Hepple v. State

Orth, C. J., delivered the opinion of the Court. Menchine, J., concurs in part and dissents in part and filed an opinion concurring in part and dissenting in part at page 558 infra. The two September Term 1975 appeals we decide in this opinion, Richard E. Hepple v. State, No. 714, and James Edward Jones v. State, No. 730, present a common issue for decision. The issue relates to the place of rebuttal evidence in the order in which parties are required to offer their evidence.

The Court of Appeals had the point before it in Bannon v. Warfield, 42 Md. 22, 39 (1875). It first explained why it was essential to have fixed rules on the subject and to observe them: “The observance of fixed rules upon the subject is of great importance, not only as means of avoiding confusion, but to the fair administration of justice. Much of course depends upon the form of the issues joined, and upon whom the onus rests. The parties must not be allowed to break up the evidence they may intend to offer on any particular issue, and introduce it at different stages of the cause in piece-meals, as the varying emergencies of the case may seem to require.

Such practice would not only greatly prolong trials, but would frequently lead to surprise and injustice.” It set out the general rule: “According to the well established practice, the plaintiff, having the right to begin, must put in the whole of his evidence upon every point or issue which he opens, and the defendant then puts in evidence his entire case; and in reply the plaintiff is limited to such new points and questions as may be first opened by the defendant’s evidence. I Greenl. Ev. sec. 469a.” ⁵²⁸ The rule was stated in Jones v. State, 132 Md. 142, 148-149 (1918) in the words of “Mr. Poe in his second volume on Pleading and Practice, section 287”: “The rule is that the plaintiff will be required to go fully into his own case-in-chief on these issues as to which he holds the substantial affirmative, and where, therefore, the burden of proof rests on him; and hence, in reply to the case made by the defendant, he will ordinarily be limited to what is strictly rebutting evidence.” The Court set out the rule thus in Mayson v. State, 238 Md. 283, 288-289 (1965): “Ordinarily, an orderly conducted criminal trial anticipates the State adducing all of its evidence in chief and resting its case. The defense follows by producing its evidence tending to establish the accused’s non-culpability, which includes the contradiction or rebuttal of the evidence offered by the State.

Then the State is afforded an opportunity to produce its rebuttal evidence.” The rule for the order in which evidence is to be adduced is clear but not unyielding. Bannon v. Warfield, supra, at 39 , recognized this: “From this general rule there may be departures to meet the requirements of particular cases; but the entire question, as to the mere order of proof, and under what circumstances evidence should be admitted or rejected when offered out of the proper order, in the absence of some positive rule of court upon the subject, must be allowed to rest in the discretion of the court directing the trial, as the tribunal best qualified to judge what the justice of the case may require in these respects; and hence from the rulings on such questions no appeal will lie. R. R. Co. v. Stimpson, 14 Pet. 448, 463 ; Salmon v. Rance, 3 S. & R. 311, 314; Duncan v. McCullough, 4 S. & R. 482; Frederick v. Gray, 10 S. & R. 182; 4 Phill. Ev. 708.” Almost a century later the Court was of like mind.

It said in Mayson v. State, supra, at 289: “However, experience has shown that justice does not require the following of the ⁵²⁹ above course [of the adducing of evidence] as an inflexible and undeviable procedure.” Thus, the question as to mere order of proof, and under what circumstances evidence should be admitted or rejected when offered out of proper order, has been clearly held to be within the sound discretion of the trial court. Rickards v. State, 129 Md. 184, 191 (19161. There appears to be no distinction in this regard between civil trials and criminal trials. The question of the admissibility of evidence on the ground that it is offered out of proper order usually arises after the moving party — in criminal cases, the State — has rested its case and desires to reopen it to introduce evidence properly admissible in chief, or at the rebuttal stage of the trial when evidence is offered as rebuttal which is not proper rebuttal evidence.

Evidence Adducible in Chief Trial judges are vested with wide discretion in the conduct of trials. So, in Hamm v. State, 233 Md. 248, 249 (1964), no abuse of discretion was found when the trial court permitted the State, upon motion made after it had rested, to reopen the case for the purpose of offering another witness. And in Stansbury v. State, 218 Md. 255, 262 (1958) it was held that there was no abuse of discretion in the refusal of the trial court to allow the defendant to reopen or continue his case. The Court of Special Appeals in a number of cases has reviewed the contention that it was reversible error to permit the State to reopen its case for the purpose of proving important or even essential facts to support a conviction, and has found no abuse of discretion in a variety of circumstances.

See Spillers v. State, 10 Md. App. 643, 649 (1971); Jones v. State, 2 Md. App. 356, 363 (1967); Boone v. State, 2 Md. App. 80, 99 (1967); Tingler v. State, 1 Md. App. 389, 392 (1967). Rebuttal Evidence The Court of Appeals has set out what constitutes rebuttal evidence. In Jones v. State, 132 Md. 142, 148-149 (1918), it used the language of “Mr. Poe in his second volume on ⁵³⁰ Pleading and Practice, section 287” 1 : “[Rebuttal evidence is] evidence in regard to such new points and questions as were first opened by the defendant’s evidence.” In Lane v. State, 226 Md. 81, 90 (1961), the Court observed: “Any competent evidence which explains, or is a direct reply to, or a contradiction of, material evidence introduced by the accused may be produced by the prosecution in rebuttal.” Mayson v. State, supra, at 289, combined the definitions of Jones and Lane thus: “[Rebuttal evidence] includes any competent evidence which explains, or is a direct reply to, or a contradiction of, any new matter that has been brought into the case by the defense.” Although the definition of rebuttal evidence is clearly stated, Mr. Poe was aware that what is simply defined may not be readily determined. He observed, § 287: “Still, it is not always easy to draw the line between what is rebutting evidence and what is evidence properly adducible in chief.” The Court of Appeals shared Mr. Poe’s view.

Jones v. State, supra, at 149; Snowden v. State, 133 Md. 624, 636 (1919). Mr. Poe concluded that whether evidence was properly rebuttal evidence was a matter for the exercise of judicial discretion: “The subject is one which is addressed to the sound discretion of the Court; and the appellate Court will not reverse for an error on this point, unless the ruling of the Court below was both manifestly wrong and substantially injurious. Indeed, as a general rule, in such cases no appeal will lie.” The assertion that “no appeal will lie” does not mean that the point may not be considered on appeal. It means simply that on appeal there will not be a reversal on the point unless the court’s ruling was “both manifestly wrong and substantially injurious.” Mr. Poe’s view is the law of Maryland.

The Court of Appeals quoted it in Jones, at 149, iterated it in Snowden , at 636, and reiterated it in Kaefer v. State, 143 Md. 151, 159-160 (1923) and applied it in deciding those cases. The discretionary power of the trial court to determine what constitutes rebuttal evidence has been more ⁵³¹ recently affirmed. In Lane v. State, supra, at 90, after defining rebuttal evidence, the Court said: “And what constitutes rebuttal testimony in a criminal prosecution is a matter resting in the sound discretion of the trial court.” The Court repeated this in Mayson v. State, supra, and added, at 289, “and the appellate court should not reverse for error on this point, in the absence of a showing that the-ruling of the trial court was both manifestly wrong and substantially injurious.” Thus, there are two requisites for reversal on error in the trial court’s ruling as to what constitutes rebuttal evidence. The first is that the ruling-must be “manifestly wrong.” 2 This means, we believe, that when it is not certain whether the challenged evidence is or is not proper rebuttal evidence, the trial judge’s determination will be honored as a sound exercise of his discretion even if, on review, the appellate court thinks the determination was wrong.

On the other hand, if it is clearly apparent that the evidence offered as rebuttal evidence is not properly rebuttal evidence, then the trial judge would be “manifestly wrong” in ruling that it was. In other words, there are reasonable boundaries in which the trial judge may exercise his discretion to determine whether evidence meets the test of rebuttal evidence. Outside of those-boundaries, the nature of the evidence would be plain and obvious, and in ruling contrary to the manifest nature of the evidence the court would be “manifestly wrong.” The second requisite for reversal on error of the trial court’s ruling as to what constitutes rebuttal evidence, is that the ruling is “substantially injurious.” 3 We think that “substantially injurious” must be construed in the light of Dorsey v. State, 276 Md. 638 (1976). Reversal vel non for error in the determination of what constitutes rebuttal ⁵³² evidence is to be governed by the harmless error rule as explicated in Dorsey .

The Court said, at 659: “[W]hen an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed ‘harmless’ and a reversal is mandated. Such reviewing court must thus be satisfied that there is no reasonable possibility that the evidence complained of — whether erroneously admitted or excluded — may have contributed to the rendition of the guilty verdict.” Therefore, if the trial judge went outside the discretion he enjoys to admit challenged evidence as rebuttal, and his erroneous ruling thereon is not harmless, reversal is mandated because the ruling was “both manifestly wrong and substantially injurious.” Lane v. State, supra, appeared to introduce another aspect into the matter of the order of the introduction of evidence. It said, without explanation: “This Court has held that it is within the sound discretion of the trial judge to allow evidence in rebuttal that should have been offered in chief.” 226 Md. at 90 . It gave Kaefer v. State, supra, and Rickards v. State, supra, as authority.

The statement was repeated in Mayson v. State, supra, and then the Court proceeded to say what this did not mean: “This does not mean that the court should not be alert in preventing the State from deliberately withholding a part of its testimony (such as that which is merely cumulative to, or corroborative of, that already offered in chief) in order to have testimony favorable to its case repeated at the end of the trial for the effect that it may have upon the trier of facts. State v. Driver, 183 A. 2d 655, 673 . cf. 2 Poe, Pleading & Practice, § 287; Archer v. State, 45 Md. 33 .” ⁵³³ The explanation elucidates what the Court did mean. If “at the rebuttal stage of the trial” is substituted for “in rebuttal”, the meaning of the statement is clarified. The Court merely rephrased the previously established rule that it is within the discretion of the trial court to permit the State to reopen its case to introduce evidence adducible in chief.

The statement has nothing to do with “rebuttal evidence”; it concerns evidence adducible in chief. The prosecution does not need the permission of the court to offer evidence to rebut. It has the right to introduce such evidence at the rebuttal stage of the trial, and unless objection is made to the admission of the evidence, it is received and goes before the trier of fact. As the State has the right to introduce evidence for rebuttal, the only discretion in the court upon challenge is to determine whether it is in fact rebuttal evidence.

In both Lane and May son the comment about the admission of evidence “in rebuttal that should have been offered in chief”, was immediately preceded by a discussion of the discretion which the court has to determine what constitutes rebuttal evidence. We think the statement merely pointed up that the court has discretion to permit the State to reopen its case in chief as distinguished from the discretion to determine whether evidence offered in rebuttal is properly rebuttal evidence. This view is supported by Rickards v. State, supra, given in Lane as authority for the statement. Rickards was not concerned with rebuttal evidence as such.

Counsel for the accused had stated in open court that he expected during the course of the trial to put a certain witness on the stand. He failed to do so and while the State was presenting its case in rebuttal, it was granted leave to call the witness. On appeal the Court found no error because the evidence adduced through the witness was competent to be proved as part of the State’s case, and the order in which the proof should be offered was a matter of the sound discretion of the trial court which was “affirmatively shown to have been fairly exercised in view of the situation which had developed.” 129 Md. at 191 . Kaefer v. State, supra, the other case cited in Lane as authority for the statement, does not ⁵³⁴ denigrate our view.

Evidence was offered in Kaefer to rebut and it was found to be properly admissible for that purpose. 143 Md. at 159 . The two discretions enjoyed by the trial court, the one to permit the moving party to reopen its case to introduce evidence adducible in chief, 4 and the other, to determine whether evidence offered to rebut is truly rebuttal evidence, are separate and distinct. As to both, of course, the evidence must be competent, relevant and material. 5 With respect to reopening the case, the judge must consider whether the State deliberately withheld the evidence proffered in order to have it presented at such time as to obtain an unfair advantage by its impact on the trier of facts. To this end the judge must see whether the proposed evidence is merely cumulative to, or corroborative of, that already offered in chief or whether it is important or essential to a conviction.

With respect to rebuttal evidence, the judge must consider whether the evidence explains, or is a direct reply to, or a contradiction of, any new matter that has been brought into the case by the accused. Thus, the considerations involved in the exercise of the two discretions are materially different. The sound-exercise of discretion to allow the State to reopen its case provides no basis for finding that evidence meets the definition of rebuttal evidence, and vice versa. SUMMARY In the frame of reference of the order in which evidence is to be presented in a criminal case — the case in chief by the State, the case in defense by the accused, rebuttal by the ⁵³⁵ State — there are two basic situations in which a question may arise.

The first is when the State, after it has rested, and before the case goes to the trier of fact, asks the trial court to permit it to reopen its case to introduce evidence which should have been offered in its case in chief. Of course, the prosecution may reopen its case for this purpose only upon permission of the trial court. The wide discretion enjoyed by the trial court in this matter has been consistently recognized on appellate review. The second situation concerns rebuttal evidence.

The prosecution does not need the permission of the court to offer evidence in rebuttal. It has this right at the rebuttal stage of the trial, provided that the evidence is otherwise admissible. If objection is made on the ground that the evidence offered is not proper rebuttal, then whether it is proper is, within the limits above discussed, in the sound discretion of the trial court. If the trial court admits the evidence, its discretion was soundly exercised if, on judicial review, the appellate court finds that the challenged evidence was proper rebuttal evidence.

If the appellate court finds that the challenged evidence was not proper rebuttal, a manifest error in admitting it requires reversal unless it may be deemed harmless. But, to be deemed harmless, the appellate court, upon its independent appraisal of the record, must be able to declare a belief, beyond a reasonable doubt, that the admission of the evidence in no way influenced the verdict, being satisfied that there was no reasonable possibility that the evidence may have contributed to the rendition of the guilty verdict. What we have said — that a manifest error in admitting evidence as rebuttal, over objection, requires reversal, unless harmless — is so, even when the same evidence, offered in chief, or after leave to reopen, would have been admissible. It is not enough to say that the trial court had the discretionary power to grant leave to reopen and admit the evidence.

If the trial court was not called upon to exercise its discretion to permit the State to reopen its case, there can be no appellate review for abuse of that discretion. As we have seen, the discretion to determine what ⁵³⁶ constitutes rebuttal evidence 6 is materially different from the discretion to permit the State to reopen its case. An erroneous exercise of discretion in one area cannot be held to be a proper exercise, in another area, of a discretion never invoked, much less exercised by the court. Such a holding as to challenged evidence offered as rebuttal would abrogate the rule requiring the orderly presentation of evidence.

We think it is necessary to preserve that rule. Hepple v. State, No. 714, September Term, 1975 On 13 May 1975 in the Criminal Court of Baltimore, Richard E. Hepple was found guilty by a jury of receiving goods valued at more than $100 stolen from Robert S. Eary. Code, Art. 27, § 466. A sentence of four years was imposed.

He appealed. Robert S. Eary testified that on 15 June 1973 he purchased a Silver-Top Camper for the sum of $406.64, which he attached to a three-quarter ton Ford pickup truck. On 22 July the truck and camper were stolen from in front of his ⁵³⁷ home. On 28 July his truck was located and recovered, but the camper was not located and recovered until 7 September 1973 when it was found attached to another truck which was owned by Louis Romm.

Romm testified that as a result of a telephone call from William Woolford, 7 he later received a call from Hepple, who told him he had a camper for sale and would like to know whether Romm was interested in purchasing it. Romm went to Hepple’s home. The camper was in Hepple’s yard “right alongside of the house.” Romm and Hepple discussed the price of the camper. “We picked it over, and looked at it, and it had extensive damage. The lights had been busted on it, and it had a large crease down the side, and the door was broken in, and the screen was damaged.” Hepple wanted $150 “but after extensive discussion about the damage and what have you, we settled on an agreed price of $100.00.” Hepple and Romm discussed how Romm would get the camper away from Hepple’s yard.

Romm had a pick-up truck with wooden side racks. He and Hepple removed the racks, storing them in Hepple’s garage, picked up the camper, placed it on the truck and, with Hepple’s tools, bolted it on. Romm gave Hepple $100 in cash and later gave him $5 for the tools used in the installing of the camper on the truck. On 7 September 1973 Romm was approached by two Maryland State Police Officers and questioned about the camper.

He told them from whom he had purchased it. 8 The officers said it had been stolen and impounded it. Romm called Hepple. Romm was “quite hot about what had happened. ... I asked him why he didn’t tell me at least that the thing was stolen.

I think it was a pretty dirty trick, and he told me, he said, look, he said, what you should have told them was that you purchased it from somebody in a bar. ... I told him I was not experienced at that type of dealings, and if that’s the way he wanted to do ⁵³⁸ it, let him tell them that he purchased it from somebody in a bar.” Woolford was the only witness for the defense. He said he had known Hepple for three or four years and Romm for eight or nine years. He denied that he had “business discussions with Mr. Romm concerning Mr. Hepple.” He talked to Romm about Hepple after Romm was arrested but not before.

To his knowledge he could not remember if he “at anytime” gave Romm Hepple’s telephone number. He denied that he ever asked Hepple to call Romm. On cross-examination Woolford denied that Romm had indicated that he was looking for a camper to put on his pick-up truck. Romm made no mention about a camper.

Although Woolford usually saw Hepple every Monday night, Woolford never “indicated to Mr. Hepple that Mr. Romm had a new pick-up truck and was interested in a camper.” “I never said anything about a camper, no, sir.” Woolford was again asked if he did not tell Hepple that Romm needed a camper cap and answered: “No, sir.” Woolford summed up his testimony: “The only thing I know about this camper is when the police, or Mr. Romm called my house and asked me for Mr. Hepple’s last name. He asked me for Ricky’s last name. I said, Hepple. He said, where does Ricky live?

I said, he lives on Casadel, but I’m not sure of, or I think I said it’s Casa something. I couldn’t exactly remember. In fact, I think now, but then he says, well, what he’s phone number? I give him the number.

Then he later called me that night and told me that he had been arrested for a camper cap. This is the first time that I have ever knew about a camper cap.” On re-direct examination the subject was pursued: “Q. Now, have you ever seen Mr. Richard Hepple either driving or owning a pick-up truck? A. No, sir. I seen him drive a van one time.

Q. A van? ⁵³⁹ A. Yes, sir. Q. But he has never owned, to your knowledge, a pick-up truck? A. No, sir. Q. Did you ever see Mr. Hepple in the possession of a camper cap? . . .

The Witness: No, sir. . . . Q. Have you ever seen in the possession of Mr. Hepple a camper cap? A. No, sir. Q. So, you have never seen a pick-up truck, and you have never seen a camper cap in the possession of Mr. Hepple?

A. No, sir. Q. Did Mr. Hepple ever mention to you that he wanted to sell a camper cap? A. No, sir.” On re-cross examination Woolford was asked: “Were you present over Mr. Hepple’s house when Mr. Plepple allegedly sold a camper top to Mr. Romm?” Woolford answered: “I have already testified that I have never seen a camper top.” Hepple rested and moved for judgment of acquittal. Court recessed upon request to enable the State to consider whether to offer rebutting evidence.

When court reconvened, the prosecution called Daniel Paul Eric Washenfeldt, expressly offering him as “a rebuttal witness.” Washenfeldt testified that he knew Hepple “through working for him in a sense.” The “sense” in which he worked for Hepple was that he “stole for him.” He was asked what he meant and at a bench conference out of the hearing of the jury, defense counsel declared a belief that this was not “proper rebuttal testimony.” The transcript reads: “THE COURT: Why not? MR. KANDEL [Nelson Kandel, Esq., defense counsel]: In other words, making out that he’s a professional. ⁵⁴⁰ THE COURT: Do you want to proffer? MR.

KANDEL: He has to proffer something that he stole for him. THE COURT: I guess that’s what he means when he says he stole for him. Mr. Hepple has produced a witness who, in effect, has said that he never saw him in possession of a pick-up truck or a camper. MR.

KANDEL: Well, that— THE COURT: Wait a minute. More particularly the inference is that this camper was, or the pickup truck, or the camper cap, this witness I gather, you’re offering the witness for that purpose, Mr. Monfried. Is that what you’re offering him for? MR.

MONFRIED [Assistant State’s Attorney]: That’s correct. MR. KANDEL: Yes, but he’s doing it in a shotgun manner. He stole for him.

THE COURT: He hasn’t asked him what he stole yet. I gather he’s going to get to it. MR. MONFRIED: My next question.

THE COURT: I gather he’s going to get to that. MR. KANDEL: Suppose he stole a million other things? THE COURT: I don’t know what he’s going to say.

MR. KANDEL: I think it would be grounds for a mistrial. THE COURT: Maybe it will be, but we haven’t reached that point. MR.

MONFRIED: That’s right. THE COURT: If he says that he stole a toothbrush and here we’re talking about a camper, then perhaps the inference — maybe I’ll entertain your motion. I gather that what you’re proffering is, that you’re going to show, that he stole this particular camper. MR.

MONFRIED: Oh, yes, Your Honor. ⁵⁴¹ THE COURT: All right. There’s no shotgun about that. That’s a bullet. It might not be the one that you want to see, but I don’t have anything to do with that, but the inference is here, I take it.

I’m only trying to understand the testimony. MR. KANDEL: If that’s all it is, it’s okay. THE COURT: He’s saying this man produced Mr. Woolford to indicate that he was never in possession of any camper, no camper cap, no pick-up truck, specifically, particularly one that is now proved to have been stolen.

That’s the inference. MR. KANDEL: He never saw one, yes, but he couldn’t tell, he couldn’t answer specific questions when and where. THE COURT: All right.” The proceedings resumed before the jury with the court’s comment to defense counsel: “You had an objection, and your objection is overruled.” The direct examination of Washenfeldt continued.

Hepple telephoned Washenfeldt about 22 July 1973 and said he wanted a Silver Top camper. “He just said that, you know, when I get it to come down his house. ... I looked all night and in the early morning... I had found one ... in the Brooklyn area. I had occasion to drive with a friend down to a side street, and we were looking around, and I noticed a brand new truck had a camper on it.

We pulled up close to it, and I read the name tag on the side, and it said Silver Top.” Washenfeldt stole it and drove it to Hepple’s house, arriving about 7:00 or 7:30 A.M., and “told him I had what he had called.” Hepple and Washenfeldt took the camper off the truck, placed it on the sidewalk and “threw a tarp over it to hide what it was.” Hepple gave him $50. Hepple wanted to get rid of the truck. Followed by Hepple, Washenfeldt drove it “far out Washington Boulevard” to a motel. Hepple said, “Just leave it over there and park it. . . .” and then drove Washenfeldt back to Hepple’s house.

A few days later Washenfeldt ⁵⁴² returned to Hepple’s house and saw Hepple and another man installing the camper on a Dodge pick-up truck. Washenfeldt was cross-examined extensively. On re-direct examination it was elicited that he had stolen campers for Hepple “quite a few times”, although Eary’s camper was the first one. “I would get a call from Mr. Hepple. He would determine, you know, what he wanted, and I would go out looking for it.” Each time he stole a camper he “took it to Mr. Hepple, and to his house, and whatever he wanted done with it, we would do, dismantle there or take it somewhere else.” It is clear that the evidence adduced through the testimony of Washenfeldt was not proper rebuttal.

It did not explain, directly reply to, or contradict new matter brought into the case by the defense through its only witness, Woolford. There was nothing in Washenfeldt’s testimony to show that Woolford had “business discussions with Mr. Romm concerning Mr. Hepple”, or that he had asked Hepple to call Romm, or that Romm had indicated to Woolford that he was looking for a camper, or that Woolford told Hepple that Romm was looking for a camper, or that Woolford had seen Hepple driving or knew of his owning a pick-up truck, or had knowledge that Hepple owned a pick-up truck, or had seen Hepple in possession of a camper cap, or that Hepple had mentioned to Woolford that he wanted to sell a camper cap or that Woolford was present at Hepple’s house when Hepple sold a camper to Romm. It was clearly apparent that Washenfeldt’s testimony was not properly rebuttal evidence, and therefore, the ruling of the trial court was “manifestly wrong.” Upon our independent review of the record, we are unable to declare a belief, beyond a reasonable doubt, that the admission of Washenfeldt’s testimony in no way influenced the verdict. Thus, the error was not harmless, and was “substantially injurious.” As the two requisites for reversal on error in the trial court’s ruling with respect to the rebuttal evidence are present, the judgment must be reversed.

Hepple also contends that Washenfeldt’s testimony about “independent crimes” committed by Hepple was inadmis ⁵⁴³ sible under the “other offenses rule” and as improper re-direct examination. Having found Washenfeldt’s testimony to have been inadmissible as improper rebuttal, there is no need to reach these claims. As to the first claim, however, see Cothron v. State, 138 Md. 101 (1921); Laws and Dorman v. State, 6 Md. App. 243 (1969). Compare Ross v. State, 276 Md. 664 (1976).

As to the second claim, see Fisher Body Division v. Alston, 252 Md. 51 (1969); Cooper v. Davis, 226 Md. 371 (1961). Compare Bailey v. State, 16 Md. App. 83 (1972). Jones v. State, No. 730, September Term, 1975 James Edward (Jimmy) Jones was employed early in 1969 as a “street minister” by Reverend Stanley Knock, Jr., an ordained minister of the Methodist Church. Reverend Knock, one of four staff ministers whose duties included the supervision of Jones, worked in the Southwest Christian Parish, an “umbrella organization” composed of about half a dozen Methodist and Episcopal churches.

Jones was part of a program of the Episcopal Diocese. “He was to work out of the All Saints Episcopal Church Building at 1849 West Baltimore Street to see if there was a way to help, particularly youth and young adults on the streets that . . . the Church had not been able to help. These are largely people who are outside of traditional church, people therefore, with a considerable degree of problems of one kind or another. . . . Specifically [he was] to work with youth and young adults who were trying to solve their personal problems, who were trying to re-establish life patterns; these could include runaways, include those who were having drinking problems, trying to get them back into school whenever this was appropriate and they were in the age range. Frequently to work with those who were having drug problems, trying to get them off of drugs and, in general, trying to maintain communications with the street culture.” Until 1973 Jones’s salary “was $3,000 for three-quarters time worked.

Two years ago we ran out of the funding for it and he was not receiving any salary since that time. ... He was asked to continue to stay in the house and ⁵⁴⁴ [we] would cover the operational expenses of the house [gas, electricity, water, sewer] out of the remaining program money.” The “house”, which belonged to the Episcopal Diocese, was at 1845 West Baltimore Street next to the Church. Other people also stayed there. “This was part of the program, we expected that there would be people in the house. We knew there were through all the years involved.” 9 In October 1974 Jones was arrested.

On 10 December criminal informations were filed in the Criminal Court of Baltimore, informing the court about crimes he was alleged to have committed on 13 September 1974. 10 Information 27402558 charged that he received money from the earnings of a certain woman named Denise Carrington who was engaged in prostitution (1st count), that he compelled Denise to live a life of prostitution (2nd count), and that he engaged “in prostitution, lewdness and assignation” (3rd count). Information 27402560 charged that he assaulted Denise with intent to mark and disfigure her (1st count), that he burned her face and body with intent to maim her (2nd count), and that he assaulted and beat her (3rd count). Trial on the informations commenced before a jury in the Criminal Court of Baltimore on 21 April 1975 11 and concluded on 24 April.