Opinion
No. 233
06-04-2020
JONATHAN PHIFER v. STATE OF MARYLAND
Circuit Court for Baltimore City
Case No. 118137019
UNREPORTED
Fader, C.J., Friedman, Gould, JJ. Opinion by Gould, J. *This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.
A jury sitting in the Circuit Court for Baltimore City convicted Jonathan Phifer, appellant, of first-degree murder, use of a firearm in the commission of a crime of violence, possession of a firearm by a disqualified person, and wearing, carrying, or transporting a handgun. Mr. Phifer raises three arguments on appeal, which we have slightly rephrased for clarity:
Mr. Phifer was sentenced to life imprisonment for the murder, a consecutive 20-year sentence for use of a firearm, and a consecutive 15-year sentence for possession of a firearm. The first five years of the latter two sentences were to be served without the possibility of parole. The court merged his wearing, carrying, or transporting a handgun conviction for sentencing purposes.
I. Did the trial court err when it precluded defense counsel from questioning a "State's witness about whether he hoped for or expected a benefit in exchange for information he provided to the police"?We answer each of these questions in the negative, and for the following reasons, we affirm.
II. Did the trial court err when it admitted into evidence a certain photograph on Mr. Phifer's cell phone?
III. Did the trial court err when it denied Mr. Phifer's motion to limit the testimony of the State's firearms expert?
BACKGROUND FACTS AND PROCEEDINGS
Gregory Megginson, a witness for the State, testified at trial that around 11:00 p.m. on April 6, 2018, he was leaving a bar at the corner of Patterson Park and Jefferson Street in Baltimore City when he heard two gunshots. He saw a man running toward him holding a gun. He recognized the man from the neighborhood but had not spoken to him before and did not know his name. When the man came close to him, Mr. Megginson asked, "you all right?" The man did not respond and continued running. Mr. Megginson walked over to where he had heard the gunshots and found a young man, later identified as Tavon Miles, lying on the ground bleeding.
The police responded, but Mr. Miles died before the ambulance arrived. A subsequent autopsy showed that Mr. Miles died from two gunshot wounds, one to the head and the other to his right flank, both of which were "rapidly fatal." The police recovered two 9 mm cartridge casings from the crime scene, and a bullet and a bullet fragment were recovered from the autopsy.
When the responding police officer asked Mr. Megginson if he had seen anything, he told the officer he had not. He later testified that he did not give any information to the police because "other people [were] around at this time and [he] didn't want . . . confusion to start."
The day after the shooting, a handgun was found in Madeira Gardens, a community garden approximately one and one-half blocks from where Mr. Miles was killed. Mr. Megginson testified that on that day, he heard that a gun had been found in a nearby garden and called Aaron Cruz, a police officer that he knew, to say that he had information about the shooting.
This is inconsistent with the testimony of Officer Cruz who stated that he did not receive any information from Mr. Megginson until nearly ten days later.
On April 17, Mr. Megginson spoke to the police and told them what he had seen. He also viewed a photo array and identified Mr. Phifer as the man who had run by him with a gun. Mr. Megginson stated that he decided to provide the information to the police because "people got to start coming forward or it's never going to change[.]" A few days after Mr. Megginson spoke to the police, Mr. Phifer was arrested and brought to a police station where his cell phone was seized pursuant to a warrant.
Mr. Megginson admitted at trial that he had been a heroin addict and a dealer but had been "clean" for about 15 years and regularly took methadone. He also admitted to convictions from 2005 and 2006 for possession with intent to distribute a controlled dangerous substance. In addition, he testified that after he gave information to the police about the shooting, the State Attorney's Office helped him relocate. He was not given any money, but the State Attorney's Office helped speed up the relocation process.
During trial, defense counsel learned that Mr. Megginson had worked as an informant for both the Drug Enforcement Agency ("DEA") and the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF"). The parties disagreed about whether he could be cross-examined about this work. Because the parties were unclear about the nature and extent of the work he had done, Mr. Megginson was examined out of the presence of the jury.
During voir dire, Mr. Megginson testified that in 2005, he had worked as an informant for the DEA for about 18 months, and in that capacity, he bought prescription drugs from pharmacies on three occasions. He explained that the DEA sought his assistance after he had been arrested on charges of possessing illegal prescription drugs and that in exchange for his assistance, he received about $600, the DEA recommended a favorable outcome in his drug case, and he received a sentence of probation on his then pending charges.
Mr. Megginson further testified that in 2010, he assisted the ATF after he was caught having a woman purchase a gun for him when he was prohibited from owning a firearm because of a prior conviction. He was never arrested or charged with illegal possession of that firearm, and he understood that was because he had helped the ATF. He also testified that he had not worked for any agency since 2010 and that he never worked for the Baltimore City Police Department.
Defense counsel argued that from the evidence of his work for the DEA and ATF, the jury could reasonably infer that in this case, he "expected to get something" for helping the police solve Mr. Miles' murder. Defense counsel, however, could not specify what Mr. Megginson could have expected to receive for his testimony. The State argued that Mr. Megginson's prior informant work was inadmissible because it was irrelevant. The court agreed, ruling that defense counsel could not ask Mr. Megginson questions related to his past informant work with the DEA and ATF. The court, however, allowed Mr. Phifer to question Mr. Megginson about his prior convictions, his heroin addiction, his use of methadone to manage his addiction, and that the Baltimore City State's Attorney's Office assisted in his relocation.
Daniel Lamont, a firearms examiner for the Baltimore City Police Department, testified at trial as an expert in the area of firearm and ballistic identification and microscopic comparison. He had examined the recovered bullet and bullet fragment, cartridge casings, and handgun and wrote a report. Mr. Lamont opined that the two cartridge casings were fired from the same firearm, that the bullet and bullet fragment were fired from the same firearm, and that both were fired from the gun that was found in the garden.
Virginia Sladko, a DNA analyst with the Baltimore City Police Department, was called as an expert in the analysis of DNA. She explained that she used a DNA testing modality software called TrueAllele, which the Baltimore City Police Department had used for about three years, to calculate and interpret DNA mixtures and provide "possible profiles." Based on the TrueAllele program, Ms. Sladko testified about the DNA that was recovered from the handgun:
Phifer matched in an inferred genotype from the software and the match between [] Phifer and the genotype is 2.81 trillion times more probable than a coincidental match to an unrelated individual in the African American population, 721 trillion times more probable than a coincidental match to an unrelated individual in the Caucasian American population, and 468 trillion times more probable than a coincidental match to an unrelated individual in the Hispanic American population.
Special Agent Matthew Wilde, an agent with the Federal Bureau of Investigation, assigned to the Maryland Joint Violent Crime Task Force, was called as an expert in the field of historical cell-site analysis. He testified that his analysis of Mr. Phifer's cell phone usage around the time of the shooting showed that Mr. Phifer's cell phone "pinged" off several towers at the time and near the area of the shooting. He also testified that he recovered a picture on Mr. Phifer's cell phone of the garden where the handgun was recovered. The picture had been taken on March 8, 2018, about one month prior to the shooting.
The parties stipulated that Mr. Phifer had a prior conviction that would prohibit him from possessing a regulated firearm.
DISCUSSION
MR. MEGGINSON'S TESTIMONY
Mr. Phifer argues that the trial court erred by preventing him from questioning Mr. Megginson about work he did for the DEA and the ATF. The State disagrees, as do we.
We review a trial court's restriction of impeachment cross-examination adhering to the following principles:
The scope of cross-examination lies within the sound discretion of the trial court. This discretion is exercised by balancing "the probative value of an inquiry against the unfair prejudice that might inure to the witness. Otherwise, the inquiry can reduce itself to a discussion of collateral matters which will obscure the issue and lead to the fact finder's confusion." An undue restriction of the fundamental right of cross-examination may violate a defendant's right to confrontation. Whether there has been an abuse of discretion depends on the particular circumstances of each individual case. On appellate review, we determine whether the trial judge imposed limitations upon cross-examination that inhibited the ability of the defendant to receive a fair trial.Pantazes v. State, 376 Md. 661, 681-82 (2003) (internal footnotes and citations omitted).
"The right of a defendant in a criminal case to cross-examine a witness for the prosecution is grounded in the Confrontation Clause of the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights." Manchame-Guerra v. State, 457 Md. 300, 309 (2018) (citations omitted). A defendant's right to cross-examination, however, is not limitless. And, the trial court has broad discretion in determining the scope of cross-examination. See Behrel v. State, 151 Md. App. 64, 125 (2003) (the trial court "must carefully balance the necessity for, and probative value of, the other crimes evidence against any undue prejudice likely to result from its admission"). A trial court's discretionary rulings "carry a presumption of validity." Cox v. State, 51 Md. App. 271, 282 (1982) (citing Mathias v. State, 284 Md. 22, 28 (1978)).
Maryland Rules 5-611 and 5-616 frame the trial court's discretion. Rule 5-616(a)(4) provides that "[t]he credibility of a witness may be attacked through questions asked of the witness, including questions that are directed at: . . . [p]roving that the witness is biased, prejudiced, interested in the outcome of the proceeding, or has a motive to testify falsely[.]" Rule 5-611(a) requires the trial court to "exercise reasonable control" over the manner and order of questioning witnesses so as to "(1) make the interrogation and presentation effective for the ascertainment of truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment, or undue embarrassment." Further, Rule 5-611(b)(1) limits "cross-examination . . . to the subject matter of the direct examination and matters affecting the credibility of the witness."
Mr. Phifer argues that the court erred in not allowing him to cross-examine Mr. Megginson about his "hope for or expectation of receiving a benefit for providing information to the police[.]" He argues that Mr. Megginson "had a history of receiving benefits after the fact for having helped law-enforcement, even without any sort of formal cooperation agreement," "[h]e knew the consequences of a conviction, and he also knew how to work the system to gain potential benefits," and "his past experience shows that he was savvy enough to know that currying favor with the Baltimore City Police Department could reap him future benefits if he were charged with or suspected of a crime." In support, he cites to two cases where the Court of Appeals held that the trial court erred by not allowing a witness to be cross-examined about whether the witness expected any benefit from the testimony. We are not persuaded.
In both cases, charges were pending against the witness in the same jurisdiction in which he testified, and thus the jury did not have to speculate if the defendant could potentially expect a benefit from testifying. See Manchame-Guerra, 457 Md. at 303 (State's eyewitness was facing pending charges when he testified); Calloway v. State, 414 Md. 616, 637 (2010) (issue was whether the witness came forward "in the hope of being released from detention, and whether he was testifying at trial in the hope of avoiding a violation of probation charge, should have been decided by the jury rather than by the Circuit Court"). In contrast here, there were no charges pending against Mr. Megginson, either in Baltimore City or in any other jurisdiction, and therefore the jury had nothing but speculation on which it could impute an expectation of a benefit.
As the Court of Appeals stated in Peterson v. State, 444 Md. 105, 135-36 (2015):
[t]here must be some evidence—either direct (e.g., an agreement with the prosecution to resolve charges in return for testimony) or circumstantial (e.g., release of witness from custody, dismissal of charges, a decision to forgo charges, postponement of disposition of a violation of probation charge) that the witness has an expectation of benefitting from the testimony with respect to the pending charges.(internal footnotes omitted). Here, the trial court showed no predilection against this type of testimony per se, in fact quite the opposite. The court stated: "[i]f there was some potential benefit to him in some way, I'd be happy to let it in but I just don't see any benefit that would cause him to be biased against the defense or for the State." We are satisfied that the trial court understood the legal principles governing the evidentiary issue and properly exercised its discretion in prohibiting the requested line of questioning.
THE PHOTOGRAPH ON MR. PHIFER'S PHONE
Prior to trial, Mr. Phifer moved to prevent the State from admitting into evidence a photograph from his cell phone that was taken of Madeira Gardens, where the gun that killed Mr. Miles was recovered. Mr. Phifer argued that the photograph was irrelevant and was taken one month before Mr. Miles' murder at the request of his attorney in an unrelated drug case. The trial court denied the motion, noting that the photograph was "probative that he has at least some familiarity with the area where the gun was [found]."
Mr. Phifer now argues that the trial court committed reversible error when it admitted the photograph. Mr. Phifer reiterates his argument that the photograph was irrelevant and contends that "the only conceivable relevance of the photo was to show consciousness of guilt[.]" He additionally argues that it was unduly prejudicial because he was not able to explain why he took the photograph without also admitting that he had unrelated pending drug charges. In opposition, the State argues that Mr. Phifer did not preserve his argument related to prejudice, and in any event, that his argument lacks merit. We agree.
Mr. Phifer fails to explain why he could not have requested that he be permitted to simply state—without being questioned further on the issue—that the photo was taken at the request of an attorney in connection with an entirely unrelated legal matter.
Although Mr. Phifer argued at trial that the photograph should not be admitted because it was irrelevant, Mr. Phifer did not argue that the photograph was unduly prejudicial. As such, he has not preserved this part of his argument for our review.
"Relevant evidence" is evidence having "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Md. Rule 5-401. This threshold "is a very low bar to meet." Williams v. State, 457 Md. 551, 564 (2018). Relevant evidence may be excluded, however, "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury[.]" Md. Rule 5-403. Whether evidence is "unfairly" prejudicial is not judged by whether the evidence hurts one's case, but by whether it "might influence the jury to disregard the evidence or lack of evidence regarding the particular crime with which the defendant is being charged." Burris v. State, 435 Md. 370, 392 (2013) (cleaned up).
When balancing relevance against the danger of unfair prejudice, "we must consider first, whether the evidence is legally relevant, and, if relevant, then whether the evidence is inadmissible because its probative value is outweighed by the danger of unfair prejudice, or other countervailing concerns as outlined in Maryland Rule 5-403." State v. Simms, 420 Md. 705, 725 (2011) (citation omitted). We review without deference a trial judge's legal conclusion that a piece of evidence is relevant. Id. at 724-25. If the evidence is relevant, "[t]rial judges generally have wide discretion when weighing the relevancy of evidence" against the dangers of unfair prejudice. Id. at 724 (cleaned up).
We disagree with Mr. Phifer that the photograph was relevant only "to show consciousness of guilt," because as the trial court found, the photograph was relevant to show that Mr. Phifer had some familiarity with the area where the gun was found. See Williams, 457 Md. at 564 (quotations omitted) ("Having 'any tendency' to make 'any fact' more or less probable is a very low bar to meet."). The photograph was taken one month before the killing and not only was there no evidence presented at trial that Mr. Phifer planned the killing that far in advance, the State made no such argument either. In addition, although not properly before us, we also believe that the admission of the photograph was not unduly prejudicial because we do not believe that it was significant evidence that could have, for example, caused the jury to disregard the other evidence before it. See Burris, 435 Md. at 392. Accordingly, we find no error in the admission of the photograph.
TESTIMONY OF THE EXPERT WITNESS
Mr. Phifer's final argument is that trial court abused its discretion when it denied his motion to limit the testimony of its firearm expert, Mr. Lamont.
Mr. Phifer's Motion
Mr. Phifer urged the trial court to follow the reasoning expressed in United States v. Javon Medley, Case No. PWG-17-242 (D. Md. April 24, 2018), and limit Mr. Lamont's testimony to "his observations, including that the marks on the specimens that he compared were 'consistent with' one another, but . . . preclude the expert from testifying conclusively that particular specimens were fired from a particular weapon." The State disagreed, contending that Medley did not apply, and the court denied the motion.
Mr. Lamont's Testimony
Mr. Lamont testified that an unfired bullet is called a cartridge and a cartridge is composed of four parts: a cartridge case, bullet, primer, and gunpowder, and that when a firearm is fired, it makes markings on the cartridge—an indentation from the firing pin hitting the primer and breach face marks from the cartridge case being pushed back against the breach of the firearm. Mr. Lamont further testified that as the bullet travels down the barrel, it is also marked with "land and groove impressions" that twist to the left or right, and that these are "individual characteristics" unique to each firearm.
Mr. Lamont explained that there are "class characteristics" shared by bullets, cartridge cases, and guns, such as the caliber, the shape of the firing pins, and breach face markings. During the manufacturing of a firearm, the metal tool used to create the interior of the metal barrel leaves unique microscopic markings on the barrel because each time the tool is used, metal is simultaneously removed from the tool and barrel of the firearm by friction.
Mr. Lamont also testified as to the steps he took in drawing his conclusions. He took photographs of the handgun, cartridge cases, bullet, and bullet fragment and noted and compared their class characteristics, which were identical: 9 mm, hemispherical shaped firing pins with parallel breach face markings. He then used a comparison microscope to compare a test-fired cartridge case and bullet from the recovered handgun to the recovered cartridge cases, bullet, and bullet fragment. Mr. Lamont concluded that both the test-fired cartridge case and the recovered cartridge case were fired from the same firearm, that the bullet and bullet fragment were fired from the same firearm, and that the two cartridge cases and the bullet and bullet fragment were fired from the recovered handgun.
The Applicable Law
The admissibility of expert witness opinion lies within the discretion of the trial court and will not be disturbed on appeal unless clearly erroneous. Blackwell v. Wyeth, 408 Md. 575, 618 (2009).
Maryland Rule 5-702 provides:
Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony.The third factor—a sufficient factual basis—must be founded on both "an adequate supply of data and a reliable methodology." Rochkind v. Stevenson, 454 Md. 277, 286 (2017) (citations omitted). "The burden rests with the proponent of the expert testimony to demonstrate that these requirements have been met." Id.
The Issues on Appeal
Mr. Phifer argues that Mr. Lamont did not have a sufficient factual basis for his opinions because (1) the firearm toolmark identification he utilized is not a reliable methodology, and (2) Mr. Lamont lacked an adequate supply of data from which to draw his conclusions.
"Firearms toolmark identification is the practice of investigating whether a bullet, cartridge case or other ammunition component or fragment can be traced to a particular suspect weapon." Fleming v. State, 194 Md. App. 76, 100-01 (2010) (internal footnote omitted).
Firearm Toolmark Identification
Although Mr. Phifer acknowledges that courts have admitted firearm toolmark identification testimony "for decades," he contends that the methodology has recently come under "scientific and judicial scrutiny." Mr. Phifer cites to no reported case, however, either in Maryland or any other jurisdiction, where the court refused to accept this type of testimony.
In fact, Maryland and other jurisdictions continue to recognize the validity of this science and area of expertise. See, e.g., Patterson v. State, 229 Md. App. 630, 642-43 (2016); Fleming, 194 Md. App. at 108-09; State v. DeJesus, 436 P.3d 834, 842 (Wash. Ct. App. 2019) ("Courts from around the country have universally held that toolmark analysis is generally accepted."); David H. Kaye, Firearm-Mark Evidence: Looking Back and Looking Ahead, 68 Case W. Res. L Rev. 723, 734 (2018) (Although some courts have placed limits on this type of testimony, those decisions have been "exceptions to the normal, uncritical acceptance of firearm-mark testimony.").
In Fleming, although we acknowledged that "[t]he use of toolmark identification evidence has drawn scrutiny in recent years" and that toolmark identification involves subjective judgments by the examiner, we rejected the defendant's argument that the methodology of comparative microscopic matching was "no longer generally accepted as reliable in the field[.]" 194 Md. App. at 99, 104-05 (cleaned up). As we stated there:
The Court of Appeals has approved the admissibility of traditional firearms identification evidence under Frye-Reed ; indeed, Reed v. State referred to "ballistics" as an example of a discipline for which "the validity and reliability is so broadly and generally accepted" that under the Frye-Reed standard, "a trial court may take judicial notice of its reliability." Reed v. State, 283 Md. [374,] 380 [(1978)]. Although Reed was decided over thirty
years ago, notwithstanding the current debate on the issue, courts have consistently found the traditional method to be generally accepted within the scientific community, and to be reliable.Id. at 106-07. Recognizing that "[o]ur view [was] consistent with recent federal precedent in courts around the country, as well as in the United States District Court for the District of Maryland," we concluded that the trial court had not erred in admitting expert testimony on comparative microscopic matching because it remained generally accepted within the scientific community. Id. at 107-09 (internal footnote omitted).
Frye -Reed is the test used in Maryland for determining whether expert testimony is admissible. The name is derived from two cases: Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), where the court found that before a trial court allows expert testimony based on a scientific principle or process, the scientific principle or process must be shown to have gained general acceptance in the particular field in which it belongs, and Reed v. State, 283 Md. 374 (1978), where we adopted the Frye standard.
Six years later in Patterson, we similarly held that comparative microscopic matching is generally accepted within the scientific community and stated that comparative microscopic matching was as admissible in 2016 as it was in 1993, when Patterson was first convicted. 229 Md. App. at 641-44.
Mr. Phifer does not cite to either Fleming or Patterson, but instead cites to a 2008-2009 National Research Council ("NRC") report that, according to Mr. Phifer, "concluded that insufficient studies had been done to validate firearm tool-mark identification," and a 2016 report by the President's Advisory Council on Science and Technology that, according to Mr. Phifer, revealed a false identification "error-rate range of between one in forty-six and one in sixty-six examinations, as well as significant differences in the accuracy of the examiners who participated." In Fleming, we acknowledged the criticism in the NRC report but nonetheless found toolmark identification science to be valid and admissible. 194 Md. App. at 104-06.
Mr. Phifer's argument has no support in our prior cases on this issue, and he has not persuaded us to change our mind. Certainly, scientific techniques that have been generally accepted may be challenged under Frye-Reed. Here, however, Mr. Phifer never sought a Frye-Reed hearing, and in fact, specifically told the trial court that he was not seeking a Frye-Reed hearing; therefore, he waived his right to challenge this testimony now. Addison v. State, 188 Md. App. 165, 181 (2009).
We find that the trial court did not err in admitting Mr. Lamont's toolmark identification testimony. The Supply of Data from which Mr. Lamont Drew his Conclusions
Mr. Phifer next argues that "the state failed to provide an adequate supply of data to support Lamont's conclusions that the unknown bullets and cartridge casing were fired from the gun that was found in the garden." According to Mr. Phifer, Mr. Lamont's written report did not include any "pictures, diagrams, or descriptions of the toolmarks that he allegedly relied on to reach his conclusions," his "testimony did not fill in the gaps left by the report," and he "testified to a complete lack of memory regarding his analysis of the bullets and casings and was unable to explain any basis for his ultimate conclusion."
The State counters that Mr. Lamont's "findings were documented in detail" and that his conclusions were based on an adequate supply of data, citing to Mr. Lamont's testimony where he provided an explanation for "how he could say whether two bullets or two cartridges were fired with the same firearm," how he compared the two samples, and the basis for his conclusion that the cartridges cases were fired from the same gun.
"For expert testimony to be admissible, his or her conclusions must be based on a sound reasoning process explaining how the expert arrived at those conclusions" and the factual basis for those conclusions must be "more than mere speculation or conjecture." Exxon Mobil Corp. v. Ford, 433 Md. 426, 478, 483 (2013) (citations omitted). "Generally accepted methodology . . . must be coupled with generally accepted analysis in order to avoid the pitfalls of an analytical gap." Blackwell, 408 Md. at 608 (cleaned up).
Mr. Lamont provided a detailed overview of the process he used to match the casings, bullet, and bullet fragment to the handgun recovered. He explained the processes by which he compared the cartridges and bullets with one another and with the cartridge and bullet test-fired from the recovered gun. A second examiner verified his conclusions. Mr. Lamont explained the "blind-test" by the second firearms examiner as follows:
All of our work in the Firearm's Unit is 100 percent co-examined, meaning another examiner looks at all of the evidence and in a microscopic comparison case actually redoes the microscopic work. My evidence[,] once I look at my evidence, I come to my conclusions, I then in this case ask Mr. Meinhardt, I gave him my evidence, asked him if could be my co-signer in this case and he then goes to the microscope and does his examination.
Based on our review of the record and transcript, Mr. Lamont's findings were not based on speculation or conjecture. Accordingly, we find that the trial court did not abuse its discretion in admitting Mr. Lamont's expert testimony.
JUDGMENTS OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED. COSTS TO BE PAID BY APPELLANT.