author: Moore, J.,

text:
    PATTON FULTON GAINER v. STATE OF MARYLAND
    [No. 20,
    September Term, 1978.]

      Decided October 11, 1978.

    The cause was argued before Morton, Moore and Couch, JJ.

      Michael R Malloy, Assistant Public Defender, with whom was Alan H.. Murrell, Public Defender, on the brief, for appellant.

      Michael A. Anselmi, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Mark Cohen, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

At a jury trial in the Criminal Court of Baltimore (Kaplan, J., presiding) appellant was convicted of murder in the second degree and was sentenced to a term of 22 years’ imprisonment. On this appeal, he assigns error principally in the trial court’s refusal to grant an instruction, under the “castle” doctrine, that there was no duty on his part to retreat because appellant was in his own home. A subsidiary assignment of error is that the State improperly requested appellant, during cross-examination, to identify the victim’s mother who was present in the courtroom. For the reasons stated, we find reversible error in the court’s failure to grant the requested instruction.

I

Shortly after 8:00 P.M., on March 3, 1977, appellant, then 16 years of age, shot and killed Kenneth Dorsey, his sister’s fiance, age 19, with a rifle. That he did so was not denied. Instead, appellant claimed that he used the weapon in self-defense.

There was evidence before the jury, adduced by the State, tending to establish the following facts:

Appellant, his brother, four sisters, and two nephews resided with their mother in a house in Baltimore City. Kenneth Dorsey, the victim, was engaged to appellant’s sister, Romaine, age 18, and resided with his mother two doors away. Appellant was a student at the Harbor Learning Center; Dorsey was employed at a local “Club” where there was a bar and a package dispensary.

Dorsey left his place of employment on March 3, 1977, shortly after 6:30 P.M., following a late afternoon birthday party for a fellow employee. About one hour later, he stopped at the Gainer residence to see Romaine where he found her and the appellant, her brother, quarreling. When Dorsey intervened on Romaine’s behalf, a heated argument — lasting over twenty minutes — ensued between appellant and Dorsey. The latter then left the Gainer home but returned after another twenty minutes with a carton of beer.

Upon Dorsey’s return, the argument between the two young men — the subject matter of which could not be recalled by any of the witnesses — resumed. Approximately ten minutes later, appellant went upstairs; he reappeared in a few moments bearing a .22 caliber semi-automatic rifle which he had obtained from the room of his brother Rommel. Dorsey was then standing near the front door of the residence and Romaine was nearby. Appellant descended the stairway, stopped about halfway down, raised the rifle and fired twice at Dorsey who fell to the floor. Romaine examined him, then rushed to the phone to summons an ambulance. Dorsey was pronounced dead at 10:30 P.M. at the hospital, after emergency surgery. The cause of death was a gunshot wound in the chest; he had also sustained a nonfatal gunshot wound of the left thigh.

After the shooting, appellant fled from the scene and disposed of the rifle. Later, in a telephone conversation with his mother, he was persuaded to surrender himself to the police. The police apprehended him at 2:40 A.M. on March 4th at his home pursuant to an arrest warrant.

Appellant was 5' 10" and weighed 140 pounds; the victim Dorsey was 5' 8" and weighed 126 pounds. There was no evidence that appellant had been drinking although the autopsy which was performed on Dorsey at approximately 10:30 P.M. disclosed that his blood alcohol level was .17. Medical testimony indicated that the alcohol level was decreased by the injection of intravenous fluids and blood. Notwithstanding testimony that Dorsey had been taking Valium while drinking, the autopsy failed to detect any signs of drugs.

The State’s version of the case was presented through seven witnesses, including appellant’s three sisters who were present at the time of the fatal shooting. In addition to Romaine, the State presented Gail, 16, and Wilvetta, 14, who had given a written statement to the police on the evening of the killing. A detective testified on cross-examination that after his arrest, appellant told the police that following the verbal altercation, Dorsey left the Gainer home and then returned; and that because appellant was apprehensive that Dorsey was armed, he became frightened and shot him. “He [appellant] said he shot the man because he thought the man had something behind his back,” the detective testified.

Appellant’s version of the details and circumstances of the homicide was presented through his own testimony and that of five other witnesses, including his mother and brother. According to appellant, the victim Dorsey was the owner of a .44 caliber Magnum, customarily left in his car, which on that evening was parked near Dorsey’s house two doors away. Appellant further testified that after the argument, in which Dorsey was abusive of him, he became apprehensive and went upstairs to arm himself with his brother’s rifle. He obtained the rifle from in back of his brother’s bed and inserted two cartridges. On redirect, he quoted the victim as saying, “Come on down now. I’ve got something for you. I am going to kill you,” and testified it was at that point that he obtained the rifle. Appellant admitted stopping halfway down the stairs and testified further that Dorsey was immediately below, near the first step, with his hands behind his back. Dorsey suddenly brought his hands forward and appellant, at that instant, squeezed the trigger, releasing the two cartridges in somewhat rapid succession. (According to the testimony Of appellant’s brother Rommel, the rifle was a semi-automatic which held about 20 bullets and it would continue to discharge by squeezing the trigger.)

Appellant’s version of the facts was corroborated by the testimony of his friend, Preston Alderman, age 17, and another friend, Jackson Jones, age 19. The latter testified that he had seen the victim about 12 noon on the day of the shooting and he was at that time carrying a .44 automatic in a holster and also had a supply of Valium pills. The State offered a rebuttal witness, a supervisory employee at the victim’s place of work, who testified in rebuttal of Jackson’s testimony that Dorsey had been at the dispensary-bar all day and had remained after his 3:30 P.M. quitting time to attend her birthday party in the establishment. She also testified that she did not see him with a weapon that day and, indeed, “never saw him with a weapon at all.”

The investigating police officers found no evidence that the victim was himself armed at the time he was shot.

II

The evidence, although conflicting, fairly ’generated the issue of self-defense for jury consideration. The trial court, pursuant to the requirement that, in a criminal case, an advisory instruction be given on every essential question or point of law supported by the evidence, included an instruction on self-defense. See Bruce v. State, 218 Md. 87, 145 A. 2d 428 (1958); Peterson v. State, 15 Md. App. 478, 498-99, 292 A. 2d 714, 726 (1972); Maryland Rule 757. The instruction included the following statement pertaining to the duty to retreat:

Ordinarily a person who is attacked is required to retreat if the means of doing so are within his power and consistent with his safety. If he fails to retreat or withdraw when he could safely do so, then the killing is not excusable. On the other hand, if the peril is imminent and he cannot safely retreat, he need not do so, but may stand his ground and defend himself.” (Emphasis added.)

The court rejected appellant’s requested instruction relating to immunity from the law of retreat, submitted by trial counsel, in the following form:

“Generally, one who is under attack may have a duty to retreat, where possible, however, when one is in his own home, there is no duty to retreat to escape the danger, but instead [he] may stand his ground and, if necessary to repel the attack, may kill the attacker. Law v. State, 21 Md. App. 13; Crawford v. State, 231 Md. 354.”

Appellant specifically excepted to the court’s refusal so to instruct. This was also the principal basis for appellant’s motion for a new trial and, on this appeal, it is the main challenge to the judgment below. In our view, “the rule of non-necessity of retreat in one’s own home,” Hedges v. State, 172 So. 2d 824, 827 (Fla. 1965), should also have been covered — although not in the specific language proposed — and the failure to do so was reversible error.

Preliminarily, a brief recapitulation of Maryland law on the subject of self-defense may serve to place in proper context the precise issue presented. The Court of Appeals has approved trial court instructions which have stated that:

1) The right to defend one’s self is based upon necessity.
2) To justify or excuse the killing of another on that ground, the person claiming the right must not have been the aggressor or have provoked the conflict.
3) The circumstances must have been such as to afford reasonable grounds, in the mind of a person of ordinary reason, for the belief that the defendant was in such immediate danger of losing his own life or suffering serious bodily harm as to necessitate killing the deceased to save himself.
4) One not seeking a fight but reasonably apprehensive that he might be attacked, has a right to arm himself in anticipation of the assault.
5) One may not use greater force than is reasonably necessary to defend himself against attack or threat of attack by another.
6) It is the duty of the defendant to retreat or avoid danger if the means to do so are within his power and consistent with his safety; but if the peril is so imminent that he cannot safely retreat, he has a right to stand his ground and defend himself.

With respect to the proposition last stated, the so-called “retreat rule,” a universally recognized exception exists: there is no duty to retreat if one is attacked in his own home, if in other respects he brings himself within the ordinary rules of self-defense. Premised on the common law principle that a man’s home is his castle, indeed his ultimate sanctuary, the castle doctrine permits a person who is without fault and is attacked within his dwelling or its curtilage, to stand his ground and defend himself, even if a retreat could be safely accomplished. See generally, Naugher v. State, 105 Ala. 26, 17 So. 24 (1895); Hedges v. State, 172 So.2d 824 (Fla. 1965); Crawford v. State, 231 Md. 354, 190 A. 2d 538 (1963); Prosser, Law of Torts 111-12 (1971). One who, as in the situation of the appellant, is not the head of the house but a member of the household, is within the ambit of the doctrine’s protection.

In the instant appeal, the record does not disclose the specific reasons why the trial court, having instructed on the duty to retreat, previously quoted, declined to give an instruction on the castle doctrine. This Court, in an analogous situation, recently found reversible error when the trial court applied the duty to retreat rule although the homicide had occurred in the home of the accused. Jackson v. State, 31 Md. App. 518, 357 A. 2d 845 (1976). In Jackson, the appellant was convicted of manslaughter in the killing of her boyfriend in a house occupied by her. Speaking for the Court, Judge Morton stated:

“[I]t was error to refuse the request of counsel to instruct the jury affirmatively that since Ms. Jackson was in her own home, she had no duty to retreat or seek escape, but was entitled to stand her ground and take her assailant’s life if it became necessary.”

Id. at 524.

It is to be noted that, in Jackson, the State argued that since the victim and the accused sometimes lived together, they were on “common ground,” thus reactivating the rule requiring an accused to retreat or seek escape. We observed, however, a split of jurisdiction on this issue; we stated that “there is respectable authority that no exception to the rule of no retreat is brought about because of joint occupancy of the home”; and we held that, at all events, the deceased was, at the time of the homicide, an intruder. Id. at 523.

In the instant appeal, the State asserts no similar contention based upon the status of the deceased as a social invitee. (As previously noted, Dorsey was engaged to the appellant’s sister, Romaine.) Nonetheless, we consider his status an issue in the case and we, at this time, adopt the rule that when an attack occurs in one’s home by an assailant who is not an intruder but who has a right to be on the premises, an assailed person who is without fault, need not “retreat to the wall” before defending himself. We thus adopt the reasoning of Mr. Justice Cardozo in People v. Tomlins, 107 N. E. 496, 497-98 (N.Y. 1914), when he made the following oft-quoted statement:

“It is not now and never has been the law that a man assailed in his own dwelling is bound to retreat. If assailed there, he may stand his ground and resist the attack. He is under no duty to take to the fields and the highways, a fugitive from his own home---The rule is the same whether the attack proceeds from some other occupant or from an intruder. It was so adjudged in Jones v. State [1884], 76 Ala. 8, 14. ‘Why,’ it was there inquired, ‘should one retreat from his own house, when assailed by a partner or cotenant, any more than when assailed by a stranger who is lawfully upon the premises? Whither shall he flee, and how far, and when may he be permitted to return?’ ”

This language was quoted with approval in Jackson v. State, 31 Md. App. at 523-24. See 18 Pa. Cons. Stat. Ann. § 505 (b)(2)(h) (A) (Purdon 1973) discussed in Commonwealth v. Eberle, 379 A. 2d 90, 92-95 (Pa. 1977). See also Bryant v. State, 39 So. 2d 657 (Ala. 1949); Hutcherson v. State, 54 So. 119 (Ala. 1910); State v. Phillips, 187 A. 721 (Del. Ct. Oyer & Terminer 1936); Watkins v. State, 197 So. 2d 312 (Fla. D. Ct. App. 1967); People v. Lenkevich, 229 N.W.2d 298 (Mich. 1975); People v. McGrandy, 156 N.W.2d 48 (Mich. Ct. App. 1968); State v. Browning, 221 S.E.2d 375 (N.C. Ct. App. 1976); State v. Grantham, 77 S.E.2d 291 (S.C. 1953); State v. Gordon, 122 S. E. 501 (S.C. 1924).

The principal contention of the State in this case is that the appellant was clearly the aggressor and, not being without fault, may not avail himself of the castle doctrine. Heavy reliance is placed upon the case of United States v. Peterson, 483 F. 2d 1222 (D.C. Cir.), cert. denied, 414 U. S. 1007 (1973). Peterson, however, is based upon unsettled principles of District of Columbia law and we find it inapposite. Moreover, in Peterson, the appellant was a participant in an affray to such an extent that one might question the giving of a self-defense instruction in the first instance. In the case at bar, the trial court reasoned, we think correctly, that self-defense was an issue in the case. It was also apparent that a jury question existed as to whether or not appellant was the aggressor. That being so, it was not the function of the trial court to decide — for castle doctrine purposes — the issue of aggression vel non on the part of the appellant, as the State appears to contend, but, rather, to leave that question for determination by the jury under appropriate instructions.

Such instructions should, in our judgment, properly include a caveat, in appropriate language, that the castle doctrine is for defensive and not offensive purposes and does not confer a license to kill or to inflict grievous bodily harm merely because the assault takes place within the defendant’s home; rather, that it is subject always to the primary prerequisites of self-defense, including particularly the requirements that the person assailed not be the aggressor, that the apprehension of personal harm be reasonable and that no more force than necessary be applied.

. In sum, it is our conclusion in the instant appeal that when the trial court undertook to instruct the jury on the subject of self-defense, it was incumbent upon the court to provide an accurate and complete statement of the law. Its failure to grant an instruction under the castle doctrine was a significant and serious omission. This, as we have previously indicated, was error. Other courts, including the Supreme Court, have similarly held it to be reversible and prejudicial error to give a standard self-defense instruction without the castle doctrine exception when the evidence supports its applicability. See Beard v. United States, 158 U. S. at 563-64 (1895); Hedges v. State, 172 So. 2d at 826-27; Watkins v. State, 197 So. 2d at 313; People v. Lenkevich, 229 N.W.2d at 300-02; People v. McGrandy, 156 N.W.2d at 49-50; State v. Grantham, 77 S.E.2d at 293; State v. Bowers, 115 S. E. 303, 305 (S.C. 1923); State v. Marlowe, 112 S. E. 921, 922 (S.C. 1922); State v. Gibbs, 102 S. E. 333, 334 (S.C. 1920); State v. Brooks, 60 S. E. 518, 519-20 (S.C. 1908); State v. Preece, 179 S. E. 524, 527-28 (W. Va. 1935).

Appellant’s additional contention with respect to the alleged improper interrogation of the victim’s mother need not be considered in the light of our finding on his first assignment of error.

Judgment reversed; case remanded for new trial; Mayor and City Council of Baltimore to pay the costs.

      . Cf. Street v. State, 26 Md. App. 336, 339, 338 A. 2d 72 (1975) (the defendant, who was charged with armed robbery, was not entitled to a self-defense instruction when he was the aggressor and the only evidence supporting the defense was a self-serving declaration that the victim had assaulted him with a pair of scissors).

      . See Bruce v. State, 218 Md. 87, 96-97, 145 A. 2d 428 (1958). See also DeVaughn v. State, 232 Md. 447, 453, 194 A. 2d 109 (1963); Crawford v. State, 231 Md. 354, 190 A. 2d 538 (1963); Gunther v. State, 228 Md. 404, 179 A. 2d 880 (1962); Guerriero v. State, 213 Md. 545, 549, 132 A. 2d 466 (1957); L. Hochheimer, Crimes and Criminal Procedure §§ 507, 508, 671, 681 (1897).

      . According to Perkins, the “retreat rule” has been adopted by a “substantial minority” of jurisdictions. R. Perkins, Perkins on Criminal Law 899 (1957). See also Bruce v. State, 218 Md. at 96-97; Clark & Marshall, A Treatise on the I,aw of Crimes § 7.03 (6th ed. 1958).

      . Wharton's Criminal Law and Procedure § 239 (Anderson 1957). The castle doctrine applies both to the defense of one’s habitation and to the defense of one’s person when attacked within one’s home. See generally Law v. State, 21 Md. App. 13, 318 A. 2d 859 (1974) appeal after remand, 29 Md. App. 457, 349 A. 2d 295 (1975) for a discussion on the defense of habitation.

      . See Beard v. United States, 158 U. S. 550 (1895). One of the most important elements is that the force used not be excessive. After having decided that the situs of the crime was not defendant’s dwelling, the court in DeVaughn v. State, went on to postulate that even if it were, the defendant used excessive force thereby destroying the applicability of the doctrine. 232 Md. at 454. See also State v. Robinson, 36 A. 2d 27 (Del. Ct. of Oyer & Terminer 1944); State v. Hewitt, 31 S.E.2d 257 (S.C. 1944); Clark & Marshall, A Treatise on the Law of Crimes § 7.03 (6th ed. 1958).

      . Ison v. State, 39 So. 2d 249 (Ala. 1949); State v. Hewitt, 31 S.E.2d 257 (S.C. 1944); State v. Gordon, 122 S. E. 501 (S.C. 1924).

      . See note 9 infra. In DeVaughn v. State, the court refused to accept the defendant’s argument that the scene of the crime, the home of his common law wife, was his dwelling since he had another address which he gave to the police and to which he referred as home to his children. 232 Md. at 453-54. Compare Kelley v. State, 145 So. 816 (Ala. 1933) where the court extended the castle doctrine to a guest who was claiming self-defense after being attacked in another’s dwelling.

      . Courts differ in interpreting what qualifies as being within the curtilage. See Beard v. United States, 158 U. S. 550 (1895) (property surrounding defendant’s farm was within the curtilage); State v. Provoid, 266 A. 2d 307 (N.J. Super. Ct. App. Div. 1970) (public thoroughfare running along bounds of one’s property is not within the curtilage of the home); State v. Browning, 221 S.E.2d 375 (N.C. Ct. App. 1976) (backyard, between home and storage shed, was within the curtilage); State v. Preece, 179 S. E. 524 (W.Va. 1935) (hallway outside apartment was within curtilage).

      . The Restatement of Torts Second (1965) defines a dwelling place as:
      “[A]ny building or habitation, or part of it, in which the actor is at the time temporarily or permanently residing and which is in the exclusive possession of the actor, or of a household of which he is a member. Only that part of the building or other habitation which is actually used for residential purposes is a dwelling place. Thus a man’s house is the dwelling place of himself, his family, his servants and for the time being, the dwelling place of one who is residing, however temporarily, in the house as a guest. It is not the dwelling place of a visitor, social or business, who comes to the house for a particular purpose and not to reside therein. The'phrase ‘dwelling place’" includes a room or apartment in a hotel which the guest and his family are entitled to occupy exclusively. It does not include the lobbies, halls or common rooms of a hotel or apartment house.” (Emphasis added.) Id. at § 65.

      . In denying appellant's motion for a new trial based on this point, the trial judge merely stated, “At the time the instructions were presented to the Court, the Court considered them, did not feel they were applicable, still does not feel they were applicable....” Discussions of instructions, at trial, between court and counsel were not on the record.

      . See Annot. 26 A.L.R.3d 1296 (1969); People v. Tomlins, 107 N. E. 496 (N.Y. 1914).

      . A contrary position, appearing to be less strongly accepted by the states, holds that the parties are on common ground and, therefore, if a safe retreat is possible it must be taken. State v. Bissonnette, 76 A. 288, 290-91 (Conn. 1910); State v. Grierson, 69 A. 2d 851, 854-55 (N.H. 1949); State v. Provoid, 266 A. 2d at 311.

      . The court in Peterson stated:
      “Despite the practically universal acceptance of the ‘castle’ doctrine in American jurisdictions wherein the point has been raised, its status in the District of Columbia has never been squarely decided. But whatever the fate of the doctrine in the District law of the future, it is clear that in absolute form it was inapplicable here.”
      483 F. 2d 1222, 1237 (D.C. Cir.), cert. denied, 414 U. S. 1007 (1973).

      . This case does not involve excusable or imperfect self-defense and, therefore, we do not decide the effect or application of the castle doctrine to a factual situation presenting such an issue. See generally Whitehead v. State, 9 Md. App. 7, 262 A. 2d 316 (1970); Tipton v. State, 1 Md. App. 556, 232 A. 2d 289 (1967); Clark & Marshall, supra note 3, at § 7.03; Perkins, supra note 3, at 903-907; Wharton’s Criminal Law and Procedure, supra note 4, at §§ 213, 227-229, 232.

      . See generally D. Aaronson, Maryland Criminal Jury Instructions and Commentary §§ 5.11-.16 (1975).

      . This, of course, differs from the situation where proposed instructions are refused, the court preferring its own general charge. So long as the instructions given advise the jury fairly and adequately and cover the points of law properly embodied in the requested instruction, there is no error. Cropper v. State, 233 Md. 384, 390, 197 A. 2d 112 (1964); King v. State, 36 Md. App. 124, 136, 373 A. 2d 292 (1977).


source: Caselaw Access Project

author: Thompson, J.,

license: Public Domain

text:
    GEORGE P. KARANGELEN et ux. v. SAMUEL SNYDER
    [No. 23,
    September Term, 1978.]

      Decided October 13, 1978.

    The cause was argued before Thompson, Davidson and Wilner, JJ.

      Eugene Alexander, III, with whom was Sidney Blum on the brief, for appellants.

      T. Rogers Harrison, with whom was W. Lee Harrison on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

We are here concerned with the extent to which a policeman is entitled to the defense of governmental immunity. The appeal is from an order granting a motion for summary judgment in favor of the appellee, a Baltimore County Policeman, by Judge Albert P. Close, sitting in the Circuit Court for Harford County. The factual basis for appellee’s motion was supported by certain excerpts from his deposition and the official police report which he submitted relating to the accident in question. The appellants opposed the motion but submitted no affidavits or other evidence which would raise a dispute as to any material facts. The facts, as related by appellee, showed that he was on duty at the date and time in question, and that his assignment was to check parking meters and issue citations in a certain section of Baltimore County. His means of transportation was a police vehicle described as a Cushman Truckster which is a small motorized vehicle not much larger than a motor scooter but with a semi-enclosed area where the operator is seated. Being unfamiliar with the handling of the scooter, and desiring to avoid making a U-turn, the appellee pulled into a service station lot with the intention of crossing to an adjacent street onto which he could turn safely and proceed in the desired direction. The appellant and appellee were personally acquainted with each other and while appellee was on the service station lot he observed the appellant motioning for him to come over. From appellee’s police report it appears that the appellant’s purpose was to get a look at the vehicle which appellee was operating, although it is not clear what purpose appellee had in responding. While driving toward appellant, appellee “misjudged the distance due to [his] inability ... to see the full length of the Cushman through the curtain provided for a door.” A collision ensued in which the appellant suffered the injuries for which he now seeks compensation.

The only issue is whether the appellee is entitled to the protection of governmental immunity.

The Court of Appeals has held that a police officer is a “public official” when acting within the scope of his law enforcement function. Robinson v. Board of County Commissioners, 262 Md. 342, 278 A. 2d 71 (1971); Wilkerson v. Baltimore County, 218 Md. 271, 146 A. 2d 28 (1958); Harris v. Mayor and City Council of Baltimore, 151 Md. 11, 133 A. 888 (1926). Accordingly, he is protected by a qualified immunity against civil liability for non-malicious acts performed within the scope of his authority. Carder v. Steiner, 225 Md. 271, 170 A. 2d 220 (1961); Clark v. Ferling, 220 Md. 109, 151 A. 2d 137 (1959); Cocking v. Wade, 87 Md. 529, 40 A. 104 (1898). In the instant case there is no allegation of malice and so the precise issue is whether by responding to appellant’s gesture appellee so stepped outside the scope of his law enforcement function that he lost the protection of governmental immunity and became liable for the consequences of his alleged negligence.

We have been unable to locate any cases addressing the question of whether a deviation from the strict course of his duties will take a public official outside the protection of governmental immunity. It may be that the lack of such cases is due to the prevailing rule that police officers and similar officials will be held liable, under most circumstances, for the consequences of their negligence when performing routine functions, such as operating motor vehicles. W. Prosser, Law of Torts § 182 (4th ed. 1971); Annot., 60 A.L.R.2d 878 (1958). Maryland, however, has made no such distinction, conditioning a public official’s immunity on the absence of malice and action within the scope of his authority. Carr v. Watkins, 227 Md. 578, 177 A. 2d 841 (1962). In Duncan v. Koustenis, 260 Md. 98, 271 A. 2d 547 (1970), the Court acknowledged that in some states the rule is not to extend immunity to government employees when acting negligently on the theory that negligent acts fall outside their governmental authority, but, as we have said, Maryland does not follow this rule under the cases heretofore cited.

In the present case the contention is not that the appellee exceeded the scope of his authority in the jurisdictional sense; nor is it argued that mere negligence took his acts outside the realm of his governmental authority. Rather, the argument is that the appellee was not performing his assigned police duties at the time of the accident. Appellant contends that by deviating from his planned course appellee embarked upon a purely personal mission of his own and temporarily suspended the performance of his role as a policeman. In the absence of any case law on the precise question it may be helpful to turn to the authorities dealing with the somewhat analogous problem of when an employee is acting within the scope of his employment for purposes of applying the doctrine of respondeat superior. That doctrine holds that an employer may be held liable for damages negligently caused by his employee while the employee was acting within the scope of his employment. East Coast Lines v. Mayor & City Council of Baltimore, 190 Md. 256, 58 A. 2d 290 (1948); Rusnack v. Giant Food, Inc., 26 Md. App. 250, 337 A. 2d 445 (1975). Ordinarily, the question of whether a servant has acted within the scope of his employment is for the finder of fact, Baltimore Consolidated Ry. Co. v. Pierce, 89 Md. 495, 43 A. 940,45 L.R.A. 527 (1899); Rusnack v. Giant Food, Inc., supra, but “[w]here there is no conflict in the evidence relating to the question and but one inference can be drawn therefrom, the question is one of law for the court. Globe Indemnity Co. v. Victill Corp., 208 Md. 573, 585.” Rusnack, supra at 265, 337 A. 2d at 454.

In determining whether a servant’s acts are within the scope of employment the courts also have attempted to draw a line between “detours” and “frolics.” The former being treated as within the scope of employment and the latter being considered a complete abandonment of it. See Prosser, supra at 461-64; 2 Harper and James, The Law of Torts % 26.8. A variety of factors have been cited as bearing on the determination of whether a particular deviation amounts to a detour or a frolic.

“These factors include the time and place of the deviation, its extent with relation to the prescribed route, whether its motivation is in part to serve the master, and whether it is the usual sort of deviation for servants on such a job.” 2 Harper and James, supra at 1383.

In Carroll v. Hillendale Golf Club, 156 Md. 542, 545, 144 A. 693 (1929), the Court of Appeals adopted the following statement from Ritchie v. Waller, 63 Conn. 155, 28 A. 29, 27 L.R.A. 161 (1893):

“When the servant’s deviation from the strict course of his employment or duty is slight and not unusual, the court may determine as a matter of law that he is still executing the master’s business, and if the deviation is very marked and unusual it may determine the contrary.”

In Ritchie, a servant on his return from picking up a load of manure for his master took a slight detour to a shoemaker’s shop for his own purposes. While at the shoemaker’s his master’s team ran away causing damage to the plaintiff. The Court held that at a minimum this case presented a question of fact on the scope of employment issue; but it went on to say that, even as a matter of law, the slight deviation from the strict course of his master’s business was insufficient to take the servant’s action outside the scope of employment. 28 A. at 32.

In Marquardt v. United States, 115 F. Supp. 160 (S.D. Cal. 1953) a federal employee was traveling in his own automobile to an official work assignment while at the same time traveling to a personal destination en route. The facts were stipulated and the United States District judge presiding over the case held that the employee was acting within the scope of his employment, applying the following rule:

“ .. where the servant is combining his own business with that of his master, or attending to both at substantially the same time, no nice inquiry will be made as to which business the servant was actually engaged in when a third person was injured; but the master will be held responsible, unless it clearly appears that the servant could not have been directly or indirectly serving his master.’ ” 115 F. Supp. at 162 quoting from Ryan v. Farrell, 208 Cal. 200, 280 P. 945, 946 (1929).

The facts in the present case are susceptible of the inference that appellee deviated from the direct course of his duties in order to answer the call of appellant. This deviation was so slight that under the principles in the cases mentioned above it may be held as a matter of law to be insufficient to constitute a “frolic” which would take the appellee outside the scope of his employment as a police officer. While we recognize the differences between determining scope of authority for the purpose of fixing liability on an employer and for the purpose of determining whether a policeman is entitled to governmental immunity, we think the problems are sufficiently close that the analogy is proper.

Judgment affirmed.

Appellants to pay the costs.

      . The appellant George Karangelen was joined as a plaintiff by his wife who alleged loss of consortium. As the contention raised on appeal is based on facts involving only Mr. Karangelen, references to “appellant,” in the singular, refer to him.

      . A note of caution is in order with respect to the use of these terms. Some .cases use the word “detour” when referring to conduct held to be outside the scope of employment. The term “frolic, however, invariably refers to such conduct.

      . The other inference that the officer was merely responding to a citizen’s request that he stop for some unknown communication, is more favorable to the appellee.


author: Gilbert, C. J.,

text:
    ARTHUR M. BIDDLE, JR. v. STATE OF MARYLAND
    [No. 24,
    September Term, 1978.]

      Decided October 13, 1978.

    The cause was argued before Gilbert, C. J., and Morton and Thompson, JJ.

      John W. Sause, Jr., District Public Defender, for appellant.

      Stephen Rosenbaum, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, and John

      T. Clark, III, State’s Attorney for Queen Anne’s County, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

This appeal tests whether Maryland Rule 735 is a prescribed ritual to be followed by trial judges before accepting an accused’s election of a court trial with its appurtenant waiver of trial by jury.

This Court, in Zimmerman v. State, 9 Md. App. 488, 265 A. 2d 764 (1970) (Thompson, J., dissenting), remanded the case to the Criminal Court of Baltimore without affirmance or reversal because, in our view, the record failed to demonstrate that Zimmerman “knew of his right to a jury trial” at the time his attorney elected a non-jury trial, and that Zimmerman “intentionally relinquished or abandoned” that right. We directed the trial court to receive such “additional evidence ... as may be necessary” to make a determination of whether Zimmerman knowingly and intelligently waived his right to a trial by jury.

The Court of Appeals, State v. Zimmerman, 261 Md. 11, 273 A. 2d 156 (1971), reversed Zimmerman v. State, supra, on other grounds, holding, in essence, that the issue was not properly before this Court, and that we should not have decided it. Md. Rule 1085. During the course of the opinion, delivered for the Court by Judge Smith, the observation was made that “we regard the preferable practice in accepting an election of trial by the court from an accused is for the trial judge at that time to determine on the record whether this is a knowing election on the part of the accused of a court trial in lieu of a jury trial----” (Emphasis added.)

Taking our cue from Zimmerman, this Court, speaking through Judge Moylan in Miller v. Warden, 16 Md. App. 614, 623-24, 299 A. 2d 862, 868 (1973), stated:

“It is axiomatic that a criminal defendant in Maryland has the right to a trial by jury. This right is conferred by Article 5 and Article 21 of the Maryland Declaration of Rights. It is also conferred by the due process clause of the Fourteenth Amendment to the Federal Constitution, which has been held by Duncan v. Louisiana, 391 U. S. 145, to incorporate the jury trial provision of the Sixth Amendment. Our problem is to decide how one elects to exercise that right or, alternatively, how one waives that right. The recognition of the right under the Maryland Declaration of Rights being fifteen years senior to the recognition by the Federal Bill of Rights, we are confident that our experience in implementing that right will not lightly be disregarded.
Our preliminary problem is to isolate the precise issue before us. In the language of the artilleryman, we shall ‘bracket the target.’ Initially, it is settled that the decision as to mode of trial (however made) must be the decision of the accused himself. Counsel may not “make” (as opposed to “announce”) that decision for him. State v. Howard, 7 Md. App. 429. Our issue lies beyond that.
At the opposite extreme, it is settled that the decision of the accused in this regard, albeit of necessity made by him, need not be ‘announced’ by him or shown upon the face of the record. It is sufficient that the decision, even though announced by counsel, have [s/e] been in fact made or acquiesced in by the accused. It is the true state of the defendant’s mind which ultimately must be ascertained. No catechism a la Boykin or Miranda has been constitutionally prescribed. Even our holding in Zimmerman v. State, 9 Md. App. 488, overruled in other regards by State v. Zimmerman, 261 Md. 11, did not impose such a ritualistic obligation upon the State or the court. Our issue lies short of this.” (Footnotes omitted.)

We went on in Miller to hold that under the circumstances of that case Miller had made “an effective waiver of trial by jury.”

This Court’s Zimmerman and Miller both focused on the scope of then Md. Rule 741 which provided:

“An accused may elect to be tried by a jury or by the court. Such election shall be made by the accused , in open court when first called upon to plead after he is represented by counsel of record or has waived counsel. If an accused elects to be tried by the court, the State may not elect a jury trial. The court may, in its discretion and for good cause shown, at any time prior to the trial permit the accused to change his election.”

Then Rule 741 remained in effect until the Court of Appeals adopted, with amendments made on its own motion, the “Fifty-third Report to the Court” which recommended the “rescission of all Rules in Chapter 700 (Criminal Cases) of the Maryland Rules of Procedure ... and the adoption of certain Proposed Rules Changes in substitution therefor____” The new Chapter 700 became effective July 1,1977. It governs the proceeding before us to which we now turn.

The appellant, Arthur M. Biddle, Jr., seeks to set aside his conviction by the Circuit Court for Queen Anne’s County on a charge of escape. At a non-jury trial, the appellant was adjudged to be guilty and sentenced to a term of five (5) years imprisonment, to be served consecutively to the sentence of life imprisonment previously imposed on appellant March 30, 1954.

Biddle poses a number of issues for our review, the first two of which are raised by the Public Defender, and the balance have been put to us through counsel at the express direction of Biddle.

THE FACTS

On July 16, 1977, James Cecil telephoned the Eastern Correctional Camp and reported that he had seen “two men running down the road.” Both “white males were running between my mail box and the next entrance to the West Farm.” When a car approached, the two men “dived in some bushes.... After the car passed these ... two males continued on toward Starkey’s Corner....” A head count at the camp disclosed that appellant and a codefendant, not a party to this appeal, were missing. Trooper First Class S.L. Shelly of the Maryland State Police received a description of the escapees, and he happened upon appellant. Appellant’s clothing and beard matched that of one of the escapees. Appellant identified himself to the trooper but explained that the trooper had it wrong because appellant was “an F.B.I. agent and ... [he] had received orders, sealed orders to leave the Eastern Correctional Camp from the Director of the F.B.I. and that... he was an agent, undercover, who was sent to Eastern Correctional Camp. He had received orders to leave,... he was following his orders.” Trooper Shelly also followed orders and arrested the appellant for escape.

At trial, appellant asserted that he was not escaping but was “attempting to go down the road and make a liquor run.” Such a “run” was for the purpose of purchasing alcoholic beverages for consumption within the camp. He said that he had “no intent to escape.” He explained his fairy tale about his being an F.B.I. agent as “just a story I made up for him.” The trial judge apparently thought that Biddle’s exculpatory narrative relative to the escape was “just a story ... [Biddle] made up for ... [the. judge].”

I.

Biddle contends that Md. Rule 735, a vastly more comprehensive and detailed rule than its predecessor, Rule 741, is “expressly mandatory.” He asserts that “it was error for the [trial] court to disregard the rule.”

Md. Rule 735 provides:

“a. How Made.
Subject to section e of this Rule, a defendant shall elect to be tried by a jury or by the court. The election shall be made pursuant to section b of this Rule and shall be filed within the time for filing a plea pursuant to Rule 731 (Pleas). If the defendant elects to be tried by the court, the State may not elect a jury trial. After an election has been filed, the court may not permit the defendant to change his election except upon motion made prior to trial and for good cause shown. In determining whether to allow a change in election, the court shall give due regard to the extent, if any, to which trial would be delayed by the change.
b. Form of Election.
An election of a court or jury trial shall be in writing, signed by the defendant, witnessed by his counsel, if any, and filed with the clerk of the court in which the case is pending. It shall be substantially in the following form:
(caption of the case)
Election óf Court Trial or Jury Trial
I know that I have a right to be tried by a jury of 12 persons or by the court without a jury. I am aware that before a finding of guilty in a jury, trial all 12 jurors must find that I am guilty beyond a reasonable doubt. I am aware that before a finding of guilty in a court trial the judge must find that I am guilty beyond a reasonable doubt.
I hereby elect to be tried by:............. (insert “the court” or “a jury”)
I make this election knowingly and voluntarily and with full knowledge that I may not be permitted to change this election.
Witness:
Signature of Counsel
Signature of Defendant
Date:..............
c. When No Election Filed.
If the election is not filed within the time provided by this Rule, the court, on its own motion or upon the motion of the State’s Attorney, may require the defendant, together with his counsel, if any, to appear before the court for the purpose of making the election in open court. If the defendant fails or refuses to make an election after being advised by the court on the record that his failure or refusal will constitute a waiver of his right to a trial by jury and if the court determines that the defendant knowingly and voluntarily is waiving his right with full knowledge of it, the defendant may then be tried by the court.
d. When Court Trial Elected.
If the defendant files an election to be tried by the court, the trial of the case on its merits before the court may not proceed until the court determines, after inquiry of the defendant on the record, that the defendant has made his election fora court trial with full knowledge of his right to a jury trial and that he has knowingly and voluntarily waived the right. If the court determines otherwise, it shall give the defendant another election pursuant to this Rule.
e. Causes From District Court.
Where the defendant has a right to a jury trial and his cause has been transferred from the District Court because he has demanded a jury trial, he shall be tried by a jury and may not elect a court trial except with leave of court for good cause shown.” (Emphasis supplied.)

Rule 735, to a large extent, has resurrected this Court’s holding in Zimmerman v. State, supra. The Rule now spells out the ritual the trial judge must follow in accepting the election of a non-jury trial. The Rule has changed the “preferred practice” of State v. Zimmerman, supra, into an absolute.

The record in the instant case reveals:

“THE COURT: What will we take up first, Mr. Clark?
MR. CLARK: [State’s Attorney] Yes, sir, I will take up Arthur M. Biddle, Criminal Trial 1994.
THE COURT: Arraign Mr. Biddle.
MR. SKIPP: [Defense Counsel] We waive the reading.
THE COURT: ... Mr. Skipp, do you have a copy of the charges, were you served with anything?
MR. CLARK: Let the record reflect the defendant has received a copy of the charging document. Is that right?
THE DEFENDANT: Yes, Sir.
THE COURT: All right.
MR. SKIPP: We waive the reading, Your Honor, and plead not guilty and ask for a court trial.
THE CLERK: Not guilty and a court trial.
THE COURT: How long do you anticipate this will take, Mr. Skipp?
MR. SKIPP: Half a day, Your Honor.
THE COURT: Now, what dates do we have?
MRS. WARD: We have the 21st of November and the 22nd. [1977]
THE COURT: Do you want to make it the 22nd?
MR. SKIPP: Yes, sir.
THE COURT: That’s on Tuesday, the 22nd.
MR. CLARK: Yes, sir, Your Honor.
MR. SKIPP: Is that 9:30 or 10:00 o’clock?
THE COURT: 9:45. Now, gentlemen, keep in touch with your attorney; and if you have any witnesses or anything that you want him to do for you, let him know, so you can be ready at that time.”

There is, as appellant notes, nothing within the record indicating compliance with the clear mandate of Rule 735. It was error for the trial court to “proceed until the court determines, after inquiry of the defendant on the record, that the defendant... made his election for a court trial with full knowledge of his right to a jury trial and that he ... knowingly and voluntarily waived the right.” Md. Rule 735 d.

Although the State asserts now that the issue of non-compliance with Rule 735 was not preserved for appeal, we believe the rule requires that the record affirmatively show compliance with its tenets, and that the failure to object does not preclude appellate review. This is so because Rule 735 d has a constitutional aspect similar to that of a guilty plea. The rule specifically forbids the trial court to proceed with the trial on the merits until there has been compliance with Rule 735 d, i.e., a determination on the record of a knowing and intelligent waiver of the right to trial by jury. Cf. Davis v. State, 278 Md. 103, 361 A. 2d 113 (1976). A waiver of a constitutional right must appear affirmatively in the record, Boykin v. Alabama, 395 U. S. 238, 89 S. Ct. 1709, 23 L.Ed.2d 274 (1969), and a failure of it to so appear is not grounds for dismissal of the appeal. Indeed, it is the very basis of the appeal.

One effect of Rule 735 is to make our holding in Miller v. Warden, supra, no longer viable. It is, therefore, expressly overruled.

Just as “[l]aws not enforced cease to be laws, and rights not defended may wither away,” rules of procedure not adhered to cease to be rules, and precise rubrics degenerate into meaningless gibberish.

Because the record in the case sub judice unequivocally shows a non-compliance with Md. Rule 735 d, the trial on the merits should not have proceeded. Ergo, the judgment must be reversed and the case remanded for a new trial.

II.

Biddle argues the Maryland statute proscribing escape, Md. Ann. Code art. 27, § 139 (a), is unconstitutional. Resolution of this interesting issue will have to await a later time when it is properly before us. Appellant neither raised the question in the trial court so as to preserve it for review, Md. Rule 1085, nor is there an adequate record upon which we could rely to hold the act to be unconstitutional. In re Trader, 272 Md. 364, 325 A. 2d 398 (1974). The way the matter now stands is that there is nothing before us to decide.

III.

Because of the recent Supreme Court decision in Burks v. United States, 437 U. S. 1, 98 S. Ct. 2141, 57 L.Ed.2d 1 (1978), we deem it advisable to comment upon Biddle’s asseveration that the evidence was insufficient to sustain the conviction. If the evidence were in fact insufficient, the heretofore practice of remanding for a new trial on that ground, see Gray v. State, 254 Md. 385, 255 A. 2d 5 (1969), cert. denied, 397 U. S. 944 (1970), is unconstitutional. It violated the Double Jeopardy Clause of the Fifth Amendment.

A review of the facts surrounding the escape by Biddle which we have set forth above in condensed form, makes crystalline that there was ample evidence for the trial judge to believe that Biddle had committed the crime of escape. Based upon that evidence, we are unable to say that the trial judge was “clearly erroneous,” Md. Rule 1086, if it can be said that he was erroneous at all.

In view of our holdings it is unnecessary to consider the other pro se issues raised by Biddle, except to note that his contentions regarding his warrantless arrest, his argument that administrative discipline for escape precluded trial for the criminal offense on the ground of double jeopardy, and his attempt to brand the State’s witness, Cecil, as a perjurer are yeasty balderdash.

Judgment reversed.

Case remanded for a new trial.

Costs to be paid by Queen Anne’s County.

      . Thomas Moriarty, as quoted by Dr. Laurence J. Peter in Peter’s Quotations (1977 ed.) pg. 290.

      . Following a decision by the Circuit Court for Anne Arundel County in State v. Walinski, et al. (Williams, J.), that Md. Ann. Code art. 27, § 139 (a) was unconstitutional because it violated the Equal Protection Clause of the Fourteenth Amendment and the Maryland Declaration of Rights, the General Assembly, by Laws 1978, ch. 188, enacted emergency legislation amending Md. Ann. Code art. 27, § 139 (a) (escape). The State has appealed the judgment of the Circuit Court for Anne Arundel County, and that matter is currently pending in this Court.


text:
    LARRY STEPHEN WARD v. STATE OF MARYLAND
    [No. 30,
    September Term, 1978.]

      Decided October 13, 1978.

    The cause was submitted on briefs to Thompson, Davidson and Wilner, JJ.'
    Submitted by Phillip M. Sutley and Sutley & Marr for appellant.
    Submitted by Francis Bill Burch, Attorney General, Valerie A. Leonhart, Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and FloydPond, Assistant State’s Attorney for Baltimore City, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

On May 25,1977, Larry Stephen Ward, the appellant, was convicted in the Criminal Court of Baltimore of violating Md. Code, Art. 27, §§ 240 and 360 (placing and accepting wagers and maintaining a lottery). After a motion to suppress evidence obtained through a court authorized wiretap was denied, the case proceeded on a statement of facts. Judge J. Harold Grady, presiding without a jury, imposed a suspended prison sentence and fines totaling $3,000. The sole issue on appeal is whether the trial court erred in denying appellant’s pretrial motion to suppress the fruits of the wiretap.

On August 26,1976, William A. Swisher, State’s Attorney for Baltimore City, filed an application before the Supreme Bench of Baltimore City for a wiretap on the telephone bearing the number 732-0559 at 2201 Gough Street, in Baltimore, which was the location of an enterprise known as Dan’s Tavern. The basis of this application was a forty-four page affidavit executed by Detectives Robert Glassmyer and Robert Bieschke of the Baltimore City Police Department. The court authorized the requested wiretap for the period from August 30 through September 28, 1976.

On September 23, 1976, the State’s Attorney applied for a second wiretap to be placed on a telephone numbered 276-9137 also located in Dan’s Tavern. This second application was based on another affidavit by Detective Glassmyer and Bieschke and incorporated by reference an attached copy of the affidavit submitted in support of the original wiretap. The court authorized the surveillance from September 24 to October 23, 1976. This second wiretap produced the evidence which appellant sought to suppress and which eventually formed the basis of his conviction.

Appellant argues that the order authorizing the second wiretap was invalid in that the affidavit and application requesting it failed to comply with the requirements of the Md.Code, Cts. & Jud. Proc. Art., § 10-403 and 18 U.S.C. §§ 2510-2520. Specifically, appellant contends that the affidavit and application for the second wiretap did not sufficiently set forth facts to support the allegation that traditional investigative procedures had proven unsuccessful or that they were unlikely to succeed if utilized, or that the implementation of normal investigative procedures would have been too dangerous to be utilized. The State does not contend that the second affidavit, standing apart from the incorporated references, would be sufficient to support the issuance of an order authorizing the wiretap. It argues that the incorporation by reference of the first affidavit cured any defect which the second affidavit would have had standing alone. Appellant, on the other hand, relying primarily on Calhoun v. State, 34 Md. App. 365, 367 A. 2d 40 (1977), argues that the incorporation by reference will not cure a defect in the incorporating affidavit.

In Calhoun, this Court held that an affidavit which was itself insufficient to meet the requirements of 18 U.S.C. § 2518 (1) (c), could not be cured by incorporating a previous valid affidavit executed in support of another application to tap another phone at another location. In Calhoun the police had obtained an order authorizing a wiretap on a phone located in a building on East Baltimore Street in Baltimore. The application had been based on an affidavit which was clearly sufficient for that purpose under the applicable statutes. Subsequently, another application was filed to obtain a wiretap on a telephone at another location. It appeared that this second phone had been called on a number of occasions from the one originally tapped and that certain wagers had been made during those calls. The affidavit in support of the second application was clearly insufficient, standing alone. The State, however, attempted to incorporate by reference the prior valid affidavit used in obtaining the first wiretap. The flaw in this procedure, recognized in Calhoun, was that the original affidavit made no reference to the telephone number or the location concerned in the second application. Accordingly, there was no indication in either affidavit that, with respect to the second telephone, other investigative procedures had been tried and failed or did not reasonably appear to be likely to succeed if tried or to be too dangerous.

Appellant specifically argues that under no circumstances may a defective affidavit be cured by incorporating a previous affidavit used in connection with another application. This, however, is not the teaching of Calhoun, supra. The telephones here in question were both located at the same address and in fact had extensions in the same room. The affidavit submitted with the original application amply supported the conclusion that conventional investigative methods could not succeed in uncovering the full extent of the illegal gambling operation being conducted at Dan’s Tavern. According to the first affidavit one of the two lines located at Dan’s Tavern served a much greater proportion of the telephone calls used to make and accept wagers than did the other. It was this line (732-0559) which the State originally sought to, and did, monitor. The second affidavit makes clear that shortly after surveillance of the first phone line commenced, a malfunction occurred through which unidentified parties could listen in on, and be heard during, conversations occurring over that line. Further investigation by the detectives revealed that the bulk of the telephone calls involving illegal transactions were then switched to the second line. Under these circumstances there is absolutely no reason to suspect that other investigative techniques would or could have been any more successful because of the change in the use of the telephones. In the present case, as revealed in the affidavits, the two wiretap applications dealt with the same individuals and the same location and all the circumstances which required a wiretap for the first line were clearly present with respect to the second line. In short, the incorporated affidavit was not only sufficient with respect to the original wiretap on number 732-0559 but also alleged specific facts which, when taken together with the rest of the second application, were sufficient to support the authorization for the tap on the telephone number 276-9137.

Accordingly, we hold that the court below was correct in denying appellant’s motion to suppress the fruits of the second wiretap. There being no other contentions raised by-appellant, we shall affirm the judgment.

Judgment affirmed.

Costs to be paid by appellant.

      . Maryland’s statutory provisions concerning the authorization and use of electronic surveillance devices were contained m Md. Code, Art. 27, § 125A and Cts. & Jud. Proc. Art., §§ 10-401 — 10-408 at the time the subject applications were filed. By virtue of Acts 1977, Chapter 692, the provisions were revised and recodified and may now be found in Cts. & Jud. Proc. Art. §§ 10-401 — 10-412. The substance of former § 10-403 is now contained in § 10-408.

      . “A full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C. .§ 2518 (1) (c); Md. Code, Cts. & Jud. Proc. Art.. § 10-408 (a) (3).