author: Moylan, J.,

text:
    ANTOINETTE SANTONI, Personal Representative of the Estate of Mario Santoni v. HERMAN H. SCHAERF et al.
    [No. 1187,
    September Term, 1980.)

      Decided April 14, 1981.

      The cause was argued before Moyi.an, Mason and Couch, JJ.

      Stuart M. Salsbury, with whom was Max R. Israelson on the brief, for appellant.

      B. Ford Davis, with whom were William B. Whiteford, Francis J. Gorman and Whiteford, Taylor, Preston, Trimble & Johnston on the brief, for appellees.
   Moylan, J.,

delivered the opinion of the Court.

Mario Santoni, age 56, died on July 3, 1972, of hepatitis caused by his taking of the drug isoniazid (INH). The drug was dispensed to him in a tuberculosis prevention program conducted by the Baltimore City Health Department. As a result, on April 29,1975, Antoinette Santoni, his widow and the personal representative of his estate, brought a medical malpractice suit under the wrongful death statute against Dr. Allan S. Moodie, Director of the Bureau of Communicable Diseases of the Baltimore City Health Department and head of the Baltimore City tuberculosis program; Dr. Meyer W. Jacobson, Clinical Director of the Baltimore City tuberculosis program; and Dr. Herman Schaerf, a clinical doctor in the Baltimore City tuberculosis program. A trial of the case was held in the Superior Court of Baltimore City in February, 1980. The trial consumed more than two weeks and involved the testimony of thirteen witnesses. The case was eventually submitted to the jury on the issues of the defendants’ negligence and the decedent’s contributory negligence. On February 29, 1980, a jury rendered a verdict finding no negligence on the part of Dr. Schaerf which caused or contributed to the decedent’s death but negligence on the parts of Drs. Moodie and Jacobson. The jury also found, however, that the decedent’s own negligence caused or contributed to his death, thereby barring recovery by the plaintiff. After Mrs. Santoni’s motion for judgment n.o.v. and for a partial new trial or a new trial was denied, she filed this appeal. The defendants have filed a cross-appeal.

On this appeal, the appellant raises the following contentions:

1) That the decedent was not contributorily negligent as a matter of law and that the trial court, therefore, erred in permitting the question of his contributory negligence to go to the jury;
2) That the trial court erred in its instructions on contributory negligence;
3) That the trial court committed reversible error in refusing to admit into evidence a certain conversation between the appellant and her husband;
4) That the trial court committed reversible error in admitting into evidence a "Danger Signs” poster; and
5) That the jury’s verdict was inconsistent and irreconcilable..

The defendant-appellees, on the other hand, in their cross-appeal contend that their motions for a directed verdict on the issue of immunity should have been granted. They also contend that the court erred in admitting evidence of twelve other deaths of persons who received INH therapy from the Baltimore City Health Department.

The drug isoniazid (INH) has been used since the early 1950’s for the prevention and treatment of tuberculosis. Its metabolism is by the liver. Until the mid-1960’s, it was thought to be one of the safest drugs on the market. In 1970, however, after two men who were participants in a tuberculosis prevention program in Washington, D.C., died from hepatitis, it was recognized that the ingestion of INH might be associated with liver disease, particularly hepatitis. As a result, in 1971, the United States Public Health Service recommended that certain screening and monitoring procedures be used on all recipients of the drug in any INH program. The Service also recommended that a study be made of persons taking INH to determine if there were any connection between the INH and liver disease. Following up on its recommendation of a surveillance program, the Public Health Service sought to enlist the help of local health departments to report on the progress of patients in local health department INPI programs. The Service would keep the statistical information, while the local public health agencies would dispense the drug and monitor the people. Baltimore City at that time and for many years before had one of the highest tuberculosis rates in the country, both in number of cases and deaths. In order to expand its already existing prophylaxis program the Baltimore City Health Department agreed to participate in the special surveillance program.

The protocol for the surveillance program promulgated by the United States Public Health Service called for dispensing the drug, in pill form, only on a monthly basis. A patient would thus be required to return to the clinic once a month to receive his 30-day supply of pills. At the time of these visits, any adverse reactions would be noted, particularly any possible signs and symptoms of hepatitis. The protocol provided that the participant would be "ask[ed] specifically about jaundice, dark urine, sustained loss of appetite, marked fatigue and prolonged nausea or vomiting.” In any cases of suspected hepatitis, the isoniazid would be discontinued immediately. A monthly report card would be sent to the Public Health Service on each patient.

In 1972, Dr. Allan S. Moodie was the Administrative Health Officer in the Baltimore City Health Department in charge of the administrative aspects of the isoniazid program such as arranging funding and staff for the program. He arranged for the Baltimore City Health Department to participate in the United States Public Health Service surveillance program. Dr. Meyer W. Jacobson was the Clinical Director of the Baltimore City tuberculosis program. Eventually approximately 3,000 persons entered the surveillance program.

The program in Baltimore City provided that a clinic doctor would make the determination whether a person would be placed on INH therapy, based on the tuberculin skin test and chest X-ray. Thereafter, a nurse would instruct the patient on the use of the drug and any signs and symptoms of a reaction. At the follow-up monthly visits, at first only public health nurses were permitted to interview the participants in the program. As the program expanded, however, health aides and clerical help were authorized to conduct the interviews. If a patient reported any side effects, the patient was to be referred to a clinic doctor for further examination. Any reaction to the drug was to be reported on a chemoprophylaxis register sheet and on the computer cards sent monthly to the Public Health Service.

Mario Santoni became a participant in the Baltimore City isoniazid program in 1972. Mr. Santoni, a native of Italy, came to the United States in 1955. Two years later, he married the appellant, Antoinette Santoni. In Italy, Mr. Santoni had completed only the fourth or fifth grade and, in this country, worked primarily as a painter and carpenter. In 1972, he spoke only broken English and had great difficulty reading it. Prior to the illness which caused his death, his health had been excellent and, according to his wife, he had never been to a doctor for any illness.

In January, 1972, Mr. Santoni became a naturalized citizen of the United States and also became employed by Baltimore City as a maintenance man at the Southern District Police Station. As a prerequisite to his employment, he was required to undergo a medical examination with a tuberculin skin test and chest X-ray. The examination was done at the Eastern Health District Chest Clinic of the Baltimore City Health Department. It showed a positive tuberculin skin test but a clear chest X-ray. This combination of a positive skin test and clear chest X-ray indicated that Mr. Santoni did not have active tuberculosis but that he had live tubercle bacilli in his body. It indicated that he had a greater than ordinary risk of developing tuberculosis.

Dr. Herman Schaerf reviewed the test and X-ray and, on January 20, 1972, placed Mr. Santoni in the Baltimore City isoniazid program. The program called for Mr. Santoni to receive the drug isoniazid prophylactically for one year. Although isoniazid is a prescription drug, no physician in the program ever saw Mr. Santoni, and no informed consent form to utilize the drug was ever signed by Mr. Santoni or any of the approximately 3,000 other people who were in this special surveillance program.

Mr. Santoni faithfully went to the clinic each month to receive his monthly supply of the medication. He believed that in order to work for the City he had to take the isoniazid and regularly took his pills. In March, 1972, Mr. Santoni began to experience fatigue and decreased appetite. By April, he noted fullness, abdominal discomfort, and increased flatulence. By May, fatty food intolerance became evident, his stools became lighter, and his urine became darker. By early June, Mr. Santoni began to look worse and to feel more tired. His final visit to the clinic was on June 12, 1972.

During the month of May, Mr. Santoni began to look more pale and began to experience more gastric discomfort. His wife was away for a month at the shore with other members of her family. He complained about his condition to a neighbor. When Mrs. Santoni returned home in mid-June, she became concerned about her husband’s condition and consulted her doctor. The doctor prescribed cbantigel and librium for her husband’s stomach problems and nerves. When Mr. Santoni’s condition became worse, Mrs. Santoni called Dr. Joseph Notarangelo at Mercy Hospital. Mr. Santoni was admitted to the hospital on June 22, 1972.

At the time of Mr. Santoni’s admission to Mercy Hospital, he complained of excessive gas and indigestion and gave a fairly detailed history of his illness. He did not, however, know that he was jaundiced. At the hospital, Mr. Santoni was diagnosed as suffering from hepatitis. There is no treatment for the disease, only care to prevent complications. Despite the absence of any complications, Mr. Santoni’s condition deteriorated rapidly and he died on July 3,1972. Expert testimony placed the cause of death as a toxic reaction to isoniazid, causing hepatitis. Twelve other participants in the tuberculosis prevention program also died of liver disease in 1972.

There was expert testimony that had the disease been diagnosed in early June, Mr. Santoni’s chances for recovery would have increased significantly. There was further testimony that Mr. Santoni was probably jaundiced at the time of his last clinic visit on June 12. The chemoprophylaxis register sheet, which contained a history of Mr. Santoni’s visits to the clinic all along, however, made no mention of any adverse signs or symptoms.

It was not until the fall of 1972 that Baltimore City officials first became aware of the large number of deaths of participants- in the City isoniazid program. It was then brought to light that there were thirteen deaths in 1972 of participants in the program (both the general program and special surveillance program combined) and that one of these (Mario Santoni’s) was directly related and seven were probably related to the INH therapy. Five were listed as possibly related to INH therapy. The City INH prophylaxis program was thereafter severely restricted. Isoniazid was prescribed as preventive therapy only for certain high-risk individuals.

In addressing the specific contentions raised in this appeal and cross-appeal, we note at the outset that the question of negligence is not in issue here. That question was decided by the jury adversely to the appellees and was not raised in their cross-appeal. We are concerned only with the question of contributory negligence — whether or not there was legally sufficient evidence of contributory negligence on the part of Mario Santoni to support the jury’s finding. If there were not, a directed verdict should have been granted on this issue and the jury should never have considered the question.

Contributory negligence is a recognized defense in medical malpractice cases. It bars recovery where the patient’s negligence was an active and efficient contributing cause of the injury. "The rule of contributory negligence requires that the patient’s negligence must be concurrent with that of the physician. If it occurs after the physician’s negligence and merely adds to the effects, as opposed to being the cause of the patient’s problem, it will not relieve the physician from liability; it will merely serve to 'mitigate’ or lessen the amount of damages awarded to the patient.” Holder, Medical Malpractice Law, p. 302 (2nd ed. 1978).

The burden of establishing contributory negligence was on the defendants. In Batten v. Michel, 15 Md. App. 646, 652, 292 A.2d 707, we said:

"Contributory negligence is an affirmative defense and the burden of proving the plaintiffs contributory negligence rests upon the defendant. . .. Contributory negligence, if present, defeats recovery because it is a proximate cause of the accident....” (Citations omitted.)

A person is contributorily negligent when he fails to exercise ordinary and reasonable care for his own safety by doing something that a person of ordinary prudence would not do or failing to do something that a person of ordinary prudence would do, under the circumstances. In Menish v. Polinger Company, 277 Md. 553, 559, 356 A.2d 233, the Court of Appeals discussed this standard of care:

"In measuring contributory negligence, the standard of care to be used as the criterion is that of an ordinarily prudent person under the same or .similar circumstances, not that of a very cautious person. Sanders v. Williams, 209 Md. 149, 153, 120 A.2d 397, 399 (1956); and what an ordinarily prudent and careful person would do under a given set of circumstances is usually controlled by the instinctive urge of one to protect himself from harm. Greer Lines Company v. Roberts, 216 Md. 69, 79, 139 A.2d 235, 239 (1958); Martin v. Sweeney, 207 Md. 543, 548, 114 A.2d 825, 827 (1955).”

An important element of contributory negligence is the foreseeability of harm. To be held contributorily negligent, a person must actually have been aware of or should have appreciated the risks involved and then failed to exercise reasonable and ordinary care for his own safety. The courts have on many occasions discussed this element of foreseeability of risks and failure to exercise ordinary care. In Menish v. Polinger Company, supra, the Court of Appeals, stated, at 277 Md. 560-561:

"Before the doctrine of contributory negligence can be successfully invoked, it must be demonstrated that the injured party acted, or failed to act, with knowledge and appreciation, either actual or imputed, of the danger of injury which his conduct involves. . . . Stated another way, when one who knows and appreciates, or in the exercise of ordinary care should know and appreciate, the existence of danger from which injury might reasonably be anticipated, he must exercise ordinary care to avoid such injury; when by his voluntary acts or omissions he exposes himself to danger of which he has actual or imputed knowledge, he may be guilty of contributory negligence.” (Citations omitted.)

In Sanders v. Williams, supra, the Court stated, at 209 Md. 152:

"As is true of primary negligence, one measure of contributory negligence is the need, in a given situation, to anticipate danger. Presence or absence of reasonable foresight is an essential part of the concept. One is charged with notice of what a reasonably and ordinarily prudent person would have foreseen and so must foresee what common experience tells may, in all likelihood, occur, and to anticipate and guard against what usually happens. On the other hand, one is not bound to anticipate every possible injury that may occur or every possible eventuality.... Absent actual or constructive knowledge to the contrary, one may act on the assumption that he will not be exposed to danger that will come only by the breach of duty which another owes him. He is not bound to anticipate negligent acts or omissions on the part of others unless, under the circumstances, an ordinarily prudent person would know, or should know, that it was not safe to make the assumption of due care on the part of the other person.” (Citations omitted.)

With respect to this element of foreseeability, in discussing contributory negligence in medical malpractice cases, courts have noted the disparity between the knowledge and skill of a doctor and that of a patient. The patient is not in a position to diagnose his own ailment. Without being told, he does not know the risks of medication. He is not in a position to judge whether the prescribed course of treatment is in his best interest. As a consequence, it is not contributory negligence for a patient to follow a doctor’s instructions or rely on his advice, Largess v. Tatum, 130 Vt. 271, 291 A.2d 398 (1972), Los Alamos Medical Center, Inc. v. Coe, 58 N.M. 686, 275 P.2d 175 (1954); to fail to consult another doctor when the patient has no reason to believe that the doctor’s negligence has caused his injury, Johnson v. United States, 271 F. Supp. 205 (W.D. Ark. 1967), Rahn v. United States, 222 F. Supp. 775 (S.D. Ga. 1963), Fairchild v. Brian, 354 So. 2d 675 (La. App. 1977); or to fail to diagnose his own illness, O’Neil v. State, 66 Misc. 2d 936, 323 N.Y.S.2d 56 (1971). See also Martineau v. Nelson, 311 Minn. 92, 247 N.W.2d 409, 417 (1976); Annot., Contributory Negligence or Assumption of Risk as Defense in Action against Physician or Surgeon for Malpractice, 50 ALR2d 438.

The patient has a right to rely on the doctor’s knowledge and skill. The court in Halverson v. Zimmerman, 60 N.D. 113, 232 N.W. 754, 759 (1930), stated well the nature of this reliance:

"It is not a part of the duties of a patient to distrust his physician, or to set his judgment against that of the expert whom he has employed to treat him or to appeal to other physicians to ascertain if the physician is performing his duty properly. The very relation assumes trust and confidence on the part of the patient in the capacity and skill of the physician; and it would indeed require an unusual state of facts to render a person who is possessed of no medical skill guilty of contributory negligence because he accepts the word of his physician and trusts in the efficacy of the treatment prescribed by him. A patient has the right to rely on the professional skill of his physician, without calling others in to determine whether he really possesses such skill or not. The patient is not bound to call in other physicians, unless he becomes fully aware that the physician has not been, and is not, giving proper treatment.”

57 Am. Jur. 2d, Negligence, § 324, discusses the comparative knowledge of the parties as bearing on the question of liability.

"Since knowledge of danger, either actual or imputed, is an element of negligence, whether primary negligence on the part of the defendant, or contributory negligence on the part of the plaintiff, the question of liability is sometimes resolved in a negligence action by a comparison of the knowledge of the defendant as against the knowledge of the person injured. The proposition may be stated as follows: Liability is established when it is shown that the peril, being of the defendant’s creation, was known to the defendant but not to the person injured; but no liability is predicable of the injury when it appears that the injured person’s knowledge of the danger surpassed or equaled that of the defendent.”

Applying that body of law to the evidence, or lack thereof, in the case at hand, we note that there was no direct evidence at trial that Mario Santoni knew of the risks of taking INH. No informed consent form was ever signed by him nor was there any notation on his chemoprophylaxis register sheet that he was advised of the risk of hepatitis. Whatever evidence was introduced on this issue was totally circumstantial.

The appellees sought to establish through a series of inferences that Mr. Santoni was aware of the risks associated with isoniazid. The evidence showed that the protocol set forth by the U. S. Public Health Service for questioning a patient about the appearance of any adverse signs or symptoms was distributed to all the health clinics in Baltimore City. This protocol was discussed at the monthly meetings of the charge nurses from all the clinics. The administrative nursing supervisor assigned to the Division of Tuberculosis Control testified that she sat in on some of the interviews and saw the procedure being followed. From this evidence, the appellees argue that the inference could be made that Mr. Santoni was aware of the risks of isoniazid. From that inference, they then contend another inference could be drawn — that the absence of any notation on the register sheet as to any adverse signs or symptoms was due to Mr. Santoni’s failure to advise the clinic personnel of these reactions. As a consequence, they urge that the jury could have made the ultimate inference that Mr. Santoni was negligent in continuing to take the INH after the appearance of his symptoms and through his failure to seek immediate medical attention was responsible for his death.

To be sure, from the defendants’ evidence itself, as well as from additional evidence on the issue offered by the plaintiff, a strong countervailing argument could also be mounted. A circumstantial predicate was established that arguably showed that Mr. Santoni did not indeed know of the risks of isoniazid ingestion or associate his symptoms with the medication because he was not properly questioned about adverse reactions. Mr. Santoni was an immigrant with little formal education. He and his wife spoke Italian at home. He spoke only broken English and had great difficulty reading English. He did not go to doctors for any medical treatment. Under the impression that he had to take the INH to retain his job with the City, he went to the clinic regularly to get the medication. He had a right to rely on the clinic personnel in his treatment. They were in a far superior position to recognize any adverse signs or symptoms. Mr. Santoni first began to notice ill-defined symptoms of fatigue and decreased appetite in March. The evidence indicates that he continued to associate his symptoms with stomach problems, as is evident on his hospital admission record. At the time of his admission, he complained of excessive gas and indigestion and did not know that he was jaundiced. On the basis of his complaints, a preliminary diagnosis of a peptic ulcer was, in fact, made.

The appellant offered evidence that argued against contributory negligence, if such countervailing evidence had been needed. Mr. Santoni was not accustomed to taking medication. Reactions to medication are not always clear-cut and definite. A layman is not in a position to know that ill-defined symptoms are due to a drug. Doctors themselves many times are unsure. The symptoms are sometimes very prominent; at other times they are very subtle. When the symptoms, which the evidence indicates Mr. Santoni associated with his stomach, became more pronounced, Mr. Santoni did, indeed, seek medical attention. This, furthermore, was not an isolated case where one man allegedly knew but failed to report signs and symptoms of hepatitis and died as a result. There were twelve other deaths in 1972 in Baltimore City of participants in the City’s INH prophylaxis program. There was no evidence that any of them complained of any adverse reactions. Dr. Schaerf, in fact, stated that of the six to eight deaths at the Druid Clinic, none of the patients reported any symptoms consistent with hepatitis. Mr. Santoni can be held accountable for what a reasonably prudent person in his position would have done.

The precise question before us, however, is not what the countervailing evidence might have been to negate contributory negligence but whether such countervailing evidence was even necessary. The burden of proof upon the issue was upon the defendants and the question is whether their best version of the facts added up to a prima facie case. The defendants argue that there was evidence from which an inference could be made that Mr. Santoni either associated or should have associated his symptoms with the medication but failed to report the adverse reactions to the clinic nurses because he was afraid to lose his job with the City. In addition to Mrs. Santoni’s testimony that her husband believed he was required to take the drug in order to work for the City, they rely upon the evidence that Mr. Santoni told Dr. Notarangelo, upon his admission to Mercy Hospital, that he was self-employed and worked at City Hall on weekends. There was also evidence that Mr. Santoni stopped taking the medication two weeks before he was admitted to the hospital.

The appellees argue that this gives rise to a possible inference of contributory negligence. The appellant argues, on the other hand, that this gives rise to the equally probable inference of due care.

It is important to state precisely the test for measuring the legal sufficiency of the evidence on the issue of contributory negligence in a case such as this. In the most routine setting, where each party has offered conflicting factual versions of the event and where each version could give rise to its own permitted inferences, the test is as stated by the Court of Appeals in Fowler v. Smith, 240 Md. 240, 246-247, 213 A.2d 549:

"Negligence is a relative term and must be decided upon the facts of each particular case. Ordinarily it is a question of fact to be determined by the jury, and before it can be determined as a matter of law that one has not been guilty of negligence, the truth of all the credible evidence tending to sustain the claim of negligence must be assumed and all favorable inferences of fact fairly deducible therefrom tending to establish negligence drawn. Kantor v. Ash, 215 Md. 285. Cf. Suman v. Hoffman, 221 Md. 302. And Maryland has gone almost as far as any jurisdiction that we know of in holding that meager evidence of negligence is sufficient to carry the case to the jury. The rule has been stated as requiring submission if there be any evidence, however slight, legally sufficient as tending to prove negligence, and the weight and value of such evidence will be left to the jury. Ford v. Bradford, 213 Md. 534. Cf. Bernardi v. Roedel, 225 Md. 17, 21. However, the rule as above stated does not mean, as is illustrated by the adjudicated cases, that all cases where questions of alleged negligence are involved must be submitted to a jury. The words 'legally sufficient’ have significance. They mean that a party who has the burden of proving another party guilty of negligence, cannot sustain this burden by offering a mere scintilla of evidence, amounting to no more than surmise, possibility, or conjecture that such other party has been guilty of negligence, but such evidence must be of legal probative force and evidential value. State v. Hopkins, 173 Md. 321, and cases cited; Hevell v. Balto. Transit Co., 173 Md. 327; Haddock v. Stewart, 232 Md. 139.” (Emphasis in original.)

This particular question of legal sufficiency, however, does not arise in the most ordinary setting of conflicting versions of the facts. It is rather the case that even the defendants’ best version of the facts could serve as the predicate for competing inferences, one of contributory negligence and one of due care (or at least of the absence of contributory negligence). The appellant urges upon us, in such a setting, a test of legal sufficiency as articulated in Baltimore Transit Co. v. Presherry, 233 Md. 303, 308, 196 A.2d 717: "Where evidence permits several inferences equally probable, a proponent must eliminate the exculpatory ones.” That statement of the test came from a significant line of Court of Appeals cases dealing with alternative inferences. It behooves us initially to examine this body of case law and to determine whether it represents, indeed, a separate test of legal sufficiency. In dealing with a situation where alternative and conflicting inferences could have arisen from a single factual predicate, the Court of Appeals stated the test for legal sufficiency in Langville v. Glen Burnie Coach Lines, Inc., 233 Md. 181, 185, 195 A.2d 717:

"At this point, we are confronted by the well-established rule of evidence that the burden mentioned above is not met by proof adduced by the plaintiff to the effect that defendant’s negligence may have caused the injuries, or even that it probably did cause them, if it also appears from plaintiffs evidence that the injuries may have resulted from some other cause for which the defendant is not responsible.”

The rule of Langville was, in turn, taken from Strasburger v. Vogel, 103 Md. 85, 63 A. 202, where the Court of Appeals held that the evidence of primary negligence in that case was not legally sufficient and should not have gone to the jury. The plaintiff there offered a version of the facts that could have given rise to an inference of negligence but could also, with equal probability, have given rise to an alternative inference that negated negligence. In dealing with such an "either/or” foundation for alternate inferences, Chief Judge McSherry said for the Court, at pp. 91-92:

"But when the plaintiff himself shows that the injury complained of must have resulted either from the negligence of the defendant or from an independent cause for the existence of which the defendant is in no way responsible, he cannot be permitted to recover until he excludes the independent cause as the efficient and proximate cause of the injury;....” (Emphasis in original.)

And again, at p. 93:

"It is equally obvious that where the evidence of the plaintiff is evenly balanced as to whether the cause for which a defendant may be responsible, or the cause for which he is not responsible produced the injury, the jury would have no right to disregard arbitrarily the proof which exculpated and to credit only that which inculpated — to adopt the theory which would subject the defendant to damages and to reject that which would exonerate him.”

The Langville rule was invoked by the Court of Appeals in Baltimore Transit Co. v. Presberry, supra, under circumstances where the plaintiffs own case for negligence arguably permitted the inference of negligence but also permitted, upon the same established facts, the inference that the defendant was not negligent. The Court of Appeals held that that was not a sufficient predicate to allow the case to go to the jury, saying at 233 Md. 308:

"The burden is upon a proponent to establish negligence. Where evidence permits several inferences equally probable, a proponent must eliminate the exculpatory ones. See Joffre v. Canada Dry, Inc., 222 Md. 1, 8 and cases cited. See also Langville v. Glen Burnie Coach Lines, 233 Md. 181. We think the evidence of primary negligence on the part of the Transit Co. was legally insufficient.”

In Ferguson v. Wootten, 240 Md. 186, 213 A.2d 498, the Court of Appeals dealt with the converse situation where there was a direct conflict in testimony so that the option of drawing one of several opposing inferences from one of several opposing factual predicates was properly left to the jury. The Court of Appeals there distinguished that situation from one appropriately calling for the Langville rule, saying at 240 Md. 190-191:

"The appellant argues that because of this conflict in the testimony offered by the appellee, the jury should not have been allowed to speculate on which version was correct. The appellant relies upon Langville v. Glen Burnie Lines, 233 Md. 181, 195 A.2d 717 (1963).
In Langville, the testimony, all offered by the plaintiffs, was that the accident was caused either by the negligence of the driver of the defendant’s bus or by a sudden and unexpected brake failure which a reasonable inspection or test of the brakes would not have revealed. We held that the lower court was correct in granting a motion for a directed verdict in favor of the defendant. The case, we found, was governed by the rule that the burden upon the plaintiff to prove affirmatively the defendant’s negligence and that it was a proximate cause of the injuries is not met by proof adduced by the plaintiff that defendant’s negligence may have caused the injuries, or even that it probably did cause them, if it also appears that the injuries may have resulted from some other cause for which the defendant is not responsible. There was no direct testimony in Langville that the defendant’s negligence, rather than the brake failure, was a proximate cause of the accident. Here, the situation is different. There was direct contradictory testimony that Bailey was negligent and that he was not. As was indicated in Baltimore Transit Co. v. Presberry, 233 Md. 303, 308, 196 A.2d 717 (1964), the evidence in Langville permitted several equally probable inferences. Here, neither the appellee’s testimony nor that of her witness, Mrs. Nock, rested on inference. There was a sharp conflict in their testimony as to whether Bailey entered on the red or the green light. This was a question of fact, not of inference, and as such was properly left to the determination of the jury. . . . The issue left to the jury was not a speculative choice between the possibilities inherent in the only testimony offered but a determination of the truth in direct, unspeculative testimony of witnesses who differed as to what had happened.”

In Short v. Wells, 249 Md. 491, 240 A.2d 224, the Court of Appeals also dealt with a situation where a factual dispute made submission of the case to the jury appropriate. In that case as well, however, they came to grips with the Langville rule. They mentioned it by name, quoted from it, pointed out that it "has been applied many times by this Court,” but went on to point out that "it may only be applied in a proper case and this is not such a case.” After several pages of analysis of the two arguably different measures of legal sufficiency, the Court distinguished the factual conflict in front of it in that case from the very different conflict between alternative inferences, saying at 249 Md. 496-497:

"But that is not the case here where there is more than conflicting inferences. Here there is direct as well as circumstantial evidence of negligence. It was therefore a question of fact for the jury and not mere speculation or conjecture as to what to infer ... [T]he court.. . overlooked the fact that the conflict was not in the competing inferences drawable from the circumstantial evidence but in the direct evidence. For that reason, the court should have submitted the evidence to the jury.” .. . (Emphasis in original.)

In Larsen v. Romeo, 254 Md. 220, 255 A.2d 387, on the other hand, the Court of Appeals applied the Langville rule and held that the lower court correctly refused to submit a case to the jury, where two conflicting inferences could have been drawn from the same evidence and the proponent failed to negative the exculpatory inference. In Richards v. Huntt, 255 Md. 255, 257 A.2d 412, the Court of Appeals dealt with a situation where the case should have gone to the jury, because there was a conflict in the testimony itself and not simply competing inferences possibly arising from the same facts. The court there analyzed at great length both the Langville case and Ferguson v. Wootten, supra, and stressed the two types of conflict which give rise to two different ways of measuring legal sufficiency. Most recently, the Court of Appeals in General Motors Corp. v. Lahocki, 286 Md. 714, 410 A.2d 1039, discussed the distinct nature of the things to be measured and there held that, since a factual dispute was involved, reliance "on such cases as Strasburger v. Vogel...; Richards v. Huntt... Langville v. Glen Burnie Lines. . . and Stitzel v. Kurz, 18 Md. App. 525, 308 A.2d 430 (1973), is misplaced.”

Enough! It is time to back away from the individual cases and regain perspective. There is a danger that this and predecessor cases have unduly complicated the statement of the law, whereas our ever-present goal should be to simplify such statement. There is a danger that entangled in the underbrush of case law, we have lost sight of the larger forest. From Langville and its progeny and all of the elaboration thereon, we may be able to distill a simple and more general evidentiary statement.

The simple rule, shorn of elaboration, is that the question of whether a particular inference is permitted is one of law for the trial judge. When we are dealing with conflicting direct evidence on an issue, all that is necessary to get to the jury is some competent evidence which, if the jury in its unfettered prerogative should believe, would establish the thing to be proved. It is always for the jury to determine which of several conflicting versions of the facts to believe. By the same token, when those various versions of fact give rise to various permitted inferences, it is always for the jury to determine which inference to draw (or, in its prerogative, to draw no inference) . All of the language, however, about leaving to the jury the question of which inference to draw is uttered in the limited context of competing permitted inferences. When in discussing the law of directed verdicts, therefore, the case law speaks of giving the party against whom the motion is directed the benefit of the most favorable version of the facts and all inferences fairly deducible therefrom, the phrase "inferences fairly deducible therefrom” means "permitted inferences” and not mere speculative possibilities.

Although the jury may choose between permitted inferences (or choose not to draw any inference at all), it is for the judge in the first instance to determine, as a matter of law, which inferences are permitted. When analyzing the legal sufficiency of circumstantial evidence rather than direct evidence, we are measuring the adequacy of predicate facts, assuming them to be true, to give rise to inferred facts. The rule is that the inferred fact must follow more likely than not from the predicate fact for the jury even to be permitted the option of inferring. This is the production burden which the proponent must meet in order to establish a prima facie case and avoid the peril of a directed verdict. Even when that production burden is met, of course, the proponent must still persuade the factfinder, by the appropriate burden of persuasion, to draw the inference, but if the production burden is not met, he does not even get the opportunity to persuade.

What, therefore, appears to be a separate sub-body of case law in the Strasburger-Langville tradition for handling equally probable but alternative inferences arising from a single factual predicate actually dissolves, upon closer analysis, into nothing more than a particular and limited instance of the general principle. Deceptively, however, that body of case law developed a language all of its own without adequate reference back to the general principle. When those cases speak of the evidentiary insufficiency of showing "that the injury complained of must have resulted either from [A] or from [B]... until he excludes [B],” it is simply a way of saying that neither A nor B is a permitted inference because neither A nor B is more likely than not to be true. When those cases speak of the fatal failure to eliminate the exculpatory inferential alternative, they are simply stating the mathematical truism that if A and B begin as equally probable alternatives, A cannot become the more probable of the two and rise to the level of a permitted inference, unless and until B has either been eliminated or had the likelihood of its occurrence significantly diminished. An inferred fact that is only equally probable is not a permitted inference because, by definition, if it is only "equally probable,” it is not "more probable.”

Applying then this general test of legal sufficiency to the particular facts in this case, we hold that even that version of facts most favorable to the defendants was not legally sufficient to give rise to a permitted inference of contributory negligence. There was a possibility of contributory negligence. One could speculate that there might have been contributory negligence. Contributory negligence was not, however, a more likely than not conclusion to draw from the ambiguous factual predicate erected by the defendants.

From the established facts that the protocol of the U. S. Public Health Service was distributed to all health clinics in Baltimore City, was discussed at monthly meetings of the charge nurses at those clinics and was observed by an administrative nursing supervisor to be followed on several occasions, it is no more likely that questions about symptoms were specifically asked of Mr. Santoni than that they were not. The defendants would go further, however, and pile another inference upon the first inference they would have had the jury draw. Once again, however, from the fact that questions about symptoms were asked Mr. Santoni, it is no more likely that he would have deduced from the questioning the fact that a significant medical danger was involved than that he would not have so deduced. The defendants, however, would have us pile yet a third inference upon the first two. Once again, from the fact that no symptoms were recorded on Mr. Santoni’s chemoprophylaxis sheet, it is no more likely that Mr. Santoni knew of the danger and negligently failed to report the symptoms than that a laxness in the monitoring procedure produced the empty record.

From this ambiguous factual predicate, a number of mere possibilities may have followed. There was, however, no probability of contributory negligence, for there was no more reason to infer it than there was not to infer it. Since the evidence did not point toward it as a logical and probable conclusion it was not sufficient to support a legally permissible inference that Mario Santoni was negligent and that his negligence was the proximate cause of his death. The jury should not have been permitted to speculate on the matter. A legally permissible inference cannot be based on mere speculation or conjecture.

Having disposed of the appellant’s appeal on this issue, it is unnecessary to address the other questions raised by her.

This disposition of this issue does, however, require us to address the issues raised by the cross-appeal. The appellees/cross-appellants contend that their motions for a directed verdict on the grounds of governmental immunity should have been granted. Suit was originally brought against four doctors. All four filed motions for summary judgment on the ground that they were immune from suit because they were sued for discretionary acts performed in the course of their employment with the Baltimore City Health Department. Only the motion of Dr. Robert E. Farber, who was the Commissioner of Health of Baltimore City at the time of the isoniazid surveillance program, was granted. At the end of all the evidence, the appellees again moved for a directed verdict on the same ground. Their motions were again denied.

In their cross-appeal, the appellees/cross-appellants argue that they exercised administrative responsibilities within the Health Department which involved pure discretion for which they should be completely immune from suit. They rely on James v. Prince George’s County, Maryland, 288 Md. 315, 418 A.2d 1173, which reaffirmed that governmental immunity extends to public officials when performing discretionary, rather than ministerial, acts in furtherance of their official duties. The appellees, however, failed to establish the initial premise for that proposition — that they were indeed public officials rather than public employees. Since the question of who is a public official rather than a public employee is not always clear and involves an application of various tests (see Duncan v. Koustenis, 260 Md. 98, 271 A.2d 547), we cannot take for granted that which was not proved.

The appellees’/cross-appellants’ other contention is that the evidence of the deaths of twelve other participants in the City’s INH program was improperly admitted, placing a burden on them to disprove twelve other cases of negligence and prejudicing the jury. The evidence of twelve other deaths was admitted not for the purpose of showing independent acts of negligence but only for the purpose of establishing causation, existence of a dangerous situation, and knowledge of the dangerous situation on the part of the appellees/cross-appellants. It was, moreover, relevant on the issue of negating contributory negligence, as has already been fully discussed. With respect to the issues of causation and the existence of a dangerous situation, the thirteen deaths were definitely similar in circumstances. All thirteen people died of liver disease in the same year after INH ingestion as part of the City’s isoniazid program. The evidence indicated that all of the deaths were either directly, probably, or possibly related to the isoniazid. Dr. Schaerf stated specifically that of the six to eight deaths of participants at the Druid Chest Clinic, none reported any signs or symptoms consistent with hepatitis. This fact was highly relevant on the questions of 1) whether INH ingestion caused Mr. Santoni’s toxic hepatitis and was a dangerous drug, 2) whether the clinic personnel knew or should have known of its danger from the prior deaths and properly should have advised the participants of the risks and 3) whether Mr. Santoni’s death was due to some unusual dereliction or contributory negligence on his part. In the final analysis the ultimate weighing of evidentiary relevance versus its counterweight of possible prejudice is assigned to the wise discretion of the trial judge. The trial judge here found the evidence to be sufficiently relevant on a combination of issues to warrant its admission. We see no abuse of that discretion. See McCormick, Law of Evidence, § 200 (2nd Ed., 1972).

Judgment reversed in part and affirmed in part.

Case remanded for retrial on issue of damages; costs to be paid by appellees.

      . Suit was also brought against several other defendants as to whom the case, for one reason or another, was dismissed prior to trial.

      . The rule, of course, is the same where the judge is sitting as a fact finder. As to his discretion in choosing between permitted inferences or choosing to draw no inference at all, see Danz v. Schafer, 47 Md. App. 51, 422 A.2d 1.


source: Caselaw Access Project

author:
Moylan, J.,
      Liss, J.,

license: Public Domain

text:
    JAMES EDWARD DEBETTENCOURT v. STATE OF MARYLAND
    [No. 1112,
    September Term, 1980.]

      Decided April 21, 1981.

    The cause was argued before Moylan, Mason and Liss, JJ.

      Alan Hilliard Legum, with whom was Rena E. Friedman on the brief, for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Hollis Raphael, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court. Liss, J., filed a dissenting opinion at page 532 infra.

It would be comforting simply to announce, in the mode of Gertrude Stein, that malice is malice is malice is malice. In law as opposed to poetry, however, it takes more than an ipse dixit to get there. The precise issue is "Does the mental element of malice within the contemplation of the arson law embrace the same 'reckless and wanton disregard of the consequences of a dangerous act’ as does the mental element of malice within the contemplation of the homicide law?” We shall hold that it does.

The propounder of this question is the appellant, James Edward DeBettencourt, who was convicted by a Prince George’s County jury, presided over by Judge William H. McCullough, of statutory arson under Article 27, Section 6. That section provides:

"Any person who wilfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels or procures the burning of any dwelling house, or any kitchen, shop, barn, stable or other outhouse that is parcel thereof, or belonging to or adjoining thereto, whether the property of himself, or of another, shall be guilty of arson, and upon conviction thereof, be sentenced to the penitentiary for not more than thirty years.”

The Maryland statute simply represents an enlargement of the common law felony of arson. It provides that when a dwelling house is the subject of the arson, it need not, as at the common law, be the property of another, but is the proper subject of the crime "whether the property of himself, or of another.” It furthermore explicitly protects, where the common law was ambiguous, not simply dwelling houses but also "any kitchen, shop, barn, stable or other outhouse that is parcel thereof, or belonging to or adjoining thereof.” It furthermore makes a principal of him who "causes to be burned or who aids, counsels or procures the burning,” whereas such participation at the common law would have rendered one an accessory before the fact. In all other regards, however, the common law felony of arson and its attendant judicial interpretation over the centuries remain unchanged. Brown v. State, 285 Md. 469, 403 A.2d 788; Butina v. State, 4 Md. App. 312, 242 A.2d 819. It is the common law mental element of malice, undisturbed by legislative modification, that is at issue here.

Counsel have commendably narrowed the focus. There is no dispute over the fact that a dwelling house, 515 Comptom Avenue in Laurel, Maryland — indeed, the home of the appellant himself — burned on October 4,1979. There is no dispute over the fact that the appellant was the incendiary agent. The only dispute is over what he had in mind when he set the torch and what legal significance that state of mind may have.

Eight witnesses testified for the State. The appellant did not take the stand and called no witnesses on his behalf. Arson investigators at the fire scene found that flammable liquid had been spread on the floor of the dwelling. They found two gasoline cans inside the house. Just before the fire broke out, two neighboring teenaged boys observed the appellant enter his house carrying what appeared to be two gasoline cans. These boys, and the father of one of them, testified that they saw the truck belonging to the appellant pull away and drive off at a time when flames were seen in the house. The proof of incendiary agency was clear.

By way of arguable explanation for such bizarre behavior, however, some of the State’s evidence could have given rise to an inference of a depressed and distraught state of mind. That evidence revealed that during the time when the appellant and his family occupied the home together, he was often seen working to improve the premises and creating what was described as a lovely garden. At some time before the fire, the home had been abandoned by the appellant’s wife and her child. The rooms were vacant and empty of furniture, save only a chair in the kitchen, a mattress in one bedroom and a few items of men’s clothing. An embittered man may indeed have been seeking to obliterate the memory of what had once been a happy home. The question is would such motivation serve to preclude the necessary element of malice? That all depends, of course, upon what "malice” means.

At both the common law and according to the statute, the fundamental predicate — the actus reus— is that the culprit "sets fire to or burns.” The indispensable mens rea, at both the common law and according to the statute, is spelled out by the twin adverbial requirements that the act be done "wilfully and maliciously.” It is hornbook law, not requiring even abbreviated discussion, that "wilfully” simply spells out the element of a general intent to do the thing which is done, factoring out involuntary or accidental actions and those actions done by one who is incompetent in terms of criminal responsibility. Some crimes, however, require some additional mens rea to aggravate or heighten the level of blameworthiness. Sometimes the possession of a "specific intent” as to the desired result of the generally intended act is the aggravating, additional mens rea. Sometimes (murder, arson and mayhem come immediately to mind), it is the element of "malice” that is the aggravating, additional mens rea.

In Brown v. State, 39 Md. App. 497, 388 A.2d 130, this Court erroneously concluded that over the decades the word "maliciously” had been so drained of content, within the contemplation of the arson law, as to have been subsumed within the word "wilfully.” We there concluded that any showing of the general intent to do the incendiary act would be, ipso facto, enough to show that the act was done maliciously and was, therefore, arson. In large measure, our error flowed from our overbroad reading of the point made by all of the common law treatise writers that "malice” did not require any showing of hatred, malevolence or ill will. In Brown v. State, 285 Md. 469, 403 A.2d 788, the Court of Appeals reversed our holding and pointed out that "malice” did still possess a psychic content of its own, above and beyond the general intent to do the deed, notwithstanding the truism observed by all of the commentators that that remaining additional content did not necessarily involve hatred, malevolence or ill will.

Indeed, as the common law recognized the non-necessity for hatred, malevolence or ill will, it was distinguishing motive from intention (in all of its varieties: mere general intent, additional specific intent and/or additional malicious intent). It made the point that one who intentionally did the forbidden act with the intention to achieve the forbidden consequence, was guilty whether his emotional motivation was hatred, love or sheer indifference. Professor Perkins pointed out in his Criminal Law (Second Edition, 1969), at p. 218:

" 'The malice which is a necessary element in the crime of arson need not ... take the form of malevolence or ill will,’ just as nothing of this nature is needed for malice in the law of homicide. Thus if a reward is offered to the person who first brings to the fire station the information of a house on fire, one who ignites a dwelling house for the sole purpose of claiming this reward is guilty of arson. A prisoner who sets fire to the building in which he is confined, merely for the purpose of escape, is also guilty, and this is true even if he intends only to burn a hole through which he may pass and does not intend that the building should be further damaged. Furthermore, a landlord who had burned his tenant out of house and home could not successfully establish want of malice by showing that he had no ill will toward his lessee, but had burned the house to collect the insurance.” (Emphasis supplied.)

In Clark and Marshall, The Law of Crimes, (6th Wingersky Edition, 1958), the same point is made at p. 899:

"If a man willfully and intentionally sets fire to and burns a house, without justification or excuse, his act is malicious, and he is none the less guilty of arson because he does not intend to consume the house, but is influenced by other motives. Therefore, it could be successfully asserted that, if a prisoner sets fire to and burns any part of a jail, he is guilty of arson, though his intention may be, not to consume the jail, but merely to effect an escape. And where defendant was a 'fire fan’ who started the fire to enjoy the excitement created, he was convicted of arson.”

As we ourselves noted in Evans v. State, 28 Md. App. 640, 692, 349 A.2d 300, under the subheading of "Non-malicious 'malice’

"It has, of course, become a commonplace to lawyers that 'malice’ connotes nothing which would strike a layman as 'malicious.’ ”

In discussing the mental element of "malice” all of the masters of the common law analogize freely between the law of arson and the law of homicide. In the context of homicide, the future Justice Holmes noted in his Common Law (1881) at p. 53:

"It is just as much murder to shoot a sentry for the purpose of releasing a friend, as to shoot him because you hate him. Malice, in the definition of murder, has not the same meaning as in common speech. . .
... [A] newly born child is laid naked out of doors, where it must perish as a matter of course. This is none the less murder, that the guilty party would have been very glad to have a stranger find the child and save it.”

In that same context of homicide law, Professor Perkins spoke to the same point in his Criminal Law (Second Edition, 1969), at p. 35:

"In ordinary conversation the word 'malice’ conveys some notion of hatred, grudge, ill-will, or spite, but no such idea is incorporated in the legal concept of'malice aforethought.’... this crime may be perpetrated without the slightest trace of personal ill-will. Illustrations include the case of a mother who kills her illegitimate offspring to hide her own disgrace, feeling at the time no hatred toward it or any other person and even having the yearnings of a mother’s love toward the innocent victim — 'loving its life just less than her own reputation.’ There may be added the case of the husband who killed his wife at her request, because his love was too great to permit the continuance of her suffering from a hopeless disease. Even such extreme cases as these have been held to fill every requirement of malice aforethought....”

If then, the additional psychic content of "malice,” above and beyond the general intent of "wilfulness,” does not necessarily embrace any notion of hatred, malevolence or ill will, what then does it embrace? In the factual context of that case at least, the Court of Appeals in Brown v. State, supra, referred variously to the additional psychic element there as the "intention or desire to harm another . .. through doing something unlawful or otherwise unjustified” and as the "intension] to bring harm to another person.” We take great sustenance in Brown v. State, supra, as a point of departure, but are called upon to fill several interstices that were not before the Court of Appeals in Brown.

That case dealt with the legal sufficiency of the evidence to support a finding of malice. In our case, there is no question of legal sufficiency. Counsel for both sides agree that if "malice” does indeed embrace the wilful doing of a dangerous act recklessly disregardful of its consequences, the evidence is unquestionably there to permit the inference of such a state of mind. The limited issue before us is whether that reckless and wanton state of mind constitutes malice in one of its forms. The issue arose in the context of the following disputed jury instruction:

"In this context the meaning of the word malicious is the conscious desire to harm another through doing something unlawful or otherwise unjustified or doing an act displaying a reckless disregard for the safety of others. ” (Emphasis supplied.)

Again, counsel have very commendably narrowed the focus of the issue. The adequacy of the instruction to describe or delimit the various states of mind is not being contested. It is a clean legal question of whether malice, within the contemplation of the law of arson, consists exclusively of mental state A (the specific and affirmative intent to do harm) or also embraces the less routine, variant mental state B (the reckless doing of a dangerous act with wanton indifference to the consequences). Counsel for the appellant acknowledges that if that latter is the state of the law, the instruction in issue is adequate. Conversely, counsel for the State acknowledges that if that is not the state of the law, the instruction in issue is inadequate. The question could not be more neatly framed.

In Brown, the narrow issue before the Court of Appeals was whether the finding of a mere general intent to set the fire — a finding of mere wilfulness — was enough, ipso facto, to support a finding of malice. The Court held that it was not. There was no evidence in that case — involving the openly acknowledged and deliberate burning of an outbuilding — remotely suggesting any affirmative desire to harm anyone or anything. In the present case, by way of contrast, there was evidence that other residences lay in reasonably close proximity to the appellant’s home that was burned and were inferably in possible danger if the fire had somehow spread. In Brown, moreover, the Court of Appeals was very careful to point out that "[a]ll the utilities had been turned off prior to the fire, minimizing the risk of a more extensive conflagration.” In the present case, by way of additional contrast, the evidence showed that the utilities were still hooked up, including both a hook up for electricity and also a hook up "to a bottle of propane gas” that was used for "either heating or cooking or both.” The alternative state of mind now in issue before us — the deliberate doing of a reckless and dangerous act — was simply not addressed by the Court on that occasion even by way of oblique allusion. We are treading new ground.

As we do so, we find, as the great masters of the common law found before us, the analogy to the more thoroughly investigated field of homicide most instructive. The intentional setting of a fire is arson’s analogue to homicide’s intentional pulling of a trigger. Each represents the general intent to do the immediate act, the element of wilfulness, in the respective crimes. To be sufficiently blameworthy to be deemed guilty of either murder or arson, however, requires an additional or aggravating psychic element. In homicide law, this psychic aggravation in its most classic form is the intent to kill. Arson’s analogue, as pointed out in Brown, is classically the intent to harm person or property.

In homicide law, this classic form of malice is referred to as "express malice.” In its vaster experience with infinite nuances, however, the law of homicide has recognized variant forms of malice. It refers to these as the various types of "implied malice” (more sophisticated modern analysis recognizes them as forms of "equivalent malice”). One of these variant forms of malice — the analogue of the hour — is that of "the depraved heart.” It is the form that establishes that the wilful doing of a dangerous and reckless act with wanton indifference to the consequences and perils involved, is just as blameworthy, and just as worthy of punishment, when the harmful result ensues, as is the express intent to kill itself. This highly blameworthy state of mind is not one of mere negligence (even enough to serve as the predicate for civil tort liability). It is not merely one even of gross criminal negligence (even enough to serve as the predicate for guilt of manslaughter). It involves rather the deliberate perpetration of a knowingly dangerous act with reckless and wanton unconcern and indifference as to whether anyone is harmed or not. The common law treats such a state of mind as just as blameworthy, just as anti-social and, therefore, just as truly murderous as the specific intents to kill and to harm.

We reason that this is true when dealing with the malice element of arson’s mens rea just as surely as it is true when dealing with the malice element of murder’s mens rea. Intentionally to set a fire with the express purpose "to bring harm to another,” Brown v. State, supra, is malicious, in the most ordinary sense of that term of art. So too is it malicious intentionally to set a fire with reckless indifference to the danger toward the persons or property of others. The aggravated or heightened blameworthiness is there in either manifestation. This aggravating or incremental mens rea, in any of its guises, is the thing we call "malice.”

We discern, moreover, in the dicta of the Court of Appeals, a strong inclination in this direction. In Brown v. State, supra, they found that the evidence was not legally sufficient to support a finding of malice. In this regard, they stated very deliberately, at p. 475:

"Nowhere does the record indicate that Brown had any intention to harm others or that he displayed a reckless disregard for their safety.” (Emphasis supplied.)

For the appellant to prevail, he would have to dismiss the words following the disjunctive "or” as mere surplusage. We will not so treat them, for we believe both that they were carefully chosen and that they accurately reflect the state of the law in dealing with complex and variegated manifestations of arson’s mens rea.

There is additional virtue in keeping true the analogy between malice in arson and malice in homicide. A coherent body of legal doctrine should continually strive for general principles, for a unified field theory of criminal responsibility. It should avoid Balkanizing the harms proscribed by the criminal law into isolated and inconsistent fragments wherein the same word means one thing in one context and something quite different in another context, with no sensible explanation for the disparity. Like things should not be treated in unlike ways. As we strive, therefore, for an integrated and coherent body of legal doctrine on the mental element of "malice,” there is the additional benefit of not only reconciling the uses of the term within the context of the criminal law itself but also of reconciling that use with "constitutional malice” in the First Amendment context of libel law. New York Times Company v. L. B. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686, 95 ALR2d 1412 (1964).

We do not intimate that this necessarily exhausts the mental states that may be malicious within the contemplation of the law of arson. We simply decide (all that is necessary for this decision) that the intentional setting of a dangerous fire with reckless and wanton disregard of the consequences in terms of the danger of bringing harm to others is part of the content of that aggravating psychic element known as malice. We do not suggest necessarily that this is all there is to malice. We simply state that there is no less than this.

The appellant’s final contention is insubstantial. In the course of its deliberations, the jury sent a note to the trial judge which read: "Your Honor, could you give us the definition of 'malice’ as applied to this case?” The judge returned the jury to the box and simply reread the definition of malice to them as he had given it to them earlier. He added the caution that they "should consider this instruction along with all of the other instructions that I gave you. Don’t consider this in a vacuum, consider all of the instructions I gave you.” The appellant now objects that the giving of this instruction alone without surrounding it and sanitizing it with all of the other instructions about burden of proof and the presumption of innocence denied him due process of law. He cites no authority for the proposition and we can imagine none. The jury was concerned with hearing again one single definition and that is what it asked. The judge gave the jury precisely the answer it sought. There is simply no point, when the jury asks what time it is, in telling them all over again how to build a clock.

Judgment affírmed; costs to be paid by appellant.

Liss, J.,

dissenting:

As pointed out by the majority, the issue in this case ".. . is a clean legal question of whether malice, within the contemplation of the law of arson, consists exclusively of mental state A (the specific and affirmative intent to do harm) or also embraces the less routine, variant mental state B (the reckless doing of a dangerous act with wanton indifference to the consequences).”

The majority opts for the "variant mental state B (the reckless doing of a dangerous act with wanton indifference to the consequences).”

The evidence that the majority found to be sufficient to show such "reckless doing of a dangerous act with wanton indifference to the consequences” is

"that other residences lay in reasonably close proximity to the appellant’s home that was burned and were inferably in possible danger if the fire had somehow spread.”

Even if we assume the majority’s view of the law to be correct, there is no evidence whatsoever of what proximity the other residences were to appellant’s home. Thus even under appellee’s reading of Brown v. State, 285 Md. 469 (1975), the affirmance is wrong. Such surmise from an empty record does not comply with the sufficiency of the evidence requirement of Jackson v. Virginia, 443 U.S. 307 (1979), upon appellate review, i.e., evidence beyond a reasonable doubt of every element of the crime charged.

More pointedly, I find appellee’s view of the Court of Appeals’ holding to be entirely contrary to the express language of Brown. The Court of Appeals stated squarely that nothing short of intended harm to other or harm in fact to others will permit an inference of malice when one burns one’s own building.

", . . While malice might reasonably be read into actions which are directed toward others or their property, such an inference would be unjustified in this case where the record is devoid of any evidence that Brown intended to harm or did in fact harm others as a result of having the clubhouse burned.” 285 Md. at 476-77 (Emphasis added.)

In regard to the analogy the majority draws from the malice in homicide law, it appears that the Court of Appeals was totally unimpressed with that same reasoning. The majority quoted Perkins, Criminal Law (2nd ed. 1969) p. 218; so did we in Brown v. State, 39 Md. App. 497, 507-08 (1978). The majority quoted further from Holmes in his Common Law (1881) p. 53; so did we in Brown, 39 Md. App. at 508. The majority quoted from Evans v. State, 28 Md. App. 640, 693 (1975), aff'd, 278 Md. 197 (1976); so did we in Brown, 39 Md. App. at 507, etseq. In fact, most of the textual quotes in Brown were drawn from Evans, see Brown, 39 Md. App. at 507-08. That is also true in this case. It is apparent that the Court of Appeals expressly rejected this precise reasoning process, the same analogies and the same contentions, in reversing us in Brown.

I must respectfully dissent both as to factual sufficiency and as to the law as espoused by the Court of Appeals.

      . The indictment alleged that the home was jointly owned by the appellant and his estranged wife. The pre-sentence psychiatric report bore this out. Regretfully, this fact, which would have been easily dispositive of the case, was not brought out in evidence.


author: Mason, J.,

text:
    STATE OF MARYLAND v. ORVEL WINSTON LLOYD
    [No. 394,
    September Term, 1980.]

      Decided May 6, 1981.

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

      Ray E. Stokes, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Robert C. Bonsib, Assistant State’s Attorney for Prince George’s County, on the brief, for appellant.

      Gilbert H. Robinette for appellee.
   Mason, J.,

delivered the opinion of the Court.

The principal question we are asked to decide is whether appellee was denied effective assistance of counsel because his attorney refused to call alibi witnesses after being told by appellee that he had committed the crime charged.

Following an evidentiary hearing under the Uniform Post Conviction Procedure Act, Md. Ann. Code, art. 27, § 645A et seq., the convictions of Orvel Winston Lloyd, appellee, for armed robbery and related counts were set aside, and appellee was awarded a new trial. The State’s application for leave to appeal from that determination was granted, and the case was transferred to this Court’s appeals docket.

According to the evidence adduced at appellee’s original trial, three men entered the residence of Barry K. Marsh on 28 November 1977. The assailant with the shotgun forced Barry to lie face down on the living room floor while the other two men ransacked the house. Upon hearing a car pull into the driveway, the robbers fled taking with them, among other things, Barry’s wallet containing $41.00 and a VISA credit card bearing Account Number 436-170-353-746. At trial, Barry identified appellee as the person who wielded the shotgun during the robbery. The State also produced evidence from a credit card investigator who testified that he received a credit card charge slip from a service station in Columbia, South Carolina which showed that gasoline had been purchased with Barry’s stolen credit card on 24 December 1977 by a person driving an automobile with tag number BML 884. There was also testimony that on 7 March 1978, appellee was arrested as he was observed exiting a 1977 black Chevrolet Monte Carlo with Maryland tag number BML 884.

Appellee did not take the stand and the only evidence introduced on his behalf was the testimony of a police officer who stated that Barry Marsh’s brother, Jeffrey, who was in the house during the robbery, was unable to identify appellee as one of the robbers.

At the post conviction hearing, appellee testified that on the date of Barry Marsh’s robbery he was at his sister’s house in Hilliard, Florida, and that prior to trial he gave his attorney, Thomas A. Lohm, the names of several witnesses who would testify to this effect, but none was called. Appellee also testified that he went to Florida for the Christmas holidays in his own car and not in the Monte Carlo with tag number BML 884 which belonged to his wife. He also stated he told Lohm that this vehicle was in Alvin Jenkins’ garage on 24 December 1977 being repaired, but Lohm did nothing about it. According to appellee, Lohm would not call any of his alibi witnesses to testify because he felt that "it was scheme I was working up ... I reckon he felt that I was trying to get somebody to tell a lie for me.”

Appellee’s testimony that he was in Florida on the date of the robbery and that the Monte Carlo was being repaired on 24 December 1977 was corroborated by the testimony of several witnesses. In addition, appellee’s brother testified that he came to Maryland two or three days before trial to see whether Lohm wanted certain witnesses, but Lohm told him that the witnesses were not needed.

Thomas Lohm, a member of the Maryland bar since 1954, testified that he has tried over 3,000 cases and had been an Assistant State’s Attorney for Montgomery County for five years. During the last three to four years he had tried 150 cases a year — sixty percent of which were criminal, and since 1973 he has successfully represented appellee in several criminal causes. According to the post conviction judge, Lohm is known as "an excellent attorney with a vast knowledge as far as the practice of criminal law is concerned.”

With respect to the instant case, Lohm testified that he interviewed appellee on more than one occasion, obtained open file discovery from the State’s Attorney’s Office, and gave appellee copies of all motions filed and a copy of the State’s answer to his motion for discovery and inspection. He also wrote appellee a comprehensive letter regarding the charges and sentences facing him, and set forth a plea bargain agreement offered by the State.

Regarding the calling of alibi witnesses, the following colloquy occurred between the Assistant State’s Attorney and Lohm:

Q: Now, These people that have been present in court testified, in some cases, they approached you. Why did you not use them as alibi witnesses when they approached you?
A: I will have to give you the background on this. In my first interview with Winston Lloyd, he told me that he had robbed Barry Marsh. He told me that he had been paid $500 to rob Barry Marsh. I think he told me that they would find some Dilaudid or some drug there or money. With that statement to me, there was no need to inquire about any alibi witness.

Lohm’s testimony on cross-examination regarding this matter was as follows:

Q: You testified earlier that Winston told you he had been given $500 to rob Barry Marsh, to get Dilaudid?
A: I believe it was Dilaudid.
Q: And once he told you that, there was no need to inquire as to alibi witnesses. Isn’t that your statement?
A: That is exactly my statement.
Q: So once you had that statement, isn’t it true that you were convinced in your mind that anyone who would approach you with an alibi for Winston at the time of the crime was lying?
A: Yes.

Lohm admitted he knew that the State intended to introduce into evidence a charge slip with the account number of Barry Marsh’s stolen credit card and the tag number issued to a Monte Carlo owned by appellee’s wife. When asked whether he inquired where the Monte Carlo was at the time the charge card was used, Lohm explained:

Winston said they used that car to go to Florida. Now, he also said something else. My notes aren’t clear on this. At one point he said that the same car he was busted in was the car he went to Florida in. Then I have a sketchy note, that the person who was with him on the Florida trip had switched tags, inferring that the tag from some car had been switched to another. I didn’t follow up on that note. It just wasn’t important to me, at the time.

Lohm also stated that he was convinced he had a "loser” and that his only defense was to attack the identification testimony of Barry Marsh, an admitted drug dealer.

In holding that appellee was denied effective assistance of counsel, the hearing judge found as a fact that appellee told Lohm that he had robbed Barry Marsh. The hearing judge also found that because of appellee’s admission, Lohm did not interview any of the alibi witnesses nor did he investigate the information he received regarding the Monte Carlo which was issued tag number BML 884 being in a garage in College Park, Maryland and not in South Carolina on the date that Barry Marsh’s credit card was used. He further found that the testimony of the alibi witnesses had probative value, and if it had been presented and believed by the trier of facts, appellee would not have been found guilty of the offenses charged.

As we view it, the critical question in this case is whether Lohm’s failure to call the alibi witnesses and to investigate the whereabouts of the Monte Carlo on the date Barry Marsh’s credit card was used in South Carolina was a denial of effective assistance of counsel.

The test to be applied in determining if a defendant in a criminal case was denied effective assistance of trial counsel is whether under all of the circumstances of the particular case a defendant was afforded genuine and effective representation. Slater v. Warden, 241 Md. 668, 673, 217 A.2d 571 (1966); State v. Mahoney, 16 Md. App. 193, 201, 294 A.2d 471 (1972). See also Marzullo v. Maryland, 561 F.2d 540, 543 (4th Cir. 1977), cert. denied, 435 U.S. 1011 (1978) where the Court, relying on McMann v. Richardson, 397 U.S. 759 (1970), held that the test forjudging effective assistance of counsel is not whether representation was so poor as to make a farce of the trial, but whether the defense counsel’s representation was within the range of competence demanded of attorneys in criminal cases. Moreover, the burden is on the defendant to prove that defense counsel’s representation was not effective. State v. Hardy, 2 Md. App. 150, 156, 233 A.2d 365 (1967). "Each case wherein ineffective assistance of counsel is asserted, must necessarily be decided upon the facts of that case.” Thomas v. State, 516 S.W.2d 761, 765 (Mo. Ct. App. 1974).

Although the failure to call alibi witnesses presents a ground on which relief may be granted for ineffective assistance of counsel, Evans v. Warden, 240 Md. 333, 335, 214 A.2d 144 (1966); accord, Johns v. Perini, 462 F.2d 1308, 1315 (6th Cir. 1972); Gomez v. Beto, 462 F.2d 596, 597 (5th Cir. 1972), the decision whether to call a witness is ordinarily a matter of trial tactics within the discretion of defense counsel. Johns v. Warden, 240 Md. 209, 212-213 A.2d 469 (1965); Shelton v. State, 3 Md. 394, 401, 239 A.2d 610 (1968); accord United States v. Dingle, 546 F.2d 1378, 1385 (10th Cir. 1976); see also People v. Rodriguez, 73 Cal. App. 3d 1023, 141 Cal. Rptr. 118 (Ct. App. 1977) where the court stated:

The law is well settled that a constitutionally inadequate representation by counsel is not established by a showing merely that defense counsel has failed to interview and call all prospective witnesses .... since some witnesses may, with apparent certainty, be of little or no assistance to the defense, and since 'the choice of which, and how many, of potential witnesses is precisely the type of choice which should not be subject to review by an appellate court.’

141 Cal Rptr. at 121. (Citations omitted.) In order to prevail on a claim of ineffective assistance of counsel, a defendant must establish that he acted with diligence in supplying the names and addresses of alibi witnesses, and that alibi testimony would have been beneficial to his or her case. Raines v. United States, 434 F. Supp. 1168, 1172 (W.D. Pa. 1977); Williams v. United States, 295 A.2d 503, 505 (D.C. 1972); Commonwealth v. Williams, 274 Pa. Super. Ct. 464, 418 A.2d 499, 503 (1980). Defense counsel, however, should not call alibi witnesses when the attorney knows or is convinced that such witnesses will offer perjured testimony. Cornell v. State, 396 F. Supp. 1092, 1099 (D. Md. 1975); In re Branch, 70 A.2d 200, 449 P. 2d 174, 181, 74 Cal. Rptr. 238 (1969); People v. Weston, 9 Cal. App. 3d 330, 87 Cal. Rptr. 922, 926 (Ct. App. 1970); Herbert v. United States, 340 A. 2d 802, 804 (D.C. 1975); Hampton v. State, 558 S.W.2d 364, 370 (Mo. Ct. App. 1977); Bennett v. State, 549 S.W.2d 585, 587 (Mo. Ct. App. 1977); Allen v. State, 518 S.W.2d 170, 172 (Mo. Ct. App. 1974); see also EC 7-26 and DR 7-102 of the Code of Professional Responsibility of the American Bar Association which have been adopted by the Court of Appeals of Maryland in Maryland Rule 1230. Ethical Consideration 7-26 of Maryland Rule 1230 provides:

The law and Disciplinary Rules prohibit the use of fraudulent, false, or perjured testimony or evidence. A lawyer who knowingly participates in introduction of such testimony or evidence is subject to discipline. A lawyer should, however, present any admissible evidence his client desires to have presented unless he knows, or from facts within his knowledge should know, that such testimony or evidence is false, fraudulent, or perjured. (Emphasis supplied.)

And Disciplinary Rule DR 7-102 (A) (4) provides:

(A) In his representation of a client, a lawyer shall not:
(4) Knowingly use perjured testimony or false evidence.

Defense counsel, however, should not decide "what is true and what is not unless there is compelling support for his conclusion.” State v. Whiteside, 272 N.W.2d 468, 469 (Iowa 1978).

In ostensible reliance on State v. Mahoney, 16 Md. App. 193, 294 A.2d 471 (1972), the State argues "that the decision of trial counsel not to call the alibi witnesses in the instant case was a proper exercise of judgment. First of all, Lohm was precluded from presenting testimony which he knew was false. See Canon 7, Code of Professional Responsibility, EC 7-26, DR 7-102 (A) (4), Maryland Rules of Procedure. Had he done so, he could have subjected himself to disciplinary action.” Appellee, on the other hand, argues, "that an attorney should be representing his client as opposed to simply protecting himself from possible disciplinary action. Further, an attorney is an advocate not a judge. Lohm’s conflict should have been resolved by bringing the conflict to the attention of the court.”

In State v. Mahoney, supra, the defendant filed a petition for Post Conviction relief alleging that he was denied effective assistance of counsel because his attorney refused to call several alibi witnesses. Defense counsel testified that after interviewing all witnesses suggested by the defendant and being told by defendant’s brother, a co-defendant in the case, that they committed the robbery, he did not call these witnesses because he thought their testimony would be false. In granting post conviction relief, the hearing judge found that the failure to call the alibi witnesses deprived the defendant of due process and if defense counsel "didn’t like the way his client was insisting that the case be tried, he should have withdrawn his appearance, should have petitioned the court to relieve him of the obligation to defend.” Id. at 200. The State filed an application for leave to appeal which was granted. In reversing the order of the lower court, we stated:

We find that trial counsel’s refusal to call the alibi witnesses did not require the grant of a new trial in the interest of justice. In so concluding we assume, arguendo, that the refusal to call the witnesses was an improper exercise of judgment. But even if it were improper, we believe that the impropriety was not such as to deny Mahoney the effective assistance of counsel or due process of law. Thus it provides no ground for the involving of Rule BK45 to grant a new trial.

Id. at 203.

We think it patent that the testimony of his mother and sister-in-law did not show that he was at home at the time the crime was committed or that he could not have been a participant. None of the other alleged alibi witnesses were produced at the hearing and that their testimony would have tended to show that Mahoney was elsewhere when the robbery occurred remains as a bald assertion by Mahoney. Therefore, on the record before us, considering the evidence adduced at the trial, the failure to call the so-called alibi witnesses, even if an improper exercise of judgment on the part of Mahoney’s attorney, was not so prejudicial, beyond a reasonable doubt, as to deny him the effective assistance of counsel or due process of law. We conclude that it did not justify the granting of a new trial.

Id. at 207.

The State’s reliance on Mahoney for support of its position is misplaced. In that case we did not decide whether trial counsel was precluded under Maryland Rule 1230 from presenting evidence he knew was false. We reversed solely on the basis that the alibi witnesses would not have assisted the defendant’s defense because their testimony would not have established his whereabouts at the time the crime was committed.

In Cornell v. State of Maryland, 396 F. Supp. 1092 (D. Md. 1975), a case factually similar to the instant case, the petitioner in a habeas corpus proceeding attacked the competency of his trial counsel for failing to call witnesses who would have provided an alibi for him on the night of the robbery, and who would have provided testimony that the flashlight, left outside of the house where the robbery occurred and on which his fingerprints were found, had been stolen from his automobile three days prior to the robbery. After finding trial counsel completely credible, the court accepted as true counsel’s statement that the petitioner admitted to him before trial that he had committed the crime charged. The court then observed: "Such an admission seemingly would necessarily affect trial counsel’s preparation and presentation of Cornell’s case at trial,” citing Canon 7 of the Code of Professional Responsibility of the American Bar Association which has been adopted by the Court of Appeals of Maryland. Id. at 1098. In addressing petitioner’s contention that he was denied effective assistance of counsel, the court remarked:

If Cornell had committed the crime, any witness who would have testified as to a complete alibi could not possibly have been telling the truth. And, since Cornell specifically told his trial counsel that he had dropped the flashlight at the scene of the crime, any testimony about the theft of a flashlight from Cornell three days before the crime would have been misleading at the very least. Therefore, even if it be assumed that trial counsel was informed by Cornell prior to trial that there were witnesses available who would offer an alibi for Cornell and who would testify that the flashlight had been stolen prior to the crime, it may well have been improper for trial counsel to offer such testimony to the Court. Certainly, trial counsel’s actions in not offering such evidence can hardly be classified as incompetence or inadequacy.

Id. at 1099. The court also observed that the alibi witnesses would not have benefited petitioner’s case.

Consonant with this view, see Allen v. State, 518 S.W.2d 171 (Mo. Ct. App. 1974), where the defendant, after telling his trial counsel that he committed the crime "but just wanted a trial,” suggested to his attorney that there were witnesses who would testify that he "was at a place other than the place the crime occurred.” Trial counsel rejected calling the proposed alibi witnesses. In addressing the issue of whether the action of trial counsel constituted ineffective assistance of counsel, the Court held:

Here the trial attorney was under an absolute obligation not to present perjured testimony in support of his client. McNamara v. State, 502 S.W.2d 306, 308 (Mo. 1973). Such conduct is against the mandate of the Code of Professional Responsibility [DR 7-102 (A) (4)] and is a crime under Section 557.040, RS Mo. 1969, V.A.M.S. From the information available to him and in light of appellant’s admissions to the attorney of participation in the crime, the trial attorney had no choice but to reject the use of the offered alibi testimony.

Id., at 172. Accord Bennett v. State, 549 S.W.2d 585, 587 (Mo. Ct. App. 1977).

We think it clear that when a defendant tells his attorney before trial that he committed the crime charged and the attorney is convinced that his client is telling the truth, the attorney is precluded under Maryland Rule 1230 from calling or presenting alibi witnesses who would offer perjured testimony. Hence, the refusal of Lohm to call appellee’s alibi witnesses in the present case was not a denial of effective assistance of counsel. Nor do we think it was a denial of effective assistance of counsel for Lohm not to conduct an investigation to determine whether the Monte Carlo, which had been issued tag number BML 884, was in a garage in Maryland or in South Carolina on the date Barry Marsh’s credit card was used to purchase gasoline for a vehicle bearing tag number BML 884. Lohm testified that appellee told him that he had used the Monte Carlo to go to Florida and that he was "busted” in the same car. Lohm further testified that appellee also told him that the tags had been switched from one car to another. We think that this information plus appellee’s admission that he had committed the crime was a sufficient basis for Lohm not to investigate further this matter. Moreover, it would have been a fabrication for Lohm to have offered evidence that the Monte Carlo was in Maryland after appellee had told him that he had used the vehicle in going to Florida. See Polk v. State, 506 S.W.2d 366, 373 (Mo. 1974) where the Court said "with his clients’ admission, it may not be said that counsel was ineffective for failure to pursue further investigation.” Furthermore, had Lohm knowingly presented perjured testimony on behalf of his client, he would have been subject to both criminal prosecution, under Md. Ann. Code, art. 27, section 438, and disciplinary action pursuant to Maryland Rule 1230.

We do not mean to suggest, however, that once a defendant tells his attorney he is guilty, trial counsel may sit on his hands and do nothing. Even though the defendant may admit to his attorney that he is guilty, trial counsel has an obligation to make the State prove its case. See Jones v. Cunningham, 313 F.2d 347 (1963) where the Fourth Circuit expounded:

We cannot acquiesce in the suggestion that because Jones told his court-appointed attorney that he was guilty there was nothing else for the lawyer to do but to plead him guilty and hope for a light sentence.

Id. at 352.

Of course, it is not for a lawyer to fabricate defenses, but he does have an affirmative obligation to make suitable inquiry to determine whether valid ones exist. Such a duty is imposed for the salutary reason that "[p]rior to trial an accused is entitled to rely upon his counsel to make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as to what plea should be entered.” Von Moltke v. Gillies, 332 U.S. 708, 721, 68 S. Ct. 316, 322, 92 L. Ed. 309 (1948).

Id. at 353. See also Rummel v. Estelle, 498 F. Supp. 793, 796 (W.D. Texas 1980). ABA Projection Standards for Criminal Justice, Standards Relating to the Defense Functions 4-4.1 (1980). Selinger, "Criminal Lawyer’s Truth: A Dialogue on Putting the Prosecution to Its Proof on Behalf of Admittedly Guilty Clients.” 3 J. of Legal Profession 57 (1978).

Appellee also presents two additional issues that were raised, but not decided by the post conviction hearing judge:

(1) That he was denied effective assistance of counsel because his trial attorney failed, upon request, to poll the jury, and
(2) That he was denied effective assistance of counsel because his appeal was dismissed after appellate counsel failed to file a brief on his behalf.

Inasmuch as the post conviction hearing judge made no factual findings on these two issues, the case will be remanded for a ruling on these issues in accordance with Maryland rule BK45b which provides:

"The order [of the post conviction judge] shall include or be accompanied by a memorandum signed by the judge setting forth separately each ground upon which the petition is based, the federal and state rights involved, the court’s ruling with respect to each ground, and the reasons for the action taken thereon.”

For the reasons herein stated, the order of the post conviction hearing judge granting appellee a new trial on the basis that he was denied effective assistance of counsel is reversed. The case, however, will be remanded to the post conviction hearing judge to rule on the two issues that were raised but not decided.

Order reversed.

Case remanded for further proceedings in accordance with this opinion.

Costs to be paid by appellee.

      . Courts disagree on what course of action defense counsel should take when his client, as opposed to collateral witnesses, plans to give perjured testimony. When defendant wants to testify falsely, the defense counsel is presented with a greater ethical dilemma or "trilemma”, i.e., the defendant has a basic and fundamental right to testify on his behalf; the attorney has a duty to his client, and as an officer of the court, the attorney may not present perjured testimony under DR 7-102 (A) (4). For cases and legal commentaries discussing this matter, see Lowery v. Cardwell, 575 F.2d 727 (9th Cir. 1978); Thornton v. United States, 357 A.2d 429 (D.C. 1976), cert. den. 424 U.S. 1024; State v. Whiteside, 272 N.W.2d 468, 471 (Iowa, 1978); State v. Henderson, 205 Kan. 231, 468 P.2d 136, 139-140 (1970); In re Palmer, 246 N.C. 638, 252 S.E.2d 784, 790-791 (1979); State v. Trapp, 52 Ohio App. 2d 189, 368 N.E.2d 1278, 1281 (1977). See also Annot., Rights and Duties of Attorney in a Criminal Prosecution Where Client Informs Him of Intention to Present Perjured Testimony, 64 A.L.R.3d 385 (1975); Burger, Standards of Conduct for Prosecution and Defense Personnel: A Judge’s Viewpoint, 5 Am. Crim. L.Q. 11 (1966); Freedman, The Lawyer’s "Trilemma”, J. op Section of Litigation, American Bar Association 26 (1975); Freedman, Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, 64 Mich. L. Rev. 1469 (1966); Lefstein, The Defense Lawyer’s Dilemma, 6 Hofstra L. Rkv. 665 (1978); Reichstein, The Criminal Law Practitioner’s Dilemma, What Should the Lawyer do when his client intends to testify falsely. 61 Crim. L.C. & P.S. 1 (1977); Noonan, The Purposes of Advocacy and the Limits of Confidentiality, 64 Mich. L. Rev. 1485 (1966); Wolfran, Client Perjury, 50 S. Cal. L. Rev. 809 (1977).

      . We make clear that Mr. Lohm was not appellants’ counsel at that time.