author: Thompson, J.,

text:
    BLUE SHIELD OF MARYLAND, INC. et al. v. THE WARD MACHINERY COMPANY et al. BLUE CROSS OF MARYLAND, INC. v. INSURANCE COMMISSIONER OF MARYLAND
    [No. 1297,
    September Term, 1980.]

      Decided July 8, 1981.

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

      William M. Hesson, Jr., with whom were William P. Englehart, and Nolan, Plumhoff & Williams on the brief, for appellant Blue Shield of Maryland, Inc. Fred M. Gloth, with whom was John A. Picciotto on the brief, for appellant Blue Cross of Maryland, Inc. Stephen H. Sachs, Attorney General, Alan B. Lipson and Patrick C. Smith, Assistant Attorneys General, on the brief, for appellant Insurance Commissioner in Blue Shield of Maryland, Inc. et al.

      David A. Wilson for appellee Ward Machinery Company. Michael L. Cohen, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, and Alan B. Lipson, Assistant Attorney General, on the brief, for appellee Insurance Commissioner in Blue Cross of Maryland, Inc.
   Thompson, J.,

delivered the opinion of the Court.

This case presents two appeals from an order of the Baltimore City Court which affirmed in part and reversed in part an order of the Insurance Commissioner of the State of Maryland, directing Blue Cross of Maryland, Inc. and Blue Shield of Maryland, Inc. to distribute to their group subscribers $3,050,000 which had been accumulated during 1979 as surplus reserves. In the first appeal, Blue Cross is the appellant and the Insurance Commissioner is the appellee; the issue presented is the propriety of the Commissioner’s order directing distribution. In the second, Blue Cross, Blue Shield and the Commissioner are the appellants and the Ward Machinery Company (Ward) is the appellee; at issue is which group subscribers are to share in the distribution, if it occurs.

Md. Ann. Code, Art. 48A, § 355 (b) (6) (1957, 1979 Repl. Vol., 1980 Cum. Supp.) provides that nonprofit health service plans, such as Blue Cross and Blue Shield,

"[Slhall maintain a minimum reserve equal to at least 3% of the subscription charges earned during the prior calendar year as shown on the annual statement filed in the office of the Commissioner. If the Commissioner determines after a hearing that the reserves are excessive in amount, he may order the corporation to submit a plan for distribution of the excess in a fair and equitable method, or in the event the corporation fails to submit such a plan within 60 days, he may compile a plan and order the corporation to implement it. Reserves equal to 2 months of the nonprofit health service plan’s prior calendar year’s claims and operating expenses shall be considered reasonable provided they are in excess of minimum reserve requirements.”

On April 11, 1980, Blue Cross and Blue Shield advised the Commissioner that, during 1979, they had accumulated reserves in excess of those required by law and presented a plan for the distribution of the surplus to their subscribers. Because of underwriting losses projected for 1980, which the companies claimed would extirpate the surplus before the end of the year, Blue Cross and Blue Shield proposed that the distribution be contingent upon the non-occurrence of the projected losses, i.e., if the reserves declined as expected, there would no distribution. Under the Blue Cross-Blue Shield proposal, if distribution did occur, the refunds would be made to the 1979 subscribers who had contributed to the surplus, provided that they had re-enrolled for 1980. A public hearing was held on the proposals on May 19,1980. Ward, which had been a subscriber in 1979 but which had not re-enrolled in 1980, appeared at the hearing and opposed that portion of the plan which restricted refunds to 1980 subscribers; it argued that it was unfair to deny it a share in the surplus, to which it had contributed, because it had not re-enrolled. On June 12, 1980, the Commissioner rejected the proposed contingent distribution and ordered an immediate refund of $3,050,000; however, he accepted as not unreasonable that portion of the plan which limited participation in the distribution to current Blue Cross-Blue Shield subscribers. Blue Cross appealed to the Baltimore City Court from the order directing distribution and Ward appealed from the order that limited participation to current subscribers. The court below dismissed Blue Cross’ appeal, upholding the distribution order, but reversed that portion of the Commissioner’s order which limited participation, ordering that all 1979 group subscribers who contributed to the surplus share in its distribution, regardless of whether they had re-enrolled in 1980. Appeals to this Court followed.

I

Blue Cross argues that the court below erred in affirming the Commissioner’s order requiring distribution of the surplus reserves because it "ignored” evidence that the company’s reserves would be reduced by losses in 1980 to less than the two month level referred to in Art. 48A, § 355 (b) (6). We believe that the court below adequately and correctly disposed of this contention in its opinion, where it stated as follows:

"Blue Cross appeals from that part of the Commissioner’s order requiring it to refund $3,050,000 from its surplus reserves to certain group subscribers. In March, 1980 Blue Cross had submitted to the Commissioner a refund plan of $2,700,000 contingent upon favorable underwriting experience during the first six months of 1980. but at the 5/19/80 administrative hearing, it argued that the refund plan should be rejected or delayed because of underwriting losses during the first three months of 1980. Md. Code, Article 48A. Sec. 355 (b) (6) requires nonprofit health service insurers (such as Blue Cross) to maintain a 'minimum reserve equal to at least 37c of the subscription charges earned during the prior calendar year’; if the Commissioner determines after a hearing that the reserves are 'excessive’, he can order the insurer to submit a distribution plan for the excess 'in a fair and equitable method,’ or he can order a distribution plan himself if the insurer fails to submit one; reserves 'equal to two months of the nonprofit health service plan’s prior calendar year’s claims and operating expenses shall be considered reasonable provided they are in excess of minimum reserve requirements.’ The $3 million plus refund ordered by the Commissioner in June, 1980 would still leave Blue Cross with reserves complying with the 37c of subscription charges requirement as well as the two months of the prior year’s claims and expenses requirement (which is about 167c of subscription charges).
"Blue Cross presented evidence to show that if its first quarter experience in 1980 remained consistent through the rest of the year, then its reserves at the end of 1980 would be below the two month claims and expense figure for 1980. From this, Blue Cross contends that the Commissioner was wrong in ordering the refund now, since that would require a rate increase by the end of 1980.
"Sec. 355 (b) (6), however, does not mandate that the insurer’s reserves at all times be at least equal to the two month claim and expense figure. All the statute requires is that the reserves remaining after the refund be at least equal to the two month claim and expense figure as of the end of the year preceding the refund. The 37c of subscription charge figure must always be maintained, but that is not true of the two month figure. Sec. 355 (b) (6) contemplates a cut-off date for determining the propriety of a refund of an excess surplus, which in this case was the end of calendar 1979. As of that time, excess surplus reserves existed to warrant a refund. The Commissioner can consider projected losses in 1980 in determining whether to order a refund based on 1979 figures, but he is not required to do so. Therefore, the Commissioner’s order did not place Blue Cross below the mandated minimums of Sec. 355 (b) (6). (Blue Cross concedes that the 3% reserve requirement is not jeopardized by the refund order.)
"Whether it was prudent for the Commissioner to order the refund of excessive surplus in light of Blue Cross’ pessimistic projections for 1980 is not reviewable on this appeal, since the Court may not substitute its judgment for that of the Commissioner who acted within the statutory standards. Md. Fire UW v. Insur. Comm’r., 260 Md. 258 (1971). In any event, the Commissioner found that Blue Cross’ testimony as to the possible deterioration of its surplus position in 1980 was not sufficiently convincing to require withholding the proposed refund. This conclusion is amply supported by the evidence, since (i) a Blue Cross witness testified that the first quarter underwriting loss is usually greater than that for the second quarter; and (ii) Blue Cross’ investment earnings more than offset its underwriting loss in the first quarter, which resulted in a net increase in Blue Cross’ surplus position for the first quarter of 1980. The net effect of this evidence is that the Commissioner could reasonably conclude that Blue Cross would be able to meet the two month surplus figure by the end of 1980 (a result not mandated by law) or come close enough to it so as not to deter a refund. There was sufficient evidence to justify the Commissioner’s rejection of Blue Cross’ Doomsday predictions.”

Blue Cross also asserts that the court below erred in affirming the Commissioner’s order because the Commissioner did not comply with the procedure required under Art. 48A, § 355 (b) (6), which provides that: "If the Commissioner determines after a hearing that the reserves are excessive in amount, he may order a corporation to submit a plan for distribution of the excess . .. .” The Company’s objection is that, while a hearing was held by the Commissioner, consideration was allegedly given only to the question of whether the distribution should be immediate or deferred and not to the question of whether reserves were or were not excessive. We are satisfied that the issue as to excessive reserves was properly determined by the Commissioner. Blue Cross had but one argument to make in support of its proposition that its concededly excessive reserves should not be immediately distributed, i.e., that the surplus could be expected to be diminished by year’s end. The Commissioner held a hearing, considered the argument, and rejected it. There is ample evidence in the record to support the Commissioner’s determination that the amount of the surplus was $3,050,000. We see no error.

II

In the second appeal, Blue Cross, Blue Shield, and the Commissioner seek reversal of that portion of the lower court’s order which held in favor of Ward and directed that 1979 subscribers who had contributed to the surplus were to be included in the distribution regardless of whether they had enrolled in 1980. Their initial argument is that Ward had no right to appeal the decision of the Commissioner.

Md. Ann. Code Art. 48A, § 361B provides that judicial review of decisions by the Commissioner involving nonprofit health insurance organizations shall be in accordance with Art. 48A, 8 242B, which provides as follows:

"(1) Hearing before Commissioner. — Any insurer or rating organization aggrieved by any order or decision of the Commissioner under this subtitle made without a hearing, may within thirty (30) days after notice of the order to the insurer or organization, make written request to the Commissioner for a hearing thereon. The Commissioner shall hear such party or parties within twenty (20) days, after receipt of such request and shall give not less than ten (10) days’ written notice of the time and place of the hearing. The hearing shall be concluded within fifteen (15) days from the commencement thereof; provided, however, that the Commissioner, upon application with notice to the interested parties and for good cause shown, may grant additional time, not exceeding fifteen (15) days. Within twenty (20) days after the conclusion of such hearing the Commissioner shall' affirm, reverse or modify his previous action, specifying his reason therefor, and shall give a copy of such order or decision to all interested parties. In the event of the Commissioner’s failure to hold or complete the hearing or to render his order or decision within the period specified herein, the filing or application in issue shall be deemed to meet the requirements of this subtitle and shall be deemed approved.
"The order shall contain specific findings of fact by the Commissioner in relation to the matter before him, such findings to be supported by a preponderance of the evidence on consideration of the record as a whole. Any party may file with the Commissioner proposed findings of fact, to be accepted or rejected by the Commissioner.
"Pending such hearing and decision thereon the Commissioner may suspend or postpone the effective date of his previous action.
"Nothing contained in this subtitle shall require the observance at any hearing of formal rules of pleading or evidence.
"(2) Judicial review of decisions of Commissioner. — All orders or decisions of the Commissioner shall be subject to review by appeal to the Baltimore City Court. Such an appeal shall be commenced by filing a notice of appeal within 30 days after the rendition of such order or decision with such court and a copy of it similarly filed with the Commissioner. If not so commenced, the right to appeal shall no longer exist. The Commissioner shall be made a party to every such appeal.
"Upon filing of a copy of the notice of appeal with the Commissioner he shall prepare or cause to be prepared an official record, which may be in typewritten form, certified by him, which shall contain a copy of all proceedings, the findings and order of the Commissioner, and transcript of any testimony and exhibits or records thereof. If no hearing was held by the Commissioner, on the matter which is the subject of appeal, the Commissioner shall in like manner prepare and certify a transcript of the files in his office pertaining to such matter. Within 30 days after the copy of notice of appeal was filed with the Commissioner he shall file the official record with the court in which the appeal is pending.
"When any ruling, order or decision of the Commissioner relates to an increase or decrease of premiums or rate or to a change in any rating system, the filing of the notice of appeal, pending the final determination of the issue, shall act as a stay of any such ruling, order or decision, except where such ruling, order or decision approves or permits a filing of an insurer or rating organization.
"The Baltimore City Court shall hear and decide the appeal within 60 days after the date of the filing of the notice of appeal, and shall affirm, reverse or modify the Commissioner’s order or decision appealed from.
"If the Baltimore City Court finds that the Commissioner’s order or decision is not supported by the preponderance of the evidence on consideration of the record as a whole, or is not in accordance with law, the court shall reverse or modify the Commissioner’s order or decision in whole or in part.
"An appeal to the Court of Special Appeals may be taken from the decision of the Baltimore City Court as in other civil cases. The Commissioner shall be made a party to every appeal of this nature.
"(3) Application of section; certain sections not applicable to rating and rating organizations. — The provisions of this section shall govern hearings, orders and appeals in matters arising under the provisions of this subtitle. Sections 35, 36, 37, 38, 39 and 40 shall not apply to rating and rating organizations.”

Prior to July 1,1979, Art. 48A, § 361B provided that judicial review of decisions such as that involved here was to be had in accordance with Art. 48A, § 40 which provides for de novo review by the Baltimore City Court and further provides that:

"An appeal from the Commissioner shall be taken only from an order or hearing or with respect to a matter which the Commissioner has refused a hearing. Any person who was a party to such hearing, or whose pecuniary interests are directly and immediately affected by any such order or refusal and who is aggrieved thereby may . . . appeal from such order or hearing or such refusal of a hearing.”

By Chapter 246, Laws of Maryland 1979, the legislature amended § 361B so as to substitute review under § 242B for that under § 40. The appellants argue that this amendment was intended to restrict the right of appeal to insurance organizations. We see no merit in the argument. Subsection (2) of § 242B provides for judicial review of decisions of the Commissioner. There is nothing either expressed or implied in the language of that subsection which would deny Ward’s standing to appeal. We hold that Ward, which appeared before the Commissioner at the hearing, which had a clear financial interest in the outcome, and which was aggrieved by the Commissioner’s decision, had standing to appeal the decision of the Commissioner under Art. 48A, § 242B (2).

Our finding that Ward had standing to appeal of course does not answer the question of whether the court below erred in reversing the Commissioner. The appellants argue that the court exceeded the proper scope of judicial review and impermissibly substituted its judgment for that of the Commissioner. The Commissioner in determining that the companies’ proposal, limiting participation to current subscribers, was not unreasonable, stated:

"The company’s argument is that it should be permitted to share in the refund even though it is not now a subscriber, inasmuch as it contributed during 1979 to the surplus.
"The difficulties with granting this seemingly logical request are two in number. First, it is clear under the law that surplus, once it becomes surplus, does not belong to any particular insured, but belongs to the insurance company and any distribution required cannot be said to be unreasonable so long as the distribution is made to policyholders who are such at the time distribution is made. The Insurance Commissioner is empowered under the Insurance Code only to determine whether the decisions of the insurer are reasonable and not whether he would substitute, as more equitable, his judgment for that of the insurers.
"Second, distribution of the surplus in excess of that deemed by me to be reasonable, on the basis outlined by the Ward Machinery Company, would be nearly an administrative impossibility. Each insured’s contribution would have to be precisely determined for that period of the year during which the group was a subscriber. Complex formulae would have to be programmed for each insured’s relationship to the other, along with exclusion of existing insureds who were not insureds during 1979 or were insureds for only a proportionate part of 1979. To this would be added the problem of turnover of subscriber employees within each group for the year. Given the fact that this would require comparisons among literally thousands of groups, and given the fact that the return for each individual subscriber in each individual group is minuscule, compared with the overall cost of developing such a system as is proposed by the Ward Machinery Company, I conclude the insurer’s plan for distribution not to be unreasonable. Further, I have previously approved similar plans submitted by the insurers for previous distributions which were accepted without protest.”

The lower court set forth its reasons for reversing the Commissioner’s decision as follows:

"The Commissioner justified limiting the eligible recipients to those groups which continued to subscribe in 1980 solely on the basis that to do otherwise 'would be nearly an administrative impossibility.’ There is nothing in the record to support this conclusion. The only evidence bearing on this subject is the testimony of one of the witnesses for Blue Cross-Blue Shield that it is more 'expensive’ to search the records to determine who was a 1979 subscriber. No evidence was presented to back up this statement. Indeed, even under the plan approved by the Commissioner, a determination of those eligible for refunds is no easy matter. The insurer would still have to determine which of its 1980 group subscribers were 1979 subscribers who generated underwriting gains, and the ratio of their contributions to the excessive surplus would have to be calculated. While it is true that the refunds to the current group subscribers could be distributed by a credit against current bills, current subscribers would still have the option of receiving a cash refund. It appears that the only additional time or expense involved in Ward’s proposal is trying to locate those 1979 group subscribers who did not renew in 1980. There is no evidence to suggest that this added burden is more than minimal.”

Although we agree that there was no substantial evidence to support the Commissioner’s finding that there would be undue expense and difficulties in including in the distribution 1979 group subscribers who had not re-enrolled in 1980, we believe the lower court went beyond the proper scope of review. The function of the Commissioner was limited to determining whether the proposed distribution was fair and equitable; the function of the Baltimore City Court was limited to a determination of whether the Commissioner’s decision was legal and whether a reasoning mind could have determined that the factual conclusion reached was proven by the weight of the evidence on the record as a whole. See, Md. Ann. Code Art. 48A, § 242B (2); State Insurance Commissioner v. National Bureau of Casualty Underwriters, 248 Md. 292, 305, 236 A.2d 282 (1967). We think a reasoning mind could determine that the proposed distribution of the insurer’s own moneys was equitable. A substantial portion of the funds Ward claims were available because of investment income, that is to say as a result of surpluses created in many different years before 1979. There is nothing in the record extract to show that Ward’s contributions for the year 1979 exceeded its claims. That the court, or the Commissioner, could devise a plan which was more equitable is irrelevant. We think the trial judge impermissibly substituted his judgment for that of the Commissioner. See, State Insurance Commissioner v. National Bureau of Casualty Underwriters, supra.

Ward argues that, as Art. 48A, § 355 (b) (6) requires distribution "in a fair and equitable method,” the Commissioner erred in finding that the companies’ plan was "not unreasonable.” We believe that this is a distinction without a difference. The Commissioner’s meaning was clear; that he did not express it in the language of the statute is of no consequence.

Order of the Baltimore City Court reversed in part and affirmed in part in accordance with this opinion.

One-half costs to be paid by the Ward Machinery Company and one-half by Blue Cross of Maryland, Inc.

      . The appellants suggest that subsection (1) of this section permits appeal only by an "insurer or rating organization aggrieved.” That subsection plainly has nothing to do with judicial review or the issue of who has standing to appeal; it deals only with the question of when and by whom a hearing before the Commissioner may be requested.

      . The preamble to the bill which enacted the amendment indicated that its purpose was to alter the scope of appeal, abolishing the de novo review by the Baltimore City Court, rather than to limit standing to appeal. Although the preamble is not controlling, it may be consulted as an aid in construction of the statute, see, Dillon v. State, 277 Md. 571, 583, 357 A.2d 360 (1976).


source: Caselaw Access Project

author: Gilbert, C. J.,

license: Public Domain

text:
    ROBERT LAMONT BRYANT and CLEVELAND HAM, JR. v. STATE OF MARYLAND
    [No. 1610,
    September Term, 1980.]

      Decided July 8, 1981.

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

      Arthur A. DeLano, Jr., Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellants.

      Philip M. Andrews, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Sandra A. O’Connor, State’s Attorney for Baltimore County, and Dennis C. Whelley, Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

I.

THE LAW—

The road to a civilized society leads past the use of the "rubber hose,” the "rack,” the "Chinese boot,” and other "third degree” methods of obtaining "confessions” from persons accused of the commission of criminal acts.

Although there may be some remote areas of the country where the "third degree” is still occasionally practiced, it is safe to state that as a general rule the physical abuse aspect of interrogation has been brought to a halt. For discussion of what constitutes an interrogation, see Rhode Island v. Innes, 446 U.S. 291, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980).

The Supreme Court of the United States, in a series of cases, Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964); Leyra v. Denno, 347 U.S. 556, 74 S. Ct. 716, 98 L. Ed. 2d 948 (1954); Malinski v. New York, 324 U.S. 401, 65 S. Ct. 781, 89 L. Ed. 1029 (1945); Ashcraft v. Tennessee, 322 U.S. 143, 64 S. Ct. 921, 88 L. Ed. 1192 (1944); Ward v. Texas, 316 U.S. 547, 62 S. Ct. 1139, 86 L. Ed. 1663 (1942); Vernon v. Alabama, 313 U.S. 547, 61 S. Ct. 1092, 85 L. Ed. 1513 (1941); White v. Texas, 310 U.S. 530, 60 S. Ct. 1032, 84 L. Ed. 1342 (1940); Canty v. Alabama, 309 U.S. 629, 60 S. Ct. 612, 84 L. Ed. 988 (1940); Chambers v. Florida, 309 U.S. 227, 60 S. Ct. 472, 84 L. Ed. 716 (1940); Brown v. Mississippi, 297 U.S. 278, 56 S. Ct. 461, 80 L. Ed. 682 (1936), culminating in the landmark decision of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), has nullified the legality of confessions obtained through duress, whether physical or mental.

In Miranda, the Court, speaking through Chief Justice Warren, said: " 'Since Chambers v. Florida, 309 U.S. 227, this Court has recognized that coercion can be mental as well as physical, and that the blood of the accused is not the only hallmark of an unconstitutional inquisition.’ Blackburn v. Alabama, 361 U.S. 199, 206, [80 S. Ct. 274, 279, 4 L. Ed. 2d 242, 247] (1960).” 384 U.S. at 448, 86 S. Ct. at 1614, 16 L. Ed. 2d at 709.

The Court observed that "[i]nterrogation still takes place in privacy” and that "[p]rivacy results in secrecy,” which leaves "a gap in our knowledge as to what in fact goes on in the interrogation rooms.” Id. In order to minimize the loss of knowledge as to what occurs during the privacy of custodial questioning, while simultaneously assuring, insofar as possible, that any confession is actually voluntary, the Chief Justice, for the Court, spelled out a litany to be read to each arrestee, suspect, or accused before interrogation is commenced.

Miranda mandates that:

"[W]hen an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.” (Footnote omitted). Id. at 478-79, 86 S. Ct. at 1630, 16 L. Ed. 2d at 726.

Chief Justice Warren made clear that "[t|he requirement of warnings and waiver of rights is fundamental with respect to the Fifth Amendment privilege and not simply a preliminary ritual to existing methods of interrogation.” Id. at 476, 86 S. Ct. at 1629, 16 L. Ed. 2d at 725.

Dire consequences were predicted by some law enforcement officers as a result of what they saw as the unwarranted shackles placed upon them by Miranda. Confessions, it was said, would be virtually eliminated. Nevertheless, we have found no statistics indicating that Miranda has reduced the number of confessions, nor do we perceive that it has unduly hampered the police.

The end of what has been styled "the Warren Court” and the beginning of what is now known as "the Burger Court” gave rise to widespread speculation that Miranda would be short-lived. Indeed, in holdings such as Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971), the Court seemed to chip away at Miranda and to be fashioning a coffin for Miranda’s ultimate demise as a viable constitutional force. Miranda critics, and they were numerous, thought that "the outlook was extremely rocky for the . . . [Miranda] nine.” It was just a matter of time, they said, until the "right” case would be heard by the Supreme Court and Miranda would be unlamented past history.

Those prognosticators of Miranda’s expiration must have sustained an intellectual jolt when the Court filed Edwards v. Arizona, 49 U.S.L.W. 4496 (filed May 18, 1981 ).

In that case, Edwards was arrested by Arizona authorities for robbery, burglary, and first degree murder. He was furnished with the Miranda warnings and agreed "to submit to questioning.” He was "told that another suspect already in custody had implicated him in the crime! .1 Edwards denied involvement and gave a taped statement presenting an alibi defense.” Id. Later, Edwards "sought 'to make a deal.’ ” Following an attempt to reach the county attorney on the telephone, Edwards exclaimed, " I want an attorney before making a deal. ’ At that point, questioning ceased and Edwards was taken to county jail.” Id.

The next morning, two other police officers, who were colleagues of the officer that attempted to interrogate Edwards the night before, went to the jail to see Edwards. Edwards replied that he did not want to speak to them. A guard told him that " 'he had’ ” to talk to the officers. The officers identified themselves to Edwards and informed him again of his Miranda rights. Edwards then made an inculpatory statement.

Prior to trial, Edwards moved to suppress the statement and the trial court granted the motion. Arizona, unlike Maryland, permits the State to appeal adverse suppression rulings. On appeal, the Supreme Court of Arizona reversed.

Edwards makes explicit what Miranda made implicit, and that is, when an accused, arrestee, or suspect invokes his constitutional right to have counsel present during any custodial interrogation, all questioning must cease.

The Supreme Court said:

"[Although we have held that after initially being advised of his Miranda rights, the accused may himself validly waive his rights and respond to interrogation, see North Carolina v. Butler,. . . |441 U.S. 369, 99 S. Ct. 1755, 60 L.Ed. 2d 286 (1979)], the Court has strongly indicated that additional safeguards are necessary when the accused asks for counsel; and we now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police.” (Footnote omitted.) (Emphasis supplied.) Id. at 4497-98.

Miranda made crystalline that an accused, arrestee, or suspect was entitled to counsel at any custodial interrogation, unless he or she made a knowing and intelligent waiver of that constitutionally guaranteed individual right.

We read Edwards as laying to rest all speculation that Miranda is dead or dying. On the contrary, Edwards makes pellucid that' Miranda is alive and well.

Edwards does not, in our view, expand upon Miranda’s breadth but, rather, serves to underscore that when an accused, arrestee, or suspect, at any custodial questioning, demands his right to have counsel present, all interrogation must at that point cease until counsel for the accused, arrestee, or suspect is present. Once the right to the presence of counsel has been invoked, the authorities may not thereafter, directly or indirectly, initiate another attempt at interrogation until and unless counsel for the accused, arrestee, or suspect is present.

Edwards makes perspicuous that notwithstanding the prior invocation of the Miranda tenet of the right to the presence of counsel, the accused, arrestee, or suspect may validly waive that right provided the accused, arrestee, or suspect, himself, initiates "further communication, exchanges or conversations with the police.” Id. See also North Carolina v. Butler, 441 U.S. 369, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979). The burden of showing a waiver of Miranda rights rests on the prosecution. "[A] valid waiver of ... [the right to counsel] cannot be established by showing only that... [the accused, arrestee, or suspect] responded to further police-initiated custodial interrogation even if he has been advised of his rights.” (Footnote omitted.) Edwards v. Arizona, supra at 4498.

We think it transpicuous that efforts by law enforcement officers to induce an ensuing waiver of the right to the presence of counsel cannot and will not be tolerated. Violation of Miranda-Edwards will lead to the suppression of any evidence obtained in contravention thereof, except as may be permitted by Harris v. New York, supra. We point out that the bounds of both the Fifth Amendment and Article 22 of the Maryland Declaration of Rights are exactly the same as those of the conduct they seek to prevent. Attempts to manipulate the mental process of the accused, arrestee, or suspect in order to "psych” him or her into changing his or her mind about the presence of counsel are just as devastating to individual rights as is the use of the "rubber hose.” The only difference between the two types of coercion is the matter of the degree of the duress.

We emphasize, even at the expense of redundancy, that Miranda and Edwards mean exactly what they say: once the accused requests the presence of counsel at a custodial interrogation, the Fifth Amendment to the Constitution of the United States of America and Article 22 of the Maryland Declaration of Rights are ipso facto invoked, and all questioning must cease.

Previously, in Wantland v. State, 45 Md. App. 527, 535, 413 A.2d 1376, 1381 (1980), cert. denied, 288 Md. 745 (filed September 4, 1980), cert. granted and judgment vacated, case remanded for reconsideration in the light of Edwards v. Arizona, supra, 29 Cr. L. 3074 (1981), we said:

"[A]n accused may decline to rely upon the safeguards afforded by the Fifth and Sixth Amendments. Consequently, the police may interrogate him. When that is alleged to be the situation, Taj heavy burden rests upon the .. . [State] to demonstrate that the defendant knowingly and intelligently waived his privilegefs]. .. .’ Miranda, supra at 475, 86 S. Ct. at 1628, 16 L. Ed. 2d at 724. 'The courts must presume that a defendant not waive his rights; [so that] the prosecution’s burden [of showing a waiver] is great.. ..’ North Carolina v. Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 1757, 60 L. Ed. 2d 286, 292 (1979). See also Tague v. Louisiana, 444 U.S. 469, 100 S. Ct. 652, 62 L. Ed. 2d 622 (1980). Waiver is not a matter of form, but rather one of fact weighed in the light of the totality of the circumstances. Fare v. Michael C., 442 U.S. 707, 99 S. Ct. 2560, 61 L. Ed. 2d 197 (1979). See also North Carolina v. Butler, supra.
At any suppression hearing, the State must carry the onus of establishing by a preponderance of the evidence that the waiver was voluntary, knowing, and intelligent. Lego v. Twomey,. . . [404 U.S. 477, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972)]; Mulligan v. State, ... [18 Md. App. 588, 308 A.2d 418 (1973)].

We again caution that once the right to the presence of counsel has been made by the accused, arrestee, or suspect, any attempt by the authorities to "spark” the accused’s "own initiative” will contaminate the waiver and render it a nullity. A valid waiver of Miranda Edwards is the root of all admissible confessions or other inculpatory statements.

II.

—THE INSTANT CASE—

A.

Against the Miranda Edwards backdrop, we consider the appeal of Robert Lamont Bryant and Cleveland Ham, Jr.

The appellants were convicted by a jury in the Circuit Court for Baltimore County of rape, perverted practices, burglary, and theft.

The victim testified that she was alone in the apartment of her boyfriend, Jerome Weaver, when she heard someone banging on the door. She looked through the peephole in the door and saw one short man and two taller men standing in the hallway. The shorter man stated that he was looking for a box which was located on a table in the apartment. After receiving assurances that she was in no danger, the victim unlocked the upper of two locks on the door. At that point, one of the men pushed the door in, knocking her against the wall. The victim said that the shorter man hit her in the face and forced her into a bedroom where he raped her. According to the woman, she was raped repeatedly by each of the men and forced to perform fellatio upon them. The men, who had been wearing nylon stocking masks when they entered the apartment, later removed them.

When the culprits left the apartment, they carried away a television set, as well as stereo equipment.

Approximately twenty minutes after that point, the victim noticed police officers outside the apartment. She signaled to them for help. On direct examination, the witness told the jury that she had never seen her assailants before the incident. On cross-examination, however, she admitted having seen one of them, the appellant, Ham, shooting dice with her boyfriend earlier that same evening.

Ham testified in his own defense that he, Bryant, and another person had gone to the apartment of Weaver in order to settle a score with Weaver, who had won Ham’s paycheck in the "crap game.” Weaver, Ham said, used "loaded dice.” Ham further testified that he had sexual relations with the victim, but he had done so with her express consent.

Admitted into evidence, over objection, were partially inculpatory statements made by both appellants during the time that they were detained by police. A third assailant, not a party to this appeal, also made a statement to the officers.

On appeal, Bryant has raised the argument that his statement was taken in violation of Miranda. Both appellants contend that the trial court committed other reversible errors. We shall discuss Bryant’s individual argument first.

B.

The record shows that a pre-trial suppression hearing was held on the question of the admissibility vel non of Bryant’s statement. The testimony of Ham and Bryant differed markedly from that of Officer Michael DiPaula.

DiPaula testified that on the day of the arrest, he read Bryant the Miranda warnings. DiPaula further stated that Bryant indicated that he wanted a lawyer to be present. Interrogation immediately ceased. Bryant and Officer DiPaula, however, remained in a detention room while DiPaula took care of some preliminary procedural matters involving Bryant. Meanwhile, Ham was in the same room and was busy writing out a statement for the police.

DiPaula admitted telling Bryant that the two accomplices were making statements implicating Bryant. DiPaula further admitted to taking Bryant across the hall to a room where the third accomplice was engaged in making a statement. Bryant still declined to make a statement. Officer DiPaula testified that he phoned the public defender’s office so as to obtain an attorney for Bryant, but no attorneys were available at that time, as all public defenders were out on other assignments. He was additionally informed that he would be put into a cell until a lawyer could be contacted. At that point, Bryant decided that he also would make a statement. Prior to the actual making of the statement, Officer DiPaula again read to Bryant the Miranda warnings.

The trial judge said, with respect to the issue of voluntariness:

"I find that he [Officer DiPaula] did not, in fact, say that it would be better for . . . [Bryant] to sign the statement. .. . All he did say was that the other two were signing a statement, and then when the prisoner said, 'Well, I still don’t want to sign one unless an attorney is present,’ the officer said, 'That’s all right. It’s within your rights. You don’t have to sign one.’
The evidence is that then later, five minutes later, the prisoner waived his rights to remain silent which he had asserted twice. He decided he would write a statement anyway. ...
... Well, the law is as I gathered from arguments and as I remember from my own reading of it, that a person who has a Constitutional right to have a lawyer present, and that a person also has the capacity if he is compos mentis, understanding what he is doing, to waive that Constitutional right just as he has the capacity to waive his Constitutional right to a jury trial after once electing to be tried by a jury. And that being the law, I find that having twice asked for an attorney, and the third time having said, well, I’m ready to write a statement without an attorney, that his Constitutional rights are not violated when the officer then takes the statement instead of waiting till the attorney arrives. Under the circumstances present as is revealed by the testimony, I find that the Motion to Suppress ought to be denied. Therefore, I deny the Motion to Suppress.”

The judge was mistaken for the reasons we have stated ante in Part I.

When Bryant exercised his right to have counsel present, all interrogation should have ceased. Instead, it was continued by the officer’s using the ploy of keeping him in the same room with Ham, while Ham wrote a statement and also of taking Bryant into a room where the other accused was making a statement. Such action on the part of the police was obviously calculated to underpin the detective’s statement to Bryant that the accomplices had confessed.

Patently, the detective was endeavoring to cause Bryant to retreat from the Miranda fortress and to surrender his will to the officer because the battle was lost anyhow. It is precisely that type of "persuasion,” duress, coercion, or intimidation that is forbidden by Miranda and Edwards.

The statement of Bryant should have been suppressed. Therefore, we shall reverse Bryant’s conviction and remand his case for a new trial.

C.

Bryant and Ham argue that the evidence was insufficient to sustain the convictions inasmuch as the victim consented to the sexual act. The victim, however, said that she was ravished and forced to commit the perverted acts. The jury obviously believed the victim and not the defendants.

The credibility of the witness is a matter for the trier of fact to weigh and determine. Barnes v. State, 31 Md. App. 25, 354 A.2d 499 (1976). We cannot say that they were wrong in the conclusion they drew from the testimony and from the assessment of credibility. The jury was not required to believe Ham’s exculpatory statement. Wilson v. State, 7 Md. App. 41, 253 A.2d 439 (1969).

Appellants contend that because the victim made contradictory statements with respect to whether she had ever seen the appellant, Ham, before the incident, her testimony is unbelievable. See Bailey v. State, 16 Md. App. 83, 294 A.2d 123 (1972). The law, however, is that if the jury believed the victim, as it obviously did, it could reasonably find, beyond a reasonable doubt, that the appellants were guilty. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Mitchell v. State, 44 Md. App. 451, 409 A.2d 260 (1979).

D.

Lastly, we reject appellants’ allegation that the trial judge erred in not permitting Ham to testify under the "state of mind” exception to the hearsay rule to statements supposedly made by the victim’s boyfriend to Ham shortly after the incident. Appellants aver that such testimony would have bolstered their contention that there had been no rape, and that the injuries to the victim were the result of her having been beaten by her boyfriend when he returned to the apartment.

Hearsay utterances are permitted into evidence for the purpose of showing the state of mind of the out-of-court declarant, and not for the truth of the statement offered. 6 Wigmore on Evidence § 1790 (rev. ed. 1976).

The offered testimony was irrelevant. If the appellants desired to establish that the victim’s "boyfriend” was the person who "beat” her, then they should have summoned the "boyfriend” and obtained his sworn testimony.

Judgments as to the appellant, Bryant, reversed, and case remanded for a new trial.

Costs not to be allocated.

Md. Rule 1082f.

Judgments as to the appellant, Ham, affirmed.

One-half of the costs to be paid by appellant Ham.

      . The term "third degree” came into our language in the 1890’s. Stuart B. Flexner, Hear America Talking 275 (1976).

      . The Court did not proclaim that the written document containing the Miranda warnings and the waiver of those rights be signed by the arrestee, suspect, or accused before a statement can be admitted into evidence. The better practice for the police, however, is, when possible, to obtain such a written waiver.

      . With an apology to Ernest Lawrence Thayer and his immortal, Casey at the Bat.

      . The opinion in Edwards was written by Justice White. Chief Justice Burger filed a concurring opinion on the judgment. Justice Powell concurred in the result, and Justice Rehnquist joined in that concurrence. The other five justices were aligned with Justice White, who interestingly, dissented in Miranda. See 384 U.S. at 526-45, 86 S. Ct. at 1655-64, 16 L. Ed. 2d at 753-64.

      . The facts are taken from the opinion of Justice White in Edwards. That opinion, in footnote 1, explains that Justice White, in turn, took the facts from the opinion of the Supreme Court of Arizona.

      . See Md. Ann. Code art. 27, § 342.


author: Weant, J.,

text:
    LARRY RUDOLPH MIDDLETON and FRED NEL MIDDLETON v. STATE OF MARYLAND
    [No. 1400,
    September Term, 1980.]

      Decided July 9, 1981.

      The cause was submitted on briefs to Morton, Thompson and Weant, JJ.
    Submitted by Alan 11. Murrell, Public Defender, and Louis P. Willemin, Assistant Public Defender, for appellants.
    Submitted by Stephen H. Sachs, Attorney General, Michael A. Anselmi, Assistant Attorney General, and Steven Braun, State’s Attorney for Charles County, for appellee.
   Weant, J.,

delivered the opinion of the Court.

On 11 September 1980, a jury in the Circuit Court for Charles County convicted the appellants Larry Rudolph Middleton and his brother Fred Nel Middleton of robbery. Challenging these convictions in this Court, the Middleton siblings voice the following complaints:

I. [They] were denied the right to be present at all stages of their trial.
II. [They] were denied the right to a fair and impartial trial where the court refused to permit an alibi witness to testify.
III. The trial court’s instructions to the jury contained plain error material to [their] rights.
IV. Appellant Fred Middleton’s sentence was based in part upon an impermissible consideration.

As we shall explain, none of these protestations is meritorious.

1.

At the conclusion of the voir dire examination of the prospective jurors, a discussion ensued at the bench concerning the manner in which peremptory challenges would be exercised. At the close of this conference, counsel for the Middleton brothers moved to strike certain jurors. The appellants now contend that by virtue of their absence from this proceeding they were denied the right to be present at all stages of their trial.

We are convinced that our recent decision in Green v. State, 49 Md. App. 1 (1981), is controlling here. Hence, because the bench conference in question involved only argument on a question of law, the appellants’ presence thereat was not required. Id. at 7-18.

II.

The following quotation captures the essence and the significance of the issue presented in the appellants’ second complaint.

Given the ease with which an alibi can be fabricated, the State’s interest in protecting itself against an eleventh-hour defense is both obvious and legitimate. ... The adversary system of trial is hardly an end in itself; it is not yet a poker game in which players enjoy an absolute right always to conceal their cards until played. [United States v. Barron, 575 F.2d 752, 758 (9th Cir. 1978) (quoting Williams v. Florida, 399 U.S. 78, 81-82, 90 S. Ct. 1893, 1896, 26 L.Ed. 2d 446 (1970))].

With this in mind we shall consider the facts now before us.

After the jury was selected and sworn, counsel for Fred Middleton proffered to the trial court that during the recess following the impaneling of the jury, he discovered a previously unknown, alibi witness, Mrs. Rosalie Rosier. It then was determined that .a member of the jury knew the prospective witness. Although this juror stated that her ability to render a fair and impartial verdict would not be affected by her acquaintance with Mrs. Rosier, the State asserted that had it known that the juror knew a witness it would have moved to strike her. The court deferred ruling on the matter until such a time as the witness appeared in court.

Trial continued and eventually the defense rested. Thereafter, when the supposed alibi witness appeared, the defense requested that it be permitted to reopen its case. The State objected on the ground that Mrs. Rosier’s existence as an alibi witness had not been disclosed to it during the course of discovery; ultimately, the court refused to allow her to testify. On appeal, the brothers Middleton claim that this ruling deprived them of a fair and impartial trial.

We deem this second issue of the Middletons to be an abuse of discretion question because we are persuaded that there was a violation of rule 741 d 3 of the Maryland Rules of Procedure; therefore, in accordance with subsection g of that same rule, it was within the trial court’s power to order whatever sanction it found to be appropriate under the circumstances.

Our research has unearthed several federal cases dealing with an issue similar to that with which we are now confronted, i.e., whether under the circumstances the trial court abused its discretion in refusing to allow an alibi witness to testify. We are inclined to adopt the standard espoused by the Fifth Circuit Court of Appeals in United States v. Myers, 550 F.2d 1036 (5th Cir. 1977), and followed by the Sixth Circuit Court of Appeals in United States v. White, 583 F.2d 899 (6th Cir. 1978). In White, at page 902, the circuit court enumerated the "factors to be considered in determining whether the trial court properly exercised its discretionary power to exclude the testimony of an undisclosed witness.”

"[A] district court should consider (1) the amount of prejudice that resulted from the failure to disclose, (2) the reason for nondisclosure, (3) the extent to which the harm caused by nondisclosure was mitigated by subsequent events, (4) the weight of the properly admitted evidence supporting the defendant’s guilt, and (5) other relevent factors arising out of the circumstances of the case. . .. ([F]ootnote omitted.) [Quoting United States v. Myers, supra, 550 F.2d at 1043 (citation omitted)].

Analyzing the instant case in the light of the listed factors, we are constrained to hold that the trial court imposed a proper sanction.

First, like the trial judge, we hold that the amount of prejudice resulting from the failure to disclose the witness in question until the first day of trial was significant. Had Mrs. Rosier been allowed to testify, the State would have been deprived of an opportunity to interview her and to investigate the veracity of her proposed testimony. More importantly, it would have been denied an opportunity to strike a member of the jury who acknowledged that she was a friend of the prospective witness.

Next, as to the reason for nondisclosure, the record indicates that counsel for the defense, while interviewing a State witness during the noon break on the first day of trial, learned for the first time that the witness’s mother was a potential exculpatory witness. Although counsel would have had the trial court find that the responsibility for the disclosure of said alibi witness rested with the State, that court was not inclined to so assign the burden of disclosure. We concur since we believe that the appellant Fred Middleton, who allegedly was at Mrs. Rosier’s home at the time of the robbery in question, was in as good a position as the State, or for that matter a better one, to reveal the existence of this alibi witness. It is for this reason that rule 741 d 3 contemplates disclosure by the defendant.

We note that the record otherwise does not readily support a finding of impropriety on the part of either the prosecution or the defense for the complained of nondisclosure. Therefore, while the factor of failure to disclose, standing alone, might not necessarily weigh heavily against the appellant, it does when viewed in the light of the previously discussed prejudice to the State; prejudice, which, in the light of Myers’s third factor, could only be exacerbated rather than mitigated in the instant case, since jeopardy had already attached when Mrs. Hosier’s existence as an alibi witness was revealed.

Finally, we look to the weight of the evidence supporting the appellants’ guilt. Here we have the testimony of the victim, and that of the policeman who interviewed him, which testimonies, not suprisingly, are contradicted by that of the appellants and a girlfriend. We, like the circuit court in United States v. White, supra, conclude that since the jurors neither believed the alibi witness who did testify nor the appellants’ versions of the facts, "it is doubtful [that they] would have believed the alibi testimony of an additional witness.” 583 F.2d at 902 (citation omitted).

In summary, having considered the circumstances concerning the undisclosed alibi witness in the case at bar in the light of the factors enumerated in United States v. White and United States v. Myers, supra, we are persuaded that the trial court properly exercised its discretion when it excluded Mrs. Rosier’s testimony.

III.

The instruction to which the appellants take exception reads as follows:

Ladies and gentlemen, you are well seasoned jurors on the verge of ending tenure, so you are accustomed to instructions and accustomed I suspect to the role of The Court in offering instructions in a criminal case.

As you recall from prior exercises, I am sure you know that in a criminal case in the State of Maryland what the judge does at the request of the parties is advisory in nature with regard to the judge’s understanding of the law applicable to the case that you, the jurors, are judges of both law and fact in a criminal proceeding and if you find that the law is other than as the judge suggested to you it is, then it is your perrogative [sic] to act accordingly.

However, I would urge upon you the notion that it is up to you to define the law is different rather than to speculate. But what that all means is that the attorneys in a criminal case distinguished from a civil one are free to argue the law to you as they would have you find it.

Although the appellants concede that they did not object to this instruction, they nevertheless argue that it was plainly erroneous under Stevenson v. State, 289 Md. 167, 423 A.2d 558 (1980), because it invited the jury "to interpret for itself all aspects of the law, both with regard to the 'law of the crime’ and with regard to many federal constitutional rights.”

Whether or not the instruction here is erroneous in the light of the Court of Appeals decision in Stevenson, a decision which was rendered after the close of the trial in the instant case, is a question we do not choose to address. We decline to do so since our reading of the record does not persuade us that we are faced with circumstances that are so compelling or exceptional that we should find plain error, Sine v. State, 40 Md. App. 628, 632-34, 394 A.2d 1206, 1209-10 (1978), cert. denied, 284 Md. 748 (1979); this is especially true since the trial court admonished the jury not to speculate about the law, and since it explained what is meant by the terms "presumption of innocence” and "beyond a reasonable doubt.” Consequently, the appellants’ third contention was not properly before us.

IV.

At Fred Middleton’s disposition it was noted that the presentence investigation report referred to a theft charge for which the appellant had been incarcerated prior to his being acquitted thereof. Feeling that this caused the hearing judge to consider improperly a bald accusation of criminal conduct, the appellant now objects.

While we are inclined to agree with the State that the appellant has waived this objection by not raising it at the trial court level, we note that in any event the objection fails. As the Court of Appeals stated in Logan v. State, 289 Md. 460, 425 A.2d 632 (1981), at page 481, 425 A.2d at 643:

In considering what is proper punishment, it is now well-settled in this State that a judge is not limited to reviewing past conduct whose occurrence has been judicially established, but may view "reliable evidence of conduct, which may be opprobrious although not criminal, as well as details and circumstances of criminal conduct for which the person has not been tried.” Henry v. State, 273 Md. 131, 147-48, 328 A.2d 293, 303 (1974). Indeed, since an acquittal does not necessarily establish the untruth of all evidence introduced at the trial of the defendant, the "sentencing judge also may properly consider reliable evidence concerning details and circumstances surrounding a criminal charge of which a person has been acquitted.” Id.

As a matter of fact the record clearly shows that the trial court did not consider this charge as a conviction but took into account only the failure to reform despite prior incarceration.

For the reasons stated, the judgments of the Circuit Court for Charles County are affirmed.

Judgments affirmed.

Costs to be paid by the appellants.

      . We are comfortable relying on federal cases as authority for our holding relative to this issue since the federal rule concerning alibi witnesses, i.e., Fed. R. Crim. P. 12.1, entitled "Notice of Alibi,” is for all intents and purposes the same as our rule on the subject.


author: Morton, J.,

text:
    IN RE: ANTHONY F.
    [No. 1524,
    September Term, 1980.]

      Decided July 9, 1981.

    The cause was submitted on briefs to Morton, Moore and Mason, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Martha Weisheit, Assistant Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney General, Alice G. Pinderhugh.es, Assistant Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Eric E. Wright, Assistant State’s Attorney for Montgomery County, for appellee.
   Morton, J.,

delivered the opinion of the Court.

After a hearing in the District Court for Montgomery County (Juvenile Division), Anthony F., a juvenile, was found to have committed a number of delinquent acts involving housebreakings and theft. He was committed to the Maryland Training School for Boys. The commitment was suspended and he was placed in the custody of his mother under a program of probation.

In this appeal Anthony F. presents the following questions:

"1. Was Appellant’s confession the product of an illegal arrest?

2. Did the State fail to show by a preponderance of the evidence that Appellant’s confession was voluntary?

3. Was Appellant’s statement obtained in violation of juvenile arrest procedures set forth in Courts and Judicial Proceedings Article, sec. 3-814 (b)?

4. Was the evidence insufficient to sustain the convictions?”

At the hearing on Anthony’s motion to suppress a statement he gave to the police, Officer John Straughan testified that he and another officer went to Anthony’s residence about 9:20 a.m. on January 19, 1980, for the purpose of arresting him. In response to the police knocking on the front door of the residence, it was opened by Anthony’s sixteen year old sister. According to Officer Straughan, he asked her if Anthony was at home and she stated he was upstairs asleep. He asked her to awaken Anthony as they would like to talk with him. Officer Straughan testified: "I don’t remember the exact words but she did invite us in.”

Officer Straughan was not in uniform but he was accompanied by Officer Michael Clinton, who was in uniform. According to Officer Clinton: "... I don’t remember any verbal comment from the young lady. However, she did open the door wide for us to enter.”

When Anthony arrived downstairs, the officers inquired whether his parents were home and were told that his mother was out running errands but would be home later. Officer Straughan left his name and telephone number with the sister and requested that the mother call him upon her return. Anthony was then taken to police headquarters.

The arrest of Anthony was based on information the police had received from two individuals that Anthony had participated with them in burglarizing a number of homes in the area. While it is apparent that the police had probable cause to arrest Anthony, it is conceded that they did not have a warrant for his arrest. It is this lack of an arrest warrant which Anthony argues makes the arrest illegal and any subsequent statements to the police inadmissible.

We start with the recent decision of the United States Supreme Court in Payton v. New York, 445 U.S. 573 (1980), where it was held, at 576:

"[T]hat the Fourth Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment, prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest.” (Citations omitted.)

At the outset we think the holding applies equally to adults and juveniles. See In Re Gault, 387 U.S. 1 (1967). Thus, we are presented with the precise factual issue: was this a nonconsensual entry? The juvenile judge made a specific finding that the entry was consented to by Anthony’s sister and although he thought she was only twelve or thirteen years old, she was competent to give such consent as an occupant of the household. It was later established that the sister was sixteen years old at the time she permitted the police to enter the home.

From our independent review of the evidence adduced below, we agree with the finding of the juvenile judge that the entry of the police into Anthony’s home could not be classified as nonconsensual. The facts surrounding the police entry here in no way resemble those which confronted the Supreme Court in Payton. There the police went to Payton’s apartment for the purpose of effecting his warrantless arrest. When there was no response to their knock on the entrance door, they used crowbars to break open the door and enter the apartment.

In the companion case of Riddick v. New York, 445 U.S. 573 (1980), the police, without an arrest warrant, knocked on the front door of Riddick’s home. The door was opened by Riddick’s three year old son. The police entered, saw Riddick in bed and immediately placed him under arrest. As Mr. Justice Stevens, who wrote the majority opinion, stated, at 583:

"f Although his 3-year-old son answered the door, the police entered before Riddick had an opportunity either to object or to consent.”

The Court observed in Payton, at 583:

"Finally, in both cases we are dealing with entries into homes made without the consent of any occupant.”

It is true that in Riddick the door was opened by his three year old son who obviously was an occupant of the home, but it is clear that the Supreme Court treated him as incapable of formulating a judgment whether to admit or refuse the entry of the police — a postulation self-evidently sound. On the other hand, we think it equally self-evident that a normal sixteen year old young lady, who was certainly an occupant of the house with her mother and brother, is capable of determining whether to resist or consent to the entry of the police into the family household. Here the evidence is uncontradicted that "she did invite us [police] in.” Since we conclude that the juvenile judge was correct in his finding that there was a consensual entry by the police, there was no illegal arrest of Anthony. Accordingly, the exclusion of his statement to the police after his arrest, on the ground of an illegal arrest, is not warranted.

Anthony’s arrest took place on January 19, 1980. The decision in Payton was handed down on April 15, 1980, nearly three months later. Payton should serve as a poignant signal to law enforcement officers that the issue we have discussed could easily be avoided by obtaining an arrest warrant in order to make a routine felony arrest of a suspect.

We cannot agree with Anthony’s second contention that "[t]he State failed to show by a preponderance of the evidence that appellant’s confession was voluntary.” The record shows that when Anthony was arrested in the living room of his home, he was advised of his Miranda rights (.Miranda v. Arizona, 384 U.S. 436 (1966)). He was then taken to a commissioner who advised him of the charges against him and his "rights.” Again, prior to questioning by the police, he was told of his rights. On each occasion he acknowledged that he understood his rights and did not request a lawyer or any member of his family to be present.

Nevertheless, his mother arrived at the police station about thirty-five or forty minutes after the questioning began. She was advised why Anthony had been arrested and that he was being questioned about the charges. According to Officer Straughan:

"I further advised her that she could come in and talk to us about — I mean sit down while I was questioning her son, and I explained to her that it generally did go better, the conversation between myself and Anthony, without her, and she agreed that she would wait out in the lobby.”

He asked her permission to take Anthony "out into the neighborhoods and check and he could point the houses out. At this time she stated that she didn’t want her son to go out with us to actually show us these houses that were broken into. . . .” Officer Straughan also asked her if "she could allow us to check Anthony’s room. She stated no, that she would go home and check for any property that might be there.”

The police officers affirmatively testified that no promises were made to Anthony nor any coercion exercised toward him.

Under our reading of the entire record, we conclude that the State met its burden of showing that Anthony’s statement " 'was the product of a free and unconstrained will which had not been overborne or compelled.’ ” See Walker v. State, 12 Md. App. 684, 696 (1971) and Robinson v. State, 3 Md. App. 666, 672 (1968).

\

Anthony also challenges the admission of his statement because it "was obtained in violation of juvenile arrest procedures as set forth in Courts and Judicial Proceedings Article, Sec. 3-814 (b).” That section provides:

"(b) If a law enforcement officer takes a child into custody he shall immediately notify, or cause to be notified, the child’s parents, guardian, or custodian of the action. After making every reasonable effort to give notice, the law enforcement officer shall with all reasonable speed:
(1) Release the child to his parents, guardian, or custodian or to any other person designated by the court, upon their written promise to bring the child before the court when requested by the court, and such security for the child’s appearance as the court may reasonably require, unless his placement in detention or shelter care is permitted and appears as required by § 3-815, or
(2) Deliver the child to the court or a place of detention or shelter care designated by the court.”

There is nothing in the record to support Anthony’s contention. At the time of his arrest a police officer left his address and telephone number with Anthony’s sister with the request that his mother contact them immediately. The mother arrived at the police station within thirty-five or forty minutes after the police had started questioning Anthony. There is nothing in the record to indicate what disposition was made of Anthony after he had given the statement; and in his brief Anthony points to no specific action on the part of the police which would be violative of the section. Accordingly, we see the statute as no impediment to the admission of Anthony’s statement.

Finally, it is contended that the evidence was insufficient to sustain the convictions. We have examined the record in light of the test for sufficiency of the evidence to sustain a conviction enunciated in State v. Rusk, 289 Md. 230, 240 (1981), and find Anthony’s contention to be without merit.

Judgments affirmed; costs to be paid by appellant.


author: Liss, J.,

text:
    GENE THOMAS MEYER v. STATE OF MARYLAND
    [No. 1536,
    September Term, 1980.]

      Decided July 9, 1981.

      The cause was argued before Lowe, Liss and Wilner, JJ.

      John T. Bell and Elbert R. Shore, with whom were Frank S. Cornelius, Alfred L. Rehder, James R. Clifford, Richard S. Ulf, Andrew Askland and Bell, Cornelius & Shore on the brief, for appellant.

      Diane G. Goldsmith, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, F. Ford Loker, Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City and Charles Lamasa, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

Appellant, Gene Thomas Meyer, was tried and convicted by a jury in the Criminal Court of Baltimore on a one count indictment charging him with solicitation to commit murder.

On June 12, 1980 a hearing was held on appellant’s motion to suppress the evidence. The motion was denied. Trial was scheduled for July 7,1980, along with a motion to reconsider the motion to suppress. Prior to trial, appellant addressed a letter to his attorney of record in which he alleged that associate counsel had notified him that if more money was not forthcoming, associate counsel would not do an effective job representing him at trial. Appellant then advised his attorney that he wished to fire him and obtain new counsel. Appellant appeared at trial with his attorney of record but represented to the trial judge that he did not wish to have his attorney represent him and requested a continuance for the purpose of obtaining new counsel. The trial judge then referred the matter to the administrative judge.

The administrative judge denied appellant’s motion for a continuance on the ground that the last minute request for a postponement was prejudicial to the administration of justice and found no justifiable basis for granting the continuance. The case was referred back to the trial judge for a hearing on the pending motion to reconsider the motion to suppress. The judge inquired as to whether the appellant wanted the motion for reconsideration to be argued by counsel of record (his original attorney). The appellant expressed confusion and an inability to answer the court’s inquiry because he believed that he had fired his original counsel. After some further discussion, appellant agreed to allow counsel to argue the motion. The judge again denied the motion to suppress and the case was sent to another judge for trial.

When the case was called for trial (the same day) the appellant advised the trial judge that he was not represented by counsel and repeated the information given to the administrative judge and requested a 30-day continuance to employ new counsel. The trial judge advised the appellant that only the administrative judge had the authority to grant a continuance under Maryland Rule 746. The court further advised the appellant that his choice was to proceed with his attorney of record or to undertake to represent himself. Appellant replied that he was not able to represent himself and that he did not feel his lawyer would do an adequate job. The court then recessed to allow appellant to think over his choice. After the recess the appellant advised the trial judge he did not want counsel of record to represent him and the judge thereupon signed an order submitted by counsel striking his appearance as counsel of record for the appellant. Appellant stated his objection to being required to represent himself, saying, "Your Honor, I object. There is no way I can sit here properly and defend myself.”

The trial judge then called the public defender’s office which dispatched a lawyer to the courtroom. After being advised of the circumstances, however, the public defender advised the court that in view of the serious nature of the case and his unfamiliarity with the facts, he could not undertake to represent the appellant without some time to prepare the case. The trial judge advised him he was going to proceed without delay.

The trial judge then announced that the trial would proceed with the appellant being required to represent himself. A jury panel was then called and the State exercised its right to strike; the appellant, when asked whether he had any objection to the selection of a particular juror to serve, remained mute and did not participate in any manner in the selection of the jury. The jury was sworn and the trial judge advised the jury that the appellant desired to represent himself. The appellant promptly told the jury and the trial judge of his objection to the court’s statement. He stated, "You have instructed the jury that I want to represent myself. I do not want to represent myself.” Before the first witness was called the judge advised the jury and the parties that where appropriate, he would make objections on appellant’s behalf in order to preserve appellant’s objection to the admission of specific evidence. The record indicates that from time to time during the trial the judge did object on behalf of the appellant, and then overruled it over objection. Appellant presented no evidence on his behalf; did not cross-examine the witnesses, argue to the jury or participate in any degree in the trial. The jury returned a guilty verdict and sentence was imposed. It is from that judgment that this appeal was noted.

Appellant raised the following issues to be decided by this appeal:

I. Did the administrative judge err in denying appellant’s motion for a continuance by failing to allow appellant the opportunity to show good cause as was the standard required for the court’s decision under Rule 746 b?

II. Did the trial judge err in allowing the appellant to be tried without an attorney without making a finding under Rule 723 e that appellant had waived counsel by neglecting to obtain counsel?

III. Even were the trial judge to have made a finding under Rule 723 e, did the lower court err to have found that appellant waived counsel, and therefore, was the appellant tried and convicted in violation of his constitutional right to the effective assistance of counsel?

I.

Rule 746 and its statutory predecessor, Maryland Code (1957, 1976 Repl. Vol.) Art. 27, Sec. 591, were designed to avoid frequent requests by counsel for a continuance which interfered with the orderly disposition of cases. Authority to grant a continuance was vested solely in the administrative judge of each circuit, and parties requesting a continuance were required to demonstrate "extraordinary cause” to justify the request. Shortly before the trial of the appellant, the rule was changed to require a lesser standard; i.e., that the applicant for continuance show only "good cause” to justify the granting of the continuance.

Appellant contends that the administrative judge did not permit appellant adequate opportunity to satisfy the court that he had met the "good cause” standard to justify his request for a continuance. We do not agree. The administrative judge had read the letter of appellant dated June 20, 1980 in which appellant expressed dissatisfaction with counsel of record. He heard the appellant’s version of events at the continuance hearing. He heard the responses of counsel of record and his associate, who denied the allegations of the appellant. The judge was advised by counsel of record that he was prepared to try the case, had his voir dire questions ready, had prepared his request for jury instructions, and had visited the appellant at the Patuxent Institute in preparation for trial. In the light of these circumstances we find no abuse of the discretion vested in the administrative judge by Rule 746 b. See Guarnera v. State, 20 Md. App. 562, 318 A.2d 243 (1974); Brown v. State, 27 Md. App. 233, 340 A.2d 409 (1975).

II. and III.

Appellant concedes that the trial judge complied with the requirements of Rule 723 c and d, which states in pertinent part, as follows:

c. Waiver Inquiry.
When a defendant indicates a desire or inclination to waive counsel, the court may not accept the waiver until it determines, after appropriate questioning on the record in open court, that the defendant possesses the intelligence and capacity to appreciate the consequences of his decision, and fully comprehends:
1. The nature of the charges against him, any lesser included offenses, and the range of allowable penalties including mandatory and minimum penalties, if any;
2. That counsel can render important assistance to him in determining whether there may be defenses to the charges or circumstances in mitigation thereof, and in preparing for and representing him at trial;
4. That if the defendant is found to be financially unable to retain private counsel, the Public Defender or the court would, if the defendant wishes, provide counsel to represent him.
d. Procedure After Waiver Inquiry.
2. If the defendant appears in court without counsel, at any proceeding after his appearance pursuant to section a of this Rule, the court may not proceed before determining whether the defendant at that time desires to waive counsel, or has waived counsel, either affirmatively or by neglecting or refusing to obtain counsel.

He contends, however, that the trial judge failed to comply with subsection e of Rule 723, which provides as follows:

e. Record of Compliance.
The advice of the court given pursuant to sections b and c of this Rule and the finding that the defendant waived counsel pursuant to sections c and d of this Rule shall be made on the record in open court. The docket entries shall affirmatively show compliance with this Rule.

We do not agree. From our own independent review of the record, we conclude that while the trial judge did not flatly rule that the defendant had waived his right to counsel, that ruling is implicit in his statement to the appellant immediately before the beginning of the trial, where the judge stated:

Yesterday, you [referring to appellant] indicated you didn’t want Mr. Seekford [appellant’s counsel of record]. I think I gave you sufficient opportunity to make this decision. You did not want to have him forced upon you. I think I advised you of the perils of proceeding alone. I have made an effort to get the Public Defender in the case. I intend to proceed.

The State admits that the docket entries do not reflect compliance with subsection e of Rule 723. The State suggests, however, that this omission was a purely ministerial failure which can and should be cured by an order to the clerk of the trial court to amend the docket entries to reflect the proceedings which occurred as evidenced by the record.

This still leaves, however, the question as to whether the record discloses that the appellant waived his right to counsel, either affirmatively or by neglecting or refusing to obtain counsel. Rule 723 c.

The Court of Appeals said, in State v. Renshaw, 276 Md. 259, 347 A.2d 219 (1975) that the standard for waiver of the right to counsel is to show that the defendant is competent to waive the right to counsel, and that he knowingly and intelligently has done so after having been made aware of the advantages and disadvantages of self representation. The record supports the conclusion that the trial judge explained the requirements of the latter portion of the standard to the appellant ad nauseam but at no point in the record did the appellant waive his right to counsel. As a matter of fact, the appellant consistently contended that he was not competent to represent himself and that he did desire a lawyer and a 30 day continuance to secure another lawyer to replace his lawyer of record.

Faced with the ruling of the administrative judge that no continuance would be granted, the trial judge on several occasions advised the appellant that he must either proceed with counsel of record or he would be required to represent himself. Appellant refused to accept either of these choices and the trial judge then ordered the trial to proceed. We find no abuse of discretion as to this action by the trial court. However, we conclude that the trial judge erred when he struck the appearance of counsel of record and permitted him to withdraw his appearance from the case before the beginning of trial. Defense counsel, upon being advised by the judge that an order had been signed permitting him to strike his appearance, delivered to the appellant voir dire questions which had been prepared for the selection of the jury, a motion in limine which sought to restrict evidence which might be offered by the State, and proposed jury instructions. There is absolutely nothing in the record which would indicate that the appellant was competent to understand or use this material.

We conclude that State v. Renshaw, supra, is dispositive of this issue. In Renshaw, the appellant advised the trial judge that he was dissatisfied with counsel appointed to represent him and requested the appointment of new counsel. After hearing the appellant’s reasons for the request, the trial judge declined to appoint other counsel and directed the jury trial to proceed. The court then directed counsel as follows:

THE COURT: Gentlemen, Mr. Bathon, I realize what an awkward position you are in and I will explain to the Jury after the case is all over that Mr. Renshaw has elected to proceed without your help. But, if I were you, I would not do anything unless Mr. Renshaw asks you to do it. ... [276 Md. at 263.] [Emphasis in original.]

The record in this case does not support a conclusion that the appellant ever indicated a desire to waive representation and to proceed in proper person. His position from the beginning was that he wanted to be represented by an attorney and his sole request was that he be given an opportuntiy to employ new counsel because he had lost confidence in his previously self-employed lawyer. A request for new counsel is not a waiver of the right to counsel. See United States v. Fay, 364 F.2d 219 (2d Cir. 1966). See also United States v. Woods, 487 F.2d 1218 (5th Cir. 1973); United States v. Curtiss, 330 F.2d 278 (2d Cir. 1964), where it was held that it was erroneous to require a defendant to try his own case without a clear statement that he wished to do so.

The Court of Appeals stated, "In sum, a request for different counsel is not a waiver of the Sixth Amendment right to assistance of counsel.” State v. Renshaw, supra, at 267.

The trial court’s responsibility under circumstances as here related was spelled out as follows:

Where the accused cannot waive the right to counsel, or has not effectively done so, the court must take steps to insure that the accused is represented by counsel even if he professes his unwillingness to have a lawyer. McCloskey v. Director, 245 Md. 497, 504, 226 A.2d 534, cert. denied, 388 U.S. 920 (1967); see United States v. Dujanovic, 486 F.2d 182 (9th Cir. 1973). So also in a case like the one at bar, where the accused fails to waive his right to counsel by making an unequivocal choice, but merely insists on a different lawyer, effective legal representation must be required by the court. Id. at 268.

In the case at bar the trial court had before it competent counsel who had represented the appellant over a period of six months; filed and argued motions to suppress evidence on at least two occasions; was thoroughly familiar with the facts and law of the charges against the appellant; and was fully prepared to try the case. The trial judge elected to permit counsel to withdraw from the case and to leave the appellant without counsel. The court could have required counsel to assume his place at the trial table, even in the face of appellant’s objections, and to offer the appellant whatever legal assistance was appropriate. Under these circumstances, had the appellant refused to accept the legal assistance offered or elected to remain silent (as he did in this case), then his actions might have amounted to a waiver of his Sixth Amendment right to counsel. The trial judge, by permitting counsel’s withdrawal before the beginning of the trial, left the appellant without any legal representation whatsoever despite the appellant’s insistence that he wished to be represented by counsel. Furthermore, the court’s determination that it would interpose an objection to preserve the issues raised in the motions to suppress was not sufficient to protect the appellant’s Sixth Amendment rights. We conclude that the court’s action in permitting counsel to strike his appearance and in directing the trial to proceed without an effective waiver by the appellant of his right to counsel amounted to reversible error.

Judgment reversed.

Remanded for new trial.

Costs to be paid by Mayor and City Council of Baltimore City.

      . We have no quarrel with the administrative judge’s action since the record disclosed that defense counsel had been replaced on one prior occasion at appellant’s request, and there were at least two prior scheduled trial dates which were postponed at appellant’s request.


text:
    IN RE: YOLDANDE L.
    [No. 1588,
    September Term, 1980.]

      Decided July 9, 1981.

    The cause was submitted on briefs to Gilbert, C. J., and MacDaniel and Weant, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Victoria S. Keating, Assistant Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney General, Maureen O’Ferrall, Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and llene J. Nathan, Assistant State’s Attorney for Baltimore City, for appellee.
   Weant, J.,

delivered the opinion of the Court.

The record of the instant case reflects that on 14 July 1980, Yoldande L., the appellant herein, was adjudicated a delinquent by the Circuit Court for Baltimore City, sitting as a juvenile court. Thereafter, by court order dated 22 July 1980, Yoldande L. was placed on probation under the supervision of the Juvenile Services Administration for a six month period.

Approximately two months later, on 29 September 1980, there was filed in the Circuit Court for Baltimore City a claim for restitution. A hearing on this matter was had before a juvenile master on 13 November 1980 and a judgment of restitution was entered against Yoldande L. in the amount of $96.00. Because an exception to the master’s restitution order was thereafter filed, a hearing was had before the circuit court, sitting as a juvenile court, on 5 December 1980. On that date Yoldande L.’s exception was denied.

In bringing the instant appeal, the juvenile in question raises the same issue she raised below, namely: It was error to conclude that the order of restitution was not illegal as untimely or so inordinately late as to deny her due process. For the reasons stated, we agree with the essence of the appellant’s contention.

While section 3-829 of the Courts & Judicial Proceedings Article of the Annotated Code of Maryland authorizes a court to order that a juvenile make restitution, it does not specifically provide for a time frame in which this is to be done. Instead, subsection c of that rule states: "A judgment of restitution against a parent may not be entered unless the parent has been afforded a reasonable opportunity to be heard and to present appropriate evidence in his behalf. A hearing under this section may be had as part of an adjudicatory or disposition hearing for the child.” For more specific time requirements relative to this matter, we turn to Maryland Rules 915a and 918a. Rule 915a provides that "[i]f after an adjudicatory hearing the court determines that the allegations of the petition at issue in the adjudicatory hearing have been sustained, it shall promptly schedule a separate disposition hearing. The disposition hearing shall be held no later than thirty days after the conclusion of the adjudicatory hearing.” Rule 918a provides that

[i]f, at any stage of a proceeding, the court believes a respondent has committed acts for which his parent or parents may be liable under section 3-829 of the Courts Article, the court shall summon the parent or parents in the manner provided by Rule 104 (Service of Process — Generally) or Rule 116 (Execution of Process by Private Person) to appear at a hearing to determine liability. This hearing may be conducted contemporaneously with either an adjudicatory or disposition hearing, and shall be held not later than thirty days after the disposition hearing.

Admittedly Rule 915a does not, on its face, address the issue of the time by which the matter of restitution must be resolved. On the other hand, Rule 918a clearly concerns itself with this issue, as is evidenced by its provision that "[t]his hearing may be conducted contemporaneously with either an adjudicatory or disposition hearing, and shall be held not later than thirty days after the disposition hearing.” Here, however, there is a delimiting phrase, to wit, "this hearing.” A reading of the rule in its entirety persuades us that "this hearing” refers only to hearings conducted for the purpose of determining the liability of the juvenile’s parent or parents. Hence, there is lacking in the rules, or so it would seem, a time frame relative to disposition of restitution proceedings where only a juvenile is involved. We say "or so it would seem” because we believe that the rules do so provide.

As we indicated earlier, Maryland Rule 915a sets out a time sequence with regard to the disposition hearing. We think this rule and the time limits provided therein control our resolution of this appeal. We are so persuaded after having consulted various lexicons. The first, The Random House Dictionary of the English Language 414 (unabr. ed. 1979), gives as one of its definitions of "disposition” the following: "[F]inal settlement of a matter.” Further, "disposition” is accorded the following meaning at page 423 of Black’s Law Dictionary (5th ed. 1979): "In a criminal procedure, the sentencing or other final settlement of a criminal case.”

The above-recited definitions convince us that the matter of restitution should be considered and resolved no later than at the juvenile’s disposition hearing. To hold otherwise creates an illogical result, i.e., the disposition proceeding is dispossessed of its dispositional nature, in that the final settlement of the matter is no longer final, but only becomes so when and if the matter of restitution is concluded. Rather than strip disposition proceedings of their finality, we think it more pragmatic, and also more equitable, to say that the matter of restitution by the juvenile be resolved before or during the disposition proceeding. This, we conclude, is what is intended by the rules of procedure.

Accordingly, the Circuit Court for Baltimore City erred in denying Yoldande L.’s exception to the juvenile master’s Judgment of Restitution.

Judgment reversed.

Case remanded with instruction to dismiss Judgment of Restitution.

Costs are not reallocated as part of the judgment of this court in accordance with Maryland Rule 1082 f.