author: Moylan, J.,

text:
    STANBALT REALTY COMPANY v. COMMERCIAL CREDIT CORPORATION
    [No. 640,
    September Term, 1978.]

      Decided June 6, 1979.

      The cause was argued before Morton, Moylan and Melvin, JJ.

      Michael Lewis Freilich, with whom was Philip L. Marcus on the brief, for appellant.

      Ward B. Coe, III, with whom were Whiteford, Taylor, Preston, Trimble & Johnston on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

The last hope of the appellant, Stanbalt Realty Company (Stanbalt), is the so-called “last antecedent rule” for/ construing the terms of a contract, to which rule Stanbalt clings with grim tenacity. This rule of construction, never adopted in Maryland, and of only marginal significance in the scattered jurisdictions that have called upon it, is too frail a reed to carry the appellant’s burden.

Beginning in February, 1971, the appellee, Commercial Credit Corporation (Commercial Credit), leased the sixth floor of the Standard Oil Building in Baltimore City from Stanbalt’s predecessor. The first lease was for two years and this was followed by two additional one-year leases. The penultimate lease was dated December 20, 1974, and extended from May 1, 1975, through April 30, 1976. It contained the following provision:

“This lease extension is cancellable by either party upon ninety (90) days written notice.”

During the period of this 1975-1976 lease, Commercial Credit was in the process of consolidating all of its offices into its own building. The operation which was utilizing the leased sixth floor of the Standard Oil Building was scheduled to move into the Commercial Credit Building sometime during 1975. That schedule, however, was not met and it became necessary to extend the lease agreement for another year. Negotiations took place between Robert E. Outman, the manager of building operations for Commercial Credit, and Jerome Sachs, the managing agent of Stanbalt. Outman initially asked to have the lease extended under the same conditions contained in the then existing lease extension with the same cancellation clause. Sachs, on the other hand, informed Outman that he was receiving pressure from his banks and that he could better refinance the building if he could pin down lease terms with no cancellation option. Outman, for his part, refused to agree to a full year without possible cancellation. Sachs and Outman finally agreed to a guarantee of rental payments through the end of the calendar year (December 31, 1976) after which Commercial Credit could terminate under appropriate conditions. It was agreed that Sachs, representing Stanbalt, would draft the lease extension as he had done previously. The lease extension was ultimately signed and it contained the following critical provision which is the nub of the present litigation:

“This lease extension is cancellable by either party upon ninety (90) days written notice on or after January 1, 1977.”

During the summer of 1976, Commercial Credit gave 90 days notice to Stanbalt of its intended cancellation. Commercial Credit vacated the premises shortly before January 1, 1977, paying the rent through January 1. No rent was paid for the period from January 1 through April 30, 1977.

Stanbalt filed suit against Commercial Credit in the Court of Common Pleas of Baltimore City for the four months rent, along with interest and attorneys’ fees. It also filed a Motion for Summary Judgment. Commercial Credit answered the declaration and motion and submitted an affidavit disputing certain facts asserted in the declaration and contained in Stanbalt’s affidavit. Depositions were taken and a hearing was held on the Motion for Summary Judgment. Judge J. Harold Grady denied the motion, proceeded to trial and rendered a verdict in favor of Commercial Credit.

Stanbalt does not here contest the ultimate verdict upon the merits but maintains strenuously that the Motion for Summary Judgment should have been granted in its favor.

The cancellation clause is at least arguably ambiguous. The critical qualifying phrase is “on or after January 1,1977.” The issue is whether this qualifying phrase qualifies the immediately preceding phrase “upon ninety (90) days written notice” or whether it qualifies the anterior preceding phrase “cancellable by either party.” The cancellation provision may be construed two different ways:

(1) The term of the lease extension, from May 1, 1976, until April 30,1977, is cancellable upon 90 days written notice provided that the notice is given on or after January 1, 1977, or
(2) Provided that 90 days notice is given, the lease is cancellable on or after January 1, 1977.

All parties are agreed that if the 90 days notice had to be given after January 1, 1977, an effective cancellation never occurred and Stanbalt should have prevailed in recovering the four months of lost rent. If, upon the other hand, the cancellation could occur anytime on or after January 1 (provided only that 90 days written notice had been given theretofore), an effective cancellation did occur and Commercial Credit should have prevailed. The only issue before the court was that of what the cancellation clause meant.

Judge Grady, after reading the two depositions and hearing argument on the Motion for Summary Judgment, concluded that the clause was ambiguous and denied the motion. At the subsequent trial of the case upon the merits, abundant testimony supported his ultimate conclusion in finding the Commercial Credit interpretation to be the one giving effect to the intention of the contracting parties. It is beyond dispute that the cardinal rule for construing ambiguities in contracts is to ascertain and give effect to the intention of the parties. Garfinkle v. Schwartzman, 253 Md. 710, 720, 254 A. 2d 667 (1969); Mascaro v. Snelling & Snelling, 250 Md. 215, 229, 243 A. 2d 1 (1968); DWS Holdings, Inc. v. Hyde Park Associates, Inc., 33 Md. App. 667, 675, 365 A. 2d 554 (1976). This rule is applicable whenever a contract contains an ambiguity, which is an expression capable of more than one meaning or of doubtful meaning. Allen v. Steinberg, 244 Md. 119, 127, 223 A. 2d 240 (1966).

Stanbalt does not (and, indeed, could not) question this resolution of the ambiguity upon the merits, once it is accepted that an ambiguity existed. It is rather the contention of Stanbalt that its vaunted “last antecedent rule” should have been invoked by Judge Grady at the summary judgment stage in order to determine that no ambiguity existed that needed to be resolved. Almost by way of ipse dixit, Stanbalt assigns to the “last antecedent rule” not the role, along with other rules of construction, of resolving an ambiguity in the terms of a contract but the preemptive role of foreclosing the possible ambiguity so that the other rules would never come into play.

Curiously, Stanbalt takes this rather obscure little grammatical usage, that sometimes is dignified with the label “rule” and sometimes is not, and assigns it a seat in the juridical hierarchy somewhere between the Magna Charta and the Statute of Frauds. Its true station is infinitely more modest.

The great professors of contracts, Williston and Corbin, in their respective tfiulti-volume works do not even recognize the existence of any “last antecedent' rule.” In a merely subsidiary capacity, in .the course of broader discussions of the use of grammar to discern the meaning of a contract, this particular grammatical usage is mentioned in passing without benefit of a formal label- ih a footnote in American Jurisprudence 2d and with benefit of a formal label in a footnote in Corpus Juris Secundum. In 17 Am.Jur.2d, Contracts, § 278 “Grammar,” the following text refers to the use that may be made of grammar but also to the fact that grammatical correctness will never prevail over the true intention of the parties:

“Although the grammatical construction of a contract is often a reliable signpost in the search for the intention of the parties, at times the language of a contract, read as a whole and in the light of the circumstances surrounding its execution, may disclose an intention which would be thwarted by a strict grammatical construction; in such case the court is not bound to follow the signpost of grammatical construction, particularly when it appears to point in the wrong direction. Intention may be formulated in terms that are not grammatical.”

A footnote to the last quoted sentence then makes reference to the grammatical usage now in issue:

“Thus, it is the general rule that unless the intention appears otherwise, a relative word will be construed as referring to its nearest antecedent. But in the event the context of the instrument shows that the relative word is not intended to apply to the nearest antecedent, it must be construed in such a way as to carry out the intention of the parties. The intent will not be defeated unless the defect is so serious as absolutely to preclude the ascertainment of the meaning of the parties through the means furnished by the whole document and such extrinsic aids as the law permits.” (Emphasis supplied)

In 17A C.J.S., Contracts, § 305 “Grammatical Construction” the main thrust of the text is that the rules of grammar are helpful but not controlling:

“While the court, in construing a contract, will not ignore the rules of grammar and grammatical construction of the language used, the grammatical construction of a contract will not be followed if a different construction will better give effect to the intention of the parties as shown by the whole instrument and the circumstances; and to give effect to an obvious and apparent purpose of a contract, grammatical errors may be corrected.
Rules of grammatical construction, however, are not to be disregarded where they serve to throw light on the intent of the parties. Thus, subject to exception where the intention of the parties appears to have been otherwise, a relative or qualifying word, phrase, or clause will be construed as referring to its nearest antecedent(Emphasis supplied)

A footnote to that text then gives the grammatical usage now in issue its formal label but also stresses its purely ancillary function:

“The ‘last antecedent’ rule is merely an aid to construction and will not be adhered to where remote antecedent is clearly intended.”

What emerges is the following mildly helpful but unremarkable truism: GRAMMAR IS ONE HELPFUL TOOL, AMONG MANY, FOR DISCERNING THE MEANING OF WORDS. ONE OF THE MINOR RULES OF GRAMMAR IS THAT A QUALIFYING WORD OR PHRASE WILL BE DEEMED TO REFER TO ITS NEAREST ANTECEDENT UNLESS IT APPEARS TO REFER TO A MORE REMOTE ANTECEDENT. This is all very nice as long as one does not make too much of it.

As a helpful device, this grammatical usage has resolved occasional cases. American Insurance Co. v. Been, 232 Ky. 111, 22 S.W.2d 426 (1929); Himes v. Masonic Mutual, 215 Ala. 183, 110 So. 133 (1926); Anderson v. State Farm, 75 Cal.Rptr. 739 (1969); Hardware Mutual Casualty Co. v. Curry, 21 Ill.App.2d 343, 157 N.E.2d 793 (1959); Peterson v. Sinclair Refining Co., 20 Wis.2d 576, 123 N.W.2d 479 (1963). Each one of these cases using the rule to resolve an ambiguity points out that the rule is only operative where a contrary intention of the parties is not apparent. Other cases have recognized the grammatical usage but have declined to apply it rigidly where a contrary result seemed indicated. Reddi-Wip, Inc. v. Lemay Valve Co., 354 S.W.2d 913 (Mo. App., 1962); Isaac T. Cook Co. v. Bank of St. Louis, 297 S.W.2d 607 (Mo. App., 1957). Indeed, strong language is used by the United States Court of Appeals for the Tenth Circuit in declining to apply the rule in Hughes v. Samedan Oil Corp., 166 F. 2d 871, 873 (10th Cir. 1948):

“[Njeither the rules of grammatical construction, nor any other rule should be indulged to confuse what is otherwise manifest or plain. Courts will not resort to grammatical niceties or the technicalities of punctuation in the interpretation and construction of an instrument unless they may be utilized to make plain that which is otherwise obscure [cites omitted]. We are primarily interested in giving effect to the intention of the parties, and not to the technical verbiage used to express it.”

Indeed, the scales of justice in this case had sitting in the pan on Commercial Credit’s side several weighty rules for construing ambiguities, long recognized in the jurisprudence of Maryland. One is to admit extrinsic evidence of the negotiations leading up to the formulation of a contract, of the circumstances of the parties at the time of entering into the contract and of the parties’ own construction of the contract in order to discern their intention. Canaras v. Lift Truck Services, 272 Md. 337, 352, 322 A. 2d 866 (1974); Mascaro v. Snelling & Snelling, supra; DWS Holdings, Inc. v. Hyatt Park Associates, Inc., supra. Another is that an interpretation which is fair and reasonable will be preferred to one which leads to an unreasonable result. Baltimore City v. Industrial Electric, 230 Md. 224, 229, 186 A. 2d 469 (1962). Yet a third is that an ambiguous provision in a lease should be construed against the draftsman. Burroughs Corporation v. Chesapeake Petroleum & Supply Co., Inc., 282 Md. 406, 411, 384 A. 2d 734 (1978); Schuman v. Gordon Investment Corp., 247 Md. 265, 271, 232 A. 2d 256 (1967).

In short, Judge Grady, faced with an arguable ambiguity, resisted being caught in the coiled barbed wire of grammatical niceties, recognized the genuine and material dispute that existed, denied the Motion for Summary Judgment and moved on into the open arena of the trial where evidentiary help was readily available. He is to be commended (and affirmed).

Judgment affirmed; costs to be paid by appellant.


source: Caselaw Access Project

author: Melvin, J.,

license: Public Domain

text:
    CHARLES WILLIAM DAVIS, JR. v. STATE OF MARYLAND
    [No. 650,
    September Term, 1978.]

      Decided June 6, 1979.

      The cause was argued before Melvin, Liss and Couch, JJ.

      Arnold M. Zerwitz, Assigned Public Defender, with whom were Alan H. Murrell, Public Defender, and George E. Burns, Jr., Assistant Public Defender, on the brief, for appellant.

      F. Ford Loker, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, Sandra A. O'Connor, State’s Attorney for Baltimore County, Mark H. Kolman and Timothy J. Martin, Assistant State’s Attorneys for Baltimore County, on the brief, for appellee.
   Melvin, J.,

delivered the opinion of the Court.

On April 12, 1978, at a jury trial in the Circuit Court for Allegany County (Getty, J., presiding), the appellant, Charles William Davis, Jr., was convicted of murder in the first degree and the use of a handgun in the commission of that crime of violence. The murder victim was Mrs. Kathleen Cook, who was shot to death behind a shopping center parking lot in Baltimore County on the night of December 31, 1975. Mrs. Cook, with her husband, had gone to a night club located in the shopping center to meet some relatives and friends for a New Year’s Eve party.

At trial, over appellant’s objection and following pre-trial suppression hearings, appellant’s oral confessions were admitted in evidence. The confessions were given to the police on September 4th and 5th, 1977. Those given on September 4th were recorded on tape in the appellant’s own voice and transcribed. At trial the tapes were admitted in evidence and heard by the jury. The transcriptions were also admitted in evidence. The confession of September 5th was presented to the jury through the testimony of Maryland State Trooper David Horan. Testifying from notes made at the time, Trooper Horan related the appellant’s detailed account, given at the scene of the crime, of how, on New Year’s Eve 1975, the appellant had lured Mrs. Cook, thinking she was someone else, from the night club onto the parking lot of the shopping center, had sexual intercourse with her, beat her, fired four .38 calibre bullets into her body, and left the scene.

The appellant elected not to testify either at the suppression hearings or at trial, and otherwise presented no evidence to contradict the State’s evidence concerning the corpus delicti of the crimes or his criminal agency.

On appeal his primary contention is that the judgments of conviction must be reversed because the trial judge erred in admitting his confessions into evidence. He does not contend here that his confessions were involuntary in the traditional sense or that any of his rights set forth in Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602 (1966) were violated so as to invoke the exclusionary rule enunciated in that landmark decision. He does invoke, however, two other exclusionary rules: 1) the Fourth Amendment exclusionary rule followed in Ryon v. State, 29 Md. App. 62, 349 A. 2d 393 (1975), aff’d. 278 Md. 302, and 2) the per se exclusionary rule adopted by the Court of Appeals in Johnson v. State, 282 Md. 314, 384 A. 2d 709, decided April 6, 1978, four days before the appellant’s trial below and seven months after his confessions. The appellant argues that a proper application of either of these rules required the trial judge to exclude his confessions.

Related to the claimed applicability of the Johnson exclusionary rule is appellant’s remaining contention that the trial judge erred in failing to instruct the jury that it was up to them, the jury, to determine whether or not the rule of Johnson applied to this case.

After a careful review of the record we conclude that there is no merit to any of the appellant’s contentions and we affirm the judgments of conviction.

I

The Fourth Amendment Claim

The relevant facts as presented to Judge Getty at a suppression hearing on March 13th, 14th and 15th, 1978, are as follows. On July 20, 1977, Maryland State Troopers David Horan and Gary Hartman were driving in Baltimore City when they passed the appellant Davis driving his Volkswagen in the opposite direction. Trooper Horan recognized Davis as an individual who had been questioned several months before in connection with the murder of Kathleen Cook, the victim in this case, and the August 24, 1976 murder of one Peggy Pumpian. Trooper Horan also had information that the license plates on the Volkswagen were “switch tags”, i.e., that they had not been issued to the Volkswagen Davis was driving. Trooper Horan turned around and followed Davis. A radio call to Maryland State Police Headquarters confirmed the fact that the license plates had been issued to another vehicle. Davis was stopped by the troopers for the motor vehicle violation. Davis admitted that he had switched tags and was told by Trooper Horan that citations for this and other motor vehicle violations (driving “without any registration plates at all” and “operating a vehicle without any insurance”) would be issued. Trooper Horan then asked, “Can I search your vehicle, Charlie?” Davis consented to the search. There is no claim in this appeal that Davis did not voluntarily and willingly consent to the search or that the scope of the search of the vehicle was in any way limited by the consent given.

In the course of searching the inside of the Volkswagen, Trooper Hartman saw an uninstalled CB radio under one of the seats. He "grabbed a hold of it — and pulled it out — and since it wasn’t attached to anything — just looked at the serial number and jotted it down on the back, and then called it in for a check — to see if it was stolen.” The information received back was that the CB radio was stolen. Davis was thereupon arrested for receiving stolen property. Subsequent investigation showed that the radio had been purchased with a stolen credit card belonging to the husband of one Carol Willingham. Mrs. Willingham was the victim of an alleged rape and robbery that occurred in Baltimore City on February 23,1977, during the course of which the credit card was taken from her. Eventually Carol Willingham made a photographic identification of Davis as her assailant. On August 3.0, 1977, an arrest warrant was obtained from the Maryland District Court in Baltimore City charging Davis with the rape and robbery of Carol Willingham. In the meantime Davis had gone to Reno, Nevada, where he worked for an ambulance service.

On August 31, 1977, Troopers Horan and Hartman, accompanied by Marshall Feldman, Esq., an assistant State’s Attorney for Baltimore City, traveled by airplane to Reno to obtain custody of Davis and return him to Maryland for trial on the Willingham rape and robbery charges. At approximately 1:20 A.M. on September 1, 1977, the Reno police, accompanied by Troopers Horan and Hartman, arrested Davis, advised him of his rights and placed him in the Reno jail. Before being taken to the jail Davis told Trooper Horan that he wanted to talk to him privately. The trooper replied that he was busy at that time but that “he [Davis] would get an opportunity later to speak with me if he wanted to”. Later, during the same day, September 1, Trooper Horan went to the jail and asked Davis if he still wanted to speak to him. Davis said he did not and no questions were asked of him.

On the afternoon of September 2, Trooper Horan went to the Reno jail to photograph Davis. At this time Davis told the trooper that “about every six months — he did something big and he gets into trouble” and that there were “two things” he wanted to talk to the trooper about. However, after the trooper made arrangements for a room in which they could have privacy and after Davis had been given Miranda warnings and asked again if he “wish[ed] to talk to me”, he replied, “Only with a lawyer”. No further interrogation took place. This was but one of several “false starts” during the next two days in which Davis, without prompting from the police, first indicated a desire to talk about the “two big things” [presumably the Cook and Pumpian murders] and then changed his mind.

On September 3, 1977, Davis appeared before a Nevada judge and waived extradition. The extradition hearing ended at approximately 10:15 A.M., at which time the troopers made arrangements to fly to San Diego, California to pick up an escapee from the Maryland House of Correction. They left Reno with Davis at approximately 1:30 P.M.

At 6:30 the following morning, September 4, the four men (Horan, Hartman, Davis and the escapee) left San Diego and after a short stop in Chicago, Illinois, arrived at Baltimore-Washington International Airport at 5:31 P.M. The troopers’ intention was to then drive to Baltimore to deliver Davis to the Baltimore City Police Department. Before doing so they stopped at Jessup, Maryland, to deliver the escapee to the House of Correction. When they arrived at the prison, Trooper Hartman remained in the car with Davis while Trooper Horan took the escapee inside. While waiting in the car Davis told Trooper Hartman that he wanted to talk about the Pumpian homicide. When Trooper Horan arrived back in the car a few minutes later Davis again said he wanted to talk about the Pumpian homicide. Before making any statement Davis was advised of his Miranda rights. He then confessed to the Pumpian crime and agreed to repeat it on tape. He was then driven to the Waterloo Barracks of the Maryland State Police where at 6:43 P.M. his statements were recorded on voice tape. The taping session lasted until approximately 10:30 P.M. and included inculpatory statements concerning not only the Pumpian murder but the Kathleen Cook murder as well. The transcript of the tapes shows that before making the statements Davis was fully advised of his Miranda rights and that he waived them. He was taken before a commissioner the following day at 7:00 P.M.

Davis claims in this appeal, as he did below, that his confessions were inadmissible under the doctrine of the fruit of the poisonous tree. See Wong Sun v. United States, 371 U. S. 471, 83 S. Ct. 407 (1963); Everhart v. State, 274 Md. 459, 337 A. 2d 100 (1975). The “poisonous tree”, he argues, was the “seizure” of the serial number of the CB radio at the time his Volkswagen was searched with his consent on July 20,1977. Davis argues that this “seizure” was illegal because although he consented to the search of his automobile the police did not have probable cause to believe that the radio was stolen or was otherwise connected with any crime. From this premise he argues that there was no valid probable cause for the issuance of the arrest warrant charging him with the Willingham rape and robbery for which he was arrested in Nevada on September 1, 1977; that the arrest was therefore illegal; and that his confessions (nearly 4 days later) to the Cook murder following this illegal arrest were inadmissible.

For purposes of this appeal, we shall assume but not decide that Davis’s Nevada arrest, for the reasons argued by him, was illegal. Even so, upon our mandated independent review of the record as a whole, we hold that the confessions were not barred by reason of that illegality. We base our holding upon application of the principles set forth in Ryon v. State, supra, wherein we said:

“1) The Fourth Amendment exclusionary rule applies equally to statements and tangible evidence obtained following an illegal arrest or an otherwise illegal search and seizure.
2) Such statements are not rendered inadmissible simply because of the illegal arrest or unreasonable search and seizure.
3) Such statements are not rendered admissible simply because the Miranda warnings were fully given.
4) Admissibility of such statements, vel non, must be answered on the facts of each case, upon consideration of:
(a) the voluntariness of the statement, which is a threshold requirement;
(b) compliance with the Miranda safeguards, which is important in determining whether the statements were obtained by exploitation of the illegal conduct;
(c) other relevant factors, such as
(i) the temporal proximity of the arrest and the confession;
(ii) the presence of intervening circumstances; and
(iii) 'particularly, the purpose and flagrancy of the official misconduct.’ ” Id at 71-72.

Voluntariness of the Confessions

As already mentioned, Davis does not contend that the State did not fully meet its burden of showing that the confessions were voluntary under Fifth Amendment standards. There is not the slightest evidence that the confessions were the result of any coercion, threats, promises or undue influence on the part of the police.

Compliance with Miranda safeguards

The record shows full compliance with the Miranda safeguards before Davis made his decision to confess, and there is no contention to the contrary.

Other Relevant Factors

The arrest preceded the confessions by nearly four days. During that time Davis was not questioned at all concerning the Cook murder or the Pumpian murder. Judge Getty said in his memorandum opinion following the March suppression hearing:

.. The confession was separated from the arrest by a period of four days. The conversations that took place were initiated by the Defendant. He was before a Judge for the purpose of waiving extradition and made one or two phone calls to his girl friend from the west coast.
Davis’ decision to confess strikes the Court as a battle with his own conscience and not a result of impermissive actions by the two police officers. The tape recording indicates an atmosphere of quiet reflection and free expression.”

Regarding the “purpose and flagrancy of the official misconduct”, we look to the police conduct that Davis contends tainted his confessions and rendered them inadmissible because of the Fourth Amendment exclusionary rule. Here the primary illegality, which we have assumed to exist, is the “seizure” of the CB radio serial number. We assume also (again without deciding) that the serial number led to Davis’s photographic identification by Carol Willingham and his Nevada arrest and that the arrest itself was therefore illegal. Under the circumstances, however, we do not find that the assumed “official misconduct” was flagrant or engaged in with any improper motive or design.

In summary, with respect to Davis’s claim that his confessions were inadmissible under the Fourth Amendment because they followed an illegal arrest, we find that the State has met its burden of showing that the causal connection between the illegal arrest and the confessions made subsequent thereto was broken, and that the confessions were “sufficiently an act of free will to purge the primary taint.” Wong Sun v. United States, 371 U. S. 471, 83 S. Ct. 407 (1963); Brown v. Illinois, 422 U. S. 590, 95 S. Ct. 2254 (1975); Ryon v. State, supra.

II

The Johnson v. State Claim

Following the suppression hearing of March 13th, 14th and 15th, 1978, Judge Getty denied the motion to suppress the confessions. On April 6, 1978, the Court of Appeals filed its opinion in Johnson v. State, supra. Based on the holding in Johnson, Davis renewed his motion to suppress and was permitted to argue as an additional reason for suppression the alleged violation of Maryland District Rule 723 a. The motion was denied before trial on April 10, 1978.

In Johnson, the Court held that M.D.R. 723 a was mandatory, and, of more far reaching importance, that the sanction for violating its provisions was the exclusion of “any statement, voluntary or otherwise, obtained from an arrestee during a period of unnecessary delay in producing him before a judicial officer.” The precise holding of the majority of the Court was as follows:

“We therefore hold that any statement, voluntary or otherwise, obtained from an arrestee during a period of unnecessary delay in producing him before a judicial officer, thereby violating M.D.R. 723 a, is subject to exclusion when offered into evidence against the defendant as part of the prosecution’s case-in-chief. A statement is automatically excludible if, at the time it was obtained from the defendant, he had not been produced before a commissioner for his initial appearance within the earlier of 24 hours after arrest or the first session of court following arrest, irrespective of the reason for the delay.”
“We note also that a truly spontaneous ‘threshhold’ confession or statement uttered at the time of arrest or shortly thereafter would not be excludible on the grounds that police subsequently failed to act diligently in complying with M.D.R. 723 a. In such cases there is manifestly no connection between the delay and the statement, and since police misconduct does not in any way contribute to the making of the confession, the exclusionary rule would logically not apply. United States v. Mitchell, 322 U. S. 65, 70, 64 S. Ct. 896, 88 L.Ed. 1140 (1944); United States v. Seohnlein, 423 F. 2d 1051, 1053 (4th Cir.), cert. denied, 399 U.S. 913 (1970); 1 C. Wright, Federal Practice and Procedure (Criminal) § 73, at 79-80 (1969).” Id. at 328-330.

The appellant argues that because the Maryland police obtained custody of Davis from the Nevada police at 1:30 P.M. on September 3, 1977 and was not taken before a judicial officer in Maryland until 7:00 P.M. on September 5, 1977 (more than 24 hours after obtaining custody), the Johnson exclusionary rule operates to automatically exclude his confessions to the Cook murder. We do not agree. We explain as follows.

Davis was arrested in Reno, Nevada, only in connection with the Willingham rape and robbery. His arrest there was not related in any way to the Cook murder to which he subsequently voluntarily confessed on Sunday, September 4, 1977, upon his arrival back in Maryland. Until that time, there was no occasion to take him before a judicial officer as “an arrestee” in the Cook murder case. Whatever duty the police officers may have had to comply with M.D.R. 723 a with respect to Davis as an arrestee in the Willingham case did not exist with respect to Davis as an arrestee in the Cook case until he in fact became an arrestee in the Cook case.

As pointed out by the majority in Johnson, “the purpose of the rule [M.D.R. 723] is to insure that an accused will be promptly afforded the full panoply of safeguards provided at the initial appearance.” Id. 321. The Court then listed the principal protections afforded by the rule: 1) “a prompt hearing at which a neutral judicial officer must determine whether sufficient probable cause exists for the continued detention” of a defendant arrested without a warrant, Id. 321; 2) the obligation of the judicial officer “at the initial appearance to make a determination of the defendant’s eligibility for pretrial release under M.D.R. 721”, Id. 322; 3) the right of the accused to be informed “of every charge brought against him”, Id. 322; 4) the right of the accused to be informed “of his right to counsel, and, if indigent, to have counsel appointed for him”, Id. 322; and 5) the right of the accused “to request a full preliminary hearing” under M.D.R. 727 “where the defendant has been charged with a felony over which the District Court lacks subject matter jurisdiction.” Id. 322. It is clear to us that those purposes could not have been accomplished with respect to Davis vis-a-vis the Cook murder charge until at least the time of his first oral confession concerning that crime. Until that time, he was a “defendant... detained pursuant to an arrest upon a warrant” (M.D.R. 723 a) that charged him only with the Willingham rape and robbery. As such a defendant he was entitled to presentment before a judicial officer without unnecessary delay to insure him of the enumerated protections afforded by such a presentment. Until he confessed to the Cook murder, however, his detention by the police was unrelated to that crime and presentment before a judicial officer would have been meaningless to him so far as that crime was concerned. For example, there would have been no determination of probable cause to arrest for the Cook murder — for the simple reason that he had not been arrested for that crime; there would have been no determination of eligibility for pretrial release concerning the murder charge — because there was no such charge; he would not have been informed of the murder charge — because there was none; he would not have been informed of his right to have counsel assist him in defending against the murder charge — because he had not been so charged; and, of course, he would not have been informed of his right to request “a full preliminary hearing” on a charge that did not then exist.

We hold, therefore, that under the peculiar facts and circumstances of this case, appellant Davis did not occupy the position of an arrestee until he first confessed to the Cook murder. Only after that time can it be said that he was being detained (arrested) for that crime.

Davis’s voluntary confession to the Cook murder was recorded on tape beginning at 8:25 P.M. on Sunday, September 4, 1977, at the Waterloo Barracks of the State Police in Howard County. The record indicates that just prior to 8:25 P.M. he had expressed a willingness to talk about the Cook murder but the record does not show that he began making any meaningful inculpatory statements concerning that crime until 8:25 P.M. The confession was completed at 10:30 P.M. In this case, therefore, we do not consider that Davis was an “arrestee” for the Cook murder; within the meaning of the Johnson exclusionary rule, until 10:30 P.M. on Sunday, September 4, 1977.

It is true that until that time he was being “detained pursuant to an arrest” (M.D.R. 723 a), but the detention was for a specific charge, of which he was made fully aware at the time of his arrest and which was totally unrelated to the crime to which he subsequently confessed. Until he did confess, there is no evidence that his detention was related in any way to the Cook murder or that the police initiated any discussion concerning it.

It is thus apparent that Davis’s confession preceded, or at least coincided with, his “arrest” for the Cook murder. Viewed in this light, the confession was, in the words of the Johnson decision, “a truly spontaneous threshhold confession or statement uttered at the time of arrest or shortly thereafter” and is “not excludible on the grounds that police subsequently tailed to act diligently in complying with M.D.R. 723 a”, because “there is manifestly no connection between the delay and the statement, and since police misconduct does not in any way contribute to the making of the confession, the exclusionary rule would logically not apply.” Id. at 329.

Aside from what we have already said concerning the application of the Johnson rule to Davis’s confessions to the Cook murder, we think there is another reason why the Johnson exclusionary rule does not operate to exclude these confessions. M.D.R. 723 a obviously has no extraterritorial effect as a matter of law. Its provisions do not purport to tell law enforcement officers outside the State what to do — whether the officers be employed by Maryland or some other state. When a Maryland officer obtains custody of a person outside of Maryland his duties with respect to that person are, while he is still without Maryland’s boundaries, not governed at all by M.D.R. 723 a because, as we said, the rule has no extraterritorial effect. Whatever duty the custodial officer may have to return his prisoner to Maryland for prompt presentment to a Maryland judicial officer derives not from M.D.R. 723 a but from the common law or from constitutional considerations of due process, or from the implications of the Uniform Criminal Extradition Act (Md. Ann. Code, 1957,1978 repl. vol., Art. 41, § 16-43). None of these sources provide a per se exclusionary sanction for their violation such as the Court of Appeals has imposed for the violation of M.D.R. 723 a.

Since M.D.R. 723 a has no extraterritorial effect, it follows that its provisions cannot begin to operate until there is “a defendant who is detained [in Maryland] pursuant to an arrest [in Maryland] ” (M.D.R. 723 a). In the present case, then, the earliest that M.D.R. 723 a could have come into play was 5:30 P.M. on Sunday, September 4, 1977. At that time, Davis came into Maryland and was then in the position of being detained pursuant to the Maryland arrest warrant that had been issued on August 30 in Baltimore City charging him with the Willingham rape and robbery. He was then clearly an arrestee with respect to those charges, but, as already stated, he did not become an “arrestee” vis-a-vis the Cook murder until 10:30 P.M. when he completed his taped confessions to that crime.

But even if we were to hold, with respect to the confessions to the Cook murder, that the time clock for measuring the commencement of the “period of unnecessary delay” began to run at 5:30 P.M. on September 4, we do not believe the Johnson exclusionary rule requires rejection of the confessions. It is true that Davis was not presented to a judicial officer for more than 24 hours after his arrival in Maryland. To that extent M.D.R. 723 a was violated. But as we read the Johnson exclusionary rule it operates to automatically exclude a defendant’s statement only if, “at the time it was obtained from the defendant” (Johnson, supra, at 329), the period of delay in presentment had extended beyond 24 hours after arrest or beyond the first session of court after arrest, whichever was earlier. Because the confessions to the Cook murder in this case were given well within the applicable 24 hour period after “arrest” in Maryland they are not automatically excluded by the Johnson holding.

The question then becomes whether at the time the confessions were obtained a period of unnecessary delay in presentment had expired. Judge Getty found there was no unnecessary delay in presentment without regard to when the confessions were given. In the circumstances, we cannot say he was clearly erroneous — and when the time of the confessions is considered (the first Cook confession was begun at 8:25 P.M., only 2 hours after Davis’s arrival in Maryland), the correctness of his ruling admitting the confessions is manifest.

Ill

Appellant’s final contention is that the trial judge erred in refusing to instruct the jury that if they found that M.D.R. 723 a had not been complied with “the confession should not be considered by them as evidence and should be excluded.” Judge Getty declined to give the instruction because he found the question “to be a matter of law”. We think the judge was correct in his ruling.

Appellant asserts that, “Because Johnson, supra, in effect makes a confession obtained without compliance with M.D.R. 723 a ‘per se’ involuntary, this question like any other question of voluntariness must be decided by the juror [sic].” He argues from an incorrect premise. The Johnson per se exclusionary rule has nothing whatsoever to do with voluntariness, the Fifth Amendment, or any other constitutional right of criminal defendants. It operates upon “any statement, voluntary or otherwise” (Johnson, supra, at 328). Its purpose is purely to police the police and it was adopted expressly at the expense of the traditional voluntariness analysis. Id. at 325. We agree with the following statement contained in the State’s brief:

“... The situation is analogous to the questions of law surrounding admission of evidence claimed to have been obtained by an illegal search and seizure. Despite the Maryland constitutional provision establishing a criminal jury as the judge of the law and the fact, the preliminary ruling on the admissibility of evidence remains a matter exclusively for the trial judge. Brady v. State, 373 U. S. 83, 89-91, 83 S. Ct. 1194, 1198, 10 L.Ed.2d 215 (1963); Hepple v. State, 31 Md. App. 525, 554, aff’d, 279 Md. 265 (1976); Linkins v. State, 202 Md. 212, 221 (1953).”

IV

The State argues that the complete answer to the appellant’s claim that Johnson v. State, supra, renders his confessions inadmissible is that the rule in Johnson should not be applied retrospectively to confessions obtained prior to the decision in that case. In Shope v. State, 41 Md. App. 161, 396 A. 2d 282 (1979), cert. denied March 23, 1979, we considered essentially the same argument and although we found considerable merit in the State’s position, we nevertheless held that the Johnson rule applies to cases not “finally decided” at the time of the Johnson decision — even though the challenged confessions were obtained before that time. In view of our holding in the present case that even applied retrospectively the Johnson rule does not bar the confessions in this case, we shall not reexamine here our holding in Shope.

Judgments affirmed.

Costs to be paid by appellant.

      . The record shows that all references to the Pumpian murder were edited out of the tapes and transcripts heard and seen by the jury.

      . Appellant does not argue that the radio itself was permanently removed from his possession. Indeed the record shows that after Trooper Hartman removed the radio to inspect and record the serial number he immediately replaced the radio in the car where he found it. Davis complains here only of the “seizure” of the serial number.

      . Upon listening to the tapes ourselves we agree with the judge’s assessment.

      . M.D.R. 723 a:
      “A defendant who is detained pursuant to an arrest shall be taken before a judicial officer without unnecessary delay and in no event later than [the earlier of (1)] 24 hours after arrest [or (2) the first session of court after the defendant’s arrest upon a warrant or, where an arrest has been made without a warrant, the first session of court after the charging document is filed], A charging document shall be filed promptly after arrest if not already filed.” (By Rules Order dated May 4, 1979, the Court of Appeals eliminated from the rule the words shown in brackets. The amendment becomes effective July 1, 1979.)

      . It was stipulated at the April 10th suppression hearing that during the period September 3rd (Saturday), September 4th (Sunday) and September 5th (Labor Day), there were no sessions of the District Court in Baltimore City or Baltimore County, but that a commissioner was on duty in both jurisdictions during that period. Thus, appellant argues the outer limit of the time period for presentment was 24 hours after the Maryland police obtained custody of him in Nevada.

      . Prior to that time, beginning at 6:43 P.M., he had also recorded on tape statements concerning the Pumpian murder.

      . Actually, between 8:25 P.M. and 10:30 P.M. he confessed twice: once to Troopers Horan and Hartman and again, in further detail, in the presence of Troopers Horan and Hartman and Lieutenant Travers of the Maryland State Police. At the beginning of the second confession, Davis’s girlfriend arrived at the Waterloo Barracks in response to a phone call he was allowed to make to her. She was allowed to remain in the room during at least part of the time Davis was confessing. Davis told her that “he was giving — [the police] a statement because it was bottled up inside of him and he was now getting it all off his chest.”

      . Since neither M.D.R. 728 a nor the Johnson exclusionary rule involves constitutional rights, we are not required to make an independent appraisal of the issues; rather we are bound by the clearly erroneous rule. Md. Rule 1086.


text:
    RICHARD MILES CHANEY v. STATE OF MARYLAND
    [No. 662,
    September Term, 1978.]

      Decided June 7, 1979.

    The cause was argued before Moylan, Mason and MacDaniel, JJ.

      Bradford C. Peabody, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Valerie A. Leonhart, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, Naji P. Maloof, State's Attorney for Calvert County, and Gerald K. Anders, Assistant State's Attorney for Calvert County, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

A criminal justice system, by its very nature, frequently involves the delicate balancing of competing interests. A society dedicated to human liberty must be ever vigilant that a suspect never be compelled to incriminate himself. That same society, legitimately concerned with protecting itself from its predators, must also be sensitive to the value of an admission or confession, properly obtained, as sometimes indispensable evidence of guilt. But for the confession in the case at bar, a brutal sexual assault and strangulation of a ten-year-old girl might have gone forever unredressed.

On December 6, 1971, ten-year-old Elizabeth Ann Metzler failed to return from school to her home in northern Anne Arundel County. On the next day, her lifeless body was found in the woods several miles from home. She had been sexually molested and strangled. Although suspicion centered on the appellant, Richard Miles Chaney, the evidence of guilt was not sufficient to bring charges. Instead of relegating this senseless murder to the dustbin of “unsolved crimes,” the Anne Arundel County police bided their time and with patient diligence maintained the investigation. It ultimately bore fruit with the indictment of the appellant 5 Vz years later. The appellant, following a removal, was ultimately found guilty by a Calvert County jury, presided over by Judge Perry G. Bowen, Jr., of murder in the first degree. Although bits and pieces of the case for the State were put together from a variety of sources over the course of the years, the capstone was the appellant’s confession. The prime thrust of this appeal is his challenge to its admissibility.

The appellant does not maintain that the interrogation leading to his confession offended traditional voluntariness standards in contravention of the Fifth and Fourteenth Amendments. Rogers v. Richmond, 365 U. S. 534, 81 S. Ct. 735, 5 L.Ed.2d 760 (1961); Culombe v. Connecticut, 367 U. S. 568, 81 S. Ct. 1860, 6 L.Ed.2d 1037 (1961); Jackson v. Denno, 378 U. S. 368, 84 S. Ct. 1774, 12 L.Ed.2d 908 (1964). Nor does he contend that there was a violation of the judicially created prophylactic rules suggested by the Supreme Court to implement the underlying constitutional protection. Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966). He does, however, urge most strenuously a violation of Maryland District Rule 723 a as interpreted by Wade Iglehart Johnson v. State, 282 Md. 314, 384 A. 2d 709 (1978). As we address that issue, we note at the outset that we are not here dealing with the question of whether Rule 723 a and Johnson v. State were satisfied, but with the very distinct question of whether Rule 723 a and Johnson v. State were applicable.

Maryland District Rule 723 a then provided:

“A defendant who is detained pursuant to an arrest shall be taken before a judicial officer without unnecessary delay and in no event later than the earlier of (1) 24 hours after arrest or (2) the first session of court after the defendant’s arrest upon a warrant or, where an arrest has been made without a warrant, the first session of court after the charging document is filed. A charging document shall be filed promptly after arrest if not already filed.”

In implementing Rule 723 a, Johnson v. State held explicitly at 282 Md. 328-329:

“We therefore hold that any statement, voluntary or otherwise, obtained from an arrestee during a period of unnecessary delay in producing him before a judicial officer, thereby violating M.D.R. 723 a, is subject to exclusion when offered into evidence against the defendant as part of the prosecution’s case-in-chief. A statement is automatically excludible if, at the time it was obtained from the defendant, he had not been produced before a commissioner for his initial appearance within the earlier of 24 hours after arrest or the first session of court following arrest, irrespective of the reason for the delay.”

Before returning to Johnson v. State, a brief detour will be appropriate to recite the circumstances surrounding the taking of the confession in this case. Detectives Gordon March and Thomas Mock, of the homicide unit of the Anne Arundel County Police Department, were visiting an inmate, who was about to be paroled, at the Maryland Correctional Camp Center in Jessup on July 22, 1977. The two detectives agreed to help that inmate get a job upon his release. The appellant, who was also about to be paroled from a sentence he was then serving on an unrelated matter, overheard the conversation. Curious, he asked Detective March for help in getting a job also and for help in dealing with various personal problems with his wife and others. Detective March responded that he would come back on another occasion and take the appellant out of the institution in order to sit down and talk about these problems. Candidly, Detectives March and Mock admitted that they were “very happy” with this turn of events because the appellant had long been the prime suspect in the Metzler murder case and the detectives were anxious to seize the opportunity to talk to him.

On July 25, 1977, Detective March obtained a “writ of habeas corpus” from District Court Judge George Taylor which instructed him to take the appellant from the camp center at 8 a.m. on July 26, 1977, and to return him thereto by midnight on July 28,1977. Pursuant to the writ, Detectives March and Mock took the appellant into custody at 8:15 a.m. on July 26.

They took him to the Millersville Police Station. The appellant was advised of his Miranda rights and signed a waiver form. After a brief discussion about personal problems, the conversation turned to the Metzler murder. The detectives asked the appellant point-blank if he had killed the little girl. The appellant responded that because of the fact that he had been drinking heavily during the period in question, he “did not know whether he did or he didn’t.” On July 26, the questioning of the appellant stopped at approximately 7 p.m.

On the following day, the appellant was questioned for approximately one hour in the morning. He was taken out to lunch at 11:15 a.m. Following that, he was taken to view the murder scene and was returned to the police station at sometime between 3 and 4 p.m. At 5 p.m., he was taken to dinner. At 6:30 p.m., the final interrogation began. The confession was completed at about 8 p.m. on July 27. These facts must now be measured against the standard of Rule 723 a and Johnson v. State.

The very thorough analysis by Judge Levine for the Court of Appeals in Johnson makes it explicit that the Johnson rule represents the adoption in Maryland of the so-called McNabb-Mallory rule. 282 Md. 320-332. The Supreme Court cases of Mallory v. United States, 354 U. S. 449, 77 S. Ct. 1356, 1 L.Ed.2d 1479 (1957), and McNabb v. United States, 318 U. S. 332, 63 S. Ct. 608, 87 L. Ed. 819 (1943), along with Upshaw v. United States, 335 U. S. 410, 69 S. Ct. 170, 93 L. Ed. 100 (1948), mandated in the federal courts the per se exclusion of a confession taken during a period of unnecessary delay following an arrest. The Court of Appeals points out, at 282 Md. 323:

“The Supreme Court has itself acknowledged that the McNabb-Mallory rule is not derived from the Constitution, but rather is the product of the exercise of the Court’s supervisory authority over the administration of criminal justice in the federal courts.... Consequently, the rule is not binding on the states.” (Citations omitted)

After thoroughly analyzing the pros and cons of the McNabb-Mallory rule, the majority of the Court of Appeals adopted it explicitly. Indeed, the dissenting opinion of Chief Judge Murphy, joined in by Judge Smith and Judge Orth, is equally explicit as to the per se adoption of the so-called McNabb-Mallory rule, saying at 282 Md. 342-343:

“As the majority readily acknowledges, the per se exclusionary rule is not constitutionally mandated but derives from an exercise by the Supreme Court of the United States of its supervisory authority over the lower federal courts. McNabb v. United States, 318 U. S. 332, 63 S. Ct. 608, 87 L. Ed. 819, decided in 1943; Upshaw v. United States, 335 U. S. 410, 69 S. Ct. 170, 93 L. Ed. 100, decided in 1948; and Mallory v. United States, 354 U. S. 449, 77 S. Ct. 1356, 1 L.Ed.2d 1479, decided in 1957, collectively make clear that it was the Supreme Court’s view that the right of an accused person to prompt presentment before a judicial officer following arrest would be most effectively protected by a rule which automatically excluded from evidence confessions obtained during a period of ‘unnecessary delay’ in presenting the accused for arraignment.”

Since the rule of Johnson is, in effect, the local application of the federal McNabb-Mallory rule, we have the benefit of the large body of case law interpreting McNabb-Mallory and available to us, at least persuasively. Turning to the Supreme Court itself as the ultimate expositor of McNabb-Mallory, we have no difficulty in holding that the JohnsonMcNabb-Mallory rule does not apply to the case before us. In United States v. Carignan, 342 U. S. 36, 72 S. Ct. 97, 96 L. Ed. 48 (1951), the Supreme Court was dealing with a situation very similar to the one in this case. Carignan was being lawfully detained on charges of assault with intent to rape when he was questioned by the police about the murder for which he was ultimately convicted. Claiming that he had been interrogated in violation of the rule in McNabb and Upshaw (Mallory had not yet been decided), he obtained a reversal of his conviction in the United States Court of Appeals for the Ninth Circuit. Carignan v. United States, 185 P. 2d 954. On certiorari, the Supreme Court reversed the Ninth Circuit and reinstated the conviction holding that the McNabb-Upshaw principle did not apply when the subject of the interrogation is already in custody on other charges. The Supreme Court stated the problem at 342 U. S. 41-42:

“[TJhis Court in recent years has enforced a judicially created federal rule of evidence, to which the label ‘McNabb rule’ has been applied, that confessions shall be excluded if obtained during ‘illegal detention due to failure promptly to carry a prisoner before a committing magistrate, whether or not the “confession is the result of torture, physical or psychological.” ’ Violation of the McNabb rule, in the view of the Court of Appeals, not the assertedly involuntary character of the confession, caused that court to reverse the conviction. Our problem in this review is whether the McNabb rule covers this confession or, if not, whether that rule of evidence should now be judicially extended to these facts.”

In then holding that the McNabb rule did not apply to circumstances where the subject of the interrogation was already in lawful detention on other charges, the Supreme Court explained at 342 U. S. 43-44:

“One cannot say that this record justifies characterization of this confession as given during unlawful detention. Rule 5, Federal Rules of Criminal Procedure, does not apply in terms, because Carignan was neither arrested for nor charged with the murder when the confession to that crime was made. He had been arrested and committed for the assault perpetrated six weeks after the murder. His detention, therefore, was legal. Further, before the confession, there was basis for no more than a strong suspicion that Carignan was the murderer. That suspicion arose from a doubtful identification by a person who had in passing seen a man resembling the respondent at the scene of the murder and from a similarity of circumstances between the murder and the assault. The police could hardly be expected to make a murder charge on such uncertainties without further inquiry and investigation. This case falls outside the reason for the rule, i.e., to abolish unlawful detention.”

The Supreme Court concluded by stating its holding explicitly at 342 U. S. 45:

“We decline to extend the McNabb fixed rule of exclusion to statements to police or wardens concerning other crimes while prisoners are legally in detention on criminal charges.”

The United States Courts of Appeals have on a number of occasions ruled that the McNabb-Mallory rule does not apply when the suspect being interrogated is already in lawful detention. One such case was Stille v. United States, 354 F. 2d 233 (10th Cir. 1965). Stille was arrested by New Mexico state authorities on May 16, 1965, for a series of traffic offenses and was sentenced to 30 days in jail. During the first four days of that detention, he was questioned by federal authorities and gave a statement used to convict him of a violation of the Dyer Act. He sought to have it excluded under the rule of McNabb-Mallory because he had not been taken, without undue delay, before a United States commissioner. The Tenth Circuit declined to apply McNabb-Mallory, holding:

“[Njeither Mallory nor Rule 5 constitutes a bar to the right of law enforcement officers to investigate crime by inquiry from obvious suspects. Shultz v. United States, 10 Cir., 351 F. 2d 287. Stille was in lawful custody of state authority, was advised of his right to remain silent and of his right to counsel, and was in no way coerced. His statements were properly admitted.”

Of similar import is Wakaksan v. United States, 367 F. 2d 639 (8th Cir. 1966). The defendant was there serving a sentence, handed down by tribal authorities, for a liquor law violation. While serving that sentence, he was interrogated and gave a statement which helped to convict him of voluntary manslaughter. In rejecting his contention that his rights under McNabb-Mallory had been violated, the Eighth Circuit said at 367 F. 2d 644-645:

“Where defendant is legally detained on a conviction of a crime and the police are not certain of his guilt of a second crime, he can be questioned and a statement may be taken without violating the McNabb rule. United States v. Carignan...

See also Easley v. United States, 333 F. 2d 75 (10th Cir. 1964); Davis v. North Carolina, 339 F. 2d 770, 777-778 (4th Cir. 1964); United States v. Reed, 413 F. 2d 338, 340 (10th Cir. 1969).

In the case at bar, the appellant was not under arrest for the Metzler murder. He was under lawful detention, serving a sentence for another crime. He was not, in the very terms of Rule 723 a, “a defendant ... detained pursuant to an arrest” and the exclusionary rule of JohnsonMcNabb-Mallory does not, therefore, apply to the confession he gave.

The other contentions raised by the appellant will not detain us long. He claims that his confession was the tainted product of his illegal arrest by Detectives March and Mock. Secondarily, we hold that it was a voluntary act so that even if we assumed a primary taint (we do not), the confession was not “come at by exploitation of that illegality” but resulted from “means sufficiently distinguishable to be purged of the primary taint.” Wong Sun v. United States, 371 U. S. 471, 488, 83 S. Ct. 407, 9 L.Ed.2d 441, 455 (1963). Primarily, we hold that there was no arrest. We find highly persuasive United States v. Demetracakis, 334 F. 2d 781 (7th Cir. 1964). The defendant there was being held in pretrial detention by Illinois authorities when federal authorities took him from his cellblock, questioned him and obtained a confession which led to a federal conviction. He claimed that his confession was the tainted product of this illegal detention or federal arrest. In holding against him, the Seventh Circuit said at 334 F. 2d 783-784:

“The defendant asserts that Inspector Culkin took advantage of detention, which he characterizes as illegal, to obtain this confession which thereby became inadmissible in evidence. He considers his detention to be illegal because of a delay in taking him before a magistrate.... He also complains of Inspector Culkin’s failure to bring him before a U. S. Commissioner although he had reasonable grounds for an arrest and told defendant, who denied his guilt three times before confessing, that he was sure of defendant’s guilt. Defendant considers that his removal from the cellblock to an office on the second floor of the police station for questioning, in effect, constituted a federal arrest. We think this is an untenable position. It is clear from the record that defendant was not arrested by the federal officers until the return of a no-bill by the Cook County Grand Jury, on the state charge, whereupon he was remanded to the federal government.
Assuming, without deciding, that this question is properly before us, we must hold that there is no showing of illegal detention.”

The appellant takes umbrage at the fact that the State “impeached” its own identification witness, Sylvia Hutton. At the trial, Miss Hutton testified that she had seen the appellant sitting in a white station wagon with the Metzler girl on the afternoon she disappeared. On several earlier occasions, Miss Hutton had indicated to the police that she could not identify the appellant. On one occasion, she had identified another person. All of this, as well as her explanations therefor, was thoroughly explored on both direct examination and cross-examination. The appellant’s present point is that the impeachment of credibility would have been more devastating if he had had the first crack and if the State had not “drawn the sting” on its own direct examination. Two considerations argue against reversible error. The issue here was the reliability of an identification. Neil v. Biggers, 409 U. S. 188, 199, 93 S. Ct. 375, 381, 34 L.Ed.2d 401, 411 (1972), listed among the “factors to be considered in evaluating the likelihood of misidentification” both the “level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” The prior inconsistent statement or inconsistent performance takes on a relevance in the context of this issue which it might not otherwise possess. In this case, moreover, the total performance by the identifying witness was painstakingly combed over and we are persuaded, beyond a reasonable doubt, that the peripheral question of who got to bring out the information first did not contribute to the verdict and was harmless error. Dorsey v. State, 276 Md. 638, 350 A. 2d 665 (1976).

The State called a witness, Taylor Evans, an inmate, who had earlier given a statement to the State’s Attorney and his investigator. On the stand, the witness refused to testify. He was ordered to do so by the court. After one such order, the witness blurted out, “Well, I feel my life is more important to me than your order.” The appellant moved for a mistrial which was denied. We cannot say that the trial judge abused his discretion in refusing to abort a lengthy and serious trial because of this blurt. The appellant’s companion contention that he did not get to cross-examine the recalcitrant witness before he was taken into custody for contempt is not properly before us. He never attempted to cross-examine the witness and no issue in this regard was raised in the lower court or there decided. Maryland Rule 1085.

John Pierson testified for the State that at a time when he and the appellant were fellow inmates at the Maryland House of Correction, the appellant admitted to him that he had once killed a young girl. On cross-examination, the defense brought out the prior criminal record of the witness by way of impeaching his credibility. To rehabilitate that credibility and to refute the notion that the witness had lately fabricated his trial testimony, the State offered a letter which the witness had written to the State’s Attorney some eight months prior to the trial in which he had recounted essentially the same story. The court instructed the jury to consider the letter only for its rehabilitative purpose — the fact that it was written — and not the truth of its contents. The appellant now contends that the jury was inflamed against him by the characterization in the letter of him as “a fagot.” The fuller context was, “I was in the cell with a fagot last year and he told me he was a suspect at the time of the murder. He also admitted he did it. I was about to take justice in my hands but the big mouth alerted a guard.” The only objection made by appellant’s counsel was to the letter as a whole. We agree with the trial judge that it was admissible for rehabilitative purposes. Counsel never moved to excise or block out the word “fagot” and that limited question is not before us.

The appellant objects to the jury instruction given on the subject of reasonable doubt. When asked at trial if there were any exceptions to the instructions, appellant’s counsel replied, “No exceptions for the Defendant.” There is nothing, therefore, preserved for appellate review. Maryland Rule 757 f and h. There was no plain error.

The point made by the appellant as to a breach of the husband-wife confidential communications privilege disappears on closer analysis. The appellant’s first wife, Doris Chaney, was a witness for the State. The trial judge properly ruled that Mrs. Chaney could not testify as to any communications made by the appellant to her about the Metzler murder during the course of their marriage. She was permitted to testify, however, as to those things she observed — that he returned home one night in December of 1971 covered with blood. The present contention revolves about the colloquy that then followed:

“[STATE’S ATTORNEY]: My next question, listen to my next question. Why didn’t you report it to the police?
[DEFENSE COUNSEL]: Objection.
[THE COURT]: Overruled.
[DORIS CHANEY]: Because I felt like I was safe then to tell because he threatened my life and threatened it bad.
[DEFENSE COUNSEL]: Objection.
[STATE’S ATTORNEY]: Don’t say anything that he said.
[DORIS CHANEY]: Okay.”

A defense motion for mistrial was made and denied. The first objection was to the question, “Why didn’t you report it to the police?” There was nothing improper about that question and the objection was properly overruled. In arguing that a mistrial should have been granted, the appellant does not urge that the answer given by Mrs. Chaney was inflammatory or prejudicial but only that it breached the privilege for confidential marital communications. We need not even get into the complexities of Harris v. State, 37 Md. App. 180, 376 A. 2d 1144, and Coleman v. State, 281 Md. 538, 380 A. 2d 49, in this regard for the simple reason that the answer objected to did not go into the substance of a communication. The fact that the appellant threatened his wife is a significant act that may be testified to. We are not dealing here with words or thoughts communicated but simply with an act. We see no error.

The appellant’s final contention is that a photographic identification of him by Sylvia Hutton was the tainted product of an impermissibly suggestive viewing procedure. A thorough pretrial hearing on this question was held. There was no shred of testimony remotely suggesting that anyone had prompted Ms. Hutton in selecting the appellant’s picture from an array of 12 to 14 photographs. The fact that Ms. Hutton had agreed to submit to hypnosis three days prior to the photographic identification in order “to prod her memory concerning the incident” in no way taints the procedure that occurred three days later. The appellant’s final pro se point about the lapse of time between the crime in December, 1971, and the identification on May 19, 1977, goes to the weight of the identification on the merits and not to the constitutional question of police procedure in staging the photographic viewing.

Judgment affirmed; costs to be paid by appellant.

      . On July 1, 1979, reference to the first court session after arrest was deleted.


text:
    B.P. OIL, INC. v. COUNTY BOARD OF APPEALS FOR MONTGOMERY COUNTY, MARYLAND
    [No. 676,
    September Term, 1978.]

      Decided June 7, 1979.

    The cause was argued before Moylan, Mason and MacDaniel, JJ.

      Robert H. Metz, with whom were David D. Freishtat and Linowes & Blocher on the brief, for appellant.

      Carole A. Jeffries, Assistant County Attorney for Montgomery County, with whom were Richard S. McKernon, County Attorney and Robert G. Tobin, Jr., Deputy County Attorney, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

The case is one of zoning. The zone in question, situate in Montgomery County just northeast of Rockville, is 1-2 (heavy and light industrial). In such a zone, a filling station is permitted by way of special exception. B.P. Oil, Inc., (B.P.), Appellant, applied for such an exception. It was denied by the Appellee, the County Board of Appeals (the Board). B.P. appealed the decision to the Circuit Court for Montgomery County. In that court, Judge Joseph M. Mathias affirmed the decision of the Board. From that affirmance, the present appeal to us is noted.

The function of a zoning board is to exercise discretion (the discretion of experts in their particular field) in deciding matters brought before it. Heath v. Mayor and City Council of Baltimore, 187 Md. 296, 49 A. 2d 799, 804 (1946). A reviewing court, at either the circuit level or the appellate level, will not substitute its judgment for that of the board when the board is acting in its discretionary range. The granting or denying of a special exception will be affirmed unless the action of the board is shown to be arbitrary, capricious or illegal. Marino v. City of Baltimore, 215 Md. 206, 137 A. 2d 198, 205 (1957); Brouillett v. Eudowood Shopping Plaza, Inc., 249 Md. 606, 241 A. 2d 404, 405 (1968); Crowther, Inc. v. Johnson, 225 Md. 379, 170 A. 2d 768, 770 (1961).

In phrasing their arguments before us, both B.P. and the Board fail to get a firm handle on the allocation of the burdens of proof — both the production burden and the persuasion burden. B.P. particularly fails to distinguish between the quantity and quality of evidence which is legally sufficient to permit a result and that which is so clear, decisive and indisputable as to compel a result.

To obtain the special exception, B.P. was obliged to satisfy the Board in three respects. Under Section 59-123 of the Montgomery County Code, it was required to persuade the Board as to the existence of seven affirmative criteria. Section 59-123 (a) places the burden of proof squarely upon the applicant for the exception:

“A special exception may be granted when the Board, or the director, as the case may be, finds from a preponderance of the evidence of record that the proposed use: ...” (Emphasis supplied).

B.P. met its production burden by introducing legally sufficient evidence to satisfy each of the criteria. It went further and met its persuasion burden because the evidence which was legally sufficient to persuade actually did persuade. The Board found for B.P. in this regard.

B.P. successfully cleared yet a second hurdle. Under Section 59-131 of the Montgomery County Code, it was required to persuade the Board that three adverse consequences would not accrue. It met its production burden by introducting legally sufficient evidence to permit the Board so to find. It went further and met its persuasion burden by convincing the Board so to find.

The Appellant tripped, however, when it came to the third hurdle. Section 59-124 (f) of the Montgomery County Code requires the finding of a special need before a special exception may be granted for an automobile filling station:

“In addition to the findings required in Sections 59-123 and 59-125 through 59-184,. the following special exceptions may be granted when the Board or director, as the case may be, finds from a preponderance of the evidence of record that for the public convenience and service a heed exists for the proposed use for service of the population in the general neighborhood considering the present availability of such uses to the neighborhood." (Emphasis supplied).

The Board simply was not persuaded by a preponderance of the evidence that a need existed. Was this failure to be persuaded arbitrary, capricious or illegal? Clearly not.

B.P. appropriately looks to American Oil Co. v. Board of Appeals of Montgomery County, 270 Md. 301, 310 A. 2d 796 (1973) as it sets out six criteria for a zoning body to use in evaluating the need for an automobile filling station. B.P. then details minutely how it offered evidence as to each of these six criteria. What is thereby established, however, is beside the point. All that B.P. succeeds in demonstrating is that if the Board had been persuaded in its discretion to grant the special exception requested, the decision of the Board in that regard would have been legally unassailable. B.P.’s evidence was legally sufficient to generate a fairly debatable question as to need. Had the Board gone B.P.’s way, such action by the Board would not have been arbitrary, capricious or illegal. To say that upon these facts the Board would have been permitted to find for B.P. is not to say that it was compelled to find for B.P.

B.P. refers to its evidence on need as “unrefuted.” As a matter of fact, the opponents did offer “refuting” testimony but that was not a sine qua non of B.P.’s failure. B.P. bore the risk of nonpersuasion; the opponents did not bear a corresponding risk of nondissuasion.

B.P. seeks precedential solace in Erdman v. Board of Zoning Appeals of Balto. Co., 212 Md. 288, 294, 129 A. 2d 124 (1957); Prince George’s Co. v. Lightman, 251 Md. 86, 246 A. 2d 261 (1968) and Redden v. Montgomery County, 270 Md. 668, 313 A. 2d 481, 490-491 (1974) for the proposition that an action by a zoning board is arbitrary, capricious or illegal “where the record is barren of supporting facts.” B.P. has turned the case law upon its head, however, for it is looking to cases where the special exception was granted and where the appeal is by the protestants from an affirmative zoning act. What cannot be barren is the record made in such a case by a proponent of change to sustain an affirmative zoning action. The proponent always has the burden of proof (pertinently, here, the production burden) and must introduce enough evidence to generate a fairly debatable question in order to sustain a zoning decision in his favor.

The thrust of these principles cannot, however, be reversed and turned upon a negative decision where a board is not persuaded to act. They do not impose upon an opponent of zoning change some corresponding burden to generate a fairly debatable doubt. By a sleight-of-hand, B.P. flashes the legitimate burden upon a proponent to sustain an action and tries to palm it off as a transferred burden upon the opponent to sustain a non-action. Though it may work with rabbits, the sleight-of-hand won’t work with the allocation of the burden of proof.

Where B.P. seeks, as here, to say that the Board was compelled, as a matter of law, to rule in its favor, B.P. assumes not merely the lesser burden of generating a fairly debatable issue so as to permit a ruling in its favor but the significantly greater burden of actually dispelling fair debate by proof so clear and decisive as legally to compel a ruling in its favor. In this case, B.P.’s own evidence, though adequate, was equivocal. Its own market survey showed some public support for its proposed facility but no strong or unambiguous cry for such services. The evidence as to what was the appropriate neighborhood was also ambiguous at best — one version arguably showing need; the other, significantly dispelling it. The need was, in short, fairly debatable.

There is frequently such a middle ground wherein it is neither arbitrary, capricious or illegal to say, “Yes,” nor arbitrary, capricious or illegal to say, “No.” The decision here was in that discretionary range of the Board and was not compelled either way as a matter of law. B.P. amply met its burden of production. It did not, however, meet its burden of persuasion for the obvious reason that it failed to persuade those whom it needed to persuade. It lost a fair judgment call and from that, there can be no successful appeal.

Those who would use precedent carefully must learn to distinguish between that minimal quantity of evidence permitting fair debate, looking in one direction, and the massively greater quantity and quality of evidence necessary to foreclose fair debate, looking in the other direction.

Judgment affirmed; costs to be paid by appellant.