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AMETEK, INC., ET AL. v. SUSAN O'CONNOR 
No. 63, September Term, 1999
 
COURT OF APPEALS OF MARYLAND
 
364 Md. 143; 771 A.2d 1072; 2001 Md. LEXIS 201

 May  10, 2001, Filed

   SUBSEQUENT HISTORY: [*1] As Corrected May 11, 2001.

PRIOR HISTORY: Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County). Case No. C-97-36553. Michael E. Loney JUDGE.

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AND REMAND THE CASE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY RESPONDENT. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Employer and employer's insurer petitioners sought review of the decision of the Court of Special Appeals, Maryland, which affirmed the trial court's finding that petitioners were entitled to a credit for the total amount paid to claimant respondent after claimant's workers' compensation award was increased on judicial review.

OVERVIEW:  Claimant's workers' compensation award was modified and the trial court concluded that employer was not entitled to a credit based on the number of weeks for which benefits were paid; rather, employer was entitled to a credit for the total amount of money actually paid to the claimant prior to the increase. The appellate court disagreed and held that the legislature intended that an employer's credit for the payment of permanent partial disability benefits be based upon the number of weeks of compensation previously paid, absent clear legislative expression to the contrary. Therefore, the intermediate court's judgment was reversed and the case remanded to the trial court.

OUTCOME:  The judgment was reversed and remanded.

CORE TERMS:  claimant, weekly, permanent, partial disability, workers' compensation, insurer, judicial review, intermediate, total disability, monetary, overpayment, dollar, total amount, Workers' Compensation Act, loss of earning, original award, hardship, average weekly wage, subtitle, temporary total disability, entitled to receive, weekly payments, predictability, benevolent, scenario, remedial, lawsuit, repay, occupational disease, personal injury

CORE CONCEPTS -  

Workers' Compensation & SSDI: Benefit Determinations: Permanent Partial Disabilities
See Md. Code Ann., Lab. & Empl. § 9-627(k) (1999 & 2000 Cum. Supp.).

Workers' Compensation & SSDI: Benefit Determinations: Permanent Partial Disabilities
The language of Md. Code Ann., Lab. & Empl. §§ 9-627(k), -628, -629 (1999 & 2000 Cum. Supp.) clearly and unambiguously demonstrate a legislative commitment to the payment of permanent partial disability benefits within a weekly framework and that such an intent is consistent with the purposes sought to be achieved by the Workers' Compensation Act, Md. Code Ann., Lab. & Empl. tit. 9 (1999 & 2000 Cum. Supp.). Any credit to an employer for previous payments made should be expressed by weeks.

Workers' Compensation & SSDI: Benefit Determinations: Permanent Partial Disabilities
See Md. Code Ann., Lab. & Empl. § 9-629.

Workers' Compensation & SSDI: Benefit Determinations: Permanent Partial Disabilities
See Md. Code Ann., Lab. & Empl. § 9-630.

Workers' Compensation & SSDI: Benefit Determinations: Permanent Partial Disabilities
As Md. Code Ann., Lab. & Empl. § 9-627(k)(4) indicates, the award of permanent partial disability benefits is governed by three independent sections of the Workers' Compensation Act, Md. Code Ann., Lab. & Empl. tit. 9 (1999 & 2000 Cum. Supp.): Md. Code Ann., Lab. & Empl. § 9-628 authorizes compensation for less than 75 weeks; Md. Code Ann., Lab. & Empl. § 9-630 governs compensation to an injured worker for a period of greater than 250 weeks; and Md. Code Ann., Lab. & Empl. § 9-629 covers compensation for a period equal to or greater than 75 weeks, but less than 250 weeks.

Workers' Compensation & SSDI: Benefit Determinations: Permanent Partial Disabilities
The plain language of the Workers' Compensation Act, Md. Code Ann., Lab. & Empl. tit. 9 (1999 & 2000 Cum. Supp.) reveals that the legislature expressed a commitment to the payment of permanent partial disability benefits based on a weekly framework, rather than focusing upon the total monetary value of such an award.

Workers' Compensation & SSDI: Benefit Determinations: Permanent Partial Disabilities
An employer's credit for the payment of permanent partial disability benefits should be based upon the number of weeks of compensation previously paid, absent clear legislative expression to the contrary.

Workers' Compensation & SSDI: Benefit Determinations: Earning Capacity
The purpose of the Workers' Compensation Act, Md. Code Ann., Lab. & Empl. tit. 9 (1999 & 2000 Cum. Supp.). is to compensate employees for the loss of earning capacity resulting from accidental injury, disease, or death occurring during the course of employment and should be construed as liberally in favor of injured employees as its provisions will permit in order to effectuate its benevolent purposes.

Governments: Legislation: Construction & Interpretation
While uncertainty is resolved in the claimant's favor when the intent of the Legislature is ambiguous or remains unclear, the appellate court may not stifle the plain meaning of the Workers' Compensation Act, Md. Code Ann., Lab. & Empl. tit. 9 (1999 & 2000 Cum. Supp.), or exceed its purposes, so that the injured worker may prevail. The appellate court may not create ambiguity or uncertainty in the act's provisions where none exists so that a provision may be interpreted in favor of the injured claimant.

Workers' Compensation & SSDI: Administrative Proceedings: Awards
An employee who has received an overpayment of income benefits should not be deprived of future income as a result of any such overpayment.

Workers' Compensation & SSDI: Administrative Proceedings: Awards
Under federal law, recovery of an overpayment defeats the purpose of the workers compensation acts where it would deprive a person of income required for ordinary and necessary living expenses. 20 C.F.R. § 410.561c(a).

Workers' Compensation & SSDI: Administrative Proceedings: Awards
Whether the overpayment is unjust or inequitable must be considered in light of the operation of the Workers' Compensation Act, Md. Code Ann., Lab. & Empl. tit. 9 (1999 & 2000 Cum. Supp.), as a whole and that a single transaction does not represent the appropriate focal point to determine the fairness or equity of the application of the act.

Workers' Compensation & SSDI: Benefit Determinations: Earning Capacity
Benefits paid pursuant to the Workers' Compensation Act, Md. Code Ann., Lab. & Empl. tit. 9 (1999 & 2000 Cum. Supp.), compensate only for loss of earning capacity, and do not seek to return a claimant to his or her pre-disability state.

Workers' Compensation & SSDI: Remedies Under Other Statutes: Common Law
Compensation awarded on a fault-free basis under the statutory plan substitutes for an employee's common law right to bring a fault-based tort suit against an employer for damages resulting from the employee's injury or disablement on the job. Employers who purchase workers' compensation insurance and otherwise comply with the law of workers compensation can count on avoiding a negligence lawsuit. 

Workers' Compensation & SSDI: Administrative Proceedings: Awards
Whether a credit is the amount the employer has paid, or for the number of weeks the employer has paid, should be determined on some principled and consistent basis and not made to depend upon which of the parties it will benefit. The Workers' Compensation Act, Md. Code Ann., Lab. & Empl. tit. 9 (1999 & 2000 Cum. Supp. should not be interpreted differently depending on the outcome in different claims.

 
COUNSEL: ARGUED BY W. John Vernon (Lord & Whip, on brief) of Baltimore, MD FOR PETITIONERS.
 
ARGUED BY Gerald F. Gay (Herbert J. Arnold, Arnold & Gay, P.A., on brief) all of Baltimore, MD FOR RESPONDENT.
 
AMICUS CURIAE - (Filed on behalf of Ametek): Stan M. Haynes, Esquire, William A. Kress, Esquire, Semmes, Bowen & Semmes, Baltimore, MD (Asplundh Tree Expert Company; Baltimore Gas & Electric Company; Bethlehem Steel Corporation; Sparrows Point Plant; Johns Hopkins Hospital; Liberty Mutual Insurance Company; Noxell Corporation; Westvaco Corporation).

JUDGES: ARGUED BEFORE Bell, C. J.; Eldridge, * Rodowsky, Raker, Wilner, Cathell, and Harrell, JJ. Opinion by Bell, C. J. Dissenting Opinion by Eldridge, J.

* Rodowsky, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion. 

OPINIONBY: Rodowsky

OPINION:  
Opinion by Bell, C.J.

   Filed: May 10, 2001

   In Philip Electronics North American v. Wright, 348 Md. 209, 212, 703 A.2d 150, 151 (1997), in which the worker's compensation award to a claimant was reduced on judicial review, this Court held proper, "a credit based upon the number of weeks the employer has paid benefits, [*2] " rather than one for the total amount of money paid to the claimant before the reduction of the original award. In a footnote, we observed:

   "Philip Electronics also argues at length that affirming the judgment of the Court of Special Appeals would be detrimental to claimants if the reasoning of the intermediate appellate court were applied to cases where an award is increased after the filing of a petition for judicial review, and the Commission must then determine whether to retroactively increase the award based on the number of weeks of benefits previously paid by the employer, or based on the total amount of monetary benefits previously received by the claimant. The issue is not presented in this case, and we express no opinion on that scenario."
 
Id. at 215 n. 4, 703 A.2d at 153 n.4. This case presents that issue, namely, whether, after a claimant's workers' compensation award is increased on judicial review, the employer and insurer are entitled to a credit for the total amount paid to the claimant pursuant to the award or just a credit for the number of weeks the employer/insurer paid benefits. The Circuit Court for Anne Arundel County held that the[*3] employer and insurer are entitled to a credit for the total amount paid. The Court of Special Appeals affirmed. We shall hold that the proper credit is for the number of weeks the award was paid, and, so, we reverse.
 
I.

   The respondent, Susan O'Connor, filed a claim for workers' compensation benefits against Ametek, Inc., her employer, and Home Indemnity, its insurer (collectively the "petitioners"), pursuant to Title 9 of the Labor and Employment Article, Maryland Code (1999 Repl. Vol., 2000 Cum. Supp.), the Workers' Compensation Act (the "Act"). After a hearing, the Workers' Compensation Commission awarded the respondent permanent partial disability benefits for 10% loss of use of her body and ordered the petitioners to pay 50 weeks of benefits at a weekly rate of $81.00 per week. Those benefits were paid pursuant to the Commission's order.

   Dissatisfied with the award, the respondent filed a Petition for Judicial Review of the Commission's Order in the Circuit Court for Anne Arundel County. There, a jury increased the respondent's permanent partial disability to 70% loss of use of the body as a whole. On remand, the Commission determined that the respondent was entitled to[*4] permanent partial disability benefits for 467 weeks, payable at the rate of $134.00 per week, which award it ordered the petitioners to pay. Ultimately, however, persuaded by the motion for reconsideration filed by the petitioners, in which they urged their entitlement to a credit for the 50 weeks of compensation already paid, the Commission issued an order directing the petitioners to pay the respondent $134.00 per week for 417 weeks.

   Again dissatisfied with the Commission's order, once again the respondent challenged it in the Circuit Court, by seeking judicial review. Faced with cross-motions for summary judgment, the trial court granted the respondent's and denied the petitioners'. It reasoned:
 
"I do believe that the Act, as indicated in the Wright versus Philips case, should be liberally construed in favor of the claimant. And I do appreciate and acknowledge the arguments of counsel with regard to comparison of the facts in Wright versus Philips as opposed to the facts here.
 
"I do find that the claimant is being compensated at the rate of $134 per week for a period of 417 weeks and she was previously compensated 50 weeks at $81 per week. That 50-week period was[*5] adjusted by the Commission in reducing the award from 467 to 417 weeks. And I believe and find that the claimant should be compensated for the difference and would therefore award a dollar judgment of $2,650 to accomplish that purpose, 50 weeks at $53 per week the difference, for a total of $2,650 to be paid to her."

   The Court of Special Appeals agreed.  Ametek, Inc. v. O'Connor, 126 Md. App. 109, 727 A.2d 437 (1999). After an extensive discussion of Philip Electronics, in which it stressed the remedial nature of the Workers' Compensation Act, the intermediate appellate court, although noting this Court's reliance on "the 'weekly credit' approach [as being] consistent with the Act's benefit structure," id., at 118, 727 A.2d at 441, concluded that crediting the petitioners with the number of weeks they paid benefits to the respondent, without adjusting for the fact that each of the weekly payments under the prior order was less than the weekly payments under the present order, "would contravene the purpose of the Act, as elucidated by the Court in Philip Electronics, 348 Md. at 226, 703 A.2d [at 158], and numerous other cases, [*6]" as it would result in the respondent being underpaid by $2650.00. Ametek at 116, 727 A.2d at 440. Further explaining its holding, the intermediate appellate court stated:
 
"We have not uncovered any case suggesting that, under the circumstances attendant here, a claimant should receive less in benefit dollars than he or she is otherwise entitled to recover. Indeed, such a result would be an affront to the legislative scheme set forth in the Act. See [Montgomery County v.] Lake, 68 Md. App. 269 at 276 [, 511 A.2d 541 at 544-45]. Instead, we glean from the above cited cases a consistent theme: the Act is liberally construed so as to minimize hardship to the employee and his or her dependents. Consequently, absent a clear legislative directive, the approach that inures to the benefit of the employee is ordinarily favored. Thus, the appellate courts have not permitted an employer to recoup benefits erroneously paid to an employee. Rather, the cases have countenanced a claimant's recovery of benefits in excess of an amount the claimant is actually entitled to receive. Similarly, in Philip Electronics [ North America v. Wright, 348 Md. 209, 703 A.2d 150 (1997)],[*7] the court relied on the 'weekly credit approach,' which worked to the benefit of the employee. Because the benefits had already been paid, the monetary approach would have required the employee to repay what may have already been spent, generating a host of other problems. "To be sure, 'workers' compensation cases must always turn on their individual facts.' Morris [v. Board of Educ. of Prince George's County, 339 Md. 374, 663 A.2d 578 (1995)], 339 Md. at 384. Under the facts of this case, however, the analysis urged by appellee promotes the benevolent purposes of the Act. If we were to credit appellants for the number of weeks for which they paid benefits, the Claimant would not receive the full amount of the compensation to which she is unquestionably entitled. As between a windfall to the Employer or payment of the correct amount to the Claimant, the choice seems obvious. Requiring the Employer to pay the correct monetary amount is consistent with the purpose of the Act, and is readily accomplished under the factual scenario of this case. Therefore, we conclude that when an award is increased upon judicial review, the Employer is not entitled to a credit based [*8]on the number of weeks for which benefits were paid. Rather, the Employer is entitled to a credit for the total amount of money actually paid to the Claimant prior to the increase."
 
126 Md. App. at 122-23, 727 A.2d at 443-44.

   We granted the petitioner's Petition for Certiorari, Ametek, Inc. v. O'Connor , 355 Md. 610, 735 A.2d 1105 (1999), to address this issue of first impression.
 
II.

   In this Court, the petitioners contend that the intermediate appellate court erred by holding that an employer who has paid benefits pursuant to a workers' compensation award which is increased on judicial review is entitled to receive credit for the amount actually paid, rather than for the number of weeks those payments were made. Not only did the Workers' Compensation Commission correctly interpret the Act, but, they maintain, this Court, in Philip Electronics, 348 Md. at 220-21, 703 A.2d at 155-56, has already considered and "rejected a 'dollar-for-dollar' credit for previously paid benefits as improper and inconsistent with the structure and purpose of the Act." Hence, the petitioners assert that they are entitled to a credit for the period of 50 weeks that [*9]they previously paid pursuant to the Commission's initial order.

   Not unexpectedly, the respondent believes the Circuit Court and the intermediate appellate court correctly decided the issue. To her, that the "Act is remedial in nature and should be construed as liberally in favor of injured employees as its provisions will permit in order to effectuate its benevolent purposes" is critical and dispositive. Distinguishing Philip Electronics as a case involving the overpayment of benefits, and not underpayment, as in the case sub judice, the respondent argues that "to deprive Claimant of benefits to which she is entitled does nothing to advance these purposes and is directly contrary to the overall statutory scheme."
 
III.
 
Philip Electronics, supra, 348 Md. 209, 703 A.2d 150, controls the result in this case. There, the claimant having suffered a knee injury during the course of her employment and, subsequently, while attempting rehabilitation to the knee, developed an adverse psychological condition, filed a claim with the Workers' Compensation Commission against her employer and its insurer. Id. at 212, 703 A.2d at 151. The Commission[*10] found, based on the knee injury and the psychological overlay, that the claimant had suffered a permanent partial disability loss of 50% of the use of her body as a whole, under "other cases," n1 id. at 212, 703 A.2d at 151, and, accordingly, ordered that she be paid permanent partial disability benefits at the rate of $178 per week for 333 weeks pursuant to § 9-630. Id.

n1 Maryland Code (1999 Repl. Vol., 2000 Supp.), § 9-627(k) of the Labor and Employment Article governs "other cases." It provides:

   "(k) Other cases.--(1) In all cases of permanent partial disability not listed in subsections (a) through (j) of this section, the Commission shall determine the percentage by which the industrial use of the covered employee's body was impaired as a result of the accidental personal injury or occupational disease.

   "(2) In making a determination under paragraph (1) of this subsection, the Commission shall consider factors including:

   "(i) the nature of the physical disability; and
 
"(ii) the age, experience, occupation, and training of the disabled covered employee when the accidental personal injury or occupational disease occurred.

   "(3) The Commission shall award compensation to the covered employee in the proportion that the determined loss bears to 500 weeks.

   "(4) Compensation shall be paid to the covered employee at the rates listed for the period in §§ 9-628 through 9-630 of this Part IV of this subtitle."

[*11]
 
   Both parties having filed a petition for judicial review in the Circuit Court for Dorchester County, a jury determined that the claimant's permanent partial disability was a 40% loss of the use of her body as a whole. On remand, the Commission recalculated the benefits to which the claimant was entitled, reducing them to $144 per week for 200 weeks, and credited the employer for the monetary payments it had made pursuant to the Commission's prior order.  348 Md. at 212-13, 703 A.2d at 151.

   After the Circuit Court, on judicial review, affirmed the Commission's decision and the Court of Special Appeals, rejecting the "total monetary" credit approach, reversed the judgment of the Circuit Court, this Court granted the employer's petition for writ of certiorari. Affirming the judgment of the intermediate appellate court, we focused on the language of § 9-627(k), that of § 9-628 n2 and § 9-629, n3 § 9-630 n4 being inapplicable, discerning from the language of those sections a clear and unambiguous demonstration of a legislative commitment to the payment of permanent partial disability benefits within a weekly framework, 348 Md. at 218, 703 A.2d at 154, and[*12] that such an intent is consistent with the purposes sought to be achieved by the Workers' Compensation Act. Our clear holding was that "any credit for previous payments should . . . be expressed by 'weeks.'" Id. at 221, 703 A.2d at 155.

n2 Section 9-628 pertains to compensation payments for less than 75 weeks.

n3 Section 9-629, applicable when compensation is awarded for period equal to or greater than 75 weeks but less than 250 weeks, provides:

   "If a covered employee is awarded compensation for a period equal to or greater than 75 weeks but less than 250 weeks, the employer or its insurer shall pay the covered employee weekly compensation that equals two-thirds of the average weekly wage of the covered employee but does not exceed one-third of the State average weekly wage."

n4 Section 9-630, governing serious disability, for which compensation is paid for 250 weeks or more, provides:

   "(a) In general.--(1) Except as provided in paragraph (2) of this subsection, if a covered employee is given an award or a combination of awards resulting from 1 accidental personal injury or occupational disease for 250 weeks or more under § 9-627 of this subtitle:

   "(i) the Commission shall increase the award or awards by one-third the number of weeks in the award or awards, computed to the nearest whole number; and
 
"(ii) the employer or its insurer shall pay the covered employee weekly compensation that equals two-thirds of the average weekly wage of the covered employee, but does not exceed 75% of the State average weekly wage.

   "(2) An award for disfigurement or mutilation under § 9-627(i) of this subtitle may not be used to make up the 250 weeks under paragraph (1) of this subsection."

[*13]

   The Philip Electronics Court started its analysis of the applicable statutory provisions with § 9-627 (k), which authorized the claimant's award. In addition to itself referencing the proper unit of consideration, see subsection (k) (3), supra, at n.1, the Court observed:

   "As paragraph (4) of subsection (k) of § 9-627 indicates, the award of permanent partial disability benefits is governed by three independent sections of the Act. Section 9-628, not relevant here, authorizes compensation for less than 75 weeks. Section 9-630, which governs compensation to an injured worker for a period of greater than 250 weeks, authorized Wright's original award on November 30, 1992 by the Commission. When Wright's award was reduced to 200 weeks, that award was granted pursuant to § 9-629, which covers compensation for a period equal to or greater than 75 weeks, but less than 250 weeks."
 
348 Md. 209 at 219, 703 A.2d at 154-55.

   After reviewing the three provisions referenced by § 9-627 and § 9-627 itself, it concluded:

   "These statutory provisions reflect the intent of the General Assembly that the payment of permanent partial disability benefits be based upon a[*14] weekly framework. Of greatest significance, the specific sections governing the payment of benefits, § 9-629 and § 9-630, are distinguished by the number of weeks of compensation awarded. The general statutory provision, § 9-627(k)(3), also states that benefits shall be paid "in the proportion that the determined loss bears to 500 weeks." Again, the Act emphasizes the weekly nature of an award of benefits.

   "The language of the specific sections of the Act also reinforces the legislative focus upon the weekly nature of the payment scheme. Both § 9-629 and § 9-630(a)(1)(ii) expressly state that "the employer or its insurer shall pay the covered employee weekly compensation." Section 9-630(a)(1) speaks of a covered employee being awarded compensation "for 250 weeks or more," and § 9-630(a)(1)(i) mandates that "the Commission shall increase the award or awards by one-third the number of weeks." Finally, the Act states that "an award for disfigurement or mutilation under § 9-627(i) of this subtitle may not be used to make up the 250 weeks under paragraph (1) of this subsection." § 9-630(a)(2) (emphasis added). It is telling that in barring an offset against an award from another[*15] subsection of the Act, the General Assembly chose to characterize an award under § 9-630(a) in terms of weeks, rather than as a monetary amount."
 
Id. at 220-21, 703 A.2d at 155. In short, the plain language of the Act led the Court to the conclusion "that the Legislature expressed a commitment to the payment of permanent partial disability benefits based on a weekly framework, rather than focusing upon the total monetary value of such an award." Id. at 121, 703 A.2d at 155.

   Other than the fact that, in this case, § 9-628, which directs the payment of permanent partial compensation for a period of less than 75 weeks, authorized the respondent's original award of 50 weeks, rather than, as in Philip Electronics, § 9-629, which directs such payments for a period equal to or greater than 75 weeks, but less than 250 weeks, what we said in Philip Electronics applies with equal force to the case sub judice. In other words, the analysis applicable to cases involving the subsequent reduction of a workers' compensation award is just as compelling when applied to those cases in which the award has subsequently been increased.

   Some of our sister jurisdictions[*16] have reached like results. In Humpty Dumpty v. Moorehead, 569 P.2d 998 (Okla. 1977), for example, the claimant was originally awarded 298 weeks of temporary total disability benefits, payable at a weekly rate of $45.00 per week. Subsequently, after the claimant reached maximum medical improvement, he was awarded 500 weeks of permanent total disability benefits, payable at a weekly rate of $40 per week. Credit was given the employer for the 298 weeks that compensation was paid. The Oklahoma Supreme Court rejected the contention of the employer that "the weeks allowed for the temporary total compensation should be transposed into dollars, i.e., 298 weeks times $45.00, and thus this total deducted from maximum compensation allowable for permanent total dis ability, or 500 weeks at $40.00 per week." Id. at 999. It held that "the calculation of credit for temporary total disability payments made . . . is to be made on the basis of the number of weeks payments were made, and not on the basis of the amount of money paid out." Id. at 1000. n5 See Sturgis v. Int'l Paper Co., 525 So. 2d 813, 815 (Miss. 1988) (holding[*17] that the proper credit is number of weeks and not total of earnings for the week) (quoting and applying Larson, Workmens Compensation Law, 57.47. n6 ); Gen. Elec. Co. v. Philip C. Morris, 670 S.W.2d 854, 856 (Ky. 1984) (concluding "that each weekly voluntary payment should be credited against each weekly workers' compensation payment due to the extent that the weekly voluntary payment does not exceed the weekly compensation payment."); Duffy Bros. Constr. Co., Inc. v. W. Cas. and Sur. Co., 207 Neb. 360, 299 N.W.2d 170, 174 (Neb.1980) (deciding, after quoting and applying Larson, Workmens Compensation Law, 57.47, that employer was properly given credit for the 15 weeks); Stockton v. Indus. Comm'n, 69 Ill. 2d 120, 370 N.E.2d 548, 549, 12 Ill. Dec. 744 (Ill. 1977) (noting that both petitioner and respondent "agree that the employer is entitled to credit for the number of weeks"); Brittle v. Raybestos-Manhattan, Inc., 241 S.C. 255, 127 S.E.2d 884, 886 (S.C. 1962) (finding that the proper credit is for the week, not the number of dollars and "this can be easily defended under the intention rule, since the employer cannot be ascribed[*18] an intention to make certain payments in lieu of compensation when the payments are too small to be compensation benefits.").

n5 In Alonzo v. Homeland Stores, 861 P.2d 348, 348-49 (Okla. 1993), the court distinguished Humpty Dumpty v. Moorehead, 569 P.2d 998 (Okla. 1977), as follows: 

   "In Moorehead, the Oklahoma Supreme Court addressed the 500 week limit on total disability benefits formerly found in 85 O.S.Supp.1974 § 22(1), and found that under this cap the weeks of temporary total disability paid had to be counted when calculating the number of weeks of permanent total disability benefits payable. In 1977, this ceased to be an issue in workers' compensation cases because the 500 week cap on total disability benefits in § 22(1) was repealed, and total disability benefits became payable so long as total disability continued. See 85 O.S.1991 § 22(1)."
 
Also in that case, the court pointed out that:

   "The Legislature has provided, in 85 O.S.1991 § 41(A) that
 
"Awards for permanent partial disability under Section 22 of this title shall be made for the total number of weeks of compensation which the Court shall find the claimant will be entitled to receive, less any sums previously paid which the Court may find to be a proper credit thereon. (Emphasis added.)

   "Under § 41(A), benefits are to be awarded in weeks, but credits are to be calculated in 'sums.' The word 'sums' refers to money.  Wetz v. Elliott, 4 Okla. 618, 51 P. 657, 658 (1896). The plain meaning of this statute is that credits allowed under § 41 against the permanent partial benefits awarded under § 22 are to be calculated in dollar amounts."
 
861 P.2d at 349.

[*19] 

n6 Professor Larson explains:

   "The amount of credit is not the amount of the wages paid, but the amount of compensation due for the particular week. Thus, if the wage paid was $200, and if the compensation due for the week was $150, the credit is for $150 only. In other words, the credit is for the week, not for a number of dollars, and the excess cannot be carried over as a credit against other weeks of liability."

   The Court of Special Appeals, as does the respondent, recognizes this Court's conclusion in Philip Electronics, that "the General Assembly intended that an employer's credit for the payment of permanent partial disability benefits be based upon the number of weeks of compensation previously paid, absent clear legislative expression to the contrary." 348 Md. 225, 703 A.2d at 158. Nevertheless, focusing on the purpose of the Act, with which the Philip Electronics Court indicated its decision was consistent, the intermediate appellate court reaches the opposite result to that which that Court reached.

   To be sure, in Philip Electronics, this Court began its[*20] analysis with the purpose of the Workers' Compensation Act, "to compensate employees for the loss of earning capacity resulting from accidental injury, disease, or death occurring during the course of employment." 348 Md. at 215-16, 703 A.2d at 153. We also addressed the canons of construction as relates to the Act. Id. Noting its remedial nature, we reiterated that the Act "'should be construed as liberally in favor of injured employees as its provisions will permit in order to effectuate its benevolent purposes.'" Id. at 216, 703 A.2d at 153 (quoting Para v. Richards Group, 339 Md. 241, 251, 661 A.2d 737, 742 (1995) (quoting Howard Co. Ass'n Retard. Cit. v. Walls, 288 Md. 526, 530, 418 A.2d 1210, 1213 (1980)). We also pointed out, however, that, while uncertainty is resolved in the claimant's favor when the intent of the Legislature is ambiguous or remains unclear, id. at 217, 703 A.2d at 153-54, citing Baltimore v. Cassidy, 338 Md. 88, 97, 656 A.2d 757, 761-62 (1995) and Lovellette v. Baltimore, 297 Md. 271, 282, 465 A.2d 1141, 1147 (1983), "this Court . . . may not stifle the[*21] plain meaning of the Act, or exceed its purposes, so that the injured worker may prevail," id. at 217, 703 A.2d at 154, citing Morris v. Bd. of Educ., 339 Md. 374, 384, 663 A.2d 578, 583 (1995), and "may not create ambiguity or uncertainty in the Act's provisions where none exists so that a provision may be interpreted in favor of the injured claimant." Id., citing R & T Constr. v. Judge, 82 Md. App. 700, 709, 573 A.2d 96, 100 (1990), modified, 323 Md. 514, 594 A.2d 99 (1991).

   As the intermediate appellate court points out, the Court did state that the holding in Philip Electronics was consistent with several basic purposes served by the Act and identified them: "to protect workers and their families from hardships resulting from work-related injuries by providing compensation to workers for loss of earning capacity," 348 Md. at 226, 703 A.2d at 158, citing Victor v. Proctor & Gamble, 318 Md. 624, 628, 569 A.2d 697, 699 (1990), and "benefits the taxpayers of the State of Maryland in helping to prevent the State from having to assume the financial responsibility of caring for injured workers [*22] and their dependents." Id. Moreover, the Court explained how the purposes were furthered in that case:

   "The result we reach today furthers both of these purposes. In this case, Wright will continue to receive the weekly payment of benefits for the allotted number of weeks, albeit reduced to accurately reflect the degree of her injury as determined by a jury. By contrast, the result advocated by Philip Electronics would immediately sever such weekly support, in direct contravention of one purpose of the Act. See Bayshore Industries v. Ziats, 229 Md. 69, 76-77, 181 A.2d 652, 656 (1962) (recognizing 'the general policy which the prohibition against stay by reason of an appeal has been held . . . to serve--that of affording day to day support to injured employees'). Moreover, in ensuring continued weekly support to an injured claimant whose award has been reduced, the citizens of this State are protected from having to care for workers, suddenly bereft of income, who had been unable or unwilling to appreciate the risk of their eventual lack of success before the circuit court.  Polomski, 344 Md. 70 at 76-77, 684 A.2d 1338 at 1341; see Triangle Insulation v. Stratemeyer, 782 S.W.2d 628, 630 (Ky.1990)[*23] ('An employee who has received an overpayment of income benefits should not be deprived of future income as a result of any such overpayment.'); Ransier, 104 Nev. 742, 766 P.2d 274 at 277 ('Such a construction [of the statute] would place Ransier in the untenable position of using the benefits paid to him at the risk of having to repay them at a point when his family resources were even more greatly stressed.'); see also Benedict v. Office of Workers' Comp., 29 F.3d 1140, 1142 (7th Cir.1994) (noting that under federal law 'recovery of an overpayment defeats the purpose of the Act where it would 'deprive a person of income required for ordinary and necessary living expenses'') (quoting 20 C.F.R. § 410.561c(a)) (footnote omitted)."
 
348 Md. at 226-27, 703 A.2d at 158.
 
   Neither of the identified purposes is at risk of contravention in this case. There has been no overpayment by the employer/insurer and, therefore, there is no reason for concern about hardship that might attend the obligation to repay benefits received and used, but to which there was no entitlement. Nor is there in this case any danger that the respondent will not have the day to day support to[*24] which she is entitled as a result of her injury. The result of the jury's verdict was to increase both the amount of weekly payments and their duration. Thus, rather than 50 weeks of benefits, the respondent will now be entitled, after the credit, to 417 weeks, payable at the higher rate than the original award.

   There is a bit of an equity issue in this case, only, unlike Philip Electronics, it affects the respondent, rather than the employer/insurer and it is that issue about which both the respondent and the Court of Special Appeals expressed concerned and found dispositive. We rejected the equity argument in Philip Electronics, reasoning that whether "the overpayment . . . is unjust or inequitable must be considered in light of the operation of the Act as a whole," 348 Md. at 228, 703 A.2d at 159, and that "[a] single transaction does not represent the appropriate focal point to determine the fairness or equity of the application of the Act." Id. Further explaining our rejection of the argument, we said:

   "As this Court has noted in the past, the Act reflects the Legislature's considered judgment as to the appropriate allocation of resources between employers, [*25] employees, and the taxpayers of this State.  Polomski, 344 Md. [70,] 76-77, 684 A.2d [1338,] 1340-41 [(1996)]. Significantly, Philip Electronics, as a party to this political equation, receives a valuable benefit in that they are relieved 'from the vagaries of tort liability.' Id. at 77, 684 A.2d at 1341. For instance, unlike a tort recovery, benefits paid pursuant to the Act compensate only for loss of earning capacity, and do not seek to return a claimant to his or her pre-disability state. 1 Larson, supra, § 2.50, at 1-9.

   'Compensation awarded on [a] fault-free basis under the statutory plan substitutes for an employee's common law right to bring a fault-based tort suit against an employer for damages resulting from the employee's injury or disablement on the job . . . .
 
* * * *

   'Employers who purchase workers' compensation insurance and otherwise comply with the law of workers compensation can . . . count on avoiding a negligence lawsuit.'"
 
348 Md. at 228-29, 703 A.2d at 159, quoting DeBusk v. Johns Hopkins, 342 Md. 432, 438, 677 A.2d 73, 75-76 (1996).

   A similar analysis is applicable to the equity argument[*26] in favor of the respondent. Her situation cannot be judged in isolation either, but must be considered in the context of the Act as a whole. Moreover, she too, "a party to this political equation," receives the valuable benefit of being relieved "from the vagaries of tort liability." What we said in DeBusk about the interpretation of the limitations period prescribed by § 9-709 is instructive, in that regard:

    "The Workers' Compensation Act, Md. Code (1957, 1991 Repl.Vol., 1995 Cum. Supp.), § 9-101 et seq. of the Labor & Employment Article . . . was designed to provide employees with compensation for loss of earning capacity, regardless of fault, resulting from accidental injury, disease, or death occurring in the course of employment.  Queen v. Agger, 287 Md. 342, 343, 412 A.2d 733, 733-34 (1980); Howard County Ass'n for Retarded Citizens v. Walls, 288 Md. 526, 531, 418 A.2d 1210, 1214 (1980); Bethlehem-Sparrows Point Shipyard v. Damasiewicz, 187 Md. 474, 480, 50 A.2d 799, 802 (1947). Compensation awarded on this fault-free basis under the statutory plan substitutes for an employee's common law right to bring a fault-based[*27] tort suit against an employer for damages resulting from the employee's injury or disablement on the job. See § 9-509 of the Act (compensation provided to a covered employee under the Act replaces any right of action against any person, including the employer); Brady v. Parsons Co., 327 Md. 275, 279, 609 A.2d 297, 298-99 (1992); Gray v. State Roads Comm'n, 253 Md. 421, 427-28, 252 A.2d 810, 812 (1969); Unsatisfied Claim Bd. v. Salvo, 231 Md. 262, 264, 189 A.2d 638, 639 (1963); Baltimore Transit Co. v. State, 183 Md. 674, 677, 39 A.2d 858, 859 (1944).

   "Gone are the days when an injured employee had to bring an uncertain and potentially expensive lawsuit against his employer, face numerous common law defenses which operated in favor of the employer, and often lose the suit in the end. Employees who follow the procedural rules of the Act and can prove they were injured while working can almost certainly recover compensation to prevent undue hardships caused by loss of wages and medical expenses. Employers who purchase workers' compensation insurance and otherwise comply with the law of workers' compensation can[*28] likewise count on avoiding a negligence lawsuit. Courts and commentators over the decades have noted how the Act strikes an important balance between the need to provide some form of financial benefits to injured or sick employees and the need, of both employers and employees, to avoid expensive and unpredictable litigation over accidents in the workplace. See Richard P. Gilbert & Robert L. Humphreys, Jr., Maryland Workers' Compensation Handbook §§ 1.0-1.2 (2d ed. 1993 & Supp.1996).

   "Predictability and administrative ease, in the workers' compensation statutory plan as in all things, come at the price of some flexibility in unique or unusual circumstances. Objective standards and bright-line rules such as statutes of limitations are the very keys to predictability, in the sense that everyone is treated in the same manner and everyone knows or can discover the rules in advance of their application. By their very nature, though, such rules and standards cannot make exceptions for every scenario which might arise."
 
342 Md. at 437-39, 677 A.2d at 75-76.

   Just as predictability and administrative ease are important from the standpoint of the timing of[*29] actions, so too are they important in establishing the rules governing the award of permanent partial disability benefits. It simply will not do to have different rules, depending upon whether it is the claimant or the employer to whom the result is inequitable. Whether a credit is the amount the employer has paid or for the number of weeks the employer has paid should be determined on some principled and consistent basis and not made to depend upon which of the parties it will benefit. As the petitioner submits, "The Act should not be interpreted differently depending on the outcome in different claims."

 DISSENTBY: Eldridge

DISSENT:  
Dissenting Opinion by Eldridge, J.:
 
For the reasons set forth in Judge Hollander's excellent opinion for the Court of Special Appeals, Ametek v. O'Connor, 126 Md. App. 109, 727 A.2d 437 (1999), I would affirm the judgment of the Court of Special Appeals. 

FURNITURELAND SOUTH, INC. et al. v. COMPTROLLER OF THETREASURY OF THE STATE OF MARYLAND 
No. 6, September Term, 2000
 
COURT OF APPEALS OF MARYLAND
 
364 Md. 126; 771 A.2d 1061; 2001 Md. LEXIS 198

 May  9, 2001, Filed

   PRIOR HISTORY: [*1] Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals. Ronald A. Silkworth, JUDGE.

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY VACATED AND CASE REMANDED TO THAT COURT WITH DIRECTIONS TO DISMISS THE ACTION. COSTS TO BE PAID BY THE COMPTROLLER. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Plaintiff, comptroller of Maryland, filed suit in the Circuit Court of Anne Arundel County (Maryland) against defendants, an out-of-state furniture manufacturing company and a transport company, seeking declaratory judgment and injunctive relief. The circuit court issued judgment in favor of plaintiff and defendants appealed. The state supreme court granted certiorari, and removed the case.

OVERVIEW:  A furniture company had showrooms and manufacturing facilities in North Carolina, but sold furniture throughout the United States. Prior to 1991, it had its own fleet of trucks, but eliminated that operation because legal counsel advised that, by delivering only by common carrier, furniture company could avoid the obligation of collecting sales and use taxes for other states. Defendant, transport company, was created with funds provided by furniture company, but the two companies did not share officers, directors, or employees. However, trucking company delivered furniture company's products to residents of Maryland. The comptroller of Maryland filed an action seeking to compel furniture company and trucking company to collect and remit Maryland sales and use taxes. The state supreme court held that state law did not permit comptroller's action for declaratory and injunctive relief in circuit court but required, instead, that comptroller demand payment of taxes, and follow procedure for appeals outlined in Md. Code Ann., Tax-Gen. §§ 13-508, 13-510, which authorized a hearing before the comptroller or his designee, followed by appeal to the Maryland Tax Court.

OUTCOME:  The state supreme court vacated the judgment of the circuit court and remanded the case to the circuit court with directions to dismiss the comptroller's action.

CORE TERMS:  use tax, vendor, customer, furniture, authorize, tax collector, administrative remedies, tangible personal property, prescribed, collection, subpoena, delivery, administrative remedy, governmental unit, statutory remedy, tax return, out-of-state, jointly, invoke, remit, constitutional issues, adjudicatory, declaratory judgment action, notice and demand, judicial review, retail sales, exhausted, inspection, deliver, exhaustion of administrative remedies

CORE CONCEPTS -  

Tax Law: State & Local Tax: Sales Tax
Tax Law: State & Local Tax: Use Tax
Md. Code Ann., Tax-Gen. § 11-102(a) imposes a tax upon a sale in Maryland, or a use in Maryland, of tangible personal property, or a taxable service. A vendor of the property or service is responsible for the collection of the sales and use tax from the buyer at the time that the sale is made, or at the time the use becomes taxable. Md. Code Ann., Tax-Gen. § 11-403(a). The vendor then remits the tax with a return that covers the period in which the vendor makes that sale. Md. Code Ann., Tax-Gen. § 11-601(b)(1).

Tax Law: State & Local Tax: Sales Tax
Tax Law: State & Local Tax: Use Tax
A vendor for purposes of the Maryland sales and use tax includes a person who engages in the business of an out-of-state vendor. Md. Code Ann., Tax-Gen. § 11-101(m)(1)(i).

Tax Law: State & Local Tax: Sales Tax
Tax Law: State & Local Tax: Use Tax
See Md. Code Ann., Tax-Gen. § 11-701(b).

Tax Law: State & Local Tax: Sales Tax
Tax Law: State & Local Tax: Use Tax
A salesman, representative, peddler, or canvasser who acts as an agent of a vendor subject to the Maryland sales and use tax may, in the discretion of the comptroller, be held jointly responsible for the payment of the tax. Md. Code Ann., Tax-Gen. § 11-101(m)(2).

Tax Law: State & Local Tax: Sales Tax
Tax Law: State & Local Tax: Administration & Procedure
Tax Law: State & Local Tax: Use Tax
Under Md. Const. art. VI, § 2, the comptroller of Maryland is charged with the duty to superintend and enforce the prompt collection of all taxes and revenue, and adjust and settle, on terms prescribed by law, with delinquent collectors and receivers of taxes and state revenue. The comptroller is responsible for administering the laws that relate to the Maryland sales and use tax. Md. Code Ann., Tax-Gen. § 2-102(9).

Civil Procedure: Entry of Judgments: Declaratory Relief
Md. Code Ann., Cts. & Jud. Proc. § 3-409(b), of the Maryland Declaratory Judgment Act limits the use of declaratory judgments, stating that if a statute provides a special form of remedy for a specific type of case, that statutory remedy shall be followed in lieu of a proceeding under the Declaratory Judgment Act.

Civil Procedure: Entry of Judgments: Declaratory Relief
Governments: Courts: Authority to Adjudicate
In Maryland, it is well established that where there exists a special statutory remedy for a specific type of case, and the legislature intends that remedy to be exclusive or primary, a party may not bypass the special statutory remedy by bringing an action for a declaratory judgment, or for equitable relief. This principle applies whether the prescribed special statutory remedy begins with an adjudicatory administrative proceeding, or with a special judicial proceeding.

Administrative Law: Judicial Review: Reviewability: Exhaustion
Where the Maryland General Assembly has provided an administrative remedy for a particular matter or matters, there is a presumption that the legislature intended such remedy to be primary and intended that the administrative remedy must be invoked and exhausted before resort to the courts.

Administrative Law: Judicial Review: Reviewability: Exhaustion
Administrative Law: Judicial Review: Reviewability: Preclusion
The court of appeals of Maryland has consistently treated the special statutory administrative remedies for the determination of tax questions to be exclusive or primary.

Administrative Law: Judicial Review: Reviewability: Exhaustion
When an administrative remedy is provided by statute, relief provided under those statutory provisions must be exhausted before a litigant may resort to the courts.

Tax Law: State & Local Tax: Sales Tax
Tax Law: State & Local Tax: Use Tax
The Maryland General Assembly has provided special statutory remedies for the resolution of sales and use tax controversies. These provisions, involving both administrative and judicial proceedings, are comprehensive. The statutory provisions give the comptroller of Maryland remedies when a person fails to file a sales and use tax return, or fails to keep or disclose records of retail sales.

Tax Law: State & Local Tax: Sales Tax
Tax Law: State & Local Tax: Use Tax
"Person" is defined in Md. Code Ann., Tax-Gen. § 1-101(p) as including any partnership, firm, association, corporation, or other entity.

Tax Law: State & Local Tax: Administration & Procedure
Md. Code Ann., Tax-Gen. § 13-302 contains the comptroller of Maryland's general enforcement powers, authorizes the comptroller to subpoena records, and authorizes a judicial action if a person fails to comply with a subpoena. Md. Code Ann., Tax-Gen. § 11-504 requires a vendor to keep records of retail sales, and to permit inspection of the records by the comptroller.

Tax Law: State & Local Tax: Administration & Procedure
See Md. Code Ann., Tax-Gen. § 13-302.

Tax Law: State & Local Tax: Sales Tax
 Tax Law: State & Local Tax: Use Tax
See Md. Code Ann., Tax-Gen. § 11-504.

Tax Law: State & Local Tax: Sales Tax
Tax Law: State & Local Tax: Use Tax
Md. Code Ann., Tax-Gen. § 13-303 authorizes the comptroller of Maryland to demand the filing of a sales and use tax return. If the demand is not complied with, Md. Code Ann., Tax-Gen. §§ 13-304, 13-402 grant to the comptroller alternate remedies. Section 13-304 authorizes a judicial action to require the filing of a return. Section 13-402(a) authorizes the comptroller to make an assessment utilizing the best information the comptroller has, whatever it may be.

Tax Law: State & Local Tax: Sales Tax
Tax Law: State & Local Tax: Use Tax
Se Md. Code Ann., Tax-Gen. § 13-303.

Tax Law: State & Local Tax: Administration & Procedure
See Md. Code Ann., Tax-Gen. § 13-304.

Tax Law: State & Local Tax: Administration & Procedure
See Md. Code Ann., Tax-Gen. § 13-402(a).

Tax Law: State & Local Tax: Sales Tax
Tax Law: State & Local Tax: Use Tax
Under Md. Code Ann., Tax-Gen. § 11-601(c), if a vendor fails to collect and pay sales or use tax due, the comptroller of Maryland may proceed against the buyer. 

Tax Law: State & Local Tax: Administration & Procedure
Once the comptroller of Maryland makes an assessment, Md. Code Ann., Tax-Gen. § 13-508 provides for an informal hearing before the comptroller or the comptroller's designee, and a final decision by the comptroller. Md. Code Ann., Tax-Gen. § 13-510 authorizes an appeal to the Maryland Tax Court from the comptroller's final decision, and Md. Code Ann., Tax-Gen. § 13-520 grants full subpoena power to the tax court. Md. Code Ann., Tax-Gen. § 13-532 provides for judicial review in the circuit courts of final decisions by the tax court.

Administrative Law: Agency Adjudication: Hearings
Under Maryland law, administrative agencies are fully competent to resolve issues of constitutionality, and the validity of statutes or ordinances in adjudicatory administrative proceedings which are subject to judicial review. The presence of constitutional issues does not authorize a party to circumvent the statutorily prescribed administrative remedies. This principle applies to the comptroller of Maryland, as well as private parties.

Administrative Law: Agency Adjudication
Despite its name, the Maryland Tax Court is not a court; instead, it is an adjudicatory administrative agency in the executive branch of state government.

COUNSEL: ARGUED BY H. Bryan Ives, III (Lee R. Rimler and John A. Stoker of Alston & Bird, L.L.P., of Charlotte, N.C.; Andrew H. Levine, Gerard R. Vetter of Goldman & Vetter, P.A. of Baltimore, MD) all on brief.
 
ARGUED BY: Kim D. Mann (Shawn Mann, L.L.P., on brief) of Washington, D.C. FOR APPELLANTS.
 
ARGUED BY Deborah B. Bacharach, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, and Kathleen A. Morse, Assistant Attorney General, on brief) all of Baltimore, MD FOR APPELLEE.
 
Amicus Curiae: Brief of the Multistate Tax Commission filed on behalf of the Appellee, Paull Mines, Esquire, General Counsel, Sheldon H. Laskin, Esquire, Director, National Nexus Program, Multistate Tax Commission, Washington, D.C.

JUDGES: ARGUED BEFORE Bell, C.J.; Eldridge, * Rodowsky, Raker, Wilner, Cathell, and Harrell, JJ. Opinion by Eldridge, J.

* Rodowsky, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion. 

OPINIONBY: Eldridge

OPINION:  
Opinion by Eldridge, J.

   The instant case is a declaratory judgment action brought by the Comptroller of Maryland seeking a judicial determination that the defendants, two North Carolina corporations, are vendors within the meaning of Title 11 of the Tax-General Article of the Maryland Code and are, therefore, required to collect state sales and use taxes from their Maryland customers. Because the Comptroller failed to invoke and exhaust the prescribed statutory administrative and judicial review remedies for resolution of this tax issue, we shall be unable to reach the merits of the case.
 
I.

   Maryland Code (1988, 1997 Repl. [*2] Vol.), § 11-102(a) of the Tax-General Article imposes a tax upon a sale in the State, or a use in the State, of tangible personal property or a taxable service. A vendor of the property or service is responsible for the collection of the sales and use tax from the buyer at the time that the sale is made or at the time the use becomes taxable. § 11-403(a). The vendor then remits the tax with a return that covers the period in which the vendor makes that sale. § 11-601(b)(1).

   A vendor for purposes of the sales and use tax includes a person who "engages in the business of an out-of-state vendor." § 11-101(m)(1)(i). Section 11-701(b) further provides that engaging in the business of an out-of-state vendor means "to sell or deliver tangible personal property or a taxable service for use in the State" and includes:

   "(i) permanently or temporarily maintaining, occupying, or using any office, sales or sample room, or distribution, storage, warehouse, or other place for the sale of tangible personal property or a taxable service directly or indirectly through an agent or subsidiary;

   (ii) having an agent, canvasser, representative, salesman, or solicitor operating in the State for the[*3] purpose of delivering, selling, or taking orders for tangible personal property or a taxable service; or
 
(iii) entering the State on a regular basis to provide service or repair for tangible personal property."
 
A "salesman, representative, peddler, or canvasser" who acts as an agent of a vendor subject to the sales and use tax may, in the discretion of the Comptroller, be held jointly responsible for the payment of the tax. § 11-101(m)(2).

   Under Article VI, § 2, of the Maryland Constitution, the Comptroller is charged with the duty to "superintend and enforce the prompt collection of all taxes and revenue; adjust and settle, on terms prescribed by law, with delinquent collectors and receivers of taxes and State revenue . . . ." The Comptroller is responsible for administering the laws that relate to the Maryland sales and use tax. § 2-102(9) of the Tax-General Article.

   Furnitureland South, Inc. is a nationwide furniture retailer with three locations in the area of Jamestown and High Point, North Carolina. Furnitureland has no showrooms or other facilities outside of North Carolina. It does not own or rent any real property, or store furniture or other personal property, [*4]in Maryland. Furnitureland does not send unsolicited promotional materials to Maryland residents or otherwise initiate direct contact with Maryland customers.

   Prior to 1991, Furnitureland had its own fleet of trucks and drivers to make furniture deliveries in North Carolina and throughout the other eastern states. Furnitureland's president, Darrell Harris, decided to separate the interstate delivery portion of the business from the retail operation. The decision was made, at least in part, to avoid collecting sales and use taxes for other states. Harris was advised by his attorney that, as long as Furnitureland delivered only by common carrier and had no other contacts with the taxing state, it would not be obligated to collect other states' sales and use taxes.

   Royal Transport, Inc. was established in 1991 as a long distance trucking company. Furnitureland provided Royal with initial financing and technical assistance. The two companies have never shared employees, officers, directors, or shareholders. Royal does not maintain offices, facilities, or equipment in Maryland, and it does not own or lease any real property in Maryland. Furnitureland has employed Royal as its primary[*5] furniture delivery carrier since Royal's inception. Prior to 1998, Furnitureland was Royal's only customer. When it makes a delivery of Furnitureland's products in Maryland, Royal does not collect the sales and use taxes from Furnitureland's customers.

   Following the refusal of Furnitureland and Royal to submit to a sales and use tax audit, the Comptroller filed in the Circuit Court for Anne Arundel County a complaint for declaratory and injunctive relief against Furnitureland and Royal. The Comptroller sought a declaration that Furnitureland and Royal are "vendors within the meaning of Title 11 of the . . . Tax-General Article, and are therefore required to collect Maryland sales and use tax from Furnitureland's Maryland customers and remit the same to the plaintiff." The Comptroller also sought "an injunction enjoining defendants, jointly and severally, from failing to collect and remit Maryland sales and use tax from Furnitureland's Maryland customers."

   In the Circuit Court, the Comptroller asserted that Furnitureland is a vendor within the meaning of § 11-101(m)(1)(i) and § 11-701(b)(2)(ii) because it sells furniture for use in Maryland and has the furniture delivered, assembled, [*6]and set up in Maryland by Royal, acting as its agent or representative. Royal, the Comptroller alleged, acts as a private or contract carrier, and not a common carrier, when it delivers furniture to Furnitureland's Maryland customers. Therefore, according to the Comptroller, Royal is also a vendor within the meaning of § 11-101(m)(2). The Comptroller contended that the use of the furniture sold to Furnitureland's Maryland customers becomes taxable upon its delivery to those customers and that Royal is jointly responsible with Furnitureland for the collection of the sales and use tax from Furnitureland's customers.

   Furnitureland and Royal defended on the ground that they are not out-of-state vendors within the meaning of the Maryland sales and use tax. The defendants further asserted that the Commerce Clause of the United States Constitution, Article I, § 8, cl. 3, prohibits the application of the Maryland sales and use tax statutes to them because they do not have a substantial nexus with the State. The defendant Royal also argued that the Interstate Commerce Act, 49 U.S.C. §§ 10101 et seq., which regulates interstate motor carriers, preempts the State[*7] from imposing sales and use tax collection duties on Royal.

   The trial consisted of a joint stipulation of facts, additional evidence, and argument. Thereafter, the Circuit Court declared that Furnitureland and Royal, acting as Furnitureland's agent, were out-of-state vendors within the meaning of Maryland's sales and use tax statutes and were, therefore, obligated to register as vendors and collect and remit sales and use taxes to the Comptroller. The court further concluded that the Maryland sales and use tax statutes, as applied to the defendants, satisfied constitutional requirements because a substantial nexus existed between the State and the defendants. The court held, therefore, that Furnitureland and Royal are jointly responsible for the collection of Maryland sales and use tax on all goods that Furnitureland sells and Royal delivers to customers in Maryland. The court also issued an order pursuant to the Comptroller's request for injunctive relief.

   Both Furnitureland and Royal timely noted appeals to the Court of Special Appeals. This Court issued a writ of certiorari on its own motion before argument in the intermediate appellate court.  Furnitureland v. Comptroller, 358 Md. 381, 749 A.2d 171 (2000).[*8] As previously mentioned, we shall not reach the substantive tax and constitutional issues raised by the parties and decided by the Circuit Court. Instead, we shall vacate the judgment below on the ground that Maryland law required the Comptroller to invoke and exhaust the administrative and judicial review remedies provided in the Tax-General Article for the resolution of tax disputes.

   II.

    Although no party has raised any question regarding the invocation and exhaustion of administrative remedies, and the propriety of a declaratory judgment action, these are issues which this Court will address sua sponte. See Utilities v. WSSC, 362 Md. 37, 44, 763 A.2d 129, 132-133 (2000) (propriety of a declaratory judgment action); Montgomery County v. Broadcast Equities, 360 Md. 438, 450-451 n.7, 452, 758 A.2d 995, 1002 n.7, 1003 (2000) (need to invoke and exhaust administrative remedies).

   The Maryland Declaratory Judgment Act, Code (1974, 1998 Repl. Vol.), § 3-409(b) of the Courts and Judicial Proceedings Article, limits the use of declaratory judgments, stating:

   "(b) Special form of remedy provided by the statute. - If a statute provides a special form[*9] of remedy for a specific type of case, that statutory remedy shall be followed in lieu of a proceeding under this subtitle."
 
Thus, in Maryland, it is well established that where there exists a special statutory remedy for a specific type of case, and the Legislature intends that remedy to be exclusive or primary, a party may not bypass the special statutory remedy by bringing an action for a declaratory judgment or for equitable relief. See, e.g., Utilities v. WSSC, supra, 362 Md. at 45, 763 A.2d at 133; Montgomery County v. Broadcast Equities, supra, 360 Md. at 461, 758 A.2d at 1008 (2000); Josephson v. Annapolis, 353 Md. 667, 674-678, 728 A.2d 690, 693-695 (1998); Holiday Point Marina v. Anne Arundel County, 349 Md. 190, 201-203, 707 A.2d 829, 834- 836 (1998); Zappone v. Liberty Life, 349 Md. 45, 63-66, 706 A.2d 1060, 1069-1071 (1998); Maryland Reclamation v. Harford County, 342 Md. 476, 492, 677 A.2d 567, 575 (1996); Insurance Commissioner v. Equitable Life Assurance Society, 339 Md. 596, 619, 664 A.2d 862, 874 (1995); Maryland Commission on Human Relations v. Mass Transit Administration, 294 Md. 225, 232-233, 449 A.2d 385, 389 (1982);[*10] Leatherbury v. Gaylord Fuel Corp., 276 Md. 367, 376, 347 A.2d 826, 831-832 (1975). We recently pointed out that this principle applies whether the prescribed special statutory remedy begins with an adjudicatory administrative proceeding or with a special judicial proceeding. See Utilities, supra, 362 Md. at 45, 763 A.2d at 133.

   Moreover, where the Legislature has provided an administrative remedy for a particular matter or matters, there is a presumption that the Legislature intended such remedy to be primary and intended that the administrative remedy must be invoked and exhausted before resort to the courts. See, e.g., Josephson v. Annapolis, supra, 353 Md. at 675, 728 A.2d at 694; Zappone v. Liberty Life, supra, 349 Md. at 63, 706 A.2d at 1069; Maryland Reclamation v. Harford County, supra, 342 Md. at 493, 677 A.2d at 576; Luskin's v. Consumer Protection, 338 Md. 188, 194-199, 657 A.2d 788, 791-793 (1995); Board v. Secretary of Personnel, 317 Md. 34, 42-43, 562 A.2d 700, 704 (1989); Clinton v. Board of Education, 315 Md. 666, 678, 556 A.2d 273, 279 (1989);[*11] Board of Ed. for Dorchester Co. v. Hubbard, 305 Md. 774, 786, 506 A.2d 625, 631 (1986) ("we have ordinarily construed the pertinent enactments to require that the administrative remedy be first invoked and followed").

   Accordingly, this Court has consistently treated the special statutory administrative remedies for the determination of tax questions to be exclusive or primary. See, e.g., Goldstein v. Time-Out Family Amusement, 301 Md. 583, 590, 483 A.2d 1276, 1280 (1984); White v. Prince George's County, 282 Md. 641, 649, 387 A.2d 260, 265 (1978); State Dept. of Assessments & Tax. v. Clark, 281 Md. 385, 401-403, 380 A.2d 28, 37-38 (1977); Gager v. Kasdon, 234 Md. 7, 9, 197 A.2d 837, 838 (1964); Tanner v. McKeldin, 202 Md. 569, 578, 97 A.2d 449, 453 (1953); Reiling v. Comptroller, 201 Md. 384, 388, 94 A.2d 261, 263 (1953); American Bank Stationery Co. v. State, 196 Md. 22, 26, 75 A.2d 86, 87 (1950); Williams v. Tawes, 179 Md. 224, 228, 17 A.2d 137, 139 (1941); Tidewater Oil Co. v. Anne Arundel County, 168 Md. 495, 500, 178 A. 221, 223 (1935);[*12] Baltimore Steam Packet Co. v. Mayor and City Council of Baltimore, 161 Md. 9, 16, 155 A. 158, 161 (1931); Schluderberg Co. v. Mayor and City Council of Baltimore, 151 Md. 603, 613-615, 135 A. 412, 415-416 (1926).

   As Judge Orth for the Court emphasized in a tax case, State Dept. of Assessments & Tax. v. Clark, supra, 281 Md. at 401, 380 A.2d at 37, "when an administrative remedy is provided by statute, relief provided under those statutory provisions must be exhausted before a litigant may resort to the courts." In Soley v. Commission on Human Relations, 277 Md. 521, 526, 356 A.2d 254, 257 (1976), this Court addressed the reasons underlying the general requirement of exhaustion:

   "The rule requiring exhaustion of administrative remedies or statutory remedies is supported by sound reasoning. The decisions of an administrative agency are often of a discretionary nature, and frequently require an expertise which the agency can bring to bear in sifting the information presented to it. The agency should be afforded the initial opportunity to exercise that discretion and to apply that expertise. Furthermore, to permit interruption [*13]for purposes of judicial intervention at various stages of the administrative process might well undermine the very efficiency which the Legislature intended to achieve in the first instance. Lastly, the courts might be called upon to decide issues which perhaps would never arise if the prescribed administrative remedies were followed."

   The General Assembly has provided special statutory remedies for the resolution of sales and use tax controversies. These provisions, involving both administrative and judicial proceedings, are comprehensive and encompass the type of dispute involved in the case at bar. The statutory provisions give the Comptroller remedies when a "person" fails to file a sales and use tax return or fails to keep or disclose records of retail sales. n1

n1 "Person" is defined in § 1-101(p) of the Tax-General Article as including "any partnership, firm, association, corporation, or other entity."

   Section 13-302 of the Tax-General Article contains the Comptroller's general enforcement powers, authorizes[*14] the Comptroller to subpoena records, and authorizes a judicial action if a person fails to comply with a subpoena. n2 Section 11-504 requires a vendor to keep records of retail sales and to permit inspection of the records by the Comptroller. n3 Thus, instead of seeking a declaratory judgment and injunction requiring payment of the taxes, the Comptroller could have brought an enforcement action in the Circuit Court against the defendants pursuant to § 13-302. The Comptroller, however, did not pursue this remedy.

n2 Section 13-302 of the Tax-General Article states as follows:

   " § 13-302. Determination and enforcement.

   (a) In general. - To determine whether a tax return is correct or otherwise to enforce a provision of this article, a tax collector may:

   (1) examine any records or other data that may be relevant or material to the matters required to be included in a tax return;

   (2) conduct an investigation;

   (3) hold a hearing;

   (4) administer oaths;

   (5) take testimony and other evidence; and
 
(6) subpoena;

   (i) any person; or
 
(ii) any relevant document.

   (a-1) Determination using scientific random sampling techniques. - If the Comptroller determines that the taxpayer's records are so detailed, complex, or voluminous that an audit of all detailed records would be unreasonable or impractical, the Comptroller may compute the sales and use tax by using scientific random sampling techniques.

   (b) Enforcement. - If a person fails to comply with a subpoena or fails to testify on any matter on which the person lawfully may be interrogated, on petition of a tax collector, a circuit court or, if the subpoena is issued under authority of an orphans' court, the orphans' court may pass an order directing compliance with the subpoena or compelling testimony."

[*15] 

n3 Section 11-504 provides in part as follows:

   " § 11-504. Records.

   (a) In general. - A vendor shall keep:

   (1) complete and accurate records of:

   (i) all retail sales and sales for use; and
 
(ii) the sales and use tax collected; and
  
(2) other records in the form that the Comptroller requires by regulation, including bills of lading and invoices.

   (b) Inspection. - A vendor shall make the records under subsection (a) of this section available for inspection and examination by the Comptroller at any time during business hours."

   * * *

   In addition, § 13-303 authorizes the Comptroller to demand the filing of a sales and use tax return. n4 If the demand is not complied with, §§ 13-304 and 13-402 grant to the Comptroller alternate remedies. Section 13-304 authorizes a judicial action to require the filing of a return. n5 Section 13-402(a) authorizes the Comptroller to make an assessment utilizing the best information the Comptroller has, whatever it may be. n6 Again, the Comptroller failed to utilize either of these remedies. n7

n4 Section 13-303 states in pertinent part:

   " § 13-303. Notice and demand for return.

   If a person or governmental unit fails to file a tax return as required under this article, the tax collector shall mail the person or governmental unit a notice and demand for the return that requires the person or governmental unit:

   (1) for the sales and use tax, to file the return and to pay the tax within 10 days after the date on which the notice is mailed . . . ." 

[*16] 

n5 Section 13-304 provides as follows:

   " § 13-304. Compelling filing of returns.

   If a person fails to comply with a notice and demand for a return the tax collector:

   (1) may compel the person to make the return; and
 
(2) if the person fails to make the return, may file an appropriate action in a court of competent jurisdiction."

n6 Section 13-402(a) provides in pertinent part:

   " § 13-402. Assessment when tax return not filed.
 
   (a) In general. - If a notice and demand for a return is made under § 13-303 of this title and the person or governmental unit fails to file the return, the tax collector shall:

   (1) except as otherwise provided in this section:

   (i) compute the tax by using the best information in the possession of the tax collector; and
 
(ii) assess the tax due . . . ."

n7 Section 11-601(c) contains yet another alternative. If the vendor fails to collect and pay the sales or use tax due, the Comptroller may proceed against the buyer.

   Once the Comptroller invokes one or more of the above-described remedies and makes an assessment, § 13-508 provides[*17] for an "informal hearing" before the Comptroller or the Comptroller's designee and a final decision by the Comptroller. Section 13-510 authorizes an appeal to the Tax Court from the Comptroller's final decision, and § 13-520 grants full subpoena power to the Tax Court. Section 13-532 provides for judicial review in the circuit courts of final decisions by the Tax Court.

   When the question of exhausting administrative remedies was raised at oral argument before this Court, counsel for the Comptroller argued that the usual exhaustion requirement did not apply because the Tax Court was not authorized to decide constitutional issues. n8 Counsel's statement was in error. As we recently reiterated in Montgomery County v. Broadcast Equities, supra, 360 Md. at 451 n.8, 758 A.2d at 1002 n.8, "under Maryland law, administrative agencies are fully competent to resolve issues of constitutionality and the validity of statutes or ordinances in adjudicatory administrative proceedings which are subject to judicial review." See also, e.g., Josephson v. Annapolis, supra, 353 Md. at 677, 728 A.2d at 694-695; Holiday Point Marina v. Anne Arundel County, supra, 349 Md. at 199- 200, 707 A.2d at 834,[*18] and cases there cited. The presence of constitutional issues does not authorize a party to circumvent the statutorily prescribed administrative remedies. Montgomery County v. Broadcast Equities, supra, 360 Md. at 450-462, 758 A.2d at 1001- 1008. This principle applies to the Comptroller as well as private parties.

n8 Despite its name, the Tax Court is not a court; instead, it is an adjudicatory administrative agency in the executive branch of state government. Kim v. Comptroller, 350 Md. 527, 534, 714 A.2d 176, 179 (1998); Shell Oil Co. v. Supervisor, 276 Md. 36, 43-47, 343 A.2d 521, 525-528 (1975).

   JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY VACATED AND CASE REMANDED TO THAT COURT WITH DIRECTIONS TO DISMISS THE ACTION. COSTS TO BE PAID BY THE COMPTROLLER. 

GEORGE THOMAS WENGERT v. STATE OF MARYLAND 
No. 34, September Term, 2000
 
COURT OF APPEALS OF MARYLAND
 
364 Md. 76; 771 A.2d 389; 2001 Md. LEXIS 137

 April  16, 2001, Filed

   PRIOR HISTORY: [**1] Certiorari to the Circuit Court for  Anne Arundel  County. Case No. K-99-00854. Joseph Manck, JUDGE.

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED; COSTS TO BE PAID BY PETITIONER. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Defendant sought review of the judgment of the Circuit Court for Anne Arundel County (Maryland) convicting defendant of gambling and keeping a place for gambling in violation of Md. Ann. Code art. 27, § 240 (1996, Supp. 2000). Defendant challenged the warrantless search of his home.

OVERVIEW:  Officers caught a burglar in defendant's home and arrested and questioned him there. The officers searched the home to determine whether anyone was there and found in plain view evidence of defendant's gambling activity. The vice squad was called, and defendant gave them consent to search the premises. The vice squad seized incriminating evidence. The appellate court found the search to be lawful. The exigent circumstance of the burglary justified the police officer's initial warrantless entry. It was reasonable for the officers to search the house for the safety of its residents to determine if the burglar acted alone. The requirements of the plain view doctrine were satisfied, justifying the officers' seizure of the evidence. The police were lawfully present in defendant's home, they had probable cause to believe that the items seized were evidence of crime, and they had a lawful right of access to the items seized. The vice squad was not required to obtain a search warrant where the initial officers were already on the premises.

OUTCOME:  The judgment was affirmed. The officers' initial warantless entry into defendant's home was justified under exigent circumstances. The police properly seized evidence of unlawful activity under the plain view doctrine. The vice squad was not required to obtain a warrant to search the premises.

CORE TERMS:  sweep, plain view, burglary, basement, gambling, probable cause, minute, burglar, seized, lawful, seizure, arrest, exigent circumstances, exigency, coffee table, television, looked, lawfully, privacy, Fourth Amendment, tally sheet, protective, machine, fax, warrantless entry, contraband, immediately apparent, living room, detective, scene

CORE CONCEPTS -  

Criminal Law & Procedure: Pretrial Motions: Suppression of Evidence
Criminal Law & Procedure: Appeals: Standards of Review: Clearly Erroneous Review 
An appellate court's review of the propriety of a trial court's denial of a motion to suppress evidence is limited to the record developed at the motion hearing. In determining whether the police officers' conduct was reasonable, an appellate court considers only those relevant facts produced at the suppression hearing that are most favorable to the State as the prevailing party on the motion. Although an appellate court makes its own independent appraisal of whether a constitutional right has been violated, the trial court's factual findings will not be disturbed unless those findings are clearly erroneous.

Criminal Law & Procedure: Search & Seizure: Warrantless Searches: Exigent Circumstances
U.S. Const. amend. IV prohibits only those searches and seizures that are unreasonable. A warrantless search and seizure does not violate the U.S. Const. amend. IV when law enforcement officers are faced with exigent circumstances such that there is a compelling need for official action and no time to secure a warrant.

Criminal Law & Procedure: Search & Seizure: Warrantless Searches: Exigent Circumstances
Exigent circumstances are those in which a substantial risk of harm to the persons involved or to the law enforcement process would arise if the police were to delay a search until a warrant could be obtained. The meaning of exigency implies urgency, immediacy, and compelling need. The burden is on the State to establish exigent circumstances that overcome the presumptive unreasonableness that attaches to all warrantless entries of a home.

Criminal Law & Procedure: Search & Seizure: Warrantless Searches: Exigent Circumstances
A burglary in progress is an exigent circumstance that justifies a warrantless entry of a residence.

Criminal Law & Procedure: Search & Seizure: Warrantless Searches: Exigent Circumstances
When law enforcement officers have probable cause to believe that a burglary is either in progress or recently has been committed, the exigencies of the situation permit the officers to enter the premises without a warrant to search for intruders and to protect an occupant's property. The responsibility of the police to investigate burglaries must be balanced against the serious invasions of privacy such entries and searches entail. The justification for the warrantless entry is to look for suspects, to preserve an individual's property, or to ensure the safety of the residents; it is not to enter under a pretext to search for contraband or to investigate illegal activity.

Criminal Law & Procedure: Search & Seizure: Warrantless Searches: Exigent Circumstances
A warrantless search must be strictly circumscribed by the exigencies which justify its initiation. The scope of the search must be strictly tied to and justified by the circumstances that rendered its initiation permissible. The scope of the limited warrantless intrusion must not exceed that justified by the exigencies presented. Thus, when acting on the reasonable belief that a burglary is in progress or has recently been committed, law enforcement officers may not deviate from the original purposes of their search.

Criminal Law & Procedure: Search & Seizure: Warrantless Searches: Plain View
In certain circumstances, a warrantless seizure of items come upon by the police in plain view during a lawful search of a home may be reasonable under the U.S. Const. amend. IV. The plain-view doctrine is grounded on the proposition that once police are lawfully in a position to observe an item first-hand, its owner's privacy interest in that item is lost; the owner may retain the incidents of title and possession but not privacy.

Criminal Law & Procedure: Search & Seizure: Warrantless Searches: Plain View
The seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity. Police officers may seize incriminating evidence in plain view during the course of a lawful search because such a seizure does not involve an intrusion on privacy. If the interest in privacy has been invaded, the violation must have occurred before the object came into plain view.

Criminal Law & Procedure: Search & Seizure: Warrantless Searches: Plain View
To invoke the plain view doctrine of U.S. Const. amend. IV, the police must satisfy the following requirements: (1) the police officer's initial intrusion must be lawful or the officer must otherwise properly be in a position from which he or she can view a particular area; (2) the incriminating character of the evidence must be immediately apparent; and (3) the officer must have a lawful right of access to the object itself.

Criminal Law & Procedure: Search & Seizure: Warrantless Searches: Plain View
To the extent that Maryland cases have interpreted the plain view doctrine under U.S. Const. amend. IV to require that the officer must discover incriminating evidence inadvertently, they are disapproved.

Criminal Law & Procedure: Search & Seizure: Warrantless Searches: Plain View
The requirement under the plain view doctrine that an object's incriminating nature be "immediately apparent" ensures that the plain view doctrine is not used to engage in a general exploratory search from one object to another until something incriminating at last emerges. "Immediately apparent," however, does not mean that the officer must be nearly certain as to the criminal nature of the item. Instead, "immediately apparent" means that an officer must have probable cause to associate the object with criminal activity.

Criminal Law & Procedure: Search & Seizure: Warrantless Searches: Plain View
In the context of the plain view doctrine, probable cause is a non-technical conception of a reasonable ground for belief of guilt, requiring less evidence for such belief than would justify conviction but more evidence than that which would arouse a mere suspicion. Probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would warrant a man of reasonable caution in the belief, that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A practical, nontechnical probability that incriminating evidence is involved is all that is required.

Criminal Law & Procedure: Search & Seizure: Warrantless Searches: Plain View
In the context of the plain view doctrine, probable cause is to be determined based upon evaluation of facts, viewed from the standpoint of an objectively reasonable police officer, and not on the officer's actual state of mind at the time the challenged action was taken. Therefore, the probable cause test is an objective one.

Criminal Law & Procedure: Search & Seizure: Warrantless Searches: Plain View
Merely looking at what is already exposed to view, without disturbing it is not a search for U.S. Const. amend. IV purposes, and therefore does not even require reasonable suspicion.

Criminal Law & Procedure: Search & Seizure: Warrantless Searches
Whether a subsequent warrantless entry is a continuation of the lawful initial entry can only be determined based on the facts and circumstances of the individual case. The later officials must confine their intrusion to the scope of the original invasion unless a warrant or one of the exceptions to the warrant requirement justifies a more wide ranging search.

Criminal Law & Procedure: Search & Seizure: Warrantless Searches
Once the privacy of a dwelling has been lawfully invaded, to require a second officer from another law enforcement agency arriving on the scene of a valid seizure to secure a warrant before he enters the premises to confirm that the seized evidence is contraband and to take custody of it is just as senseless as requiring an officer to interrupt a lawful search to stop and procure a warrant for evidence he has already inadvertently found and seized.

Criminal Law & Procedure: Search & Seizure: Warrantless Searches: Plain View
The plain view doctrine is grounded on the proposition that once police are lawfully in a position to observe an item first-hand, its owner's privacy interest in that item is lost; the owner may retain the incidents of title and possession but not privacy.

COUNSEL: ARGUED BY Cynthia E. Young of Annapolis, MD FOR PETITIONER.
 
ARGUED BY Gary E. Bair, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, on brief) of Baltimore, MD FOR RESPONDENT.

JUDGES: ARGUED BEFORE Bell, C.J.; Eldridge, Rodowsky, * Raker, Wilner, Cathell, and Harrell, JJ. Opinion by Raker, J. Dissenting Opinion by Bell, C.J., in which Eldridge, J., joins.

* Rodowsky, J., now retired, specially assigned, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion.

OPINIONBY: Raker
 
OPINION: [*391]
 
Opinion by Raker, J.

   George Thomas Wengert was convicted in the District Court of Maryland, sitting in Anne Arundel County, for the offenses of gambling and keeping a place for gambling in violation of Maryland Code (1957, 1996 Repl. Vol., 2000 Supp.) Article 27, § 240. He appealed to the Circuit Court for Anne Arundel County and, in a trial de novo, he was again convicted. Wengert challenges the legality of the search and seizure of items taken from his home. In his petition for certiorari he presents a single question: "Where a sole burglar answered the front door of petitioner's house and[**2] could have been taken into custody by police without their entry into petitioner's home, was evidence seized from the home by police admissible under the protective sweep exception or any other exception to the Fourth Amendment?" We shall answer the question in the affirmative and, accordingly, affirm the judgment of the Circuit Court.

   I.

   There is no dispute as to the facts of this case. On October 22, 1998, at approximately 10:42 a.m., a neighbor who lived behind 311 Edison Street, in Anne Arundel County, Maryland, called the police to report that she had seen a white male enter Petitioner's house through a partially open rear window. [*392]

   Anne Arundel County Police Officer Benner was the first officer to respond to the call, arriving at Petitioner's home at 11:30 a.m. He proceeded to the back of the house, where he saw the partially open window and the window ledge below it with dust marks and smudges. It appeared to him "as if a person had entered or pulled something in or out of the window." Minutes after Officer Benner arrived, three backup officers joined him---Officers Praley, Mills, and Bishop. Bishop and Benner remained at the rear of the house; Praley and Mills went to the[**3] front of the house. Officer Benner called into the house, and a voice from within stated "I'm coming up" or "Yes, I'm coming out."

   Officer Bishop instructed the suspect to go to the front door and admit the officers. A person matching the description given by the neighbor, who turned out to be a burglary suspect named Myers, opened the front door. Officer Praley handcuffed Myers, and the two then sat down on the couch in the living room.

   Officers Benner and Bishop entered the house, and Benner and Praley questioned the suspect about his presence there. The suspect claimed that his grandmother owned the home, prompting Benner to look for mail that might verify the suspect's identity.

   While Officer Praley remained on the couch interviewing the suspect, Benner and Bishop looked in the house for other suspects, victims, and residents. They checked the upstairs level, which took about one minute, and then proceeded to the basement, where they saw a stack of money on a television set, a fax machine set up in front of the television set, a sports pager on the floor by the fax machine, and a "pix ticket." n1 The officers did not touch or disturb anything in the basement area. While the[**4] two officers were downstairs, Officer Praley, who had experience in vice, narcotics, and gambling, saw a paper on the coffee table, which appeared to him to be a tally sheet for record keeping of gambling or drugs.

n1 The picks sheet was a folded white pamphlet with a drawing of two football players on the cover. The words "PIX" and "Printed for Informative Purposes Only and Not An Inducement to Wager" also appeared on the cover, as well as a notation "C118."

   In Officer Bishop's opinion, the scene as a whole, and particularly the money and the picks ticket atop the television set, led him to believe that the items were evidence of gambling. He testified that it "all just seemed somewhat out of place that you would have a fax machine there right in front of the TV set, and it looked like it was set up so someone could sit there and watch TV, watch sports, and do all their business in one convenient spot." Suspecting a gambling operation, Benner and Bishop called Praley to the basement level. n2 Praley saw the[**5] fax machine, tally sheet, pick slip, and cash; he testified "that this is leading us to believe it's gambling and I think we should . . . stop and call the vice squad." In fact, that is what they did.

n2 Another officer, Lt. Little, responding to the original burglary call, arrived at the house about ten to fifteen minutes after Officer Praley went down to the basement, and he, too, went into the basement. Without moving anything, he looked at the items.

   At approximately 11:45 a.m., before the vice squad arrived, Petitioner's twenty-two- year-old son, Joshua, came home. He declined to give the officers consent to search, preferring to wait until his parents came home. His mother arrived home about fifteen minutes later, and she, too, declined to consent to a search of the house, preferring to wait for her husband to come home. Petitioner arrived home around 12:30 p.m.[*393]

   Vice Squad Detective Middleton arrived sometime between 11:45 a.m. and 12:00 p.m., looked at the papers on the coffee table, as well as the items[**6] in the basement, and recognized the papers as a "tally sheet" and "parlay card" used in gambling operations. Middleton told Petitioner that he suspected a gambling operation, and Petitioner and his wife consented to a search of their home.

   The police seized approximately $42,000.00 in cash, including the money seen earlier on top of the television and additional amounts found in a closet. The officers also seized other books and papers.

    Petitioner filed a motion to suppress the evidence seized from his home. The Circuit Court held a pre-trial evidentiary hearing and denied the motion. The court credited Officer Benner's testimony that his main objective in looking throughout the home was to secure the premises and to ensure that there were no additional suspects or victims in the home. The court found that, in accord with Maryland v. Buie, 494 U.S. 325, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990), Officer Benner acted reasonably in his initial cursory sweep of Petitioner's basement, limiting his "sweep" to approximately fifteen to twenty seconds and that, within that time period, he also discovered the cash and sports tip card on the television in the basement. The[**7] court found that the police seized the items lawfully under the "plain view" doctrine, fully satisfying the requirements of Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). As an alternative holding, the court found that the police entry into Petitioner's home was justified under the police community caretaking function of protecting property, relying on State v. Alexander, 124 Md. App. 258, 721 A.2d 275 (1998). As further justification for the search, the court found that the Wengerts consented to a search of the house. Petitioner filed a Petition for Writ of Certiorari in this Court, which we granted, and we shall affirm the Circuit Court.

   II.

   Petitioner contends that the evidence should have been suppressed because the police officers' initial entry into the house was unlawful. He argues that, even if the initial entry were permissible, the subsequent detailed search of his house was beyond the scope of a protective sweep or any other legitimate police function because there was no indication that another suspect was at large, there was no evidence of any weapon, the arrest did not occur inside any residence belonging[**8] to the intruder, and there was no need for the police to enter the house to arrest the burglar.

   The State counters that the police satisfied the requirements of the Fourth Amendment. The State argues that the police were investigating a crime in progress; they entered Petitioner's house for the sole purpose of detecting other suspects involved in the burglary or victims and, once lawfully inside, they saw in "plain view" evidence indicating that Petitioner was involved in an illegal gambling operation. They secured the premises until Petitioner arrived home and obtained his voluntary consent to search the home. They seized the items that they had previously seen and, pursuant to Petitioner's consent, further evidence of gambling.

   Our review of the propriety of the trial court's denial of a motion to suppress evidence is limited to the record developed at the motions hearing. See Tu v. State, 336 Md. 406, 412, 648 A.2d 993, 996 (1994). In determining whether the police officers' conduct was reasonable, we consider only those relevant facts produced [*394] at the suppression hearing that are most favorable to the State as the prevailing party on the motion. See Riddick v. State, 319 Md. 180, 183, 571 A.2d 1239, 1240-41 (1990).[**9] Although we make our own independent appraisal of whether a constitutional right has been violated, we will not disturb the trial court's factual findings unless those findings are clearly erroneous. See Ornelas v. United States, 517 U.S. 690, 697-99, 116 S. Ct. 1657, 1662-63, 134 L. Ed. 2d 911 (1996); Riddick, 319 Md. at 183, 571 A.2d at 1240.

    III.

   The Fourth Amendment prohibits only those searches and seizures that are unreasonable. See Florida v. Jimeno, 500 U.S. 248, 250, 111 S. Ct. 1801, 1803, 114 L. Ed. 2d 297 (1991); Carroll v. State, 335 Md. 723, 729, 646 A.2d 376, 379 (1994); McMillian v. State, 325 Md. 272, 281, 600 A.2d 430, 434 (1992). The Supreme Court has recognized that a warrantless search and seizure does not violate the Fourth Amendment when law enforcement officers are faced with exigent circumstances such that there is a "compelling need for official action and no time to secure a warrant." Michigan v. Tyler, 436 U.S. 499, 509, 98 S. Ct. 1942, 1949, 56 L. Ed. 2d 486 (1978) (burning building). See Mincey v. Arizona, 437 U.S. 385, 392, 98 S. Ct. 2408, 2413, 57 L. Ed. 2d 290 (1978) [**10](emergency aid); United States v. Santana, 427 U.S. 38, 42-43, 96 S. Ct. 2406, 2409-10, 49 L. Ed. 2d 300 (1976) (hot pursuit); Warden v. Hayden, 387 U.S. 294, 298, 87 S. Ct. 1642, 1645-46, 18 L. Ed. 2d 782 (1967) (hot pursuit and danger to human life); Schmerber v. California, 384 U.S. 757, 770-71, 86 S. Ct. 1826, 1835-36, 16 L. Ed. 2d 908 (1966) (imminent destruction of evanescent evidence); Ker v. California, 374 U.S. 23, 37-41, 83 S. Ct. 1623, 1632-34, 10 L. Ed. 2d 726 (1963) (destruction of evidence).

   Exigent circumstances are "those in which a substantial risk of harm to the persons involved or to the law enforcement process would arise if the police were to delay a search until a warrant could be obtained." United States v. Robertson, 606 F.2d 853, 859 (9th Cir. 1979). We have noted that "the meaning of exigency implies urgency, immediacy, and compelling need." Stackhouse v. State, 298 Md. 203, 212, 468 A.2d 333, 338 (1983). The burden is on the State to establish exigent circumstances that overcome the presumptive unreasonableness that attaches to all warrantless entries of[**11] the home. See Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S. Ct. 2091, 2098, 80 L. Ed. 2d 732 (1984); McMillian, 325 Md. at 281, 600 A.2d at 434.

   A burglary in progress is an exigent circumstance that justifies a warrantless entry of a residence. n3 See Carroll, 335 Md. at 734, 646 A.2d at 382; S. Estrella, Annot., Warrantless Search - Burglary, 64 A.L.R. 5th 637 (1998). In this case, the officers entered Petitioner's residence to investigate a burglary in progress. Therefore, the entry was lawful based on exigent circumstances.

n3 Because we affirm the Circuit Court's denial of the motion to suppress on the grounds that exigent circumstances existed, we do not consider the State's alternate argument that the officers' initial entry into the house was lawful pursuant to the police community caretaking function.

   In Carroll, we held that "when law enforcement officers have probable cause to believe that a burglary is either in progress or[**12] recently has been committed, the exigencies of the situation permit the officers to enter the premises without a warrant to search for intruders and to protect [*395] an occupant's property." Carroll, 335 Md. at 734, 646 A.2d at 382. We pointed out that "the responsibility of the police to investigate burglaries must be balanced against the serious invasions of privacy such entries and searches entail." Id. The justification for the warrantless entry is to look for suspects, to preserve an individual's property, or to ensure the safety of the residents; it is not to enter under a pretext to search for contraband or to investigate illegal activity. See id.

   A warrantless search must be "strictly circumscribed by the exigencies which justify its initiation." Terry v. Ohio, 392 U.S. 1, 26, 88 S. Ct. 1868, 1882, 20 L. Ed. 2d 889 (1968). See Carroll, 335 Md. at 735, 646 A.2d at 382. The scope of the search must be strictly tied to and justified by the circumstances that rendered its initiation permissible. See Chimel v. California, 395 U.S. 752, 762, 89 S. Ct. 2034, 2039-40, 23 L. Ed. 2d 685 (1969) (quoting Terry, 392 U.S. at 19, 88 S. Ct. at 1879, 20 L. Ed. 2d 889);[**13] Ricks v. State, 322 Md. 183, 188, 586 A.2d 740, 743 (1991). We pointed out in Carroll that "the scope of the limited warrantless intrusion we condone today must not exceed that justified by the exigencies presented." Carroll, 335 Md. at 735, 646 A.2d at 382. "Thus, when acting on the reasonable belief that a burglary is in progress or has recently been committed, law enforcement officers may not deviate from the original purposes of their search." Id.

   In determining the reasonableness of the officers' conduct, we consider the facts as they appeared to the officers at the time of their entry. See id. at 735, 646 A.2d at 382. The officers were responding to a burglary-in-progress call. Their concerns as to other possible suspects or the safety of the residents were not eliminated when the suspect responded to their call and answered the front door. It was reasonable for the officers to enter the house for the safety of the residents and to investigate whether there were additional suspects or victims in the house.

   Petitioner claims that, even if the officers' initial entry and sweep was justified, once they had completed their[**14] sweep of the basement, any justification for their entry had ended. He argues that the entry of the vice squad and that of Officers Praley, Little, and Middleton into the basement was a second search because they were not called downstairs to look for suspects, and there was no longer any need for a protective sweep. He further argues that Bishop, Benner, and Praley were unaware of the significance of the items that they saw, and "hence, no probable cause arose out of their viewing." Petitioner concludes that it was only through the continued searching by officers with expertise in vice that the items were deemed evidence of gambling. As such, the incriminating nature of the evidence was not "immediately apparent" to the officers participating in the initial sweep and should have been suppressed.

   The State argues that the officers merely entered the home to arrest the intruder and to search for other suspects and victims, and they came upon evidence in "plain view," causing them to secure the premises. Rather than obtain a warrant, although they could have done so, they obtained consent to search from the property owners.

   The Supreme Court recognized in Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S. Ct. 2022, 2037, 29 L. Ed. 2d 564 (1971),[**15] that, in certain circumstances, a warrantless seizure of items come upon by the police in "plain view" during a lawful search of a home may be reasonable under the Fourth Amendment. See Horton v. California, 496 U.S. 128, 133-37, 110 S. Ct. 2301, 2306-07, 110 L. Ed. 2d 112 (1990); [*396] Arizona v. Hicks, 480 U.S. 321, 323, 107 S. Ct. 1149, 1151, 94 L. Ed. 2d 347 (1987). The Court has made clear that "the plain-view doctrine is grounded on the proposition that once police are lawfully in a position to observe an item first-hand, its owner's privacy interest in that item is lost; the owner may retain the incidents of title and possession but not privacy." Illinois v. Andreas, 463 U.S. 765, 771, 103 S. Ct. 3319, 3324, 77 L. Ed. 2d 1003 (1983).

   In Payton v. New York, 445 U.S. 573, 587, 100 S. Ct. 1371, 1380, 63 L. Ed. 2d 639 (1980), the Supreme Court noted that "the seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity." Police officers may seize incriminating evidence in "plain view" during the [**16]course of a lawful search because such a seizure "does not involve an intrusion on privacy. If the interest in privacy has been invaded, the violation must have occurred before the object came into plain view." Horton, 496 U.S. at 141, 110 S. Ct. at 2310, 110 L. Ed. 2d 112 (footnote omitted). The justification for the doctrine is "the desirability of sparing police, whose viewing of the object in the course of a lawful search is as legitimate as it would have been in a public place, the inconvenience and the risk---to themselves or to preservation of the evidence---of going to obtain a warrant." Hicks, 480 U.S. at 327, 107 S. Ct. at 1153, 94 L. Ed. 2d 347. Also, the doctrine "reflects the fact that requiring police to obtain a warrant once they have obtained a first-hand perception of contraband, stolen property, or incriminating evidence generally would be a 'needless inconvenience' that might involve danger to the police and public." Texas v. Brown, 460 U.S. 730, 739, 103 S. Ct. 1535, 1541, 75 L. Ed. 2d 502 (1983) (internal citation omitted).

   To invoke the "plain view" doctrine of the Fourth Amendment, the police must satisfy[**17] the following requirements: (1) the police officer's initial intrusion must be lawful or the officer must otherwise properly be in a position from which he or she can view a particular area; (2) the incriminating character of the evidence must be "immediately apparent;" and (3) the officer must have a lawful right of access to the object itself. See Horton, 496 U.S. at 136-37, 110 S. Ct. at 2308, 110 L. Ed. 2d 112. n4 

n4 To the extent that our cases have interpreted the "plain view" doctrine under the Fourth Amendment to require that the officer must discover incriminating evidence inadvertently, see, e.g., Williams v. State, 342 Md. 724, 757, 679 A.2d 1106, 1123 (1996); Riddick v. State, 319 Md. 180, 193, 571 A.2d 1239, 1245 (1990); Hippler v. State, 83 Md. App. 325, 330, 574 A.2d 348, 351 (1990), they are disapproved. See Sanford v. State, 87 Md. App. 23, 28-31, 589 A.2d 74, 76-78 (1991) (holding that inadvertence not a requirement of "plain view" doctrine).

   In Horton v. California, 496 U.S. 128, 136-37, 110 S. Ct. 2301, 2308-11, 110 L. Ed. 2d 112 (1990), the Supreme Court eliminated the inadvertence requirement first set out in Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). In Horton, the Court stated:

   The suggestion that the inadvertence requirement is necessary to prevent the police from conducting general searches, or from converting specific warrants into general warrants, is not persuasive because that interest is already served by the requirement[] . . . that a warrantless search be circumscribed by the exigencies which justify its initiation. Scrupulous adherence to these requirements serves the interests in limiting the area and duration of the search that the inadvertence requirement inadequately protects. Once those commands have been satisfied and the officer has a lawful right of access, however, no additional Fourth Amendment interest is furthered by requiring that the discovery of evidence be inadvertent.
 
Horton, 496 U.S. at 139-40, 110 S. Ct. at 2309, 110 L. Ed. 2d 112 (internal citations omitted).

[**18]  [*397]

   The requirement that an object's incriminating nature be "immediately apparent" ensures that the "plain view" doctrine is not used to engage in "a general exploratory search from one object to another until something incriminating at last emerges." Coolidge, 403 U.S. at 466, 91 S. Ct. at 2038, 29 L. Ed. 2d 564. "Immediately apparent," however, does not mean that the officer must be nearly certain as to the criminal nature of the item. See Brown, 460 U.S. at 741-42, 103 S. Ct. at 1543, 75 L. Ed. 2d 502. Instead, "immediately apparent" means that an officer must have probable cause to associate the object with criminal activity. See Hicks, 480 U.S. at 326, 107 S. Ct. at 1153, 94 L. Ed. 2d 347; Riddick, 319 Md. at 193-95, 571 A.2d 1245-46; State v. Wilson, 279 Md. 189, 195, 367 A.2d 1223 (1977).

   Probable cause is a "non-technical conception of a reasonable ground for belief of guilt, requiring less evidence for such belief than would justify conviction but more evidence than that which would arouse a mere suspicion." Doering v. State, 313 Md. 384, 403, 545 A.2d 1281, 1290 (1988). The[**19] Supreme Court defined probable cause in Brown, 460 U.S. at 742, 103 S. Ct. at 1543, 75 L. Ed. 2d 502, as follows:

   Probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would "warrant a man of reasonable caution in the belief," Carroll v. United States, 267 U.S. 132, 162, 69 L. Ed. 543, 45 S. Ct. 280 (1925), that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A "practical, nontechnical" probability that incriminating evidence is involved is all that is required. Brinegar v. United States, 338 U.S. 160, 176, 93 L. Ed. 1879, 69 S. Ct. 1302 (1949).
 
As the name implies, we deal with probabilities. Probable cause is to be determined based upon evaluation of "facts, viewed from the standpoint of an objectively reasonable police officer," Ornelas, 517 U.S. at 696, 116 S. Ct. at 1661-62, 134 L. Ed. 2d 911, and "not on the officer's actual state of mind at the time the challenged action was taken." Maryland v. Macon, 472 U.S. 463, 470-71, 105 S. Ct. 2778, 2783, 86 L. Ed. 2d 370 (1985).[**20] Therefore, the probable cause test is an objective one.

   Applying these principles, we conclude that the three requirements to invoke the "plain view" doctrine were satisfied. n5 The police were lawfully present in Petitioner's home based on exigent circumstances and were entitled to make a cursory search for accomplices or victims. The items that they seized were immediately apparent to the officers as evidence of a gambling operation. In other words, the [*398] police had probable cause to believe that the items they had seen were evidence of crime. Finally, the police had a lawful right of access to the items that they seized, i.e., they discovered the objects while acting within the bounds of the search justified by the exigent circumstances.

n5 The dissent relies on the rationale expressed by the Supreme Court of Arizona in State v. DeWitt, 184 Ariz. 464, 910 P.2d 9 (Ariz. 1996), to support its conclusion that the search in this case was illegal. "DeWitt is a case of successive entries by officers who at first had not found obviously illegal materials in plain view and called in help to confirm mere suspicions." Mazen v. Seidel, 189 Ariz. 195, 940 P.2d 923, 928 (Ariz. 1997) (distinguishing DeWitt).

   The dissent omits several important distinguishing facts present in DeWitt. First, the DeWitt court noted that it was "conceded that [the two officers'] observations did not provide probable cause to seek a warrant. . . ." Id. Second, the items seized in DeWitt were not in plain view, "as the DEB officer had to stand on a stool to see far enough into the closet to determine the materials were evidence of drug processing." Id. By contrast, in the instant case, when the officers saw the items in the basement and on the coffee table, it was immediately apparent to them that they were viewing evidence of a crime, and, accordingly, they had probable cause.

[**21]

   We turn first to the document on the coffee table in the living room. Officer Praley saw the document in "plain view." He had been a police officer with the Anne Arundel Police Department for thirteen years and had served as a narcotics officer for a year and a half. He has had training in gambling investigations, had executed search warrants with the vice and narcotics units, and has had specific training in "what to look for, what documents should be captured, what documents should be pointed out to the vice detectives." He testified that he had "also taken action with locating targets in bars that pass out pick sheets, items such as that." Within two or three minutes after he had advised Myers, the burglary suspect, of his Miranda rights, Officer Praley observed on the coffee table the document with names, figures and numbers on it and appearing to him to be a tally sheet. n6 It is unreasonable to require Praley to leave the house immediately after arresting the suspect. Indeed, on cross- examination, Praley testified that he waited to hear from the other officers, after they completed their search, that there were no additional suspects or victims. While not participating[**22] directly in the search for additional intruders, suspects, or in order to protect the occupant's property, he had lawful access to the document on the table.

 n6 At the close of the suppression hearing, Petitioner's counsel appears to concede that the tally sheet discovered by Officer Praley was admissible. In his argument, he stated to the Circuit Court: "I do truly feel strongly that the entire search of the basement is unconstitutional. And it leads to maybe an interesting situation in this case in that I have intentionally not really discussed much what was on that table upstairs. Well, there was that one tally sheet . . . . So perhaps at the end of the day, that one item is admissible."

   Petitioner argues that a brief visual sweep of the house does not include reading documents and thus, Officer Praley did not have probable cause to seize the document. Petitioner is wrong. Hicks makes clear that "merely looking at what is already exposed to view, without disturbing it---is not a 'search' for Fourth Amendment[**23] purposes, and therefore does not even require reasonable suspicion." Hicks, 480 U.S. at 328, 107 S. Ct. at 1154, 94 L. Ed. 2d 347 The unlawful activity in Hicks was not the reading and recording of the serial numbers on the stereo equipment, but rather the moving of the stereo equipment without probable cause to believe that it was stolen. Here, Officer Praley merely read that which was in plain sight. Officer Praley's training and experience made it immediately apparent to him that he was viewing evidence of crime.

   We next consider the objects in the basement. We conclude that these items were in "plain view." Officer Bishop had been a police officer with the Anne Arundel County Police Department for approximately twenty years and, during that time, he had specialized training in gambling operations. He served in the patrol division, narcotics division and special operations. While in special operations, he participated in the execution of gambling search warrants and received briefings on items like tally sheets and sports paraphernalia. He entered the residence under exigent circumstances and, in the course of looking for suspects or victims, he discovered[**24] items that, based on his experience and training, were "immediately apparent" as evidence of criminal activity. [*399] He, thus, had a lawful right of access to the evidence.

   Petitioner's final argument is that the subsequent warrantless entry of Detective Middleton and the vice squad was an illegal entry not justified by exigent circumstances, since the emergency had abated and the premises had been secured. We interpret his argument to be that the vice squad officers needed a warrant to enter Petitioner's house and take charge of the seizure.

   We conclude that, when law enforcement officers enter a residence in response to exigent circumstances and, during the course of responding to the exigency, come upon evidence in "plain view," but do not immediately take it into custody, a subsequent entry shortly thereafter by officers who arrive to assist in the evidence processing and seizure constitutes a mere continuation of the initial entry and does not require a warrant. n7

n7 Whether a subsequent warrantless entry is a continuation of the lawful initial entry can only be determined based on the facts and circumstances of the individual case. We emphasize, however, that the later officials must confine their intrusion to the scope of the original invasion unless a warrant or one of the exceptions to the warrant requirement justifies a more wide ranging search. See, e.g., United States v. Brand, 556 F.2d 1312, 1317 fn. 9 (5th Cir. 1977) (quoted in Lebedun v. State, 283 Md. 257, 273-74, 390 A.2d 64, 71-72 (1978)). In the instant case, Petitioner consented to the more thorough search.

[**25]

   In Lebedun v. State, 283 Md. 257, 390 A.2d 64 (1978), Judge Smith, writing for the Court, reviewed a variety of circumstances supporting a warrantless entry under the emergency or exigency doctrine. The primary issue before the Court was whether items seized by police from Lebedun's motel room, linking Lebedun to robberies of several pharmacies, was admissible in evidence. The police had entered Lebedun's motel room, without a warrant, pursuant to a call from the fire department rescue squad, which was responding to a "possible drug overdose" call from the motel.

   In holding that the entry and search were lawful, we quoted liberally from United States v. Green, 474 F.2d 1385 (5th Cir. 1973). In Green, while investigating the cause of a fire, the fire marshal discovered copper plates used for counterfeiting. He called a Secret Service agent, who came to the scene immediately and took custody of the evidence without a warrant. In upholding the seizure, the court stated:

   Once the privacy of a dwelling has been lawfully invaded, to require a second officer from another law enforcement agency arriving on the scene of a valid seizure to secure a warrant[**26] before he enters the premises to confirm that the seized evidence is contraband and to take custody of it is just as senseless as requiring an officer to interrupt a lawful search to stop and procure a warrant for evidence he has already inadvertently found and seized.
 
Id. at 1390.

   Almost every court that has considered this issue has held that a warrant is not necessary because the accused no longer enjoyed a reasonable expectation of privacy in the area where one officer is lawfully present. See United States v. Brand, 556 F.2d 1312, 1317 (5th Cir. 1977); Steigler v. Anderson, 496 F.2d 793, 797-98 (3rd Cir. 1974); United States v. Green, 474 F.2d 1385, 1390 (5th Cir. 1973); United States v. Herndon, 390 F. Supp. 1017, 1021-22 (S. D. Fla. 1975); Mazen v. Seidel, 189 Ariz. 195, 940 P.2d 923, 927-28 (Ariz. 1997); Wofford v. State, 330 Ark. 8, 952 S.W.2d 646, 653-54 (Ark. 1997); People v. Glance, 209 Cal. App. 3d 836, 845-46, 257 Cal. Rptr. 522 [*400] (1989); People v. Reynolds, 672 P.2d 529, 533 (Colo. 1983); State v. Eady, 249 Conn. 431, 733 A.2d 112, 120 (Conn. 1999);[**27] State v. Magnano, 204 Conn. 259, 528 A.2d 760, 764-66 (Conn. 1987); Hazelwood v. Kentucky, 8 S.W.3d 886, 887 (Ky. Ct. App. 1999); Taylor v. State, 733 So. 2d 251, 256 (Miss. 1999); Commonwealth v. Person, 385 Pa. Super. 197, 560 A.2d 761, 765-66 (Pa. Super Ct. 1989); Jones v. Commonwealth, 29 Va. App. 363, 512 S.E.2d 165, 168 (Va. Ct. App. 1999); State v. Bell, 108 Wn.2d 193, 737 P.2d 254, 259 (Wash. 1987); La Fournier v. State, 91 Wis. 2d 61, 280 N.W.2d 746, 750 (Wis. 1979); see also T. Kruk, Annot., Warrantless Search - Fire Investigation, 31 A.L.R. 4th 194, 219 (1984). But see United States v. Hoffman, 607 F.2d 280, 284-85 (9th Cir. 1979).

   In State v. Bell, 108 Wn.2d 193, 737 P.2d 254 (Wash. 1987), the Supreme Court of Washington considered whether a deputy sheriff and a deputy prosecutor needed a warrant to enter defendant's home and seize marijuana discovered earlier by firefighters who had been summoned to the scene of a fire. The court held:

   Once the privacy of the residence has been lawfully invaded, [**28] it is senseless to require a warrant for others to enter and complete what those already on the scene would be justified in doing. We hold that where firefighters have lawfully discovered evidence of criminal activity under the plain view doctrine, it is not necessary for sheriff's officers to obtain a warrant before entering a residence to seize the evidence.

   There are, of course, limits on the actions of the police. When the police enter the residence, they are not allowed to exceed the scope of the firefighters' earlier intrusion. In essence, they step into the shoes of the firefighters. They cannot enter any area that the firefighters were not justified in entering, nor seize any evidence that the firefighters were not justified in seizing.
 
Bell, 737 P.2d at 259 (internal citations and footnote omitted).

   The Supreme Court of Connecticut, in State v. Magnano, 204 Conn. 259, 528 A.2d 760 (Conn. 1987), considered whether the Fourth Amendment required the police to obtain a search warrant before they could enter a home to process evidence otherwise admissible under the "plain view" doctrine. The court held as follows:

   When a law enforcement[**29] officer enters private premises in response to a call for help, and during the course of responding to the emergency observes but does not take into custody evidence in plain view, a subsequent entry shortly thereafter, by detectives whose duty it is to process evidence, constitutes a mere continuation of the original entry. Under such circumstances, it is permissible for the detectives to photograph and take measurements, without a search warrant, of evidence which was in the plain view of the initial responding officers. This conclusion is in conformity with decisions in other jurisdictions which have considered the issue, furthers the goal of effective law enforcement, and promotes the rationale and purposes of the plain view doctrine.
 
Magnano, 528 A.2d at 764. The court pointed out that the defendant could not be heard to complain that her privacy interests were invaded by the second entry because, "as the United States Supreme Court stated in Illinois v. Andreas, 463 U.S. 765, 772, 103 S. Ct. 3319, 3324, 77 L. Ed. 2d 1003 (1983), 'the plain view doctrine is grounded on the proposition that once police are lawfully in a position to observe[**30] an item first-hand, its owner's privacy interest in that item is lost; the owner may retain the incidents of title and possession but not privacy.'" Id. at 766.[*401]

   We align ourselves with the overwhelming majority view across the country. We hold that the evidence in the instant case, which had been observed in "plain view" by the Anne Arundel uniform police officers inside the home while acting under exigent circumstances, and which had been seized by the police, was properly seized without a warrant. n8 Officer Praley and Officer Bishop could have seized the evidence when they came upon it in "plain view." That they summoned other officers to view and to seize the evidence did not require a warrant. 

n8 The record in the instant case does not reveal which officer actually took custody of the evidence or when the seizure took place.

   We turn now to the issue of consent. Petitioner's sole argument as to consent was that, because the initial search was illegal, his consent was tainted and did not[**31] cure the inadmissibility. Because we hold that the initial search was lawful, there was no fruit of any poisonous tree. All of the items were lawfully seized. Accordingly, we affirm the judgment of the Circuit Court for Anne Arundel County.

   JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED; COSTS TO BE PAID BY PETITIONER.

DISSENTBY: Bell

DISSENT:  
Dissenting opinion by Bell, C.J.;

   The petitioner, Thomas Wengert, has been twice victimized: once by the burglar, who breached the security and privacy of his home and again by the police, who after apprehending the burglar, further breached its privacy. While he undoubtedly appreciates the efforts of the police in catching the burglar, he must deeply resent, and, to me, it is understandable, their creation of an opportunity to investigate, and subsequently charge, him, the victim.

   Rather than victimized, the majority maintains that the petitioner was appropriately, and in accordance with proper police procedures and constitutional precepts, charged and convicted of gambling and keeping a place for gambling in violation of Maryland Code (1957, 1996 Repl. Vol., 2000 Supp.), Article 27, § 240. Critical to its conclusion[**32] is the showing that the police acted properly both in the apprehension of the burglar and in the manner in which they conducted their investigation following his apprehension, including the use that they made of the petitioner's home.

   According to the State, knowledge of the evidence against the petitioner was acquired during a "protective sweep" of the petitioner's premises after the suspected burglar had been apprehended.  Maryland v. Buie, 494 U.S. 325, 327, 110 S. Ct. 1093, 1094, 108 L. Ed. 2d 276, 281 (1990) teaches that a protective sweep may be justified upon the arrest of a person in a house. As used in that case, "[a] 'protective sweep' is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding." Id. The Court pointed out, in its holding, that a protective sweep following a lawful in-house arrest is permitted when justified by a reasonable, articulable suspicion that the house is harboring a person posing a danger to those on the arrest scene. Id. at 336, 110 S. Ct. at 1099, 108 L. Ed. 2d at 288.[**33] In Buie, the arrest of the defendant occurred in the defendant's home, prompting the Court to observe: [*402]

   "The risk of danger in the context of an arrest in the home is as great as, if not greater than, it is in an on-the-street or roadside investigatory encounter. A Terry or Long frisk occurs before a police-citizen confrontation has escalated to the point of arrest. A protective sweep, in contrast, occurs as an adjunct to the serious step of taking a person into custody for the purpose of prosecuting him for a crime. Moreover, unlike an encounter on the street or along a highway, an in-home arrest puts the officer at the disadvantage of being on his adversary's 'turf.' An ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings."
 
Id. at 333, 110 S. Ct. at 1098, 108 L. Ed. 2d at 285.

   But that does not describe what occurred in this case. Here, the arrest did take place in a home, but not the home of the person who initially was arrested; rather, it occurred in the home of the petitioner, the burglar's victim. So, it was not because the officers were at the disadvantage of being on the[**34] burglar's turf that the "protective sweep" was made. Indeed, the police do not even purport to rely solely on the "protective sweep" authorized by Buie. Officer Benner, the first officer on the scene and one of the officers conducting the sweep, stated initially that he made the sweep to secure the premises and ensure that there were neither additional suspects nor victims in the house:

   "We looked throughout the residence for anybody else. We asked him [the burglar] if he had anybody with him. He said no. However, we still looked for other suspects. We were looking for a possible resident or a victim that might have been victimized inside the residence."
 
That is not, however, the only rationale the police offered. Officer Benner later testified that, in addition to checking the area for victims or other suspects, he checked for "anything out of the ordinary. TVs, VCRs, things that might have been tampered with as if to attempt to steal them." Still later, he stated:

   "After, like I said, after we looked for suspects and/or victims, we go back and look for - I go back and look for anything tampered with as the intent of the bad guy being in there, what was his intent. Usually[**35] you find things tampered with, his intent was most probably to steal with."
 
And on redirect examination by the State, he made perfectly clear that the purpose of the sweep in this case was not simply for the safety of the officers or the well being of victims. After repeating how he conducted a sweep and cleared a room, Officer Benner stated that "someone else will generally come behind you and conduct their sweep to insure that you didn't miss anything." When asked what he meant by "miss anything," he explained: "Miss any suspects, victims, damaged property, what have you. Whatever the case is that you're looking for."
 
   Sergeant Bishop and Officer Praley confirmed Officer Benner's testimony of there being a broader purpose for the sweep than simply to look for other suspects or victims. According to Sergeant Bishop, it included looking for "some evidence of a burglary also." Officer Praley said that the purpose of the officers going into the basement was "to check for other suspects, to check for evidence of the crime, to check for other - if there was a victim in the house." Sergeant Bishop provided additional insight into the "sweep," yet another reason for making and continuing[**36] it: [*403]

   "We looked around to see if there was anyone else. Then shortly after we looked around some more because the subject we had was claiming that his grandmother lived there. We were trying to find something with a name or something to indicate who actually lived there and see if there was any validity to the story he was trying to tell us."

   The first rationale offered by Officer Benner, and confirmed by Sergeant Bishop, is more akin to that underlying Carroll v. State, 335 Md. 723, 734, 646 A.2d 376, 382 (1994), where this Court upheld a warrantless entry into an allegedly burglarized home based upon the exigent circumstances exception. In that case, we held:

   "that when law enforcement officers have probable cause to believe that a burglary is either in progress or recently has been committed, the exigencies of the situation permit the officers to enter the premises without a warrant to search for intruders and to protect an occupant's property. Just as a burning building creates an exigency that justifies a warrantless entry by fire officials to fight the blaze, a recent or ongoing burglary may create an exigency that justifies a warrantless entry by law enforcement[**37] officers to search for intruders and to protect property."[ n1 ] 

n1 In dissent in Carroll v. State, 335 Md. 723, 744-45, n.1, 646 A.2d 376, 387, n.1 (1994), I noted, as to the matter of protecting the property of another:

   "A rather clear case of entry to protect the property of another, and perhaps of the occupant of the premises entered, is United States v. Boyd, 407 F. Supp. 693 (S.D.N.Y.1976). In that case, water was leaking into a third floor apartment. When the landlord discovered that the leak did not originate in the fourth floor apartment, which was vacant, and that the water was running in the apartment above it, it was appropriate, the court held, to enter that apartment, whose occupant did not respond to the knock, to avoid a dangerous condition, i.e., collapse of ceilings and walls.

   "If the police enter premises to abort a burglary, it is at least arguable that they are doing so to protect the owner's property--avoiding its theft is a means of protecting property. It is rather difficult to understand how property is being protected by an entry after the burglary has been completed. In that circumstance, the property owner's remaining property is protected by securing the premises. See People v. Parra, 30 Cal. App. 3d 729, 106 Cal. Rptr. 531 (1973) in which the court paraphrased § 197 of the Restatement (Second) of Torts (1966) to the effect that 'one is privileged to enter and remain on land in the possession of another if it reasonably appears to be necessary to prevent serious harm to the land or chattels of the other party, unless the actor has reason to know that one for whose benefit he enters is unwilling that he shall take such action.' Id. 106 Cal. Rptr. at 533."

[**38]
 
Id. Whichever justification applies, because neither sanctions the additional purposes for which the police undertook the sweep in this case, the search in this case fails miserably.

   According to one officer, Officer Praley, the house was secured within ten minutes of the police entry. That is consistent with the testimony of both Officer Benner and Sergeant Bishop. The former said that he went to the basement to sweep it within one minute of entering the house, after having looked in the rear bedroom, which was the direction from which the suspected burglar had come to open the door, and then looking in the living room and kitchen. He also said it took no more than "15, 20 seconds" to determine that there were no other suspects or victims in the basement. Sergeant Bishop offered that the sweep of the basement took no more than a minute and that it was not until 10 to 15 minutes after entering the house that the vice squad detectives were called. With regard to why the vice detectives were called, Officer Praley, n2 in response to [*404] a question, the premise of which was that "the items [observed in the basement, i.e., cash, fax machine, the PIX sheet, the sports pager, [**39] and the "tally sheet" he observed in the living room] were not so obvious to [him] as to what they might be, that [he] needed another opinion," confirmed:

n2 Officer Praley was asked to come to the basement to see what Officer Benner and Sergeant Bishop had discovered.

   "I brought them to the scene for, yes, another opinion; two, for expertise; three, for that's their job. That's what they do. They specialize in that. That's why I brought them there."

   To be sure, having completed the sweep and while looking for any tampering with the TVs and the like, Officer Benner, as did the others who came to the basement area, saw a large screen television, on which was sitting a "pile of money" and, next to it, some "pick slips," a fax machine, with a sheet containing names and figures and a sports pager. As to the large screen TV, Officer Benner admitted that it was against the wall so that a suspect could not hide behind it. He also conceded that "a search of that area, at least around the television, . . . could[**40] be done rather quickly if you are looking for suspects."

   It is likewise true that Officer Praley observed, in the living room of the petitioner's house on a coffee table, a document that he characterized as a "tally sheet." n3 That did not occur until after Officer Praley had handcuffed the suspect and two to three minutes after he had given the suspect Miranda n4 warnings. Even then, the officer indicated that he did not immediately see the tally sheet; it was not until he stood up and looked at the paperwork right on the top of the coffee table. Curiously, the officer stated that he did not recall if he had to touch or pick up the paper to look at it.

n3 Although the burglary suspect was arrested and handcuffed immediately upon opening the front door of the petitioner's house, rather than taking him away to the station house, Officer Praley kept him in the living room, placing him on the couch directly in front of the coffee table. Consequently, Officer Praley was in a position to view a paper that lay on the coffee table.

n4 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 

[**41]

   The plain view doctrine is an exception to the warrant requirement.  Texas v. Brown, 460 U.S. 730, 736, 103 S. Ct. 1535, 1540, 75 L. Ed. 2d 502, 510 (1983); Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S. Ct. 2022, 2037, 29 L. Ed. 2d 564, 582 (1971); Riddick v. State, 319 Md. 180, 192, 571 A.2d 1239, 1245 (1990). "The plain view doctrine 'serves to supplement a previously justified intrusion, . . . and permits a warrantless seizure.'" Livingston v. State, 317 Md. 408, 412, 564 A.2d 414, 416, (1989) (quoting State v. Wilson, 279 Md. 189, 194, 367 A.2d 1223, 1227 (1977)). It is applicable, and the seizure of evidence is permitted, when there is prior justification for police intrusion; the evidence is spotted in plain view[ n5 ]; and the police immediately [*405] perceive that what is discovered is evidence.  Williams v. State, 342 Md. 724, 757, 679 A.2d 1106, 1123 (1996); Livingston at 412, 564 A.2d at 417. See Arizona v. Hicks , 480 U.S. 321, 326, 107 S. Ct. 1149, 1153, 94 L. Ed. 2d 347, 355 (1987); Wiggins v. State, 315 Md. 232, 250-52, 554 A.2d 356, 364-65 (1989);[**42] Liichow v. State, 288 Md. 502, 513, 419 A.2d 1041, 1047 (1980). To immediately perceive that what has been discovered is evidence means that, prior to seizure, Hicks, 480 U.S. at 326, 107 S. Ct. at 1153, 94 L. Ed. 2d at 355; Wiggins, 315 Md. at 251, 554 A.2d at 365, or further search to confirm suspicion, Michigan v. Tyler, 436 U.S. 499, 512, 98 S. Ct. 1942, 1951, 56 L. Ed. 2d 486, 500 (1978); see Carroll, 335 Md. at 740, 646 A.2d at 385, the police must have probable cause to believed that the item seized is evidence of a crime.

n5 As initially formulated, the Supreme Court of the United States required that the object be inadvertently discovered.  Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S. Ct. 2022, 2037, 29 L. Ed. 2d 564, 582 (1971). In Texas v. Brown, 460 U.S. 730, 737, 103 S. Ct. 1535, 1540, 75 L. Ed. 2d 502, 510 (1983), the Court clarified the inadvertent element:

   "The officer must discover incriminating evidence 'inadvertently,' which is to say, he may not 'know in advance the location of [certain] evidence [or contraband] and intend to seize it,' relying on the plain view doctrine only as a pretext."
 
(Internal citations omitted.) Horton v. California, 496 U.S. 128, 139-40, 110 S. Ct. 2301, 2309-10, 110 L. Ed. 2d 112, 124-25 (1990), made clear that inadvertence was not and never had been a requirement of the plain view doctrine.

[**43]

   Assuming that, pursuant to Carroll, the police were legitimately on the premises for the purpose of conducting a sweep to determine the presence of other suspects or to see if there were victims, I am far from convinced that what the officers observed in that sweep provided probable cause that the petitioner was violating the law. Only after the sweep had been completed and the officers had begun to investigate whether any property had been tampered with or to look for identification material as to the owner of the premises to verify the statements made by the burglar did the police place themselves in the position to observe incriminating evidence. Thus, this case is totally different from Carroll, in which the officers while conducting the exigent circumstances' sweep discovered contraband, which they immediately recognized as contraband.

   Certainly having a large screen television and a fax machine, even with a "pile of money" on the television set in one's own home is not, like contraband, a sure fire give-away that the occupant of the house is engaged in any illegal activity. Leaving money around, on the top of a large screen television, in a room with a fax machine,[**44] may be somewhat unusual, and maybe even a little eccentric, but it is not yet, at least not until this case, in and of itself, clear evidence of a violation of the law. Nor is the combination of large screen television, fax machine and money in a private home, in open view, such a suspicious circumstance as to make it readily apparent that the owner of the house is engaged in gambling.

   In any event, in this case, it is evident that the officers did not immediately have probable cause that the petitioner was running a gambling ring. As pointed out, the sweep was over within two minutes, yet, it was another ten to fifteen minutes before the determination was made to call in the vice detectives. During that time, the officers milled about the petitioner's home, consulting with each other as to the significance of what they had discovered, about what it all meant. Officer Benner and Sergeant Bishop got Officer Praley's advice on what they saw. Lt. Little was shown the set-up and, as indicated, the vice detectives were consulted because of their expertise and to give "another opinion."

    State v. DeWitt, 184 Ariz. 464, 910 P.2d 9 (1996) is instructive. There an officer[**45] believing that he had interrupted a burglary in progress when he arrested a man and his girlfriend in a house for which they had no key and could not provide information with which to contact the owner, conducted a sweep of the house for additional suspects and any evidence of a burglary, during the course of which he came upon items, chemicals, glass vials and laboratory [*406]equipment, in storage space above an open closet, which he suspected were used in the manufacture of drugs. Not having the necessary expertise to make the determination, the officer called his supervisor. When he arrived ten minutes later, he observed the items, but was also unable to determine whether they were drug manufacturing equipment, whereupon the assistance of the Drug Enforcement Bureau ("DEB") was sought. Agents from the DEB arrived some 45 minutes later and subsequently obtained a search and seizure warrant, the execution of which resulted in the seizure of among other things drugs and chemicals used in the manufacture of drugs. The Supreme Court of Arizona reversed the judgment of the intermediate appellate court, which had affirmed the defendant's conviction. Although the court concluded that the initial [**46]entry into the premises was justified, as were the observation and limited inspection of the items eventually seized by his supervisor, it held that, at that point, "absent a continued exigency or other valid grounds, the justification for warrantless searching came to an end." Id. at 467, 910 P.2d at 12. Thus, the later observations of DEB agents at the officer and his supervisor's request constituted a second and separate search for which there was no justification when it occurred. Id. This rationale applies with equal force to the case sub judice. n6

n6 I do not agree with the court in DeWitt, that the observations of the supervisor were with justification. All justification for further searching ended, I believe, when the officer completed the sweep and did not have probable cause to seek a warrant based on his own observations. Nor do I agree with the court's analysis insofar as it permitted a search for evidence of the burglary; the officer already had it.

   The observation by[**47] Officer Praley of what he believed to be a "tally sheet" on the coffee table in the living room fares no better. I question whether the first prerequisite for plain view was met insofar as that observation is concerned. The petitioner was a victim of a burglary. The apprehension of the burglar in his home did not give the police the right to use his home as a branch office. Yet that is precisely what was done in this case. Rather than take the suspect to the station house for booking, he was handcuffed and seated on the victim's couch while questioned, mirandized and while the other officers swept the premises and later searched it for evidence. As the petitioner points out, "Officer Praley was not searching for accomplices or looking for victims while supervising the burglar." Had the suspect been transported to the station house or taken to the police vehicles for processing, Officer Praley, nor any other officer would have been ensconced in the living room, in a position to see the document on the coffee table. In short, there was no prior justification for the presence of Officer Praley in the petitioner's home, at that particular place, when the observation was made.

   The search, [**48] I conclude, was illegal. Consequently, I agree with the petitioner that the subsequent consent he gave was tainted.  McMillian v. State, 325 Md. 272, 284-87, 600 A.2d 430, 436-37 (1992); State v. Wilson, 279 Md. 189, 203, 367 A.2d 1223, 1232 (1977).

   Judge Eldridge joins in the views expressed herein. 

JEAN BERNARD GERMAIN v. STATE OF MARYLAND 
No. 82, September Term, 2000
 
COURT OF APPEALS OF MARYLAND
 
363 Md. 511; 769 A.2d 931; 2001 Md. LEXIS 128

 April  10, 2001, Filed

   PRIOR HISTORY: [***1] Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County). Case # K-1999-0050. Eugene M. Lerner JUDGE.

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THE COURT OF SPECIAL APPEALS WITH INSTRUCTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AND TO REMAND THE CASE TO THE CIRCUIT COURT FOR A NEW TRIAL; COSTS TO BE PAID BY ANNE ARUNDEL COUNTY. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Defendant sought review of the judgment of the Court of Special Appeals (Maryland) affirming his conviction. Defendant claimed that the trial court improperly precluded him from using a key prosecution witness's pre-sentence investigation (PSI) for any reason, because it was confidential.

OVERVIEW:  Defendant was convicted of stabbing his prison cell-mate. Defendant claimed that he acted in self-defense, because his cell-mate was HIV positive and was making sexual advances toward defendant. At trial, defendant called the victim to the stand and asked the victim about his two second degree sex offenses. The victim claimed he could not remember the details of the offenses. The trial court refused to allow defendant to use the PSI to refresh the victim's recollection, because it was confidential. The appellate court reversed. The requirement that a PSI remain confidential was in order to prevent public inspection. Because defendant intended to show it only to the subject for whom it was prepared, the confidentiality of the PSI was not at risk. The trial court's failure to allow defendant to utilize the PSI to refresh the victim's recollection was reversible error.

OUTCOME:  The judgment was reversed. It was improper to preclude defendant from using a key prosecution witness's pre-sentence investigation (PSI) to refresh that witness's recollection. Using a PSI to refresh a witness's memory when the witness has a right to see it was not prohibited by statute.

CORE TERMS:  recollection, refresh, confidential, memory, confidentiality, cell, disclosure, public inspection, remember, presentence, memorandum, refreshing, defense counsel, offender, presentence report, sentencing, convicted, sexual, fight, homosexual, inmate, door, refreshed, credibility, assault, grand jury testimony, stimulus, investigation report, second degree, sex offender

CORE CONCEPTS -  

Criminal Law & Procedure: Sentencing: Presentence Reports
A pre-sentence investigation is an investigation of the relevant background of a convicted offender, usually conducted by a probation officer attached to a court, designed to act as a sentencing guide for the sentencing judge. Generally, a pre-sentence investigation is a tool offered to the sentencing court to assist it in reaching its goal of individualizing the sentence to fit the offender and not merely the crime. The principal function of the presentence report is to assist the court in determining the appropriate sentence.

Criminal Law & Procedure: Sentencing: Presentence Reports
A pre-sentence report is the report prepared from the presentence investigation, which is designed to assist a judge in passing sentence on a convicted defendant. Presentence reports vary in scope and focus, but typically contain at least the following items: (1) complete description of the situation surrounding the criminal activity; (2) offender's educational background; (3) offender's employment background; (4) offender's social history; (5) residence history of the offender; (6) offender's medical history; (7) information about environment to which the offender will return; (8) information about any resources available to assist the offender; (9) probation officer's view of the offender's motivations and ambitions; (10) full description of the defendant's criminal record; and, (11) recommendation as to disposition.

Criminal Law & Procedure: Sentencing: Presentence Reports
See Md. Code Ann., Correct. Servs. § 6-112 (1999).

Criminal Law & Procedure: Sentencing: Presentence Reports
See Md. R. Crim. Causes 4-341.

Criminal Law & Procedure: Sentencing: Presentence Reports
As the wording of Md. Code Ann., Correct. Servs. § 6-112 (1999) clearly indicates, the confidentiality of a pre-sentence investigation (PSI) is not absolute. It is confidential in that it is not available for general public inspection, except on an order of a court. It does not specifically prohibit the use of a PSI in official court proceedings; it is primarily designed to limit public inspections.

Criminal Law & Procedure: Sentencing: Presentence Reports
The courts have been very reluctant to give third parties access to a presentence investigation report prepared for some other individual or individuals. One reason for this is the fear that disclosure of the reports will have a chilling effect on the willingness of various individuals to contribute information that will be incorporated into the report. A second reason is the need to protect the confidentiality of the information contained in the report. Accordingly, the courts have typically required some showing of special need before they will allow a third party to obtain a copy of a presentence report.

Criminal Law & Procedure: Sentencing: Presentence Reports
Md. Code Ann., Correct. Servs. § 6-112(a)(2) (1999) plainly states that a pre-sentence investigation (PSI) is confidential from public inspection except on court order. Although, the determination as to whether to permit access to a PSI should be made with utmost care, it is still well within the authority of a court to make.

Criminal Law & Procedure: Sentencing: Presentence Reports
Criminal Law & Procedure: Appeals: Standards of Review: Abuse of Discretion
A presentence report's presumption of confidentiality is not absolute. A third-party seeking access to a presentence report may overcome the report's confidentiality by demonstrating that disclosure will serve the ends of justice, or by establishing a compelling, particularized need for disclosure. Applying this standard requires a fact specific inquiry in which the need for confidentiality is balanced against the desirability of releasing a presentence report. The showing required of the party seeking disclosure will vary with the degree to which the need for confidentiality is present in a particular case. This determination is committed to the sound discretion of the trial court and will be reviewed for abuse of discretion.

Evidence: Witnesses: Refreshing Recollection
Generally, when appropriate in the first instance, there are no limitations on the nature of the relevant documents that may be used in the refreshing of a witness's recollection. Such documents are not being admitted into evidence.

Criminal Law & Procedure: Sentencing: Presentence Reports
In the context of the showing necessary to gain access to a pre-sentencing investigation, if the reasons for maintaining confidentiality do not apply at all in a given case, or apply only to an insignificant degree, the party seeking disclosure should not be required to demonstrate a large compelling need.

Evidence: Witnesses: Refreshing Recollection
Whether a witness's recollection may be refreshed by a writing or by other means depends on the particular facts and circumstances of the individual case.

Evidence: Witnesses: Refreshing Recollection
While it is true that in many circumstances, an examining attorney must first establish that a witness's memory is exhausted before refreshing the recollection of that witness, laying such a foundation is not an absolute prerequisite. Instead, the question of whether a witness's recollection may be refreshed by a writing or some other object depends upon the particular circumstances.

Evidence: Witnesses: Refreshing Recollection
In the context of present recollection revived, by marked contrast to past recollection recorded, testimonial competence is not demanded of a mere stimulus to present recollection, for the stimulus itself is never evidence. The cardinal rule is that a stimulus to present recollection is not evidence, but only aids in the giving of evidence.

Evidence: Witnesses: Refreshing Recollection
Generally, an attorney is given wide latitude with choosing the item to be used to refresh a witness's memory.

Evidence: Witnesses: Refreshing Recollection
The predominate view today seems to be that any memorandum or other object may be used as a stimulus to present memory, without restriction by rule as to authorship, guarantee of correctness, or time of making.

Evidence: Witnesses: Refreshing Recollection
The fact that a document used to refresh recollection might not otherwise be admissible, or even that it was obtained improperly, has been held to be no bar to its being used to refresh recollection. The fact that a document is not admissible does not prevent its use as a means of refreshing the recollection of a witness. The only question is whether a document is generally calculated to revive the witness's memory.

Evidence: Witnesses: Refreshing Recollection
In the context of determining whether to allow a document to refresh a witness's recollection, preliminarily a trial court must decide whether the memorandum does refresh the witness's recollection. It may decline to permit its use where the danger of undue suggestion outweighs the probable value of the evidence. In making this decision the trial court may consider the nature of the memorandum and the witness's testimony, including cross-examination, by which counsel may test the witness's credibility that his memory has been revived. The admissible evidence is the recollection of the witness, and not the extrinsic paper. The test is whether the witness puts before the court his independent recollection and knowledge.

Evidence: Witnesses: Refreshing Recollection
Documents, otherwise confidential, have been held to be permitted to refresh the recollection of a witness.

COUNSEL: ARGUED BY Claudia A. Cortese, Assistant Public Defender (Stephen E. Harris, Public Defender, on brief) of Baltimore, MD FOR PETITIONER.
 
ARGUED BY Zoe M. Gillen, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, on brief) of Baltimore, MD FOR RESPONDENT.

JUDGES: ARGUED BEFORE Bell, C. J.; Eldridge, Raker, Wilner, Cathell, Harrell, and Battaglia, JJ. Opinion by Cathell, J.

OPINIONBY: Cathell

OPINION: [**933] [*514]

   Opinion by Cathell, J.

   Petitioner, Jean Bernard Germain, was convicted by a jury in the Circuit Court of Anne Arundel County of attempted second degree murder, first degree assault, reckless endangerment, and carrying a weapon with intent to [*515] injure. Petitioner appealed to the Court of Special Appeals. In an unreported opinion filed June 12, 2001, the Court of Special Appeals affirmed his conviction. n1 Petitioner presents one question to this Court, for which we granted certiorari:

 n1 The Court of Special Appeals addressed two questions:
 
1. Was the evidence sufficient to support [Germain's] convictions, including specifically his conviction for attempted second degree murder?
 
2. Did the trial court err in preventing [Germain] from refreshing the victim's recollection with statements in his pre-sentence investigation report?
 
The Court of Special Appeals held that the first question was not properly preserved and answered "no" to the second question.

[***2]

   Did the Court of Special Appeals err in not reversing Petitioner's conviction on the ground that the trial court precluded Petitioner from using a key State witness's Pre-Sentence Investigation (PSI) for any reason including to refresh the witness's recollection, on the ground that PSIs are confidential and privileged?
 
We answer petitioner's question in the affirmative. We hold that the trial court should not have precluded petitioner from using a key State witness's PSI to refresh that witness's recollection. The confidentiality of a PSI is not absolute. The showing of a PSI to a witness who has a right a right to see it, in order to refresh that witness's recollection, is not prohibited by statute. Accordingly, we reverse the decision of the Court of Special Appeals and remand with instructions to reverse the judgment of the Circuit Court for Anne Arundel County and remand the case to that court for a new trial.

 
I. Facts

   Petitioner and Mr. John Campbell (Campbell), two individuals incarcerated in the State of Maryland, shared cell 205 in D building, Bravo Wing of the Maryland House of Corrections Annex located in Jessup, Maryland. Sergeant Carlton L. Gibson, [***3] the officer in charge of the housing unit, testified that in early August 1998, n2 petitioner and two other individuals had [*516] just come off of temporary housing into the D Building. Petitioner was given a choice of three bed spaces in which to move. Petitioner requested that he not be moved into a cell with anyone who was a smoker. After initially refusing the placement in the cell with Campbell, petitioner changed his mind and accepted housing in that cell. His decision to accept the housing was made, at least in part, on the assurances by Sergeant Gibson that they would move him out of the cell after a short period of time.

n2 It must have actually been in late July of 1998 as the fight between the two inmates occurred on August 1, 1998.

 
   Petitioner testified that soon thereafter he made numerous requests to be moved from the cell he shared with Campbell because Campbell "smoked all the time," was HIV positive, and had sexually propositioned petitioner. However, Sergeant Gibson testified that "the only reason[***4] I had was -- the only reason that was brought to my attention was the smoking. Because [petitioner] said -- he stated that he had asthma and he couldn't move in with anybody that smoked cigarettes." Additionally, when asked whether petitioner ever complained about unwanted sexual advances by his cell mate, Sergeant Gibson [**934] responded that "sexual advances [were] never brought to my attention."

   At approximately 11:25 p.m. on August 1, 1998, after being cell-mates for approximately two weeks, a fight broke out between the two inmates. The issue at petitioner's trial for this assault was not whether the assault occurred but whether petitioner was acting in self-defense. During the trial, the defense counsel argued that petitioner was acting in self-defense by warding off an unwanted, forced homosexual assault upon him by Campbell, who petitioner believed to be a homosexual, a convicted sex offender, and a HIV positive individual, while the State contended that the assault was simply an unprovoked attack by petitioner. The two inmates' versions of the assault are drastically different.

   Campbell testified that at approximately 11:25 p.m., he walked to the door of the cell to smoke[***5] a cigarette. Before Campbell could light the cigarette, petitioner jumped out of bed and began hitting him in the back of the head. Initially, [*517] Campbell thought that petitioner was only punching him, but when he saw blood running down his face, he realized he was being stabbed. Campbell called out for a correctional officer. Officer Barbara Leonard responded to his call for help, called for a 10-10, n3 and waited for additional correctional officers to arrive. During this time, petitioner "continued stabbing [Campbell] in the neck, the shoulder, and down the right side of [Campbell's] back." Not until Officer Orice Custis arrived and sprayed pepper spray in the cell did petitioner stop attacking Campbell. Campbell testified and the medical report confirmed that he had "104 stab wounds."

n3 "10-10" is a numeric code used within the Maryland House of Corrections Annex meaning that there is a fight between inmates.

   Contrastingly, petitioner maintained that on the night in question, he was acting in self-defense. [***6] He testified that Campbell, whom he believed was a homosexual, a convicted sex offender, and HIV positive, "tried to approach [him] sexually." Petitioner testified that "[Campbell] approached me about a sexual thing, and I told him that I was not a homosexual. And after I refused, he approached me. He tried to attack me." Petitioner explained that while he was laying on his bed and Campbell was standing in the cell, Campbell began touching him and fondling him in a sexual manner. Petitioner testified that:

   Mr. Campbell told me that he was a known sex offender to me. And I knew that he had AIDS. He was approaching me sexually, so that was an assault on my life. He wanted to have sex with me. I refused. He approached me, touching me. When I jumped down to try to get him to stop, he attacked me. And we fought.
 
Petitioner then grabbed a knife, which he kept for protection, from its hiding place by the toilet and used it in his fight with Campbell.

   Petitioner was seen hitting and stabbing Campbell by two correctional officers who responded to Campbell's calls. Officer Barbara Leonard testified that at approximately 11:25 [*518] p.m. she heard someone calling "CO, CO." n4 Upon arriving[***7] at cell 205, she found that Campbell "was bent down at the door and [petitioner] . . . was just stabbing him repeatedly." She instructed petitioner to stop striking Campbell. When he ignored her, Officer Leonard "called the code" by reporting a "10-10 on delta bravo," indicating that there was a fight between inmates on the bravo wing [**935] of Building D. Officer Orice Custis responded to her call and upon arriving at cell 205, ordered petitioner to stop striking Campbell.

n4 "CO" is short for "correctional officer."

   On the evening that the fight broke out between the two inmates, Officer Custis was the Officer in Charge of a housing unit in Building D. He testified that when he arrived at cell 205 he saw Campbell "in the fetal position right by the door. There was another inmate [petitioner] on top of him stabbing him." Officer Custis instructed petitioner to stop striking Campbell. When petitioner ignored him, Officer Custis went to the control center, got a chemical agent, ran back to cell 205, n5 and ordered[***8] petitioner to stop striking Campbell. When petitioner continued to ignore Officer Custis's commands, Officer Custis "sprayed a short burst of chemical agent into the cell" through a small slot in the cell door at which time petitioner "dropped the weapon down and ran to the back of the cell." Officer Custis ordered petitioner to back up to the cell door to be handcuffed but he refused to cooperate. The two officers waited for more officers to arrive to the scene before they opened the door, handcuffed both petitioner and Campbell, and took them to Medical. Officer Leonard testified that the fight continued for approximately three minutes from the time she first responded to Campbell's cries for help. She also testified that she did not witness how the fight started. 

n5 The officers testified that cell 205 was located near the control room. The distance was described as "about six, eight feet" and "about five seconds away."

[*519]
 
 II. The Trial

   As we discussed, supra, defense counsel's theory of the case[***9] was that petitioner was acting in self defense by warding off an unwanted, forced sexual assault upon him by Campbell, who petitioner believed to be a homosexual, a convicted sex offender, and a HIV positive individual. On cross-examination, Campbell denied being a homosexual and stated that if he made any sexual advances toward petitioner while they were cell mates, that he did not remember making them. He further testified on cross-examination that, although he remembered pleading guilty to two second degree sex offenses and he was serving a forty- year sentence, he did not recall the specifics of the charges. It was clear that whether Campbell was a person who made sexual attacks against members of the same sex was proffered as material to the credibility of both Campbell and the defendant. On recross- examination, defense counsel again tried to elicit the specifics behind Campbell's convictions for two second degree and one third degree sexual offense:

   BY MR. GUNNING:[ n6 ]

n6 At trial, Mr. Gunning was petitioner's defense counsel and Mr. Paone represented the State.

[***10]

   Q. Mr. Campbell, the victim of your sexual offense was an 11-year-old boy; is that correct?

   MR. PAONE: Objection.

   MR. GUNNING: Your Honor, may we approach?

   THE COURT: No. I am going to overrule. He can answer the question. You opened the door. Go ahead.

   THE WITNESS: I don't remember.

   BY MR. GUNNING:

   Q. You don't recall.

   A. I don't remember nothing.

   Q. You don't recall pleading guilty to sodomizing an 11-year-old boy. [*520]

   A. I remember pleading guilty to second degree sex offense. That's all I remember.[**936]

   Q. And you don't recall the second second degree sex offense with the same 11-year-old boy as part of that plea.
 
   A. No. I remember pleading guilty to two second degree sex offenses. That was all I remember.

   Q. And you also pled guilty to a third degree sex offense which entailed fondling the penis of that little boy, correct?

   . . . .

   THE WITNESS: No.

   . . . .

   Q. And you just don't remember any of that.

   A. I don't remember none of it.
 
Shortly thereafter, the following discussion took place at a bench conference:

   MR. PAONE: Your Honor, defense counsel has just shown me a copy of what appears to be a PSI for the defendant.[ n7 ] I can only assume he is going to cross-examine[***11] him about the contents of that PSI. I am going to object before we get into it.

n7 It was a PSI in respect to the witness, Campbell, not the defendant, Germain.

   THE COURT: What - - -

   MR. GUNNING: Initially I am going to use it to refresh his recollection.

   MR. PAONE: A PSI is confidential.

   THE COURT: How - - -

   MR. GUNNING: That doesn't mean I can't use it to refresh his recollection.

   THE COURT: This report is for official Court use only. It is saying here it is confidential and protected. Where did you get this?

   MR. GUNNING: Through subpoena.

   MR. PAONE: His base file. [*521]

   THE COURT: I think it is confidential. It says this report     public inspection    

   MR. GUNNING: All that means is that I can't go into a courthouse and say give me the PSI for this defendant.

   THE COURT: Well, you did.

   MR. GUNNING: But now that I have gotten this PSI, I should be able to use the information in there to try to refresh his recollection.

   THE COURT: He has already     so I am going to sustain his objection. [***12]You have it on the record    

   MR. GUNNING: I could proffer to the Court that this document     he admitted to     sexual offenses to an 11-year-old boy, and one would be by sodomy and the other one would be by having oral sex with him. He also fondled him. This information will be mainly to refresh his recollection.

   THE COURT: Well     there is no need in going into the rest of it, for several reasons. One, it is confidential; two, it is already on     and the only purpose of the convictions are to show    

   MR. GUNNING: But, Your Honor, now we have the issue of credibility where he says he is not a homosexual. And if you . . . sodomize an 11-year-old boy    

   THE COURT: If you have a conviction, you can tell them the conviction.

   MR. PAONE: Your Honor, I am going to renew my objection to all references to the specific facts of any case. I can't get into them on my cross- examination, and neither can defense counsel.

   Your Honor, under these circumstances there are many reasons, psychological, psychiatric, any number of reasons, why the [witness] may not remember what exactly happened on these occasions. The clear implication[***13] to the jury has been that -- there has also be no indication that [petitioner] [**937]knows any of the facts of these cases and therefore knows to be fearful of them.

   It is grossly unfair. The State is not allowed to go into the facts of any convictions [petitioner] may have when he [*522] takes the stand. I think the law is very clear that when it comes to credibility we have the conviction and the conviction alone. And that goes for both sides, the State and the defense.[ n8 ]

n8 The State failed to distinguish between the restrictions that might exist, in respect to the facts surrounding a defendant's past criminal record, when a defendant chooses to take the stand, and the use of a witness's PSI by a defendant to impeach the testimony of a State witness in a criminal case.

   THE COURT: I     it is clear that this is a confidential document, and as part    
  
The record indicates that at this point the bench conference ended.
 
III. Discussion

   a. The Confidential Nature of a PSI is Not Absolute[***14]

   The question before us is simply whether the trial court erred in refusing to permit petitioner's defense counsel to use Campbell's PSI to attempt to refresh his recollection on the sole basis that PSI's are confidential. It is helpful to our analysis to review the nature of PSIs and their role in the criminal justice process. A "pre-sentence investigation" is an "investigation of the relevant background of a convicted offender, usually conducted by a probation officer attached to a court, designed to act as a sentencing guide for the sentencing judge." n9 Black's Law Dictionary 1184 (6th ed. 1990); see [*523] also 18 U.S.C.S. § 3552 (Presentence reports); Fed. R. Crim. P. 32(b) (Presentence Investigation and Report). Generally, a PSI is a tool offered to the sentencing court to assist it in reaching its goal of individualizing the sentence "to fit 'the offender and not merely the crime.'" Smith v. State, 308 Md. 162, 167, 517 A.2d 1081, 1084 (1986) (quoting Williams v. New York, 337 U.S. 241, 247, 69 S. Ct. 1079, 1083, 93 L. Ed. 1337 (1949)). "The principal function of the presentence report is to assist the court in determining[***15] the appropriate sentence." United States v. Charmer Indus. Inc., 711 F.2d 1164, 1170 (2d Cir. 1983).

n9 Black's Law Dictionary 1184 (6th ed. 1990) also provides the following definition of "pre-sentence report":

   The report prepared from the presentence investigation, which is designed to assist the judge in passing sentence on a convicted defendant. Presentence reports vary in scope and focus, but typically contain at least the following items: (1) complete description of the situation surrounding the criminal activity; (2) offender's educational background; (3) offender's employment background; (4) offender's social history; (5) residence history of the offender; (6) offender's medical history; (7) information about environment to which the offender will return; (8) information about any resources available to assist the offender; (9) probation officer's view of the offender's motivations and ambitions; (10) full description of the defendant's criminal record; and, (11) recommendation as to disposition.

[***16]

   Because a PSI is a tool generally utilized by a sentencing judge, the circumstances, which present themselves in the case sub judice, are unusual. In this case, the State's key witness, Campbell, was a convicted sex offender. During cross-examination and recross- examination, Campbell claimed that he could not remember the specifics of the crimes for which he had been convicted. Defense counsel, in an effort to strengthen petitioner's testimony that Campbell had been making unwanted sexual advances, fondling him, and sexually attacking him, attempted to utilize a PSI that was apparently prepared in respect to Campbell's sentencing on his convictions. [**938] Defense counsel received the PSI through subpoena and was attempting to use the PSI to refresh Campbell's memory as to the nature of his past convictions after Campbell asserted that he could not remember.

   We continue our discussion with an analysis of the relevant statutes. Maryland Code (1999), section 6-112 of the Correctional Services Article n10 provides:

n10 Any reference to section 6-112 is a reference to Maryland Code (1999), section 6-112 of the Correctional Services Article.

[***17]
 
§ 6-112. Presentence investigation report; other investigations and probationary services.

   (a) In general. --

   . . . . [*524]

   (2) Except on court order, a presentence investigation report is confidential and is not available for public inspection.[ n11 ] [Emphasis added.] 

n11 Section 6-112(a)(3) lists those people and organizations that can receive a PSI upon request. It provides:
 
(3) On request, a presentence investigation report shall be made available to:

   (i) the defendant;

   (ii) the defendant's attorney;

   (iii) the State's Attorney;

   (iv) a correctional facility;

   (v) a parole, probation, or pretrial release official of this State, any other state, or the United States;

   (vi) a public or private mental health facility located in this State or any other state if the individual who is the subject of the report has been committed, or is being evaluated for commitment, to the facility for treatment as a condition of probation; or
 
(vii) a community substance abuse treatment provider located in this State or any other state if the individual who is the subject of the report will be treated or evaluated for treatment by the provider as a condition of probation.
 
The confidentiality of PSI's is also noted in Maryland Rule 4-341, titled Sentencing -- Presentence Investigation, which provides:

   Before imposing a sentence, if required by law the court shall, and in other cases may, order a presentence investigation and report. A copy of the report, including any recommendation to the court, shall be mailed or otherwise delivered to the defendant or counsel and to the State's Attorney in sufficient time before sentencing to afford a reasonable opportunity for the parties to investigate the information in the report. The presentence report, including any recommendation to the court, is not a public record and shall be kept confidential as provided in Code, Correctional Services Article, § 6-112.

[***18]
 
As the wording of section 6-112 clearly indicates, the confidentiality of a PSI is not absolute. It is confidential in that it is not available for general "public inspection," except on an order of a court. It does not specifically prohibit the use of PSIs in official court proceedings -- it is primarily designed to limit "public inspections." n12

n12 During recodification, section 6-112 was moved from Maryland Code (1957, 1997 Repl. Vol.), Article 41, section 4-609 into the newly created Correctional Services Article by 1999 Maryland Laws, Chapter 54 "without substantive change." Prior to this recodification, section 4-609(b) stated in relevant part, "the presentence reports are confidential and not available for public inspection except upon court order." (emphasis added). This language clearly reflects the Legislature's intent to make PSIs confidential with respect to "public inspections." This language was first added by 1972 Maryland Laws, Chapter 532. Prior to 1972, the correlating statute did not include language concerning presentencing reports or their confidentiality from "public inspection."

[*525] [***19]

   Some of the underlying purposes behind the PSI confidentiality requirement include: (1) to encourage individuals, including a defendant, who have relevant information to provide it candidly with the assurance of confidentiality, see United States v. Greathouse, 484 F.2d 805, 807 (1973); United States v. Evans, 454 F.2d 813, 820 (1972); (2) to consider the privacy interests of the victims and their families, [**939] see Halacy v. Steen, 670 A.2d 1371, 1374 (Me. 1996); (3) to consider the privacy interests of the defendant, see United States v. Corbitt, 879 F.2d 224, 236, (7th Cir. 1989), cert. denied, 502 U.S. 823, 112 S. Ct. 86, 116 L. Ed. 2d 58 (1991); (4) to protect the anonymity of confidential sources, see United States v. Huckaby, 43 F.3d 135, 138 (5th Cir. 1995); and (5) to consider that the report may include irrelevant and unsupported information, see Halacy, 670 A.2d at 1374. We recognize that there are numerous compelling interests served by preserving the confidentiality of PSIs from "public inspection." n13

n13 For a general discussion on the underlying purposes behind PSI confidentiality,
 
see Baltimore Sun v. Thanos, 92 Md. App. 227, 236-37, 607 A.2d 565, 569-70 (1992) in which a newspaper sought to gain access to a PSI for possible use in articles to be published to the general public. In Thanos, the Court of Special Appeals noted "clearly 'publication of the contents of a presentence report [to third persons] would tend to discourage full disclosure' to the sentencer from its best sources . . . ." Id. at 237, 607 A.2d at 570 (emphasis added) (alteration in original). In the case at bar, actual publication to the general public was never an issue.

[***20]

   These valid public policy justifications for confidentiality usually factor heavily against out-of-court disclosures to any party not involved in the sentencing or rehabilitation of the subject of the PSI. The United States Supreme Court stated in United States Department of Justice v. Julian, 486 U.S. 1, 108 S. Ct. 1606, 100 L. Ed. 2d 1 (1988):
 
The courts have been very reluctant to give third parties access to the presentence investigation report prepared for [*526] some other individual or individuals. As the Government points out, one reason for this is the fear that disclosure of the reports will have a chilling effect on the willingness of various individuals to contribute information that will be incorporated into the report. A second reason is the need to protect the confidentiality of the information contained in the report. Accordingly, the courts have typically required some showing of special need before they will allow a third party to obtain a copy of a presentence report. [Citations omitted.]
 
Id. at 12, 108 S. Ct. at 1613, 100 L. Ed. 2d 1; see Charmer Indus, 711 F.2d at 1171 (noting that "in order to ensure[***21] the availability of as much information as possible to assist in presentencing, the courts have generally determined that presentencing reports should be held confidential.") n14 

n14 In the case at bar, petitioner's attorney received Campbell's PSI via subpoena. Whether such granting of Campbell's PSI to petitioner's attorney was appropriate is not before this Court. As we noted in footnote 11, section 6-112(a)(3) makes a PSI available to a defendant (the subject of the report) upon request. Some of the reasons for keeping a PSI confidential would not even apply in the case at bar.

   We note, nonetheless, that the fact that we do not address the appropriateness of the method by which defense counsel obtained the PSI in this case should not be construed as an approval of that method by this Court, nor as any authority for obtaining such reports in this fashion. That issue is not before us. We note further that, generally, administrative entities should not release PSI reports to anyone not specifically permitted by statute or rule to receive them, except upon an express order of court signed by a judge. Normally, consideration by a court may be accomplished by the administrative entity responding to a demand or request by filing a motion to quash, the filing of responsive pleadings by the requesting party, and the holding of any required hearings. In the responsive pleading and in the hearing, if any, the requesting party would have the burden of establishing a particularized need for the report, and the trial court would need to exercise its discretion by balancing the relative interests of the parties before arriving at its decision on whether to quash the request.

[***22]
 [**940]
However, as we discussed, supra, despite the justifications for keeping a PSI confidential in respect to "public inspection" (which was not the use petitioner proposed in the case at bar), the confidentiality of a PSI even then is not absolute. Section 6-112(a)(2) plainly states that a PSI is [*527] confidential from "public inspection" "except on court order." Although, the determination as to whether to permit access to a PSI should be made with utmost care, it is still well within the authority of a court to make. As a United States District Court stated in 1996:
 
This determination does not end the court's inquiry, however, for a presentence report's presumption of confidentiality is not absolute. A third-party[ n15 ] seeking access to a presentence report may overcome the report's confidentiality by demonstrating that disclosure will "serve the ends of justice," [United States v.] Schlette, 842 F.2d [1574,] 1579 [(9th Cir. 1988)]; [United States v.] McKnight, 771 F.2d [388,] 390 [(8th Cir. 1985)], or by establishing a "compelling, particularized need for disclosure," Huckaby, 43 F.3d at 138; Corbitt, 879 F.2d at 239[***23] [n.5.] Applying this standard requires a fact specific inquiry in which the need for confidentiality is balanced against the desirability of releasing a presentence report.[ n16 ] Huckaby, 43 F.3d at 139; Schlette, 842 F.2d at 1579, 1583; Charmer, 711 F.2d at 1173. The showing required of the party seeking disclosure will vary with the degree to which the need for confidentiality is present in a particular case.  Schlette, 842 F.2d at 1583 (citing United States Indus., Inc. v. United States Dist. Court, 345 F.2d 18, 21 (9th Cir.), cert. denied, 382 U.S. 814, 15 L. Ed. 2d 62, 86 S. Ct. 32 (1965)). This determination is committed to the sound discretion of the trial court and will be reviewed for abuse of discretion.  Huckaby, 43 F.3d at 138; Schlette, 842 F.2d at 1577.

n15 The only "third party," petitioner, already had the PSI. The person to whom he was going to show the PSI, Campbell, is specifically permitted by statute or rule to see it. 

n16 The PSI was not proffered for "release" to "public inspection," nor was it, at the time the court ruled that it could not be used, proffered into evidence, but it was proposed, by a person who already had it, to be shown for memory refreshing purposes to a person who had an absolute right to see it.

[***24]
 
United States v. Preate, 927 F. Supp. 163, 166-67 (M.D. Pa. 1996); see Huckaby, 43 F.3d at 138 (recognizing that no court [*528] has held that confidentiality of information contained in a PSI must be maintained in all circumstances); Corbitt, 879 F.2d at 239-40 (noting that in some situations, a PSI may be disclosed to meet a particularized need arising out of pending or contemplated litigation); Charmer Indus., 711 F.2d at 1175 (concluding that a court "should not authorize disclosure of a presentence report to a third person in the absence of a compelling demonstration that disclosure of the report is required to meet the ends of justice."); Hancock Bros., Inc. v. Jones, 293 F. Supp. 1229, 1233 (N.D. Cal. 1968) ("Information contained in a presentence report should not be disclosed to third parties unless lifting confidentiality is required to meet ends of justice."); Halacy, 670 A.2d at 1375; State v. Bacon , 167 Vt. 88, 91, 702 A.2d 116, 119 (1997) ("The confidentiality of PSIs is not absolute.").

   While the issue of what standard a trial court should use in determining [***25]whether a PSI should be disclosed is not before us, we do note that such a determination is within the authority of the court. n17 In any [**941]such instance, the determination [*529] should be made on the facts and circumstances of that individual case.

n17 In Zaal v. State, 326 Md. 54, 602 A.2d 1247 (1992), a case in which a criminal defendant requested disclosure of his victim's confidential educational school records in order to impeach her credibility, we provided:
 
In cases in which access to confidential and/or sensitive records is sought by a defendant and which will be resolved based on credibility considerations, because of which, the trial court determines the "need to inspect" threshold has been crossed, the court may elect to review the records alone, to conduct the review in the presence of counsel, or to permit review by counsel alone, as officers of the court, subject to such restrictions as the court requires to protect the records' confidentiality. Which option the court chooses must depend on various factors, including the degree of sensitivity of the material to be inspected; the strength of the showing of the "need to inspect"; whether the information sought is readily identifiable; considerations of judicial economy, etc. The greater the "need to inspect" showing, i.e., as here, where it is self-evident, and the less sensitive the information, for example, the more likely the records will be reviewed jointly by the court and counsel or by counsel as officers of the court.
 
Id. at 87, 602 A.2d at 1263-64. This standard would be consistent with our treatment of third party requests to breach grand jury confidentiality set out in In re Criminal Investigation No. 437, 316 Md. 66, 82-83, 557 A.2d 235, 243 (1989).

[***26]

   We addressed an impeachment issue in Hall v. State, 292 Md. 683, 441 A.2d 708 (1982), a case in which we decided whether a statement made by the accused to a probation officer conducting a presentence investigation was admissible in a subsequent trial for the purpose of impeachment. We said:

   Hall's last contention is that admitting Monk's testimony was a violation of Maryland Code ([1957,] 1971 [Repl. Vol.], 1981 Cum. Supp.), Art. 41, § 124 (b)[ n18 ] and Maryland Rule 771 (b).[ n19 ] In pertinent part, section 124 (b) provides that "presentence reports shall be confidential and not available for public inspection except upon court order or for use by any correctional institution." Maryland Rule 771 (b) tracks section 124 (b) and provides that a presentence report "is not a public record and shall be kept confidential as provided in Article 41, § 124 (b) of the Maryland Code."

n18 Maryland Code (1957, 1971 Repl. Vol., 1981 Cum. Supp.), Article 41, section 124(b) is now section 6-112(a).

n19 Maryland Rule 771 is now Maryland Rule 4-341.

[***27]

   The short answer to this contention is that the report was not introduced nor was the substance of the report made public. The information provided the probation agent is the kind (such as name, age, home address) routinely and preliminarily ascertained in any interview and is not gathered for the purpose of incriminating the defendant. In our view this type of information was not intended by the Legislature to be protected by § 124 (b) and thus we find no violation of either the spirit or the letter of § 124 (b) or Rule 771 (b).

   We hold, therefore, that Monk's testimony based on the presentence interview was admissible to impeach Hall's statement made on direct examination and, as limited, this [*530] testimony did not violate the confidentiality requirements of Article 41, § 124 (b) or Rule 771 (b).
 
Id. at 692, 441 A.2d at 713.

   In the posture of the case at bar, when the trial court denied defendant the use of the PSI, it was not proposed that it be admitted into evidence. It was merely to be used for recollection refreshing purposes. Generally, when appropriate in the first instance, there are no limitations on the nature of the relevant documents that may be[***28] used in the refreshing of a witness's [**942] recollection. Such documents are not being admitted into evidence. n20

 n20 Additionally, when the court is required to confront the issue of access to a PSI, an issue not before this Court in this case, the court can limit the disclosure of the information contained in the PSI to be only as broad as necessary. In the case sub judice, it appears that the defense counsel merely wanted to refresh the recollection of the witness who was the subject of the PSI, to the specifics of the crimes he committed. The PSI was not being admitted into evidence. It, so far as we can discern from the record, was not being submitted to a jury, and the information defense counsel wanted to refresh Campbell's memory with was merely concerned with Campbell's past admissions. As stated in United States v. Schlette, 842 F.2d 1574, 1581 (9th Cir. 1988), "if the reasons for maintaining [confidentiality] do not apply at all in a given case, or apply only to an insignificant degree, the party seeking disclosure should not be required to demonstrate a large compelling need." (alterations in original). In the case at bar, it can be argued that few, if any, of the reasons for confidentiality as to prohibiting "public inspection" exist when the report was to be shown only to the subject of the report to refresh his recollection. Moreover, as we have reiterated, access to the PSI was not the issue in this case. The defendant already had it; the witness was entitled, by statute, to it. 

[***29]

   As we have discussed, supra, in Maryland, the determination as to whether to disclose otherwise confidential information contained within a PSI is a question committed to the authority of the trial court. However, this exercise of authority has little role in the use of already obtained PSI documents to refresh recollection. The trial court in the case sub judice erroneously believed that it was mandatory to keep the information contained within a PSI confidential under all circumstances, even though the PSI was already in the defendant's possession. When faced with defense counsel's assertion that [*531]he was entitled to use the generally confidential PSI to refresh Campbell's recollection, the trial court repeatedly relied solely on the document's status as "confidential" and "for official Court use only." The trial court failed to recognize that the confidentiality requirement related primarily to "public inspection" and would not apply to showing it to the subject for whom it was prepared, a person who had the right to see it. Additionally, the trial court failed to perceive any difference in respect to its use in official court proceedings to refresh a witness's recollection,[***30] and making it available for "public inspection." In other words, the trial court erroneously concluded that it had no authority to allow the disclosure of the contents of the PSI because such information was always confidential. That is simply incorrect. The trial court's failure to permit defendant to utilize the PSI to refresh a witness's recollection was reversible error.
 
b. Refreshing Recollection

   Whether a witness's recollection may be refreshed by a writing or by other means depends on the particular facts and circumstances of the individual case. As we said in Oken v. State, 327 Md. 628, 612 A.2d 258 (1992), cert. denied, 507 U.S. 931, 113 S. Ct. 1312, 122 L. Ed. 2d 700 (1993):
 
   While it is true that in many circumstances, an examining attorney must first establish that a witness's memory is exhausted before refreshing the recollection of that witness, see 6 L. McLain, Maryland Evidence § 612.1 (and cases cited therein), laying such a foundation is not an absolute prerequisite. Instead, the question of whether a witness's recollection may be refreshed by a writing or some other object depends upon the particular circumstances . . . . [***31]Bankers Trust Co. v. Publicker Industries, Inc., 641 F.2d 1361, 1363 (2d Cir.1981) ("There is no required, ritualistic formula [**943] for finding exhaustion of memory.") State v. Greenlee, 72 N.C. App. 269, 324 S.E.2d 48, 51-52 (1985) (prosecuting attorney did not improperly impeach State witness merely by attempting to refresh her memory upon realizing that her in-court testimony was contradictory to [*532] her prior statement); Walker v. State, 445 So. 2d 955, 957 (Ala. Crim. App.1983) (witness for State in a rape prosecution could refer to a writing for purpose of refreshing his recollection without first, as condition precedent, showing that it was necessary for his recollection to be refreshed); Reproductive Health Services, Inc. v. Lee, 660 S.W.2d 330, 335-36 (Mo. App.1983) (holding that "where witness' testimony concerned five separate incidents of trespassing over a period of approximately ten months, involving various defendants, . . . trial court could, in the exercise of its discretion, permit witness to employ written list to refresh her recollection without any specific statement on her part that she needed [***32]the list to refresh her recollection."); People v. Verodi, 150 Cal. App. 2d 137, 150-51[,] 309 P.2d 568, 576-77 (2d. Dist.1957) (holding that "in murder prosecution, district attorney's referring witness' attention to memorandum, previously prepared by witness, for purpose of refreshing witness' recollection and correcting a perfectly obvious omission was proper, even though witness had stated prior to seeing memorandum, that he had testified to everything which had been and that he did not need the memorandum to refresh his recollection."); C. McCormick, Evidence § 9 at 33-34 (4th ed. 1992) ("The witness may believe that she remembers completely but on looking at the memorandum she would be caused to recall additional facts. As the Chinese proverb has it, 'The palest ink is clearer than the best memory.' On the other hand, there is the ever-present danger that a suggestible witness may think that she remembers a fact because she reads it. It seems eminently a matter for discretion, rather than rule."); 3 J. Wigmore, Evidence § 765 at 145 (Chadbourn rev. (1965)) ("The forgoing rules [on present recollection revived] should not be treated as dogmas of[***33] inherent efficiency. They are merely crude rules-of-thumb, worthy of the adoption for the general purpose. . . . The trial court's discretion should control.") 6 L. McLain, Maryland Evidence § 612.2 (under Rule 612 of the Federal Rules of Evidence, "once a witness has been asked to testify or testified to a certain matter, if the [*533] witness' memory appears to be incorrect or incomplete, counsel may attempt to refresh the witness' recollection.").
 
327 Md. at 672-74, 612 A.2d at 279-80 (alterations in original); see also Dorsey Bros., Inc. v. Anderson, 264 Md. 446, 453, 287 A.2d 270, 274 (1972); Butler v. State, 107 Md. App. 345, 354-55, 667 A.2d 999, 1003-04 (1995); Baker v. State, 35 Md. App. 593, 602 n.10, 371 A.2d 699, 705 n.10 (1977); see, e.g., United States v. Cody, 114 F.3d 772, 777 n.3 (8th Cir. 1997); Perry v. Magic Valley Reg'l Med. Ctr., 134 Idaho 46, 995 P.2d 816, 826 (Idaho 2000); State v. Bruno, 236 Conn. 514, 534-35, 673 A.2d 1117, 1129 (1996).

   We also recognize the large amount of freedom that an attorney has when choosing an object with which a witness's recollection[***34] can be refreshed. It is important to note the distinction between the admission of a memorandum into evidence as past recorded recollection and a memorandum or other item used only to revive present recollection. The limitations and concerns present for past recollection recorded have little bearing on present recollection revived. As the Court of Special Appeals has said: [**944]

   When dealing with an instance of Past Recollection Recorded, the reason for the rigorous standards of admissibility is quite clear. Those standards exist to test the competence of the report or document in question. Since the piece of paper itself, in effect, speaks to the jury, the piece of paper must pass muster in terms of its evidentiary competence.

   Not so with Present Recollection Revived! By marked contrast to Past Recollection Recorded, no such testimonial competence is demanded of a mere stimulus to present recollection, for the stimulus itself is never evidence. Notwithstanding the surface similarity between the two phenomena, the difference between them could not be more basic. It is the difference between evidence and non-evidence. Of such mere stimuli or memory-prods, McCormick says, at 18, "The [***35]cardinal rule is that they are not evidence, but only aids in the giving of evidence." When we are dealing with an instance of Present Recollection Revived, [*534] the only source of evidence is the testimony of the witness himself. The stimulus may have jogged the witness's dormant memory, but the stimulus itself is not received in evidence.

 
Baker, 35 Md. App. at 598-599, 371 A.2d at 702-03 (footnotes omitted) (alterations in original). Generally, an attorney is given wide latitude with choosing the item to be used to refresh a witness's memory. This is because the item is not admitted into evidence -- the memory that is triggered, and ultimately testified about, is the admitted evidence.

   In respect to notes taken of statements made by a person deceased at the time of trial, the attorney was permitted to refresh his recollection in our early case of Waters v. Waters, 35 Md. 531 (1872), even though the notes themselves may not have been admissible. We said: "It cannot be understood as deciding that the notes of the testimony taken by a Judge or counsel are per se evidence. Such notes are mere memoranda, which may be used to refresh the memory[***36] of the witness who took them; but are not of themselves evidence . . . ." Id. at 540; see also Miller v. State, 251 Md. 362, 377, 247 A.2d 530, 538 (1968) (where a witness used a written, but not signed, confession to refresh his recollection "we [found] no merit in the appellant's contention that it was error to permit the State's witness to refresh his recollection."), vacated on other grounds by, 408 U.S. 934, 92 S. Ct. 2851, 33 L. Ed. 2d 747 (1972); Askins v. State, 13 Md. App. 702, 711, 284 A.2d 626, 631 (1971) ("The predominate view today seems to be that . . . any memorandum or other object may be used as a stimulus to present memory, without restriction by rule as to authorship, guarantee of correctness, or time of making.").

   Judge Learned Hand noted in United States. Rappy, 157 F.2d 964 (2d Cir. 1946), that:

   When a party uses an earlier statement of his own witness to refresh the witness' memory, the only evidence recognized as such is the testimony so refreshed; and the party may not put the statement in evidence, although the other side may do so, and apparently the jury may call for[*535] [***37] it, sua sponte . . . . Anything may in fact revive a memory: a song, a scent, a photograph, and allusion, even a past statement known to be false.
 
Id. at 967 (footnote omitted); see State v. Souza, 708 A.2d 899, 903 (R.I. 1998) ("Any writing or object may be used in an effort to refresh a witness's recollection."); see also Wilson v. State, 511 N.E.2d 1014 (Ind. 1987); Maryfield Plantation, Inc. v. Harris [**945] Gin Co., 116 Ga. App. 744, 159 S.E.2d 125 (1967).

   While we have not addressed the issue, the fact that a document used to refresh recollection might not otherwise be admissible, or even that it was obtained improperly, has been held by other jurisdictions to be no bar to its being used to refresh recollection. In State v. Poirier, 1997 ME 86, 694 A.2d 448, 450 (Me. 1997), the Supreme Judicial Court of Maine held: "At the very most, the notes were used to refresh the memory of the witness. In such circumstances, the fact that a document is not admissible does not prevent its use as a means of refreshing the recollection of a witness. . . . the only question is whether a document . . . is[***38] generally calculated to revive the witness's memory."

   The Supreme Court of New Jersey in State v. Carter, 91 N.J. 86, 449 A.2d 1280, 1299 (1982), aff'd in part, dismissed in part on other grounds by Carter v. Rafferty, 826 F.2d 1299 (3d Cir. 1987), permitted letters that had been obtained in violation of the Fourth Amendment, to be used to refresh recollection. In respect to the defendants' assertion that the letters could not be used, even for memory refreshment, because they were unconstitutionally obtained, the New Jersey court said:

   This [the defendants'] rationale ignores the established distinction between a document that is evidential and one used to refresh a witness's recollection. Once a proper foundation has been laid, a witness may examine any document to refresh his memory. The oft-quoted statement of Lord Ellenborough in Henry v. Lee, 2 Chitty, 124, 124 (1814), sets forth the general rule:

   If upon looking at any document he can so far refresh his memory as to recollect a circumstance, it is sufficient; [*536] and it makes no difference that the memorandum is not written by himself, for it is not the memorandum that is the evidence[***39] but the recollection of the witness.
 
Preliminarily the trial court must decide whether the memorandum does refresh the witness's recollection. It may decline to permit its use where the danger of undue suggestion outweighs the probable value of the evidence. In making this decision the trial court may consider the nature of the memorandum and the witness's testimony, including cross-examination, by which counsel may test the witness's credibility that his memory has been revived.

   The admissible evidence is the recollection of the witness, and not the extrinsic paper. The test is whether the witness puts before the court his independent recollection and knowledge.
 
Id. at 122-23, 449 A.2d at 1299-1300 (citations omitted).
 
   Documents, otherwise confidential, have been held to be permitted to refresh the recollection of a witness. The Supreme Court in United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 231-35, 60 S. Ct. 811, 848-49, 84 L. Ed. 1129 (1940) in reference to use of grand jury testimony to refresh recollection, said:

   The Circuit Court of Appeals held that the trial court committed prejudicial error in refusing to permit defense counsel to[***40] inspect the transcript of grand jury testimony used to refresh the recollection of certain witnesses called by the government . . . .

   . . . .

   . . . As once stated by Judge Hough, "The bald fact that the memory refreshing words are found in the records of a grand jury is not a valid objection." Normally, of course, the material so used must be shown to opposing counsel upon demand, if it is handed to the [**946] witness. . . . Grand jury testimony is ordinarily confidential. But after the grand jury's functions are ended, disclosure is wholly proper where the ends of justice require it. . . . [*537]

   If the record showed that the refreshing material was deliberately used for purposes not material to the issues but to arouse the passions of the jurors, so that an objective appraisal of the evidence was unlikely, there would be reversible error. Likewise there would be error where under the pretext of refreshing a witness' recollection, the prior testimony was introduced as evidence. But here the grand jury testimony was used simply to refresh the recollection on material facts. . . . [Citations omitted.] [Emphasis added.]
 
But see National Dairy Products Corp. v. United States, 384 F.2d 457, 459 (8th Cir. 1967)[***41] that places some limits on the disclosure of grand jury testimony to defendants, n21 i.e., but, nonetheless noted the Supreme Court's statement in

n21 And see Plotkin v. Rabinowitz, 54 Misc. 2d 550, 283 N.Y.S.2d 156 (1967) (taped recordings taken in violation of wiretap statute not permitted to be used to refresh recollection during deposition).

 
United States v. Procter & Gamble Co., 356 U.S. 677 at 683, 78 S. Ct. 983, 2 L. Ed. 2d 1077, that "'problems concerning the use of the grand jury transcript at the trial to impeach a witness, to refresh his recollection, to test his credibility * * *' are 'cases of particularized need where the secrecy of the proceedings is lifted discretely and limitedly.'" The Court also observed that the developments in the area of disclosure of grand jury minutes were entirely consistent with the realization that disclosure, rather than suppression of relevant legal materials, normally promotes the proper administration of criminal justice. [Some citations omitted.]
  
See also Post Houses, Inc. v. National Labor Relations Bd., 384 F.2d 463 (3d Cir. 1967);[***42] Commonwealth v. Silva, 401 Mass. 318, 328, 516 N.E.2d 161, 168 (1987) (witness permitted to refresh his recollection by utilizing transcripts of his grand jury testimony); State v. Krause, 260 Wis. 313, 50 N.W.2d 439 (1951).

   There are arguments that support that opposing counsel must be afforded an opportunity to review even confidential [*538] documents used to refresh memory, and, in some circumstances, such documents may be available for jury inspection. Wigmore notes: "On a general principle . . . the writing must be shown to him [the opponent] on request." 3 J. Wigmore, Evidence in Trials at Common Law, § 762 (Chadbourn rev. 1970). Wigmore then quotes from older opinions:

   EYRE, L.C.J., in Hardy's Trial, 24 How. St. Tr. 200, 824 (1794): It is always usual and very reasonable, when a witness speaks from memorandums, that the counsel should have an opportunity of looking at those memorandums, when he is cross-examining that witness.

    R. v. Ramsden, 2 Car. & P. 603 (1827) . . . . TENTERDEN, L.C.J.: "You put the paper into the witness' hands to refresh his memory. It is very usual for the opposite counsel[***43] to see it and examine it, and I think he has a right to see it."

   KINDERSLEY, V.C., in Lord v. Colvin, 2 Drewr. 205, 208 (1854): If a paper is put into the hands of a witness to refresh his memory, if after that nothing comes of it, if nothing more be done, then the other party has no right to look at it. But if anything further is done, if the witness is asked and answers questions [**947] about the document or the facts referred to in it, then at law the party on the other side has a right to see the document. . . . Every document produced should, I think, be shown to both sides.

   Wigmore states that there are some circumstances where writings used to refresh recollection have been required to be shown to the jury, although not admitted as evidence per se.

   § 763. Writing used to revive recollection is not part of testimony; yet the jury may see it, to determine the propriety of its use. It follows from the nature of the purpose for which the paper is used . . . that it is in no strict sense evidence. In this respect it differs from a record of past recollection . . . . Nevertheless, though the witness' party may not present it as evidence, the same reason of precaution which[***44] allows the opponent to examine it . . . allows the opponent to call the jury's attention to its [*539] features, and also allows the jurymen, if they please, to examine it for the same end. In short, the opponent, but not the offering party, has a right to have the jury see it . . . .

   When confronted with a situation similar to that in the instant case, a cross-examiner attempting to refresh a witness' testimony, Wigmore says:

   § 764. Cross-examiner's use of writing to revive recollection. Where the effort to refresh the witness' memory comes originally from the cross- examining party, several distinct questions may arise.
 
   (1) Must the witness accede to the request and see if his memory is refreshed by the paper handed him? It seems entirely proper to require him, in the trial judge's discretion, to do this.

   (2) When this is done, the paper so used must in fairness be shown to opposing counsel, and read aloud or shown to the jury if he should so desire.

   (3) A paper thus desired to be used will usually be one containing a prior inconsistent statement of the witness; in this case, the rules will apply that the inconsistent statement is not equivalent to[***45] independent testimony . . . and that the paper containing it must (in the jurisdictions following The Queen's Case) first be shown to the witness before asking him upon its contents. [Some citations omitted.] [Footnotes omitted.]

   A witness's PSI from a prior conviction, under circumstances such as those here present, would be acceptable to refresh the witness's recollection about the past offenses, especially when the witness claims to have forgotten the nature of the crimes for which he has been and is presently imprisoned, and where, as here, the issue of whether the prior assault was against a member of the same sex was argued as being relevant and material to whether the witness had made an unwanted sexual attack against his cell mate. That issue was argued as being squarely relevant to the issue of credibility, not only of the witness, but of the defendant as well. [*540]
 
IV. Conclusion

   We hold that the Court of Special Appeals erred in not reversing petitioner's conviction on the ground that the trial court should not have precluded petitioner from using a key State witness's PSI to refresh that witness's recollection. The confidentiality of a PSI is primarily directed[***46] to protect against "public inspection." It is not absolute. Accordingly, we reverse the decision of the Court of Special Appeals and remand with instructions to reverse the judgment of the Circuit Court for Anne Arundel County and remand the case to that court for a new trial.
 [**948]
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THE COURT OF SPECIAL APPEALS WITH INSTRUCTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AND TO REMAND THE CASE TO THE CIRCUIT COURT FOR A NEW TRIAL; COSTS TO BE PAID BY ANNE ARUNDEL COUNTY.

                       
ROBERT MICHAEL WILSON v. STATE OF MARYLAND 
No. 65, September Term, 2000
 
COURT OF APPEALS OF MARYLAND
 
363 Md. 333; 768 A.2d 675; 2001 Md. LEXIS 102

 March  9, 2001, Filed

   PRIOR HISTORY: [***1] Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County. Criminal No. K98-1097). Ronald A. Silkworth, JUDGE.

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY RESPONDENT. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Petitioner was convicted of robbery with a dangerous and deadly weapon and other crimes. The convictions were affirmed on direct appeal. Petitioner filed a petition for post-conviction relief pursuant to Md. Ann. Code art. 27, §§ 645A-645J (2000 Supp.), which the trial court granted. The Court of Special Appeals (Maryland) reversed the decision. Following a grant of certiorari, petitioner challenged the decision.

OVERVIEW:  The charges arose from an incident in which two masked men broke into the house and beat the victims until a victim opened a safe which contained a large sum of money. In challenging the convictions, petitioner argued that respondent State committed Brady violations by failing to disclose that two witnesses at trial had obtained plea bargains in exchange for their testimony. Petitioner contended that respondent allowed both witnesses to mislead the jury by understating the favorable consideration in those agreements. The court found that as the actual terms of the plea bargains were never disclosed to petitioner, the evidence was suppressed within the meaning of Brady. The court found that disclosure of the terms of the plea agreements to petitioner would have been favorable to petitioner, as the difference between terms of the plea agreements as represented to the jury at trial and the terms as actually implemented was significant. The court held the terms of the agreements were material to the defense, as there was a substantial possibility that the outcome in the case would have been different had jury known of the actual terms of the agreements.

OUTCOME:  The court reversed the decision and remanded with instructions to affirm the trial court's judgment, because respondent committed a Brady violation by improperly suppressing favorable material evidence by failing to disclose plea agreements with two witnesses in petitioner's trial.

CORE TERMS:  credibility, prosecutor, favorable, post-conviction, materiality, robbery, plea agreement, closing arguments, suppressed, sentence, false testimony, withheld, closing argument, reasonable probability, impeachment, testifying, disclosure, burglary, psychological report, cross-examination, involvement, night, favorable evidence, material evidence, direct appeal, new trial, coconspirator, misleading, unrelated, sentenced

CORE CONCEPTS -  

Criminal Law & Procedure: Discovery & Inspection: Brady Materials
The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. In order to establish a Brady violation, a petitioner must establish (1) that the prosecutor suppressed or withheld evidence that is (2) favorable to the defense, either because it is exculpatory, provides a basis for mitigation of sentence, or because it provides grounds for impeaching a witness, and (3) that the suppressed evidence is material. Evidence that is obviously favorable must be disclosed even absent a specific request by the defendant. Md. R. Crim. Causes 4-263(a).

Criminal Law & Procedure: Discovery & Inspection: Brady Materials
Impeachment evidence, as well as exculpatory evidence, is evidence favorable to an accused for purposes of the Brady doctrine.

Criminal Law & Procedure: Discovery & Inspection: Brady Materials
The failure to disclose evidence relating to any understanding or agreement with a key witness as to a future prosecution, in particular, violates due process, because such evidence is relevant to witness's credibility. When the government depends almost entirely on the testimony of a key witness to establish its prima facie case and the witness's credibility, therefore, is an important issue, evidence of any understanding or agreement as to a future prosecution would be relevant to his credibility. The prosecutor's duty to disclose applies to any understanding or agreement between the witness and the State.

Criminal Law & Procedure: Discovery & Inspection: Brady Materials
The standard for measuring the materiality of undisclosed evidence under the Brady doctrine is strictest if it demonstrates that the prosecution's case includes perjured testimony and that the prosecution knew, or should have known, of the perjury. A conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury. In cases where there is no false testimony but the prosecution nonetheless fails to disclose favorable evidence, the standard for materiality, is whether there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.

Criminal Law & Procedure: Discovery & Inspection: Brady Materials
A reasonable probability is a probability sufficient to undermine confidence in the outcome. The question in the Brady analysis, therefore, is not whether the State would have had a case to go to the jury if it had disclosed the favorable evidence, but whether the appellate court can be confident that the jury's verdict would have been the same, which is determined in reference to the sum of the evidence and its significance for the prosecution.

Criminal Law & Procedure: Appeals: Standards of Review: Clearly Erroneous Review 
The appellate court will not disturb the factual findings of the post-conviction court unless they are clearly erroneous.

Criminal Law & Procedure: Discovery & Inspection: Brady Materials
Cross-examination of the witnesses regarding inducements to testify does not substitute for adequate disclosure under the Brady doctrine.

Criminal Law & Procedure: Discovery & Inspection: Brady Materials
There are several factors to which courts look to assess materiality for the purposes of suppressed impeachment evidence: the specificity of the defendant's request for disclosure of materials; the closeness of the case against the defendant and the cumulative weight of the other independent evidence of guilt; the centrality of the particular witness to the State's case; the significance of the inducement to testify; whether and to what extent the witness's credibility is already in question; and the prosecutorial emphasis on the witness's credibility in closing arguments.

Criminal Law & Procedure: Discovery & Inspection: Brady Materials
In general, impeachment evidence is material where the witness at issue supplied the only evidence linking the defendant to the crime, or where the likely impact on the witness's credibility would have undermined a critical element of the prosecution's case.

COUNSEL: ARGUED BY: Kirk Y. Griffin (Law Offices of Kirk Y. Griffin of Boston, MA; Robert E. McGowan, Law Offices of Robert E. McGowan, Bowie, MD) all on brief, FOR PETITIONER.
 
ARGUED BY: Steven L. Holcomb, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, on brief) all of Baltimore, MD, FOR RESPONDENT.

JUDGES: ARGUED BEFORE: Bell, C.J., Eldridge, Raker, Wilner, Cathell, Harrell, and Rodowsky, Lawrence F. (retired, specially assigned), JJ. Opinion by Raker, J.

OPINIONBY: Raker

OPINION: [**677] [*337]
 
Opinion by Raker, J.
 
Filed: March 9, 2001

   This case arises out of a petition for post-conviction relief filed pursuant to the provisions of Maryland Code (1958, 1996 Repl. Vol., 2000 Supp.) Article 27, §§ 645A - 645J, the Post Conviction Procedure Act. Following a court trial in the Circuit Court for Talbot County on January 16, 1979, Petitioner was convicted of two counts of robbery with a dangerous and deadly weapon, common law burglary, conspiracy to commit burglary, and use of a handgun in the commission of a felony. He was sentenced to the Maryland Division of Corrections for a term of confinement of fifty years, to be served consecutively to sentences previously imposed as a result of [*338] unrelated Delaware and federal charges. On direct appeal, the Court of Special Appeals[***2] affirmed. See Wilson v. State, 44 Md. App. 318, 408 A.2d 1058 (1979). Wilson filed this petition for post-conviction relief in 1998.

   In his petition, Wilson raised three grounds for post-conviction relief: (1) that he was denied due process of law because the State suppressed favorable material evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) and its progeny, (2) that he was denied effective assistance of counsel, and (3) prosecutorial misconduct. Following an evidentiary hearing, the Circuit Court for Anne Arundel County n1 granted Wilson's petition for post-conviction relief and awarded him a new trial because the State did not disclose favorable material evidence. In an unreported opinion, the Court of Special Appeals reversed. We granted Wilson's petition for [**678] writ of certiorari, and, because we agree with the post-conviction hearing court, we shall reverse the judgment of the intermediate appellate court.

n1 The case was transferred for hearing from the Circuit Court for Talbot County to the Circuit Court for Anne Arundel County because the circuit court judge in Talbot County recused himself.

[***3]
 
I.

   We set out the facts of the crime as recounted by the post-conviction hearing court, supplementing them as needed:

   "On the night of February 5, 1977, the home of a used car salesman named Calvin Scott was broken into by two masked men who were armed with guns. The intruders gained entrance into the home by firing a gun through the doorway as Calvin Scott was locking the home for the night.[1] In their search of the home, the intruders discovered an old safe. The intruders then beat both Calvin Scott and his wife, Elsie Mae, until Calvin Scott opened the safe from which approximately $71,000.00 in cash was stolen. Prior to the intruders' getaway, they handcuffed the Scotts [*339] to their iron bed frame where they remained until they were found the following afternoon by their granddaughter.
 
1 The bullet was found several days later. It was determined that the bullet came from a German Luger pistol.

   "Two to three weeks after this crime, the police received information from an anonymous source, believed to have been the Petitioner's wife, that the Petitioner and Gary Reynolds may have been involved in the robbery. On March 11, 1977, the Petitioner was arrested in Florida[***4] on unrelated charges and several handguns were seized, including a German Luger. In subsequent state and federal prosecutions in Florida, the Petitioner admitted possession and ownership of the Luger. Furthermore, in June of 1977 the FBI determined that the Petitioner's Luger fired the bullet which was recovered from the Scott's home.

   "The Petitioner, at his trial, testified that he was acquainted with the Maryland area and that in late January or early February, 1977, he met with Cable and Reynolds. He further testified that he sold his German Luger pistol to Cable who was interested in and collected guns from World War II. The Petitioner testified that this was the only contact that he ever had with Cable. The Petitioner's family testified that he was at a party in Boston on the night of the robbery.

   "On May 18, 1977, Harkum gave a statement to the State's Attorney for Talbot County which was read into evidence at the Petitioner's trial. In his statement, Harkum, who worked with Calvin Scott as a used car salesman, admitted that he told Cable that the victim, Calvin Scott, kept large amounts of cash in his home. Harkum also said that Cable was involved in the Scott robbery. Harkum [***5]described Cable as a man of violent propensities who subsequently proposed that Harkum join him in other criminal undertakings. Harkum added that he was afraid of Cable. Harkum had no information or knowledge about the Petitioner or Reynolds but proffered that he had been given the [*340] impression by Cable that a 'Wayne Morris' and/or a 'Larry Mears' may also have been involved in the robbery.[2]
 
2 The record does not reveal any follow-up investigation by the State of Wayne Morris who died prior to the trial, or of Larry Mears, who 'had suddenly shown up with $25,000 in cash to buy a boat.' Wilson v. State, 44 Md. App. 318, 321, 408 A.2d 1058 (1979).

   "Cable, a bouncer at a night club in the Annapolis area, also testified for the State. He testified that while he was in Florida in autumn of 1976, he met with Reynolds in order to plan a robbery. Three to four months thereafter, Cable said that he had met Reynolds and the Petitioner at a bar in Glen Burnie. 'Then on Saturday, February 5, 1977, Reynolds, the [Petitioner] and a young woman named "Tammy" had come to his boat.' Wilson v. State, 44 Md. App. 318, 322, 408 A.2d 1058 (1979). 'The group[***6] [**679] drove over to Easton where Cable said he had pointed out the Scott residence before returning to the Annapolis area.' Id. 'Late that night Cable said he met with the trio again and was advised that the robbery had been accomplished.' Id. Cable testified that he was given a share of the proceeds from the robbery for the role he played."

   Prior to trial, Petitioner filed a written request for discovery and inspection, specifically requesting information regarding all persons who had been offered immunity, favorable consideration, lesser pleas, or other agreements in return for their testimony, information, or documents. The State's response to that request was "not discoverable." No copy of any written plea agreement was ever produced by the State.

   At trial, Cable made reference to a plea agreement that he had with the State. He testified on direct examination that he was presently in jail on pretrial detention and that he had not yet gone to trial on the charges arising from his involvement in the instant crime. He testified that "in return for testifying, the charges against him [would be] amended to two counts of conspiracy to commit armed robbery and that [his] total[***7] sentence [would be] a five year sentence." Additionally, he testified that unrelated drug and weapon charges in other jurisdictions would not be pursued by the State. When the [*341] subject arose on cross-examination, Cable stated that his understanding was based on a written plea bargain agreement, negotiated by his attorney, who was present during his testimony.

   Co-defendant James P. Harkum also testified for the State at Petitioner's trial, and he also made reference to a plea agreement with the State. Harkum testified that he had not been detained prior to trial and had not yet gone to trial. He testified that, in exchange for his testimony against Petitioner, his "arrangements with the State" were that he would receive jail time of an unknown duration and possible probation.

   On January 20, 1979, Petitioner was convicted by a jury in the Circuit Court for Talbot County of two counts of armed robbery, burglary, conspiracy to commit burglary, and the use of a handgun in the commission of a crime of violence. He was sentenced to a term of incarceration of fifty years, to be served consecutive to unrelated Delaware and federal sentences.

   Harkum entered a guilty plea to a single[***8] count of his indictment on January 24, 1979. Pursuant to a written plea agreement, Harkum was sentenced to a term of incarceration of twenty years, all suspended, with five years of probation. At Harkum's sentencing hearing, a two-page psychological report, prepared by Dr. Grumpelt, was included with his plea agreement in the hearing transcript. The report noted that Harkum had been Dr. Grumpelt's patient since August 16, 1977 and that he had been diagnosed with paranoid schizophrenia. The report also stated that Harkum was "confused and had numerous loose associations" and that he required "medication to keep in touch with reality." During the hearing, Harkum also testified that he had been hospitalized for mental health treatment and under the care of a psychiatrist.

   On February 9, 1979, Cable entered a guilty plea to a single count of his indictment, also pursuant to a written plea agreement. Based on a sentence recommendation joined by the State and defense counsel, the court imposed a five-year sentence, all suspended, with credit for 349 days of pretrial [*342]detention, and four years of probation. Cable was thereafter immediately released from custody.

   Petitioner appealed[***9] to the Court of Special Appeals, alleging on direct appeal that the trial court had erred in failing to instruct the jury properly on reasonable doubt, that the trial court had erred in refusing to allow him to deliver his own closing argument, that the jury verdicts were coerced by the time limit imposed by [**680] the court on deliberations, that the burglary verdict was coerced by the court's supplemental jury instruction, that a motel registration card was improperly admitted as a business record, and that he was denied a fair and impartial trial because of the circumstances of his pretrial detention, his extradition to Maryland, and the court's refusal to grant him a continuance. n2 The Court of Special Appeals affirmed. See Wilson v. State, 44 Md. App. 318, 408 A.2d 1058 (1979). This Court denied his petition for certiorari. See Wilson v. State, 287 Md. 758 (1980). 

 n2 At the outset, we make clear that we are disturbed about the amount of time that has elapsed between Petitioner's trial and the first time that he has raised his Brady claims before any court. Although the legal and factual bases for Petitioner's Brady claims may have been available to him prior to his direct appeal in this case, the State does not argue before us, nor did the State raise the issue in the post-conviction court, that Petitioner has procedurally defaulted on his Brady claims by failing to raise them on direct appeal. See Oken v. State, 343 Md. 256, 272-73, 681 A.2d 30, 38 (1996) (holding that the right in question was subject to the procedural default standard and not the "intelligently and knowingly" standard of waiver). Since the factual record is not sufficiently developed for us to reach the issue of procedural default, and since the State did not raise it in a cross-petition, we resolve Petitioner's case on the merits.

[***10]

   On March 25, 1998, Petitioner filed this petition for post-conviction relief. On March 26, 1999, the Circuit Court granted post-conviction relief and granted a new trial on Brady grounds, that the prosecutor suppressed favorable, material evidence -- namely, plea agreements with Harkum and Cable, a psychological report detailing information about Harkum's mental state, and the identity of a potential witness to rebut Petitioner's alibi defense who had been unable to place Petitioner [*343] with his codefendants on the night before the burglary -- and ordered a new trial.

   With respect to the plea agreements, the court found that the State knowingly failed to provide full disclosure of the agreements with Cable and Harkum, that the undisclosed agreements were favorable as they would have provided grounds for impeachment, and that the suppressed agreements were material since their suppression undermined confidence in the verdict and created at least a reasonable probability of a different result. With respect to the psychological report, the court found that the prosecution either knew or should have known of Harkum's mental illness, that the evidence regarding his schizophrenia was favorable[***11] to Petitioner as it would have provided strong grounds for impeachment, and that the evidence was material because there was a reasonable probability of a different outcome if the information had been available to Petitioner. Finally, with respect to the identity of the witness, Mark Hall, the court found that the State had withheld the witness's name, that the information was favorable because the witness could support Petitioner's alibi defense, and that the witness's identity was material because there was a reasonable probability of a different result if the jury had heard his testimony. The court also found, on related grounds, that the failure to disclose the plea agreements and the identity of the alibi witness constituted prosecutorial misconduct that entitled Petitioner to a new trial.

   The State's application for leave to appeal was granted by the Court of Special Appeals, and that court reversed. With respect to the plea agreements, that court found that the jury already knew that Harkum and Cable were testifying pursuant to plea agreements and concluded, in light of the other evidence against Petitioner, that the potential impeachment value of the agreements was not material[***12] to the outcome of the trial. With respect to the psychological report, the court found that Mr. Harkum did not present any direct incriminating evidence against Petitioner and concluded, therefore, that, because none of Mr. Harkum's testimony harmed Petitioner, [*344] "whether Mr. Harkum could have been more thoroughly impeached [**681] is irrelevant." Finally, with respect to the identity of Mark Hall, the court found that, up until the time that he testified at the hearing, the State thought that Mr. Hall was going to identify, not exonerate, Petitioner and that, once he failed to do so, the witness could have been called to testify by the defense.

   We granted a writ of certiorari to consider the following questions raised in the petition:

   I. Did the lower court err in concluding that the intentional withholding by the State of certain impeachment evidence regarding the State's two accomplice witnesses, together with knowing perjury by the prosecutor and the witnesses as to the existence of such evidence, was not sufficiently material to the outcome of the case and therefore harmless error?

   II. Did the lower court err in holding that the psychiatric history of one of the State's accomplice witnesses, [***13] which history was also withheld from the Petitioner by the State, was irrelevant because the witness did not offer any direct incriminating evidence against Petitioner?

   III. Did the lower court err in its determination that the State's discovery violation concerning the identity of a prosecution witness did not proximately result in a Brady violation?

   II.

   Petitioner claims that the evidence in the record discloses that the State had written plea agreements with James Harkum and Peter Heinz Cable prior to their testimony at Petitioner's trial. Petitioner further contends that the State allowed both witnesses to mislead the jury by understating the favorable consideration in those agreements granted in exchange for their testimony and that the State compounded that deception by falsely emphasizing, in closing arguments, the credibility of the two witnesses and the lack of anything that they stood to gain by testifying against Petitioner. Petitioner [*345] argues that the combination of lack of disclosure and misleading presentation rise to the level of a violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and its progeny because[***14] Harkum and Cable were central to the State's relatively weak circumstantial case against Petitioner and the substance of their plea agreements could have cast serious doubt on their credibility.

   The State argues that the post-conviction court erred in finding that written plea agreements existed between the State and Harkum and Cable and that these witnesses lied about the existence of these agreements. As a fall-back position, the State argues that it elicited testimony at trial concerning any agreements from Harkum and Cable on direct examination. Thus, the State argues that, although disclosure might have occurred late in the case, it did occur in sufficient time to allow Wilson an opportunity effectively to cross-examine Harkum and Cable in an effort to impeach their credibility. Finally, the State maintains that any failure to provide plea agreements was not material because, considering the testimony of Harkum and Cable, both on direct and cross-examination, and considering the arguments of counsel in closing, the jury was well aware that these two witnesses were testifying pursuant to a deal.
 
   III.

   The Supreme Court made clear in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963),[***15] that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215. In order to establish a Brady violation, Petitioner must establish "(1) that the prosecutor suppressed or withheld evidence that is (2) favorable to the defense -- either because it [**682] is exculpatory, provides a basis for mitigation of sentence, or because it provides grounds for impeaching a witness -- and (3) that the suppressed evidence is material." Ware v. State, 348 Md. 19, 38, 702 A.2d 699, 708 [*346](1997). Evidence that is obviously favorable must be disclosed even absent a specific request by the defendant. See Maryland Rule 4-263(a); United States v. Agurs, 427 U.S. 97, 110-11, 96 S. Ct. 2392, 2401, 49 L. Ed. 2d 342 (1976).

   Impeachment evidence, as well as exculpatory evidence, is "evidence favorable to an accused." United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 3380, 87 L. Ed. 2d 481 (1985). See Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104 (1972)[***16] ; United States v. Kelly, 35 F.3d 929, 936 (4th Cir. 1994); United States v. Shaffer, 789 F.2d 682, 689 (9th Cir. 1986); Ware, 348 Md. at 40-41, 702 A.2d at 709-10; Chavis v. North Carolina, 637 F.2d 213, 223 & n.14 (4th Cir. 1980); United States v. Sutton, 542 F.2d 1239, 1241-42 (4th Cir. 1976); Jimenez v. State, 112 Nev. 610, 918 P.2d 687, 694 (Nev. 1996); cf.  Napue v. United States, 360 U.S. 264, 269, 79 S. Ct. 1173, 1177, 3 L. Ed. 2d 1217 (1959) (holding that the prohibition against the use of false testimony applies even when the evidence goes only to the credibility of the witness because the jury's assessment of credibility can be determinative of guilt or innocence).

   The failure to disclose evidence relating to any understanding or agreement with a key witness as to a future prosecution, in particular, violates due process, because such evidence is relevant to witness's credibility. See Giglio, 405 U.S. at 154-55, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104. The Supreme Court explained in Giglio that, when the government depends almost entirely[***17] on the testimony of a key witness to establish its prima facie case and the witness's credibility, therefore, is an important issue, "evidence of any understanding or agreement as to a future prosecution would be relevant to his credibility . . . ." See id (emphasis added). This Court underscored the same point in Ware when we concluded that "the prosecutor's duty to disclose applies to any understanding or agreement between the witness and the State." Ware, 348 Md. at 41, 702 A.2d at 710 (emphasis in original).

   The standard for measuring the materiality of the undisclosed evidence is strictest if it "demonstrates that the [*347] prosecution's case includes perjured testimony and that the prosecution knew, or should have known, of the perjury." Agurs, 427 U.S. at 103, 96 S. Ct. 2392, 2397, 49 L. Ed. 2d 342. In Agurs, the Supreme Court explained that "a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." Id. See Napue, 360 U.S. at 272, 79 S. Ct. 1173, 1179, 3 L. Ed. 2d 1217.[***18] In cases where there is no false testimony but the prosecution nonetheless fails to disclose favorable evidence, the standard for materiality, in the language of the Supreme Court, is whether "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Bagley, 473 U.S. at 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481. See Kyles v. Whitley, 514 U.S. 419, 434, 115 S. Ct. 1555, 1566, 131 L. Ed. 2d 490 (1995); see also Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). n3 Materiality is assessed by considering all of the suppressed evidence collectively. [**683] See Kyles, 514 U.S. at 436, 115 S. Ct. at 1567, 131 L. Ed. 2d 490. The question, therefore, "is not whether the State would have had a case to go to the jury if it had disclosed the favorable evidence, but whether we can be confident that the jury's verdict would have been the same," id. at 453, 115 S. Ct. at 1575, 131 L. Ed. 2d 490, which is determined[***19] in reference to the sum of the evidence and its significance for the prosecution. See id.

n3 This Court has interpreted the reasonable probability standard from Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), to mean a "substantial possibility that . . . the result of [the] trial would have been any different." State v. Thomas, 325 Md. 160, 190, 599 A.2d 1171, 1185 (1992). See id. at 190 n.8, 599 A.2d at 1185 n.8; Bowers v. State, 320 Md. 416, 426-27, 578 A.2d 734, 739 (1990).

 
A. Suppression of Evidence by the State

   As indicated above, the State argues that it had no written plea agreements with Harkum and Cable prior to their testimony [*348] at Petitioner's trial. It also argues, in the alternative, that any agreements that had been reached between the State and its star witnesses were portrayed accurately in their testimony and by the prosecutor in closing arguments.

   This Court will not disturb the[***20] factual findings of the post-conviction court unless they are clearly erroneous. See Oken v. State, 343 Md. 256, 299, 681 A.2d 30, 51 (1996); Gilliam v. State, 331 Md. 651, 672, 629 A.2d 685, 696 (1993). The post-conviction hearing judge found as a fact that "the prosecution arranged written plea agreements with both Cable and Harkum prior to the Petitioner's trial." As the post-conviction judge pointed out, both Harkum and Cable made reference in their trial testimony to the existence of plea agreements; moreover, Cable testified that he had received a copy of a written plea agreement. In addition, after the conclusion of Petitioner's trial, both Harkum and Cable pleaded guilty and each was given a sentence, based on a joint recommendation by the State and defense, that was more favorable than that described at trial. The hearing judge's findings were not clearly erroneous.

   The actual terms of the plea agreements were never disclosed to Petitioner by the State either before or during the trial. Therefore, this evidence was "suppressed" within the meaning of Brady.
 
B. Favorable to the Accused
 
Clearly, the existence of any plea[***21] agreements between the State and the two key codefendant witnesses would have been favorable impeachment evidence for Petitioner. The more precise question in this case, however, is whether, in a situation where the witnesses have disclosed the existence of some form of agreement, but the specific terms of the agreement are unknown, and where the prosecution has failed to disclose the written agreements to the defense, or the accurate terms of the agreements, the agreements themselves constitute withheld favorable evidence, particularly in conjunction [*349] with their misleading characterizations by the witnesses and the prosecutor in closing arguments.

   Under the facts of this case, it is hard to imagine how the written plea agreements would not have been favorable to Petitioner. First, while Petitioner's trial counsel was able to elicit some information about the agreements from the witnesses on the stand, he could not effectively challenge their testimony regarding the content of those agreements, much less impeach their credibility, without a copy of the written agreements. Second, as subsequent events indicated, the disclosure of the plea agreements by the witnesses on the stand was[***22] not entirely accurate, and that inaccuracy was compounded by the State's characterization of the agreements and the witnesses's motives to testify in closing arguments.

   The difference between the terms of the plea agreements as represented at Petitioner's trial and their terms as actually implemented was significant. With respect to both Harkum and Cable, the jury was led to believe that the witnesses would be incarcerated for their respective roles in the robbery when, in fact, both men's sentences were suspended just after the conclusion of Petitioner's trial, upon the [**684] recommendation of the State. The specific terms of the written plea agreements were, therefore, favorable to Petitioner.

   In United States v. Shaffer, 789 F.2d 682 (9th Cir. 1986), in response to specific and general discovery requests regarding promises that the government had made to an unindicted coconspirator, the prosecutor disclosed the coconspirator's grand jury testimony and a copy of his immunity agreement to the defense, but failed to disclose the full extent of the coconspirator's cooperation as a government informant and the compensation for his services. The United States Court of Appeals[***23] for the Ninth Circuit rejected the government's argument that its disclosure was sufficient, explaining that the extent of the witness' cooperation with the government was, by itself, favorable to the defendant's impeachment strategy and should have been disclosed. See Schaffer, 789 F.2d at 689 & n.7.[*350]

   Furthermore, this Court has held, in the context of the right to cross-examination guaranteed by the Confrontation Clause of the Sixth Amendment of the United States Constitution and Article 21 of the Maryland Declaration of Rights, that "where a witness has a 'deal' with the State, the jury is entitled to know the terms of the agreement and to assess whether the 'deal' would reasonably tend to indicate that his testimony has been influenced by bias or motive to testify falsely." Marshall v. State, 346 Md. 186, 197-98, 695 A.2d 184, 189-90 (1997).

    The State argues that, even if there was some promise of leniency for Harkum and Cable prior to their testimony, the agreements were not finalized and that fuller disclosure, therefore, would not have been possible. Even assuming, arguendo, that the terms of the plea agreements between the State and Harkum [***24]and Cable were not finalized at the time of their testimony, that does not alleviate the State's obligation to disclose the material evidence. In fact, a tentative plea bargain can be even more probative of a witness's motivations in testifying than a finalized one because it may be more likely that the witness will perceive that the agreement is contingent upon his or her performance on the stand. As the United States Court of Appeals for the Fourth Circuit explained in Campbell v. Reed, 594 F.2d 4 (4th Cir. 1979):

   The fact that [the witness] was not aware of the exact terms of the plea agreement only increases the significance, for purposes of assessing credibility, of his expectation of favorable treatment. . . . [A] tentative promise of leniency might be interpreted by a witness as contingent upon the nature of his testimony. Thus, there would be a greater incentive for the witness to try to make his testimony pleasing to the prosecutor. That a witness may curry favor with a prosecutor by his testimony was demonstrated when the prosecutor renegotiated a more favorable plea agreement with [the witness] after [the defendant] was convicted.
 
Id. at 7-8[***25] (internal citations omitted). See Boone v. Paderick, 541 F.2d 447, 451 (4th Cir. 1976).[*351]

   Furthermore, cross-examination of the witnesses regarding inducements to testify does not substitute for adequate disclosure. See Reutter v. Solem, 888 F.2d 578, 581 (8th Cir. 1989); Sutton, 542 F.2d at 1243; Boone, 541 F.2d at 451 (noting that "no matter how good defense counsel's argument may have been, it was apparent to the jury that it rested upon conjecture -- a conjecture which the prosecutor disputed"); Commonwealth v. Collins, 386 Mass. 1, 434 N.E.2d 964, 971 (Mass. 1982).
 
C. Material to the Defense

   Arguably, the materiality of the withheld plea bargains in this case should be analyzed under the Napue/Agurs strict standard of materiality for perjured testimony -- namely, that a reversal of Petitioner's conviction is warranted if there is "any [**685] reasonable likelihood that the false testimony could have affected the judgment of the jury." Agurs, 427 U.S. at 103, 96 S. Ct. at 2397, 49 L. Ed. 2d 342. For example, in Jimenez, 918 P.2d at 687, the State's jailhouse[***26] informant denied having received any benefits from the State in exchange for his testimony on the stand, when, in fact, the witness was an active police informant, and the police had arranged for criminal charges against him to be dismissed. In that case, the Supreme Court of Nevada applied the strict standard of materiality, characterizing the informant's trial testimony as "at best inaccurate and at worst perjury." Id. at 694. In addition, the Massachusetts Supreme Judicial Court recently held that any time that, "'through misfeasance or nonfeasance by the prosecutor, false testimony is introduced concerning an arrangement between the witness and the prosecutor, a strict standard of materiality is applied. A conviction will be set aside if there is "any reasonable likelihood that the false testimony could have affected the judgment of the jury."'" Commonwealth v. Hill, 432 Mass. 704, 739 N.E.2d 670, 670 (Mass. 2000) (quoting Commonwealth v. Gilday, 382 Mass. 166, 415 N.E.2d 797, 803 (Mass. 1980)).

   Nonetheless, we do not need to decide whether the testimony of Harkum and Cable in this case constituted testimony [*352] that the State knew [***27]or should have known was perjured, since the undisclosed plea agreements are material to the outcome of Petitioner's case even under the Brady/Bagley materiality standard, because we are confident that, had the evidence been disclosed, there is a substantial possibility that the verdict in Petitioner's case would have been different.

   We discern several factors to which courts have looked to assess materiality for the purposes of suppressed impeachment evidence: the specificity of the defendant's request for disclosure of materials, see People v. Cwikla, 46 N.Y.2d 434, 386 N.E.2d 1070, 1074, 414 N.Y.S.2d 102 (N.Y. 1979); the closeness of the case against the defendant and the cumulative weight of the other independent evidence of guilt, see United States v. Noriega, 117 F.3d 1206, 1219 (11th Cir. 1997); United States v. Amiel, 95 F.3d 135, 145-46 (2nd Cir. 1996); United States v. Payne, 63 F.3d 1200, 1210-11 (2nd Cir. 1995); In Re  Pratt, 69 Cal. App. 4th 1294, 82 Cal. Rptr. 2d 260, 276 (Cal. App. 1999); Jimenez, 918 P.2d at 693; the centrality of the particular witness to the[***28] State's case, see Noriega, 117 F.3d at 1219-20; Payne, 63 F.3d at 1210; Reutter, 888 F.2d at 581; Ware, 348 Md. at 51-52, 702 A.2d at 714-15; Collins, 434 N.E.2d at 969 n.10; Jimenez, 918 P.2d at 695; the significance of the inducement to testify, see Ware, 348 Md. at 51-52, 702 A.2d at 714; whether and to what extent the witness's credibility is already in question, see Noriega, 117 F.3d at 1219; Payne, 63 F.3d at 1210; and the prosecutorial emphasis on the witness's credibility in closing arguments, see Reutter, 888 F.2d at 582; Pratt, 82 Cal. Rptr. at 277; Ware, 348 Md. at 53-54, 702 A.2d at 715-16; Cwikla, 386 N.E.2d at 1074.

   Applying these factors, we conclude that, had the plea agreements between the State and Harkum and Cable been disclosed to Petitioner prior to his trial, there is a substantial possibility that the outcome in his case would have been different such that we cannot have confidence in the verdict. Therefore, the suppressed plea agreements were[***29] material under Brady.[*353]

   First, as we indicated above, Petitioner made a specific request for the withheld materials. Second, the case against Petitioner was a close one, and the testimony of Harkum and Cable was central to the case. Cable's testimony provided the only direct link between Petitioner and the crime, and Harkum's testimony corroborated Cable. As admitted coconspirators in the robbery, Petitioner's conviction depended upon the jury believing that they were offering truthful testimony about his involvement. Petitioner was able to offer an explanation for all of the other circumstantial evidence in the case (the ballistics [**686] evidence and the motel registration) and had an alibi. The jury's assessment of the credibility of Harkum and Cable was most likely a determining factor in the guilty verdict against Petitioner. As the United States Court of Appeals for the Second Circuit explained: "In general, impeachment evidence has been found to be material where the witness at issue 'supplied the only evidence linking the defendant(s) to the crime,' . . . or where the likely impact on the witness's credibility would have undermined a critical element of the prosecution's case . . . ." [***30] Payne, 63 F.3d at 1210 (internal citations omitted). See Noriega, 117 F.3d at 1219; Jimenez, 918 P.2d at 695.
 
   Third, the suppressed plea agreements provided Harkum and Cable with a significant inducement to testify falsely. Cable, an admitted principal in the robbery, served one year in jail. Harkum was never incarcerated for his involvement. In contrast, Petitioner was sentenced to fifty years of incarceration. Had the jury known the true extent of the leniency being given to Harkum and Cable in exchange for their testimony, it might have assessed their credibility differently.

   Fourth, as we indicated above, while Petitioner's trial counsel attempted to cross-examine Harkum and Cable on the issue of their credibility, that attempt was far less effective than it would have been had he possessed the written plea agreements. Because of the suppression of this important impeachment material, neither witness's credibility was effectively in question at Petitioner's trial. [*354]

   Fifth, as we also indicated above, the State specifically emphasized the credibility of Harkum and Cable in closing arguments, misleading the jury about the[***31] potential for their imminent incarceration and stressing the total lack of motive for either to testify falsely. This is perhaps the most compelling example of the materiality of the withheld plea bargains. In closing argument, the State characterized Harkum's motive for testifying as follows:

   Mr. Harkum, for reasons best known to himself, decided to tell about it.

   You had a chance to look at Mr. Harkum, you saw him on the stand, not only one time, but in the defendant's case for a very long time. And I think you probably know why Harkum came forward. I think you know he's a nervous kind of guy, he's the kind of guy that probably couldn't hold this information inside of him for a very long period of time. . . .

   Harkum came forward, and he told it all, all that he knew to tell, as he understood it.
 
The prosecutor also argued:

   Now, let's be honest. Harkum is going to minimize, if he can, his involvement in this thing, and so is Marty Cable. They're both caught, they're both charged, they're both "in the bag", so to speak, and they're both going to go to trial. The evidence, I submit, will be sufficient to convict both of them.
 
With respect to Cable's credibility, the State[***32] argued: "I submit to you that Marty Cable's statements have been corroborated, and you can't throw it out. He has admitted his guilt. He has told you that he is going to get a jail sentence. So you can't throw his testimony out all together." Finally, in its rebuttal closing argument, the State concluded as follows:

   Counsel has taken certain shots at the State, indicating that the State has worked out some magnificent deal for Marty Cable, that the State has paid Marty Cable off.

   Well, ladies and gentlemen, Marty Cable has not even been convicted yet. His arrangement was that if he were to [*355] testify and assist the State, then the State would agree to a five-year sentence. He has already served approximately a year of that. And if he's fortunate enough to be paroled, then that's his good fortune. He has come forward, as has Mr. Harkum.

   [**687] As we stated previously in Ware, "the 'likely damage' of the State's suppression of evidence in this case 'is best understood by taking the word of the prosecutor . . . during closing argument.'" Ware, 348 Md. at 53, 702 A.2d at 715 (citations omitted). Given that the State went out of its way, in closing argument, to use the mischaracterization[***33] of the plea agreements as a specific argument in favor of the credibility of its key witnesses and to rebut Petitioner's attempts to impeach them, it seems disingenuous, at this point, for the State to assert that, had the jury known the truth about the plea agreements, it would not have decided Petitioner's case differently.

   This case is strikingly similar to Collins, 434 N.E.2d at 964. In that case, the Commonwealth of Massachusetts suppressed evidence of an arrangement that it had with the key witness against the defendant at trial, the witness denied that his testimony against the defendant was given in exchange for leniency although he admitted that he hoped to receive lighter treatment, and the prosecutor, in closing argument, stressed that the witness was going to receive ample punishment for his involvement in the crime just like the defendant. See id. at 966-67. The Massachusetts Supreme Judicial Court concluded that the Commonwealth's failure to disclose the plea agreement and the prosecutor's misrepresentations in closing arguments each individually warranted a reversal of the defendant's conviction. See id. at 970-71. The court concluded:

   The[***34] prosecutor must have been able to assess the impact on the jury of knowledge of [the witness's] chances after the defendant's trial. His closing remarks give the appearance of careful construction intended to impart a very definite meaning. . . . The image of [the witness] he chose to present to them was not that of a man who had made some arrangements with the authorities to ensure a lesser punishment. [*356] Rather, he presented a man who, solely out of principle, had chosen to testify to a series of events which would land him in prison for the rest of his life. In this light, [the witness's] testimony could be cloaked in an aura of credibility in the past attributed to dying declarations.
 
Id. at 972 (internal citations omitted). The conclusion seems equally suited to this case.

   In failing to disclose the plea agreements that it had with Harkum and Cable, particularly in conjunction with the false testimony that they offered and the misleading closing arguments by the prosecutor, the State did not fulfill its constitutionally mandated obligations under Brady and its progeny to disclose to Petitioner any favorable evidence material to his defense. The constitutional [***35]error here was the State's failure to assist the defense by disclosing information that might have been helpful in conducting cross-examination, which deprived Petitioner of a fair trial. See Bagley, 473 U.S. at 678, 105 S. Ct. at 3381, 87 L. Ed. 2d 481. n4

n4 As the State's failure to disclose the plea agreements by itself warrants a reversal of Petitioner's conviction, we do not reach the issue of whether it also violated Brady by failing to disclose the psychological report regarding Harkum or the identity of Mark Hall as a potential rebuttal witness.

 
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY RESPONDENT. 

Kagle v. Johnson 
Pet. Docket No. 572, September Term, 2000
 
COURT OF APPEALS OF MARYLAND
 
363 Md. 206; 768 A.2d 55; 2001 Md. LEXIS 289

 March  9, 2001, Decided

NOTICE: 

 [*1]  DECISION WITHOUT PUBLISHED OPINION 

PRIOR HISTORY: (No. C-2000-630510V, Circuit Court for  Anne Arundel  County).

OPINION: Petition for Writ of Certiorari denied. 

Rudolph, Jonathan O'Connor v. State 
Pet. Docket No. 472, September Term, 2000
 
COURT OF APPEALS OF MARYLAND
 
363 Md. 205; 768 A.2d 54; 2001 Md. LEXIS 259

 March  7, 2001, Decided

NOTICE: 

 [*1]  DECISION WITHOUT PUBLISHED OPINION 

PRIOR HISTORY: (No. K-2000-0840, Circuit Court for  Anne Arundel  County).

OPINION: Petition for Writ of Certiorari dismissed. 

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. JOHN L. CLARK,JR 
Misc. Docket AG No. 19, September Term, 2000
 
COURT OF APPEALS OF MARYLAND
 
363 Md. 169; 767 A.2d 865; 2001 Md. LEXIS 88

 March  6, 2001, Filed

   PRIOR HISTORY: [***1] Circuit Court for  Anne Arundel  County. Case # C-2000-65098. Pamela L. North, JUDGE.

DISPOSITION: IT IS SO ORDERED. RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT INCLUDING COSTS OF ALL TRANSCRIPTS, PURSUANT TO MARYLAND RULE 16-715(c), FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION OF MARYLAND AGAINST JOHN L. CLARK, JR. 
CASE SUMMARY 

PROCEDURAL POSTURE:  In a disciplinary proceeding arising out of respondent attorney's repeated failures to pay state income withholding taxes, petitioner Maryland Attorney Grievance Commission excepted to hearing judge's determination that respondent's conduct did not violate an attorney's fiduciary duties or prejudice the administration of justice.

OVERVIEW:  For almost a decade, respondent attorney repeatedly fell behind in remitting amounts that should have been withheld for Maryland income tax. Petitioner grievance commission commenced disciplinary proceedings, arguing that failure to remit money that belonged to the state violated Md. R. Prof. Conduct 1.15, normally applicable to client trust accounts. The court agreed that the rule also governed amounts held in trust for other persons, including the state. The court also agreed with petitioner that in addition to being a criminal act, respondent's conduct was prejudicial to the administration of justice in violation of Md. R. Prof. Conduct 8.4(d), because public perceptions were likely to be affected by observing an officer of the court flouting the law. Because of mitigating factors, including payment of all amounts due and institution of procedures to prevent recurrence, the court suspended respondent indefinitely with an immediate right to apply for reinstatement.

OUTCOME:  The court sustained petitioner's exceptions, finding that respondent had committed all violations alleged, because failure to pay money owed to the state breached his fiduciary duties and undermined confidence in the profession. Because of many mitigating factors, the court imposed indefinite suspension with immediate right to seek reinstatement.
 
CORE TERMS:  withheld, withholding tax, exceeding, income tax withholding, withholding, willfully, third person, withhold, unpaid tax, income tax, imprisonment, prejudicial, misdemeanor, remit, wage, fine, Maryland Rules of Professional Conduct, Maryland Rules, clear and convincing evidence, tax year, outstanding, mitigating, income tax withheld, conclusions of law, failure to file, taxes withheld, plus interest, certificate, delinquent, promptly

CORE CONCEPTS -  

Legal Ethics: Sanctions: Disciplinary Proceedings
See Md. R. Cts., Judges, & Atty's 16-709(a).

Legal Ethics: Client Relations: Client Funds
See Md. R. Prof. Conduct 1.15.

Legal Ethics: Client Relations: Moral Accountability
See Md. R. Prof. Conduct 8.4.

Legal Ethics: Sanctions: Disciplinary Proceedings: Hearings
See Md. R. Cts., Judges, & Atty's 16-709(b).

Legal Ethics: Sanctions: Disciplinary Proceedings
See Md. R. Cts., Judges, & Atty's 16-711(a).

Tax Law: State & Local Tax: Income Tax: Individuals, Estates & Trusts
Tax Law: State & Local Tax: Administration & Procedure
See Md. Code Ann., Tax-Gen. § 10-906 (1988, 1997, 2000 Supp.).

Tax Law: State & Local Tax: Income Tax: Individuals, Estates & Trusts
Tax Law: State & Local Tax: Administration & Procedure
See Md. Code Ann., Tax-Gen. § 10-817 (1988, 1997, 2000 Supp.).

Tax Law: State & Local Tax: Income Tax: Individuals, Estates & Trusts
Tax Law: State & Local Tax: Administration & Procedure
See Md. Code Ann., Tax-Gen. § 13-1007 (1988, 1997, 2000 Supp.).

Tax Law: State & Local Tax: Administration & Procedure
Governments: Legislation: Construction & Interpretation
See Md. Code Ann., Tax-Gen. § 1-101(p)(2) (1988, 1997, 2000 Supp.).

Governments: Courts: Rule Interpretation & Application
See Md. R. 1-202(r).

Civil Procedure: Appeals: Standards of Review: Clearly Erroneous Review
Civil Procedure: Appeals: Standards of Review: De Novo Review
Legal Ethics: Sanctions: Disciplinary Proceedings: Appeals
As holder of original and complete jurisdiction over attorney disciplinary proceedings, the ultimate decision as to whether a lawyer has violated professional rules rests with the Court of Appeals of Maryland. Md. R. Cts., Judges, & Atty's 16-709(b). Under an independent review of the record, the court determines whether the findings of the hearing judge are based on clear and convincing evidence. The hearing court's findings of fact are prima facie correct and will not be disturbed unless they are shown to be clearly erroneous. The conclusions of law are reviewed de novo.

Legal Ethics: Sanctions: Disciplinary Proceedings
Governments: Courts: Rule Interpretation & Application
See Md. R. Cts., Judges, & Atty's 16-812.

Legal Ethics: Client Relations: Moral Accountability
A lawyer should hold property of others with the care required of a professional fiduciary.

Legal Ethics: Client Relations: Moral Accountability
Md. R. Prof. Conduct 1.15(b) refers generally to a lawyer's duty to act with the care of a professional fiduciary for any property held by an attorney on behalf of third persons. A lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's business and personal affairs. As an officer of the court, the lawyer is a public servant; and as a public servant, the lawyer has a special responsibility to act in the public interest.

Legal Ethics: Client Relations: Moral Accountability
The standard for reviewing a violation of Md. R. Prof. Conduct 8.4(d) is not whether the attorney's post-event conduct is prejudicial to the administration of justice, but rather, whether the conduct that forms the basis of the grievance commission's charge was prejudicial to the administration of justice.

Legal Ethics: Client Relations: Moral Accountability
By willfully failing to file his tax returns, a lawyer appears to the public to be placing himself above the law, and public confidence in the legal profession is a critical facet to the proper administration of justice.

Legal Ethics: Sanctions: Determinations
The purpose of disciplinary sanctions is to protect the public, to deter other lawyers from engaging in violations of the Maryland Rules of Professional Conduct, and to maintain the integrity of the legal profession. The public is protected when sanctions are imposed that are commensurate with the nature and gravity of the violations and the intent with which they were committed. Therefore, the appropriate sanction depends upon the facts and circumstances of each particular case, including consideration of any mitigating factors.

COUNSEL: ARGUED BY: Melvin Hirshman, Bar Counsel and Gail D. Kessler, Assistant Bar Counsel for the Attorney Grievance Commission of Maryland, FOR Petitioner.
 
ARGUED BY: John L. Clark, Jr., of Columbia, Md., FOR Respondent.

JUDGES: ARGUED BEFORE: Bell, C.J., Eldridge, Raker, Wilner, Cathell, Harrell and Battaglia, JJ. Opinion by Battaglia, J.

OPINIONBY: Battaglia

OPINION: [*172] [**867]
 
Opinion by Battaglia, J.

 
   Bar Counsel, on behalf of the Attorney Grievance Commission (AGC) and at the direction of the Review Board, filed a petition with this Court for disciplinary action against John L. Clark, Jr., Esquire, n1 pursuant to Maryland Rule 16-709(a). n2 In the petition, Bar Counsel alleged that respondent violated Rules 1.15(a) and (b), 8.4(a), (b), (c), and (d) of the Maryland Rules of Professional Conduct (MRPC) n3 by failing to file his [*173] Maryland income tax returns in a timely manner, if at all, failing to pay trust fund income taxes withheld from his employees' wages and by failing to maintain a separate ledger account for withholding tax monies. This Court referred the matter to Judge Pamela L. North of the Circuit Court for Anne Arundel County to conduct [***2]an evidentiary hearing and make findings of fact and conclusions of law in accordance with Maryland Rules 16-709(b) n4 and 16-711(a). n5 After an evidentiary hearing, Judge North found, by clear and convincing evidence, that respondent violated MRPC 8.4(a), (b) and (c). The petitioner filed exceptions to Judge [**868] North's conclusions that respondent did not violate Rule 1.15(b) and Rule 8.4(d). Respondent did not take any exceptions. We sustain petitioner's exceptions and hold that respondent violated Rules 1.15(b), 8.4(a),(b),(c) and (d). In light of the mitigating factors present in this case, we shall suspend the respondent indefinitely [*174] with an immediate right to reapply, subject to the conditions discussed herein.

n1 Respondent was admitted to the Bar of this Court on May 21, 1981 and to the Bar of the District of Columbia in 1983. He currently maintains an office for the practice of law in Howard County, Maryland. 

n2 Rule 16-709(a) states that: "charges against an attorney shall be filed by the Bar Counsel acting at the direction of the Review Board." 

n3 Rule 1.15 states in relevant part:

   (a) A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. Funds shall be kept in a separate account maintained pursuant to Title 16, Chapter 600 of the Maryland Rules. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and of other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.

   (b) Upon receiving funds or other property in which a client or a third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third party is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.

    Rule 8.4 states, in pertinent part:

   It is professional misconduct for a lawyer to:

   (a) violate or attempt to violate the rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

   (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects;

   (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

   (d) engage in conduct that is prejudicial to the administration of justice.

[***3] 

n4 Rule 16-709(b) states that "the Court of Appeals by order may direct that the charges be transmitted to and heard in any court and shall designate the judge or judges to hear the charges and the clerk responsible for maintaining the record in the proceeding." 

n5 Rule 16-711(a) states that a "written statement of the findings of facts and conclusions of law shall be filed in the record of the proceedings and copies sent to all parties."

   I. Facts
 
This disciplinary action arose from respondent's failure to comply with the income tax withholding requirements under Maryland law. Respondent employed Lola Robinson Ford as his secretary from June or July of 1991 to February 2000. n6 As an employer, respondent was required to withhold income taxes from his employees' salaries pursuant to § 10-906(a) of the Tax-General Article. n7 The respondent was required to maintain a separate account for the withholdings and hold them in trust for the State. n8 The respondent was also required to keep a ledger clearly showing the amount of tax withheld and indicating that it was the property of the[***4] State. n9

n6 Ford was Respondent's only employee, although Respondent testified that he treated himself as an employee. 

n7 MD CODE. (1988, 1997 Repl. Vol., 2000 Supp.) § 10-906 of the Tax-General Article states:
 
   (a) Required: Except as provided in § 10-907 of this subtitle, each employer or payor shall:

   (1) withhold the income tax required to be withheld under § 10-908 of this subtitle; and
 
(2) pay to the Comptroller the income tax withheld for a period with the withholding return that covers the period.

   (b) Tax withheld deemed held in trust. - Any income tax withheld is deemed to be held in trust for the State by the employer or payor who withholds the tax.

   (c) Separate account required. - An employer or payor who withholds income tax shall keep a separate ledger account for withholdings that indicates clearly:

   (1) the amount of income tax withheld; and
 
(2) that the income tax withheld is the property of the State 

n8 See MD. TAX GENERAL § 10-906(b), supra note 7. 

n9 See MD. TAX GENERAL § 10-906(c), supra note 7.

[***5]

   In 1990, the Comptroller of the Treasury of the State of Maryland opened an employer's withholding tax account for respondent in the name of "Clark & Clark, P.A." effective December 21, 1989. The respondent's withholding account was placed on a monthly filing and a quarterly payment [*175] schedule for state income tax withheld from his employees' wages. Due to respondent's failure to file the required monthly withholding tax returns and to make quarterly payments, the Comptroller filed a Notice of Lien of Judgment for Unpaid Tax in the amount of $3,577.95 against Clark & Clark, P.A. in the Circuit Court for Howard County on January 14, 1993. n10 In a Notice of Intent to Assess dated March 25, 1994, the Comptroller warned the respondent that unless he reported the actual amounts of delinquent tax he owed from September 1992-February 1994 within 10 days of the Notice, the amount would be estimated and he would be held responsible. Respondent did not supply the actual figures.

n10 The amount of the unpaid tax was $2,744.57, plus interest of $286.90 and a penalty of $546.48, for a total of $3,577.95.

[***6]
 
   Respondent personally appeared at the Comptroller's Office on June 16, 1994, and paid $4,200 toward his outstanding balance, eliminating his tax liability (including interest and penalties) for 1991 and part of 1992. Respondent was credited $116.74, but was also notified that he was still delinquent for the period of September 1992-April 1994.

   On July 18, 1994, respondent again appeared in person to file his delinquent returns for the September 1992-May 1994 period and submitted a payment in the [**869]amount of $2,217.88. This money was applied to his outstanding tax debt (exclusive of penalties) from his September 1992, December 1992, and January-May 1994 returns.

   On August 15, 1994, respondent made a payment in the amount of $3,433.45 which was applied to the tax from his January-December 1993 returns. On December 6, 1994, respondent made a payment in the amount of $400.00 which was applied to the outstanding interest and penalty for 1992 and 1993. On June 29, 1995, respondent filed his June- December 1994 and January-May 1995 withholding tax returns without making any tax payments.

   The Comptroller filed a second Notice of Lien of Judgment for unpaid tax on June 25, 1996 against[***7] Clark & Clark, P.A. in [*176] the Circuit Court for Howard County, claiming $6,990.74. n11

n11 The amount of the unpaid tax was $4,477.34, plus interest of $1,356.71 and penalties of $1,156.69, for a total of $6,990.74.

   On August 23, 1996, the Comptroller posted an MW-508 n12 for tax year 1995 with attached W-2's totaling $2,773.86 and respondent's account was charged $207.48 in order to balance his withholding tax account for 1995. Respondent did not pay the tax for the period of September-December 1995.

n12 The MW-508 is the Maryland Employer's Annual Withholding Reconciliation Report that must be filed with the Comptroller of the Treasury. See COMAR, 03.04.01.01.

   The Comptroller filed a third Notice of Lien Judgment for unpaid tax on December 23, 1996, against the respondent in the Circuit Court for Howard County claiming $7,281.74. [***8] n13

n13 The amount of the unpaid tax was $4,477.34, plus interest of $1,647.71 and penalties of $1,156.69, for a total of $7,281.74.

   In a letter dated April 1, 1997, the Comptroller requested that respondent remit his total outstanding tax debt within ten days. On April 9, 1997, respondent filed his January 1996-May 1997 returns without payment of the appropriate tax, interest, and penalty, and requested to pay the Comptroller $350.00 for the months of May through July 1997, with the balance to be paid in August 1997. The Comptroller received payments from Respondent as follows: $700 on May 1, 1997, n14 $250 on June 9, 1997, n15 and $500 on October 9, 1997. n16 The Comptroller filed a fourth Notice of Lien Judgment on August 18, 1997, against respondent in the Circuit Court for Howard County claiming a lien for delinquent and unpaid tax in the amount of $11,244.82. n17

n14 This payment was applied to the outstanding interest and penalties for tax year 1993.

[***9] 

n15 This payment was applied to the outstanding interest for tax year 1993 and penalties for tax year 1994. 

n16 This payment was applied to the outstanding interest and penalties for tax year 1994. 

n17 The amount of unpaid tax was $8,077.25, plus interest in the amount of $1,954.92 and penalties of $1,212.65 for a total of $11,244.82.

[*177]

   On August 4, 1998, the Comptroller received from the respondent a payment in the amount of $325.96, which was applied to penalties for 1994.

   On January 28, 1999, respondent filed his April 1997 though December 1998 returns without payment of the appropriate taxes, interest, or penalties.

   The Comptroller's Office established an eighteen-month payment plan with the respondent to pay his balance of $12,410.85 on February 10, 1999. The agreement stipulated that respondent would make payments of $700.00 on the 15th of each month beginning on March 15, 1999 and would remain current on all future returns. Respondent made the first payment under the plan on March 11, 1999, but did not make the second payment which was due April 15, 1999. Since March [***10]11,1999, respondent has made the following payments [**870] to the Comptroller: $1400 on May 11, 1999; $700 on June 18, 1999; $700 on July 30, 1999; and $700 on August 19, 1999.

   In December 1999, the Comptroller's Office informed respondent that the payment arrangement was in default and that, therefore, the total withholding tax balance was due. Respondent paid $3,600 prior to the Inquiry Panel hearing on January 20, 2000 and $3,000 in August 2000, prior to the hearing before Judge North. According to the representations made by respondent, the remaining delinquent balance of $5,800 was paid by the time petitioner and respondent appeared before this Court on February 2, 2001.

   In testimony before both the Inquiry Panel and Judge North, the respondent admitted that he knew he had a statutory duty to withhold taxes, accurately document his withholdings, and file and pay employee withholdings to the State. Respondent acknowledged that the W-2 forms he provided his employee indicated that money had been withheld for taxes, when in fact, the money had not been withheld for the sole purpose of remittance to the State. Respondent stated that his conduct was the result of both his lack of[***11] [*178] money and his inability to effectively manage money. n18 Respondent admitted to the allegations contained in the Attorney Grievance Commission's Petition for Disciplinary Action but denied that his actions violated MRPC 1.15 and 8.4.

n18 Respondent also testified that he was owed a substantial amount of money by his clients.

   II. Findings of Fact and Conclusions of Law
 
Judge North found that the petitioner had shown, by clear and convincing evidence, that respondent violated §§ 10-906(a)-(c), n19 10-817, n20 and 13-1007 n21 of the [**871] Maryland Tax-General [*179] Article. Respondent had filed Maryland withholding tax returns late or not at all and had failed to pay trust fund income taxes that he claimed were withheld from his employees' wages since January 1993. These facts are uncontested. The only factual finding requiring specific mention is Judge North's finding that while certain tax forms indicated that the respondent had withheld money, he never actually withheld money. Petitioner excepts to this finding.

n19 See MD. TAX-GENERAL § 10-906 supra note 7. 

[***12] 

n20 MD. TAX-GENERAL § 10-817 states, "A person required to withhold income tax under § 10-906 of this title shall file an income tax withholding return."

n21 MD. TAX-GENERAL § 13-1007 provides penalties for the following violations:

   (a) Willful failure to file income tax withholding return. -- A person who is required to file an income tax withholding return and who willfully fails to file the return as required under Title 10 of this article is guilty of a misdemeanor and, on conviction, is subject to a fine not exceeding $5,000 or imprisonment not exceeding 5 years or both. (b) Willful failure to withhold income tax. -- A person who is required to withhold income tax and who willfully fails to withhold the tax as required under Title 10 of this article is guilty of a misdemeanor and, on conviction, is subject to a fine not exceeding $5,000 or imprisonment not exceeding 5 years or both. (c) Willful failure to pay income tax withheld. -- A person who is required to pay over income tax and who willfully fails to pay over the tax as required under Title 10 of this article is guilty of a misdemeanor and, on conviction, is subject to a fine not exceeding $5,000 or imprisonment not exceeding 5 years or both. (d) Willful failure to provide copies of withholding tax statement or willfully providing false income tax withholding statement. -- A person who is required to provide an income tax withholding statement under Title 10 of this article and who willfully fails to provide an income tax withholding statement or who willfully provides a false income tax withholding statement is guilty of a misdemeanor and, on conviction, is subject to a fine not exceeding $500 or imprisonment not exceeding 6 months or both. (e) Willful failure to provide information on income tax withholding certificate or willfully filing false income tax withholding certificate. -- A person who is required to file an income tax withholding certificate, under Title 10 of this article, and who willfully fails to provide information required on the withholding certificate or who willfully files a false certificate that results in the withholding of less than the required tax is guilty of a misdemeanor and, on conviction, is subject to a fine not exceeding $500 or imprisonment not exceeding 6 months or both. (f) Failure to comply with wage lien. -- An employer who fails to pay to the Comptroller salary, wages, or other compensation for personal services subject to a wage lien as required under § 13-811 of this title is guilty of a misdemeanor and, on conviction, is subject to a fine not exceeding $500 or imprisonment not exceeding 6 months or both.

[***13]

   Judge North concluded that respondent violated Rules 8.4(a),(b), and (c). See MARYLAND RULE OF PROFESSIONAL CONDUCT 8.4, supra note 3. By failing to comply with § 13-1007 of the Tax-General Article, respondent committed a criminal act, thus violating Rule 8.4(b). By misrepresenting to the Comptroller that monies were withheld, when in fact they were not, he violated Rule 8.4(c). Having found respondent in violation of these disciplinary rules, Judge North also found respondent in violation of Rule 8.4(a). Judge North found no violation of Rule 8.4(d) because it "[could not] be said by clear and convincing evidence that Respondent's conduct taken as a whole, has been 'prejudicial to the administration of justice,'" explaining that the respondent had fully cooperated with the Attorney Grievance Commission throughout these proceedings.
 
   Judge North concluded that there was no violation of MRPC 1.15(a) because "read strictly, Rule 1.15(a) requires the lawyer to hold 'property' of 'third persons ... in connection with a representation' separately from the lawyers own property." Judge North stated that because Rule 1.15(a) specifically [*180] references an attorney's representation[***14] of a client, respondent's conduct did not seem to fall within the parameters of the Rule. With respect to Rule 1.15(b), Judge North concluded that significant statutory confusion surrounding the definition of "third person" made it impossible to find by clear and convincing evidence that respondent violated 1.15(b). The Maryland Rules of Professional Conduct do not define who is implicated by the phrase "third person," and thus, Judge North reviewed the definition of "person" under the Tax-General Article n22 and the Maryland Rules n23 to determine if the State could be considered a "third person" to whom the respondent owed a duty to deliver property. Finding conflicting definitions, Judge North concluded that respondent could not be found in violation of Rule 1.15(b).

n22 The Maryland Tax-General Article, § 1-101(p)(2) states that "'person', unless expressly provided otherwise, does not include a governmental entity or a unit or instrumentality of a governmental entity."

n23 Rule 1-202(r) defines "person" as including "any individual, general or limited partnership, joint stock company, unincorporated association or society, municipal or other corporation, incorporated association, limited liability partnership, limited liability company, the State, its agencies or political subdivision, any court, or any other governmental entity."

[***15]

   Petitioner filed exceptions to the conclusions that respondent did not violate Rule 1.15(b) or Rule 8.4(d).

   III. Standard of Review
 
As holder of original and complete jurisdiction over attorney disciplinary proceedings, the ultimate decision as to whether a lawyer has violated professional rules rests with this Court. See MD. RULE 16-709(b); see also Attorney Grievance Comm'n of Maryland v. Gavin, 350 Md. 176, 189, 711 A.2d 193, 200 (1998); Attorney Grievance Comm'n of Maryland v. Garland, 345 Md. 383, 392, 692 A.2d 465, 469 (1997) (citing Attorney Grievance Comm'n of Maryland v. Joehl, 335 Md. 83, 88, 642 A.2d 194, 196 (1994)). Under an independent review of the record, this Court determines whether the findings of the hearing judge are based on clear [*181] and convincing evidence. See Attorney Grievance Comm'n of Maryland v. Mooney, 359 Md. 56, 73, [**872] 753 A.2d 17, 26 (2000) (quoting Attorney Grievance Comm'n of Maryland v. Gavin, 350 Md. 176, 189, 711 A.2d 193, 200 (1998)). The "hearing court's findings of fact are prima facie correct and will not be disturbed unless they are shown to be clearly[***16] erroneous." Id. (citing Attorney Grievance Comm'n of Maryland v. Garland, 345 Md. 383, 392, 692 A.2d 465, 469 (1997)). The
 
conclusions of law are reviewed de novo. See Attorney Grievance Comm'n of Maryland v. Briscoe, III, 357 Md. 554, 562, 745 A.2d 1037, 1041 (2000).

   IV. Discussion
 
A. Exception Pertaining to Factual Finding
 
We sustain the petitioner's exception to Judge North's finding that respondent was guilty of the appearance of withholding which was made on certain tax forms but that no money was actually withheld. Because respondent admitted that he used monies withheld from Lola P. Ford-Robinson's salary for his own personal or business purposes, and that he used monies withheld from his salary for his own personal or business purposes, it is clearly erroneous to conclude that no money was actually withheld.

   B. Exception Pertaining to Rule 1.15(b)

   This Court has not been called upon, until now, to determine whether the acts to which the respondent admits - failing timely to file withholding tax returns and/or to remit the taxes reportedly withheld and to hold in trust those taxes - fall within Rule 1.15(b). Judge North's[***17] conclusion that respondent did not violate Rule 1.15(b) was based solely on the perceived ambiguity of the definition of "person" under that provision. If the State is a "person" to whom the respondent owed a fiduciary duty, then the respondent violated Rule 1.15(b) by failing to "promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive..." See MARYLAND RULES OF PROFESSIONAL CONDUCT 1.15(b), supra note 3. Because the [*182] Maryland Rules of Professional Conduct are set forth in the Appendix of the Maryland Rules pursuant to Rule 16-812, n24 the definition of "person," if ambiguous within the context of the MRPC Rule itself, should be construed under Maryland Rule 1-202(r). n25 The Maryland Rules define "person" to include the State, and thus, the respondent was obligated to act as a fiduciary of the State's property (the withheld taxes) under MRPC 1.15(b). n26 This outcome is consistent with the purpose for which Rule 1.15 was enacted - to ensure the safekeeping of property not belonging to the attorney which he holds in trust for another.

n24 MD. RULE 16-812 states "the Maryland Rules of Professional Conduct, as set forth in Appendix: Rules of Professional Conduct of the Maryland Rules, are hereby adopted." 

[***18] 

n25 See MD. RULE 1-202(r) supra note 23. 

n26 The Comment to Rule 1.15 states that a "lawyer should hold property of others with the care required of a professional fiduciary."

   Rule 1.15 (a) and (c) are specific to a lawyer's duties "in connection with a representation" while Rule 1.15(b) refers generally to a lawyer's duty to act with the care of a professional fiduciary for any property held by an attorney on behalf of third persons. As articulated in the preamble to the Maryland Rules, "[a] lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's business and personal affairs." See MARYLAND RULES OF PROFESSIONAL CONDUCT, Preamble. As an officer of the court, the lawyer is a public servant; and as a public servant, the lawyer has a special responsibility to act in the public interest. Applying Rule 1.15(b)
 
to the respondent's failure to file withholding tax returns and remit the taxes withheld to the State is consistent with these principles. We sustain petitioner's exception and find that respondent[***19] violated Rule 1.15(b).

   [**873] C. Exception Pertaining to Rule 8.4(d)

   Judge North's conclusion that respondent's cooperation with the Attorney Grievance Commission's investigation precluded [*183] a finding of a violation of Rule 8.4(d) is incorrect. The standard for reviewing an 8.4(d) violation is not whether the attorney's post-event conduct is prejudicial to the administration of justice, but rather, whether the conduct which forms the basis of the Attorney Grievance Commission's charge was prejudicial to the administration of justice. Clearly an attorney's lack of cooperation with the Attorney Grievance Commission could, in and of itself, be a violation of Rule 8.4(d). The obverse does not follow.

   The conduct which the Attorney Grievance Commission regarded as a violation of Rule. 8.4(d) was the respondent's failure to timely file withholding tax returns, to remit the taxes withheld and to hold the withheld taxes in trust, the very conduct which this Court has previously held to be "prejudicial to the administration of justice." See Attorney Grievance Comm'n of Maryland v Post, 350 Md. 85, 99, 710 A.2d 935, 942 (1998).

   In Attorney Grievance Commission v. Baldwin, this[***20] Court explained that:

   [An attorney's] willful failure to file withholding tax returns may seriously impair public confidence in the entire profession. . . The lawyer, after all, is intimately associated with administration of the law and should rightfully be expected to set an example in observing the law. By willfully failing to file his tax returns, a lawyer appears to the public to be placing himself above that law.
 
308 Md. 397, 407-08, 519 A.2d 1291, 1297 (1987) (citing, in part, Attorney Grievance Commission v. Walman, 280 Md. 453, 464-65, 374 A.2d 354, 361 (1977)). Public confidence in the legal profession is a critical facet to the proper administration of justice. Respondent's conduct, similar to that of Baldwin's, erodes public confidence, and thus, is prejudicial to the administration of justice. We sustain petitioner's exception and find that respondent violated Rule 8.4(d).

   V. Sanction
 
This Court is mindful that the purpose of the sanctions is to protect the public, to deter other lawyers from [*184] engaging in violations of the Maryland Rules of Professional Conduct, and to maintain the integrity of the legal profession. See Attorney Grievance Comm'n of Maryland v. Hess, 352 Md. 438, 453, 722 A.2d 905, 913 (1999)[***21] (quoting Attorney Grievance Comm'n of Maryland v. Webster, 348 Md. 662, 678, 705 A.2d 1135, 1143 (1998)). We have stated that "the public is protected when sanctions are imposed that are commensurate with the nature and gravity of the violations and the intent with which they were committed." Attorney Grievance Comm'n of Maryland v. Awuah, 346 Md. 420, 435, 697 A.2d 446, 454 (1997). Therefore, the appropriate sanction depends upon the facts and circumstances of each particular case, including consideration of any mitigating factors. See Attorney Grievance Comm'n of Maryland v. Atkinson, 357 Md. 646, 656, 745 A.2d 1086, 1092 (2000); Attorney Grievance Comm'n of Maryland v. Gavin, 350 Md. 176, 197-98, 711 A.2d 193, 204 (1998).
 
In Attorney Grievance Commission v. Post, 350 Md. at 101, 710 A.2d at 943, Chief Judge Bell, writing for the Court, addressed several mitigating factors which affected the ultimate sanction issued by this Court for an attorney's failure to file withholding income tax returns, to remit taxes withheld, and to hold withheld taxes in trust - the very charges before us today. [***22] Similar mitigating factors are present in this case as well, namely, that there had never been a finding of fraudulent intent on the part of the respondent, that the respondent, while often late, never sought to avoid his obligation to file returns or remit taxes, and finally, that, as of the time of oral argument before [**874] this Court, respondent was current on - or in this case, had completed - the payment plan with the Comptroller. While respondent's conduct consisted of inveterate violations of the Tax-General Article throughout the duration of Ford's employment, respondent did attempt to come into compliance with the withholding tax requirements on several occasions - an indication of his willingness to confront the financial and managerial problems before him. In addition to paying the Comptroller's Office the outstanding balance in its entirety, the respondent in this case has taken [*185] several additional steps to ensure that such violations will not occur again. Respondent testified before Judge North that he made arrangements with his accountant to maintain a continuous relationship by granting him authority over his accounts and monies, that he established escrow and payroll accounts[***23] and that he no longer employs persons other than himself. In light of these mitigating factors, we believe the appropriate sanction is an indefinite suspension with immediate right to reapply. Prior to reinstatement, we order respondent to provide, to the satisfaction of Bar Counsel, written documentation from the Comptroller's Office that he is in good standing with respect to his tax obligations, and written documentation demonstrating the establishment of escrow and payroll accounts and the accountant's authority to oversee those accounts.

   IT IS SO ORDERED. RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT INCLUDING COSTS OF ALL TRANSCRIPTS, PURSUANT TO MARYLAND RULE 16-715(c), FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION OF MARYLAND AGAINST JOHN L. CLARK, JR. 

Brown v. EMSA 
Pet. Docket No. 566, September Term, 2000
 
COURT OF APPEALS OF MARYLAND
 
362 Md. 624; 766 A.2d 148; 2001 Md. LEXIS 47

 February  8, 2001, Decided

NOTICE: 

  [*1]  DECISION WITHOUT PUBLISHED OPINION 

PRIOR HISTORY:  (No. C-2000-61615, Circuit Court for  Anne Arundel  County).

OPINION: Petition for Writ of Certiorari denied. 

TEMPORARY STAFFING, INC., et al. v. J.J. HAINES & COMPANY,INC., et al. 
No. 54, September Term, 2000
 
COURT OF APPEALS OF MARYLAND
 
362 Md. 388; 765 A.2d 602; 2001 Md. LEXIS 10

 January  11, 2001, Filed

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals. Case # C-98-46866 AA. Eugene M. Lerner, JUDGE.

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY VACATED, AND CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO VACATE THE DECISION OF THE WORKERS' COMPENSATION COMMISSION AND TO REMAND THE CASE TO THE WORKERS' COMPENSATION COMMISSION FOR PROCEEDINGS CONSISTENT WITH THIS OPINION; COSTS TO BE PAID BY APPELLEE. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Appellant challenged the finding of the Circuit Court for Anne Arundel County, Maryland interpreting an employment agreement between appellant and appellee in this worker's compensation matter.

OVERVIEW:  Employee was injured while at work for appellee. Employee was sent to work by appellant temporary staffing agency pursuant to an agreement between appellant, a general employer, to supply employees to appellee, as a special employer. Appellant and appellee requested that the Maryland Worker's Compensation Commission decide liability for payment to the employee. After failing to render a determination on the agreement, the commission ordered that liability should be split evenly. The trial court interpreted the contract itself and, based upon that interpretation, the trial court overturned the commission. On appeal, the court determined the commission improperly declined to consider whether there was a contract and its application to the liability of appellee and appellant. The trial court should have remanded the case to the commission to consider whether there was a contract and its effects on liability.

OUTCOME:  Judgment was vacated. The matter was remanded with instructions. Trial court should not have interpreted contract, but, rather, should have remanded to the worker's compensation commission for liability determination.

CORE TERMS:  workers' compensation, insurer, co-employer, primarily liable, temporary employees, general employer, special employer, judicial review, claimant, duty, sub judice, administer, Maryland Laws Chapter, assigned, accidental injury, excess coverage, temporary, insured, Workmen's Compensation Act, Workmen's Compensation Law, compensation awarded, accidental injuries, rights asserted, first instance, intent behind, legally bound, common law, work-related, economical, reopened

CORE CONCEPTS -  

Labor & Employment Law: Employment Relationships: Employers
A general employer is an employer who transfers an employee to another employer for a limited period. A special employer is an employer who has borrowed an employee for a limited period and has temporary responsibility and control over the employee's work. A temporary employment company is a general employer and the company to which an employee is assigned is a special employer.

Workers' Compensation & SSDI: Coverage: Actions Against Employers: Statutory Requirements
In reality, Maryland Workers' Compensation Act, 1914 Md. Laws ch. 800, protects employees, employers, and the public alike. To be sure, the act maintains a no-fault compensation system for employees and their families for work-related injuries where compensation for lost earning capacity is otherwise unavailable. At the same time, however, the act also recognizes the need to protect employers from the unpredictable nature and expense of litigation, and the public from the overwhelming tax burden of caring for the helpless human wreckage found along the trail of modern industry. In other words, the act provides employees suffering from work-related accidental injuries, regardless of fault, with a certain, efficient, and dignified form of compensation. In exchange, employees abandon common law remedies, thereby relieving employers from the vagaries of tort liability.

Workers' Compensation & SSDI: Administrative Proceedings: Judicial Review
The Maryland Workers' Compensation Act, 1914 Md. Laws ch. 800, provides for an appeal from the action of the Maryland Workers' Compensation Commission.

Workers' Compensation & SSDI: Coverage: Employment Relationships: Dual Employees 
The Maryland Worker's Compensation Commission is granted the power to initially determine whether a specific entity is an employer of an injured worker. When a possibility of dual or alternate employers exists, the commission, out of necessity, must determine the extent of each respective employer's liability. In the performance of that duty, the commission, in order to fulfill its obligation, must consider an agreement between employers.

Workers' Compensation & SSDI: Coverage: Actions Against Employers: Statutory Requirements
The Maryland Worker's Compensation Act, 1914 Md. Laws ch. 800, creates a commission to administer the law; authorizes it, for the purpose contemplated by the act, to require the attendance of witnesses and the production of books, payrolls, documents and testimony, and to apply to any judge of the Supreme Bench of Baltimore City, or of the Circuit Court of any county for a rule on any witness refusing to testify or to produce a book or paper, to show cause why he should not be committed to jail; to adopt reasonable and proper rules to govern its procedure, and provides that the commission shall not be bound by the usual common law or statutory rules of evidence, or by any technical or formal rule of procedure, but may make the investigation in such manner as in its judgment is best calculated to ascertain the substantial rights of the parties and to carry out justly the spirit of the act.

Workers' Compensation & SSDI: Coverage: Actions Against Employers: Statutory Requirements
The Maryland Worker's Compensation Law, 1914 Md. Laws ch. 800, which was passed in the exercise of the police power of Maryland, creates a commission known as the State Industrial Accident Commission to administer the provisions of the act. In the discharge of its duties and the exertion of its powers it is required to exercise judgment and discretion, and to apply the law to the facts in each particular case.

Workers' Compensation & SSDI: Coverage: Employment Relationships: Employers
Taking note of the authority granted to the Maryland Workers' Compensation Commission and the intent behind the act, an appellate court holds that the commission has the authority to, and should, interpret agreements between general employers and special employers.

Workers' Compensation & SSDI: Coverage: Employment Relationships: Employers
When all relevant employers are part of a Maryland Worker's Compensation Commission proceeding that includes the determination of liability between them for workers' compensation benefits and one of the employers alleges that there is an agreement that affected the relationship, the commission should consider whether an agreement exists and the effect of the agreement. This is in accordance with the intent of the act. If a party before the commission believes that the commission did not properly apply or interpret the agreement, the party may seek judicial review of the commission's ruling. In this manner, all issues can be finally resolved in the one proceeding, without the necessity of multiple suits.

Workers' Compensation & SSDI: Administrative Proceedings: Judicial Review
A circuit court, in the role of a reviewing court, has the authority to consider only the issues that were raised and decided before the Maryland Worker's Compensation Commission. If an issue was not properly considered by the commission then a circuit court should remand the case to the commission for its consideration.

Workers' Compensation & SSDI: Coverage: Employment Relationships: Employers
The Maryland Worker's Compensation Commission, when considering liability for employee's workers' compensation benefits between co-employers, should interpret and apply any contracts or agreements between the co-employers that validly affects their liability for the payment of such benefits to an entitled worker.

COUNSEL: ARGUED BY Howard P. Miller (Nancy J. Courson of Dirska & Levin, on brief) of Columbia, MD, FOR APPELLANTS.
 
ARGUED BY Angus R. Everton (Alan M. Carlo of Morgan, Shelsby, Carlo, Downs & Everton, P.A., on brief) of Hunt Valley, MD, FOR APPELLEES.

JUDGES: ARGUED BEFORE Bell, C. J.; Eldridge, Raker, Wilner, Cathell, Harrell, and Rodowsky, Lawrence F. (retired, specially assigned), JJ. Opinion by Cathell, J.

OPINIONBY: Cathell

OPINION: [**603] [*392] Opinion by Cathell, J.

   Filed: January 11, 2001

   Mark A. Jewell was injured on December 31, 1992, while at work at J.J. Haines & Company, Inc. (hereinafter J.J. Haines), appellee. Mr. Jewell was sent to work at J.J. Haines by Temporary Staffing, Inc. (hereinafter TSI), appellant, pursuant to an agreement between the parties whereby TSI, a general employer, was to supply employees to J.J. Haines, a special employer. n1 Mr. Jewell filed a claim form [**604] with the Maryland Workers' Compensation Commission (hereinafter Commission) on January 22, 1993. A hearing was held before the Commission on December 22, 1993 to determine the correct employer and insurer. An Order[***2] issued by the Commission on February 24, 1994 stated "that at the time of the aforesaid accidental injury, the correct employer was J.J. Haines & Co., Inc., and the correct insurer was Pennsylvania Manufacturing Indemnity." n2

n1 A general employer is an employer who transfers an employee to another employer for a limited period. A special employer is an employer who has borrowed an employee for a limited period and has temporary responsibility and control over the employee's work. Black's Law Dictionary 544 (Bryan A. Garner ed., 7th ed, West 1999). A temporary employment company is a general employer and the company to which an employee is assigned is a special employer. Whitehead v. Safway Steel Products, 304 Md. 67, 82-84, 497 A.2d 803, 811-12 (1985). 

n2 A stipulation was later entered by all parties that Pennsylvania Manufaturers Indemnity was not the proper insurer for J.J. Haines on the date of Mr. Jewell's injury. J.J. Haines was insured by Royal Insurance Co. of America and TSI was insured by Hartford Underwriters Insurance. Both insurance companies joined their respective clients in this appeal.

[***3]

   J.J. Haines filed a petition for judicial review with the Circuit Court for Anne Arundel County. By Order dated March 23, 1995, the Circuit Court reversed the decision of the Commission and ruled that J.J. Haines and TSI were co-employers in this matter. The case was remanded back to the Commission for passage of an Order conforming to the findings of the Circuit Court. On May 15, 1998, the Commission, ruling on the liability of the co-employers, without considering the agreement between J.J. Haines and TSI, ordered that [*393] both employers and their insurers were jointly liable in equal shares.

    J.J. Haines sought judicial review at the Circuit Court for Anne Arundel County. Both J.J. Haines and TSI filed a Motion for Summary Judgment. The Circuit Court granted J.J. Haines' Motion for Summary Judgment and remanded the case to the Commission for passage of an Order finding that TSI was primarily liable for payment of any award in this case and that J.J. Haines was to provide excess coverage only in the event TSI became unable to meet its obligation. TSI filed a Notice of Appeal to the Court of Special Appeals. We granted certiorari on our own motion prior to consideration by the Court[***4] of Special Appeals. TSI has presented two questions:

   1. Whether the Circuit Court for Anne Arundel County erred in its Order finding that Temporary Staffing, Inc. (TSI) and Hartford Underwriters Insurance Company are primarily liable for payment of any award in this case and that J.J. Haines & Company, Inc. (J.J. Haines) and Royal Insurance Company are to provide excess coverage only in the event that TSI and Hartford are unable to meet those obligations[?]

   2. Whether the Circuit Court for Anne Arundel County erred in finding that Mark Jewell was an employee of TSI rather than an employee of both TSI and J.J. Haines as was previously decided by the Circuit Court for Anne Arundel County[?]
 
We do not directly answer either question because the Circuit Court made factual determinations that should have been remanded to the Commission for its consideration. We shall, therefore, remand the case to the Circuit Court for Anne Arundel County with instructions for that court to remand the case to the Commission in order to allow the Commission to make a determination in compliance with this opinion. We shall, however, address the law relative to the questions presented for the guidance[***5] of the Commission upon remand.

   [*394]

   Facts

   TSI n3 sent Mr. Jewell to work at J.J. Haines. He was working at J.J. Haines when he was injured on the job. J.J. Haines had learned of the employee services provided by TSI through a sales call from representatives of TSI. The TSI representatives had also provided J.J. Haines with literature about the benefits a company [**605] could receive by using temporary employees from TSI. According to the literature, one of these benefits was that TSI would be responsible for workers' compensation insurance. n4

n3 TSI provides temporary employees to other companies.

n4 Several of the documents that TSI distributed showed that one of the benefits that employers using temporary help from TSI would receive was to not have to pay for workers' compensation insurance because TSI paid for workers' compensation insurance on all of its temporary employees.

   During the time that Mr. Jewell was working at J.J. Haines, TSI billed J.J. Haines $8.75 per hour and TSI paid Mr. Jewell $5.60[***6] per hour. n5 Mr. Jewell was injured on December 31, 1992, while working at J.J. Haines, when a tractor trailer backed into him, causing injuries to his arm, chest, and pelvis. The Commission issued an order on February 24, 1994 stating that:

n5 The additional $3.15 went toward TSI's profit and overhead. Included in that overhead was workers' compensation insurance.

   The Commission finds that as a result of the accidental injury on 12/31/92, the claimant was temporarily totally disabled from 12/31/92 to 6/10/93. The Commission finds on the issues presented that at the time of the aforesaid accidental injury, the correct employer was J. J. Haines & Co., Inc., and the correct insurer was Pennsylvania Manufacturing Indemnity and shall reserve on permanent partial disability . . . .
 
J.J. Haines and Pennsylvania Manufacturing Indemnity appealed this Order to the Circuit Court for Anne Arundel County. Before the appeal was heard by the Circuit Court, all parties to the appeal entered a stipulation stating that [***7]Pennsylvania [*395] Manufacturing Indemnity was not the proper insurer for J.J. Haines on the date of Mr. Jewell's injury. The insurer for J.J. Haines at the time of the accident was Royal Insurance Co. of America (hereinafter Royal).

   The Circuit Court for Anne Arundel County issued an Order on March 23, 1995, which reversed the decision of the Commission "insofar as the Commission finds that J.J. Haines & Company, Inc. and Pennsylvania Manufacturers Indemnity Company are the proper Employer and insurer in this matter." The Circuit Court found that TSI and J.J. Haines were co-employers in the matter and that Hartford Underwriters Insurance Company (hereinafter Hartford) was the insurer of TSI and Royal was the insurer of J.J. Haines. The case was remanded back to the Commission.

   The Commission entered an Order on April 25, 1997 that granted Mr. Jewell temporary total disability and permanent partial disability with the award to be paid equally by both employers and insurers pending a decision by the Commission on the issue of liability for payment between the respective employers and insurers. The Commission, determining that it did not have the jurisdiction to interpret the contract or[***8] agreement between TSI and J.J. Haines, issued an Order on May 15, 1998, that stated "that both employers and insurers are jointly liable in equal shares for all liability for benefits under the Workers' Compensation Act in this claim." J.J. Haines and Royal filed a petition for judicial review of the Commission's decision to the Circuit Court for Anne Arundel County.

    Prior to the hearing on the petition for judicial review, both parties filed a Motion for Summary Judgment. J.J. Haines and Royal contended in their Motion for Summary Judgment that TSI should be liable for the primary coverage for workers' compensation benefits to Mr. Jewell. In their Motion for Summary Judgment, TSI and Hartford contended that the decision of the Commission was correct and the employers and insurers should be liable in equal shares. After a hearing was held on the dual Motions for Summary Judgment, the Circuit [*396]Court for Anne Arundel County, [**606] based upon its own interpretation of the agreement between J.J. Haines and TSI, granted J.J. Haines' and Royal's Motion for Summary Judgment and signed an Order. The Order stated that the case is hereby remanded back to the Workers' Compensation Commission for passage[***9] of an Order finding that TSI and Hartford Underwriters are primarily liable for payment of any award in this case and J.J. Haines and Royal are to provide excess coverage only in the event that TSI and Hartford Underwriters become unable to meet these obligations.
 
TSI appealed. As we have indicated, we granted certiorari on our own motion prior to this case being heard by the Court of Special Appeals.

   Discussion

   We hold that the Circuit Court for Anne Arundel County erred when it interpreted the agreement between J.J. Haines and TSI instead of remanding the matter to the Commission for its consideration. In a case where the Commission is determining liability between co-employers, the Commission is authorized to, and should, interpret and apply any contract or other agreement between the co-employers that affects their liability. n6 The Circuit Court should have remanded the case so that the Commission could consider the possible application of any contracts between the co-employers when ruling on which employer and insured should be liable. n7 

n6 There is at least one case in which we have held that the Commission did not have the authority to interpret a contract. It, however, involved a fee-sharing agreement between attorneys, which is outside the scope of the Commission's powers. We said that "attorney's fee disputes often involve ethical considerations that are properly considered by a court of law and over which the Commission has no special expertise and no jurisdiction." Engel v. Ingerman, 353 Md. 43, 63, 724 A.2d 645, 655 (1999). In the case sub judice, the agreement or contract concerns the liability of co-employers to a claimant in a workers' compensation case, a matter squarely within the power and responsibility of the Commission.

[***10] 

n7 Maryland Code (1991, 1999 Repl. Vol.), section 9-104(a) of the Labor and Employment Article states:

   (a) Exemption from duty; waiver of right. -- (1) Except as otherwise provided in this title, a covered employee or an employer of a covered employee may not by agreement, rule, or regulation:

    (i) exempt the covered employee or the employer from a duty of the covered employee or the employer under this title; or
 
(ii) waive a right of the covered employee or the employer under this title.

   (2) An agreement, rule, or regulation that violates paragraph (1) of this subsection is void to the extent of the violation.
 
While co-employers may make an agreement to make one employer primarily liable, the other employer, however, remains secondarily liable in respect to the benefits due the employee. Neither employer is permitted to completely contract away its duty under the Workers' Compensation Act.

   [*397]

   A.

   The Maryland Workers' Compensation Act (hereinafter Act) was enacted by 1914 Maryland Laws Chapter 800. n8 This Court has had many opportunities to examine the intent of the Act. [***11] In Polomski v. Mayor & City Council of Baltimore, 344 Md. 70, 684 A.2d 1338 (1996), we stated that:

n8 In the original enactment, the Workers' Compensation Commission was known as the State Industrial Accident Commission. 1957 Maryland Laws Chapter 584, section 1 changed the State Industrial Accident Commission to the Workmen' Compensation Commission. This was changed by 1991 Maryland Laws Chapter 8, section 2 to the Workers' Compensation Commission.

   In reality, the Act protects employees, employers, and the public alike. To be sure, the Act maintains a no-fault compensation system for employees and their families for work-related injuries where compensation for lost earning capacity is otherwise unavailable. See Bethlehem-Sparrows Point Shipyard v. Damasiewicz, 187 Md. 474, 480, 50 A.2d 799, 802 (1947); Paul v. Glidden Co., 184 Md. 114, 119, [**607] 39 A.2d 544, 546 (1944). At the same time, however, the Act also recognizes the need to protect employers from the unpredictable [***12]nature and expense of litigation, and the public from the overwhelming tax burden of "caring for the helpless human wreckage found [along] the trail of modern industry." Liggett & Meyers Tobacco Company v. Goslin, 163 Md. 74, 80, 160 A. 804, 807 (1932); Brenner v. Brenner, 127 Md. 189, 192, 96 A. 287, 288 (1915). See Ch. 800 of the [*398] Acts of 1914; see also Belcher v. T. Rowe Price, 329 Md. 709, 736-37, 621 A.2d 872, 885-86 (1993). In other words, the Act provides employees suffering from work-related accidental injuries, regardless of fault, with a certain, efficient, and dignified form of compensation. In exchange, employees abandon common law remedies, thereby relieving employers from the vagaries of tort liability.  Belcher, 329 Md. at 736, 621 A.2d at 885 (citing 1 Arthur Larson, The Law of Workmen's Compensation, § 1.20 at 2 (1992)).
 
163 Md. at 76-77, 684 A.2d at 1341 (alteration in original); see DeBusk v. Johns Hopkins Hospital, 342 Md. 432, 437-38, 677 A.2d 73, 75-76 (1996); Honaker v. W. C. & A. N. Miller Development Co., 285 Md. 216, 222, 401 A.2d 1013, 1016 (1979); [***13] Cooper v. Wicomico County Dep't of Public Works, 278 Md. 596, 599-600, 366 A.2d 55, 58 (1976); Oxford Cabinet Co. v. Parks, 179 Md. 680, 683, 22 A.2d 481, 482 (1941).

   We have also examined the Commission and the intent behind its establishment. In Egeberg v. Maryland Steel Products Co., 190 Md. 374, 58 A.2d 684 (1948), we stated that:
 
The purpose of the Legislature in passing the Workmen's Compensation Law was to give prompt relief to injured workmen, and it created the Commission to administer the law. It provides for an appeal from the action of the Commission, but it would be against its purpose and intent to extend appeals by construction. Every express grant of power comprehends the authority necessary to execute it. When the Commission, therefore, is granted the authority to fix compensation for injuries falling under "Other Cases", supra, it necessarily possesses the power to find the fact that an injury actually exists. If there is no injury there can be no compensation awarded. The workman and the employer are protected, as either can appeal to a court, which will review the law, and if there is a mistake of law, [***14] or if the Commission has acted arbitrarily, its action will be reversed; and from the action of the lower court there is an appeal to this court.
[*399]  
Id. at 379, 58 A.2d at 685-86. As relevant to the present case, the Commission is granted the power to initially determine whether a specific entity is an employer of an injured worker. When a possibility of dual or alternate employers exists, the Commission, out of necessity, must determine the extent of each respective employer's liability. In the performance of that duty, the Commission, in order to fulfill its obligation, must consider an agreement between employers.

   In Solvuca v. Ryan & Reilly Co., 131 Md. 265, 101 A. 710 (1917), in examining the Commission, we stated that:

   The Act creates a Commission to administer the law; authorizes it, for the purpose contemplated by the Act, to require the attendance of witnesses and the production of books, payrolls, documents and testimony, and to apply to any judge of the Supreme Bench of Baltimore City, or of the Circuit Court of any county for a rule on any witness refusing to testify or to produce a book or paper, to show cause why he should not be[***15] committed to jail; to adopt reasonable and proper rules to govern its procedure, and provides that the Commission shall not be bound by the usual common law or statutory rules of evidence, or by any technical or formal rule of procedure, but may make the investigation in such manner as in its judgment [**608] is best calculated to ascertain the substantial rights of the parties and to carry out justly the spirit of the Act. . . .

   . . . .

    The Workmen's Compensation Law, which was passed in the exercise of the police power of this State, creates a commission known as the State Industrial Accident Commission to administer the provisions of the Act. In the discharge of its duties and the exertion of its powers it is required to exercise judgment and discretion, and to apply the law to the facts in each particular case . . . .
 
131 Md. at 268-84, 101 A. at 711-16 (emphasis added); see Hathcock v. Loftin, 179 Md. 676, 678, 22 A.2d 479, 480 (1941) ("Many sections of the law seem to demonstrate what is otherwise notorious, that the State Industrial Accident Commission [*400] is the body to which decision upon claims is principally committed."); Oxford Cabinet Co. v. Parks, 179 Md. 680, 683, 22 A.2d 481, 482 (1941)[***16] ("This Court should not aid in any attempt to circumvent the State Industrial Accident Commission in order to make the courts the tribunal of first instance and, if such an attempt is shown, the appeal should not be granted.")

   Under the Act, employers were provided with a system that helped them avoid costly tort litigation and insurers were provided a more definite system to enable them to conduct their business. Additionally, with the advent of the Act, the State would no longer have to be concerned with providing benefits to workers who were injured at work but then lost a subsequent lawsuit to the employer. In order to administer the Act, the Legislature established the Commission and provided it with the power to carry out the intent of the Act. The Commission's jurisdiction includes the authority to approve claims, reopen cases, make determinations on employment relationships, determine liability of employers, award lump sum payments, approve settlements, award fees for legal services, funeral expenses, and medical services.

   In the case sub judice, the employers and their insurers requested that the Commission decide which employer and insurer should be liable for payment [***17]to Mr. Jewell. J.J. Haines asserted to the Commission that there was an agreement between J.J. Haines and TSI that made TSI primarily liable for Mr. Jewell's workers' compensation benefits. Upon ruling that the employers and their insurers would share liability equally, the Commission stated that:

   The contract between the two employers in fact both expressed and implied contract conditions were argued in this case. But unfortunately I have to find on that particular point that the enforcement and interpretation of the contract is beyond our jurisdiction and I'm going to find specifically that I [do not] have jurisdiction to deal with the interpretation or the enforcement of any contractual agreement between J.J. Haines and Temporary Staffing.
[*401]  
J.J. Haines sought judicial review of the Commission's decision in the Circuit Court for Anne Arundel County. At a hearing on J.J. Haines' and TSI's Motions for Summary Judgment, TSI contended that a contract between J.J. Haines and TSI is not relevant in a workers' compensation case and that the contract should be litigated in a separate civil proceeding. n9 We do not agree with TSI's argument or with the position taken by the Commission. [***18] 

n9 TSI also made this assertion in oral arguments before this Court. In other words, rather than having the matter determined in the workers' compensation administrative proceeding, TSI would have the two employers await the final determination, including judicial review, in the compensation matter and then have the dissatisfied employer initiate new and independent litigation between the co-employers to resolve the provisions of the agreement between them. If this position were adopted, every workers' compensation dispute involving general and special employers would require two separate litigations to resolve. That position does not advocate a process that enhances judicial efficiency.

   [**609] This is a case of first impression in Maryland. Some courts of our sister states, however, have examined the issue. In Bilotta v. Labor Pool of St. Paul, Inc., 321 N.W.2d 888 (Minn. 1982), an employee of a temporary services company, Labor Pool of St. Paul, Inc., was injured while he was working for a company, [***19] Safelite Industries, Inc., to which he had been assigned. Neither employer was contesting the compensation award to the employee. Labor Pool had filed a petition to the Workers' Compensation Court of Appeals that had requested that Safelite reimburse Labor Pool for workers' compensation benefits paid by Labor Pool. The Workers' Compensation Court of Appeals denied the petition, finding that there was an agreement between the two companies that Labor Pool would be responsible for the workers' compensation insurance. The Supreme Court of Minnesota affirmed the decision of the Workers' Compensation Court of Appeals finding that such an agreement existed and was controlling over the payment of workers' compensation benefits. The Supreme Court stated:

   Labor Pool makes oral agreements to supply temporary employees to its customers. It sets the pay rate of the [*402] employees it sends out, based on the type of work to be performed, and pays the employees directly. After completing a day of work, the employee is required to return to Labor Pool and fill out tickets for his pay. Labor Pool, however, charges its customer for the services of the temporary employees at an hourly rate higher than the[***20] rate at which the employee is paid. . . .

   . . . .

   There is sufficient evidence to support the finding that Labor Pool and Safelite agreed that Labor Pool would be responsible for workers' compensation insurance and benefits. Labor Pool carried workers' compensation insurance. It represented in its brochures, and to Safelite specifically, that it would be responsible for carrying insurance. Moreover, part of the fee which Safelite paid to Labor Pool was used to pay the workers' compensation insurance premiums. In this sense, Safelite can be said to have paid for insurance through the fees it paid to Labor Pool: Safelite, in effect, bargained for both temporary employees and insurance.
 
321 N.W.2d at 889-90; see Brooks v. Standard Fire Ins. Co., 117 Idaho 1066, 1069, 793 P.2d 1238, 1241 (1990) ("We hold that the Industrial Commission had jurisdiction to hear and rule on the claim for reimbursement and contribution between sureties."); Textile Maintenance v. Industrial Commission, 263 Ill. App. 3d 866, 870, 636 N.E.2d 748, 751, 201 Ill. Dec. 316 (1994) ("The Commission has the authority and jurisdiction to determine who is legally bound[***21] to pay workers' compensation claims."); Koontz v. Pepsico, Inc., 153 Ill. App. 3d 152, 154, 505 N.E.2d 1126, 1127, 106 Ill. Dec. 335 (1987) ("A review of the Worker's Compensation Act . . . indicates that the Industrial Commission has the authority and jurisdiction to review and interpret the alleged guaranty agreement to determine who is legally bound to pay plaintiffs' worker's compensation claims."); Smith v. Kelly Labor Service, 239 So. 2d 685, 689 (La. App. 1970) (where there was an express contract between general employer and special employer whereby general employer agreed to indemnify special employer against all claims and expenses for bodily injuries asserted by employee of general [*403] employer against special employer, general employer had no right of contribution from special employer); State, Uninsured Employers' Fund, Div. of Workers' Compensation v. Hunt, 191 Mont. 514, 519, 625 P.2d 539, 542 (1981) ("[The Workers' Compensation Court] has the power to determine which of several parties is liable to pay the Workers' Compensation benefits, or if subrogation is allowable, what apportionment of liability may be made between [***22]insurers, and other matters that go beyond the minimum determination of the benefits payable to an employee."); Spivey v. Oakley's General [**610]Contractors, 32 N.C. App. 488, 491, 232 S.E.2d 454, 456 (1977) ("Jurisdiction of the Commission is not limited solely to questions arising out of an employer-employee relationship or to the determination of rights asserted by or on behalf of an injured employee."); Atlas Rock Bit Service Co. v. Henshaw , 591 P.2d 294, 295 (Okla. 1979) ("State Industrial Court has exclusive, original jurisdiction to determine claims for compensation provided under Workmen's Compensation Act . . . liability of employers and insurance carriers under those laws, and any rights asserted under those laws."); Manpower v. Lewis , 840 P.2d 1276, 1278-79 (Okla. App. 1992) ("[The Workers' Compensation Court] committed no legal or factual error in holding Manpower, Claimant's 'general' employer (in statutory parlance, Claimant's principal employer), liable for Claimant's disability resulting from accidental injuries sustained in the course of Claimant's assigned employment with OPUBCO.").

   Taking note of the authority granted[***23] to the Commission and the intent behind the Act, we hold that the Commission has the authority to, and should, interpret agreements between general employers and special employers like the one in the case sub judice. The Commission has already made determinations on: (1) the employment relationship between Mr. Jewell, J.J. Haines, and TSI, albeit without considering the agreement between J.J. Haines and TSI; (2) the compensation awarded to Mr. Jewell; and (3) and, again without reference to their agreement, the liability of each co-employer and their insurer. It is a logical conclusion to assume that when the [*404] Commission in making a determination as to liability between the employers, the Commission should consider all of the evidence, including any agreements between the employers. The Commission ruled on the liability of the parties without applying a contract that J.J. Haines contends it relied on when using temporary employees from TSI and that J.J. Haines asserts makes TSI primarily liable for all of the workers' compensation benefits due Mr. Jewell in this case.

   TSI contends that the contract should be litigated in a separate civil proceeding. This is contrary to the legislative[***24] intent of the Act. The Act was intended, in part, to make the compensation process more efficient and economical. Oxford Cabinet Co. v. Parks, 179 Md. 680, 683, 22 A.2d 481, 482 (1941) ("The purpose of the Workman's Compensation Act . . . was of course, that the administration of that law should be withdrawn as much as possible from the courts in order to save the expense and delay of litigation."); Glidden-Durkee (SCM) Corp. v. Mobay Chemical Corp., 61 Md. App. 583, 596, 487 A.2d 1196, 1202 (1985) ("This statutory scheme is consistent with the purpose of the Workmen's Compensation Act, to provide simple, speedy and economical procedures consistent with practical justice . . . ."). When all relevant employers are part of a Commission proceeding that includes the determination of liability between them for workers' compensation benefits and one of the employers alleges that there is an agreement that affected the relationship, the Commission should consider whether an agreement exists and the effect of the agreement. This is in accordance with the intent of the Act. If a party before the Commission believes that the Commission did not properly apply[***25] or interpret the agreement, the party may seek judicial review of the Commission's ruling. In this manner, all issues can be finally resolved in the one proceeding, without the necessity of multiple suits.

   B.

   A circuit court, in the role of a reviewing court, has the authority to consider only the issues that were raised [*405] and decided before the Commission. If an issue was not properly considered by the Commission then a circuit court should remand the case to the Commission for its consideration. See Pressman, Administrator [**611] of Estate of William L. Harris v. State Accident Fund, 246 Md. 406, 415, 228 A.2d 443, 449 (1967) ("The reviewing court considers and passes only on matters covered by the issues raised and decided below or on relevant matters as to which there was evidence before the Commission."); R. N. McCulloh & Co. v. Restivo, 152 Md. 60, 67, 136 A. 54, 56 (1927) ("It is not clear how the Baltimore City Court, on appeal from an order refusing to reopen a case, could not only direct the case to be reopened, but decide the very question which under the statute the commission alone had the jurisdiction to decide in the first instance, after[***26] it had been reopened."); M & G Convoy, Inc. v. Mauk, 85 Md. App. 394, 406, 584 A.2d 101, 107 (1991) ("The circuit court determined that the Commission had failed to make a finding which was a necessary prerequisite to a full review by the court. Judicial economy and efficiency dictates and demands that the case be remanded under such circumstances."); Altman v. Safeway Stores, Inc., 52 Md. App. 564, 566, 451 A.2d 156, 158 (1982) ("Generally, a circuit court, upon an appeal from the Workmen's Compensation Commission, is jurisdictionally limited to a review of the issues raised and decided by the Commission explicitly or implicitly, and to such relevant matters on which there was evidence before the Commission.").

   In the case sub judice, the Commission improperly declined to consider whether there was a contract and its application to the liability of J.J. Haines and TSI. After failing to render a determination on the agreement, the Commission ordered that liability should be split evenly. On appeal, the Circuit Court interpreted the contract itself and, based upon that interpretation, the Circuit Court overturned the Commission and ordered that[***27] TSI and Hartford be held primarily liable in this case. The Circuit Court should have remanded the case to [*406] the Commission for the Commission to consider whether there is a contract and its effects on liability. n10

n10 Our directions to remand the matter relates to the proper procedure. Our opinion should not be construed as disapproval of the trial court's interpretation of the agreement, but as disapproval of the making of any interpretation by the trial court at that stage of the proceeding.

   Conclusion

   We hold that the Commission, when considering liability for employee's workers' compensation benefits between co-employers, should interpret and apply any contracts or agreements between the co-employers that validly affects their liability for the payment of such benefits to an entitled worker. This is in accordance with the intent of the Act and the authority granted to the Commission to resolve workers' compensation cases under the Act. It is also sound judicial policy to resolve all aspects of a[***28] case within the same proceeding and not to have a separate proceeding for each aspect of a case. 

   JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY VACATED, AND CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO VACATE THE DECISION OF THE WORKERS' COMPENSATION COMMISSION AND TO REMAND THE CASE TO THE WORKERS' COMPENSATION COMMISSION FOR PROCEEDINGS CONSISTENT WITH THIS OPINION; COSTS TO BE PAID BY APPELLEE. 

Drayer v. Drayer 
Pet. Docket No. 534, September Term, 2000
 
COURT OF APPEALS OF MARYLAND
 
362 Md. 359; 762 A.2d 142; 2001 Md. LEXIS 120

 January  10, 2001, Decided

NOTICE: 

 [*1]  DECISION WITHOUT PUBLISHED OPINION 

PRIOR HISTORY: (No. C-97-34605, Circuit Court for  Anne Arundel  County).

OPINION: Petition for Writ of Certiorari denied. 

LARRY DORSEY, INDIVIDUALLY, ET AL. v. JEFFREY NOLD, D.O., ETAL. 
No. 27, September Term, 2000
 
COURT OF APPEALS OF MARYLAND
 
362 Md. 241; 765 A.2d 79; 2001 Md. LEXIS 3

 January  8, 2001, Filed

   PRIOR HISTORY:  [***1] Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County). Case No. C-9630267. Lawrence H. Rushworth, JUDGE.

DISPOSITION: JUDGMENT OF COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REVERSE JUDGMENT OF CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AND REMAND TO THAT COURT FOR NEW TRIAL; COSTS IN THIS COURT AND COURT OF SPECIAL APPEALS TO BE PAID BY RESPONDENT. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Petitioners, the parents and estate of a deceased child, appealed the judgment of the Maryland Court of Special Appeals that affirmed the judgment of the trial court, which denied petitioners the right to present testimony of a medical examiner as to cause of the child's death in their medical malpractice suit against respondent doctor.

OVERVIEW:  Petitioners, the parents and estate of a deceased child, sued respondent doctor for negligently failing to diagnose the child's cancer and take remedial action. Six days before trial, petitioners told respondent that they might call the medical examiner (M.E.) who prepared the autopsy to testify as to cause of death. The court granted respondent's motion to preclude the M.E.'s testimony, as he had not been identified as an expert witness, and his opinions had not been provided to the defense. Respondent's experts opined at trial that the child's death was due to asthma attack; petitioners were not allowed to call the M.E. in rebuttal. A jury found for respondent, petitioners appealed, and the court reversed. The trial court erred in excluding the M.E.'s testimony. Though an expert, he did not develop his opinion as to cause of death in anticipation of litigation, so his identity and opinion did not have to be disclosed under Md. R. Civ. P., Cir. Ct. 2-402 (e)(1), and the non-disclosure within the time set for disclosure of experts in a scheduling order did not violate Md. R. Civ. P., Cir. Ct. 2-421 or 2-504, or the court's scheduling order. The case was remanded for a new trial.

OUTCOME:  Judgment reversed, and case remanded for new trial. Because the medical examiner's autopsy was prepared as part of his official duties, and not in contemplation of litigation, petitioners did not violate discovery or scheduling rules in not disclosing his identity within the time limits of the rules and scheduling order regarding retained experts, and the trial court erred in denying petitioners the right to his testimony.

CORE TERMS:  discovery, scheduling, autopsy report, anticipation of litigation, deposition, thyroid, trachea, airway, expert witness, disclosure, interrogatory, asthma, breathing, tumor, compression, died, discoverable, formal discovery, respiratory, standard of care, cause of death, upper, slides, applicable standard of care, called to testify, medical examiner, intends to call, board-certified, certification, completion

CORE CONCEPTS -  

Evidence: Witnesses: Impeachment Methods
Although a physician's failure to pass a board certification examination has been held admissible when the physician testifies as an expert, as being relevant to his or her qualifications as an expert, the general rule is that a physician's inability to pass a medical board certification exam has little, if any, relevance to the issue of whether the physician complied with the standard of care required in his or her treatment of a patient.

Civil Procedure: Disclosure & Discovery
Parties in litigation are not limited in their gathering of information to formal discovery procedures but may make any lawful investigations they choose. They may, on their own, search for and obtain documents, witness statements, and all other kinds of evidence.

Civil Procedure: Disclosure & Discovery: Mandatory Disclosure
The formal discovery process applicable in the circuit courts is set forth in Md. R. Civ. P., Cir. Ct. tit. 2, ch. 400. It is a compulsory one in that it requires parties to disclose certain relevant information that they may not be willing to disclose voluntarily. The compulsion lies in the fact that failure to make adequate disclosure upon a proper request can result in a range of sanctions, including an order that precludes the party from using the information that should have been disclosed.

Civil Procedure: Disclosure & Discovery: Mandatory Disclosure
Md. R. Civ. P., Cir. Ct. 2-402(a), dealing with the scope of discovery, provides that a party may obtain discovery regarding any matter not privileged, including the identity and location of persons having knowledge of any discoverable matter, if the matter sought is relevant to the subject matter involved in the action. That is a very broad provision, the intent being to eliminate, as far as possible, a party going to trial in a confused state concerning the facts that gave rise to the litigation. It includes information that may already be known to or otherwise obtainable by the requesting party.

Civil Procedure: Discovery Methods
Discovery may take the form of interrogatories, depositions, demands for the production of documents or other tangible things, inspection of land or other property, mental or physical examinations, and requests for the admission of facts and genuineness of documents. Md. R. Civ. P., Cir. Ct. 2-401(a). There is no hierarchy among these various methods. If the party learns the identity of a witness or the existence of a document in some other manner, there is no compulsion to file interrogatories before proceeding with a deposition or demand for production.

Civil Procedure: Disclosure & Discovery: Work Product
Md. R. Civ. P., Cir. Ct. Rule 2-402(c), (d), and (e) put some limits on the scope of compulsory discovery. Md. R. Civ. P., Cir. Ct. Rule 2-402(c) begins by creating an initial shield around certain work product material that otherwise would be freely discoverable under Md. R. Civ. P., Cir. Ct. Rule 2-402(a). Subject to Md. R. Civ. P., Cir. Ct. Rule 2-402(d), (e), it permits discovery of documents or other tangible things prepared in anticipation of litigation or for trial only upon a showing that (1) the material sought is otherwise discoverable, and (2) the party seeking discovery has substantial need for the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.

Civil Procedure: Disclosure & Discovery: Work Product
Even upon a showing that showing the party seeking discovery has substantial need for the materials and is unable without undue hardship to obtain them by other means, Md. R. Civ. P., Cir. Ct. 2-402(c) requires that the court protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. Under that provision, standing alone, the opinion of an expert witness that was prepared in anticipation of litigation or for trial would ordinarily not be discoverable.

Civil Procedure: Discovery Methods: Expert Witness Discovery
Md. R. Civ. P., Cir. Ct. 2-402(d), (e) provide exceptions to the "work product" limitations of Rule 2-402(c), and allow parties to obtain certain documents or information otherwise within the constraints of Rule 2-402(c) without having to make the showing required by that section. Rule 2-402(e) deals with experts -- those expected to be called to testify at trial and those not expected to be so called. With respect to the second category -- an expert retained by a party in anticipation of litigation or for trial but not expected to be called as a witness at trial -- Rule 2-402(e)(2) provides that discovery of the identity, findings, and opinions of the expert may be obtained only if a showing of the kind required by Rule 2-402(c) is made. Thus, absent a court order to the contrary, a party is not required to disclose the identity or opinion of an expert whom the party consults or retains for purposes of the litigation but, for whatever reason, chooses not to call as a witness.

Civil Procedure: Discovery Methods: Expert Witness Discovery
Md. R. Civ. P., Cir. Ct. 2-402(e)(1), dealing with experts intended to be called as witnesses, provides that discovery of the findings and opinions of such experts, otherwise discoverable and acquired or developed in anticipation of litigation or for trial may be obtained without the showing required under Md. R. Civ. P., Cir. Ct. 2-402(c), but only as set forth in Md. R. Civ. P., Cir. Ct. 2-402(e)(1)(A), (B).

Evidence: Witnesses: Expert Testimony
Md. R. Civ. P., Cir. Ct. 2-402(e)(1)(A) states that, by interrogatory, a party may require another party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, to state the substance of the findings and the opinions to which the expert is expected to testify and a summary of the grounds for each opinion, and to produce any written report made by the expert concerning those findings and opinions. Under Md. R. Civ. P., Cir. Ct. 2-402(e)(1)(B), a party may obtain further discovery, by deposition or otherwise, of the findings and opinions to which an expert is expected to testify at trial, including any written reports made by the expert concerning those findings and opinions.

Civil Procedure: Discovery Methods: Expert Witness Discovery
Subject to any professional ethical constraints on either the lawyer or the expert, a party is permitted, through his or her own investigations independent of the formal discovery process, to discover the identity and opinion of any expert any other party has consulted, whether or not the party intends to call that expert.

Evidence: Witnesses: Expert Testimony
If a party chooses to invoke the formal discovery procedure set forth in the Md. R. Civ. P., Cir. Ct. tit. 2, ch. 400 rules, the party may not force disclosure of the findings or opinions of experts who are retained by another party in anticipation of litigation or for trial but who are not expected to be called to testify, without making the kind of showing required by Md. R. Civ. P., Cir. Ct. 2-402(c). A party is entitled to disclosure, however, without complying with Md. R. Civ. P., Cir. Ct. 2-402(c), of experts retained in anticipation of litigation or for trial who are expected to be called to testify. If, upon proper request, the party retaining such an expert fails to disclose the required information, the party is subject to the range of sanctions allowed under Md. R. Civ. P., Cir. Ct. 2-433 for discovery violations.

Civil Procedure: Discovery Methods: Expert Witness Discovery
One distinction between experts and non-experts is that, although a party is entitled under Md. R. Civ. P., Cir. Ct. 2-402(e)(1) to disclosure of the identity of experts that another party intends to call to testify -- i.e., to know specifically whom the party intends to call as expert witnesses -- a party is not ordinarily entitled, under current Maryland practice, to the same information with respect to lay witnesses. Rule 2-402(a) requires the disclosure, upon proper request, of persons having knowledge of discoverable matter, which, as a practical matter, will include persons whom a party intends to call as witnesses, but it does not require the party to separately disclose his or her list of potential non-expert witnesses.

Civil Procedure: Disclosure & Discovery: Mandatory Disclosure
Md. R. Civ. P., Cir. Ct. 2-504, dealing with pre-trial scheduling orders, impacts on the discovery process but does not directly expand or restrict the scope of it. With certain exceptions, it requires the circuit courts to enter a scheduling order in every civil action and sets forth provisions that either must or may be included in such an order. The principal function of a scheduling order is to move the case efficiently through the litigation process by setting specific dates or time limits for anticipated litigation events to occur. To that end, Rule 2-504(b)(1) requires a scheduling order to contain one or more dates by which each party shall identify each person whom the party expects to call as an expert witness at trial, including all information specified in Rule 2-402(e)(1)(A) as well as a date by which all discovery must be completed. Md. R. Civ. P., Cir. Ct. 2-504(b)(1)(B), (D).

 Civil Procedure: Discovery Methods: Expert Witness Discovery
Md. R. Civ. P., Cir. Ct. 2-504 is not a discovery rule. It is not included in the Md. R. Civ. P., Cir. Ct. tit. 2, ch. 400 rules on discovery and, except as provided in Md. R. Civ. P., Cir. Ct. 2-504(b)(2)(A), is not intended either to enlarge or constrict the scope of discovery. Its function, to the extent it references discovery in Rule 2-504(b)(1), is to provide for the setting of time limits on certain discovery events; it is, in that regard, a rule of timing, not of substance. Thus, the experts required to be identified within the time set in a scheduling order entered pursuant to Rule 2-504(b)(1)(B) are those experts required to be identified under Md. R. Civ. P., Cir. Ct. 2-402(e), and what must be disclosed within the stated time limit is the information required to be disclosed by Rule 2-402(e)(1)(A) -- the identity of the witness, the subject matter on which the witness is expected to testify, a summary of the grounds of the expert's opinion, and a copy of any written report made by the expert concerning that opinion.

Civil Procedure: Discovery Methods: Expert Witness Discovery
By referencing only Md. R. Civ. P., Cir. Ct. 2-402(e)(1)(A), Md. R. Civ. P., Cir. Ct. 2-504(b)(1)(B) anticipates that the party receiving information concerning the identity of the other parties' expert witnesses by the date set by the scheduling order will have some additional time in which to pursue the further discovery allowed under Rule 2-402(e)(1)(B) -- ordinarily a deposition of the witness. The date for the completion of that phase is the date specified in the scheduling order pursuant to Rule 2-504(b)(1)(D) -- the completion of all discovery.

Civil Procedure: Sanctions: Misconduct & Unethical Behavior
Just as there are sanctions for the violation of the discovery rules, sanctions are available for the violation of directives in scheduling orders, although they are not specified in any rule. The offense justifying such a sanction is not just the non-disclosure itself, but the non-disclosure within the time set by the court for disclosure to occur. Apart from any actual prejudice that may be suffered by the party in not receiving the information in a timely fashion, or that may be suffered by the court if trial has to be postponed, the court is demeaned by noncompliance with its order.

Evidence: Witnesses: Expert Testimony
An opinion on the medical cause of death, at least when not obvious to the average layman, is quintessentially a subject for expert opinion.

Evidence: Witnesses: Expert Testimony
If an expert opines that the available evidence leads solely to conclusion X, it is at least implicit in that opinion that the evidence does not permit conclusion Y, if conclusion Y is inconsistent with conclusion X.

Evidence: Witnesses: Expert Testimony
An expert does not necessarily create new opinions, developed or acquired in anticipation of litigation or for trial, simply by defending conclusions developed earlier for some other purpose, even if that defense takes the form of discrediting posited contrary conclusions.

Evidence: Witnesses: Expert Testimony
A medical examiner who determines the cause of death in performance of his public duty and without consulting counsel in a case does not develop his information in anticipation of litigation or for trial.

Evidence: Witnesses: Expert Testimony
Because, though an expert, a medical examiner does not acquire or develop his opinion as to the cause of death in anticipation of litigation or for trial, his identity and opinion are not required to be disclosed under Md. R. Civ. P., Cir. Ct. 2-402(e)(1), and the non-disclosure within the time set for disclosure of experts in a scheduling order does not violate Md. R. Civ. P., Cir. Ct. 2-421 or 2-504, or the scheduling order itself. No sanction, therefore, is warranted.

COUNSEL: ARGUED BY: Matt R. Ballenger (T. Christine Pham of Suder & Suder, P.A., on brief) of Baltimore, MD, FOR PETITIONERS.
 
ARGUED BY: Roy L. Mason (Kristin L. Kremer of Mason, Ketterman & Cawood, P.A., on brief) of Annapolis, MD, FOR RESPONDENTS.

JUDGES: ARGUED BEFORE: Bell, C.J.; Eldridge, * Rodowsky, Raker, Wilner, Cathell, and Harrell, JJ. Opinion by Wilner, J.

* Rodowsky, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion.

OPINIONBY: Wilner

OPINION: [**80] [*243]
 
Opinion by Wilner, J.

   This is a medical malpractice action arising out of the tragic death of 16-year-old Candace Dorsey. Believing that Candace's death was precipitated by a cancerous thyroid tumor that pressed on her trachea and constricted her breathing, Candace's parents and her estate sued respondent, Jeffrey Nold, a pediatrician who had examined Candace three days before her death, claiming that Dr. Nold was negligent in failing to diagnose the cancer, recognize[***2] the danger that it posed, and take remedial action. A jury in the Circuit Court for Anne Arundel County concluded that Dr. Nold did not breach the applicable standard of care in his treatment of Candace. n1 From the judgment entered on that verdict, petitioners appealed, complaining about three evidentiary rulings made by the trial court. The Court of Special Appeals affirmed the judgment, Dorsey v. Nold, 130 Md. App. 237, 745 A.2d 1119 (2000), and we granted certiorari to review further those three complaints. We shall reverse.

n1 Petitioners also sued the Anne Arundel Medical Center and three other physicians who worked at the Center. Those actions were dismissed during the litigation and are no longer before us.

   BACKGROUND

   In early December, 1993, Candace, who, though obese, appeared to be in good health, developed an unusual and persistent cough from deep in the chest, a cough that did not bring up any phlegm. On Saturday, December 11, her mother took her to the Anne Arundel County[***3] Pediatric Center, where she was examined by Dr. Nold. Candace was breathing normally, without difficulty, and, despite the coughing that led to the visit, neither she nor her mother reported any breathing [*244] or coughing problem. Dr. Nold did notice, however, a large thyroid goiter of approximately six centimeters, which was firm and nontender and which Candace said that she had for several years. In light of Candace's obesity, Dr. Nold thought that the goiter was likely the product of hypothyroidism. When a rapid strep test proved negative, Dr. Nold concluded that she had an upper respiratory infection -- a cold -- and a viral sore throat. He authorized a thyroid function test to check for hypothyroidism but prescribed no medication and took no other action.

   Candace returned to her normal activities for the next two days. After school on Monday, December 13, her mother took her to have the thyroid test and, because she seemed sluggish, decided to keep her home from school the next day and take her back to the doctor. Around 2:00 a.m. on the morning of December 14, Candace's mother heard what sounded like hard breathing and found Candace on the floor of her room breathing so hard that[***4] she could not speak. Paramedics were called. When they arrived, they administered oxygen and tried to question Candace, but because of her labored breathing she was unable to answer. At that point, they decided to take her to the hospital and placed her in the ambulance. With assistance, she was able to walk out of the house and get on to the stretcher. On the trip to the hospital, however, Candace went into cardiac arrest, and despite everyone's best efforts in the ambulance and later at the hospital, she could not be revived. She was pronounced dead at 3:45 a.m., December 14.

   [**81] The emergency room physician who treated Candace upon her arrival at the hospital concluded that Candace died of respiratory arrest but was unable to determine the cause of that arrest -- why, exactly, Candace was unable to breathe -- and she therefore recommended that the case be referred to the medical examiner. Dr. Theodore King, an assistant medical examiner, performed an autopsy later on December 14. In his autopsy report, he observed that Candace's upper airway was compressed and narrowed by "an extrinsic process." Specifically, he noted two discreet masses in front of the trachea, just beneath the thyroid[***5] gland. Dr. King concluded [*245] that Candace died "of asphyxia (choking) secondary to airway compression." He added that "the airway compression was caused by an infiltrating carcinoma of the thyroid which arose in the neck of the deceased and compressed her airway." Dr. King mentioned no other cause and said nothing, one way or the other, as to whether Candace suffered from asthma.

   Petitioners filed this lawsuit in July, 1996, claiming, as we said, that Dr. Nold was negligent in failing (1) to diagnose the cancer of the thyroid, (2) to diagnose and appreciate a significant tracheal obstruction, (3) to order appropriate tests, which would have shown a significant airway obstruction, and (4) to refer Candace to a specialist. In September, 1997, an amended scheduling order was entered pursuant to Maryland Rule 2-504. The order set trial for June 16, 1998 and directed that all discovery procedures be completed by April 30, 1998. It required that petitioners furnish to respondent, by October 20, 1997, "the names and addresses of all expert witnesses and such other information regarding expert witnesses as is required by [Maryland Rule 2-402(e)(1)]" and that respondent furnish similar information[***6] to petitioners by January 1, 1998. The order warned that failure to comply with its mandates "will or may lead to sanctions of one or more of the parties or their counsel including dismissal or default where applicable."

   On October 20, 1997, petitioners served on respondent their designation of expert witnesses, naming only Dr. William Brownley and Dr. Barry Singer. The only information given with respect to their expected testimony was that they would testify "regarding the allegations contained in the Complaint and that the Defendants breached acceptable standards of care in the care and treatment of [Candace] and that these breaches caused injuries and damages to Plaintiffs, as set forth in the Complaint." The response also stated that petitioners reserved the right to call "any and/or all treating health care providers, and/or other persons involved with the care and treatment of Candace Dorsey" and "to name rebuttal experts after the completion of the depositions of Defendants' experts."

   [*246]

   On December 30, 1997, respondent named his four expert witnesses -- Drs. DeVore, Tunkel, Fink, and Hutchins -- although he did not indicate the nature of their expected testimony. On April[***7] 20, petitioners filed a notice to take the depositions of those four experts, and on May 12, they sent their answers to respondent's interrogatories.

   Petitioners took the deposition of Dr. Hutchins on May 4, 1998 and, for the first time, were apprised of his opinion that the cause of Candace's death was not a cancerous thyroid tumor pressing on the trachea, as Dr. King believed, but rather an asthma attack. On June 10 -- five weeks later and only six days before trial was scheduled to begin, petitioners informed respondent that, "in light of the deposition testimony of Dr. Grover Hutchins," they "may" call Dr. King to testify at trial. The letter, which is not in the record, apparently did not indicate the nature of Dr. King's possible testimony. Inferring that Dr. King would be called as an expert witness, respondent moved, in limine, to preclude his testimony, noting that, until June 10, Dr. King had not been identified as an expert [**82] witness, that he had not been deposed, and that "his opinions, whatever they are, [had not] been provided to the defense for review and evaluation." Respondent complained that he would be prejudiced if Dr. King was allowed to testify. Accompanying[***8] that motion was another one to preclude petitioners from offering evidence that respondent, who currently was a board-certified pediatrician, did not pass the board examination on his first try, urging that such evidence would be both irrelevant and prejudicial.

   The court took up these motions on the first day of trial and, after hearing argument, granted both of them. Noting that many lawyers, including top law school graduates, do not pass the Bar Examination on the first try, the court held that evidence regarding Dr. Nold's unsuccessful first attempt at the board examination had little probative value with respect to whether he violated the applicable standard of care and would not be admitted. With respect to Dr. King, petitioners' counsel claimed that, until he took Dr. Hutchins's deposition on May 4, he was unaware that respondent intended to claim [*247] that Dr. King's conclusion was wrong and that asthma would be asserted as the effective cause of Candace's death. He also contested the assertion that respondent was unaware of Dr. King's opinion, noting that respondent had a copy of the autopsy report and that defense counsel had, in fact, spoken with Dr. King. In that regard, he[***9] asserted that Dr. King "is being called to testify concerning his autopsy report" and that "I am not calling him to offer anything else other than what is contained in his autopsy report." (Emphasis added). He further argued that Dr. King was not even an expert witness, but rather was a fact witness. Defense counsel responded that he had no objection to the autopsy report but suggested that King's testimony would go beyond that, to "counter the argument of a Defense expert."

   The court clearly treated Dr. King as an expert, not a fact, witness and concluded that it would be unfair to allow him to testify. The court found no merit in counsel's assertion that he was surprised by Dr. Hutchins's conclusions and suggested that it should have been obvious that respondent would not agree with Dr. King's findings. To permit his testimony, the court found, would require a postponement to allow respondent to take his deposition and possibly to search for additional experts to counter his opinion: "it is prejudicial to the defense in that at the last moment, they are confronted with a witness they have not had the opportunity to depose and with no experts to counter whatever his testimony[***10] might be."

   The autopsy report was admitted into evidence as an exhibit and, through it, the jury was informed of Dr. King's conclusion as to the cause of Candace's inability to breathe. Petitioners added to that the expert testimony of Drs. Singer and Brownley, both of whom opined that Dr. Nold violated the applicable standard of care in not appreciating and acting upon the danger posed by the thyroid growth, in light of the fact that Candace also had a cold. The essence of their testimony was not that the cancer would grow precipitously but that the goiter, as it existed, would constrict Candace's breathing and that the constriction could become dangerous when coupled with her upper respiratory infection. Dr. Singer testified that [*248] the standard of care mandated that Dr. Nold evaluate the growth that he found to see if it was causing an occlusion of the respiratory track, which in turn required an immediate CT scan to show if the mass was impinging the trachea and causing respiratory problems. Dr. Brownley stated that recognition of an upper respiratory infection in a patient with a sizeable neck mass warranted immediate attention, which, in his view, meant referral to a surgeon. Both[***11] of those opinions rested, at least tacitly, on the assumption that Candace died as the result of the thyroid tumor pressing on the trachea and thereby restricting her ability to breathe.

   [**83] Respondent countered with the testimony of three of his experts. Dr. Hutchins, a pathologist, opined that Candace died of an acute attack of asthma and not from a compression of the trachea caused by the thyroid tumor. That opinion was based on a number of things, including his analysis of tissue slides made in connection with the autopsy. Essentially, he concluded that the tumor displaced softer tissue surrounding it and may have moved the trachea but did not invade or compress it. On cross-examination, he stated directly that a review of the histology -- the tissue slides -- did not support Dr. King's contention that the upper airway was narrowed by the tumor. In that regard, he said that he saw creola cells on one of the high-magnification slides, which was another indication of asthma. Dr. Tunkel, a pediatric otolaryngologist, also testified that Dr. Nold met the standard of care in evaluating and treating Candace -- that it was appropriate for him to refer her for a thyroid function test before[***12] resorting to either a CT scan or surgery. Although, in contrast to the view of Dr. Hutchins, Dr. Tunkel believed that Candace did have some compression of the trachea when she saw Dr. Nold, he felt it appropriate to proceed as Dr. Nold did. He too stated that the tumor would more likely move the semi-rigid trachea rather than restrict the breathing.

   Dr. Fink, a board-certified pediatrician who practices pulmonary medicine, further confirmed that Dr. Nold practiced entirely within the standard of care, noting that there were no symptoms of airway compression at the time of Candace's visit [*249] and that hypothyroidism is not an emergency situation that required hospitalization. Dr. Fink agreed with Dr. Hutchins that Candace died of an acute asthma attack and that both her history and the anatomical observations of the trachea itself were inconsistent with death from a tracheal obstruction. On cross-examination, he noted Dr. King's conclusion that the tracheal sections were normal and pointed out that if an extrinsic mass were narrowing the trachea to the extent claimed, the cartilage would become "markedly distorted," and that condition would be observable under a microscope. 

   Following[***13] this testimony, which concluded the defendant's case, petitioners sought to call Dr. King as a rebuttal witness. Respondent objected on the ground that, if Dr. King was merely to confirm the conclusions he stated in his autopsy report, the testimony would not rebut anything new injected by the defense and would not, therefore, be proper rebuttal. Petitioners suggested that Dr. King would be able to rebut Dr. Hutchins's testimony regarding the presence of creola cells on the tissue slides of the trachea and would testify that he saw no such cells on those slides. The court disallowed the rebuttal testimony, in part because to do otherwise would be inconsistent with the sanction applied for the discovery violation, and in part because the testimony would not add anything new.

   In the Court of Special Appeals, petitioners argued that the trial court abused its discretion in (1) not allowing Dr. King to testify in their case-in-chief, (2) not allowing him to testify as a rebuttal witness, and (3) not allowing evidence that Dr. Nold failed his board examination on the first try. That court found no abuse of discretion in any of those rulings and affirmed the judgment entered in favor of[***14] Dr. Nold.

   DISCUSSION

   Failure To Pass Board Examination
 
We shall deal first with the third issue raised by petitioners. Dr. Nold graduated with a degree in osteopathic medicine in 1989. He did a one-year rotating internship, [*250] followed by a three-year residency in pediatrics, which he completed in June, 1993. He became board-certified in pediatrics in 1994. When he saw Candace in December, 1993, he was five-and-a-half months out of training and not yet board-certified. In accordance with standard procedure, his hospital privileges during that first year of practice were [**84] probationary. All of that information was presented to the jury. Petitioners wanted to add evidence that Dr. Nold did not pass the board examination when he took it the first time. Respondent asserted, in response, that "he was ill, and did not pass it. And then when he took it the second time, he did pass it." Noting that he would not be testifying as an expert witness regarding the standard of care, respondent moved in limine to exclude that evidence. As noted, the court granted the motion upon a finding that the proffered evidence would have "little probative value."

   We find no error in that[***15] ruling. Although a physician's failure to pass a board certification examination has been held admissible when the physician testifies as an expert, as being relevant to his or her qualifications as an expert, see Ward v. Epting, 290 S.C. 547, 351 S.E.2d 867, 872 (S.C. Ct. App. 1986); McCray v. Shams, 224 Ill. App. 3d 999, 587 N.E.2d 66, 69-70, 167 Ill. Dec. 184 (Ill. App. Ct.), appeal denied, 596 N.E.2d 630 (Ill. 1992), the general rule is that "a physician's inability to pass a medical board certification exam has little, if any, relevance to the issue of whether the physician complied with the standard of care required in his or her treatment of a patient." Gipson v. Younes, 724 So. 2d 530, 531-32 (Ala. Civ. App. 1998). See also Campbell v. Vinjamuri, 19 F.3d 1274, 1276-77 (8th Cir. 1994); Douglas v. University Hosp., 150 F.R.D. 165, 171 (E.D. Mo. 1993); Jackson v. Buchman, 338 Ark. 467, 996 S.W.2d 30, 34 (Ark. 1999); Williams v. Memorial Medical Center, 218 Ga. App. 107, 460 S.E.2d 558, 560 (Ga. Ct. App. 1995); Beis v. Dias, 859 S.W.2d 835, 838-39 (Mo. Ct. App. 1993).[***16] We agree with that view. There could be many reasons why a physician failed all or part of a board certification examination; the fact of failure makes it neither more nor less probable that the physician complied with or departed [*251] from the applicable standard of care in the diagnosis or treatment of a particular patient for a particular condition.

   Dr. Nold did not testify as an expert in this case. His testimony was limited to a recitation of what he observed and what he did on the occasion of Candace's visit. He did not opine with respect to the standard of care, and the fact that he failed the board examination on his first try had little or no probative value with respect to whether his conduct was negligent.

   Exclusion of Dr. King in Case-In-Chief

   Dr. King was excluded as a witness on the ground that he would be testifying as an expert, that petitioners' intent to call him as an expert was not disclosed to respondent in conformance with the scheduling order, and that allowance of his expert testimony, in light of the late disclosure and respondent's inability to depose the witness, would prejudice respondent. Petitioners urge that the court erred in so ruling, in that[***17] (1) Dr. King was not an expert witness whose identity needed to be disclosed in discovery, (2) there was, therefore, no violation of the discovery rules or of the scheduling order, and (3) in any event, there was no prejudice to respondent, who, having received a copy of the autopsy report and having actually spoken with Dr. King about the report, was fully aware of Dr. King's opinion and findings.

   In examining these issues, we begin by laying out the broad discovery framework and distinguishing between the substantive requirements of the discovery rules and the timing requirements of a scheduling order entered pursuant to Rule 2-504. As an introduction, it is important to note that parties in litigation are not limited in their gathering of information to formal discovery procedures but may make any lawful investigations they choose. They may, on their own, search for and obtain documents, witness statements, and all other kinds of evidence. Thus, respondent did not, as a legal matter, need to invoke any formal discovery process in order to learn about Dr. King, to obtain a copy of his [**85] autopsy report, or to interview him and question him about his findings. Indeed, [*252] without invoking[***18] formal discovery, they did all of those things early in the litigation.

   The formal discovery process applicable in the circuit courts is set forth in Title 2, Chapter 400, of the Maryland Rules. It is a compulsory one in that it requires parties to disclose certain relevant information that they may not be willing to disclose voluntarily. The compulsion lies in the fact that failure to make adequate disclosure upon a proper request can result in a range of sanctions, including an order that precludes the party from using the information that should have been disclosed. See Rule 2-433.

   Maryland Rule 2-402(a), dealing with the scope of discovery, provides that a party may obtain discovery regarding any matter not privileged, including "the identity and location of persons having knowledge of any discoverable matter, if the matter sought is relevant to the subject matter involved in the action." That is a very broad provision, the intent being to eliminate, as far as possible, a party going to trial in a confused state concerning the facts that gave rise to the litigation.  Balto. Transit v. Mezzanotti, 227 Md. 8, 13, 174 A.2d 768, 771 (1961); Kelch v. Mass Transit Adm., 287 Md. 223, 229, 411 A.2d 449, 454 (1980).[***19] It includes information that may already be known to or otherwise obtainable by the requesting party. Discovery may take the form of interrogatories, depositions, demands for the production of documents or other tangible things, inspection of land or other property, mental or physical examinations, and requests for the admission of facts and genuineness of documents. Rule 2-401(a). There is no hierarchy among these various methods. If the party learns the identity of a witness or the existence of a document in some other manner, there is no compulsion to file interrogatories before proceeding with a deposition or demand for production.

   Sections (c), (d), and (e) of Rule 2-402 put some limits on the scope of compulsory discovery. Section (c) begins by creating an initial shield around certain work product material that otherwise would be freely discoverable under § (a). Subject to §§ (d) and (e) of the rule, it permits discovery of [*253] documents or other tangible things "prepared in anticipation of litigation or for trial" only upon a showing that (1) the material sought is otherwise discoverable, and (2) the party seeking discovery "has substantial need for the materials in the[***20] preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means." Even upon that showing, § (c) requires that the court "protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation." Under that provision, standing alone, the opinion of an expert witness that was prepared in anticipation of litigation or for trial would ordinarily not be discoverable.

   Sections (d) and (e) provide exceptions to the limitations of § (c), however, and allow parties to obtain certain documents or information otherwise within the constraints of § (c) without having to make the showing required by that section. Section (e) deals with experts -- those expected to be called to testify at trial and those not expected to be so called. With respect to the second category -- an expert retained by a party in anticipation of litigation or for trial but not expected to be called as a witness at trial -- § (e)(2) provides that discovery of the identity, findings, and opinions of the expert may be obtained only if a showing of the[***21] kind required by § (c) is made. Thus, absent a court order to the contrary, a party is not required to disclose the identity or opinion of an expert whom the party consults or retains for purposes of the litigation but, for whatever reason, chooses not to call as a witness. Compare Maryland Rule 12-206(b), allowing discovery of such expert [**86]witnesses and their opinions in condemnation cases.

   Section (e)(1), dealing with experts intended to be called as witnesses, provides that discovery of the findings and opinions of such experts, otherwise discoverable and "acquired or developed in anticipation of litigation or for trial" may be obtained without the showing required under § (c), but only as set forth in § (e)(1)(A) and (B). Section (e)(1)(A) states that, by interrogatory, a party may require another party "to identify each person whom the other party expects to call as [*254] an expert witness at trial, to state the subject matter on which the expert is expected to testify, to state the substance of the findings and the opinions to which the expert is expected to testify and a summary of the grounds for each opinion, and to produce any written report made by the expert concerning[***22] those findings and opinions." Under § (e)(1)(B), a party "may obtain further discovery, by deposition or otherwise, of the findings and opinions to which an expert is expected to testify at trial, including any written reports made by the expert concerning those findings and opinions."

   When all of these provisions are read together, the following emerges. Subject to any professional ethical constraints on either the lawyer or the expert, a party is permitted, through his or her own investigations independent of the formal discovery process, to discover the identity and opinion of any expert any other party has consulted, whether or not the party intends to call that expert. If a party chooses to invoke the formal discovery procedure set forth in the Title 2, Chapter 400 rules, the party may not force disclosure of the findings or opinions of experts who are retained by another party in anticipation of litigation or for trial but who are not expected to be called to testify, without making the kind of showing required by Rule 2-402(c). A party is entitled to disclosure, however, without complying with § (c), of experts retained in anticipation of litigation or for trial who [***23] are expected to be called to testify. If, upon proper request, the party retaining such an expert fails to disclose the required information, the party is subject to the range of sanctions allowed under Rule 2-433 for discovery violations.

   One distinction between experts and non-experts is that, although a party is entitled under Rule 2-402(e)(1) to disclosure of the identity of experts that another party intends to call to testify -- i.e., to know specifically whom the party intends to call as expert witnesses -- a party is not ordinarily entitled, under current Maryland practice, to the same information with respect to lay witnesses. Rule 2-402(a) requires the disclosure, upon proper request, of persons having knowledge of discoverable matter, which, as a practical matter, will [*255] include persons whom a party intends to call as witnesses, but it does not require the party to separately disclose his or her list of potential non-expert witnesses. n2

n2 Prior to the 1993 amendments to Fed. R. Civ. Proc. 26, that was the predominant view in Federal litigation as well. See 8 Wright, Miller & Marcus, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2d § 2013: "A distinction has traditionally been drawn between witnesses to the events in question and witnesses who will be called for trial by the adverse party. The names of occurrence witnesses could always be obtained by discovery. It was generally held, however, that a party was not entitled to find out, by discovery, which witnesses its opponent intended to call at the trial, although there was some authority to the contrary." See Wirtz v. Continental Finance & Loan Co. of West End, 326 F.2d 561, 564 (5th Cir. 1964); Wirtz v. B.A.C. Steel Products, Inc., 312 F.2d 14, 16 (4th Cir. 1962); Wilburn v. Maritrans GP Inc., 139 F.3d 350, 356 (3d Cir. 1998); Buining v. The Transporter, 171 F. Supp. 127, 132 (D. Md. 1959); Coca Cola Co. v. Dixi-Cola Laboratories, 30 F. Supp. 275, 280 (D. Md. 1939). Under current Rule 26(a)(3), which, as amended in 1993, added provisions requiring the disclosure of certain core information even without request, parties must disclose, in accordance with any scheduling order or, if none, at least 30 days before trial, the identity of each witness the party intends to present in its case-in-chief. Maryland does not presently have a comparable provision.

[***24] 

   [**87] Rule 2-504, dealing with pre-trial scheduling orders, impacts on the discovery process but does not directly expand or restrict the scope of it. With certain exceptions, it requires the circuit courts to enter a scheduling order in every civil action and sets forth provisions that either must or may be included in such an order. The principal function of a scheduling order is to move the case efficiently through the litigation process by setting specific dates or time limits for anticipated litigation events to occur. See Tobin v. Marriott Hotels, 111 Md. App. 566, 572-73, 683 A.2d 784, 787 (1996). To that end, Rule 2-504(b)(1) requires a scheduling order to contain "one or more dates by which each party shall identify each person whom the party expects to call as an expert witness at trial, including all information specified in Rule 2-402(e)(1)(A)" as well as "a date by which all discovery must be completed." Rule 2-504(b)(1)(B), (D). n3

n3 Rule 2-504(b)(2)(A) permits a scheduling order to contain "any limitations on discovery otherwise permitted under these rules, including reasonable limitations on the number of interrogatories, depositions, and other forms of discovery." A scheduling order containing such a provision may well restrict the scope of discovery, but we are not dealing with a provision of that kind in this case.

[***25] 
 
   [*256]

   Rule 2-504 is not a discovery rule. It is not included in the Title 2, Chapter 400 rules on discovery and, except as provided in § (b)(2)(A), is not intended either to enlarge or constrict the scope of discovery. Its function, to the extent it references discovery in § (b)(1), is to provide for the setting of time limits on certain discovery events; it is, in that regard, a rule of timing, not of substance. Thus, the experts required to be identified within the time set in a scheduling order entered pursuant to Rule 2-504(b)(1)(B) are those experts required to be identified under Rule 2-402(e), and what must be disclosed within the stated time limit is the information required to be disclosed by Rule 2-402(e)(1)(A) -- the identity of the witness, the subject matter on which the witness is expected to testify, a summary of the grounds of the expert's opinion, and a copy of any written report made by the expert concerning that opinion. By referencing only § (e)(1)(A) of Rule 2-402, Rule 2-504(b)(1)(B) anticipates that the party receiving that information by the date set by the scheduling order will have some additional time in which to pursue the further discovery allowed under Rule[***26] 2-402(e)(1)(B) -- ordinarily a deposition of the witness. The date for the completion of that phase is the date specified in the scheduling order pursuant to Rule 2-504(b)(1)(D) -- the completion of all discovery.

   Just as there are sanctions for the violation of the discovery rules, sanctions are available for the violation of directives in scheduling orders, although they are not specified in any rule. See Manzano v. Southern Md. Hospital, 347 Md. 17, 29, 698 A.2d 531, 536 (1997). The offense justifying such a sanction is not just the non-disclosure itself, but the non-disclosure within the time set by the court for disclosure to occur. Apart from any actual prejudice that may be suffered by the party in not receiving the information in a timely fashion, or that may be suffered by the court if trial has to be [*257]postponed, the court is demeaned by noncompliance with its order. See Betz v. State, 99 Md. App. 60, 635 A.2d 77 (1994).

   Six days before trial, petitioners decided that they "may" wish to call Dr. King as a witness, and, on the morning of trial, they made clear that they did wish to call him. In determining whether there was any violation[***27] of either the discovery rules or the scheduling order, it therefore becomes important to determine whether Dr. King was an expert witness whose identity (1) was sought by interrogatory propounded pursuant to Rule 2-421, and (2) was required to be disclosed under [**88] Rule 2-402(e)(1)(A). We may only infer the answer to the first part, as respondent's interrogatories are not in the record. n4 As petitioners do not suggest otherwise, however, we shall assume that respondent did, in fact, seek the identity of experts intended to be called as witnesses. The question, then, is whether Dr. King was an "expert" whose findings or opinion were "acquired or developed in anticipation of litigation or for trial." That is a two-part question: was he an expert and were his findings acquired in anticipation of litigation or for trial?

n4 Since 1991, "discovery material," which includes interrogatories and answers thereto, is no longer routinely filed with the court, although it may be used as an exhibit to support or oppose a motion. See Rule 2-401(d)(2).

[***28]

   Petitioners' entreaties to the contrary notwithstanding, Dr. King would clearly have been an expert, not a fact witness. The essence of his testimony would have been an opinion on the medical cause of death, which, at least when not obvious to the average layman, is quintessentially a subject for expert opinion. See Harasimowicz v. McAllister, 78 F.R.D. 319 (E.D. Pa. 1978); Carroll v. Morgan, 17 F.3d 787 (5th Cir.), reh'g denied, 26 F.3d 1117 (1994); Miller v. Brass Rail Tavern, Inc., 541 Pa. 474, 664 A.2d 525, 527-28 (Pa. 1995) (opinion of coroner relating to cause and time of death constitutes expert opinion); and cf.  Sippio v. State, 350 Md. 633, 714 A.2d 864 (1998); Langenfelder v. Thompson , 179 Md. 502, 505-06, 20 A.2d 491, 493 (1941) (where injury or disease is of such a [*258] character as to require a person skilled in the science or practice of medicine to determine its cause, medical expert may testify to his opinion thereof based on his scientific knowledge and skill and upon personal observation or scientific deductions from given facts).

   The question, then, is whether the[***29] opinion or findings he would be asked to recite were developed or acquired in anticipation of the litigation or for trial, and the answer to that lies, ultimately, in what Dr. King was going to be asked on direct examination. As noted, in response to the motion in limine , petitioners represented that Dr. King would be called "to testify concerning his autopsy report" and that they were "not calling him to offer anything else other than what is contained in his autopsy report." In arguing their point to the Court of Special Appeals, they indicated that Dr. King would have been able to "explain, clarify and expand on the information written in the autopsy report" and to testify that the autopsy evidence did not support the defense that Candace died of an asthma attack. Regarding that statement as an expansion of the opinion expressed in the autopsy report, the intermediate appellate court concluded that, to the extent Dr. King wandered beyond the text of the autopsy report, his opinion would "more likely so than not" have been acquired or developed in anticipation of litigation or for trial, and, on that basis, it held that he was an expert whose identity had to be disclosed under[***30] Rule 2-402(e)(1).

   The Court of Special Appeals, we think, gave greater significance to petitioners' appellate statements than is warranted. Dr. King was quite specific in his autopsy report conclusion: Candace died of asphyxia secondary to airway compression, and that airway compression "was caused by an infiltrating carcinoma of the thyroid which arose in the neck of the deceased and compressed her airway." That conclusion necessarily rules out an asthma attack as the cause of death, just as it does a gunshot wound, heart disease, and leukemia. If an expert opines that the available evidence leads solely to Conclusion X, it is at least implicit in that opinion that the evidence does not permit Conclusion Y, if Conclusion Y is [*259] inconsistent with Conclusion X. See Sippio v. State, supra, 350 Md. at 651, 714 A.2d at 873 (medical examiner's conclusion that death was homicide allowed rejection of notion that it was accidental). Petitioners would thus not have been straying from the findings made in [**89]the autopsy report to have inquired whether evidence existed that indicated some other cause of death and, if so, why such evidence was not found persuasive. An expert does[***31] not necessarily create new opinions, developed or acquired in anticipation of litigation or for trial, simply by defending conclusions developed earlier for some other purpose, even if that defense takes the form of discrediting posited contrary conclusions. n5

n5 This is not to suggest that it would be permissible for an expert who has expressed one set of opinions, not developed in anticipation of litigation or for trial, to be called, without compliance with discovery requests, to express an entirely different opinion that was, indeed, developed for purposes of the litigation. Given the admirable ingenuity of trial attorneys, there may develop some fine lines in this area, but we are confident that our trial judges, assisted as needed by appellate guidance, are entirely competent to deal with them.

   It is evident, therefore, that Dr. King was intended to be called, as an expert, simply to explain and elucidate the opinion he rendered in his autopsy report. In that circumstance, even if asked to discredit Dr. [***32] Hutchins's contrary view, he was not an expert whose opinion was acquired or developed in anticipation of litigation. The conclusion he reached as to the cause of Candace's death came not in anticipation of any litigation or to prepare for trial but from his duty as a medical examiner under Maryland Code, §§ 5-309 - 5-311 of the Health-General Article to investigate and determine the cause of Candace's death and to make an official report of his findings. See Harasimowicz v. McAllister, supra, 78 F.R.D. at 320 and Miller v. Brass Rail Tavern, Inc., supra, 664 A.2d at 531 (medical examiner who determined cause of death in performance of public duty and without consulting counsel in case did not develop information in anticipation of litigation or for trial). Because, though an expert, Dr. King did not acquire or develop his opinion as to the cause of Candace's [*260] death in anticipation of the litigation or for trial, his identity and opinion were not required to be disclosed under Rule 2-402(e)(1), and the non-disclosure within the time set for disclosure of experts in the scheduling order did not violate Rule 2-421, Rule 2-504, or the scheduling order[***33] itself. No sanction, therefore, was warranted. n6

n6 This ruling is not to be taken as a condonation of counsel's waiting until May 4, four months after being informed of Dr. Hutchins's identity, to take his deposition or of waiting until June 10, five weeks after the taking of Dr. Hutchins's deposition and only six days before the scheduled trial date, to inform defense counsel that he "may" call Dr. King. Had the deposition been taken sooner, within the period allowed for the completion of discovery, and had that advice been given promptly after the deposition, the trial court may well have reached a different conclusion, at least with respect to prejudice, and the parties may have been spared the expense of this appeal and the delay and expense of a new trial.

   In light of our conclusion that the court erred in excluding Dr. King's testimony from petitioners' case-in-chief, we need not address whether the court also erred in excluding Dr. King as a rebuttal witness.

   JUDGMENT OF COURT OF SPECIAL APPEALS REVERSED; [***34] CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REVERSE JUDGMENT OF CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AND REMAND TO THAT COURT FOR NEW TRIAL; COSTS IN THIS COURT AND COURT OF SPECIAL APPEALS TO BE PAID BY RESPONDENT. 

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