Greene, J.
This case involves a joint criminal trial of two codefendants. The Circuit Court for Baltimore City denied Respondent Tevin Hines' motion for a severance in the trial of State v. Dorrien Allen ("Allen") and Tevin Hines ("Hines"). Hines argues that this was error because he was prejudiced by the admission into evidence of a statement made by Allen, which was inadmissible against Hines. At issue in this case is a question that this Court has never squarely addressed: the application of the offense joinder analysis set forth in McKnight v. State, 280 Md. 604, 612, 375 A.2d 551, 556 (1977) in the context of defendant joinder. We agree with Petitioner, the State of Maryland, that generally, where most of the evidence admissible at trial is mutually admissible, a joinder of defendants will be proper. However, where joinder will result in prejudice to one or more defendants, a trial judge has discretion under Maryland Rule 4-253 to grant a severance or order other relief as justice requires. Here, where non-mutually admissible evidence was actually admitted during a joint jury trial of codefendants and from the admission of that evidence, the objecting defendant was prejudiced, the trial judge abused his discretion in denying
On January 15, 2013, Brandon Gadsby and Michelle Adrian drove from Frederick County to Baltimore City to purchase heroin. Gadsby drove down Edmondson Avenue and the surrounding residential streets of West Baltimore until two young men, one in an orange jacket and another in a black beanie, waived Gadsby down. Gadsby later identified the men as Dorrien Allen and Tevin Hines. Gadsby testified that he pulled his truck over to the side of the street and Hines and Allen approached the vehicle and asked Gadsby, "Boy or Girl" meaning heroin or cocaine. Gadsby indicated that he wished to purchase heroin. According to Gadsby, Hines told Allen that he would meet him "over" there. Allen then got into Gadsby's vehicle and directed Gadsby to the 3900 block of Mulberry Street. When Gadsby parked his vehicle in a lot adjacent to a cemetery, Allen exited the vehicle and disappeared from view into a nearby alley. Allen then returned with Hines, but Hines remained in the alley while Allen walked over to Gadsby's vehicle. Gadsby testified to hearing Hines tell Allen, "not yet, not yet", apparently referring to the fact that a garbage worker was nearby. After the garbage worker was out of sight, Allen pulled out a handgun and said, "don't fuckin' move." Gadsby testified that he reached for his keys to start his truck and that Allen said, "are you trying to die?", and then fired a gunshot that shattered the driver's side window. Gadsby said he then held out the $120 he intended to use to purchase heroin and told Allen to take whatever he wanted. Allen grabbed the money, exited the vehicle, and fired his gun multiple times, wounding Gadsby and killing Adrian. Gadsby testified that Allen fled through a hole in the cemetery fence.
On the same day as the shooting, Officer Kevin McLean of the Baltimore City Police Department was patrolling the area and saw Allen and Hines at the Normandy Food Market at approximately 9:30 a.m. Allen was wearing a bright orange jacket and Hines was dressed in black. Officer McLean was familiar with Allen and Hines based on his experience patrolling that area. About twenty minutes later, Officer McLean drove to a nearby convenience store and saw Allen and Hines. At 10:47 a.m., Officer McLean received a radio call reporting a shooting one block from Normandy Market and two blocks from the convenience store. Officer McLean responded to the scene whereupon Gadsby told Officer McLean he was shot by a black male wearing an orange jacket and blue jeans. Based on this information and on the fact that Officer McLean had seen Allen in the area earlier, he radioed that Dorrien Allen was a possible suspect.
Later on the same day, police saw Allen on the street and detained him for questioning. Allen was questioned by Detectives Fuller and Carew. This interview was recorded and offered as evidence by the State at trial. In the statement, Allen told police that on the day of the shooting, he remained home until around midday when he went to record a music video at his friend "Mike's" house. According to Allen's statement to the police, he did not know "Mike's" real name. Allen told police that "Mike" lives on the 300 block of Lyndhurst Avenue. The detectives then showed Allen a surveillance video of Allen at the convenience store during the time at which he claimed to have been home. The video, which was also shown to the jury at trial, shows Allen with a man who is clearly
Hines made a pretrial motion for severance, arguing that introduction of Allen's recorded statement would prejudice Hines. At the pretrial motions hearing, counsel for Hines articulated to the trial judge the exact prejudice that would—and did—ensue from the admission of Allen's statement at a joint trial:
(emphasis added). In response to defense counsel's motion for severance, the prosecutor made the following argument at the motions hearing:
(emphasis added).
There is no dispute that the statement would have been inadmissible hearsay in a trial had Hines been tried separately from Allen.
The following portions of Allen's statement were admitted in the State's case in chief and played at trial for the jury:
(emphasis added). The jury heard this, as well as in-court testimony by Detective Fuller that Hines lived at 301 Lyndhurst. At trial, neither Hines nor Allen testified. The jury convicted Hines of first degree murder, use of a handgun in commission of a crime of violence, attempted murder, robbery with a deadly weapon, conspiracy to commit robbery with a deadly weapon, and first-degree assault.
Hines noted an appeal to the Court of Special Appeals, arguing, inter alia, that the trial court erred in denying Hines' motion to sever the codefendants' trials. The Court of Special Appeals, in an unreported opinion, reversed the trial court's ruling, and held that "Hines was prejudiced by having to defend himself against. . . evidence that would not have been admissible had he been tried separately." The State of Maryland filed a Petition for a writ of certiorari in this Court. We granted certiorari, State v. Hines, 446 Md. 291, 132 A.3d 193 (2016), to answer two questions.
For the reasons that follow, we answer yes to question one and no to question two.
Maryland Rule 4-253(c) specifically affords the trial court discretion in deciding a severance motion. Md. Rule 4-253 ("If it appears that any party will be prejudiced by the joinder . . . the court may, on its own initiative or on motion of any party, order separate trials . . . or grant any other relief as justice requires.") (emphasis added). Ordinarily, such decisions are reviewed only for abuse of discretion. See Erman v. State, 49 Md.App. 605, 612, 434 A.2d 1030, 1036 (1981). In McKnight, 280 Md. at 612, 375 A.2d at 556, we limited the discretion afforded to a trial judge under Rule 4-253(c) and held that severance is mandated where a single defendant is jointly tried by a jury for separate offenses and evidence as to the offenses is non-mutually admissible. We explain, as discussed below, that the McKnight analysis applies in the limited context of joinder/severance of offenses. The proper standard of review when reviewing a severance determination in cases of codefendant joinder remains whether the trial court abused its discretion.
The State argues that the Court of Special Appeals adopted an approach to joinder wherein the only test is "whether the evidence as to all defendants is mutually admissible" and this approach "would have the effect of eliminating nearly all joint trials of co-defendants[.]" According to the State, the proper test is whether the introduction of non-mutually admissible evidence is prejudicial. The State posits, however, that the statement did not prejudice Hines because the type of prejudice to be avoided in the context of non-mutually admissible evidence in a joint trial of multiple defendants is "impairment to a particular defense," or "undue risk of conviction on grounds unrelated to the evidence." According to the State, even where prejudice exists, the court has discretion to curtail the prejudice by means other than severance, such as redactions and limiting instructions. The State argues that the trial court did not abuse its discretion because the statement was redacted to remove any references to Hines. In addition, the State contends that there was no prejudice because the judge gave a limiting instruction, and the content of the statement did not interfere with Hines' defense of mistaken identity. The State maintains that the statement was introduced to show Allen's consciousness of guilt because he gave a demonstrably false alibi.
Joinder and severance in criminal cases is governed by Maryland Rule 4-253. This Rule contemplates two distinct joinder/severance situations: defendant joinder and offense joinder. Under Rule 4-253(a), two or more defendants can be tried together in a joint trial "if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." Md. Rule 4-253. Under subsection (b), upon motion of a party, a trial court may join separate but related offenses in a trial of a single defendant where the defendant "has been charged in two or more charging documents." Id. This Rule is based on a policy favoring judicial economy and its purpose is "to save the time and expense of separate trials under the circumstances named in the Rule, if the trial court, in the exercise of its sound discretion deems a joint trial meet[
Id. This final subsection affords a trial judge discretion in making a joinder/severance determination and embodies a balancing approach between "the likely prejudice caused by the joinder . . . [and] the considerations of economy and efficiency in judicial administration." Frazier v. State, 318 Md. 597, 608, 569 A.2d 684, 689 (1990).
We recognize that the "overbearing concern of the law of this State with respect to joint or separate trials of a defendant charged with criminal offenses [is] to safeguard against potential prejudice." Frazier, 318 Md. at 607, 569 A.2d at 689. Under the Rule, a trial judge has discretion in deciding how to safeguard against prejudice caused by joinder; the judge may grant a severance or "other relief as justice requires." Md. Rule 4-253. Maryland
Thus in exercising discretion to avoid prejudice to a defendant, the trial judge must engage in the following analysis. First, the judge must determine whether evidence that is non-mutually admissible as to multiple offenses or defendants will be introduced. Second, the trial judge must determine whether the admission of such evidence will cause unfair prejudice to the defendant who is requesting a severance. Finally, the judge must use his or her discretion to determine how to respond to any unfair prejudice caused by the admission of non-mutually admissible evidence. The Rule permits the judge to do so by severing the offenses or the co-defendants, or by granting other relief, such as, for example, giving a limiting instruction or redacting evidence to remove any reference to the defendant against whom it is inadmissible. The judge must exercise his or her discretion to avoid unfair prejudice. See Day v. State, 196 Md. 384, 394, 76 A.2d 729, 733 (1950) "(While it is generally a matter of discretion with the court as to whether a separate trial shall be granted, such discretion is not to be exercised arbitrarily but so as to prevent injustice.") (quoting People v. Patris, 360 Ill. 596, 196 N.E. 806, 808 (1935)). Where, as discussed below, a limiting instruction, redaction, or other relief is inadequate to cure the unfair prejudice, and severance remains the only option to avoid unfair prejudice, a denial of severance constitutes an abuse of discretion.
In McKnight, this Court limited a trial judge's discretion to join offenses in the context of a jury trial under Rule 745, the predecessor to Rule 4-253. 280 Md. at 612, 375 A.2d at 556. The McKnight Court held that in a jury trial, "a defendant charged with similar but unrelated offenses is entitled to a severance where he establishes that the evidence as to each individual offense would not be mutually admissible[
Consistent with the decisions pre-dating it, McKnight was decided on an abuse of discretion standard. 280 Md. at 614, 375 A.2d at 557. However, McKnight has been subsequently interpreted to stand for the proposition that non-mutual admissibility of evidence as to unrelated offenses is per se prejudicial in the context of a jury trial, requiring severance as a matter of law. In Graves v. State, this Court explained:
298 Md. 542, 545-46, 471 A.2d 701, 702-03 (1984) (emphasis added). See also Wieland v. State, 101 Md.App. 1, 10, 643 A.2d 446, 450 (1994) ("[McKnight is] the case that first dramatically narrowed the range of discretion truly available to the trial judge by holding that, in a jury case at least, whenever evidence on separate charges would be mutually not admissible, severance, if timely requested, is absolutely mandated as a matter of law.") (emphasis added). In Wieland, Judge Charles E. Moylan, Jr., writing for the Court of Special Appeals, referred to Graves as the "definitive exegesis of the meaning of McKnight" as totally limiting the judge's discretion. Id. Judge Moylan explained further that "[t]he nagging incongruity is that we continue to label the reason for appellate reversal on this issue not `legal error,' which it has become, but an `abuse of discretion,' which it cannot be for there is no longer any discretion to be abused." Wieland, 101 Md.App. at 11, 643 A.2d at 451. As we discuss in this opinion, our holding in McKnight must be understood in terms of the context of that case, a joinder of offenses in a jury trial of a single defendant.
Although McKnight set forth a clear standard in cases of offense joinder within the context of a jury trial, confusion as to this standard's applicability to defendant joinder has persisted in the case law. Cases decided since McKnight, dealing with offense joinder have stated, in dicta, that the standard elucidated in McKnight applies to both offense joinder and defendant joinder. See, e.g., Solomon v. State, 101 Md.App. 331, 340, 646 A.2d 1064, 1068 (1994) ("The first ground-breaking step taken by the McKnight decision was to hold that, in a jury trial at least, severance was absolutely mandated, as a matter of law, when the evidence with respect to the separate charges (or, presumably, with respect to separate defendants) would not be mutually admissible. In a jury trial, on this issue no discretion remains."). See also Conyers v. State, 345 Md. 525, 552, 693 A.2d 781, 794 (1997) ("McKnight's holding, technically, did not apply to multiple defendant joinder, but this Court has stated that the McKnight analysis is also the proper way to determine the propriety of multiple defendant joinder."). Additionally, this Court has cited McKnight in the context of codefendant joinder cases. See Osburn v. State, 301 Md. 250, 254, 482 A.2d 905, 907 (1984).
In Osburn, we wrote that McKnight set the standard for "the joinder/severance of multiple defendants or multiple charges
The post-McKnight case law has thus created some confusion as to whether a finding of non-mutual admissibility of evidence in a joint defendant trial automatically entitles a defendant to a severance without any further inquiry into prejudice. Upon this distinction, the State and Hines are in dispute. What is clear from McKnight is that the question of mutual admissibility is at least common to determinations of prejudice in both contexts of offense joinder and defendant joinder. The question of mutual admissibility is simply a method of assessing what difference there would be between a joint and a separate trial in any given case. See McKnight, 280 Md. at 610, 375 A.2d at 555 ("Where evidence of one crime would be admissible at a separate trial on another charge, a defendant will not suffer any additional prejudice if the two charges are tried together."); Solomon, 101 Md.App. at 349, 646 A.2d at 1073 ("[P]rejudice at a joint trial does not consist of damage from evidence that would have been admissible in any event even had the trials of the defendants or charges been severed."). The McKnight analysis ends upon a finding, vel non, of mutual admissibility. However, this Court has never had the opportunity to squarely determine whether the analysis in the context of defendant joinder stops where the McKnight analysis ends or if it goes beyond McKnight. See Osburn, 301 Md. at 254-55, 482 A.2d at 907 (ending the analysis upon a finding of mutual admissibility).
In both Osburn and Ogonowski, the evidence involved was mutually admissible, meaning that it would have been admissible against the defendant requesting severance had he been given a separate trial. Osburn, 301 Md. at 254, 482 A.2d at 907; Ogonowski, 87 Md.App. at 187, 589 A.2d at 520. The mutually admissibility in these cases was dispositive of the outcome and the appellate courts did not need to, nor did they have the opportunity to, determine whether prejudice under the Rule existed. In short, these cases did not have the facts that we have before us today. Thus, the courts did not have an opportunity to apply the full analysis inherent in Rule 4-253(c). Further, both Conyers and Solomon involved questions of severance in the offense joinder context; language suggesting a McKnight analysis in the context of codefendant joinder was dicta. Solomon, 101 Md.App. at 340, 646 A.2d at 1068; Conyers, 345 Md. at 552, 693 A.2d at 794.
A close examination of our case law reveals that non-mutual admissibility alone does not entitle a defendant to a separate trial from his codefendant. Instead, "prejudice" under Rule 4-253(c) by definition means damage from evidence that would not have been admissible against a defendant in a trial separate from his codefendant. See, e.g., Moore v. State, 84 Md.App. 165, 169, 578 A.2d 304, 306 (1990) ("A defendant is deemed to have been prejudiced by a joint trial when the joining of a co-defendant or co-defendants (1) permits the State to introduce, against a particular
In cases of codefendant joinder, however, it is foreseeable that in some instances, evidence that is non-mutually admissible may not unfairly prejudice the defendant against whom it is inadmissible because the evidence does not implicate or even pertain to that defendant. Due to this latter scenario, it is inappropriate to say that, as we have said in the context of offense joinder, non-mutuality equates with prejudice in the context of codefendant joinder. Instead, the defendant must show that non-mutually admissible evidence will be introduced and that the admission of such evidence will result in unfair prejudice. Ball v. State is illustrative. 57 Md.App. 338, 354, 470 A.2d 361, 370 (1984), aff'd in part, rev'd in part sub nom. Wright v. State, 307 Md. 552, 515 A.2d 1157 (1986).
In Ball, codefendants Ball, Wright, and Gilmore were jointly tried and convicted of a killing that occurred during the commission
Nevertheless, the Court of Special Appeals affirmed the denial of severance, noting that "the conversation did not implicate the appellant Wright and did him no damage in any direct sense." Id. (emphasis added). This is perhaps the clearest indication that non-mutuality alone does not lead to a finding of prejudice as a matter of law in the context of defendant joinder. Had the standard set forth in McKnight applied, Wright would have been entitled to severance because the evidence was inadmissible as to Wright and, under McKnight, severance is mandated as a matter of law where evidence is non-mutually admissible. Graves, 298 Md. at 545-46, 471 A.2d at 702.
Payne v. State involved a joint trial of codefendants Payne and Bond who were charged with felony murder and kidnapping. 440 Md. 680, 682, 104 A.3d 142, 143 (2014). At their joint trial, wiretapped phone conversations, in which Bond was a participant but Payne was not, were admitted into evidence. Payne, 440 Md. at 682-83, 104 A.3d at 143. The telephone conversations were inadmissible against Payne under the rule against hearsay. Payne, 440 Md. at 710, 104 A.3d at 159. We also determined that the conversations would not implicate Bruton, because under Crawford v. Washington, the statements were non-testimonial.
Accordingly, we clarify that the application of the analysis for joinder and severance of defendants differs from the analysis applicable to joinder and severance of offenses in the context of a jury trial.
McKnight created a presumption in the limited context of a jury trial of a single defendant for joined offenses: because admission of non-mutually admissible evidence against one defendant is inherently prejudicial against that defendant, trial courts need not make further inquiry into prejudice. In the context of defendant joinder, the trial court must first determine whether non-mutually admissible evidence will be introduced and then must determine whether the admission of such evidence will unfairly prejudice the defendant seeking a severance. If the trial judge finds that the admission of non-mutually admissible evidence will result in unfair prejudice, the judge must exercise his or her discretion to remove the prejudice by either granting a severance or other relief (such as redacting evidence so as to implicate only the defendant against whom the evidence is admissible). As discussed below, the trial judge in this case abused his discretion by failing to adequately remove the unfair prejudice to Hines caused by the admission of Allen's statement.
An examination of the appropriate body of case law dealing squarely with the issue of prejudice in the context of codefendant joinder reveals two cases where a Maryland appellate court has held that a trial judge abused his discretion in denying a trial severance. This examination begins with the case of Day, 196 Md. 384, 76 A.2d 729. Although Day has been classified as a
Day involved a joint trial of two codefendants, both of whom gave statements to police wherein each defendant blamed the other defendant for a shooting. Day, 196 Md. at 387, 76 A.2d at 730. At the time that the defendants filed motions for severance, the trial judge was aware that the State was going to introduce the statements at trial. Id. The trial court denied severance and admitted the statements into evidence. Id. The trial court instructed the jury that each defendant's statement was only evidence against that defendant and was not to be considered against his codefendant. Day, 196 Md. at 387-88, 76 A.2d at 730. The defendants appealed, arguing that the limiting instruction offered them insufficient protection and that the trial court erred in denying the severance. Day, 196 Md. at 388, 76 A.2d at 730.
In reviewing the denial of severance, this Court initially noted that severance determinations are within the sound discretion of the trial court. Day, 196 Md. at 388, 76 A.2d at 730. We explained that "[t]here are a number of matters which are in the discretion of the trial court, but it is not true that in all of these matters there is no review." Day, 196 Md. at 388-89, 76 A.2d at 731. We further recognized that "[w]hile it is generally a matter of discretion with the court as to whether a separate trial shall be granted, such discretion is not to be exercised arbitrarily but so as to prevent injustice." Day, 196 Md. at 394, 76 A.2d at 733 (quoting People v. Patris, 360 Ill. 596, 196 N.E. 806, 808 (1935)). Prior to Day, this Court had held that giving a limiting instruction is "all that the court can do in a joint trial," but had "not passed upon the question of whether the court could not or should not do more by way of granting a severance, if it is known to the court at the time the severance is asked that that situation is going to arise." Day, 196 Md. at 390, 76 A.2d at 731-32. In holding that the trial court abused its discretion in denying the severance, this Court wrote:
Day, 196 Md. at 395, 76 A.2d at 734. This Court based its holding on the conclusion that a limiting instruction in the case before it was insufficient to insulate the codefendants from prejudice, noting that
Day, 196 Md. at 390, 76 A.2d at 731. In sum, the trial judge in Day abused his discretion in electing to give a limiting instruction in lieu of granting a severance where he was aware before the trial that non-mutually admissible evidence would be introduced at trial and that the admission of such evidence would prejudice the defendants.
Another case where the trial judge abused his discretion in denying severance is Erman, 49 Md.App. at 613, 434 A.2d at 1036. This case involved a motion for mistrial on severance grounds, which the defendant made during the course of his trial. Erman, 49 Md.App. at 612, 434 A.2d at 1036. The Court of Special Appeals ultimately treated the motion as one for a mistrial, concluding that there was a "manifest necessity" for separating the trials. Erman, 49 Md.App. at 616, 434 A.2d at 1038. The intermediate appellate court, however, concluded that the standard to be employed by the trial judge in ruling on such a motion is that "as Rule 745 [now rule 4-253] contemplates, there must be prejudice to a defendant when joined for trial with another defendant and that this prejudice must be such as to prevent him from receiving a fair trial before he is entitled to a severance or a mistrial." Erman, 49 Md.App. at 614, 434 A.2d at 1037. During the joint jury trial of Erman and his codefendant Brent, several items of evidence admissible only against Brent were introduced. Erman, 49 Md.App. at 612, 434 A.2d at 1036. The evidence included testimony of alleged criminality or misconduct on the part Brent . . . for example, Brent's threats on people's lives, his plans to kill one Stearck, shooting at a neighbor's dog, and shooting at the house of an acquaintance of his with whom he had had some trouble and for which he was charged with assault with intent to murder.
Id. The judge, on several occasions, gave limiting instructions to the jury that it was to not consider the evidence against Erman; Erman in turn, made several motions for mistrial and severance. Id. On appeal, the Court of Special Appeals reversed the trial court's denial of a mistrial and severance, and held that "the trial judge abused his discretion" in denying a severance. Erman, 49 Md.App. at 613, 434 A.2d at 1036. The intermediate appellate court held that the damage resulting from the reception of non-mutually admissible evidence denied Erman a fair trial, explaining:
Erman, 49 Md.App. at 616, 434 A.2d at 1038. In so holding, our colleagues on the intermediate appellate court noted that where "the instances of the need to so instruct the jury are many, the effectiveness of such instructions may very well diminish to the point of becoming meaningless." Erman, 49 Md.App. at 615, 434 A.2d at 1037. Thus, in both Day and Erman, the manifestation of prejudice to the
Here, Hines was significantly prejudiced by the actual admission of evidence that, although admissible against Allen, was inadmissible against Hines. As in Day, the trial judge in the case sub judice was aware that the non-mutually admissible statement was going to be offered by the State at trial. 196 Md. at 387, 76 A.2d at 730. Moreover, as in Day, the trial judge was advised of the exact prejudice that was likely to ensue (and did in fact ensue) if the statement were introduced at a joint trial. Id. The trial judge in the case at bar had discretion under the rule as to how to handle the likely prejudice; the judge could have granted a severance or he could have adequately redacted Allen's statement so that it would not implicate Hines. The trial judge elected to do neither.
Even as redacted to omit any express reference to "Tevin Hines," Allen's statement implicated Hines in a damaging way, which resulted in prejudice to Hines. The statements Allen made about "Mike" were played for the jury along with the detectives' statements of disbelief. This, coupled with the detectives' interest in "Mike" and questions about the man in the surveillance video
We cannot assume that the jury necessarily followed the limiting instruction when all signs pointed to Hines as being "Mike". Because the evidence implicated Hines in a manner so obvious that there is a risk that the jury would not have followed the limiting instruction and not have considered Allen's statement against Hines, the trial court erred in denying a trial severance.
The State argues that under a harmless error analysis, reversal is not required. To establish a harmless error, the burden is upon the State to show beyond a reasonable doubt that the error "had no influence on the verdict." Perez v. State, 420 Md. 57, 68 n.5, 21 A.3d 1048, 1055 n.5 (2011). The State, ignoring the many ways in which Allen's statement implicated Hines, contends that the denial of severance was harmless error because Allen's statement was exculpatory and not prejudicial. The State also argues that the limiting instruction served to guard against prejudice engendered by the statement. For reasons discussed above, the statement was inculpatory and the limiting instruction insufficient to guard Hines from unfair prejudice. In Dorsey v. State, we explained that
276 Md. 638, 659, 350 A.2d 665, 678 (1976). Here, because the admission of Allen's
For the forgoing reasons, we hold that the trial court committed reversible error in denying a severance under Maryland Rule 4-253. Accordingly, we affirm the judgment of the Court of Special Appeals.
JUDGMENT OF THE COURT OF SPECIAL APPEALS IS AFFIRMED. PETITIONER TO PAY THE COSTS.
92 Md.App. 56, 73-74, 607 A.2d 42, 51 (1992) (emphasis added).