author: Moore, J.,

text:
    KEVIN DAVIS et al. v. WILBERT MUSE
    [No. 511,
    September Term, 1981.]

      Decided March 3, 1982.

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

      Robert C. Verderaime, with whom were Verderaime & DuBois, P.A. on the brief, for appellants.

      Charles F. Morgan, with whom was Maurice Braverman on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

Two Baltimore City police officers challenge on this appeal a jury award of $10,000 damages against them in an action for assault and battery and malicious prosecution arising out of their arrest of appellee early on a summer morning in 1976, after a birthday party.* We find reversible error in the trial court’s refusal to include malice in its instructions on assault and battery.

I

Appellants, William Countess and Kevin Davis, defendants below, responded to a call to investigate an altercation at a private home in the City of Baltimore on August 10, 1976, between 4:00 and 5:00 a.m. They arrived almost simultaneously but in separate police vehicles and they were in uniform. The call for the police had been initiated by the daughter of Mrs. Nouvella Sellers at whose home there had been a birthday party which had commenced at about 5:00 o’clock the night before. At the time of the call the party had thinned out and there remained only Mrs. Sellers, an individual named Edith Mackall and the plaintiff-appellee, Wilbert Muse. During the period from the onset of the party until the early morning hours of the next day, appellee said he had consumed a pint of whisky and three beers. An altercation which occurred between appellee and the two older women had terminated by the time the police arrived, but the daughter of Mrs. Sellers requested the officers to order Mackall and Muse away from the premises.

The testimony with respect to what then transpired is conflicting. According to the appellee, there had been a "tussle” at the Sellers home but he had left the house and was crossing the street when he was addressed by Officer Countess as a "son of a bitch.” He also testified that he was struck on the side of the head and was sprayed with mace. It is uncontradicted that he was hospitalized for eight days, and received treatment principally for mace burns.

The officers’ version of the incident was that Muse, after leaving the immediate vicinity of the Sellers home, began to retrace his steps and was warned not to do so. He began using obscenities and, with his hand in his coat pocket, threatened Officer Countess’ life. The latter then arrested him and attempted to place handcuffs on him. Mr. Muse resisted by pushing the officer and they both fell to the ground. Officer Countess used his mace in an attempt to control the appellee and then made use of his night stick on appellee’s wrist, shoulder and arm. With the aid of a third police officer who had been called as a "back-up,” appellee was subdued and taken from the scene to a police station in a patrol wagon.

The declaration filed on behalf of appellee alleged in count one that the conduct of the police officers constituted an assault and battery and that it was "wilful, malicious, vicious and violent.” In a second count it was alleged that they "falsely, maliciously and without probable cause” swore and signed a statement of charges against him, and that after a trial he was acquitted and discharged.

The officers interposed three special pleas and a general issue plea. The special pleas were that the officers "were qualifiedly privileged in that they were performing their duty as police officers of Baltimore City,” that they acted with legal justification, without malice and with probable cause, and also that they acted in self-defense.

At the trial below, the case was not submitted on issues and the jury returned a verdict of $10,000 against the two appellants. No punitive damages were awarded, although prayed. The police officers have mounted a seven-pronged assault on the proceedings in the lower court, including a contention that there is no cause of action in Maryland against a police officer for malicious prosecution. While we address that issue briefly, and reject it, we find dispositive appellants’ contention that the trial court committed reversible error in refusing to instruct that malice must be shown before a police officer may be held liable for assault and battery.

II

The court instructed the jury twice on the subject of assault and battery. In its original instructions, the judge stated in part that a police officer is liable "if he inflicts physical injury by using more force than necessary to make the arrest.” When counsel approached the bench at the conclusion of the instructions, it became manifest that the court had deliberately excluded malice as a necessary element in assault and battery:

(The Court): "He wanted to know if I said that malice was a necessary element in the assault and battery that [sic] I said exactly the opposite.
"I did not include malice in the assault and battery. Do you have any other exceptions?” (Emphasis added.)
(Mr. Braverman (plaintiffs counsel)): "No.”

Counsel for the police officers then excepted to the charge for the reason, inter alia, that a police officer "is not responsible for his negligence or carelessness unless he acted with malice and that malice would apply to any act of a police officer in the performance of his duties which are defined as discretionary acts.”

Later on, in response to a written request from the jury for a "definition of the formal charges [sic] against the defendants,” the court defined and illustrated assault and battery and continued, in part:

"Now, — but in connection therewith I will have to give you the other instruction concerning this particular act as it applies to these defendants. Police Officers have the legal authority to use whatever force is necessary and reasonable under the circumstances to make a lawful arrest. The mere fact that there was an altercation between the plaintiff and the police officers or even that the plaintiff suffered injury as a result of the altercation is not proof that the officers acted beyond their authority for the police had a legal duty to use such force as was reasonably necessary to effect a lawful arrest and to protect the officer from harm at the hands of the plaintiff.
"A police officer has the duty to use such force as may reasonably be necessary in the enforcement of law. The police officer is liable if he inflicts physical injury by using more force than necessary to make the arrest. In order to effect an arrest a police officer must acquire and exercise control of the person they are arresting. The usual manner of doing this is by a manual touching or seizure of his body without undue force. Manual touching or seizure without undue force would not constitute an assault and battery. That is if it was done to effect 'an arrest’ then it would not constitute an assault and battery, if it is done without any undue force or unnecessary.”

The court below seems not to have taken into account that in Maryland governmental immunity is extended to acts of public officials when performed in a discretionary capacity, and without malice, and that policemen are "public officials.” Bradshaw v. Prince George’s County, 284 Md. 294, 396 A.2d 255 (1979); Robinson v. Board of County Commissioners, 262 Md. 342, 278 A.2d 71 (1971); Duncan v. Koustenis, 260 Md. 98, 271 A.2d 547 (1970). As Judge McWilliams stated for the Court of Appeals in Robinson, when policemen "are within the scope of their law enforcement function they are clearly acting in a discretionary capacity. (Citation omitted.) But, as Judge Barnes suggested, we have the added qualification that when acting in a discretionary capacity public officials, to enjoy immunity, must act without malice. Duncan, supra, 260 Md. at 104” (other citations omitted).

To the same effect, see Macy v. Heverin, 44 Md. App. 358, 408 A.2d 1067 (1979); Karangelen v. Snyder, 40 Md. App. 393, 391 A.2d 474 (1978); and Arrington v. Moore, 31 Md. App. 448, 358 A.2d 909 (1976).

In a very recent decision of the Court of Appeals, James v. Prince George’s County, 288 Md. 315, 322, 418 A.2d 1173, 1177 (1980), Judge Digges, speaking for the Court, explained that the grant of immunity to a governmental representative is dependent upon the simultaneous existence of two factors: 1) that the individual be a "public official” and not merely an employee or agent of the government; and 2) the tortious conduct must have occurred while he was performing discretionary, as opposed to ministerial, acts in furtherance of his official duties. Id. at 323. Once these elements have been established, a qualified immunity attaches, namely, "in the absence of malice, the individual involved is free from liability.” Id. at 323-324. (Emphasis added.)

These well-established principles of Maryland law were not imparted to the jury in the lower court’s instructions.

Although appellee recognizes the viability of Maryland doctrine with respect to governmental immunity, he contends that the charge to the jury, considered as a whole,, "encompassed the proper meaning of 'malice’ in the context of this case, without actually using the word 'malice.’ ” We must reject this contention. Concededly, a trial court’s instructions must be considered as a whole in deciding on appeal whether the jury was properly and adequately charged. Schwier v. Gray, 277 Md. 631, 357 A.2d 100 (1976). However, appellee’s reliance upon the decision of this Court in Prince George’s County v. Blumberg, 44 Md. App. 79, 105-6, 407 A.2d 1151 (1979), rev’d and aff'd in part, 288 Md. 275, 418 A.2d 1155 (1980), is misplaced. Writing for this Court in Blumberg, Judge Wilner concluded that the lower court, sitting without a jury, had clearly found malice on the part of a public official even though that word was not employed by the trial judge in his oral opinion.

We fail to see how this Court’s conclusion in Blumberg affords any sustenance to appellee in this case. We are here concerned not with a substantive finding of the trier of fact but with the content of instructions to the triers of fact. The absence of the word "malice” in this case, and an appropriate explication of the term in the context of this case, was fatal.

As we have previously indicated, the case was not submitted to the jury on issues and, indeed, the jury was instructed without objection that the cause of action was based upon one continuous occurrence out of which the claims of assault and battery and malicious prosecution arose. In the face of the jury’s genéral verdict — and only a general verdict was possible under the circumstances — we reverse and remand for a new trial.

Ill

With respect to the malicious prosecution count, the lower court properly rejected appellants’ contention that there can be no cause of action against a police officer for malicious prosecution. Here, appellants seek support for their position in the social policy enunciated in White v. Towers, 37 Cal.2d 727, 235 P.2d 209 (1951), which held that the public welfare requires that the choice of a law enforcement officer to institute proceedings must be free of all fear of personal liability. That policy was noted by the Court of Appeals of Maryland in Brewer v. Mele, 267 Md. 437, 298 A.2d 156 (1972), and the Court, speaking through Moylan, J., specially assigned, quoted extensively from the opinion. Id. at 446, n.9. The Court of Appeals did not, however, embrace that social policy but suggested, without deciding, that the inference of malice which may permissibly be drawn from the absence of probable cause to initiate criminal proceedings should be inapplicable to a law enforcement officer, "whose occupational routine is that of bringing offenders to justice.”

In our view, the social policy of Maryland is reflected in the continuing refusal of the Court of Appeals "to enlist in the crusade against sovereign immunity and to join the ranks of those courts already marching under the pennons of the law professors,” Robinson v. Board of County Commissioners, 262 Md. 342, 278 A.2d 71 (1971); and while the Court of Appeals has not been called upon to decide "that quality of malice or the means of its proof necessary to forestall governmental immunity,” Brewer v. Mele at 445, we deem it entirely predictable that the Court would not permit the mere inference of malice to be applied to a police officer on the basis of absence of probable cause. Id. at 446. In this respect, we note that the lower court in this case included the following in its instruction on malicious prosecution:

"The word 'maliciously’ as used in these instructions means the intentional doing of a wrongful act to the injury of the plaintiff, the act having been done with an evil or unlawful motive or purpose.
"To prove malice there must be an affirmative showing of ill will, improper motivation or evil purpose.”

We consider that instruction entirely appropriate. Indeed, as previously stated, the same instruction should have been given with respect to assault and battery.

Judgment reversed; case remanded for a new trial; appellee to pay the costs.

      . The jury found in favor of a third police officer involved in the arrest but the appellee has taken no cross-appeal from that judgment.

      . It appears from this exchange that counsel for the plaintiff-appellee would have excepted to an instruction on malice. As noted, infra, appellee concedes on appeal that malice is an essential element but argues that the instructions, considered as a whole, satisfied this requirement.

      . As Judge Wilner pointed out in Blumberg, 44 Md. App. at 106-7, malice can be defined in many ways, and there are 77 pages in Words and Phrases on the subject. With respect to public officials, however, he stated:

        "Mere errors of judgment, whether occasioned by negligence or otherwise, are not actionable. But when that act, ordinarily discretionary and therefore protected, is done knowingly and deliberately, for an improper motive, and without legal justification, it becomes more than an error in judgment. It becomes malicious.”
      We observe that, in its instruction on malicious prosecution in the instant appeal, the court stated that: "To prove malice, there must be an appropriate showing of ill will, improper motivation or evil purpose.” See also, Arrington v. Moore, 31 Md. App. 448, 462-4, 358 A.2d 909 (1976).


source: Caselaw Access Project

author: Couch, J.,

license: Public Domain

text:
    RODNEY BONDS v. STATE OF MARYLAND
    [No. 686,
    September Term, 1981.]

      Decided March 3, 1982.

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

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

      Stephen Rosenbaum, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Edwin O. Wenck, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Couch, J.,

delivered the opinion of the Court.

Rodney Bonds, the appellant, was convicted, in a bench trial in the Criminal Court of Baltimore City, of second and third degree sexual offenses and unnatural and perverted practices against an 11 year old female victim. On appeal he presents the following questions:

1. Was appellant denied a fair opportunity to defend against the charges?
2. Was the evidence sufficient to support the conviction?
3. Did the trial court err in admitting into evidence four issues of Penthouse magazine?
4. Did the trial court err in ruling that [the victim] was competent to testify?

The acts upon which the indictment was based were alleged to have occurred continually during the period July 1, 1979 through March 10, 1980 at Bonds’ home during weekday evenings and weekends. Thereafter, Bonds moved the court to order the State to furnish him with a bill of particulars, pursuant to Md. Rule 730, specifying the dates and times of the alleged acts. The court did so. However, the State’s bill of particulars merely named three dates that "[stood] out in the complainant’s memory as dates she visited the Defendant.” The State’s position was that it was unable to specify other dates because it did not have such information.

At trial the prosecutrix testified that the acts occurred continually from July, 1979 to March, 1980. However, the State produced no evidence that the acts occurred on any particular day except for the testimony of the prosecutrix that the last act occurred on Saturday, March 1, 1980. Her testimony was that she had been dropping hints to her mother about Bonds’ alleged activities, "but she never really picked them up.” On Sunday, March 2, 1980, she asked her mother "how you have babies and stuff’ and her mother testified that she "told her about the sperm and the egg, and whatever.” Then on Monday, March 3, she asked her mother, "Do I have to tell you everything that ever happens ....?” As a result of this conversation, the prosecutrix first made the allegations that Bonds engaged in the acts for which he was charged. The prosecutrix’s mother then asked when was the last time such an act occurred. The prosecutrix answered that such occurred the preceding Saturday.

In defending against these charges, Bonds denied that such acts ever took place and attempted to prove his whereabouts on the three days the State specified in its answer to his bill of particulars. On the specific date that the prosecutrix testified that such acts took place, around dinnertime on March 1,1980, Bonds testified that he was in Hagerstown for most of the day, then returned home around 4 p.m. Both he and his wife testified that they were at home alone after that time. Bonds attempted to prove his whereabouts for the other two days specified by the State but could not be so specific as he was about the March 1 date.

I

Was the appellant denied a fair opportunity to defend?

The appellant argues that he was denied a fair opportunity to defend the charges against him. He bases this contention on the principle that an accused has the constitutional right to be informed of the accusation against him to prepare his defense. The law in this area is clear. Article 21 of the Declaration of Rights states, "That in all criminal prosecutions, every man hath a right to be informed of the accusation against him; to have a copy of the Indictment, or charge, in due time (if required) to prepare for his defence . . . .” In State v. Canova, 278 Md. 483, 498-99, 365 A.2d 988, 997-98 (1976), the Court of Appeals stated:

"It was early noted by this Court that' [c]ertainty to a reasonable extent, is an essential attribute of all pleadings, both civil and criminal, but is more especially necessary in the latter, where conviction is followed by penal consequences.’ ... In State v. Lassotovitch, 162 Md. 147, 156, 159 A. 362, 366 (1932), we explained:
'Every charge or accusation, whether at common law or under statute, must include at least two elements: First, the characterization of the crime; and second, such description of the particular act alleged to have been committed by the accused as will enable him to properly defend against the accusation. In statutory crimes, where the statute includes the elements necessary to constitute a crime, the first of these requirements is gratified by characterizing the offense in the words of the statute; the second requires such definite and specific allegations as reasonably to put the accused on notice of the particular act charged, to enable him to prepare a defense and plead the judgment in any subsequent attempted prosecution.’
Even if the charging document employs the statutory words, this does not mean that 'it is unnecessary to allege such facts in connection with the commission of the offense as will certainly put the accused on full notice of what he is called upon to defend, and establish such a record as will effectually bar a subsequent prosecution for that identical offense.. . However, it is clear that an indictment which charges the accused with the act prohibited by the statutory language, and nothing more, would be fatally defective in failing to allege such other facts as would enable the accused to prepare his defense.’ Id. at 150,159 A. at 363. The rule regarding the description of the statutory offense in the language of the statute 'has reference simply to the definition and characterization in legal terms of the criminal offense to be alleged in the indictment. It does not affect the requirement that the indictment should sufficiently identify the specific charge intended to be preferred.’ Id. at 154, 159 A.2d at 365.” (Footnote omitted.)

Although a description of the acts for which the appellant was charged does not appear in the indictment, he was made aware of them prior to trial and no objection on this basis was made below, nor does he raise it here. Therefore, this issue is not before us. Md. Rule 1085.

The question before us is simply whether the appellant was sufficiently apprised of the charge against him so that he had a fair chance to defend himself. Neither the indictment nor the bill of particulars limited the accusation to any particular date. There is no Maryland case law which requires, and the applicable statute, Md. Ann. Code art. 27, § 461, et seq., does not require, that in such a case as this the State must plead and prove that the offense occurred on a specific date at a specific time. We refuse to impose any such requirement.

The only authority appellant cites in support of the proposition that the State must plead and prove the exact time of the alleged sexual offense is People v. McCullough, 38 Cal. App.2d 387, 101 P.2d 531 (1940). In that case, the appellate court ordered a new trial because it found that there were uncertainties or inconsistencies in the victim’s testimony and it was undisputed that the victim was told what to say by her mother. Id. at 389, 101 P.2d at 533. The court also stated that, "Such exactness might not be necessary if the story told by the prosecutrix found corroboration in other facts or circumstances, but such is not the case here.” Id. In the case at bar, the victim’s testimony was neither inconsistent nor was it alleged that she was told what to say by her mother. Her testimony that she had been in the appellant’s home alone with him was corroborated by his own testimony. In any event, even assuming, arguendo, that McCullough held what the appellant argues it held, but see People v. Stangler, 18 Cal.2d 688, 692, 117 P.2d 321, 323 (1941); People v. Ridout, 154 Cal.App.2d 669, 674, 316 P.2d 396, 400 (1957); People v. Shultz, 49 Cal.App.2d 38, 43, 120 P.2d 893, 895 (1942), we do not find it persuasive and our research has not found any other courts that have been persuaded by it either.

We recognize there are many times when it is impossible for the State to determine the exact date and time that any crime was committed. Therefore, sometimes specificity as to the exact time and date of the crime alleged is impossible to establish. To establish a rule that would allow a criminal defendant to demand such specificity by raising an alibi defense would thwart justice and, in our view, is not required by either the Maryland or United States Constitutions. See U.S. Const., amend. V and XIV.

Maryland Rule 711a provides, in part, "A charging document shall contain a concise and definite statement of the essential facts of the offense with which the defendant is charged, and as particularly as possible, the time and place the offenses occurred.” (Emphasis added.) Thus, the State is required to be as precise "as possible;” if it is impossible to be precise as to the exact date and time, it is not therefore foreclosed from prosecution. To give any other meaning to Rule 711a would render the words "as possible” nugatory. A well-known canon of statutory construction dictates that a statute should be construed so as to not make any of its words meaningless. Baltimore Building and Construction Trades Council, AFL-CIO v. Barnes, 290 Md. 9,15, 427 A.2d 979, 982 (1981).

The defendant who is charged with committing a crime, although the State cannot specify its exact date, is still protected by the requirement that the trier of fact must find him guilty beyond a reasonable doubt. We think that in many cases the trier of fact’s determination of whether the defendant is guilty beyond a reasonable doubt will be affected by the witness’s inability to specify the exact day and time of the alleged crime and the subsequent inability of the defendant to establish an alibi defense over so long a period of time. However, the inability of the State to be so specific should not be an absolute bar to prosecution. Sufficient protections exist such that this lack of specificity does not violate an accused’s constitutional right to be apprised of the charges against him.

The crux of this case was who did the trier of fact believe? In many prosecutions the outcome depends on this determination. Here, the court obviously believed the testimony of the prosecutrix and disbelieved that of the appellant. "Questions of weight and credibility were for the trial judge. We may not set aside his judgment on the evidence unless it was clearly erroneous. Maryland Rule 1086.” Harris v. State, 27 Md. App. 547, 552, 342 A.2d 305, 309 (1975). Therefore, the appellant was not denied a fair opportunity to defend the charges against him.

II

Sufficiency of the evidence

Appellant argues that the evidence adduced at trial was insufficient to convict him of the offenses charged on either of the three dates specified in the bill of particulars. Even assuming, arguendo, that such was the case, the appellant’s assumption that he could only be convicted for offenses on those three dates is incorrect. As stated above, although the bill of particulars specified three dates, it stated that the acts possibly, but not definitely, occurred on those dates, and that the State was unable to specify other dates that the acts occurred. The prosecutrix’s testimony was that the acts first occurred in July, 1979 and were repeated continually until March, 1980.

First, a bill of particulars forms no part of the indictment. Seidman v. State, 230 Md. 305, 312, 187 A.2d 109, 113 (1962), cert. denied, 374 U.S. 807 (1963). The sufficiency of the indictment must be judged on its own without regard to the bill of particulars. Second, the purpose of a bill of particulars in a criminal case is to "guard against the taking of an áccused by surprise by limiting the scope of the proof.” Hadder v. State, 238 Md. 341, 351, 209 A.2d 70, 75 (1965) (citing cases) (emphasis in original). Because the bill of particulars here expressly put the appellant on notice that the three dates specified were possible dates on which the alleged acts occurred and that acts could have occurred at other times, the appellant could not have been surprised that the scope of proof encompassed a period of nine months, as alleged in the indictment. Therefore, the purpose of the bill of particulars was not abused and the evidence adduced at trial was sufficient to convince the trier of fact that such acts took place over that period of time.

III

Was there error in admitting into evidence issues of "Penthouse” magazine?

During the course of the trial it was shown that on several occasions the victim, while visiting appellant’s home, looked through issues of Penthouse magazine which were kept on a table in appellant’s living room. There was evidence from which the court could have concluded that the appellant looked through the magazines with the prosecutrix. Subsequently, four issues of the magazine, which the victim identified as being issues she had looked at with appellant at his house, were admitted into evidence, over objection. The trial judge, in overruling appellant’s objection to their admission, concluded that the magazines had probative value with regard to appellant’s state of mind. The appellant bottoms his argument on the ground that the magazines had no relevancy to the issue in the case, i.e., did he or did he not commit the acts with which he was charged? In our view, given the discretion of a trial judge in determining the admissibility of evidence, see Impala Platinum Ltd. v. Impala Sales, Inc., 283 Md. 296, 332-33, 389 A.2d 887, 908 (1978) (expert testimony) and Smith v. State Roads Commission, 240 Md. 525, 538, 214 A.2d 792, 799 (1965) (experimental evidence), and given the nature of the charges, we find no abuse of discretion here. The appellant’s state of mind may very well be gleaned from the magazines and thus would have probative value for the trier of fact.

IV

Competency to testify

Finally the appellant argues that the victim was not competent to testify because the "child’s capacity to observe and remember the matter about which testimony is sought,” Brandau v. Webster, 39 Md. App. 99, 382 A.2d 1103 (1978), was not shown. In Brandau, Judge Liss, speaking for the Court, stated in pertinent part:

"As there is no precise age which determines the question of competency, the court must resort to a determination of the capacity and intelligence of. the child and its appreciation of the difference between truth and falsehood. The competency of a witness is established when it is determined that the witness has sufficient understanding to comprehend the obligation of an oath and to be capable of giving a correct account of the matters which he has seen or heard relevant to the question at issue. Weeks v. State, 126 Md. 223, 94 A. 774 (1915); Davis v. Corbin, supra [28 Md. App. 364, 346 A.2d 488 (1975)].” Id. at 104, 382 A.2d at 1106.

We have read the record in regard to this issue and while the qualification testimony is slim, we believe the appellant was only interested in having the child examined as to the nature of an oath. The following colloquy took place between the trial judge and counsel:

"MR. WHITE [Appellant’s counsel]: Excuse me, before we get to that, Your Honor, I wonder if we could qualify the witness as being competent, as far as age is concerned?
THE COURT: Are you saying about as far as the ability to understand the nature of an oath?
MR. WHITE: That is correct.
THE COURT: Do you want to establish that, Mr. Wenck, that is the witness’ ability to understand the nature of an oath.
MR. WENCK [Assistant State’s Attorney]: I understand that, Your Honor, but she is 11, and I think there is a presumption that she is able to understand the oath.
THE COURT: Certainly won’t hurt to establish that.”

The Assistant State’s Attorney then questioned the witness as to her ability to appreciate the difference between truth and falsehood.

"MR. WENCK: Is the Court satisfied?
THE COURT: Do you have any questions, Mr. White?
MR. WHITE: I have no questions.
THE COURT: I am satisfied that the witness is competent to testify and does fully understand and appreciates the nature of the oath she has taken.”

Thus the issue as now raised is not preserved for our review. Md. Rule 1085.

Judgment affirmed.

Costs to be paid by appellant.


author: MacDaniel, J.,

text:
    REGINALD HARVEY v. STATE OF MARYLAND
    [No. 766,
    September Term, 1981.]

      Decided March 3, 1982.

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

      Martha Weisheit, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Ellen Finkelstein, Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellee.
   MacDaniel, J.,

delivered the opinion of the Court.

On October 22, 1980, in the Criminal Court of Baltimore, Reginald Harvey, appellant, was found not guilty by reason of insanity of assault with intent to rape and related charges and by order of court committed to the Department of Health and Mental Hygiene for an examination and evaluation pursuant to Maryland Annotated Code Article 59, § 25 (1957, 1979 Repl. Vol.). The State concedes that this court order committing appellant to the Department of Health and Mental Hygiene was "lost” or "misplaced” somewhere "in department channels” for approximately five months. Immediately upon its discovery a hearing was promptly commenced before a hearing officer pursuant to Article 59, § 27A (a). Although not clear from the record, it appears that the Clifton T. Perkins clinical staff had completed its examination and evaluation of appellant sometime during this five month delay and was prepared to testify that appellant was still mentally ill and dangerous to himself and others. On March 20,1981, the hearing officer filed with the court his recommendation that appellant be released for failure of the State to comply with the time limitations set forth in Article 59, §§27 and 27A. The State filed exceptions to the hearing officer’s recommendations. After hearings held in the Circuit Court of Baltimore City on April 16 and May 26, 1981, the trial court issued an order denying appellant’s motion for release and this appeal ensued.

Appellant contends, and we agree, that the trial court erred in holding that the time limitations of Article 59, §§ 27 and 27A were directory and not mandatory. This will give little solace to appellant however as we shall further rule that the release of appellant is an improper sanction for a violation of the mandatory time limitations of Article 59, §§ 27 and 27A.

Those portions of Article 59 pertinent to this appeal are:

Section 27
"(b) Order of commitment. — . . ., immediately after a person has been found not guilty by reason of insanity, the court shall order the person committed to the Department of Health and Mental Hygiene for examination and evaluation. . . .
(c) Purpose of examination and evaluation. — The examination and evaluation is for the purpose of determining whether:
(i) The person has a mental disorder; and
(ii) By reason of that mental disorder, he would be a danger to himself or to the person or property of others if not confined in an institution for in-patient care or treatment or not subject to specific conditions imposed by the court in the event he is not confined in an institution for in-patient care or treatment.
(d) Completion of examination and evaluation; distribution of evaluation report. — The examination and evaluation shall be commenced promptly and shall be completed within 20 days of the commitment order unless for good cause shown the court extends the time for completion. A copy of the evaluation report shall be sent to the State’s attorney, the hearing officer, the person, and his counsel.”
Section 27A
"(a) Unless postponed for good cause or by agreement of the person and the Department of Health and Mental Hygiene, within 30 days after the date of the order specified in sec. 27 (b), a hearing shall be conducted by a hearing officer designated by the Secretary. Notice of the hearing shall be sent to the State’s attorney, the person, and his counsel. The hearing is for the purpose of considering the evaluation and other relevant information to enable the hearing officer to make recommendations to the court with respect to the issues enumerated in sec. 27 (c).”

The time limitations referred to by appellant are that portion of Article 59, § 27 (d) which states "shall be completed within 20 days” and that portion of § 27A (a) which states "within 30 days after the date of the order specified in 27 (b) a hearing shall be conducted.” The State concedes factual noncompliance with the time provision of § 27A (a) and, for purposes of this appeal, we shall assume noncompliance with the time provision of § 27 (d).

Mandatory vs. Directory

Heretofore, this Court and the Court of Appeals when faced with an interpretation of the word "shall” in a statute or a rule (primarily dealing with time limitations) used the "directory or mandatory” approach to determine what sanction would apply for a violation of the provisions of the statute or rule. In that context we started with the principle of statutory construction that the use of the word "shall” is presumed mandatory unless its context would indicate otherwise. Moss v. Director, 279 Md. 561 (1977). Generally, two elements were considered necessary to overcome the mandatory presumption, (1) the purpose of the statute or rule and (2) the absence of a penalty provision. If no penalty provision was provided for a violation of the time requirements and the purpose of the statute or rule indicated otherwise, we generally held the interpretation of the word "shall” to be directory and not mandatory. Once having found "directory,” we then would determine whether the sanction of dismissal for a violation was appropriate. Normally, we found "dismissal” an improper sanction under these conditions. When we found that the use of the word "shall” was mandatory rather than directory, ordinarily we would then find dismissal an appropriate sanction for a violation of the time provisions of the statute or rule.

Under the above enunciated standards, decisions were reached in Moss v. Director, supra, and Coard v. State, 43 Md. App. 146 (1978).

Moss concerned a motion to dismiss defective delinquency proceedings filed by the defendant on the ground that his right to a prompt hearing had been violated. The time provision in question actually used the term "shall forthwith,” rather than "shall”. Here the Court utilized the standard that the use of the word "shall” is presumed mandatory unless its context would indicate otherwise. In spite of the lack of a penalty provision, the Court found that the context of the statute "did not indicate otherwise,” that the word "shall” was mandatory, and that the sanction for a violation of this mandatory provision was dismissal of the proceedings.

Coard closely resembles the factual posture of the case sub judice. The primary issue in Coard arose from a consent decree in the United States District Court case of Dorsey v. Solomon, 435 F. Supp. 725 (D. Md. 1977), affirmed in part and remanded in part, 604 F.2d 271 (4th Circuit 1979). Dorsey established the right of persons found not guilty by reason of insanity to a post-commitment hearing. The Dorsey decree held: "No insanity acquitted person shall be confined.. .without a prior judicial hearing to be held within sixty (60) days after receipt of the evaluation report.” In Coard, two appellants, Richard David Coard and Neil Willie English, having previously been found not guilty of certain crimes by reason of insanity, petitioned the court for a judicial release from confinement in a mental hospital. Coard and English argued that because the commitment hearing was not held within sixty days of the receipt of the evaluation report from Clifton T. Perkins Hospital they must be released. We indicated in Coard that the word "shall” as used in the consent decree was directory and not mandatory, and refused to apply the sanction of dismissal for a violation of the time provisions.

Were we to follow the line of reasoning in these prior cases, we would have no difficulty in finding the use of the word "shall” in Article 59, §§ 27 and 27A to be directory and not mandatory, and that the sanction of release of the appellant in the case subjudice to be an inappropriate penalty for a violation of the time requirements.

However, Judge Smith, speaking for the Court of Appeals in In Re Dewayne H., 290 Md. 401 (1981), appears to suggest a much more sensible and reasonable approach to the problem of what sanction, if any, should be imposed when there has been a violation of the time requirements of a rule or statute where the word "shall” has been utilized in that rule or statute. Dewayne H. concerned a provision of Maryland Rule 915 a which states that a "disposition hearing [in a juvenile proceeding] shall be held no later than thirty days after the conclusion of the adjudicatory hearing.” Here there was a violation of the 30-day provision which necessitated the Court to determine whether a dismissal of the proceedings would be a proper sanction for this violation. In reference to the word "shall” Judge Smith said at 405:

"The language here is clear and unambiguous. However, its mandatory nature does not indicate the sanction to be applied nor does the sanction necessarily inure to the benefit of the juvenile.”

Having found the word "shall” to be mandatory with no sanction contained in the rule, Judge Smith then discussed the purposes of the rule and concluded that dismissal of the proceedings was an improper sanction for a violation of the mandatory provision of Maryland Rule 915 a.

This suggests a logical approach to the problem presented when there is a violation of a mandatory time requirement in a statute or rule. Whenever the word "shall” is used it is mandatory. Why else would this word be used? If the legislative body responsible for the enactment of the statute or rule meant "directory,” we assume they would say so. The question then becomes: although mandatory should the sanction of dismissal be the proper relief for a violation of a mandatory time provision? To determine that question we then turn to the two elements that were previously used to state "directory and not mandatory,” Le., (1) the purpose of the statute or rule and (2) the absence of a penalty provision.

This Court was faced with a problem similar to that in Dewayne H. in In Re: Howard L., 50 Md. App. 498 (1982). In Re: Howard L. concerned a violation of the time provision contained in Maryland Rule 914 b that "[a]n adjudicatory hearing shall be held within 60 days after the juvenile petition is served on the Respondent.” The Court found a violation of the time requirements of Maryland Rule 914 b, found the 60-day rule requirement to be mandatory, but, following the reasoning of In Re: Dewayne H, refused to impose the sanction of dismissal for the violation. Judge Lowe, speaking for this Court in In Re: Howard L., said:

Nothing in that rule indicates in the slightest that the Court of Appeals intended the sanction imposed upon society for an administrator’s violation to be dismissal of the petition. Nor do we see anything in the rule, or reasoning of the Court of Appeals, to suggest that delinquents be denied the benefits of rehabilitation anticipated by the Juvenile Causes Act because of a technical scheduling violation. Strict compliance with mandated procedures can certainly be administratively imposed without detriment to both the youth we hope to help and the society he has already once imposed upon.” 50 Md. App. at 503.

With this authority as a background, we find that the time requirements of Article 59, §§ 27 and 27A are mandatory.

Sanction for violation of a mandatory time requirement

In the case sub judice we have found that there was a violation of the mandatory time requirements of Article 59, §§ 27 and 27A. Following the guidelines enunciated in In Re: Dewayne H., we now consider the sanction requested by appellant for this violation. As there is no penalty provision contained within Article 59, §§ 27 and 27A for a violation of the time requirements, we need only concern ourselves with the purpose of the statute.

Although Coard, supra, dealt with mandatory time requirements in a District Court consent decree and the case sub judice dealt with mandatory time requirements in a statute, we are principally dealing with the same issue, i.e., the release of a defendant found not guilty of a crime by reason of insanity because of a violation of a mandatory time requirement. We find the language in Coard dispositive of this issue where Judge Lowe, speaking for this Court, at 151 said:

"It is inconceivable in any case, that the District Court would, if it could, compel this Court or the State to release persons, whose culpable conduct has been conceded but excused, either because they do not understand what is criminal, or they know what is criminal but cannot help acting out in the proscribed manner. Md. Ann. Code art. 59, § 25 (a). See Gardner v. State, 41 Md. App. 187 (1979), cert. granted, 284 Md. 744 (March 28, 1979). To release such persons into society because of a relatively insignificant administrative breakdown, in the absence of prejudice, is an unacceptable alternative sanction. Society must not always be the scapegoat simply to enforce rigidly every agreed upon procedural compliance. The extreme dismissal sanction for speedy trial denial, Barker v. Wingo, 407 U.S. 514 (1972), and for its statutory little brother, Md. Ann. Code art. 27, § 6168, is directly related to the abrogation of constitutional rights, as are the other sanctions (such as the exclusionary rule) construed to enforce adherence to constitutional principles by denying societal relief without punishing the offender or other party at fault for the violation. But nowhere has there ever been so extreme a sanction applied against society rather than the offender for a procedural noncompliance with a nisi prius court decree of the type here formulated by a stipulation between the parties seeking a declaratory judgment.”

We hold that the release of appellant is an improper sanction for a violation of the mandatory time requirements of Article 59, §§ 27 and 27A.

Denial of appellant’s motion for dismissal by trial court affirmed.

Appellant to pay the costs.

      . We note that, although the "caption” indicates that this is a criminal case, the nature of the case is civil and we admonish appellant’s counsel for failing to provide the order of court determining that Article 59 is directory and for failing to provide a record extract. Because of the importance of the case, we have not granted the State’s motion to dismiss the appeal nor dismissed it upon our own motion pursuant to Maryland Rule 1028.


author: Orth, J.,

text:
    METROPOLITAN LIFE INSURANCE COMPANY v. INSURANCE COMMISSIONER OF THE STATE OF MARYLAND
    [No. 791,
    September Term, 1981.]

      Decided March 3, 1982.

      The cause was argued before Moylan and Lowe, JJ., and Charles E. Orth, Jr., Associate Judge of the Court of Appeals (retired), specially assigned.

      J. Snowden Stanley, Jr., with whom were Semmes, Bowen & Semmes on the brief, for appellant.

      Thomas P. Barbera, Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

We have here an employee benefit plan, substantially funded by insurance, providing certain benefits that had been reached by collective bargaining. The ultimate issue is whether Maryland may require the payment of benefits not as called for by the plan.

The plan concerned is maintained by the General Electric Company for the benefit of its employees and is subject to federal regulation under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C.A. § 1001 et seq. The medical expense benefits payable under it are implemented by a group insurance policy issued by the Metropolitan Life Insurance Company. Metropolitan is a named fiduciary for the payment or denial of claims for benefits and the review of denied claims under the policy.

Metropolitan denied the claims of two General Electric employees, covered by the policy, seeking benefits for services for psychotherapy rendered by social workers. It was the position of Metropolitan that services of social workers were not within the terms of the plan. However, Maryland Code (1957, 1979 Repl. Vol., 1981 Cum. Supp.) Art. 48A, § 477-0 (a) provides:

"Every group or blanket health insurance policy delivered or issued- for delivery in this State or issued to a group which is incorporated or has a main office located in this State, or covering persons who reside or work within this State, which provides for reimbursement for any service which is within the lawful scope of practice of a licensed certified social worker shall provide such benefit whether the service is performed by a doctor of medicine or by a licensed certified social worker who has had at least two years or 3,000 hours of post-masters supervised clinical social work practice in a clinical program as established by the State Board of Social Work Examiners if the insured or the person covered by the policy was referred to the social worker by a physician.”

It is undisputed that were the Metropolitan policy in compliance with this State statute, the benefits claimed by the two employees would be payable.

The Insurance Commissioner of the State of Maryland pursued the matter. Upon hearing, he ruled that "refusal by [Metropolitan] to include coverage and pay proper claims for the benefits provided under Section 477-0 ... in out of state group health insurance contracts, whether or not part of a retirement benefit plan, would constitute a violation of Section 477-0 and 55 (2) (iv), Article 48A.” It ordered that such claims be paid. Metropolitan appealed to the Baltimore City Court. It affirmed the order of the Commissioner. Metropolitan then appealed to this Court.

The validity of Art. 48A, § 477-0 (a) on its face is not in question. The quarrel here is not the legislative mandate that group insurance policies must, under specified conditions, provide reimbursement for certain services performed by qualified social workers. It is, rather, that the requirement was impressed on a group insurance contract which is part of an employee benefit plan regulated by federal law. That law declares, as here applicable, that its provisions

"shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan....” 29 U.S.C.A. § 1144 (a).

There follows, however, a saving clause:

"[N]othing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance....” § 1144 (b) (2) (A).

And then there is a deemer clause:

"Neither an employee benefit plan ... nor any trust established under such a plan, shall be deemed to be an insurance company or other insurer ... or to be engaged in the business of insurance ... for purposes of any law of any State purporting to regulate insurance companies [or] insurance contracts....” § 1144 (b) (2) (B).

The ultimate issue of whether Maryland, by statutory mandate, may require the payment of benefits not as called for by a federally regulated employee benefit plan provokes interplay between the federal act and the State statute. Vital to determination of the issue is the scope of ERISA’s savings clause insurance exception to its preemption clause. Both the Commissioner and Metropolitan indicate that it is the clear and manifest intent of ERISA to supersede any and all State laws, with specified exceptions, insofar as they relate to an employee benefit plan, including a plan such as the one here, implemented by an insurance policy. Nor is it disputed that ERISA explicitly purports not to preempt any State law which regulates insurance, and that it preserves existing federal laws which leave the regulation of insurance to the states. So it is that preemption vel non of the Maryland statute, in its application to the General Electric benefit plan and implementing insurance policy, turns on whether it "regulates insurance” within the contemplation of the federal statute. Put precisely, the question is whether the application of the provisions of Art. 48A, § 477-0 (a) of the Maryland Code to General Electric’s employee benefit plan and the implementing Metropolitan insurance policy resulted in regulating insurance within the contemplation of 29 U.S.C.A. § 1144 (b) (2) (A). In resolving the question, we are guided by the rules of statutory construction.

The rules of statutory construction are fully set out in State v. Fabritz, 276 Md. 416, 421-422, 348 A.2d 275 (1975), cert. denied, 425 U.S. 942 (1976). The cardinal rule is to effectuate the real and actual intention of the legislature. Statutes are to be construed reasonably with reference to the purpose to be accomplished, and in light of the evils or mischief sought to be remedied, so that every statute must be considered in its entirety, and in the context of the purpose underlying its enactment. It should be construed according to the ordinary and natural import of its language, since it is the language of the statute which constitutes the primary source for determining the legislative intent. Results that are unreasonable, illogical or inconsistent with common sense should be avoided whenever possible consistent with the statutory language, with the real legislative intention prevailing over the intention indicated by the literal meaning. It is in the light of these principles that we consider the provision of 29 U.S.C.A. § 1144 (b) (2) (A) that "nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance. . . .” The phrase "regulates insurance” is not devoid of obscurity and free from ambiguity when applying it to a particular law.

The Congressional findings and declarations of policy set out in 29 U.S.C.A. § 1001 show dramatically that the Congress recognized that there was a serious problem of national magnitude and character with respect to employee benefit plans and that it perceived a need for a uniform and manageable solution. It found that such plans, whose growth in size, scope and number had been rapid and substantial in recent years, were a concern of national interest and directly affected the continued well-being and security of millions of employees and their dependents. Such plans had become an important factor influencing the stability of employment and the successful development of employee relations. But there was insufficient information given to employees concerning them and inadequate control established in the operation of them. It was essential that safeguards be provided as to the establishment, operation, and administration of such plans. Owing to the inadequacy of minimum standards, the soundness and stability of plans with respect to adequate funds to pay promised benefits were endangered; employees and their beneficiaries had been deprived of anticipated benefits. It was, therefore, desirable that minimum standards be provided assuring the equitable character of such plans and their financial soundness. § 1001 (a). The Congress declared it to be the policy of the Act to protect the interests of those concerned by, among other things, establishing standards of conduct, responsibility, and obligations for fiduciaries of employee benefit plans and by providing for appropriate remedies and sanctions and by requiring such plans to meet minimum standards of funding and to obtain plan termination insurance. § 1001 (b) and (c).

The legislation enacted by Congress in response to its findings and to fulfill its policy declarations was "a comprehensive regulatory scheme directed at the displacement of state regulation of employee benefit plans.” Hutchinson and Ifshin, Federal Preemption of State Law Under the Employee Retirement Income Security Act of 1974, 46 Chicago L. Rev. 23 (1978), (hereinafter referred to as Hutchinson). It cannot be seriously questioned that the express preemptive intent and "ERISA’s structure, language, and legislative history support a broad interpretation of the scope of federal preemption of state law in this field... .” Hutchinson at 41. This view is supported by the deemer clause, § 1144 (b) (2) (B). The deemer clause prevents the savings clause from digging a large loophole in the preemption clause through the characterization of benefit plans as insurance by expressly prohibiting such characterization. By it, the Congress made clear that the savings clause was not to be used as a device through which states could regulate employee benefit plans by considering a plan itself to be an insurance company or other insurer.

It is apparent that the funding of a plan by the purchase of insurance does not for that reason trigger the savings clause and permit a state to regulate a plan. It is obviously in furtherance of the declared policies of the Congress to have the plan supported by insurance, and the Congress expressly recognized this in defining an employee benefit plan to include a plan maintained to provide benefits "through the purchase of insurance. . . .” 29 U.S.C.A. § 1002 (1). In prescribing the coverage of ERISA, the Congress designated four types of plans to which its provisions do not apply. Plans funded by insurance are not among those specified exceptions. § 1003. In other words, plans implemented by an insurance contract are within the ambit of ERISA, and the mere existence of an insurance contract funding the plan does not remove it from federal regulation and permit the state to move in.

The purposes to be accomplished by ERISA, the strong preemptive intent of the Congress, the approval of insurance implemented plans, and the deemer clause exception to the savings clause, leave little doubt that benefit plans are to be free of direct regulation by the State even if that regulation is part of a general body of insurance law. Hutchinson at 65-66. Furthermore, "ERISA makes clear that even indirect state action bearing on private [benefit plans] may encroach upon the area of exclusive federal concern.... ERISA’s authors clearly meant to preclude the States from avoiding through form the substance of the pre-emption provision.” Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 524, 101 S.Ct. 1895, 1907 (1981). That is, the intent of the Congress is that State law is preempted insofar as its intent, scope, or effect relates primarily or predominately to ERISA-covered plans. In other words, the statutory purpose is best served by the preemption of even indirect State regulations imposing substantive requirements on qualified employee benefit plans "unless the state can show that preemption would interfere significantly with the general state regulation of insurance....” Hutchinson at 66. "A state may, for example, indirectly protect an insured employee benefit plan by regulating underwriting and reserve policies of the insurance carrier, even if such regulation affects the cost of the plan. On the other hand, a state should not be allowed to require that an ERISA plan provide a substantive benefit by enforcing an insurance regulation against the insurance carrier that provides the policy to the plan.” Id. at 66-67. Although it was the clear intent of the Congress not to interfere in the regulation of insurance by the states, we see no intent to extend that policy to permitting state regulation of the terms and conditions of employee benefit plans. Hutchinson observes, at 68-69:

"If states are permitted to require employee benefit plans to provide substantive benefits under the guise of insurance regulation, the result may be a Hobson’s choice for employer or labor and management negotiators: either abandon the funding of benefit plans through insurance policies or be willing to accept all-encompassing uniform national contracts. For if each state may impose its own substantive terms on the plan, the only way uniformity may be reached is by incorporating into the plan all of the benefits each state requires. This dilemma is clearly of the type that Congress sought to avoid by enacting ERISA’s preemption provisions, which were formulated to relieve interstate employee benefit plans of the adverse effects of cumulative or inconsistent state regulation.”

See also Turza and Halloway, Preemption of State Laws Under the Employee Retirement Income Security Act of 1974, 28 Catholic U.L. Rev. 163 (1979). We look now at the Maryland statute as it was made applicable below to General Electric’s plan.

The Maryland statute is contained among the insurance laws of the State. It requires that every group policy which provides for reimbursement for any service which may be performed lawfully by a qualified social worker shall provide such benefit whether performed by a doctor of medicine or by the social worker if the insured has been referred to the social worker by a physician. Md. Code (1957, 1979 Repl. Vol., 1981 Cum. Supp.) Art. 48A, § 477-0 (a). The statute contains no reference to employee benefit plans. It does not establish a new benefit. It merely designates another class of persons which may be reimbursed for services authorized by the policy. As applied to the Metropolitan policy, the statute does not, in the frame of reference of ERISA, regulate insurance. We are persuaded toward this conclusion by the rationale of Va. Academy of Clinical Psy. v. Blue Shield of Va., 624 F.2d 476 (4th Cir. 1980), cert. denied, 450 U.S. 916 (1981). In that case, Blue Shield refused to pay for services rendered by clinical psychologists unless such services were billed through physicians. The court observed that "[t]he essence of the business of insurance is the relationship between the insurance company and its policyholder.” Id. at 483. The policy regarding direct payments was tangential to that relationship in that it did not affect the benefit conferred upon the subscriber. The court said:

"Were we confronted with a decision by the [Blue Shield] Plans to deny payment for mental and nervous disorders for psychotherapy as a method of treating those disorders we might conclude that the decision was an insurance decision — the refusal to underwrite a specific risk.” Id. at 484.

The court pointed out that Blue Shield had been covering these mental and nervous disorders in their contracts for some years.

"Their decision regarding psychologists was not whether to underwrite the risk of those disorders or even the need for psychotherapy, rather it was a question of who they would pay for such services. The coverage remained the same.” Id.

See Group Life Ins. Co. v. Royal Drug Co., 440 U.S. 205, 99 S.Ct. 1067, reh. denied, 441 U.S. 917, 99 S.Ct. 2017 (1979); Eversole v. Metropolitan Life Insurance Co., Inc., 500 F. Supp. 1162 (C.D. Cal. 1980).

Having determined that § 477-0 (a) of Art. 48A, as applied to the insurance contract here, does not "regulate insurance,” we turn to the extent to which it relates to the plan. Of course, the group insurance policy purchased by General Electric from Metropolitan to implement the plan is an integral part thereof, and what relates to it necessarily relates to the plan. We find that the Maryland statute relates to the plan in that it changes a term or condition with regard to the payment of a benefit under the plan. The plan, as it may properly do under federal law, provides for reimbursement for services involving mental or emotional conditions rendered by a physician or psychologist, but not by a social worker. Application of the Maryland law requires that social workers, under conditions prescribed, be reimbursed for such services. It is of no moment, as we have indicated, that the Maryland law intrudes on the plan indirectly through an insurance law, rather than directly through a statute designated as an employee benefit plan regulation.

The relation of the Maryland law to the day-to-day operation of the plan was graphically demonstrated by evidence presented at the hearing below by Metropolitan through the testimony of a vice-president of Metropolitan, by a member of its controller’s staff conversant with insurance benefits, by a member of the faculty of the Medical College of Virginia, who was an expert in the area of health, hospital planning, health economics, and international health systems, and by an expert with réspect to the administration of employee benefit plans. Their testimony regarding the impact of the application of the Maryland statute on the plan and the implementing policy was uncontradicted. In essence they opined that the effect on the plan would be drastic, adversely affecting to a substantial degree, costs, administration, uniformity of benefits, processing and payment of claims, and appeal procedures on denial of them. The application of the statute would cause confusion on the part of employees covered by the plan with respect to their rights, and uncertainty on the part of those administering it. The integrity of the plan would be seriously eroded. In short, the declared policies and the objectives of the Congress in enacting ERISA would be frustrated in large measure. It cannot be seriously argued in the light of this evidence that, at the least, in a practical but very real sense, the Maryland law related to the plan in the contemplation of the preemption clause of ERISA.

There is a further consideration bolstering preemption. The benefits payable under the plan were arrived at by General Electric and its employees through the mechanism of collective bargaining. "As a subject of collective bargaining, [employee benefit plan] terms themselves become expressions of federal law, requiring preemption of intrusive state law.” Alessi v. Raybestos-Manhattan, Inc., 451 U.S. at 524, 101 S.Ct. at 1907.

We find, in the context of ERISA, that to enforce the Maryland statute against Metropolitan is to permit the State to regulate a term and condition of General Electric’s employee benefit plan as distinguished from regulating insurance. This is contrary to the intent of the Congress and invokes ERISA’s preemption clause. We conclude that Md. Code (1957, 1979 Repl. Vol. 1981 Cum. Supp.) Art. 48A, § 477-0 (a) is preempted by federal law insofar as it bears on the General Electric employee benefit plan and its implementing insurance policy issued by the Metropolitan Life Insurance Company. As our conclusion is contrary to that of the Baltimore City Court, the judgment of that court is reversed.

Judgment reversed.

Appellee to pay costs.

      . This conclusion is not challenged. The plan provided benefits for the services of physicians and surgeons and of psychologists, as defined in the plan, who rendered services for which benefits were provided when performed or prescribed by a physician and a surgeon. "Social worker” was not embraced within the definition of "psychologist.”

      . Md. Code (1957,1979 Repl. Vol.) Art. 48A, § 55 (2) (iv) authorizes the Commissioner to refuse to issue or to revoke or suspend an insurer’s certificate of authority if the insurer "[w]ithout just cause unreasonably refuses or delays payment to claimants of the amount due them.”
      Metropolitan states in its brief that pending the resolution of this matter, it is paying claims which might come within the purview of § 477-0 out of its own funds as distinguished from the funds allocated for payment of claims under the group policy.

      . In addition to excepting State laws which regulate insurance, 29 U.S.C.A. § 1144 (b) (2) (A) excepts State laws regulating banking and securities. And the preemption clause does not apply "to any generally applicable criminal law of a State,” § 1144 (b) (4), or to any law of the United States, § 1144 (d), thus preserving the McCarran-Ferguson Act, 15 U.S.C.A. §§ 1011-1015, which leaves the regulation of the insurance industry to the states.

      4. For a tracking of the legislative history of ERISA, see Hutchinson at 38-43.

      . We are aware that courts in other jurisdictions have reached varying conclusions with respect to whether a statute "regulates insurance.” See, for example, Wadsworth v. Whaland, 562 F.2d 70 (1st Cir. 1977), cert. denied, 435 U.S. 980 (1978), (narrowly construing the ERISA deemer clause); Hewlett-Packard Co. v. Barnes, 425 F. Supp. 1294 (N.D. Cal. 1977), aff'd, 571 F.2d 502 (9th Cir.), cert. denied, 439 U.S. 831, 99 S.Ct. 108 (1978) (broadly construing the ERISA deemer clause.)

      . Metropolitan notes in its brief that its historical policy of providing all employees identical medical expense benefits was so important that it has extended to all of its non-union employees the benefits agreed upon in bargaining sessions by employees represented by unions.

      . Upon appeal from the Commissioner to the Baltimore City Court the matter is heard de novo. Md. Code (1957, 1979 Repl. Vol.) Art. 48A, § 40 (4). For the scope of the court’s review see § 40 (5); Frank Lucas Ins. v. Fireman’s Fund, 48 Md. App. 122, 125-126, 425 A.2d 1378 (1981). The appeal to the Court of Special Appeals is taken as in civil cases. Art. 48A, § 40 (7). We find that the Baltimore City Court here was wrong as a matter of law.


author: Lowe, J.,

text:
    GEROLD VICTOR VAN DER VLUGT et ux. v. DONNA HELEN SCARBOROUGH
    [No. 809,
    September Term, 1981.]

      Decided March 3, 1982.

    The cause was argued before Lowe and Mason, JJ., and Richard M. Pollitt, Chief Judge of the First Judicial Circuit, specially assigned.

      Deena P. Rabinowicz, with whom were H. Alan Young and Young & Goldman on the brief, for appellants.

      Mark A. Binstock, with whom were Kerman & Binstock on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

The Circuit Court for Montgomery County granted appellee Donna Helen Scarborough’s motion to quash an attachment on her wages. Appellee was alleged to have been one of a number of guarantors of a corporate obligation to Borg-Warner Acceptance Corp. Borg-Warner sued all eight guarantors, (six of whom were married couples), simultaneously moving for summary judgment. Appellee answered (separately from Mr. Scarborough) and filed an affidavit swearing that she had neither signed, nor authorized, the signing of the guarantee.

In the absence of transcripts of proceedings we have looked to the docket entries and find that on June 15, 1979,

"Court (Miller, J.) withdraws Summary Judgment as to Defendant, Donna Helen Scarborough.”

On June 18, 1979, however, appellants, Gerold and Theresa Van Der Vlugt, two of the guarantors, filed a cross-claim against the other guarantors, including appellee "for contribution for any sums which may be expended by [appellants] in discharging the common obligations of all defendants represented by the notes which are the subject of this action.” Borg-Warner filed a second motion for summary judgment, this time omitting the names of appellee and another guarantor (who had not been served), and on July 18, 1979, obtained summary judgment against the six guarantors named in the motion.

Appellants, having arranged the payment of the entire amount of the judgment on December 28, 1979, moved for partial summary judgment under their contribution count, pursuant to Md. Rule 605 (d) which reads:

"Where in a single action a joint judgment has been entered against more than one defendant, and one of such defendants has discharged the judgment by payment or has paid more than his pro rata share thereof, then in any case where a right of contribution or recovery over as between such defendants exists, an appropriate judgment against any other defendant may be entered, after 15 days’ notice, upon motion by the defendant and proof of payment.”

On May 14, 1980 the court ordered the entry of partial summary judgment in favor of appellants against all five of the remaining guarantors who had been served, including appellee, despite there never having been a judgment entered against her in the original case. Appellee sought to no avail to have the judgment reconsidered. The docket entries show that her motion to reconsider was taken "under advisement” on October 1, 1980. On December 29, 1980 the docket entries (absent any transcripts) indicate:

"Hearing on Defendant, Donna Helen Scarborough’s Motion for Reconsideration (#89) (Frosh, J.) denied. Mr. Levine reporting.”

On January 22, 1981, she appealed to this Court.

Appellants Van Der Vlugt had issued an "Attachment on Judgment: Wages” of appellee on February 26, 1981. On April 10,1981 they moved to dismiss her appeal under Rule 1012, alleging that the judgment appealed from had been entered on May 14, 1980, 273 days before the appeal was noted. Appellee opposed that motion but conceded that the appeal should be dismissed sua sponte by this Court- since there had been no final judgment from which the appeal could be taken and no compliance was had with Md. Rule 605 a. which reads:

"Where more than one claim for relief is presented in an action, whether as an original claim, counterclaim, cross-claim, or third-party claim, the court may direct the entry of a final judgment upon one or more but less than all of the claims only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates less than all the claims shall not terminate the action as to any of the claims, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims.”

On April 21, 1981, we dismissed the appeal because there had been no entry of final judgment and no compliance with the 605 a. alternative.

Appellee then filed a motion to quash the attachment which was granted. Appellants invoked their right to appeal that action pursuant to Md. Cts. & Jud. Proc. Code Ann. (1980 Repl. Vol.), § 12-303 (b). They ask:

"Whether a Writ of Attachment upon judgment is valid, even though the judgment may not be an appealable final judgment.”,

and alternatively,

"Whether the judgment against appellee is an appealable final judgment.”

That the answers to each are in the negative should be obvious. We note initially that the "judgment” against appellee is not an appealable final judgment because we said it was not final in our Order of Dismissal of appellee’s first appeal, and that is the law of the case. Appellants petitioned the Court of Appeals for certiorari upon our Order, and were denied. Despite appellants’ views to the contrary — and the judge’s as well — our order determining that the judgment was not an appealable final one was correct; but even if we had erred, when that mandate issued it was conclusive.

But we did not err. Md. Rule 605 a. permits the filing of a final judgment by a court in any case in which more than one claim for relief is presented ONLY upon an "express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” In this case, not only is Borg-Warner’s claim against appellee still pending, but appellants’ cross-claim for indemnification against one of the guarantors is still pending. The "Judgment” entered, which is captioned "Partial Summary Judgment,” clearly acknowledged the fact that less than all of the claims have been therein adjudicated. Final judgment could be entered, therefore, upon less than all of the claims "only” in conformity with the 605 a. procedure.

At the argument upon her motion to quash, appellee, referring to the dismissal of the appeal to which she had acquiesced and Rule 605 a., professed that,

"in the situation where we presently exist, the Court of Special Appeals has indicated we can’t ever have an appeal.”

That of course, was incorrect, and apparently misleading in that it appeared to have made quite an impression on the judge who, upon quashing the attachment, said:

"It doesn’t make sense to me that you could have a situation where you are proceeding to continue to collect, and you could, in theory, if the Plaintiff has not gone ahead and. done something about finalizing it you could, in theory, keep the Defendant from ever being able to appeal, and I just don’t think that that would be. I would hope that somebody would step in and construe the rules in some different way if that were true.”

The judge appears to have believed we erred, but acknowledged that:

"It doesn’t make any sense to me that the Court of Special Appeals, even if they are wrong, they have a right to be wrong more than I have the right to be wrong, so, therefore, I am required to proceed in accordance with their opinion and not whether or not I think they may or may not misunderstand Rule 605 (a).”

The judge went even farther in an effort to have the rule clarified or explained:

"I would have to tell you that a great many decisions, all of them unreported, come down on that precise basis. While I can’t and won’t refer you to the fact that those are unreported cases, I would have to say that I would certainly imagine somebody would have asked for a reconsideration and asked to get a reported case on this subject if they thought that there was a chance of doing so. Perhaps you should be the one. I don’t know when it came down.”

Hopefully we can comply, although we find the rule so very clear it will be difficult to elaborate.

We will commence with the obvious, i.e., that in order for one to obtain any type of execution upon a judgment, the judgment must be a final one. In an ordinary case, for example, a judgment nisi causa will not support an execution, which may be issued only after the time for filing a motion for new trial or an arrest of judgment has expired. 3 Poe’s Pleading and Practice, § 383. Indeed, Md. Rule 622 a. makes it clear that a court may issue an attachment or execution at any time within 12 years "from” the date of a judgment.

Md.Rule 5 o. makes it clear that whenever the term "judgment” is used in the rules, it is intended to connote one final in its nature unless otherwise described in context. Although there are three kinds of judgments recognized by the courts of this State, Huston v. Ditto, 20 Md. 305, 326 (1863), only one kind is final and effective. An order to enter judgment, although it is binding, is not a judgment. Mayor, &c. of Frostburg v. Tiddy, 63 Md. 514 (1885). It follows that when Md. Rule 622 a. permits execution only "from the date of judgment,” that rule means from the date of final judgment just as clearly as if the adjective "final” had expressly modified the noun "judgment,” as was done legislatively in Md. Cts. & Jud. Proc. Code Ann. (1980 Repl. Vol.), § 12-301 for purposes of an appeal. That an appeal may only be taken from a judgment that is final unless otherwise authorized by statute (e.g., Cts. & Jud. Proc. Art. 12-303) or rule is a jurisdictional brocard. Eastgate Associates v. Apper, 276 Md. 698, 700-701 (1976).

That seems perfectly clear in a simple, ordinary single-party case; however, when a case with multiple claims or parties is adjudicated piecemeal, Md. Rule 605 a. comes into play to provide an alternative to the final judgment prerequisite. As would be expected, the rule presupposes that even in multiple cases a final judgment cannot be entered until all of the claims are adjudicated; but, having so assumed, it then provides some respite in the event the exigencies of a case call for the entry of a final judgment on less than all the claims. That is a determination to be made in the discretion of the court after balancing the exigencies of the case, but one that should not be lightly made for it, too, is subject to appellate review. Diener Enterprises v. Miller, 266 Md. 551, 556 (1972).

Procedurally, it should be noted that final judgment may be entered upon less than all of the claims only upon an express determination that there is no reason to delay and upon an express determination for the entry of judgment. Although the rule does not expressly refer to appeals, if this procedure has not been followed in a case with claims still pending, we must, ex mero motu, recognize our lack of jurisdiction arising from the improper application of Rule 605 a. and dismiss the appeal. Diener Enterprises, supra at 555. In light of the jurisdictional defect, we have no discretion to exercise and if we deal with the merits of an appeal, appellate error would result. Eastgate Associates v. Apper, Id. at 704. See Starfish Condominium Association v. Yorkridge Service Corporation, 292 Md. 557 (1982).

Obviously then, in the case before us appellee has not lost her right of appeal. See e.g., Md. Rule 607. It will arise either when all of the claims are finally adjudicated and judgment entered thereon, or when the trial judge expressly determines that there is no reason for delay and expressly directs the entry of the partial judgment against her. Not only will her right to appeal arise, however, but the appellants’ right to execute as well. But neither can arise before one of those two contingencies occur, i.e., termination or certification. Were finality to be defined differently for different purposes, situations arising therefrom would be chaotic.

Although the trial judge professed perplexity in understanding Rule 605 a., her instincts brought her to the right results, which indicate a better understanding of the rule then she was willing to express. Her final statement in rendering judgment upon the motion to quash was:

"In view of that potential, the Court would have to say that it was not such final order as would have supported an attachment.”

That, too, purports a better grasp of the rule than she was willing to admit. We will affirm her judgment, and for the reason she expressed.

Judgment affirmed.

Costs to be paid by appellants.

      . Service was obtained on all but one guarantor.

      . It also included a count for indemnification against one of the guarantors (who appears to have managed the corporation) for breach of fiduciary duties.

      . Md. Rule 622 h.4. states that:
      "An attachment on judgment shall be regarded as an execution within the meaning of this Rule.”
      See also Northwestern N. Ins. v. Wetherall, 272 Md.“642, 650-653 (1974).

      . "Interlocutory judgments, which require some further action of the Court; final and effective judgments; and final but not effective, either from the nature of the original entries, or become so by some subsequent contingency.” Huston v. Ditto, 20 Md. 305, 326 (1863).

      . The term "multiple claims” includes multiple defendants. Tedrow v. Ford Motor Co., 260 Md. 142, 144-145 (1970).


author: Mason, J.,

text:
    MICHAEL GARY MARTIN v. STATE OF MARYLAND
    [No. 1709,
    September Term, 1980.]

      Decided March 4, 1982.

      The cause was submitted on briefs to Mason, Liss and Wilner, JJ.
    Submitted by Alan H. Murrell, Public Defender, and John L. Kopolow, Assistant Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney General, Michael A. Anselmi, Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Larry Doan, Assistant State’s Attorney for Baltimore City, for appellee.
   Mason, J.,

delivered the opinion of the Court.

In this case we are asked to decide whether the street encounter between appellant and the police constituted a violation of appellant’s Fourth Amendment rights.

Michael Gary Martin, appellant, was convicted by a jury in the Criminal Court of Baltimore of burglary. On appeal his principal assignment of error is that the trial court erred in denying his motion to suppress evidence obtained as a result of an illegal stop and seizure.

On 9 January 1980 around 11:00 a.m., a man forcibly entered the apartment of Sandi Bagley at 1420 Union Avenue and stole a ring, a watch, and a Realistic brand Radio. Shortly thereafter Detectives Worden and Parker, while driving in the 1400 block of Union Avenue in an unmarked car, observed appellant approaching them and carrying two portable radios. For some reason appellant made an about-face and walked rapidly in the other direction looking back over his shoulder. The detectives followed appellant into an alley where they stopped their vehicle, identified themselves, and asked appellant for some identification. In searching for an identification, i.e., his social security card, appellant placed the radios on the police vehicle and removed several items from his pocket, including a lady’s wrist watch and a ring. While the radios were on the police vehicle, the serial number of the larger radio with the brand name "Realistic”, was copied. After checking the serial number and finding that the radio had not been reported stolen, the officers left the scene.

Later the same day the victim reported the crime and gave the police a description of the burglar which matched that of appellant. She was shown a photographic array and the photograph of appellant was selected. The following day appellant was arrested.

I.

Appellant argues, in essence, that the stop by the police was an illegal seizure of his person and the court erred in not suppressing the evidence obtained as a result thereof. In disposing of appellant’s motion to suppress, the trial court said:

THE COURT: All right. Now, I’ll rule on one motion. I have the other two motions. I find as a fact that the officers had a perfect right to stop the defendant in this case. I think the conduct of the defendant, the police purpose was certainly a legitimate one. The appearance of the defendant, the way he acted and so on, on the balance sheet probably would be sufficient under Terry v. Ohio to stop and ask him some questions. Here we didn’t have a frisk, so we don’t have that frisk element involved here. In any event, I think the police had a proper right to stop him and ask him to identify himself. He didn’t object to identifying himself. He did, in fact, attempt to identify himself. As he did so he placed two radios on top of the police car. The police officers’ testimony, which the Court accepts as true and convincing, was that the larger of the two radios, one was a cassette radio, had clearly visible to him the word, "Realistic,” on it, indicating that it was a Realistic make cassette-type radio. The other, he didn’t indicate just what make it was. In addition to that, the defendant, in searching his pockets, come up with identification, which was a Social Security card, did display certain items, one being the ring and the other being a watch, the wrist watch. I think that the evidence with respect to the ring, the wrist watch, the radios, and the make of the radio fall within proper view of the officers were permitted. With respect to the serial number, which is quite a different situation, the officer had to take the radio, hold it up, look at it carefully to obtain a serial number. The Court will construe that to be a seizure and, therefore, will not permit the State to introduce evidence of the serial numbers.

At trial the police were permitted to testify regarding the items that were observed in appellant’s possession at the time of the stop, i.e., the Realistic Radio, the lady’s wrist watch and a ring.

In Terry v. Ohio, 392 U.S. 1 (1969) apparently relied on by the trial court in denying appellant’s motion to suppress, except as to the serial number on the radio, the Supreme Court "recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized that person.’ ” Id. at 16. The court further recognized the narrow authority of police officers who have reasonable and articulable suspicion of criminal activity to make a limited stop of an individual based on less than probable cause.

According to appellant the police, in stopping him, acted on an "inchoate and unparticularized suspicion or hunch” in violation of Terry — as evidenced by the following colloquy:

Q. Was there any specific reason why you followed Mr. Martin?
A. Let’s say just general action at the time, and the way he kept looking back to see if someone was following him, and the reason that he was carrying two radios and neither of them was playing. And just small things, such as that, that I just took a shot in the dark to see what he was doing. He looked unsure of himself, which way he wanted to go.

In support of his contention that the stop was not based on a reasonable suspicion that he had committed or was about to commit a crime, appellant relies on Anderson v. State, 282 Md. 701v (1978). There, the police were investigating a robbery committed six days earlier by a "Mutt and Jeff’ team of two black males. During the investigation the police observed two black males — one tall and one short — walking in the neighborhood allegedly frequented by one of the robbers. The police were in plain clothes and driving an unmarked vehicle. As the vehicle passed these two men they walked in the other direction looking back a number of times at the unmarked police car. The officers turned the car around, pulled up next to the defendant and his companion and proceeded to conduct a "stop and frisk.” The defendant, who was holding a brown paper bag, was told to put it on the car; as he placed the bag on the car the police officer heard a metallic thump or click. After the pat-down, the police opened the bag and found a chrome-plated revolver. It later developed that the defendant and his companion were not the persons who committed the prior robbery. Defendant, however, was tried and convicted on the handgun charge. The Court of Appeals, in reversing, noted:

Here, there were no facts from which it could be reasonably inferred that Anderson was the person the police officers were seeking, and- hence that he was armed and dangerous. To arrive at such an inference from the tenuous facts that a tall and a short black man are seen together leaving a group, six days after a robbery committed by a tall and a short black man, in a neighborhood one of the alleged robbers is said to frequent, even when coupled with the fact that they looked back several times toward an unmarked police car, is wholly unreasonable. Indeed, to say that such facts constitute 'reasonable suspicion’ would be perilously close to entitling a policeman 'to seize and search every person whom he sees on the street.’ Id. at 707.

Consonant with this view see In re Appeal No. 113, 23 Md. App. 255 (1974) and Gibbs v. State, 18 Md. App. 230 (1973). In those cases this Court held that the predicate for the stop of the defendant lacked reasonable and articulable suspicion under the guidelines of Terry. But see Watkins v. State, 288 Md. 597 (1980) and Moseley v. State, 209 Md. 571 (1981) where the Court of Appeals held that the police officers had reasonable suspicion under Terry to forcibly stop the defendant.

Although the State contends that the furtive behavior of appellant, while carrying two radios, was a sufficient basis under Terry to justify the stop, we conclude, in view of the rationale of Anderson v. State, supra, In re Appeal No. 113, supra and Gibbs v. State, supra, that the predicate for the stop did not give rise to a reasonable and articulable suspicion that appellant had committed, was committing or about to commit, a crime as required by Terry. Thus, the evidence was insufficient to justify a Terry-type stop. This, however, does not end our inquiry.

The State argues in the alternative that appellant’s encounter with the police was not a seizure of his person nor an intrusion on his Fourth Amendment rights. We agree. While the Supreme Court in Terry held that whenever a police officer accosts an individual and restrains his freedom to walk away he has seized the person, the Court noting the "rich diversity” of police-citizen encounters also observed: "Obviously, not all personal intercourse between policemen and citizens involve 'seizures’ of persons. Only when the officer by means of physical force or show of authority has in some way restrained the liberty of a citizen may it be concluded that a seizure has occurred.” Id. at 19, n. 16. See United States v. Wylie, 569 F. 2d 62, 67 (D.C. Cir. 1977) where the Court, in reliance on the above-quoted language from Terry observed:

But police-citizen communications which take place under circumstances in which the citizen’s 'freedom to walk away’ is not limited by anything other than his desire to cooperate do not amount to 'seizures’ of the person, and consequently may be initiated without a reasonable, articulable suspicion, much less probable cause.

In United States v. Mendenhall, 466 U.S. 544 (1980) two drug enforcement agents stopped a woman in the concourse of an airport because they believed her behavior was typical of a person carrying illegal drugs. The agents, after identifying themselves, asked her for some identification and her airline ticket. After observing that the airline ticket and her driver’s license bore different names, the agents returned them and asked her if she would accompany them to the airport office for further questioning. On arrival at the office she consented to a search, and drugs were found on her person.

On certiorari, the central inquiry before the Supreme Court was the same as that presented in the instant case, i.e., whether the initial stop of the defendant violated the Fourth Amendment. A majority of the Court in an opinion by Justice Stewart agreed that the Fourth Amendment had not been violated by the stop. Two members in the majority opinion held that the encounter between the agents and the defendant in the airport did not constitute a seizure within the meaning of the Fourth Amendment. The other three members in the majority opinion did not reach this issue because it was not considered below. They assumed that the stop did constitute a seizure but did not violate the Fourth Amendment since it was based on reasonable suspicion of criminal activity. In articulating the test for a seizure, Justice Stewart said:

We adhere to the view that a person is 'seized’ only when, by means of physical force or a show of authority, his freedom of movement is restrained. Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards. The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but 'to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals. ... As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person’s liberty or privacy as would under the Constitution require some particularized and objective justification. Id. at 553-554. (Citations omitted)

And in finding that no seizure occurred, Justice Stewart stated:

The respondent was not seized simply by reason of the fact that the agents approached her, asked her if she would show them her ticket and identification, and posed to her a few questions. Nor was it enough to establish a seizure that the person asking the questions was a law enforcement official. ... In short, nothing in the record suggests that the respondent had any objective reason to believe that she was not free to end the conversation in the concourse and proceed on her way, and for that reason we conclude that the agents’ initial approach to her was not a seizure. Id. at 555. (Citations omitted)

Accord United States v. West, 651 F.2d 71 (1st Cir. 1981).

The case of Brown v. State of Texas, 443 U.S. 47 (1979) is inapposite. In that case the police stopped Brown in an alley and requested identification. When he refused he was frisked, arrested and taken to the police station. The Supreme Court held that it was a violation of the Fourth Amendment to detain and require Brown to identify himself in the absence of any reasonable suspicion that he was engaged in or had engaged in criminal conduct. In Mendenhall, supra, the Court noted that there was no seizure of Brown until Brown was frisked and arrested.

Returning to the facts in the present case, the following testimony of Detective Donald Worden amply demonstrates that the encounter with appellant did not constitute a seizure of his person:

DEFENSE COUNSEL: Did you ask him what his name was?
A. Yes. We asked him for identification, and he produced a social security card.
Q. He was under arrest at that time; is that correct?
A. No, Sir.
Q. Was he free to go at any time?
A. Yes, sir.
Q. If he had picked up the radios and walked off, what would you have done?
A. My feelings would have been hurt, but I wouldn’t have done nothing else.
* * *
THE WITNESS: I would let him go. He was not physically restrained in any way. He was standing alongside the car the whole time. He had freedom of movement.

Because street encounters between citizens and police officers are "incredibly rich in diversity”, we must evaluate each case in accordance with the particular array of facts presented. Here, the officers approached appellant and asked for some identification. During this encounter, which was over within a matter of minutes, no weapons were displayed, no harsh or abusive language was used, and appellant’s freedom of movement was not restrained. While officers may approach and direct inquiries to citizens without probable cause or without reasonable and articulable suspicion of criminal activity, the citizen may decline to respond to such inquiries and is free to walk away.

Applying the test enunciated by Justice Stewart in Mendenhall to the facts before us, it is manifest that the encounter between the police officers and appellant did not constitute a seizure of his person, nor was it a violation of his Fourth Amendment right. Thus, the challenged evidence was properly admissible at trial.

II.

The further argument of appellant that the court erred in denying his motion to suppress the in-court identification of the victim because the extrajudicial photographic identification procedure was impermissibly suggestive is without merit and requires little discussion.

On the evening of the crime the victim was shown a photographic array consisting of six photographs and she immediately selected the photograph of appellant. After the victim had selected the photograph, Detective Worden said: "That’s fine,” and the victim "kind of got [the] impression” that she had chosen the individual the detective suspected of the crime. This comment by the detective did not render the photographic identification procedure impermissibly suggestive, nor did it taint the in-court identification. In Howell v. State, 18 Md. App. 429, 435 (1973) we said: "It is ... implicit in any photographic viewing that the police are not engaging in an exercise in sheer futility, which would be the case if they did not 'possibly have the person involved.’ ” Accordingly, we find no error.

Judgment affirmed.

Costs to be paid by appellant.