author: Gilbert, C. J.,

text:
    PHYLLIS POORE v. STATE OF MARYLAND
    [No. 649,
    September Term, 1977.]

      Decided March 8, 1978.

      The cause was argued before Gilbert, C. J., and Liss and Couch, JJ.

      Henry L. Belsky, Assigned Public Defender, with whom was Jana R. Barnett on the brief, for appellant.

      Stephen B. Caplis, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and John Denholm, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

I.

THE FEDERAL WIRETAP AND ELECTRONIC EAVESDROPPING LAW AND ITS EFFECT UPON STATE LAW.

Judge Orth (later Chief Judge and now an Associate Judge of the Court of Appeals), in State v. Siegel, 13 Md. App. 444, 285 A. 2d 671 (1971), aff’d 266 Md. 256, 292 A. 2d 86 (1972), discussed the judicial history which “cleared the way for the enactment of legislation giving sanction to the interception of wire or oral communications,” 13 Md. App. at 448-49, 285 A. 2d at 674, the constitutionality of the Omnibus Crime Control and.Safe Streets Act of June 19, 1968 (Title III 18 U.S.C. §§ 2510-2520) and the use of the federal act by the prosecutorial authorities in this State. Siegel made clear that the several States were permitted to employ the federal wiretap and eavesdropping law only if the principal prosecuting attorney was allowed by State statute to apply for an order authorizing wire or oral communication interception. If the State law empowered the principal prosecuting attorney of a political subdivision to seek such an order, “[t]he State court judge ... [can] grant... [it] only in conformity with the federal act and ‘with the applicable State statute.’ ” Id. at 459, 285 A. 2d at 680.

At the time of Siegel, Maryland had two (2) statutes in effect which dealt with the interception of wire or oral communications. Then Md. Ann. Code art. 35, §§ 92-99 (1956 Md. Laws ch. 116) concerned wiretapping and then Md. Ann. Code art. 27, § 125 A-C (1959 Md. Laws ch. 706) and § 125 D (1965 Md. Laws ch. 201) relative to the interception of oral communication.

Siegel pointed out that not every violation of the law gives rise to the use of a judicially sanctioned wire or oral communication interception but only those crimes specified in 18 U.S.C. § 2516(2) (1970) which are “murder, kidnapping, gambling, robbery, bribery, extortion, dealing in narcotic drugs, marihuana or other dangerous drugs” and conspiracy to commit any of such crimes. Section 2516(2) was broad enough, however, to include other crimes provided that those crimes are limited to crimes “dangerous to life, limb, or property, and punishable by imprisonment for more than one year” if a State statute so allows. State v. Siegel, 13 Md. App. at 462, 285 A. 2d at 682. Moreover, Siegel made crystalline that the procedural aspects of 18 U.S.C. §§ 2510-2520 (1970), when viewed “in the light of its legislative history, see 2 United States Congressional and Administrative News (1968) 2191-2192, concede no exceptions.” Id. at 465,285 A. 2d at 683. Because the State failed to obey the procedural safeguards of the federal act, we affirmed the dismissal by Judge Charles D. Harris in the Criminal Court of Baltimore of the Siegel indictment. The State sought and obtained certiorari by the Court of Appeals. That Court affirmed our holding. State v. Siegel; 266 Md. 256, 292 A. 2d 86 (1972).

Judge Digges, who authored the opinion for the Court, commented that, “[w]e live in a world which has the capability not only to monitor our conversations, to ‘bug our houses, but soon probably to delve into our innermost thoughts. To allow any of these things to occur without the strictest of controls would utterly destroy the basis of this nation’s existence.” Id. at 260-61, 292 A. 2d at 89. In rejecting the argument that only substantial compliance with the federal act was necessary, Judge Digges responded, “[t]he statute [Title III 18 U.S.C. §§ 2510-2520] sets up a strict procedure that must be followed and we will not abide any deviation, no matter how slight, from the prescribed path.” Id. at 274, 292 A. 2d at 95. (Emphasis supplied.)

This Court, in Calhoun v. State, 34 Md. App. 365, 367 A. 2d 40 (1976), utilized the refusal of the Court of Appeals to tolerate a deviation from strict compliance with Title III, 18 U.S.C. §§ 2510-2520, no matter how slight, as “our guiding light.” Because the State had not abided by the “prescribed path” of the federal act, we reversed Calhoun’s conviction.

A.

The Facts of the Instant Case.

On January 16,1976, the State’s Attorney of Baltimore City made application to Judge Paul E. Dorf in the Criminal Court of Baltimore for an order “in conformity with the provisions of 18 United States Code, Sections 2510-2530 [s/c], for the issuance of a Wiretap Order.” A reading of the application, however, indicates that the application really sought the court’s permission to enter secretly a hospital room in the University Hospital and to plant a particularly described transmitter or “bug” within that room. William A. Cooper, a suspected dealer in heroin, was a patient in the room where the listening device was to be secreted. The application was based on the joint affidavit of Detectives Caggese and Smoot of the Baltimore City Police Department. That the affidavit established probable cause for the issuance of the order is not challenged so that we shall not set out the nefarious acts allegedly committed by William A. Cooper and eight (8) other named companions of Cooper in the illicit drug dispensing business. Judge Dorf signed the order on the same day. It provided that the eavesdropping would be between the hours of “10:00 A.M. and 2:00 A.M.,” January 17, 1976, until 2:00 A.M. on February 1, 1976. 18 U.S.C. § 2518(4)(e) (1970). The order also provided for orally advising the court of the “progress of the interception.” The progress reports were to be made to the judge each Monday and Thursday during the life of the order. 18 U.S.C. § 2518(6) (1970). Upon the termination of the order, “the State’s Attorney ... or a prosecutor designated by him, and Detectives Caggese and Smoot... shall immediately make a Return to this Court of any and all logs and tape recordings obtained pursuant to this Order. ...” 18 U.S.C. § 2518(8)(a) (1970).

Additionally, the order commanded “that no later than ninety days after the termination of the interception process authorized by this Order, or extension hereof, an inventory shall be served upon the aforementioned persons and such other parties as this Court may designate in the interest of justice.” 18 U.S.C. § 2518(8)(d) (1970).

The “bug” was installed in a fluorescent fixture directly above the bed of William A. Cooper. All conversation occurring within the room was transmitted to and recorded by the surveillance team located on the floor above the one on which Cooper was a patient. The eavesdropping was “closed down at 4 o’clock on the 31st [of January].” The tape recordings were turned over to Assistant State’s Attorney F. Pond on February 1, 1976. Pond presented them to Judge Dorf on February 4, 1976. Judge Dorf apparently ordered them sealed and placed in the custody of the Clerk of the Criminal Court for safekeeping. None of the parties whose conversation was recorded by the police was notified within the prescribed period. Notice was given to them on various dates from May 24, 1976, through June 7, 1976.

A second electronic intercept order was obtained on application by the State’s Attorney, supported by the affidavit of Detectives Caggese and Smoot on February 17, 1976. The order permitted wiretaps to be placed upon the telephones of Anna Mae Jones at 3409 Milford Avenue, Jacqueline Gilliam, second floor of the same address, and Gerard Jones, third floor of the same address. The persons whose conversations were to be intercepted were the same as those named in the eavesdrop order of January 16, 1976.

Subsequently, arrests were made and the appellant, Phyllis Poore, along with Elizabeth Jennings (alias Elizabeth Harrington), Juliette Jennings, Gary Gilliam, Albert Tubman, Anna Mae Jones, Jackie Gilliam, Janie Harrington Brown, and James Garfield Gregory, was indicted by the Grand Jury of Baltimore City for violating the Controlled Dangerous Substances laws of this State; all were convicted in the Criminal Court of Baltimore for one or more violations of those laws; all were apprehended as a result of judicially authorized eavesdropping or wiretapping; all have appealed; all assert the illegality of the State’s intrusion into their illicit business; all bottom their attack on the judgments of the Criminal Court on violations of Title III of the Omnibus Crime Control and Safe Streets Act of 1968.

Although this appeal is concerned with Phyllis Poore, oral argument on the issues of the validity of the eavesdrop and wiretap raised by all appellants was consolidated. Ergo, what we hold in this opinion with respect to those issues applies to each of the consolidated cases. Rather than repeat the discussion in each case, we shall merely refer to Part II of this opinion.

The appellants moved to suppress the evidence obtained through the eavesdrop order, to suppress the evidence acquired as a result of the wiretap because it was tainted by the illegality of the eavesdrop and to suppress the search and seizures for the same reason.

At the suppression hearing on the eavesdrop evidence, Assistant State’s Attorney Denholm testified that he had petitioned Judge Dorf to extend the time in which the State was to notify those persons whose conversations had been electronically intercepted through the transmitter in the hospital room. Mr. Denholm told the hearing judge that Judge Dorf had signed such an order extending the time for notification to June 9,1976, but that neither Judge Dorf nor Mr. Denholm was able to locate a copy of it. Denholm further stated that it was not placed under seal and turned over to the clerk of the court but that he, Denholm, kept it in his file. A paper writing purporting to be a copy of the petition to extend the time for notification was offered by the State. The petition was rejected by the hearing judge as the result of an objection, but the testimony of Mr. Denholm remained despite appellants’ efforts to have it stricken.

Other issues raised by the appellants were the failure of the State to comply with the order directing the surrender of the tapes to Judge Dorf immediately upon the termination of the eavesdrop and failure to minimize so as to avoid the overhearing of privileged communication. Appellants contend that a lapse of four (4) days between the cessation of the eavesdrop surveillance and the surrender of the tapes to Judge Dorf cannot be equated to “immediate,” and that the listening to and, in some instances with respect to the wiretaps, recording of privileged communications between counsel and client vitiates the wiretap order.

The hearing judge suppressed “out of an abundance of caution” the conversations between attorney and client but denied the other motions. The reasons assigned were that “the failure to provide notice [of the eavesdrop] was an inadvertence” and that “the notification requirements were substantially complied with and there has been no showing of prejudice. . . .”

The matter of the delay in turning the eavesdrop tapes over to Judge Dorf was not ruled upon in the criminal court and has not been pressed here. In any event, its delay is de minimis. United States v. Sklaroff, 506 F. 2d 837 (5th Cir. 1975), cert. denied, 423 U. S. 874, 96 S. Ct. 142, 46 L.Ed.2d 105 (1975).

II.

POST-ORDER COMPLIANCE WITH FEDERAL ELECTRONIC INTERCEPTION ACT.

A. Application for Notification Extension Order.

Title III, 18 U.S.C. § 2518(8)(d) (1970) provides:

“Within a reasonable time but not later than ninety days after the filing of an application for an order of approval under section 2518(7) (b) which is denied or the termination of the period of an order or extensions thereof, the issuing or denying judge shall cause to be served, on the persons named in the order or the application, and such other parties to intercepted communications as the judge may determine in his discretion that is in the interest of justice, an inventory which shall include notice of —

(1) the fact of the entry of the order or the application;

(2) the date of the entry and the period of authorized, approved or disapproved interception, or the denial of the application; and

(3) the fact that during the period wire or oral communications were or were not intercepted.

The judge, upon the filing of a motion, may in his discretion make available to such person or his counsel for inspection such portions of the intercepted communications, applications and orders as the judge determines to be in the interest of justice. On an ex parte showing of good cause to a judge of competent jurisdiction the serving of the inventory required by this subsection may be postponed.” ^

Although there was testimony by Mr. Denholm that he petitioned for and obtained an extension of the time in which to notify those parties whose oral communication had been intercepted by the police, no order authorizing the delay in notification was ever found. That mishap presents several interesting questions, videlicet — Is post-order compliance with 18 U.S.C. §§ 2510-2520 on the same footing as pre-order compliance? Is the failure to seal an order extending notification fatal to the validity of the original intercept order? Does section 2518(8)(d) require the principal attorney to seek an extension of notification order, just as section 2516(2) mandates his making application for the original intercept order or may he delegate that task?

Although Siegel declares that the Court of Appeals will not abide the slightest deviation from the prescribed path with respect to electronic surveillance, Spease and Ross v. State, 275 Md. 88, 338 A. 2d 284 (1975), distinguishes between pre-order compliance and post-order compliance. In Spease, Chief Judge Murphy noted that Siegel turned on the failure of the order authorizing the wiretap “to meet the precondition requirements ... [unlike Spease\ in that... it did not specify that the surveillance was to be conducted over a certain time period; that there was to be automatic termination upon the interception of certain conversations;” Id at 108, 338 A. 2d at 295, nor was there a minimization of listening to non-pertinent conversations or instruction to terminate upon attainment of the objective. The Spease case clearly involved post-order notification. Spease did not receive the notice prescribed by section 2518(8)(d) because in the view of the issuing judge, Spease was not the target of the order nor was he named in the order. Spease, did, however, receive informal notice of the wiretap three (3) weeks before trial. His rights under section 2518(9), which prohibits use of evidence of intercepted communications unless at least ten (10) days prior to trial the party against whom it is to be offered is furnished with a copy of the application and the electronic interception order, were not breached. With respect to Ross, the target of the interception and Spease's codefendant, there was no formal compliance with section 2518(8)(d), but Ross did receive a copy of the search and seizure warrant and affidavit in support thereof. The affidavit for the search and seizure warrant contained “all the details concerning the interception.” Id. at 103,338 A. 2d at 293. The Court held with regard to Ross that the notification he received “constituted compliance with the inventory requirement of the statute.” Id. at 106, 338 A. 2d at 294. Spease, the Court said, received “actual notice of the wiretap ... almost six months prior to trial, ... [and] did not suffer any prejudice,” Id. at 109, 338 A. 2d at 296, resulting from the failure of the State to follow precisely the inventory notification.

At first glance Spease appears to conflict with Siegel. A careful reading of both cases makes it transpicuous that Siegelis directed to pre-intercept and intercept conditions. As to those two (2) happenings, not the slightest deviation from the statute will be sanctioned. On the other hand, Spease indicates that when post-intercept events are brought into question, the Court looks to the facts so as to ascertain whether there has been substantial compliance with the post-intercept provisions of the act and whether there has been actual prejudice to the defendant. Thus, it is obvious that there is a distinction between pre-order and post-order compliance. In the former, a defect will void the order and cause suppression of the evidence, but in the latter, a defect will not vitiate the order if there has been substantial compliance and no prejudice to the defendant is shown.

The failure to seal an order extending the time in which notification of the inventory required by section 2518(8)(d) is a post-order condition. The act itself is silent as to both the form of the order, Spease & Ross v. State, supra, and as to whether the order is to be sealed. We think that the spirit of the act necessitates that such extension orders be under seal and kept in the same place as the original intercept order. We so think because inasmuch as the purpose of the act is confidentiality, it is illogical to require the original order to be under seal of the court, and hence not public information until its existence is revealed at trial, if an order allowing an extension of time for notification of the inventory is not sealed and thus part of the public records. While the extension of notification order does not disclose the contents of the interception, it does, unless sealed, make the existence of an interception public.

We believe the intent of the Congress to have been that all ex parte orders extending the time in which the inventory notice is to be served upon the persons named in the interception order “and such other parties ... as the judge may determine ... in the interest of justice,” 18 U.S.C. § 2518(8)(d) (1970), must be under seal of the court and treated in the same manner as the order authorizing interception.

The question still remains as to whether the failure to seal the order extending the time in which the notification mandated by section 2518(8)(d) is fatal. In the instant case, the order that extended the time in which to notify the parties whose conversations had been intercepted was kept by the Assistant State’s Attorney “in his files.” There is nothing to indicate that the order was docketed. The State, conceding “that the procedures followed ... in this case were not only inappropriate but rather careless,” argues that because the order was retained by the assistant prosecutor, “it is apparent that . . . [it] was not docketed or otherwise published. Therefore, . . . confidentiality was maintained in regard to notification and substantial compliance was accomplished.” We are unable to share the State’s conclusion that the petition for and the order allowing the extension of time for notification did not become public. There is no evidence as to what person or persons had access to the Assistant State’s Attorney’s files, and, indeed, in view of his inability to locate the order, it is reasonably safe to infer that the order was not placed in the file, or if placed there, was removed by some unauthorized person. Either happening makes confidentiality suspect.

Nevertheless, the failure to have the extension order sealed, in view of its not being docketed, would not appear to be such a substantial departure from the post-order procedures of Title III, 18 U.S.C. § 2518 as to require suppression.

B. Role of Principal Attorney.

Title III, 18 U.S.C. § 2516 provides in pertinent part:

“(1) The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize on application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, or a Federal agency having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has provided evidence of—
(a) any offense punishable by death or by imprisonment for more than one year under sections 2274 through 2277 of title 42 of the United States Code (relating to the enforcement of the Atomic Energy Act of 1954), or under the following chapters of this title: chapter 37 (relating to espionage), chapter 105 (relating to sabotage), chapter 115 (relating to treason), or chapter 102 (relating to riots);
(b) a violation of section 186 or section 501(c) of title 29, United States Code (dealing with restrictions on payments and loans to labor organizations), or any offense which involves murder, kidnapping, robbery, or extortion, and which is punishable under this title;
“(2) The principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision thereof, if such attorney is authorized by a statute of that State to make application to a State court judge of competent jurisdiction for an order authorizing or approving the interception of wire or oral communications, may apply to such judge for, and such judge may grant in conformity with section 2518 of this chapter and with the applicable State statute an order authorizing, or approving the interception of wire or oral communications by investigative or law enforcement officers having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has provided evidence of the commission of the offense of murder, kidnapping, gambling, robbery, bribery, extortion, or dealing in narcotic drugs, marihuana or other dangerous drugs, or other crime dangerous to life, limb, or property, and punishable by imprisonment for more than one year, designated in any applicable State statute authorizing such interception, or any conspiracy to commit any of the foregoing offenses.” (Emphasis supplied.)

The Supreme Court, in United States v. Giordano, 416 U. S. 505, 94 S. Ct. 1820, 40 L.Ed.2d 341 (1974), construed section 2516(1) as meaning that only the “Attorney General or any Assistant Attorney specifically designated by the Attorney General,” 18 U.S.C. § 2516(1) (1970), was authorized to apply to a federal judge for an electronic interception order. An approval of the application by the “Executive Assistant to the Attorney General,” Id. at 510, 94 S. Ct. at 1824, 40 L.Ed.2d at 350, based on his “knowledge of the Attorney General’s actions in previous cases,” Id., did not satisfy the statute. A wiretap order by the United States District Court for the District of Maryland was invalid and the evidence derived therefrom was suppressed.

Section 2516(2) speaks of “[t]he principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision____” The language of that section does not confer upon the principal prosecuting attorney any power to delegate to an assistant the authority to apply for an electronic interception. The Congress would not have so carefully limited the power of the Attorney General of the United States to delegate to a specifically designated assistant the authority to seek orders to intercept oral or telephonic communications and at the same time bestowed upon the principal prosecutor of any State, city or county in the nation an unbridled license to clothe any or all of his or her assistants with permission to seek such orders. It is inconceivable that the country’s highest legal officer would be so shackled while the principal prosecutor of the least populated county in the United States was free to permit any designee to apply for an interception order. We think the intent of the Congress to be that the authority devolved upon the principal prosecutor of the State or of the political subdivision, is personal to him, and may not be delegated. “[T]he authority to apply for court orders is to be narrowly confined ... to those responsive to the political process, a category to which the ... [Assistant State’s Attorney] does not belong.” United States v. Giordano, 416 U. S. at 520, 94 S. Ct. at 1829, 40 L.Ed.2d at 356.

We are supported in our holding by an examination of former Md. Cts. & Jud. Proc. Code Ann. § 10-403 (1974) and former Md. Ann. Code art. 27, § 125A-D, which were in effect at all times during the surveillance, indictment, and trial of this case, as well as the current Md. Cts. & Jud. Proc. Code Ann. § 10-406 (Supp. 1977). All speak of “The Attorney General or any State’s Attorney” as being the person to apply for “an order authorizing the interception of wire or oral communications____” Id. Nowhere in any of the former statutes or the present statute is there so much as a hint that the Attorney General or the State’s Attorney may delegate the authority to apply for interception orders. The statutes, both past and present, empower only the Attorney General or the State’s Attorney to seek such orders. It is a power entrusted solely to them as they are the ones answerable through the political process to the electorate.

Title III, 18 U.S.C. § 2518(8)(d) (1970) does not indicate whether the ex parte showing of good cause for a postponement of the inventory must be made by the principal prosecutor. In fact, the last sentence of 18 U.S.C. § 2518(8)(d) (1970) that “[o]n an ex parte showing of good cause to a judge of competent jurisdiction the serving of the inventory required by this subsection may be postponed” read literally suggests that the ex parte showing need not be made to the judge that issued or denied the interception order. The other language of 18 U.S.C. § 2518(8)(d) (1970) concerns the judge who issued or denied the order. If the statute means what it seems to say, it is theoretically possible for the issuing or denying judge to cause the inventory to be served while another “judge of competent jurisdiction” is simultaneously postponing the notice. Needless to say, such a situation would wreak havoc with any ongoing investigation. We think the statute has to be read as meaning the ex parte showing for a postponement of notice must be made to the issuing or denying judge unless that judge is no longer on the bench or because of physical or mental disability is unavailable.

Furthermore, we believe that the ex parte showing for good cause for a postponement of notice is to be made by the principal prosecuting attorney and not his representative. We so believe because the provisions of the statute sanctioning the interception order provides that the order may be passed or denied by the judge on application of the principal prosecutor, and we cannot find within it any indication, expressed or implied, empowering the delegation of that authority by the principal prosecutor. In our view, the Congress did not intend for the principal prosecutor to shift responsibility to an assistant once the order was issued or denied.

C. Effect of Failure to Notify Within Statutorily Stated Time.

During the course of an oral opinion delivered at the close of the suppression hearing in the matter now before us, the judge, after observing the fulfillment of the notice provisions of the act with respect to the wiretap, said:

“There’s no such notification of the eavesdrop. Defendant’s counsel cites Washburn v. State, 19 Md. App. 187, at page 199, where it was asserted that notice requirements are mandatory and recognized that notice may be postponed on a showing of good cause. It is further contended that ... [section] 2518(8)(b) requires that all applications and orders granted under this chapter must be sealed by the judge. The State admits that this was not done. If this section can be construed as a precondition for the validity of the order authorizing the eavesdrop, then communications obtained thereby should be suppressed.”

The judge did not so construe section 2518(8)(b). She denied the suppression motion grounded on the fact that the defendants received notice and inventory even though the receipt was without the ninety (90) days prescribed by section 2518(8)(d). The judge also observed that there was no showing by the defendants that they were prejudiced by the delay in notification and inventory of the eavesdrop.

The appellants read section 2518(8)(d) as mandating that if the notice and inventory is not furnished by the State to defendants within the ninety (90) day period or any extension thereof, the eavesdrop is flawed and the evidence, directly or indirectly obtained therefrom, should be suppressed. We disagree.

The Supreme Court, in United States v. Donovan, 429 U. S. 413, 97 S. Ct. 658, 50 L.Ed.2d 652 (1977) in reversing Donovan v. United States, 513 F. 2d 337 (6th Cir. 1975), said:

“The legislative history [of the Omnibus Crime and Safe Streets Act of 1968] indicates that postintercept notice was designed instead to assure the community that the wiretap technique is reasonably employed. But even recognizing that Congress placed considerable emphasis on that aspect of the overall statutory scheme, we do not think that postintercept notice was intended to serve as an independent restraint on resort to the wiretap procedure. ”[] (Emphasis supplied.) 429 U. S. at 439, 97 S. Ct. at 674, 50 L.Ed.2d at 675.

Similar views are expressed by some Federal Circuit Courts of Appeal before the Supreme Court decided Donovan. See e.g., United States v. Bohn, 508 F. 2d 1145, 1148 (8th Cir. 1975), cert. denied, 421 U. S. 947, 95 S. Ct. 1676, 44 L.Ed.2d 100 (1975); United States v. Rizzo, 492 F. 2d 443, 447 (2d Cir. 1974), cert. denied, 417 U. S. 944, 94 S. Ct. 3069, 41 L.Ed.2d 665 (1974); United States v. Iannelli, 477 F. 2d 999, 1003 (3d Cir. 1973), aff'd on other grounds, 420 U. S. 770, 95 S. Ct. 1284, 43 L.Ed.2d 616 (1975); United States v. Wolk, 466 F. 2d 1143 (8th Cir. 1972). The Court of Appeals, Second Circuit, in United States v. Principie, 531 F. 2d 1132, 1141-42 (2d Cir. 1976) , held that absent a showing of prejudice, a failure to notify within ninety (90) days those persons whose conversations had been intercepted was not sufficient to require suppression of the evidence. The court, in Principie, rejected the rationale of the Sixth Circuit’s United States v. Donovan, 513 F. 2d 337 (6th Cir. 1975) and the Fourth Circuit’s United States v. Bernstein, 509 F. 2d 996 (4th Cir. 1975), noting that Donovan was then pending before the Supreme Court and that certiorari had been prayed in Bernstein, which, following quickly on the heels of Donovan, was vacated, and remanded. 429 U. S. 998, 97 S. Ct. 1167, 51 L.Ed.2d 578 (1977).

This Court, in Spease, supra, speaking through Judge Moylan, anticipated the Supreme Court’s Donovan decision by approximately three (3) years. We declined to equate post-order compliance with pre-order compliance, and pointed out that the failure to file a proper or timely inventory should not result in a suppression of the evidence unless prejudice was demonstrated. 21 Md. App. 269, 293-99, 319 A. 2d 560, 573-76 (1974). Chief Judge Murphy, writing for the majority in Spease & Ross v. State, 275 Md. at 103-09, 338 A. 2d at 293-96, reached the same conclusion and for substantially the same reasons.

The net result is that even though the order permitting the extension of the time in which to give notice and file an inventory was not under seal, cannot be found, and the Assistant State’s Attorney rather than the principal prosecutor sought and obtained the extension (those largely ministerial functions, all occurring after the termination of a valid, judicially authorized eavesdrop) are not individually or collectively sufficient to invoke the sanctioned suppression unless there is a showing by the defendants of prejudice.

On the strength of United States v. Donovan, supra, as well as Spease & Boss v. State, supra, and their ancestors, we hold that the hearing judge did not err in refusing to suppress the evidence because of a failure to adhere strictly to section 2518(8)(d). The sanctions mandated by the act and by Siegel do not apply to the notice and inventory features of 18 U.S.C. §§ 2510-2520 (1970).

We are not to be understood as approving the carelessness of the State in the instant case. Indeed, we condemn the haphazard way in which the State so loosely followed the post-order provision of section 2518(8)(d). Only the failure of the appellant to demonstrate prejudice stands between the admission of the evidence and its suppression.

III.

PROBABLE CAUSE FOR THE WIRETAP.

Appellant Poore next argues that the wiretap order issued on February 17, 1976, was not based upon probable cause. The thrust of that assertion is that the tapes made pursuant to the eavesdrop order were lacking in fidelity and “so abominable that no finding of probable cause could have been based thereon.”

It was stipulated among the court and all counsel that the eavesdrop tapes were not discernible to them. Detective Caggese, however, testified that he could, with “difficulty but not great difficulty” discern the taped conversations. The “conversations” revealed to Caggese that William Cooper was “losing control of the organization____” Hearing that, Detectives Caggese and Smoot sought out two (2) informants, identified only as “N.U.I. # 432” and “N.U.I. # 456.” The reliability, credibility and basis of knowledge of the informants is not here under attack, but even if it were, the affidavit in support of the wiretap disclosed that the Aguilar v. Texas, 378 U. S. 108, 84 S. Ct. 1509, 12 L.Ed.2d 723 (1964) requirements were satisfied. Reliability and basis of knowledge were indubitably demonstrated. Informant # 432 told Caggese and Smoot on January 23, 1976, that “he was informed that day ... that the COOPER Family’s business (heroin traffic) has been split up and that any problems or any needs would have to go through ... [Ronnie Purcell] or BOOTSIE (Anna Mae Jones)----This information was known to N.U.I. # 432 because RONNIE explained the whole new set up to N.U.I. # 432.” Informant # 432 was also furnished with two (2) telephone numbers in order for him to contact BOOTSIE. The numbers were the same as those for which the tap was sought.

Caggese and Smoot, eleven (11) days later, contacted N.U.I. # 456 who “stated that he had been purchasing heroin from the COOPER family for the past year” and has had his dealings in the residence where the telephones to be tapped were located. Informant # 456 advised the detectives that “as a result of recent conversations he has had with BOOTSIE, that heroin is delivered to 3409 Milford Avenue when it is first brought into Baltimore.” (Emphasis supplied.) The informant also said “that he has on several occasions overheard BOOTSIE make several phone calls out of state and discuss heroin deals.” We think the information gleaned from the informant established independent probable cause for the issuance of the wiretap order, irrespective of the clarity of the eavesdrop tapes. The hearing judge did not err in refusing to suppress evidence obtained from or as a result of the properly issued wiretap.

IV.

RECORD AND SPOT-CHECKING OF CONVERSATIONS.

Appellant claims that “[cjontrary to the mandate [of the eavesdrop and wiretap orders], the method of recordation ... invited editing or other alterations.” She finds the method used by the monitors as “defective for two (2) reasons: (1) by permitting undetectable listening, it invites impermissible intrusions into privacy; and (2) it does not provide any assurance that the recordings are free from editing or other alteration.” After painstakingly suggesting the cure for the alleged flaws, appellant asserts that “[b]ecause of these two (2) defects, it cannot be said that the recording was protected from editing or other alteration.” Appellant engages in sheer speculation as there was not a gossamer of evidence that the records were edited or altered. The testimony was that efforts were made not to overhear private conversations not relative to the trafficking in drugs, but “spot checking” on those conversations was employed. Common sense dictates that a “private conversation” on an unrelated subject may be changed by the parties thereto into a discussion relating to the very matter for which the interception order has been obtained. The only way for the monitor to know whether the conversation has moved from the non-pertinent to the pertinent is by “spot checking.” Should “spot checking” be impermissible, the way to defeat absolutely an electronic surveillance would be to commence any and all conversations with non-pertinent subject matter and after a reasonable period switch to the pertinent. No recording concerning any nefarious activity would ever be made if it were preceded by non-pertinent topics.

We perceive no error in the method used by the police in monitoring the conversations in the case now before us.

V.

MINIMIZATION.

Appellant, Phyllis Poore, and those appellants who have been joined in the order of consolidation assail the interception of telephone calls between Jackie Gilliam and Henry L. Belsky, Esquire, and between Anna Mae Jones and Belsky. The monitors had been instructed not to listen to or record conversations between attorney and client. Failure to obey that instruction, appellant reasons, mandates the suppression of all the evidence, notwithstanding the hearing judge’s having suppressed the conversations between attorney and client.

The Fourth Amendment to the United States Constitution, and Title III 18 U.S.C. § 2518(5) (1970), in order to prevent unnecessary intrusion into the privacy of the surveillance target, require “that the authorization to intercept... shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception----” 18 U.S.C. § 2518(5) (1970). “Each aggrieved person is entitled to question whether the statutory minimization requirement has been satisfied and, on proving that it has not, to move to suppress a communication on the ground that ‘the interception was not made in conformity with the order of authorization or approval.’ 18 U.S.C. § 2518(10)(a)(iii).” United States v. Scott, 504 F. 2d 194, 197 (D.C. Ct. of App. 1974).

Section 2518(5) is legislative direction that surveillance should be limited as much as possible. United States v. Turner, 528 F. 2d 143, 156 (9th Cir. 1975), cert. denied, 423 U. S. 996, 96 S. Ct. 426, 46 L.Ed.2d 371 (1975); United States v. Armocida, 515 F. 2d 29, 42 (3d Cir. 1975), cert. denied, 423 U. S. 858, 96 S. Ct. 111, 46 L.Ed.2d 84 (1975); Spease & Ross v. State, supra. Spease declares that “[t]he standard for compliance with the requirement to minimize is the overall reasonableness of the totality of the conduct of the monitoring agents in light of the purpose of the wiretap and the information available to the agents at the time of interception.” 275 Md. at 99, 338 A. 2d at 290. See United States v. Armocida, 515 F. 2d at 42. Chief Judge Murphy said in Spease that the minimization requirement of section 2518(5) “is nothing more than a congressional command to limit surveillance as much as possible in the circumstances. . . .” 275 Md. at 99, 338 A. 2d at 291. Whether' there has been a compliance with the “congressional command” is a question that must be answered on a case-by-case basis. See United States v. Losing, 539 F. 2d 1174, 1181 (8th Cir. 1976); United States v. Armocida, 515 F. 2d at 42. “The reasonableness of the conduct of the monitoring agents at the time of the interception and their good faith are determining considerations.” Spease &Ross v. State, 275 Md. at 99, 338 A. 2d at 291. See United States v. Armocida, 515 F. 2d at 42; United States v. James, 494 F. 2d 1007, 1018 (U.S. App. D.C. 1974), cert. denied, 419 U. S. 1020, 95 S. Ct. 495, 42 L.Ed.2d 294 (1974); United States v. Manfredi, 488 F. 2d 588 (2d Cir. 1973), cert. denied, 417 U. S. 936, 94 S. Ct. 2651, 41 L.Ed.2d 240 (1974); United States v. Tortorello, 480 F. 2d 764, 784 (2d Cir. 1973), cert. denied, 414 U. S. 886, 94 S. Ct. 63, 38 L.Ed.2d 86 (1973). Thus, in certain factual settings the interception of all conversations may be justified, United States v. Bynum, 485 F. 2d 490 (2d Cir. 1973), yet be violative of the minimization provision, given other factual surroundings. Spease & Ross v. State, 275 Md. at 100, 338 A. 2d at 291. See United States v. Losing, 539 F. 2d at 1180; United States v. Turner, supra; United States v. King, 335 F. Supp. 523 (S.D. Cal. 1971), rev’d on other grounds, 478 F. 2d 494 (9th Cir. 1973).

Synthesizing the decisions of the courts pertaining to minimization, Chief Judge Murphy, in Spease &Ross v. State, supra, stated that “there are a number of factors,” 275 Md. at 100, 338 A. 2d at 291, which are of assistance to the court when confronted with a question of whether a particular interception is reasonable under the attendant circumstances. The factors include:

“(1) the nature and scope of the crime being investigated; (2) the sophistication of those under suspicion and their efforts to avoid surveillance through such devices as coded conversations; (3) the location and operation of the subject telephone; (4) government expectation of the contents of the call;
(5) the extent of judicial supervision; (6) the duration of the wiretap; (7) the purpose of the wiretap; (8) the length of the calls monitored; (9) the existence of a pattern of pertinent calls, which the monitoring agents could discern só as to eliminate the interception of non-pertinent calls; (10) the absence of monitoring of privileged conversations.” 275 Md. at 100, 338 A. 2d at 291.

The ten (10) factors articulated in Spease were not intended to be all inclusive or exhaustive.

Appellants claim that they were the victims of an overtap. Conversations were either subject to continuous monitoring or “spot checked.” Certain conversations subject to the attorney-client privilege were recorded. Those privileged conversations were suppressed, however, by the trial court. Notwithstanding the suppression, appellants contend that the interception of the privileged conversations in and of itself requires total suppression of the evidence. Close examination of the procedure employed by the State discloses that the State’s methods appear appropriately designed to limit impermissible interceptions “to a practical minimum while allowing the legitimate aims of the... [State] to be pursued.” United States v. Turner, 528 F. 2d at 156.

The first consideration is “the nature and scope of the crime being investigated.” Spease & Ross v. State, 275 Md. at 100, 338 A. 2d at 291, which in this case was a “[l]arge and sophisticated narcotics conspiracy] ... justifying] considerably more interception than would a single criminal episode.” United States v. Quintana, 508 F. 2d 867, 874 (7th Cir. 1975). See also United States v. Daly, 535 F. 2d 434, 441 (8th Cir. 1976); United States v. Cox, 462 F. 2d 1293, 1300-01 (8th Cir. 1972), cert. denied, 417 U. S. 918, 94 S. Ct. 2623, 41 L.Ed.2d 223 (1974). The courts generally permit a greater latitude to officials conducting a sweeping investigation and have held a wider range of intercepted calls to be pertinent. Low, Post-Authorization Problems in the Use of Wiretaps: Minimization, Amendment, Sealing, and Inventories, 61 Com. L. Rev. 92,110 (1975). Interwoven with the examination of the nature and scope of the crime under investigation is “the purpose of the tap.” Spease & Ross v. State, 275 Md. at 100, 338 A. 2d at 291. According to Detective Caggese, the aim of the wiretap was to identify the principals in the interstate operation. Extensive wiretapping is more justified when, as here, its aim is to discover the identities of far-flung conspirators and to determine the scope of the operation. United States v. Losing, 539 F. 2d at 1180.

The third problem confronting the investigators in the case sub judice was the sophisticated nature of the conspiracy and the tendency of the conspirators to communicate in the special jargon of the drug world. When conspirators converse in a colloquial code, thereby creating superficially innocuous conversations that are, in reality, relevant to the investigation, the courts have been more permissive when reviewing claims of over-reach or failure to minimize. United States v. Losing, supra; United States v. Armocida, supra; Low, Post-Authorization Problems in the Use of Wiretaps: Minimization, Amendment, Sealing, and Inventories, 61 Corn. L. Rev. 92, 110 (1975). Although references in the matter now before us to “candy” and “dresses” may sound innocent to the lay .ear, trained narcotics agents verified that those words, in actuality, were an allusion to drugs, particularly heroin. Since coded conversations were the norm in this case, the monitors had no way of pre-identifying guilt-free conversations by subject matter. Under the circumstances “spot checking” and comprehensive monitoring of conversations are sanctioned. United States v. Losing, supra. See United States v. Turner, supra.

“It is often impossible to determine that a particular telephone conversation would be irrelevant and harmless until it has been terminated. It is certainly not unusual for two individuals using the telephone to discuss social matters or items of general interest before getting to the precise point which is to be covered in the call.” United States v. LaGorga, 336 F. Supp. 190, 196 (W.D. Pa. 1971).
“Accordingly, where, as here, the investigation is of an organized criminal conspiracy conversing in a colloquial code, surveillance of most of the telephone calls made during several days does not constitute a failure to minimize simply because in retrospect it can be seen that a substantial portion of them had no evidentiary or investigative value.” United States v. Cox, 462 F. 2d at 1300-01.

Where coded conversations are utilized to obfuscate the true meaning of the dialogue, perfection in minimization is virtually impossible. Portions of irrelevant conversation must invariably be heard before a monitor determines that a conversation is without the scope of his warrant. The Fourth Amendment was designed to prevent unreasonable searches and seizures, “and it seems reasonable to expect that some innocent conversations will be picked up.” Low, Post-Authorization Problems in the Use of Wiretaps: Minimization, Amendment, Sealing, and Inventories, 61 Corn. L. Rev. 92, 97 (1975). (Emphasis supplied.) Even after the officer determines that the colloquy is facially irreproachable, “spot checking” may still be advisable. A single word or phrase artfully inserted in the course of an apparently harmless tete-á-tete may convert that seemingly innocent conversation into a flagrant criminal conspiracy. “Sampling [spot-checking] is necessary to thwart wary criminals who slip a few incriminating statements into a long, chatty, personal call.” Low, Post-Authorization Problems in the Use of Wiretaps: Minimization, Amendment, Sealing, and Inventories, 61 Corn. L. Rev. 92, 121 n. 140 (1975).

A fourth impediment to greater minimization in the instant case was “the location and operation of the subject telephone.” Spease & Ross v. State, 275 Md. at 100, 338 A. 2d at 291. As the Attorney General points out, “the telephones were located in a private residence, [and] the monitors had no way of inspecting the contents of incoming or outgoing calls, because so many of the local and New York people were at first unknown.” The police initially had no definite idea of the exact dimensions of the drug ring and were compelled to intercept all calls to and from the appellants’ home phones in order to ascertain the perimeters of the conspiracy. The presence of three (3) telephones in the home led the police to conclude that if the home was a center for drug trafficking, the volume of drug related calls should be heavy. As the Court noted in Spease, the fact that the home phone was “central to the drug operation,” 275 Md. at 102, 338 A. 2d at 292, was a significant factor in considering whether proper safeguards toward minimization had been used. See generally United States v. James, supra.

A fifth factor that the Court must weigh is the State’s “expectation of the contents of the call,” Spease & Ross v. State, 275 Md. at 100, 338 A. 2d at 291. The agents had no reason to believe that any particular call would be innocent, despite the fact that the target phones were located in a private home. “Some of the appellants were family members or close friends. Thus, their conversation often contained innocent social matter as well as pertinent [criminal] information.” United States v. Quintana, 508 F. 2d at 875. Accord, United States v. Kirk, 534 F. 2d 1262, 1275 (8th Cir. 1976); United States v. Turner, 528 F. 2d at 158.

“It is all well and good to say, after the fact, that certain conversations were irrelevant and should have been terminated. However, the monitoring agents are not gifted with prescience and cannot be expected to know in advance what direction the conversation will take.” United States v. Cox, 462 F. 2d at 1301, quoting United States v. LaGorga, 336 F. Supp. at 196.

See also United States v. Turner, 528 F. 2d at 158; United States v. Armodda, 515 F. 2d at 45; United States v. Scott, 504 F. 2d at 198. “Wiretapping is imprecise because in the normal case the monitoring agent does not know exactly what he is going to hear until he hears it. Thus, most agents have been reluctant to unplug their earphones for fear that they will miss an important conversation.” Low, Post-Authorization Problems in the Use of Wiretaps: Minimization, Amendment, Sealing, and Inventories, 61 Corn. L. Rev. 92, 96 (1975). In short, monitors are not gifted with extrasensory perception nor are they fortune-tellers. Only by hearing the conversation can it be determined to be privileged.

“The extent of judicial supervision,” Spease & Ross v. State, 275 Md. at 100, 338 A. 2d at 291, and the “duration of the wiretap,” Id., lend credence to the State’s contention in the matter now before us that proper steps were taken toward conformance with the minimization requirement of section 2518(5). A wiretap of only four (4) weeks duration was employed to break an interstate drug ring, and the “tap” was subject to twice weekly reports to the issuing judge. Furthermore, “the length of the calls monitored,” Id., was never shown to be excessive nor was there any proof that a “pattern of pertinent calls” emerged. Id.

Appellants also complain that calls between client and attorney were monitored in violation of the privileged nature of those conversations. While no aspersions were ever cast upon the character or involvement of appellants’ attorney, the State found itself confronted with a conspiracy, the nature of which appeared to be such that there was a possibility that the content of the calls might have negated the privilege. Had the calls proven to be in furtherance of the crime, the attorney-client privilege would have been unavailable to the parties. Pollock v. United States, 202 F. 2d 281 (5th Cir. 1953). If the police were required to cease all listening, recording, and spot-checking because the conversation appeared superficially to be a privileged communication, it would not be long before those involved in unlawful activity would circumvent the wiretap by creating the impression to the monitor that the conversation was a privileged communication irrespective of its content. The titles of “attorney,” “doctor,” “reverend,” “priest,” or “father” might well become underworld code words in order to defeat electronic interception.

In any event, in the case at bar, none of the conversations between attorney and client were ultimately transcribed or admitted into evidence. Appellants are unable to show prejudice resulting from the interception of those conversations, and we are unwilling to extend the sanction of suppression to all evidence because a justifiable suspicion turns out not to be fact.

We think there was no violation of the minimization provision of Title III. 18 U.S.C. § 2518(5) (1970). While minimization may not have been as strict as appellants would have wished or as the ideal situation prescribes, the Court will not judge the State’s procedure by a rigid hindsight that ignores the problems confronting the monitors at the time of the investigation. Once the State succeeded in making a prima facie showing of reasonableness, it was then up to the appellants to show an alternative procedure that would have better minimized noncriminal conversations while still permitting the State to achieve its legitimate objective. United States v. Quintana, supra. The appellants made no such showing.

VI.

STRIKING OF JUROR FOR CAUSE.

Among the questions asked at voir dire were two (2) pertaining to the witnesses’ opinions concerning electronic surveillance. The court inquired as follows:

“Is there any member of the Jury panel who believes that a legally authorized electronic surveillance, commonly known as a wire tap, [s/c] is unfair to obtain evidence in a criminal case? If so, please stand.
(No Response)
Is there any member of the panel who has any moral reasons or any reasons, or personal thought or convictions regarding the use of wire tap [sze] by the police, or would you accept it as any other evidence one way or the other, and the question should be, if you don’t, if you feel that it is against your principles or otherwise, please stand?”

One venireman responded in the affirmative to the latter question and was then further examined by the court. The venireman stated, “I feel it’s [wiretapping] an invasion of privacy as a citizen.” He further said that even if the court ruled that there had been a legal wiretap, admissible in evidence, he would be unable to consider the wiretap like any other evidence. The venireman flatly noted that in his opinion a wiretap was “unjust. It’s uncalled for. That’s the way I feel.” Inasmuch as the crux of the State’s case consisted of the wiretap conversations, a prospective juror’s refusal to consider such evidence constituted sufficient reason to strike him from the panel for cause.

Judge Arabian complied with the requirements set forth in Witherspoon v. Illinois, 391 U. S. 510, 88 S. Ct. 1770, 20 L.Ed.2d 776 (1968). In that case, the Court did allow exclusion for cause of those jurors who would absolutely not consider the death penalty. In the case sub judice, the venireman was not excused until the court had determined that he absolutely would not consider wiretap evidence or evidence derived therefrom. Bias toward a certain kind of evidence is a manifestation of a predisposition against guilt or innocence because of a reason extrinsic to the evidence. McCree v. State, 33 Md. App. 82, 363 A. 2d 647 (1976); Tisdale v. State, 30 Md. App. 334, 353 A. 2d 653 (1976). Thus, the trial judge properly struck the prospective juror for cause.

VII.

DEFENDANT MUST DEMONSTRATE THAT SHE CAME WITHIN STATUTORY EXCEPTION SET OUT IN MD. ANN. CODE ART. 27, § 279.

Appellant alleges that the State failed to prove that she did not come within the statutory exceptions to the controlled dangerous substance laws. Heroin, however, as a drug included in Schedule I of Md. Ann. Code, art. 27, § 279, is, at this point in time, deemed to have no legitimate or accepted medical use in the United States. Furthermore, when a statutory exception is claimed, it is encumbent upon the accused to demonstrate that he or she comes within the ambit of the exception. Jordon v. State; 24 Md. App. 267, 330 A. 2d 496 (1975), cert. denied, 274 Md. 729 (1975).

Judgments affirmed.

Costs to be paid by appellant.

      . Md Ann. Code art. 35 was repealed by 1973 Md. Laws, 1st Sp. Sess. ch. 2, § 2 and reenacted in modified form. See n. 8 infra.

      . Md. Ann. Code art. 27, § 125 A-C was repealed by 1977 Md. Laws ch. 692.

      . Id.

      . By the 1977 Md. Laws ch. 692, the Legislature enacted a comprehensive “Wiretapping and Electronic Surveillance Act.” The act has been codified in the Courts and Judicial Proceedings Article §§ 10-401 —10-412 and became effective July 1, 1977.

      . Cooper was never charged in this case. Apparently, because of his hospitalization, occasioned by an automobile accident leaving Cooper a paraplegic, the State elected not to proceed against him.

      . Poore, Elizabeth Jennings, Juliette Jennings, Tubman, and Gregory were not named in either of the electronic intercept orders.

      . Elizabeth Jennings, alias Elizabeth Harrington, and Juliette Jennings are involved in appeal number 658. Gary Gilliam and Albert Tubman are before us on appeal number 732. Anna Mae Jones is here on appeal number 737. Jackie Gilliam and Janie Harrington Brown have also appealed. The number of their appeal is 1127. James Garfield Gregory is before us on appeal number 744.
      Dwight McNair, who pleaded guilty and was subsequently denied the right to withdraw that plea, was also consolidated inasmuch as if he had prevailed on the withdrawal issue, the questions raised in the consolidated argument would have applied to him. We affirmed the McNair judgment in an unreported per curiam opinion, McNair v. State, No. 695, September Term, 1977, filed February 21, 1978.

      . Md. Cts. & Jud. Proc. Code Ann. § 10-408 (g) (4), effective July 1,1978, does not contain a provision for an extension of time in which to give notice of the inventory.

      . What the Assistant State’s Attorney did in this case was unwittingly to prove the truth of Roos’s Law: “If there is a harder way of doing something, some one will find it.” Ralph E. Roos.

      . The Attorney General of Maryland, the City of Baltimore State’s Attorney, and all county State’s Attorneys are answerable directly to the electorate. An assistant to any of them is not so answerable.

      . Mr. Justice Marshall dissented, being of the view that, “[t)he Court’s conclusion that the notice provision is not central, dismantles this carefully-designed congressional structure.” 429 U. S. at 450, 97 S. Ct. at 679, 50 L.Ed.2d at 681. Mr. Justice Brennan joined in the dissent, and Mr. Justice Stevens joined in two (2) parts of the dissent including this particular language.

      . Such a statement made against penal interest establishes credibility. United States v. Harris, 403 U. S. 573, 91 S. Ct. 2075, 29 L.Ed.2d 723 (1971); Cuffia v. State, 14 Md. App. 521, 287 A. 2d 319 (1972).

      . See State v. Kraft, 269 Md. 583, 307 A. 2d 683 (1973), reversing 16 Md. App. 347, 297 A. 2d 328 (1972).

      . See n. 7, supra.

      . Id.

      . Section 2518(5) was passed by Congress in order to comply with the constitutional mandate of Berger v. New York, 388 U. S. 41, 87 S. Ct. 1873, 18 L.Ed.2d 1040 (1967), that wiretapping must be conducted with “particularity.” See United States v. Vento, 533 F. 2d 838, 850 (3d Cir. 1976). “Particularization” is necessary in view of the all-embracing invasion of privacy potential in wiretapping.


source: Caselaw Access Project

author: Moore, J.,

license: Public Domain

text:
    MARLENE S. DRAPER (BOETKER) v. DAVID W. DRAPER
    [No. 472,
    September Term, 1977.]

       Decided March 9, 1978.

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

      John C. Eidleman and Elizabeth S. Baker for appellant.

      Albert Gallatin Warfield, III, for appellee.

        Reporter’s Note. Unreported opinion previously filed on January 24, 1978; recalled by Order dated March 9,1978 for refiling as reported opinion.

   Moore, J.,

delivered the opinion of the Court.

In this child custody case, the natural mother has appealed from an Order of the Circuit Court for Anne Arundel County (Beardmore, J.) for modification of a decree of divorce between appellant and appellee under the terms of which the mother received custody of a child, Jennifer, born on March 19, 1972. Several assignments of error are made. Determinative of this appeal, however, is our conclusion that the chancellor, acting prior to the decision of the Court of Appeals in Davis v. Davis, 280 Md. 119, 372 A. 2d 231 (1977), applied an improper standard in changing custody from the mother to the father. We accordingly reverse and remand for further proceedings consistent with this opinion.

I

The parties were married in Hagerstown, Maryland when the mother was 15 years of age and the father 17. Their baby, Jennifer, was born less than two years later, on March 19, 1972. The parties separated in March 1973, Jennifer remaining with the mother. They were divorced in January 1975 and in the same month, the mother married a close friend of her former husband and resided with him in Pensacola, Florida, where he was on duty with the United States Navy. The second husband was thereafter transferred to Alaska. During his absence, the wife learned that he had had an affair with another woman and, out of bitterness, according to her testimony, she herself had an affair with another man. This liaison lasted approximately one month and a half. The natural mother of the child later took up residence in Syracuse, New York with another man, but separated from him when he was arrested and ultimately convicted of criminal charges involving breaking and entering.

The natural father of Jennifer filed a petition for modification of the divorce decree on May 14,1976, asserting that the mother was not a fit and proper person to have custody “as she has been living with a series of different men; she is flighty [,] promiscuous, unwholesome for the child and subjects the child to a bad environment.” A custody investigation was later requested. On August 21, 1976, prior to any court proceedings under the petition for modification, the wife’s former husband, her present husband, and two other men entered her apartment in Syracuse, New York and spirited away the child. The wife immediately filed a petition for contempt and an order was entered by the Circuit Court (Wray, J.) requiring the natural father to return the custody of the child to the mother forthwith.

The Department of Social Services of Anne Arundel County submitted a report of the custody investigation dated November 17,1976, prepared by Judith Finn, a social worker. The report recommended that custody of Jennifer be awarded to the father, David Draper, with reasonable rights of visitation to the mother, Marlene Boetker.

In support of the petition for modification, the natural father was the principal witness. (The aunt of the natural mother was also called by counsel for the father arid was examined as a hostile witness but gave no substantive testimony.) The father testified that he was regularly employed as a plumber and resided in a two-bedroom apartment; that because of his daytime employment he would require a child care program for Jennifer and was prepared to arrange for such. He agreed on cross-examination that she was a playful, intelligent and normal child and had always been in the mother’s custody. He claimed, however, that his visitation with the child had been limited by the natural mother, and that she was not a fit and proper person to have continued custody.

The mother, Marlene, took the stand in her own behalf and also presented the testimony of . her husband, Gary Boetker, from whom she was separated, her mother and father, with whom she and Jennifer had been living since November 1976, her aunt, Mrs. Tawney, whom appellee had endeavored to interrogate as a hostile witness, and a friend, Mrs. Dawn Bruns, the mother of a 15-month old child. The latter witnesses testified that the child, Jennifer, was normal, happy, and well-cared for, and that the mother was a fit and proper custodian. The testimony of three other witnesses to the same effect was also proffered.

In the course of the wife’s testimony, she stated that the natural father had been neglectful of the child on an occasion when she was seriously sick with a temperature and on other occasions when he preferred the company of his contemporary male friends outside the home, and that he did not consistently adhere to the child support requirements, namely, $25 per week, specified in the decree of divorce. She acknowledged the immorality of her past living situation, saying: “It was wrong. You know, at the time I had a lot of things in my head, but it was wrong and I could lose my daughter. I know that now, too. And I don’t want to.” It was . brought out that she had undergone a hysterectomy at age 21 and was therefore incapable of further child-bearing. She described Jennifer as a “very smart” child who rarely required correction and stated that she was amenable to liberal visitation of the child by her father.

II

At the conclusion of the testimony, the chancellor delivered an oral opinion from the bench. In reaching the conclusion that custody of the child should be changed, he stated at the outset of his opinion:

“The Court relies heavily on the report of Judith Finn and the Department of Social Services dated November 17, 1976. It reads from page ten thereof, the report being incorporated in toto in the Court's opinion, on page ten is stated ‘Our discussion with the parties, Jennifer, relatives and references suggests that Jennifer is physically healthy, alert and bright. Although she has not been left unsupervised, we question the quality of the supervision and the environment provided. The child is extremely outgoing and demanding of adult attention. We find her to be confused about her own family structure at home. She has been subjected to long periods of separation from her father and a series of men in her mother’s life. We have grave concern for Jennifer’s later ability to form deep personal relationships and family bonds.’ Now, this is what bothers the Court. The Court has to take into consideration as it is doing what is for the best interest of the child. Now, the Petition to Modify the Decree in this case was filed on May 14, 1976 and from that date forward it appears that the [mother], Marlene Boeiker adopts a lack of promiscuity. Before that date, however, there had been an in-bed, out-of-bed with several men and it does not redound to her credit to observe that this must have had an adverse effect on young Jennifer. It certainly did, as the Court read from the report, contribute to her confusion and the lack of ability to discern her position in the family group. Stability of the family group is of course essential in this day and age. All the more so because our population is expanding and there is less elbow room for all of us. It is important that stability be found in the family group to cut down the amount of conflict that ensues therefrom. Now, I’m not going to ask for an update of this report because I believe as Mr. Kerpelman stated, that the report served as a snapshot of what the situation was back there in November.” (Emphasis added.)

Thereafter, addressing himself to the legal effect of the wife’s immoral conduct, the chancellor stated:

“It is true that when the Court is convinced that the promiscuous relationship is terminated and that the parties are no longer undergoing a sexual relationship and that there is a repentence on the part of the parent, that the Court will keep the award of the child with the repentent parent, however, the Court is not convinced that that has occurred here. The attempt to put on a good case, as it were, by showing that she now exhibits excellent care for the child and that she is not running around with other men it seems to the Court results from the filing of the Petition to Modify the Decree and any request for a further update is going to do nothing more than to put the respondent or the non-petitioner, Mrs. Boetker on notice that she has to maintain her good conduct for a further period of time and to continue her lack of promiscuity. So it is on the basis of her past conduct which is not promising at all that the Court sadly it might say awards the child to the father. In doing so, the Court is aware that the father is not perfect and it is seldom that the Court finds perfect parents to whom to award the children. However, the father does not have the kind of past record that the mother has. He indicates a strong love for the child. It’s true that he violated a Court Order by grabbing the child in New York however____” (Emphasis added.)

We believe it quite clear from the quoted remarks of the chancellor that, contrary to the pronouncement of the Court of Appeals in Davis v. Davis, supra, the lower court applied a presumption of unfitness on the basis of the wife’s prior immoral conduct. In Davis, after a thorough review of Maryland cases concerning the effect of a parent’s adulterous conduct on the award of custody, Judge Digges stated for the court:

“We now explicitly hold what the Pontomo and Neuwiller cases implicitly recognized, i.e., that whereas the fact of adultery may be a relevant consideration in child custody awards, no presumption of unfitness on the part of the adulterous parent arises from it; rather it should be weighed, along with all other pertinent factors, only insofar as it affects the child’s welfare. We note that this view is in accord with the decisions of the majority of other courts around the country.” 280 Md. at 127. (Citations omitted; emphasis added.)

In the instant appeal, the chancellor excluded from consideration in the statement of his conclusions “other pertinent factors” — that the child was, by the testimony of all the witnesses, a happy, normal, and healthy little girl; that the environment and living conditions at the home of her grandparents where she resided with her natural mother were entirely proper and adequate; that the mother was, at that time, a full-time mother and that the maternal grandmother was available to care for her should the natural mother obtain employment. The focal point of the chancellor’s ruling was the prior sexual misconduct of the mother, and his finding that she had not changed, based upon the report of the investigator and the latter’s testimony that the mother was not “cured.” In the light of Davis, we find reversible error; and the proceedings on remand which we perceive to be required under that portion of the decision in Davis relating to “Standard of Appellate Review in Child Custody Cases,” 280 Md. at 122-126, should, we feel, be set specially for early consideration.

Ill

As previously indicated, it was also contended that the chancellor erred when he denied the wife’s counsel the right to cross-examine the social worker with respect to the findings in her report and her recommendation that custody be transferred to the husband.

We note that the report was prepared upon order of the court following a request by the appellee. When it was completed and filed, counsel for the parties were given the opportunity to read it in chambers, but did not receive copies. At tfie trial, the husband’s counsel introduced the report at the commencement of his case but did not call the social worker as a witness. During the wife’s case, her counsel requested permission to call the author of the report and to cross-examine her. The court ruled that the investigator, when called, would be the wife’s witness and could not be impeached.

The Maryland appellate courts have not previously ruled on the precise question of whether a court-appointed investigator who has prepared a report and recommendation in a child custody case should be subject to cross-examination during the trial of the action. Based upon our consideration of the question and a review of the authorities in other jurisdictions, it is our conclusion that cross-examination in this case should have been permitted. See Annot., 59 A.L.R.3d 1337 (1974) and cases cited therein.

In 2 Nelson on Divorce and Annulment % 15.48 (2d ed. rev. 1961), it is stated: “An investigator ... must be available for complete cross-examination on any matter which he or she reports at the instance of a judge.” See, e.g., Fewel v. Fewel, 144 P. 2d 592 (Cal. 1943); Yearsley v. Yearsley, 496 P. 2d 666 (Idaho 1972); In re Rosmis, 167 N.E.2d 826 (Ill. App. 1960); State ex rel. Fisher v. Devins, 200 N.W.2d 28 (Minn. 1972); Falkides v. Falkides, 339 N.Y.S.2d 235 (1972), aff’d, 356 N.Y.S.2d 231 (Sup. Ct. 1974). See also Mazur v. Lazarus, 196 A. 2d 477 (D.C. 1964).

In our judgment, a court-appointed investigator in a custody case occupies the position of an officer of the court, and, at the request of either party, may be called as the court’s witness, subject to cross-examination by both parties. See Patterson v. State, 22 Md. App. 13, 321 A. 2d 544 (1974), aff’d, 275 Md. 563, 342 A. 2d 660 (1975). The investigator may, of course, also be called by the court sua sponte.

Order of modification reversed; case remanded for further proceedings; appellee to pay the costs.

      . As stated infra, the report was received in evidence during the husband’s case. The wife’s counsel called Miss Finn but was not permitted to cross-examine her.

      . Mr. Boetker testified that he was still in love with his wife and was hopeful of a reconciliation.

      . We need not consider here the various situations where the court’s failure to permit cross-examination of an investigator might conceivably not be reversible error. See Annot., 59 A.L.R.3d 1337, supra, at 1340-41, where it is stated:
      “[U]nder certain facts, courts have held that the right to cross-examine an investigator had been waived by stipulation, failure to timely object to the denial of, or to timely exercise, the right, or the like, or that the denial of the right was harmless error under the circumstances.”


author: Thompson, J.,

text:
    ROGER FIELDS v. ALFRED S. MORGAN
    [No. 519,
    September Term, 1977.]

      Decided March 9, 1978.

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

      Stephen P. Johnson for appellant.

      Jonathan L. Spear, with whom were Joel M. Savits and Carr, Jordan, Coyne & Savits on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

New phrases in the law have caused more confusion than the phrase “res ipsa loquitur.” The truth of this statement is aptly demonstrated by the present case.

On June 28, 1974, the appellant, Roger Fields, sustained personal injuries when the car in which he was riding crashed into a tree. Fields instituted suit in the Circuit Court for Prince George’s County claiming the accident was attributable to the negligence of the driver, Alfred S. Morgan, the appellee. At the close of Fields’ case, Morgan moved for a directed verdict which was granted by the trial judge.

In assessing the propriety of the grant of a motion for a directed verdict the evidence, along with all fairly deducible inferences, must be considered in a light most favorable to the party against whom the motion was made. E.g., United Bank and Trust Co. v. Schaeffer, 280 Md. 10, 370 A. 2d 1138 (1977). When viewed in a light most favorable to Fields the evidence reveals the following. On the evening of June 28, 1974, Fields was drinking beer with some friends at the Lakeland Tavern in College Park, Maryland. As the tavern was about to close, Fields approached Morgan, with whom he had been previously acquainted, and asked for a ride to Laurel, Maryland. Morgan agreed and the two men proceeded in Morgan’s car in the direction of Route 1. As the car turned north onto Route 1, it encountered two pedestrians who were in the process of crossing the street. At the time the pedestrians were some distance away. As Morgan approached the spot where the pedestrians were crossing, they had already crossed the northbound lane of Route 1. Morgan, however, strayed into the southbound lane where he struck and fatally injured one of the pedestrians. The Morgan vehicle traveled in the southbound lane for approximately 25 to 30 yards prior to the accident.

Morgan did not stop after the accident but continued north on Route 1 until he reached Powder Mill Road. After the car had turned east on Powder Mill Road, Walter Tryon, an eyewitness to the pedestrian accident who had been pursuing Morgan, attempted to force Morgan to stop and return to the scene of the accident. Morgan struck the rear of the Tryon vehicle and continued on Powder Mill Road. He then turned onto Edmondson Road, and shortly thereafter the car left the road and struck a tree. The final resting place of the vehicle was approximately lVz to 2 miles from the Tryon collision. There were ho tire tracks or skid marks on the roadway at the location of the final accident and the road surface was dry. According to a blood test administered at Prince George’s County Hospital, Morgan’s blood contained an alcohol level of 0.16%

During the trial Fields, through the testimony of a police officer, introduced a statement made by Morgan to the effect that after striking the pedestrian he wanted to stop but Fields insisted he continue. According to the statement the two men “drove off Powder Mill Road until they got to a government road and started fighting over the steering wheel; went into a spin and they struck a tree.” The statement was contradicted by Fields who testified that when Morgan swerved and hit the pedestrian, he struck his head on the steering wheel and did not remember another thing until he woke up in the hospital some time later.

In granting the motion for a directed verdict the trial judge ruled that Fields had paradoxically proved too much to rely on res ipsa loquitur and too little to establish a prima facie case of negligence. We think the trial judge erred in ruling that res ipsa loquitur was inapplicable.

The conditions necessary for the application of res ipsa loquitur have been firmly established. In order to invoke the doctrine three elements must exist:

“1. A casualty of a sort which usually does not occur in the absence of negligence.

“2. Caused by an instrumentality within the defendant’s exclusive control.

“3. Under circumstances indicating that the casualty did not result from the act or omission of the plaintiff.”

Leikach v. Royal Crown, 261 Md. 541, 547-548, 276 A. 2d 81, 84 (1971).

Accord, Giant Food, Inc. v. Washington Coca-Cola Bottling Co., 273 Md. 592, 597, 332 A. 2d 1, 4 (1975); Chesapeake and Potomac Telephone Co. v. Hicks, 25 Md. App. 503, 516, 337 A. 2d 744, 752 (1975), cert. denied, 275 Md. 750. Morgan concedes that these criteria are ordinarily satisfied where an automobile runs off the highway for no apparent reason. See Hanes v. State, Use of Lamm, 236 Md. 28, 33, 202 A. 2d 364, 365-366 (1964); Shirks Motor Express v. Oxenham, 204 Md. 626, 631-632, 106 A. 2d 46, 48 (1954); Hickory Transfer Co. v. Nezbed, 202 Md. 253, 262, 96 A. 2d 241, 245 (1953); Unsatisfied Claim and Judgment Fund Board v. Bowles, 25 Md. App. 558, 563-564, 334 A. 2d 532, 536 (1975). He argues, however, that Fields, by introducing the statement he gave to the police, was precluded from relying on res ipsa loquitur under Strasburger v. Vogel, 103 Md. 85, 63 A. 202 (1906) and Hickory Transfer Co. v. Nezbed, supra.

In Hickory, the plaintiff attempted to establish a cause of action based on negligence by invoking the doctrine of res ipsa loquitur. The plaintiff, apparently not satisfied with merely relying on the inference of negligence that could be drawn from the happening of the event, offered proof which tended to show the accident was not due to the negligence of the defendant. In discussing the predicament in which the plaintiff had placed himself, the Court stated:

“When the plaintiff invokes this procedure, thus putting his reliance upon the inference of negligence springing from the event, it has been authoritatively held that it must not appear by his own evidence, or the evidence adduced in his behalf, that causes for which the defendant was in no way responsible produced the injuries for which damages are sought.” 202 Md. at 263.

The principle set forth in Hickory Transfer was derived from the opinion of Judge McSherry in Strasburger v. Vogel, supra. Chief Judge McSherry expressed the rule in the following manner:

“[WJhen the plaintiff himself shows that the injury complained of must have resulted either from the negligence of the defendant or from an independent cause for the existence of which the defendant is in no way responsible, he cannot be permitted to recover until he excludes the independent cause as the efficient and proximate cause of the injury....” 103 Md. at 91-92.

Accord, Short v. Wells, 249 Md. 491, 496, 240 A. 2d 224, 227 (1968).

In the instant case Fields recognizes that the statement he introduced tended to exculpate Morgan and negate the inference of negligence upon which his case rested. He maintains, however, that this was not fatal because he introduced evidence which indicated the accident could not have been the result of a fight. We agree.

Contrary to Morgan’s contention, Hickory Transfer Co. and its progeny do not hold that once a plaintiff introduces any evidence exculpatory to the defendant, he can never be permitted to recover. It merely states that before any recovery can be allowed the plaintiff must exclude the exculpatory cause as the proximate cause of the accident. See Strasburger v. Vogel, supra, 103 Md. at 91-92. This point was demonstrated in Bavis v. Fonte, 241 Md. 123, 215 A. 2d 739 (1966).

In Bavis the plaintiff was injured when the car in which he was riding failed to negotiate a slight curve and crashed into an electric light pole. After producing evidence indicating that the driver was proceeding at a reasonable speed and the road, although slightly wet, was well lighted, the plaintiff introduced a statement made by the defendant to the effect that another car had forced him off the road. The plaintiff testified that there was no other car. The Court noted the existence of the problem concerning a conflict in the plaintiff’s own evidence but resolved the issue by stating:

“[T]he plaintiff offered testimony, which, if believed by the jury, would have ‘excluded’ the other negligent act that possibly or probably caused his injuries ... In this situation, the question as to whether the other negligent act had been ‘removed’ was one for the jury under proper instructions from the court.” 241 Md. at 126.

Bavis is virtually indistinguishable from the instant case. There was direct evidence that Fields and Morgan were fighting over the steering wheel at the time of the accident but there was also direct evidence that Fields was unconscious and could not have engaged in a fight. Under these circumstances, the trial judge should not have granted the motion for a directed verdict as the resolution of the conflicting testimony was for the jury.

Judgment reversed.

Case remanded for a new trial.

Costs to abide the final result.

      . See Chesapeake and Potomac Telephone Co. v. Hicks, 25 Md. App. 503, 509-510, 337 A. 2d 744, 748 (1975), cert. denied, 275 Md. 750.

      . Blood alcohol levels of more than 0.15% are prima facie evidence of intoxication under Md. Code, Courts and Judicial Proceedings Article § 10-307 (e) (Supp. 1977).

      . Another troublesome aspect of res ipsa that was discussed in Hickory Transfer involves those situations where the plaintiffs evidence includes specific evidence of the defendant’s negligence or some explanation of how the accident occurred. Prosser notes the problem as follows:
      “Where the plaintiff introduces specific evidence of the defendant’s negligence, the question arises whether he may still rely upon the inference provided by a res ipsa loquitur case. It is sometimes said that where the facts are disclosed by evidence there is no room for inference, or that by attempting specific proof the plaintiff has ‘waived’ the benefit of the doctrine.” Prosser, Law of Torts § 40, p. 231 (4th ed. 1971).

        See also 2 Harper and James, Law of Torts § 19.10 (1956).
      Maryland explicitly rejected the waiver rule in Blankenship v. Wagner, 261 Md. 37, 46, 273 A. 2d 412, 417 (1971) stating:
      “If the plaintiff has circumstantial evidence which tends to show the defendant’s negligence (and which is therefore consistent with the inference relied upon in res ipsa loquitur) he should not as a matter of policy be discouraged from coming forth with it. If, however, the evidence introduced by the plaintiff or the defendant shows that everything relative to the case is known, and that the injury might have been caused by something other than defendant’s negligence (thereby negating the inference normally relied upon in res ipsa loquitur), then the plaintiff will not be allowed to avail himself of the doctrine.”

      . The principle enunciated is not confined to situations involving res ipsa loquitur but applies any time the plaintiff’s case rests on an inference of negligence. See Langville v. Glen Burnie Coach Lines, 233 Md. 181, 184-185, 195 A. 2d 717, 719 (1963).

      . Although the plaintiff disavowed any reliance on res ipsa loquitur in Bavis the case is still controlling. The plaintiff’s case was based on circumstantial evidence and res ipsa loquitur is nothing more than a label that is attached to certain situations where the mere occurrence of an accident furnishes enough circumstantial evidence to allow a jury to draw an inference of negligence. See Short v. Wells, supra; Chesapeake and Potomac Telephone Co. v. Hicks, supra.

      . Morgan also argues the statement showed that Fields was guilty of contributory negligence as a matter of law, but, as we have indicated, it was for the jury to decide whether this statement was credible.


text:
    GREAT COASTAL EXPRESS, INCORPORATED et al. v. DARLIN SUE SCHRUEFER et al.
    [No. 634,
    September Term, 1977.]

      Decided March 9, 1978.

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

      Alan L. Winik, with whom were Samuel S. Smalkin and William H. Clark on the brief, for appellants.

      Lawrence E. Engel, with whom was John F. Wiley on the brief, for appellee Travelers Insurance Company. Submitted on brief by M. Michael Cramer and Levitan, Ezrin, Cramer, West & Weinstein, Chartered for appellee Darlin Sue Schruefer.
   Moore, J.,

delivered the opinion of the Court.

This is an appeal from an Order of the Circuit Court for Montgomery County entering judgments in favor of the appellees in proceedings on remand after the filing of the mandate of this Court in Great Coastal Express, Inc. v. Schruefer, 34 Md. App. 706, 369 A. 2d 118 (1977). In the first appeal, this Court, in an opinion by Judge Lowe, rejected all claims of error at a bench trial of a wrongful death action in the Circuit Court for Montgomery County (Mitchell, J.), wherein the following plaintiffs received judgments against the defendant, Great Coastal:

1) Darlin Sue Schruefer

(surviving spouse and mother and next

friend of two infant children) _ $350,000;

2) Richard Lynn Schruefer

(child of the decedent) _ $100,000;

3) Barbara Ann Schruefer

(child of the decedent) _ $100,000;

4) Shasta Beverages, Inc.

(employer and owner of truck operated by decedent) _ $ 18,100.02;

5) Travelers Insurance Company

(workmen’s compensation carrier, intervenor) _ $ 54,500.

We found, however, that the workmen’s compensation insurer’s right to reimbursement under Md. Code, art. 101 § 58 was one of subrogation and, accordingly, that the trial judge erred in entering a separate judgment for Travelers. Great Coastal Express, Inc. v. Schruefer, supra, 34 Md. App. at 731. We also found that although we were empowered under Maryland Rules 1070 and 1075 to alter or modify the judgment as to Travelers, we were unable to exercise this power for the reason that:

“We [could not] tell if the trial court reduced the amount it would have awarded the widow and children by the amount it awarded Travelers, or if the award of the latter amount was in addition to what the widow and children would have received had the insurer not intervened. Inasmuch as this case was tried to the judge and not a jury, modification of the award on remand should pose no particular difficulty.” Id.

But this was not the only reason. As Judge Lowe went on to say:

“A further reason why we are unable to modify the judgment is our confusion from the record over the proper amount due Travelers. It was awarded $54,500.00, the amount given in an interrogatory by the decedent’s employer as the total amount expended on workmen’s compensation. But the record also contains a letter from Travelers to the effect that it paid Darlin Sue Schruefer a total of $8,831.70 for funeral expenses and compensation. Whether the difference between the two sums reflects amounts paid to the deceased’s children, amounts paid for purposes specified in § 36 of Art. 101, or amounts paid for other purposes, we are unable to say. On remand the trial court should articulate the basis of the award in favor of Travelers. If necessary for clarification, the court may hear from counsel or witnesses on that limited issue. See Md. Rule 1071.” Id. at 731-32. (Emphasis added.)

The mandate appended to the opinion and filed in the Circuit Court for Montgomery County on March 11, 1977 was as follows:

“Judgment in favor of Shasta Beverages affirmed; judgments in favor of Darlin Sue Schruefer, Richard Lynn Schruefer, Barbara Ann Schruefer and Travelers Indemnity Company vacated and remanded for modification and entry of proper judgments in accordance with this opinion----” (Emphasis added.)

Proceedings on remand were conducted before Judge Mitchell on May 11, 1977, when counsel for the plaintiffs presented, over objection, an affidavit from Travelers Insurance Company disclosing that the insurer had paid, up to the time of the remand proceedings, total compensation in the amount of $16,623.27. Thereafter, on May 31, 1977, Judge Mitchell entered an Order awarding the same judgments to Shasta Beverages, Inc. and the surviving children of the decedent, with interest from March 26, 1976 (the date of the original judgments) but providing as follows with respect to the recovery of Darlin Sue Schruefer:

“Judgment in favor of Plaintiff, Darlin Sue Schruefer, against the Defendant, Great Coastal Express, Inc., in the sum of $366,623.27, plus costs and interest from March 26,1976, on the $350,000.00 portion of said award that has been made to Darlin Sue Schruefer. The remaining $16, 623.27portion of said Judgment to be paid to the Travelers Insurance Co. without interest.” (Emphasis added.)

On this appeal, Great Coastal Express raises two issues. It is contended (1) that the trial court erred in awarding interest on the judgments from March 26, 1976, instead of May 31, 1977, the date of the judgment from which this further appeal has been taken; and (2) that the addition of $16,623.27 to the judgment in favor of the surviving spouse is void “because outside the scope of this court’s mandate.” We find these contentions devoid of merit and we affirm.

I

(Effective Date of Interest)

Under Maryland Rule 642, “Interest on Judgment,” the time as of which interest shall run is as follows:

1) Judgment by confession or default — from time judgment was rendered;

2) Judgment on verdict — from date on which verdict was rendered;

3) Judgment nisi following special verdict (Rule 560) or trial by the court (Rule 564) — from the date of the entry of judgment nisi.

Where, as here, the facts of a case are tried by a court, sitting without a jury, the court is required by Rule 564 b to “direct judgment nisi to be entered upon the law and the evidence.” This act is analogous to entry of a verdict when the facts of the case are tried by a jury. Merlands Club, Inc. v. Messall, 238 Md. 359, 208 A. 2d 687 (1965). As Judge Barnes stated in Merlands, the order nisi “is in effect the court’s verdict, sitting without a jury, at the conclusion of the action at law on its merits.” 238 Md. at 364.

In the instant appeal, the verdicts in favor of the plaintiffs below remained wholly undisturbed and unaffected by the technical requirement of our mandate that the judgments be “vacated and [case] remanded for modification and entry of proper judgments in accordance with this opinion.” No new trial was granted as in Cook v. Toney, 245 Md. 42, 224 A. 2d 857 (1966), upon which appellant vainly relies. There, the Court stated:

“... [T'jhe motion for a new trial was granted and the original verdict and judgment nisi against Toney were eliminated from the case as if they had never been entered.” 245 Md. at 50.

In this case, the original verdicts were untouched by our action and the plaintiffs (appellees) were the successful suitors as of the date of rendition in March 1976, and, as such, appellees were entitled to interest as of that time. As the late Judge O’Donnell stated for the Court of Appeals in I. W. Berman Properties v. Porter Brothers, Inc., 276 Md. 1, 24, 344 A. 2d 65 (1975):

“The purpose of post-judgment interest is obviously to compensate the successful suitor for the same loss of the use of the monies represented by the judgment in its favor, and the loss of income thereon, between the time of entry of the judgment nisi — when there is a judicial determination of the monies owed it — and the satisfaction of the judgment by payment.”

For these reasons, we find appellant’s first assignment of error without support.

II

(Payment to Subrogation Carrier)

We also find unsupportable the contention of Great Coastal that the addition of $16,623.27 by the .trial judge on remand was outside the scope of our mandate. Indeed, it is abundantly clear that Judge Mitchell acted precisely within the letter and spirit of our opinion and mandate. As previously indicated, Judge Lowe stated in the opinion: “On remand the trial court should articulate the basis of the award in favor of Travelers. If necessary for clarification, the court may hear from counsel or witnesses on that limited issue. See Md. Rule 1071.” Great Coastal Express, Inc. v. Schruefer, supra, 34 Md. App. at 731-32. The mandate then remanded the case “for modification and entry of proper judgments in accordance with this opinion.” Id. at 732. (Emphasis added.)

In the Order of Judge Mitchell after remand, our mandate was clearly and correctly interpreted when the court stated in a paragraph prefatory to the entry of the modified judgments that this Court’s previous decision “mandates that the award to Travelers Insurance Company not be separate from that awarded to the other plaintiffs and ... further mandates that this Court articulate that portion of the award that is to be made to the Travelers Insurance Company----” There followed a recital that the Order was being entered “in further consideration of the representations of the Travelers Insurance Company that as of the date of the hearing on remand, May 12,1977, they have paid to or on behalf of Darlin Sue Schruefer, the sum of $16,623.27 as workmen’s compensation benefits____”

The subrogated carrier was clearly obliged to continue the payment of compensation benefits during the pendency of this further appeal. Md. Code, art. 101 § 58; Brocker Manufacturing and Supply Co. v. Mashburn, 17 Md. App. 327, 339, 301 A. 2d 501 (1973). The allowance of the full benefits paid up to the date of the remand proceedings offends no rule of law or procedure but is entirely in conformity with our own specific direction to the lower court.

We deem it not inappropriate, finally, to point out that Great Coastal has, at all events, been the beneficiary of our previous finding that a discrepancy existed between the amount of the judgment erroneously awarded to Travelers ($54,500) and the workmen’s compensation payments actually made. This is a significant benefit to Great Coastal, and we reject out of hand its claim on this appeal that no amount of compensation benefits paid should be added to the revised judgment awarded to Mrs. Schruefer.

Judgments affirmed; appellants to pay the costs.

      . The affidavit was not challenged with respect to its accuracy or genuineness.