Bell v. State

⁴⁸³ HOLLANDER, Judge. On June 23, 1995, Justin Bell, appellant, shot and killed Bryan Maxwell and seriously wounded the victim’s brother, Christopher Maxwell. The central issue at appellant’s trial was whether appellant acted in self-defense. A jury in the Circuit Court for Baltimore County convicted appellant of manslaughter and attempted first degree murder, as well as use of a handgun in the commission of each of those crimes; appellant was sentenced to a total of 25 years in prison.

Five questions, which we have rephrased slightly, are presented on appeal: I. Did the trial court err in permitting the State to cross-examine appellant by referring to statements made by a witness the State knew was unavailable to testify at trial?

II

Did the trial court err in admitting improper opinion evidence?

III

Did the trial court err in precluding the admission of evidence of the prior conduct of the murder victim?

IV

Did the trial court err in precluding appellant from impeaching the attempted murder victim with a prior conviction? V. Did the trial court err in precluding appellant from impeaching the attempted murder victim with evidence of a prior bad act? We answer the first question in the affirmative. Accordingly, we shall reverse and remand for a new trial.

For the guidance of the court on remand, we shall briefly address the remaining issues. Factual Summary The events in issue occurred at approximately 2:00 a.m., in the vicinity of a shopping center and a Meineke parking lot ⁴⁸⁴ located in Parkville. Christopher Maxwell was the State’s principal witness. 1 On the evening of June 22, 1995, Justin Bell, who was then 19 years old, went to the Friendly’s Restaurant located on Harford Road in Baltimore County to meet his friend, Cory Tart, who was an employee of the restaurant. After the restaurant closed, appellant remained in the parking lot, talking with Tart, Joey Buckler, and Danny Dimena. 2 The group left Friendly’s at about 1:30 a.m. and walked to a nearby 7-Eleven store.

After purchasing some food, Dimena left the group to go home; appellant, Tart, and Buckler walked northbound along Harford Road. Christopher, who was 19 years old at the relevant time, and Bryan, who was then 20 years of age, had spent the evening at a bar, where Christopher consumed five or six beers. Christopher acknowledged that he previously had problems with alcohol. According to the autopsy report, Bryan was legally intoxicated at the time of death; Christopher conceded that Bryan drank “a lot.” The Maxwells left the bar at about 2:00 a.m., in Bryan’s car.

They soon passed a group of three men, later identified as appellant, Tart, and Buckler, walking along Harford Road. An unidentified object then hit Bryan’s car. Bryan, who was driving, became upset and drove back to the area where he and Christopher had seen' the three men. After pulling onto a side street, Bryan directed Christopher to run after the “three boys” and “keep” them until Bryan could park the vehicle and arrive at the area.

Before leaving the car, Christopher put a tire iron in the waistband area of his pants. 3 When Christopher caught up with the three men, he ⁴⁸⁵ was “cussing” and “yelling” and asked them if they had a “beef.” The men denied this and Christopher told them not to “play [him] for a fool.” According to Christopher, Bryan arrived within seconds. Christopher asked him, “which one was it?” Bryan identified appellant and stepped toward him. Christopher testified that before Bryan could say or do anything, and when he was within three feet of appellant, Buckler told Bell, “you better go ahead and use it.” Christopher claimed that appellant produced a gun and shot Bryan, who nonetheless remained standing. Christopher acknowledged in his testimony that Bryan would have charged at anyone who pointed a gun at him.

At that point, Christopher claimed he told appellant that he was not afraid of his “little BB gun.” Appellant pointed the gun at Christopher, while he and his friends “backed up the sidewalk____” Christopher picked up a nearby picnic bench and threw it at appellant, intending to “distract them so I could get them or make him use up the bullets so 1 could get to him or so my brother wouldn’t get shot again.” As Christopher threw the bench, appellant fired once, and missed. Christopher took the tire iron from his waistband and threw it at appellant while running away. According to Christopher, as he tried to run, appellant fired several shots, hitting him in the back and elbow. 4 The State called two other witnesses who observed portions of the occurrence. Clifford Posey was driving a co-worker home when he passed the scene.

He testified that he saw three men facing two others. One of the three was holding a gun, and one of the two picked up a bench. He heard four to five shots and, in his rear view mirror, saw one of the men fall. John Shinners was sitting in his van in the parking lot of a shopping center across the street when he heard a gunshot.

He saw four men, one of whom was facing three others. He also heard shouting and a man said, “What the fuck did you do that for?” Two men started walking away and another man ⁴⁸⁶ threw a picnic bench at one of them. The man at whom the bench was thrown turned around and fired four shots. Then, the three men ran away.

Over defense objection, both witnesses were permitted to state that they observed nothing prior to the firing of the shots that indicated appellant was facing imminent danger of death or serious bodily harm. Appellant testified in his own defense. He denied that he or his friends threw anything at a passing vehicle. He explained that as he, Buckler, and Tart were walking north on Harford Road, a car drove slowly past them, travelling in the opposite direction, with its windows partially lowered and the occupants staring at them.

After the vehicle passed, it made a U-turn and came back towards them, pulling into a side street and parking. Feeling “paranoid,” he urged his friends to jog to escape. Christopher appeared “from around the corner” in front of the three men, screaming and hollering; Bryan came up behind them shortly thereafter. Appellant and his friends tried to back away and assure the Maxwells that they had no quarrel with them.

Christopher spit at Joey and said, “Fuck this, and I’m tired of fucking around. Just give us your shit.” Appellant claimed that he thought both brothers had weapons. Before appellant shot anyone, he stated that the Max-wells both gestured at their waistbands. Appellant pulled out his gun, 5 pointed it at the ground, and told the Maxwells that he and his friends were leaving.

Bryan lunged at him, saying, “Fuck that. • You pulled out that gun and you better use it.” When Bryan lunged at Bell, appellant shot him in the chest because he was “scared.” Appellant stated, on cross-examination, that he shot Bryan “because as he was gesturing [towards his waist] and after I had already pulled the gun, he came after me.” After Bell shot Bryan, he urged him to see a doctor. Bryan replied, “Fuck that. I’m not hurt.” Appellant further testified that he and his friends began to retreat. Christopher was shouting and said that he, too, had a ⁴⁸⁷ gun, and that his gun was bigger.

According to appellant, after Christopher threw a nearby picnic bench at appellant and his friends, Christopher pulled something from his waistband. Thinking that Christopher was about to produce a gun and shoot him, appellant fired several times. The three men then fled to Cory’s house, where appellant cleaned the gun, vomited, and went to sleep. The next day, he told Cory and Joey not to discuss what happened or brag about it.

He put the gun in a plastic bag and, on his way to work, he threw it into some bushes. Tart’s testimony was essentially consistent with appellant’s version of the incident. Tart explained that Christopher was yelling and spit at Buckler. Although appellant told the Maxwells that the three had “no beef’ with the brothers, and appellant and the others started to walk away, the Maxwells pursued them.

When appellant pulled his gun, one of the Maxwells said: “If you pull it, you better use it.” Appellant fired the weapon when Bryan jumped at him. Christopher had his hand on the side of his leg, stating “mine is bigger, mine is bigger.” Bell fired again after the bench was thrown. Three other witnesses testified for the defense concerning the Maxwell brothers’ reputations for violent dispositions. Two of these witnesses were police officers and one was a friend of appellant.

Buckler did not appear at the trial. Both Tart and appellant testified, on direct and cross-examination, that they had tried to contact Buckler since the time of the incident, without success. Additional facts will be included in our discussion of the issues presented. Discussion I. During cross-examination of appellant, the State questioned him about Buckler’s statement to the police.

Appellant contends that this line of questioning was improper, because: 1) it placed before the jury hearsay evidence about the incident ⁴⁸⁸ from a witness who was not present at trial; 2) the State knew that Buckler would not be called as a witness; and 3) it violated appellant’s rights under the Sixth Amendment’s Confrontation Clause. The State counters that appellant’s claim is without merit, because: 1) the prosecutor did not convey substantive evidence to the jury; 2) the prosecutor merely sought to impeach appellant and was not successful in showing any material contradictions; 3) Buckler’s statement was generally consistent with Bell’s testimony; and 4) the error, if any, was harmless. Because we are of the view that the court erred in permitting the State to question appellant about Buckler’s statement to the police, we are compelled to reverse. 6 We explain. At trial, the State repeatedly questioned appellant concerning Buckler’s statement to the police.

The following exchange is relevant: [PROSECUTOR]: Would it surprise you that Joey Buckler said that you yelled out— [DEFENSE COUNSEL]: Objection, Your Honor. THE COURT: Overruled. [PROSECUTOR]: — to that car, “Fuck you pussies”? [BELL]: Yes it would surprise me. [DEFENSE COUNSEL]: Objection, Your Honor. Move to strike. THE COURT: Overruled. [PROSECUTOR]: Would it surprise you that Joey Buckler said in his written statement “They are coming.

The car is coming”? [DEFENSE COUNSEL]: Objection, Your Honor. [PROSECUTOR]: And you said, “Don’t worry”? [DEFENSE COUNSEL]: Objection. THE COURT: Overruled. ⁴⁸⁹ [BELL]: Yes. It would not surprise me because he was saying that, the car was coming back up Harford Road. }>« # 5¹ ífc ❖ # [PROSECUTOR]: And so if he [Buckler] said you yelled at the car, “Fuck you pussies”— [BELL]: He is incorrect. * * * * * * [PROSECUTOR]: Would it surprise you that no where [sic] does Joey Buckler say anything about a robbery— [DEFENSE COUNSEL]: Objection. THE COURT: Sustained. [PROSECUTOR]: — In his written statement.

Does it surprise you that Joey Buckler never says anything about a robbery in his written statement? [DEFENSE COUNSEL]: Objection. THE COURT: Overruled. [BELL]: Maybe it would. [PROSECUTOR]: It would surprise you? [BELL]: Yes. [PROSECUTOR]: How about this one that when you get back to the house, Cory Tart’s house, after you have shot Chris and Bryan Maxwell you say “Those bitches aren’t going to be calling us bitches anymore”? [BELL]: I never said that. [PROSECUTOR]: You never said that? [BELL]: Never said that. [PROSECUTOR]: Next morning, would it surprise you in his written statement Joey Buckler says you said, “We all are the only ones who know about it. And if this gets out, you guys will get it”? ⁴⁹⁰ [BELL]: I never said that. I wouldn’t threaten Cory or Joey.

They are my friends.[ 7 ] Maryland Rule 5-801(c) defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” The admission of hearsay is barred by Maryland Rule 5-802, unless it is admissible under another provision of the rules or “by applicable constitutional provisions or statutes....” 8 Buckler’s statement constitutes textbook hearsay. In spite of the State’s protests to the contrary, it is clear that the State sought to use Buckler’s statement to prove the truth of the matters asserted. The hearsay rule is grounded on principles of fairness. Lynn McLain, Maryland Evidence, § 801.1, at 269 (1987).

At least some of the value of Buckler’s oral statement depended on his credibility. McLain, supra, § 801.1, at 271. But the defense was completely unable to challenge the declarant, because he did not appear. It is intrinsically inconsistent for the State to suggest, on the one hand, that it was not presenting Buckler’s statement as an accurate account, while simultaneously suggesting that it merely sought to show that appellant’s version of events was incorrect and, therefore, that appellant was not credible.

Our inquiry does not end with our conclusion that the statement constituted hearsay. We next consider whether the statement was properly used based on an applicable hearsay exception. The State has not suggested an applicable, exception, and we can find none. Maryland Rule 5-804 establishes five exceptions to the hearsay rule when a declarant is unavailable.

These are ⁴⁹¹ former testimony, statement under belief of impending death, statement against interest, statement of personal or family history, and “Other exceptions.” The threshold inquiry under Rule 5-804 concerns the unavailability of the witness. 9 In order to satisfy the unavailability component, “the prosecutional authorities [must make] a good-faith effort to obtain [the witness’s] presence at trial.” Barber v. Page, 390 U.S. 719, 725 , 88 S.Ct. 1318, 1322 , 20 L.Ed.2d 255 (1968). See also Ohio v. Roberts, 448 U.S. 56, 74 , 100 S.Ct. 2531, 2543 , 65 L.Ed.2d 597 (1980). The case of State v. Breeden, 333 Md. 212 , 634 A.2d 464 (1993), is instructive. There, the defendant pled guilty to second degree murder and also entered a plea of not criminally responsible by reason of insanity.

Although the trial court found Breeden criminally responsible, we remanded the case for retrial on that issue. On retrial, Breeden was found criminally responsible. The Court of Appeals then considered whether the trial court abused its discretion by receiving in evidence at the second trial the transcribed testimony of a witness who testified at the first trial but who did not appear at the second trial. The Court determined that the State had failed in its burden to make a reasonable and diligent effort to produce the witness.

Id. at 227 , 634 A.2d 464 . Consequently, it concluded that the trial court should not have allowed the State to use the witness’s previous testimony and, by allowing it to do so, the trial court deprived the defendant of his right of confrontation. The Court explained, at 333 Md. at 222 , 634 A.2d 464 : [T]he “unavailability” of a material witness includes one who is absent from a trial and the proponent of the statement of the witness has been unable to procure the witness’s attend- ⁴⁹² anee by process or other reasonable means. “Other reasonable means” require efforts in good faith and due diligence to procure attendance. If the declarant is so unavailable as a witness, former testimony bearing the indicia of reliability, given as a witness at another hearing of the same or a different proceeding, may be admissible if the party against whom the testimony is now offered had an opportunity to cross-examine the witness.

Breeden compels our conclusion that unavailability was not established, because the State failed altogether to demonstrate any effort to procure Buckler’s presence at trial. The record reflects that the defense initially probed the matter of Buckler’s absence during the direct examination of both appellant and Tart. 10 During cross-examination of appellant, the ⁴⁹³ prosecution then pursued the issue of Buckler’s absence, as illustrated in the following exchange: [PROSECUTOR]: ... And you have spoken with Joey [Buckler] up until, what is it, two months ago you say? [BELL]: Two, two and a half months. [PROSECUTOR]: In that time you told him I will need you for trial? [BELL]: He was already well aware that he was going to be here for trial. [PROSECUTOR]: He just took off? [BELL]: Yes, he did. [PROSECUTOR]: Not here for you? [BELL]: No, he’s not.[ 11 ] ⁴⁹⁴ The State’s failure to satisfy the unavailability requirement is not the State’s only dereliction. Even assuming unavailability, the State does not contend that Buckler’s statement was one that was against his interest.

Maryland Rule 5-804(b)(3). Nor does it suggest that Buckler’s statement constituted “former testimony.” 12 Maryland Rule 5-804(b)(l). None of the other exceptions in Rule 5-804(b) seems remotely applicable. In Breeden , the Court addressed the requirements of the former testimony exception.

The Court said: “If the declar-ant is so unavailable as a witness, former testimony bearing the indicia of reliability, given as a witness at another hearing of the same or a different proceeding, may be admissible if the party against whom the testimony is now offered had an opportunity to cross-examine the witness.” Breeden, 333 Md. at 222 , 634 A.2d 464 . Similarly, the recent case of Tyler v. State, 342 Md. 766, 774 , 679 A.2d 1127 (1996), makes clear that the admission of prior testimony is allowed when “(1) the witness has given testimony under oath; (2) the witness ... is unavailable to testify; and (3) the accused had an opportunity to cross-examine the witness at the prior trial or hearing where the testimony was elicited.” Under such circumstances, neither the Constitution’s Confrontation Clause nor the rules of evidence are offended. Thus, the State did not comply with the requirements of Breeden, Tyler, or Maryland Rule 5-804. The case of Nance v. State, 331 Md. 549 , 629 A.2d 633 (1993), is also noteworthy to highlight what this case is not ⁴⁹⁵ about.

In Nanee, the witnesses to a murder testified at trial and recanted their prior written statements, which had been provided to the police and the grand jury. Over defense objection, the trial judge admitted the witnesses’ police statements and their grand jury testimony for impeachment purposes. Nance was subsequently convicted of first-degree murder. On appeal, the Court held, with regard to the statements made by the witnesses to police, that when such statements are based on the declarant’s personal knowledge, reduced to writing, and signed or otherwise adopted by the witness, and the witness is present and thus subject to cross-examination, the factual portion of the out-of-court statement is sufficiently trustworthy as substantive evidence.

Nance, 331 Md. at 569 , 629 A.2d 633 . The Court further held that the grand jury testimony was properly admitted as substantive evidence, because such testimony was given “in an atmosphere of formality impressing upon the declarant the need for accuracy....” Id. at 571 , 629 A.2d 633 . The Court emphasized, however, that the witness must be present at trial to be “tested by cross-examination in regard to the former grand jury appearance and its contents.” Id. Here, the State proffered neither a signed statement of Buckler nor grand jury testimony.

Perhaps most important, Buckler was not present at trial. Nance , therefore, is totally inapposite. See also Md. Rule 5-802.1(a). Even if no hearsay exception applies here, the State claims no error was committed because it merely referred to Buckler’s statement in its cross-examination of Bell, in order to suggest that there was evidence contrary to Bell’s account of the occurrence.

It urges that because the statement itself was not introduced into evidence, nor quoted directly by the prosecution, it was not misused. In our view, these arguments miss the point by a wide margin. While the State did not formally offer the statement, it appeared to quote the statement when it posed its questions. It thus succeeded in placing before the jury the apparent content of Buckler’s statement. ⁴⁹⁶ In her instructions to the jury, the court told the jury that it could consider testimony from the witness stand.

The court advised the jury to “consider the evidence in this case. That is testimony from the witness stand, physical evidence or exhibits admitted into evidence, and stipulations.” (Emphasis added). The Court, of course, also told the jury that the questions of counsel are not evidence. But appellant’s testimony was based on the prosecutor’s questions; his answers could not be evaluated in a vacuum.

In this regard, the case of Hagez v. State, 110 Md.App. 194 , 676 A.2d 992 (1996), is helpful. There, we reversed a murder conviction because of the State’s repeated, persistent, testimonial-like questions propounded to a witness who invoked, perhaps wrongfully, her spousal privilege not to testify. Here, as in Hagez , the State “attempted to place before the jury evidence that it was otherwise unable to present and to construct its case from inferences derived from its own questions.” Id. at 222 , 676 A.2d 992 . What we said in Hagez is apt here: “The question itself is damning; the answer is almost irrelevant.” Id. at 221 , 676 A.2d 992 .

Moreover, because the State’s questions in Hagez were “tantamount to prosecutorial testimony” and were “unrelenting,” id., it was of no moment to us that Ms. Hagez did not even answer the questions and did not necessarily have the right to assert a spousal privilege. The State argues that its use of Buckler’s statement was proper, because it was merely for the purpose of impeaching Bell’s credibility. Statements that are otherwise inadmissible are not salvaged by invoking the mantra of “impeachment.” If the State could not properly use the statement under the applicable rules of evidence, we fail to see how it could, instead, read the statement to the jury, apparently line by line, through the questions it posed to the defendant. Unquestionably, a party may attempt to impeach a witness by challenging his or her credibility.

See generally, Lynn McLain, Maryland Evidence, § 607 (1987); Maryland Rule 5-607. But impeachment must be consistent with the ⁴⁹⁷ common law and the rales of evidence. For example, evidence may be introduced as to the witness’s character for truthfulness. Maryland Rule 5-608.

A witness’s credibility may also be called into question by evidence of certain prior crimes, bad acts, or other conduct probative of veracity. Maryland Rules 5-608(b); 5-609. Additionally, prior inconsistent statements of the witness may be examined with a view towards challenging the witness’s veracity. Maryland Rules 5-613; 5-616.

Moreover, Maryland Rule 5-616 permits, inter alia, impeachment by questioning of the witness directed toward “proving that the facts are not as testified to by the witness” or by showing bias, prejudice, motive to testify falsely, or lack of knowledge. In appropriate circumstances, extrinsic evidence may also be introduced to impeach the witness’s credibility. Maryland Rule 5-616(b). “Evidence proved through another witness ... is extrinsic evidence. The admissibility of extrinsic evidence which is offered for substantive purposes is governed by all the usual rules of evidence: no special rule applies when the evidence has the incidental effect of discrediting a witness’ testimony.” McLain, supra, § 607.4, at 50.

Yet the State has not referred us to any authority to support its claim that it was entitled to impeach the defendant with the hearsay statement of a material eyewitness who was not present at trial, whose unavailability was not established, and whose oral statement was neither tested in another proceeding, proffered as a sworn statement, nor adopted by the declarant. In reaching our conclusion that the State cannot hide under the guise of impeachment, we find persuasive the case of Snyder v. State, 104 Md.App. 533 , 657 A.2d 342 (1995). There, the defendant was convicted in 1993 of the murder of his wife, which occurred in 1986. We reviewed the trial court’s admission of the testimony of a police detective that consisted, in part, of questions that the detective had wanted to ask the accused during the week following the murder.

We determined that the detective’s list of unasked questions improperly gave the jury the impression that the detective did not believe Snyder. We said: ⁴⁹⁸ “There is no doubt that the challenged comments of the police which were heard by the jury, whether in the form of questions, assertions of disbelief, opinions (not as expert witnesses), argument, recounting of what others were purported to have said contrary to the version of the accused, hearsay, or otherwise, tended to seriously prejudice the defense.” Snyder, 104 Md.App. at 553-54 , 657 A.2d 342 (quoting Crawford v. State, 285 Md. 431, 451 , 404 A.2d 244 (1979)) (emphasis added). We also cannot agree with the State’s assertion that no error occurred because no substantive evidence was presented and Buckler’s statement did not contradict Bell’s testimony. A comparison of Bell’s testimony during direct and cross-examination reveals that the State was, indeed, allowed to use hearsay evidence from an absent eyewitness that contradicted Bell on at least two substantive points.

The following colloquy, during Bell’s direct examination, concerned the instigation of the confrontation: [DEFENSE COUNSEL]: Now, while you were in the parking lot [of the 7-Eleven], were there any problems or any arguments or any disruptions or anything of that nature? [BELL]: No, none at all. [DEFENSE COUNSEL]: Did any of your group yell at anybody or throw anything or try to disturb anybody? [BELL]: No. [DEFENSE COUNSEL]: Did you throw anything at a car? [BELL]: No, I did not. Yet, as we already noted, on cross-examination the State asked Bell: [PROSECUTOR]: Would it surprise you that Joey Buckler said that you yelled out— ⁴⁹⁹ [PROSECUTOR]: —to that car [referring to the Maxwell brothers’ car], “Fuck you pussies?” [BELL]: Yes, it would surprise me. The second substantive issue for which the State used Buckler’s statement pertained to Bell’s perception of the confrontation with the Maxwells as an attempted robbery. On direct examination, Bell testified that Christopher said, “Fuck this, and Pm tired of fucking around.

Just give us your shit.” On cross-examination, appellant asserted that he had told the police that he thought the Maxwells were going to rob him and his friends. The State produced the police version of an interview with Bell, which he neither signed nor adopted, and noted that there was no mention of a robbery attempt. The State also used Buckler’s hearsay statement to contradict Bell’s claim of a robbery: [PROSECUTOR]: Would it surprise you that nowhere does Joey Buckler say anything about a robbery— [DEFENSE COUNSEL]: Objection. THE COURT: Sustained. [PROSECUTOR]: —in his written statement.

Does it surprise you that Joey Buckler never says anything about a robbery in his written statement? [DEFENSE COUNSEL]: Objection. THE COURT: Overruled. [BELL]: Maybe it would. [PROSECUTOR]: It would surprise you? [BELL]: Yes. The trial court’s error in allowing the State indirectly to present Buckler’s hearsay statement resulted in a violation of appellant’s constitutional right to confront an important witness. 13 The right to a fair trial is, at its core, the right of ⁵⁰⁰ an accused to defend against'the State’s accusations. The Sixth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, guarantees a defendant in a criminal case the right to confront his or her accusers.

Pointer v. Texas, 380 U.S. 400 , 85 S.Ct. 1065 , 13 L.Ed.2d 923 (1965) (extending Sixth Amendment confrontation right to states through Fourteenth Amendment); State v. Gray, 344 Md. 417 , 687 A.2d 660 (1997). Justice Black, in delivering the Pointer opinion, stated: There are few subjects, perhaps, upon which this Court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal. Indeed, we have expressly declared that to deprive an accused of the right to cross-examine the witnesses against him is a denial of the Fourteenth Amendment’s guarantee of due process of law. Pointer, 380 U.S. at 405 , 85 S.Ct. at 1068 .

See Barber, 390 U.S. at 721 , 88 S.Ct. at 1320 ; Gray, 344 Md. at 420 , 687 A.2d 660 ; Smallwood