 19, 26.

Officer Aston went to the hospital to ascertain appellant’s identity and to arrest him. Ordinarily, a search of an arrestee’s wearing apparel is all that would be required to discover identity. The Supreme Court has recently described, in no uncertain terms, the constitutionally permissible breadth of a search of the person incident to arrest:

“The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a‘reasonable’ search under that Amendment.” [Emphasis added] Robinson, 414 U. S. at 235.

^ Here, it was only because of the fortuitous circumstance that appellant had been injured and was unconscious that |his clothes were not on his “person,” having been removed by hospital personnel. Had his clothes been on his “person” at the time of the search, the rationale of Robinson would obviously apply. We think it would be anomalous indeed to hold that the removal of appellant’s clothes in an emergency situation somehow extinguished the right to search them incident to his arrest. Confining our reasoning to the unusual facts in the instant case, we hold that Officer Aston’s search was within the confines of a search of the “person” and sustainable under Robinson, supra. Our decision in no way condones a curious rummaging about to identify a person merely because he is in a comatose state, short of an emergency or the conditions of arrest shown here.

The officer’s continued search after finding the initial contraband in appellant’s jacket was, as indicated by the trial judge, a reasonable procedure under the principle of Waugh v. State, 20 Md. App. 682, rev’d. on other grounds, 275 Md. 22.

Waiver

We cannot leave this issue without responding to appellee’s contention that there was waiver of objection to the introduction of the physical evidence by failure to object to the testimony of the search which uncovered it, if indeed there was not an express waiver. Because of the route we have chosen and the conclusions reached, as well as the “assumption” by the court below of “a formal motion to suppress,” we need not decide whether the failure to object to the testimony of the search and seizure constituted a waiver of the subsequent introduction of the physical evidence. Holle v. State, 26 Md. App. 267.

The remaining issues raised at the request of appellant are without merit.

1. Officer Aston’s testimony as to his knowledge of illicit drug traffic came in as expert testimony following his qualification as an expert without objection.

2. The refusal of the court to instruct that appellant’s possession of heroin must have been knowing was not error since the Maryland statute does not require intent. The statute was read to jury in any case.

3. The evidence was sufficient for the jury to convict. The evidence showed 20 bags of heroin found in appellant’s jacket and 324 bags in his flight bag. With reference to the possession of manufactured product with an obliterated serial number, appellant acknowledged his ownership of the altered motorcycle.

4. Finally the granting or refusal of a new trial is discretionary with the trial court. Ragler v. State, 18 Md. App. 671, cert denied, 270 Md. 741.

Judgments affirmed.

      . When an arrestee is rendered unconscious by officers due to his violent refusal to submit, must the search incident await his regaining of consciousness and ultimate — if ever — submission?


author: Moylan, J.,

text:
    RONALD RUDOLF MOORE v. STATE OF MARYLAND
    [No. 1043,
    September Term, 1974.]

      Decided June 3, 1975.

      The cause was argued before Moylan, Menchine and Lowe, JJ.

      John E. Bohlen, Jr., with whom was Harry C. Davison, Jr., on the brief, for appellant.

      Gilbert Rosenthal, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Sandra A. O’Connor, State’s Attorney for Baltimore County, and David H. Hugel, Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

The appellant, Ronald Rudolf Moore, was convicted in the Circuit Court for Baltimore County by Judge Walter R. Haile, sitting without a jury, of child abuse. Upon this conviction, he raises three contentions:

(1) That hearsay evidence was erroneously admitted into evidence against him;

(2) That a hospital record, also ostensibly hearsay, was erroneously admitted into evidence against him; and

(3) That the evidence was legally insufficient to sustain the conviction.

Under the first contention, the testimony in dispute is that of Dr. Constantinos P. Chilimindris, a general surgeon and specialist in traumatology, who on July 20, 1974, was assigned to the trauma service of the intensive care unit of the Greater Baltimore Medical Center. The victim in this case was David John Updegraff, a three and one-half year old child. Pie was admitted to the Greater Baltimore Medical Center at approximately 11:30 p.m. on July 19. Dr. Chilimindris saw the child first in the Emergency Room at 2 a.m. on July 20. He described the child’s condition in the following terms:

“A. . . . The child was a white child and was in acute distress. His color was almost ashen. He had visible multiple injuries and was crying from pain, pain mainly in his abdomen.
Q. How would you describe his visual injuries; what type were they?
A. Due to inspection through one’s eye, one would see evidence of bruising in, the face and chest and abdomen.
Q. Yes. Please continue with your observations or what you observed at that time.
A. The child's further signs were extremely abnormal. His pulse was very fast, about double the normal. His blood pressure was low, about half of normal. His respiration was fast and there was — these signs were indicative of loss of blood. The child was still conscious and able to answer some questions but he was in extreme acute distress from pain and shock. On examination of his head and face, there was some bruises in the area of the chin but that is about all there. The neck was normal but examination of the chest revealed extensive bruising of the front of the chest. These bruises were small in size, about, as I described in my notes, as one to, one-and-a-half centimeters in diameter. Some of them were confluent; in other words, one running into another. The lungs were clear; There was no lung injury and there was no heart injury except that the heart rate was fast, indicative again of blood loss. Examination of the abdomen, commonly known as the stomach, showed again, through inspection, a great deal of bruises, especially in the upper half of the abdomen. Again, some of these were varying from two to two-and-a-half centimeters in diameter, confluent, and palpation of the abdomen to the hand, there was generalized tenderness. In other words, what we call rebound tenderness. When one presses the hand and lets go, the child has more pain when you let go than he does when you push down. The sounds of the bowel were diminished and there was evidence of blood coming out of the patient’s stomach from a tube which was introduced into the stomach and there was also bloody diarrhea while the child was lying on the examining table. He was incontinent of stool which contained blood and slime....
[M]edical treatment was already initiated by the time I arrived, treatment to combat shock by the administration of intravenous fluids and plasma. Blood was subsequently necessary to resuscitate the child. Various tubes were inserted in veins, in the stomach, in the bladder, and he was eventually transferred to the intensive care unit to be prepared for what I believed he needed, major surgery.... these x-rays were normal, there were no fractures, except the x-ray of the abdomen which showed the presence of fluid and paralysis of the bowel.”

Dr. Chilimindris operated on the young child and made a number of repairs to close lacerations of internal organs in the abdominal area. The liver had been lacerated. The pancreas had been bruised. The operation lasted between one and one-half to two hours. The child remained hospitalized for eleven days. In the Emergency Room, prior to operating, Dr. Chilimindris sought for information as to the causé of the injuries. The answer he received from the three and one-half year old patient is the hearsay evidence now in issue:

“Q. At any time did he indicate how these injuries had occurred?
MR. BOHLEN: I’m going to object to that, your Honor. I think it is basic hearsay. We have a child that is three-and-a-half years old. I think it has nothing to do with the history. I don’t think it’s admissible.
THE COURT: In our experience we have had a very high degree of accuracy with the doctors. Therefore, I think it will be an exception.
Q. (MR. HUGEL) Tell the Court what David said.
MR. BOHLEN: Do you overrule my objection?
THE COURT: It comes within the exception of the hearsay rule. It is kind of a first complaint to a treating physician and is within the exception, as I recall, and I therefore overrule the objection.
THE WITNESS: May I answer the question, your Honor?
THE COURT: Yes.
THE WITNESS: It is our duty and our job to ask our patients what happened to them, including children, and if they are able, have them tell us some information. I did ask this child as to why his tummy was hurting him and his answer to me in the emergency room was that Daddy was mad. Those were his words. He said, ‘Daddy was mad, Daddy did it/ and any further questioning of the child revealed no further answers.”

In response to the question as to “why his tummy was hurting him,” the child declared, “Daddy was mad, Daddy did it.” This, of course, is classic hearsay. The witness on the stand, Dr. Chilimindris, was recounting an out-of-court declaration by the three and one-half year old declarant which was being offered for the truth of the thing asserted — to wit, to prove that “Daddy did it.” The declarant was not on the stand and, indeed, may have been incompetent (by virtue of age) to take the oath. He was not, therefore, subject to cross-examination.

We hold, however, that the out-of-court declaration was admissible in evidence upon a well-recognized and long-established exception to the Hearsay Rule — as an excited utterance which is a variety of the broader category known as spontaneous declarations.

Testimonial Incompetence No Bar to Spontaneous Declaration

The initial and explicit thrust of the appellant’s challenge to the hearsay assertion, “Daddy did it,” is that the testimonial competence of the three and one-half year old declarant was not established. By the same token, incompetence was not established; the child was not called as a witness and the issue of competence vel non was not before the court. The issue is, furthermore, irrelevant since the testimonial qualifications do not apply to spontaneous declarations. In dealing with the declarant of an excited utterance, 6 Wigm,ore on Evidence (3d Edition 1940) said at § 1751, p. 156:

“Does the disqualification of infancy . . . exclude declarations otherwise admissible? It would seem not; because the principle of the present Exception obviates the usual sources of untrustworthiness . . . in children’s testimony; because, furthermore, the orthodox rules for children’s testimony are not in themselves meritorious . . . and, finally, because the oath-test, which usually underlies the objection to children’s testimony, is wholly inapplicable to them.”

To the same effect, see McCormick, Law of Evidence (1st Edition 1954) at 582:

“Must the declarant be shown to have met the tests of competency for a witness? In general, it seems not. The declarant is not usually before the court to be examined as to his competency, and the declarations furthermore come in only under special safeguards — here, the requirement of excited utterance — which diminish the need for further caution. Consequently, it is held that evidence of spontaneous declarations of infants is admissible despite the incompetency of the child as a witness. Such is also the rule in the case of an insane declarant, or one incompetent by reason of conviction of a felony, or where the declaration was made by the husband or wife of the accused in a criminal case.”

If the declaration of the child is shown to qualify as a legitimate exception to the Hearsay Rule in other respects, it will hot be deemed incompetent because of the tender age of the declarant.

Excited Utterances as an Exception to the Hearsay Rule

Two factors combine to permit the admission of certain classes of. hearsay — 1) necessity and 2) the circumstantial probability of trustworthiness. In the case of spontaneous declarations generally, there is no requirement that the declarant be unavailable. The necessity rather arises out of “the superior trustworthiness” of the spontaneous declarations. 6 Wigmore, § 1748, “The Necessity Principle; Death, Absence, etc., need not be shown,” pp. 138-139. The circumstantial probability of trustworthiness underlying this exception (as well as the superior quality of the evidence) has been thoroughly explored and well set out by the recognized authorities in this field. Dean Wigmore said at § 1747, “General Principle of the Exception”:

“This general principle is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or, at least, as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker’s belief as to the facts just observed by him; and may therefore be received as testimony to those facts.”

Professor Morgan turned his astute analysis upon this exception in Morgan, A Suggested Classification of Utterances Admissible as Res Gestae, 31 Yale L. J. 229, 238 (1922):

“As in the preceding class, the utterance is offered for its truth and is hearsay. Its sole guaranty of trustworthiness lies in its spontaneity. The essentials of this theory are found in the early case of Thompson v. Trevanion, around which Lord Ellenborough cast the fog of res gestae, and which Chief Justice Cockburn repudiated in Bedingfield’s Case. In this country but few cases prior to 1880 gave weight directly to the element of spontaneity, and fewer still to the fact that spontaneity was insured by the startling nature of the event. Indeed contemporaneousness rather than spontaneity was emphasized, although the latter was clearly recognized as highly important. Thereafter such cases are somewhat more numerous; but it is only since the publication of Dean Wigmore’s work that this exception to the hearsay rule has gained wide recognition. It is, however, by no means universally accepted, and nowhere is the theory of the exception applied with logical completeness. If spontaneity of itself is to be accepted as a guaranty of trustworthiness, then the subject matter of the declaration should not be limited to the startling event which operated to still the reflective faculties. Yet it is everywhere so limited. There is also a marked tendency in many cases to assume that contemporaneousness of utterance and event is a requisite of admissibility, and to argue that it is satisfied where the facts show the utterance unreflective, instead of using lapse of time between event and utterance merely as evidence of lack of spontaneity.”

McCormick adds his endorsement and analysis at § 272, “Excited Utterances (Spontaneous Exclamations),” pp. 578-579:

“From the mists of res gestae there has emerged, under Wigmore’s discerning analysis, an exception to the hearsay rule for statements uttered under stress of excitment produced by^a startling event and made before the declarant has had time or opportunity to reflect or contrive. The factor of special reliability is thought to be furnished by the excitement which suspends the powers of reflection and fabrication. Again, as in the other cases of ‘spontaneous’ statements in this chapter, this factor of special reliability serves to dispense also with any requirement that the declarant be unavailable as a witness, on the view that even his testimony on the stand would be less reliable than the statements made under the excitement of the event. Psychologists would probably concede that excitement stills the voice of reflective self-interest but they might question whether this factor of reliability is not over-borne by the distorting effect which shock and excitement have upon observation and judgment. But they might well conclude that contemporaneous statements both excited and unexcited are so valuable for the accurate reconstruction of the facts that the need is not to narrow the use of excited statements but to widen the exception to embrace as well unexcited declarations of observers near the time of the happening.
At any rate, excitement flowing from a startling event is the key requirement now. Under prevailing practice the declaration itself seems to be taken as evidence of the fact of the happening of the startling event.”

An excellent exposition of the theory underlying this exception is found in Strahorn, A Reconsideration of the Hearsay Rule and Admissions, 85 U. of Pa.L.Rev. 484, 506 (1937):

“In the situations permitted by the exception there is superiority in the elements of perception, recollection, and narration, and, because of the startling event, absence of possibility of motive to falsify. That the witness was startled by the event indicates that he must have been attending the fact of the event, i.e., the subject matter of his perception. The startling nature of it creates that ‘intent to remember’ which, psychologically speaking, improves recollection. The requirement that the narration be made before the effect of the event wears off indicates that the interval between perception and narration is of the briefest. Then there are avoided dangers of faulty recollection. The danger of error in choice of words for narration is probably a normal one in such a case, but the usual events producing spontaneous exclamations are of such a nature that there is little likelihood of the choice of the wrong words for description. The same factors make for less than normal chance of error in reproducing the fact of the utterance in the courtroom. The witness who heard the spontaneous exclamation probably attended well to the fact of its utterance in view of the startling event happening at the time. It is also probable that his recollection was better than usual because of the vivid nature of the fact. As his narration consists of the quotation of a small group of words there is little chance of his making an inept choice of phraseology.”

Although adhering to the older usage of res gestae, Maryland has firmly endorsed the principle of the “excited utterance” exception to the Hearsay Rule. Wright v. State, 88 Md. 705, 41 A. 1060 (1898); Baltimore City P. R. Co. v. Tanner, 90 Md. 315, 45 A. 188 (1900); Neusbaum v. State, 156 Md. 149, 143 A. 872 (1928); Montgomery Bus Lines Co. v. Diehl, 158 Md. 233, 148 A. 453 (1930); Tittlebaum v. Pennsylvania R. Co., 167 Md. 397, 174 A. 89 (1934); Grier v. Rosenberg, 213 Md. 248, 131 A. 2d 737 (1957); Stevens v. State, 232 Md. 33, 192 A. 2d 73 (1963); Reckard v. State, 2 Md. App. 312, 234 A. 2d 630 (1967); Hicks v. State, 3 Md. App. 225, 238 A. 2d 577 (1968); Price v. State, 5 Md. App. 127, 245 A. 2d 600 (1968); Hall v. State, 5 Md. App. 599, 249 A. 2d 217 (1969); Smith v. State, 6 Md. App. 581, 252 A. 2d 277 (1969).

In the case at bar, this three and one-half year old child was in acute distress and suffering significant pain in a hospital emergency room within hours after the inflicting of massive injuries. It is stating the obvious to hold that the trial judge did not abuse his discretion in concluding that the declaration in issue was surrounded by substantial guarantees of trustworthiness and was not uttered designedly with a view to making evidence. Under those circumstances, it was clearly admissible.

A case such as this illustrates the wisdom of reposing in the trial judge, the man upon the scene, the ultimate discretion as to admissibility. It is he who can best assess the need and can best assess the circumstantial guarantees of trustworthiness. As was stated in McCormick, Law of Evidence (1st Edition 1954), at 562:

“[T]he trial judge has the duty to consider the circumstances under which the declarations were made and to determine (largely in his discretion) whether they were uttered spontaneously or designedly with a view to making evidence.”

Judge Haile’s decision here that the young child’s declaration was “uttered spontaneously [and not] designedly with a view to making evidence” was not an abuse of discretion.

The Hospital Record

The remaining contentions need not detain us long. The appellant’s second contention is that improper use was made of a hospital record. It clearly appears from the transcript, however, that the hospital record was not introduced in evidence. The contention, whatever its merits in the abstract, has no factual predicate.

Sufficiency of the Evidence

Nor is there any problem with the sufficiency of the evidence to sustain the conviction. The expert medical opinion of Dr. Chilimindris established the corpus delicti. The admissible declaration of the young child that “Daddy did it,” helped to establish the criminal agency of the appellant. There was, furthermore, testimony that the young boy referred to the appellant as “Daddy.” There was, moreover, an admission as to having “played” with the child made by the appellant to Dr. Chilimindris. There was finally a statement made by the appellant to the police that he was responsible for the injuries to the child. The verdict, therefore, was not clearly erroneous.

Judgment affirmed; costs to be paid by appellant.

      . In this case, we will not rely upon the undifferentiated phrase res gestae, because that umbrella term covers a wide variety of analytically distinct rationales, including excited utterances; declarations of both present bodily condition and present mental condition (if contemporaneous with the event in issue); declarations of present sense impression (if contemporaneous with the event in issue); either admissions by a party or declarations against interest (again, if contemporaneous with the event in issue); and utterances (or verbal acts) which are themselves operative conduct or utterances which are a part of relevant conduct, which latter categories are, of course, non-hearsay rather than exceptions to the Hearsay Rule. Events do not speak; only people do, and they may speak truthfully for a variety of reasons. In the case of non-hearsay, it doesn’t matter whether they speak truthfully or not. We do not by any means imply that trial courts using the broader term are in error. Á right ruling is a right ruling, however undifferentiated the articulation of its rationale. We deem it our function, however, at least to make the effort to be analytically precise.