author: Lowe, J.,

text:
    DIANE MARIE SOUFFIE v. STATE OF MARYLAND
    [No. 577,
    September Term, 1981.]

      Decided January 11, 1982.

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

      Edward F. Houff, with whom was Alfred L. Scanlan, Jr., Assigned Public Defender, on the brief, for appellant.

      Ann E. Singleton, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Paul S. Podolak, State’s Attorney for Cecil County, and John L. Scarborough, Assistant State’s Attorney for Cecil County, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Diane Marie Souffle was convicted by a jury in the Circuit Court for Caroline County of second degree murder, robbery, robbery with a deadly weapon, use of a handgun in the commission of a felony, and battery. She was found not guilty of felony murder, assault and transporting a handgun. Because the jury could not agree on first degree murder, the trial judge declared a "mistrial” as to that count. The victim was a young man who (while driving a van) picked up appellant and her friend Pamela Brooks, with whom appellant was hitchhiking. The three became better acquainted during their rambling wanderlust when appellant and the victim had sexual intercourse in the back of the van; but their relationship deteriorated after appellant and her friend each shot the victim in the head with a derringer carried by Brooks. Appellant takes issue with the State’s contention that the intercourse was consensual and the murder motivated by robbery, arguing that the content of one of her statements to the police generated a self-defense issue because she indicated that she had shot the victim after he had raped her.

I

Predominant and preliminary among the eleven issues raised by appellant is the admissibility of the pretrial statements which she made to the police in the early morning hours following her arrest. She contends that there was no probable cause for her arrest, after which the statements were elicited (see Ryon v. State, 29 Md. App. 62, 71-72 (1975), aff’d, 278 Md. 302 (1976)), and that the statements were taken in violation of her Miranda rights as explicated in Rhode Island v. Innis, 446 U.S. 291 (1980) and in Bryant v. State, 49 Md. App. 272 (1981).

Because our independent review of the record satisfies us that the police had abundant, if not overwhelming, probable cause to obtain the warrant for the arrest of appellant, we need not address the criteria of admissibility set forth in Ryon, supra, for a statement given while in custody as the result of an improper arrest. During our extensive review, however, we were assured that even those criteria would have been satisfied had the State lacked probable cause to arrest. The quantity of information contained in the record is so extensive that to set it out in what will be an overly long opinion would distract from the impact of the narrower legal issues raised by appellant and serve no purpose sufficient to offset that distraction.

The second half of the bifurcated confession-suppression issue is one recently addressed by the Supreme Court, the Court of Appeals and ourselves. Seemingly, such architects would provide a carefully constructed legal foundation; but regrettably, we have left cracks in the floor which must be filled or fallen through on a case by case basis. Vines v. State, 285 Md. 369, 376 (1979). Perhaps because the appellate courts (including the Supreme Court) have been so involved with the judicial dissection and legal definition of a single Miranda sentence, we sometimes overlook the fact that before the legal formulae can be applied, a factual determination must be provided against which the formulae may be used as a measure. Because even a single witness’s testimony may be subject to different interpretations, appellate judges must defer to their trial level brethren whose determinations arise from personal observations, voice inflections, nuances and physical reactions to examination and cross-examination.

Thus, when determining on appeal whether the facts constitute a custodial interrogation, we must accept the trial judge’s conclusions unless the record indicates a clear interpretive error. Md. Rule 1086. An example of such clear error was manifest in Bryant v. State, supra, although we addressed the error there . as indicative of a legal misunderstanding by the trial judge, rather than a clearly erroneous factual determination. Despite a "markedly” different version of what occurred as related by appellants in that case, id. at 281, we looked only at the officer’s testimony (most favorable to the State) and still found his conduct — however one interpreted his testimony — to have been an interrogative "ploy”. Id. at 283.

"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 [codefendant] 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 [v. Arizona, 451 U.S. 477, 68 L.Ed.2d 378 (1981)].”

—the first statement —

Appellant in this case attempts to draw a factual analogy with Bryant, hoping to obtain a similar result. Between her arrest and her first statement, however, she was admittedly provided repeated Miranda warnings. She did not invoke a right to counsel nor did she indicate a desire to remain silent. On the contrary, according to the testimony of Trooper Samuel Pierce, which appellant summarizes in her brief, she

"indicated she would like to tell what happened, however, she had been talking with Mr. Ball’s attorney, Gene Herman, and he advised her that she didn’t have to talk if she didn’t want to.”

Appellant was arrested at the residence of Robert Ball, whose attorney she telephoned before she was taken to the police station. The attorney, Gene Herman, offered the above gratuitous advice even before the police did so in a more formal manner. The attorney subsequently called the police station and explained to Trooper Pierce that he would not be able to represent appellant because he was a friend of the victim’s family.

Because of appellant’s ambivalence between her desire to speak and Herman’s advice, the officer informed her of Herman’s call and explained that "she would have to take the advice he gave her as just that, advice, and that the final decision whether or not to speak with us still rested with her.”

Trooper Pierce further stated that:

"After that, I just left her with that thought and continued on explaining, in detail the charges and the status of the investigation we had developed, who the information had come from, the implications that were laid out in the statements from Brooks, Randall Brooks and Bill Campbell.”

Those implications must have been disconcerting. Appellant became nauseous, hurried to the bathroom and returned fifteen minutes later, at which time she "blurted” (according to the State) that "she had been with the Waddell boy, or with the boy, and that he had raped her and that she had shot him.”

Appellant’s reliance upon Bryant (which relied upon Edwards v. Arizona, supra) is totally misplaced. Both Bryant and Edwards relate to who instituted a reinterrogation after the fifth amendment right identified in Miranda (to have counsel present at any custodial interrogation) had been invoked. Rhode Island v. Innis, supra, also mentioned in Bryant, is somewhat more on target, but that, too, misses the mark. Innis dealt with what Miranda meant by "interrogation”, or its "functional equivalent” which may consist of any "words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Id. at 301. See generally Leuschner v. State, 49 Md. App. 490 (1981).

But it does not appear at that juncture of this case, that it was yet necessary to decide who had initiated a phase of an interrogation (Edwards) or even if there was an interrogation (Innis). Both of these refinements presuppose that an individual has indicated in some manner, at some time prior to or during questioning, that she wished to remain silent, at least until she was provided counsel. It is only then that an interrogation must cease. Miranda, supra at 473-474. At no time prior to her first statement did appellant, in any manner, indicate her desire to remain silent. At best she equivocated, explaining her ambivalence because of the advice of her affectionado’s attorney. The questioning officer appears to have taken her remark not as a request that the interrogation cease, but merely as a passing comment. See, e.g., Frazier v. Cupp, 394 U.S. 731, 739 (1969). The information conveyed regarding his representative status and the admonition that appellant must herself decide whether to speak did not convert the subsequent remarks into a "product of compulsion, subtle or otherwise”, such as to overcome her "free choice”, in producing a statement even if "the privilege [to remain silent] ha[d] been once invoked.” Miranda, supra at 473-474; and see Frazier, supra at 739. The officer testified that she had not only indicated a desire to tell what happened, but he further stated that if she had ever told him that she did not want to talk to him, the interview would have ended. She did not contradict that — she did not even testify at the suppression hearing. The officer is undoubtedly whom the judge believed and with nothing to weigh against that testimony, we cannot say that the judge was in error.

Absent an invocation of the Miranda rights, we must determine, however, whether appellant had waived them, since there was no'express written or spoken waiver. While we are admonished in Miranda that waiver may not be presumed from a silent record, id. at 475, after more than a decade of experience, the Supreme Court has explained that the heavy burden of proving waiver need not be restricted to an express waiver by a defendant but may be inferred from the evidence of the circumstances of the interrogation. In North Carolina v. Butler, 441 U.S. 369 (1979), the Court said:

"That [waiver may not be inferred by a silent record] does not mean that the defendant’s silence, coupled with an understanding of his rights and a course of conduct indicating waiver, may never support a conclusion that a defendant has waived his rights. The courts must presume that a defendant did not waive his rights; the prosecution’s burden is great; but in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated.” Id. at 373.

See also Leuschner v. State, 45 Md. App. 323, 329, cert. denied, 288 Md. 738 (1980), vacated, 451 U.S. 1014, 69 L.Ed.2d 385 (1981).

Here the uncontradicted facts show that appellant indicated a desire to give a statement, hesitating only because of advice by one who was not — and declined to become — her lawyer.

"Q Well, when she told — in other words, she told you, when you read her her rights, that she had talked to a lawyer and that lawyer had told her she didn’t have to say anything, is that correct?
A That’s correct.
Q And did she tell you that she wanted to go along with that?
A She told me she wanted to tell me her version.”

That the officer, at this preliminary stage of arrest, continued to explain the nature of the charges and the basis for her arrest is not, under the circumstances, indicative of an interrogation. The officer left the accused with the thought that she must decide whether to waive or invoke the Miranda rights. She was then provided the opportunity to leave the room, presumably to recover from a wave of nausea and to reflect upon her dilemma. Upon her return, without urging or solicitation by the officer, she immediately and voluntarily issued the first oral statement. Here, as in Butler and Leuschner, both supra, the words and actions of the appellant clearly implied a knowing and intelligent waiver of the rights of which she was admittedly advised.

— the second, more damning, statement —

It is factually significant, we believe, that following this "blurted” first statement, appellant was visited briefly by her codefendant, Pamela Brooks, after which appellant asked, and was permitted, to return to the detention cell and rest. After about an hour the officer went to appellant’s cell and asked if she was ready to "continue” her statement. She indicated that she was, and the officer repeated the Miranda warnings. Twenty minutes later as the officer again repeated the Miranda warnings, appellant indicated that she did not want to make any statement "at this time”, saying "I’m confused at the moment. I want some time to think about it.” The officer terminated his questioning of her immediately and returned her to the detention cell again, providing her the time requested "to think”. While this conduct gave credence to the officer’s former declaration that he would have terminated his questioning if appellant had so indicated, what subsequently transpired again raises the ghost of Innis and Edwards.

After allowing appellant about an hour’s contemplation, at about 5:30 a.m., the officer decided to process appellant for transfer to the county jail. During the course of processing, the officer told her that Brooks had made a statement resulting in Brooks’ charges having been reduced to obstruction of justice. He also told appellant that Brooks had implicated her in the murder and that appellant was "the only person being charged with first degree murder.” Appellant became "rather angry” and, stating that she wanted to give a statement, she again asked for time "to get her thoughts together”. The officer returned her to her cell where she remained for approximately forty-five minutes.

At about 6:30 a.m. the officer again brought appellant out of the cell and asked if she was ready to give the statement. She replied in the affirmative, was again read her Miranda rights and replied:

"I want to tell you what happened. I don’t want you writing anything. I just want to tell you what happened.”

Appellant did just that for approximately an hour and a half. The officer once again repeated the Miranda warnings (for at least the fifth time), after which appellant gave him a written statement.

In her brief, appellant is primarily preoccupied with whether the information given to her by the officer about Brooks’ alleged "deal,” which elicited the second statement, was an "interrogation” as defined by Innis. Because that interrogative device receives frequent use among investigators, it should be addressed. It is not altogether dispositive, however, because this argument also presupposes an invocation of the right to remain silent or to have counsel present.

The officer’s recitation obviously was intended to elicit whatever facts could be jarred loose by a codefendant’s apparent cop-out in exchange for leniency. After already having outlined the status of the case and the basis for the charge upon arrest, surely no factfinder, however naive, could believe that a police officer discloses step-by-step investigatory matter discovered in a murder case to a suspect beneficently to encourage her to decide to invoke her Miranda rights, as conversation for the amusement of the accused, or even as casual gossip. The purpose was to "induce disclosures” and no other inference is reasonably suggested. In fact, the very contrary is reflected in the accused’s transcribed statement, which the recital elicited.

"Q. Why did you decide to tell this to Trooper Pierce?
A. Because after asking him questions it seemed like it couldn’t get any worse. Just being quiet wouldn’t help any everybody else was giving statements. It seemed only fair that I tell my side of it.”

We have addressed this issue because the attorney general reminds us of our prior discussions of the same practice in Leuschner v. State, 41 Md. App. 423, cert. denied, 444 U.S. 933 (1979); Vines v. State, 40 Md. App. 658 (1978), aff'd, 288 Md. 361 (1979); Cummings v. State, 27 Md. App. 361, cert. denied, 276 Md. 740 (1975); Howell v. State, 5 Md. App. 337 (1968), cert. denied, 253 Md. 734, cert. denied, 396 U.S. 907 (1969). Each of these cases involved statements or conduct of the police conveyed to the accused with the apparent, if not obvious, purpose of showing the futility of continued silence after a Miranda election was conveyed to the police. In each there is a holding or expression that:

"Appellant’s response to such police information was not the product of an interrogation, either direct or subtle, but was more in the nature of volunteered information.” Howell, supra at 338-339.

In Howell, the accused was informed that the person accused with him had admitted Howell’s participation in the burglary. In Fellows, appellant was told that his statement did not coincide with other police information; we cited Howell for the principle that the accused’s response that "[t]his time I’ll tell you the truth” was not the product of interrogation either subtle or direct, but more in the nature of volunteered information. In Cummings, the accused did not inculpate himself in direct response to formal questions but "gratuitously” offered an inculpatory parting comment after signing a more innocuous formal statement. There too, we relied on Howell (among others), for the proposition that the response was in the nature of volunteered information. Similarly in Humphrey v. State, 39 Md. App. 484, 491, cert. denied, 283 Md. 733 (1978), which was not included in the attorney general’s list, we held that a police officer telling an accused that he had "just found the gun” after the accused had invoked his right to silence was not an interrogation. Then, in Vines we stretched the Howell philosophy a little farther, holding that a police officer’s exhibition of contraband seized from appellant’s house did not constitute an interrogation, despite the officer’s admission that it was intended to invoke an incriminating response. Id. at 668-669, Lowe, J., dissenting.

When the Court of Appeals reviewed Vines v. State in 285 Md. 369 (1979), it elected to address the question as "psychological coercion,” treating it primarily as a fourth amendment issue of voluntariness in the traditional sense. It did not avoid the Miranda (fifth amendment) question entirely, however, holding,

"that in the circumstances of this case, there was no 'interrogation’ within the meaning of Miranda to invoke its application.” Id. at 382.

Significantly, none of these cases were addressed in the light of Rhode Island v. Innis, 446 U.S. 291 (1980), which had not yet been decided.

Innis exclusively addressed interrogation as conceptualized in Miranda explaining that

" 'Interrogation’, as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself.”

But that non sequitur helps very little. In fact when viewed against the case’s conclusion, it adds to our quandary rather than to our elucidation. Between that platitude and the peculiar result in Innis, however, the Court did provide some helpful guidelines which may be summarized in a single sentence from that case.

"We conclude that the Miranda safeguards come into play whenever a person in custody is subject to either express questioning or its functional equivalent.” Id. at 300-301.

Prong one — express questioning — is self-evident, and not the problem we presently face. The only "express questioning” ("are you ready to continue with your statement”) was ended promptly whenever appellant indicated, albeit equivocally and temporarily, that she wished to terminate the inquiry. The applicable issue here is whether the officer’s narrative concerning Pamela Brooks was the "functional equivalent” of an interrogation.

The Supreme Court explained that the "functional equivalent” of an interrogation was

"any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Id. at 301.

Cautioning that police surely cannot be held accountable for the unforeseen results of their interrogations, the Court made clear its holding that:

"A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation.” Id.

Although Innis suggests that we focus primarily upon the perceptions of the suspect to make that determination, it acknowledges the relevancy of police interest as well.

"In Brewer v Williams, 430 US 387, 398-399, 51 L Ed 2d 424, 97 S Ct 1232, the Court applied the 'deliberately elicited’ standard in determining that statements were extracted from Williams in violation of his Sixth Amendment right to counsel. Although this case involves Fifth Amendment rights and the Miranda rules designed to safeguard those rights, respondent’s invocation of his right to counsel makes the two cases indistinguishable. In both cases the police had an unqualified obligation to refrain from trying to elicit a response from the suspect in the absence of his attorney. See Kamisar, Brewer v. Williams, Massiah, and Miranda: What is 'Interrogation’? When Does it Matter?, 67 Geo LJ 1, 73 (1978).” Innis, supra at 310, n. 7, (Stevens, J., dissenting).

That footnote alone may well have altered the result in Vines, supra, but no admission of purpose or motive was admitted here by the police as was so in Vines. What other purpose can there be for such a narrative addressed to a suspect than to elicit a response by using that emotional impetus? It is impossible to draw any conclusion as to purpose other than that which was effected.

But the use of an emotional impetus was not banned by Innis. Quite to the contrary, the Court carved out an exception to the "functional equivalent” of interrogation definition it had created that involved even more of a stimulus than an "emotional impetus”, which it denominated "subtle compulsion”. In Innis, "subtle compulsion” was used by the police to locate a sawed-off shotgun used in a robbery committed by a suspect they had just apprehended in the vicinity of a school for handicapped children. The accused had invoked his rights to both silence and counsel, so the two police officers driving past the school talked "back and forth” to each other (rather than to the accused directly) regarding the possibility that:

"God forbid, one of them might find a weapon with shells. . . .”
"He [Gleckman] said it would be too bad if the little — I believe he said a girl — would pick up the gun, maybe kill herself.” Id. at 294-295.

So emotionally motivated did the accused, who obviously overheard all of this, become that he directed the police to the robbery (and prior murder) weapon because he "wanted to get the gun out of the way because of the kids in the area of the school.” Id. at 295.

"Thus, it may be said, as the Rhode Island Supreme Court did say, that the respondent was subjected to 'subtle compulsion’. But that is not the end of the inquiry. It must also be established that a suspect’s incriminating response was the product of words or actions on the part of the police that they should have known were reasonably likely to elicit an incriminating response. This was not established in the present case.” Id. at 303 (footnote omitted).

As inconceivable as it may seem in light of its own analysis, the Supreme Court affirmed the trial judge’s opinion that the police neither knew nor should have known that the colloquy was reasonably likely "to elicit an incriminating response.”

We have no difficulty in seeing the narrative here as a "subtle” psychological attempt to elicit a confession, just as we did in Bryant following Innis and Edwards. The officer either knew or should have known that his conduct and conversation were reasonably likely to elicit an incriminating response. It was pointedly so intended. The result in Innis we find to be an aberration rather than an exception to the rule it stands for; but even if it is intended to carve some sort of exception to the "functional equivalent” definition, the statements that actually elicited the response in this case, unlike Innis, were addressed directly to the appellant. It would appear, therefore, under the circumstances in this case, that the statements elicited were the product of a custodial interrogation, the trial judge did not address that issue when ruling upon the admissibility of the statements.

"But”, in the language of the Supreme Court, "that is not the end of the inquiry”. Both parties have argued on the presupposed premise that appellant had properly invoked a constitutional right shielding her from any further inquiry. The appellant’s broad side attack claims that

"Each Of Appellant’s Statements Was Obtained Through Interrogation, And In Violation Of Her Fifth And Sixth Amendment Rights.”

We have previously held that appellant did not at any time invoke her fifth amendment right identified in Miranda to have counsel present at any interrogation, which we assume appellant alludes to as her sixth amendment right. The record is also wanting in evidence of a violation of her fifth amendment right to remain silent, even to the limited extent that she invoked that right. Parenthetically we note that appellant at argument conceded that an accused could be reinterrogated upon a qualified invocation of Miranda, provided the qualifying conditions have been met. She did not concede that the conditions precedent to reinterrogation had been met. The record does not bear out her latter position.

In her brief appellant pointed step-by-step to every conceivable invocation of her fifth amendment right to silence. Upon each occasion that appellant invoked her fifth amendment right, she qualified it. She asked for and received permission to lie down and rest. She wanted and received "some time to think” because she was confused. When she became "rather angry” at the Brooks narrative, she expressed the desire to give a statement "after she had some time to get her thoughts together.” Not having admonished the officer that she would call him (rather than he call her), she was given approximately an hour’s respite on each occasion, to rest, to think, and to get her thoughts together. On each occasion she was asked if she was ready and then reminded of her right to "remain” silent, as well as her right to have counsel present, but never did she indicate such a desire. Nor did she ever contradict her initial expression that she did wish to give a statement. It is, therefore, insignificant that the statements she gave were a product of custodial interrogation. She did not indicate "in any manner, at any time prior to, or during, questioning, that [s]he wish[ed] to remain silent ... .” Miranda, supra at 474 (emphasis added). The statements were properly elicited and properly admitted, absent a Miranda invocation.

II

Secondly, appellant contends that because her first statement which was admitted as evidence indicated

"[t]hat . . . she had been raped by the . . . young man that [the police] indicated she had murdered,”

the judge erred by not instructing the jury on the issue of self-defense. She adds that:

"By failing to give the instruction on self-defense, the trial Judge not only prejudicially deprived the Appellant of an argument before the jury, but also essentially directed the jury’s attention to the second statement and tacitly instructed them that the first statement was a lie.”

The short answer to that complaint is that one does not defend oneself from a rape by killing the rapist after the act has been perpetrated. II Wharton’s Criminal Law § 127 (14th ed. 1979). The argument may give rise to an issue of mitigation in the nature of justifiable homicide to prevent the rape; perhaps even diminished responsibility after the act (but see Simmons v. State, 292 Md. 478 (No. 55, September Term, 1931, filed January 7, 1982), but the right of self-defense does not extend to punishment or revenge for an act already perpetrated. State v. Sorrentino, 224 P. 420 (Wyo. 1924); State v. Nodine, 259 P.2d 1056, 1070 (Or. 1953); State v. Winsett, 205 A.2d 510, 518 (Del. 1964); People v. Thornton, 186 N.E.2d 239, 241 (Ill. 1962). The appellant did not generate an issue of self-defense sufficient to warrant an instruction thereon. Street v. State, 26 Md. App. 336, 338-341, cert. denied, 275 Md. 756 (1975).

Ill

Appellant’s third contention, that the instructions on robbery were confusing and in error, was not preserved for review pursuant to the requirements of Md. Rule 757 f.

IV

Appellant complains that her convictions of robbery and robbery with a deadly weapon were inconsistent with the jury’s verdict of not guilty of felony murder. Because the Court of Appeals has held that a conviction on one count need, not be vacated because of an inconsistent not guilty verdict on another count, we need not further address the issue of consistency. Ford v. State, 274 Md. 546, 552 (1975).

V

Appellant contends that the trial court erred by failing to request the jury to specify the crime in which it found appellant guilty of having used a handgun. Appellant erred, however, in failing to preserve this issue for appeal by a timely objection to the instructions, Md. Rule 757 f, or to the verdict when rendered.

VI

The jury convicted appellant of robbery as well as robbery with a deadly weapon. Arguing merger, appellant cites Jones v. State, 3 Md. App. 608, 613-614, cert. denied, (1968) 251 Md. 750, 394 U.S. 993 (1969), as authority for the proposition that the crimes are duplicative, arguing that the latter merely provides an enhanced sentence for an aggravated commission of the former. The State cites Rose v. State, 37 Md. App. 388, 393, cert. denied, 281 Md. 743 (1977), and Towers v. Director, 16 Md. App. 678, 682-683 (1973), as authority for our declining to review this issue as not having been preserved by objection at sentencing. Appellant replies that neither case stands for the principle espoused.

We note, however, that in Brown v. State, 8 Md. App. 462, 468 (1970), we said:

"We have in the past, as we do here, taken cognizance of merger of offenses when the question was raised on appeal even though not raised below. We did so to establish clearly the doctrine of merger to be applied in this jurisdiction. We think it has now been clearly established and point out that we shall be more inclined to invoke Md. Rule 1085 in this regard in the future.” Id. at 468.

Rose suggested that where sentences were consecutive we should decide the merger question whether preserved or not, to avoid manifest injustice. Rose, supra at 394. The pertinent sentences here were concurrent, but since the record reveals that the judge decided the issue, and the State concedes the decision was error, we will strike the robbery sentence and merge the robbery conviction with that of armed robbery.

VII

The same issue is raised and the same reply is made by the State as to failure to merge battery and murder. For the reasons expressed in Brown, supra, we normally would not address this issue on appeal, since again appellant did not object timely. Although the judge discussed merger generally, it seems clear that his remarks were addressed to the robbery-armed robbery issue above decided. Nor did the judge take appellant off the hook by deciding this question. Our reflections in Rose would not apply since the sentences were concurrent here also; however, the State at argument again conceded the merger error as an obvious one. We can hardly permit two convictions to stand for a single crime in the face of such concession. We will merge the battery with the murder.

VIII

Appellant complains that the trial judge erroneously declared a mistrial of first degree murder when the jury reported that it was "unable to agree” on that count. We will not decide the propriety of that declaration because to do so is to provide an advisory opinion. Unless appellant is retried for that offense, the issue will be moot. If she is retried, she may have the issue decided promptly on a double jeopardy contention from which she may propitiously appeal an adverse ruling, if such should be the case.

IX

Citing three references to the transcript appellant asks:

"Did the trial judge err to appellant’s substantial prejudice by permitting irrelevant and improper evidence of appellant’s sexual activity to be presented to the jury?”

Appellant’s first objection was belatedly made after an affirmative answer was given to a question whether the witness Campbell had ever slept with the appellant. The objection was made on the ground of relevancy. Since the witness was testifying to highly inculpating disclosures appellant had made to him, the intimacy of their relationship was clearly relevant to establish the credibility of his testimony. That she had confided in him became more probable than it would have been without the evidence.

Furthermore, in light of appellant’s confessions, we also find it relevant to support the conduct admitted to by appellant’s second confession, which was on its face incredible for a human female, if not for the species arachnid. The more mitigating first confession referred to the later admitted consensual sex acts as a "rape”. Her attitude regarding sex was, therefore, relevant to support the more callous version of premeditated malice as opposed to the mitigatory hot-blooded purpose of revenge for rape.

It is also worthy of note that appellant has addressed these evidentiary references to her conduct as "evidence of the commission of other crimes by the accused merely to show the accused’s criminal tendency or disposition.” We are not aware that fornication is criminal conduct or indicative of a criminal disposition. While chastity is still considered by many as a virtue, if the contemporarily popular sexual poll takers are to be believed, many more do not consider fornication a sin. It is certain that the Legislature has not considered it a crime. We are, therefore, only concerned with the relevancy of the question as it related to the witness and to the crime, since this is not a "prosecution for commission of rape .. .”, in which like evidence is made inadmissible by statute. Md. Code Ann. (1976 Repl. Vol., 1981 Supp.), Art. 27, § 461A.

While appellant points out that the judge later sustained an objection regarding the relevancy of whether she had ever told the witness with whom she had had sexual relations, this does nothing to change our view. That question too may have been "relevant” but was more remote in that it asked what was told the witness rather than what the witness knew. The judge’s rulings were perhaps inconsistent, however, neither were reversible error.

Nor was the third complaint, that the same witness was permitted to answer a question indicating that appellant had driven without a license. While the relevance of that question is thin, we think its admissibility was not indicative of an abuse of the judge’s discretion in that regard. Appellant’s confession had inferentially indicated that she had driven the victim’s van. The question anticipated and dispelled the likelihood of her denying that corroborative evidence by Campbell by an assertion that she wasn’t even licensed to drive. Even if on balance that purpose weighed lightly upon the scale of probative value, its prejudicial effect was even less. See Cross v. State, 282 Md. 468, 474 (1978); Mollar v. State, 25 Md. App. 291, cert. denied, 275 Md. 753 (1975). There was no prejudicial error.

Appellant’s further complaint that the prosecutor argued improperly by referring to appellant’s "lifestyle” derogatorily was not preserved by objection.

X

Appellant asks next:

"Must appellant’s convictions be reversed because of the prosecutor’s extreme and prejudicial references to his personal belief in appellant’s guilt?”

In Williams and Sneed v. State, 50 Md. App. 255 (No. 360, September Term, 1981, filed December 4, 1981), we pointed out that although it may be improper for a prosecutor to assert his personal belief or personal conviction as to the guilt of the accused, such assertions are precluded only

"if that belief or conviction is predicated upon anything other than the evidence in the case.” Riggins v. State, 125 Md. 165, 174 (1915).

See also Code of Professional Responsibility, DR 7-106 (C) (4). The prosecutor’s allusions here were expressly related to the evidence in the case.

XI

Finally, appellant complains about the accomplice instruction, which definitively included an accessory before the fact as one who might be an accomplice. Appellant predicates a lengthy argument upon the fact that because:

"The Maryland statute under which Appellant was convicted of second degree murder does not make an accessory a principal [citations omitted]... in order to convict Appellant of second degree murder as an accessory, the State had to obtain an indictment which specifically charged appellant as an accessory.”

What appellant (as well as the State) overlooked was that she was charged as an accessory before the fact. As pointed out in State v. Williamson, 282 Md. 100 (1978), the statutory short form of indictment for murder, Md. Code Ann. (1976 Repl. Vol., 1981 Supp.) Art. 27, § 616, applies to murder, manslaughter, or "for being an accessory thereto.” See also State v. Ward, 284 Md. 189, 200 (1978). It follows not only that the reference to an accessory in the accomplice instruction was perfectly proper under the indictment and (we add parenthetically) under the evidence as well.

Judgments as to robbery and battery vacated; all other judgments affirmed.

Costs to be paid by appellant.

      . Miranda v. Arizona, 384 U.S. 436 (1966).

      . That advice was, of course, part of the same advice just read to her by the police as a Miranda warning.

      . Appellant emphasized at argument that a subsequent reference to this episode on cross-examination elicited the response that:

        "I told her that she had to realize that the advice of an attorney or the advice of Mr. Herman was just that, advice, and that the final decision to talk to us or not was her final decision.”
      Obviously, when viewed in light of the prior testimony, the officer inferably slipped by referring to "an” attorney and corrected that with the use of the conjunctive "or” to indicate that his statement to appellant was restricted colloquially to Herman, rather than applicable to any attorney. The cross-examination, taken in its context, also indicated that clear interpretation.
      "Q Well, when she told — in other words, she told you, when you read her her rights, that she had talked to a lawyer and that lawyer had told her she didn’t have to say anything, is that correct?
      A That’s correct.
      Q And did she tell you that she wanted to go along with that?
      A She told me she wanted to tell me her version.
      Q That was before, but then she told you, you said that she had talked to a lawyer and that her lawyer had explained to her that she didn’t have to say anything?
      A That Mr. Herman had explained to her —
      Q That’s correct, who is a lawyer.
      A Who is a lawyer here in Elkton.
      Q And when she. said that, that her lawyer had told her that she didn’t have to say anything, are you sure she didn’t say he told her not to say anything?
      A No, sir, I’m sure.
      Q Okay. When she said he told her she didn’t have to say anything, what exactly did you say?
      A I told her that she had to realize that the advice of an attorney or the advice of Mr. Herman was just that, advice, and that the final decision to talk to us or not was her final decision.
      Q In other words, you wanted her to, you wanted her to talk about it, isn’t that correct?
      A Yes, sir.
      Q In spite of a lawyer telling her she didn’t have to talk. You definitely wanted her to talk?
      A I wanted her to make up her own mind.
      Q Well, you wanted her to make up her own mind because you knew that you have a possibility of her talking if she made up her own mind, isn’t that correct?
      A Yes, sir.
      Q Why didn’t you just drop off when you heard, when she stated that she had talked to a lawyer, who advised her not to say anything? Why didn’t you stop with the questioning right there?
      A Because she didn’t indicate she wanted to stop.”

      . The only logical explanation of the Innis result is that deference should be given to the factfinder when the knowledge issue is a reasonably close one. The trial judge had ruled in favor of admission. The Rhode Island appellate court had reversed.

      . As pointed out by Mr. Justice Marshall’s dissent in Innis, supra at 306:
      "If the statements [by the police officersl had been addressed to respondent, it would be impossible to draw such a conclusion.”,

        i.e., that the colloquy was not intended, nor might have been repeated, to elicit a response from the accused.

      . Wé encourage trial judges to address all issues requiring the finding of fact under the circumstances of each case, especially such as determining whether words or conduct should have been expected to evoke a response from an accused.

      . The black widow spider is reputed to destroy and consume its male mate after he has served his reproductive purpose.
      Not only did appellant admit having destroyed the victim by whom she had just been serviced, she threatened this witness with a similar demise if he testified, despite their prior sexual relationship as well.


source: Caselaw Access Project

author: Gilbert, C. J.,

license: Public Domain

text:
    FORESTVILLE PARK LIMITED PARTNERSHIP v. STATE OF MARYLAND et al.
    [No. 583,
    September Term, 1981.]

      Decided January 12, 1982.

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

      Ellis J. Koch, with whom were Leslie F. Moore and OMalley, Miles, Farrington & McCarthy on the brief, for appellant.

      Susan Z. Whitman, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, and Fred Wolf, III, Assistant Attorney General, on the brief, for appellees.
   Gilbert, C. J.,

delivered the opinion of the Court.

We are called upon to decide whether a regulation of the Department of Economic and Community Development (Department) is valid. If invalid, may its salient provisions be included in an agreement and, thus, be binding as a matter of contract law?

We set forth below the factual pattern giving rise to the issues put to us.

After extensive negotiations, Forestville Limited Partnership (Forestville) entered into an agreement with the Community Development Administration (CDA), a division of the Department. The agreement provided that CDA would make available the sum of $2,434,500 "to Limited Income Mortgagors purchasing” houses built by Forestville. The agreement further provided that the Loan Commitment by CDA was "incorporated into and made a part of this Agreement.” The Loan Commitment contained the clause: "A resolution from the appropriate local governing body, endorsed by the Chief Executive Officer of the locality, identifying the sponsor, location, and nature of the Project and approving the Project and CDA’s participation in financing the Project, must be submitted to CDA.”

The Prince George’s County Council adopted a resolution approving the project. The County Executive, however, declined to endorse the resolution. One month later CDA withdrew its commitment because of Forestville’s "inability to comply” with the proviso calling for approval by the County Executive.

Forestville then brought suit in the Circuit Court for Anne Arundel County against the State and the Department. The objective of the action was to have the court: declare that the "approval power ... granted to a local governing body” was "limited to land use” only; enjoin the CDA from "reallocating or otherwise utilizing funds covered in the Regulatory Agreement with Forestville ...”; direct "the secretary ... [of the Department] to release mortgage funds” to Forestville.

The trial court (Lerner, J.) sustained without leave to amend, a demurrer filed by the State and the Department. This appeal ensued.

Forestville posits three issues to us, videlicet:

"I. COMAR 05.01.05.04 H (2), which requires Local Government approval of a mortgage loan to a developer, exceeds the scope of Md. Ann. Code, Art. 41, § 266DD-1 et seq., which requires only land use approval.
II. The State of Maryland and the Community Development Agency cannot require, in a contract of adhesion, that Petitioner comply with an illegally promulgated regulation.
III. The State of Maryland lacks the power to include an illegally promulgated regulation in contract.”

We, however, perceive the issue to be as we stated in the beginning, whether a regulation of the Department was validly applied in the instant case. A secondary, but necessary question is what is meant by the statutory language "the Administration shall work closely, consult and cooperate with local elected officials.”

CDA was created by Laws 1970, ch. 527, § 12 and codified as Md. Ann. Code Art. 41, § 266DD. The Legislature stated the reasons for the establishment of that agency in Art. 41, § 266DD-1 as follows.

"(a) It is found and declared that in this era of rapid population growth and expansion and of increasing urbanization, there is a need, in many areas of the State, to promote sound community development.
It is further found and declared that the counties and municipalities of this State do not have adequate resources to, and the ordinary operations of private enterprise cannot without State assistance, deal effectively with all of the problems of sound community development.
It is further found that a need exists to coordinate and concentrate federal, State, regional and local public and private community development efforts and resources.
It is further found and declared that there is a shortage of adequate, safe, and sanitary housing for families of limited income particularly; and that by increasing the housing supply for families of limited incomes this shortage will be alleviated and sound community development promoted.
It is further found and declared that the increase of opportunities for home-ownership is desirable and promotes sound community development.
It is further found and declared that the reduction of the consumption of energy and the increase in the utilization of solar energy by the provision of financial assistance to encourage energy conservation and solar energy improvements to housing and buildings used for commercial purposes promotes sound community development and is otherwise in the public interest.
It is further found and declared that to promote sound community development is a proper public purpose and State use for which public money may be expended and property may be acquired, and that the functions and responsibilities of the Community Development Administration as hereinafter set forth are necessary and proper for the purpose of achieving the ends here recited.
(b) The Community Development Administration is hereby created as a division of the principal Department of Economic and Community Development to coordinate the various activities and programs which may contribute to sound community development, to encourage and facilitate the development of new and existing communities by reducing the costs of development through grants and loans, to encourage and facilitate energy conservation and the utilization of solar energy in housing and commercial buildings by providing grants, loans, and other forms of financial assistance, making available land for such development and by assisting the efforts of private enterprise, municipalities, counties, local public agencies and local development corporations. Except for grants for energy conservation in residential buildings which may be awarded to the Administration under Title V of the Energy Security Act, P.L. 96-294, grants of land or money shall be limited to local governments or to organizations which are defined under § 266DD-3 (d), (e), (f), and (g).”

Obviously aware that the program would have a better chance of success if it had the approval of the government of the political sub-division, the General Assembly provided in pertinent part in Article 41, § 266DD-5:

"(a) Approval of contract, arrangement or agreement. In accordance with regulations promulgated by the Secretary of Economic and Community Development, [ ] any contract, arrangement or agreement entered into for purposes of carrying out its functions and responsibilities under § 266DD-4 hereof, shall be approved by the Secretary and where required by law by the Board of Public Works.
(b) Local approval of land use. The Administration shall be required to obtain approval of the land use for a community development by resolution of the appropriate local governing body of the locality in which the development is situated before acquiring by grant, gift, purchase, or otherwise real property, which is not open, predominantly open, or undeveloped land, personal property or mixed property and owning, holding, clearing, improving, constructing, or rehabilitating, and selling, assigning, transferring, leasing, mortgaging, or otherwise disposing of same or any combination of the foregoing. The Administration shall also be required to obtain such approval from the appropriate local governing body before building or constructing housing on any real property.
(d) Compliance with local laws, etc. — In effectuating the purposes of this subheading, the Administration shall comply with the requirements of local laws, ordinances, codes, charters or regulations applicable to such community development project.
(e) Cooperation with local officials; consideration to local needs and goals; use of private enterprise. In effectuating the purposes of this subheading, the Administration shall work closely, consult and cooperate with local elected officials. The Administration shall give primary consideration to local needs and desires and shall foster local initiative and participation in connection with the planning and development of community developments. Wherever possible, the Administration shall carry out community development projects in conjunction with and through the use of private enterprise, limited dividend corporations, local development agencies and local development corporations. Consideration shall also be given to local and regional goals and policies as expressed in urban renewal, community renewal and local comprehensive land use plans and regional plans.” (Emphasis supplied.)

The Department promulgated COMAR 05.01.05.04 H (2), which states:

"(a) A mortgage loan closing will not be made until the Administration has received a certified copy of an approving ordinance or resolution, duly adopted by the legislative body of the municipality or county in which the project is located (or the Board of Estimates in Baltimore City). The ordinance or resolution may be in any form so long as it contains the following information:
(i) Identity of the sponsor;
(ii) Location and nature of the project;
(iii) Certification of the fact that the Community Development Administration will finance the project;
(iv) Approval of the mortgage loan.
(b) In addition, before the mortgage loan closing is made approval must be given by the county executive of a chartered county, or the mayor of a municipality (if he is not a member of the city council). This approval may be made by endorsement of the ordinance or resolution, or by separate writing. Obtaining local approval is the x responsibility of the sponsor.” (Emphasis supplied.)

Forestville reads Art. 41, § 266DD-5 (e) as meaning simply that CDA will cooperate with the local subdivision with respect to land use. Appellant further interprets COMAR 05.01.05.04 H (2) as being without the scope of the Department and, thus, a nullity. We have an entirely different view.

In construing the statute, we seek to ascertain the actual intent of the Legislature. Pennsylvania National Mutual Casualty Insurance Co. v. Gartleman, 288 Md. 151, 416 A.2d 734 (1980). This intent must first be sought in the language of the statute giving the terminology employed its ordinary meaning. Harbor Island Marina, Inc. v. Board of County Commissioners, 286 Md. 303, 407 A.2d 738 (1979). Where there is no ambiguity, a court will not go beyond the words of the statute. Prince George’s County v. The Equitable Trust Co., Inc., 44 Md. App. 272, 408 A.2d 737 (1979), cert. denied, 287 Md. 751 (1980). Since the words of section 266DD-5 are plain and unambiguous, we need not search beyond the statute’s terms for the legislative intent.

We read Art. 41, § 266DD-5 (b), abovequoted, to mean that the CDA must obtain approval from the local government as to land use before, inter alia, it advances mortgage funds. We do not read the section as limiting CDA’s cooperation to land use. On the contrary, we think that when the Legislature provided in section 266DD-5 (e) that the CDA "shall work closely, consult and cooperate with local elected officials” it meant precisely what it said, and that section 266DD-5 (e) applies to all phases of a CDA undertaking in any political subdivision of the State. It is difficult to understand how CDA can "work closely, consult and cooperate” with the local elected governmental officials if that language were construed to mean that CDA possessed the authority to put the project in the county or municipality, notwithstanding the opposition of local elected officials. Indeed, if CDA could, as Forestville would have it, say that "we have consulted and cooperated and now we are going to put the project in your area irrespective of your opposition,” the directive mandated in Art. 41, § 266DD-5 (e) would amount to a hollow expression devoid of real meaning.

Furthermore, the provisions of Art. 41, § 266DD-5 (a) confer upon the Secretary of the Department the authority to promulgate regulations to carry out the legislative intent. COMAR 05.01.05.04 H (2) does precisely that. The county executive is the highest elected public official in the county government, and, consequently, his approval is necessary in order to comply with Art. 41, § 266DD-5 (e).

We hold that Judge Lerner properly granted the demurrer in favor of the appellees. To arrive at any other result would require the Court to rewrite the statute and thwart the legislative will.

Judgment affirmed.

Costs to be paid by appellant.

      . The mortgages, we were told on oral argument, bore interest at a rate below that of the commercial rate.

      . Md. Ann. Code art. 41, § 257K (e) provides that "[t]he Department shall promulgate such rules as are necessary to carry out the purpose of this subheading.” The subheading includes the CDA.


author: Weant, J.,

text:
    TIMOTHY THEODORE HOLT v. STATE OF MARYLAND
    [No. 598,
    September Term, 1981.]

      Decided January 12, 1982.

      The cause was submitted on briefs to Moylan, Moore and Weant, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Michael R. Braudes, Assistant Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney General, Diane G. Goldsmith, Assistant Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Robert L. Dean, Assistant State’s Attorney for Montgomery County, for appellee.
   Weant, J.,

delivered the opinion of the Court.

The appellant, Timothy Theodore Holt, was indicted for various sexual offenses, and assault and battery. He was tried by jury in the Circuit Court for Montgomery County in April of 1980, and was found guilty of third degree sexual offense, attempted third degree sexual offense, and assault and battery. On 1 October 1980 he was sentenced to ten years’ imprisonment. A timely appeal was filed to this Court.

Appellant presents three issues for our consideration:

I. Whether the trial court erred in refusing to instruct the jury with regard to voluntary intoxication.
II. Whether the trial court erred in refusing to admit evidence that appellant’s birth allegedly may have resulted from an incestuous relationship.
III. Whether the trial court failed to merge appellant’s assault and battery conviction with his third degree sexual offense conviction.

By virtue of our findings and the concession of the state that the trial court erred in refusing to instruct the jury on voluntary intoxication, we will reverse appellant’s convictions for third degree sexual offense and attempted third degree sexual offense. We fail, however, to perceive any error that mandates reversal of appellant’s assault and battery conviction.

I.

Appellant was found guilty of third degree sexual offense, attempted third degree sexual offense, and assault and battery. Third degree sexual offense is a specific intent crime, seeMd. Ann. Code art. 27, § 464B (Cum. Supp. 1980), and attempted third degree sexual offense is a specific intent crime, see Mayne v. State, 45 Md. App. 483, 488, 414 A.2d 1, 4 (1980), cert. denied, 101 S.Ct. 1347 (1981); but assault and battery is a general intent crime, Ott v. State, 11 Md. App. 259, 266, 273 A.2d 630, 634 (1971). In the instant case, appellant requested the trial court to give an instruction with regard to voluntary intoxication and his ability to form a specific intent to commit the crimes in question. That court refused to comply with this postulation.

Appellant properly relies on Maryland Rule 757(b), which requires the trial court, if requested, to give advisory instructions which are supported by the evidence. Blackwell v. State, 278 Md. 466, 477, 365 A.2d 545, 551-52 (1976), cert. denied, 431 U.S. 918 (1977); Couser v. State, 36 Md. App. 485, 499, 374 A.2d 399, 406-07 (1977), aff'd, 282 Md. 125, 383 A.2d 389, cert. denied, 439 U.S. 852 (1978). Failure of the trial judge to give such requested instructions constitutes reversible error. Gooch v. State, 34 Md. App. 331, 335, 367 A.2d 90, 94 (1976), cert. denied, 280 Md. 735 (1977); Mumford v. State, 19 Md. App. 640, 641, 313 A.2d 563, 565 (1974). Our review of the record convinces us that the evidence generated the issue of voluntary intoxication. We are therefore constrained to reverse appellant’s convictions of the two specific intent crimes — third degree sexual offense and attempted third degree sexual offense — because the trial court failed to give the requested instruction on voluntary intoxication, which point of law is supported by the evidence in the instant case.

II.

Appellant contends that, in addition to intoxication, his "principal theory at trial was that as a result of diminished mental capacity he was incapable of forming, or did not on the night in question form, the requisite intent for the crime charged.” At trial he proffered testimony to show that his birth was the result of an incestuous relationship which he claims had "a natural tendency to establish the existence of mental incapacity.” The trial court, however, refused to allow the testimony; we concur with that action.

At the present time diminished mental capacity is not recognized as a defense in Maryland, see Swain v. State, 50 Md. App. 29, 435 A.2d 805, 814 (1981). Nevertheless, even if it were, we fail to see how the proffered testimony is relevant to such a defense. Relevant testimony is that which tends to establish a material proposition. Ross v. State, 276 Md. 664, 672, 350 A.2d 680, 686 (1976). Evidence that appellant suffered from borderline mental retardation was presented; whether his condition resulted from the fact that his birth was the result of an incestuous relationship is irrelevant. In addition, the proffered evidence may have aroused the jury’s emotions of prejudice, hostility or sympathy. See Tipton v. State, 39 Md. App. 578, 585, 387 A.2d 628, 632-33, cert. denied, 283 Md. 739 (1978). In any case, the admission of such evidence was a matter within the discretion of the trial court. See Tipton, supra, at 586, 387 A.2d at 633. On the facts of the instant case, we cannot say the trial judge showed any abuse in this regard.

III.

Appellant’s final argument is that his conviction of assault and battery merged into his conviction of third degree sexual offense and attempted third degree sexual offense, and that he should therefore be acquitted of assault and battery. We disagree with this proposition.

First, however, we must concede that at the time of the convictions there was a merger of the third degree sexual offense and the attempted third degree sexual offense with the assault and battery, because the elements necessary to prove the crime of assault and battery are essential ingredients to the establishment of the third degree sexual offense and attempted third degree sexual offense. Nevertheless, we do not agree that the conviction of assault and battery by the jury must fall with our reversal of the greater offenses. Our reversal of these sexual offenses, as discussed above, is mandated by reason of the fact that they are specific intent crimes. We do not have this element in the crime of assault and battery; hence we do not think it should be reversed merely because of a merger which is brought about by the court and not the jury. Sentencing under the lesser crime will not lead to the problem of double jeopardy which the merger doctrine seeks to avoid. Sound reasoning does not dictate vacating the conviction for assault and battery as there will remain only one conviction on the merged offenses. In the case of O’Connor v. Warden, 6 Md. App. 590, 253 A.2d 434 (1969), Chief Judge Murphy, in speaking for the Court of Special Appeals, had this to say: "there is no legal basis to support applicant’s conclusion that having been acquitted of housebreaking, he could not be convicted of grand larceny, since the doctrine of merger of offenses is applicable only to preclude multiple convictions on merged offenses.” Id. at 597, 253 A.2d at 439. (Original emphasis.)

In our view the merger in this case was abrogated upon our reversal of the greater offenses and the crime of assault and battery stands alone. In speaking of the merger of a charge of assault with intent to rape and the criminal act of rape of which the defendant was acquitted, Judge Morton of this Court in the case of Stewart v. State, 4 Md. App. 565, 244 A.2d 452 (1968), said:

As the doctrine [merger] is applicable only when there have been convictions on each offense, and as the appellant was not convicted of rape, into which he alleges the assault with intent to rape merged, the doctrine has no application. For these same reasons, we recently declined to merge a conviction of assault with intent to rob into the crime of robbery where the defendant had not been convicted of robbery.

Id. at 569, 244 A.2d at 454.

It is our conclusion then, that the conviction for assault and battery should stand. In the event the state successfully seeks a conviction for sexual offenses, another merger would develop and resentencing on the resulting offense would be necessary. If no further conviction is accomplished, then resentencing for the assault and battery is required.

Conviction of third degree sexual offense and attempted third degree sexual offense reversed.

Conviction of assault and battery affirmed and case remanded for further proceedings in accord with this opinion.

Costs not to be reallocated as part of the judgment of this court pursuant to Maryland Rule 1082f.

      . The Court of Appeals is considering this issue in Simmons v. State, (No. 55, September Term, 1981, argued November 6, 1981).


author: Wilner, J.,

text:
    ELLSWORTH JOHNSON v. STATE OF MARYLAND
    [No. 609,
    September Term, 1981.]

      Decided January 12, 1982.

    The cause was submitted on briefs to Liss, Wilner and Couch, JJ.

      Submitted by Alan H. Murrell, Public Defender, and Michael R. Braudes, Assistant Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney General, Stephen Rosenbaum, Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Gregory Rothwell, Assistant State’s Attorney for Baltimore City, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

Wilner J., delivered the opinion of the court on motion by the State of Maryland for reconsideration at page 593 infra.

On the evening of February 5,1981, Officer John Williams of the Baltimore City Police Department was approached by an unidentified middle-aged man who reported that he had observed someone in the Golden Slipper restaurant at 310 East Baltimore Street with "a gun in his top right shirt pocket.” The citizen described the person as a black male in his middle thirties who was wearing a red jacket, dark blue pants, and a red shirt.

Officer Williams and his partner proceeded promptly to the restaurant about a block away, where they observed the appellant, who fit the description just recounted. Officer Williams approached appellant and, after ascertaining his identity, "frisk[ed] his outer garments.” Feeling "a bulge in his top right pocket” which "felt like a gun handle,” the officer reached into appellant’s open coat and removed a handgun. After admitting that he did not have a gun permit, Johnson was arrested for a handgun violation.

On May 26, 1981, the case came to trial in the Criminal Court of Baltimore. A plea of not guilty was entered and, following this colloquy, which at no point indicated that appellant was aware that a jury’s verdict must be unanimous, a jury trial was waived:

"MR. DURKIN [Attorney for appellant]: At this time Your Honor I would like to advise my client on the record, Mr. Johnson you are entitled to a jury trial. A jury trial is composed of twelve men and women selected at random from the Voters’ Registration of Baltimore City. Do you understand that?
MR. JOHNSON: Yes.
MR. DURKIN: Now you and I would have a chance to pass upon the jurors and impanel them and strike certain jurors out. Do you understand?
MR. JOHNSON: Yes.
MR. DURKIN: Now whether you are tried before a jury or tried before Judge Motsay alone, it would be the same standard, they must find you guilty beyond a reasonable doubt and to a moral certainty.
Do you understand?
MR. JOHNSON: Yes.
MR. DURKIN: Now at this time, is it your election to waive your right to a jury trial?
MR. JOHNSON: Yes.”

From his subsequent conviction, which yielded a sentence of two years imprisonment, appellant appeals, raising the following issues for our determination:

"1. Were the arrest and search of Appellant conducted in violation of his Fourth Amendment rights?
2. Did the trial court err in proceeding to trial without ascertaining on the record that Appellant knowingly waived his right to trial by jury?”

Because we find merit in appellant’s second contention, we shall reverse the judgment of the court below and remand this case for a new trial.

Maryland Rule TSSd, as interpreted by the Court of Appeals in Countess v. State, 286 Md. 444, 455 (1979), requires that before a case proceeds to trial before the court,

"the defendant have a basic understanding of the nature of a jury trial. We think that this understanding is generally satisfied when the defendant entitled to a jury trial knows that he has the right to be tried by a jury of 12 persons or by the court without a jury; that whether trial is by a jury or by the court, his guilt must be found to be beyond a reasonable doubt; that in a jury trial all 12 jurors must agree that he is so guilty but in a court trial the judge may so fínd.” (Emphasis added.)

In point of fact, as shown from the Court’s action in Fairbanks v. State, a companion case dealt with in Countess (see 286 Md. at 459-61), and subsequently in Hunt v. State, 286 Md. 541 (1979) and State v. Ricketts, 290 Md. 287 (1981), what this means is that the record must show that the defendant was told these specific facts. His "understanding” of them cannot be assumed.

Accordingly, the absence from the record of any indication that appellant was told "that in a jury trial all 12 jurors must agree” before rendering a verdict compels us to reverse. As the Court held in Countess, "Rule 735 means what it says, and proceeding with the trials of the cases despite the failures to comply with its provisions requires reversal of the judgments of the trial courts and entitles the defendants to be newly tried.” Id. at 463. "[A]s long as the Rule remains unchanged, it must be followed.” State v. Ricketts, supra, 290 Md. at 293.

As the case will be remanded for new trial and it is likely that the validity of the search and seizure will again be tested, we shall, for the guidance of the trial court, address appellant’s first issue. In doing so, however, we first must put it in the proper perspective.

Appellant argues in his brief that (1) because "the police knew absolutely nothing about either the veracity of the informant, or the basis of his knowledge that Appellant possessed a weapon . . . the informant’s information was of no value” in establishing probable cause for arrest and (2) since he was searched prior to his arrest, his search was not a valid search incident to arrest. That misstates the issue actually before us. Officer Williams did not immediately place appellant under arrest when he entered the restaurant. Based on the information he had received, he first conducted a "stop and frisk” — an investigative stop followed by a frisk — to see whether appellant was indeed carrying a concealed weapon, and thus might be dangerous to the officer and to other persons in the vicinity. When he discovered the "bulge,” he searched for the weapon and, after finding it, placed appellant under arrest.

There can be little doubt that, if the officer properly discovered that concealed weapon in appellant’s possession, he had ample probable cause to effect the ultimate arrest. The real question is whether, at the time he entered the restaurant, the officer was justified in conducting the "stop and frisk” — whether the information supplied by the unknown informant coupled with his own observations gave the officer sufficient "articulable suspicion” to warrant that limited intrusion.

The seminal case in that regard is Adams v. Williams, 407 U.S. 143 (1972). There, a police officer on patrol in a high crime area was approached by a known informant who advised that an individual sitting in a car parked nearby had narcotics and a gun in his possession. The officer approached the car, tapped on the window, and asked the occupant (Williams) to open the door. Instead of opening the door, Williams lowered the window, whereupon the officer reached in and removed a gun from Williams’ waistband — exactly where the informant told him it was. The officer then placed Williams under arrest. A subsequent search of the car produced a large amount of heroin, and Williams was convicted of possession of the gun and the heroin. The case reached the Supreme Court on collateral attack through Federal habeas corpus proceedings.

The Court concluded that there had been no Fourth Amendment violation. Harking back to the principles enunciated in Terry v. Ohio, 392 U.S. 1 (1968), the Court confirmed that " 'a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest’ ” and that " '[w]hen an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others,’ he may conduct a limited protective search for concealed weapons.” Adams v. Williams, 407 U.S. at 145-46, quoting, in part, from Terry, 392 U.S. at 22, 24.

Applying those principles from Terry, the Court held that the officer "acted justifiably in responding to his informant’s tip.” Id. at 146. In reaching that conclusion, the Court stated (pp. 146-47):

"The informant was known to him personally and had provided him with information in the past. This is a stronger case than obtains in the case of an anonymous telephone tip. The informant here came forward personally to give information that was immediately verifiable at the scene. Indeed, under Connecticut law, the informant might have been subject to immediate arrest for making a false complaint had Sgt. Connolly’s investigation proved the tip incorrect. Thus, while the Court’s decisions indicate that this informant’s unverified tip may have been insufficient for a narcotics arrest or search warrant, see, e. g., Spinelli v. United States, 393 U.S. 410 (1969); Aguilar v. Texas, 378 U.S. 108 (1964), the information carried enough indicia of reliability to justify the officer’s forcible stop of Williams.
In reaching this conclusion, we reject [Williams’] argument that reasonable cause for a stop and frisk can only be based on the officer’s personal observation, rather than on information supplied by another person. Informants’ tips, like all other clues and evidence coming to a policeman on the scene, may vary greatly in their value and reliability. One simple rule will not cover every situation. Some tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized. But in some situations — for example, when the victim of a street crime seeks immediate police aid and gives a description of his assailant, or when a credible informant warns of a specific impending crime — the subtleties of the hearsay rule should not thwart an appropriate police response.” (Footnote omitted.)

The crux of the matter, then, is whether the information received by the officer has a sufficient level (indicia) of reliability to permit him to take what the Court referred to as "an intermediate response.” Id. at 145. In making that judgment, a number of factors are considered including whether the informant was known to the officer. That particular factor is by no means determinative, however, although it was present and stressed in Adams.

The overwhelming weight of authority among the courts that have considered the question is that where, as here, an anonymous informant voluntarily approaches a law enforcement officer and gives accurate, detailed, and at least partially verifiable information concerning possible criminal activity, that information may give the officer adequate reason to stop and frisk the suspect described by the informant; and, if the officer finds sufficient evidence through the "stop and frisk” to constitute probable cause, the resulting arrest will not be held invalid. See United States v. Sierra-Hernandez, 581 F.2d 760 (9th Cir.), cert. den., 439 U.S. 936 (1978); United States v. Gorin, 564 F.2d 159 (4th Cir. 1977), cert. den., 434 U.S. 1080 (1978); People v. Tooks, 271 N.W.2d 503 (Mich. 1978); People v. Lopez, 52 Cal.App.3d 263 (1975); United States v. Walker, 294 A.2d 376 (D.C. 1972), appeal dismissed, 304 A.2d 290 (D.C.), cert. den., 414 U.S. 1007 (1973); State v. Bolden, 380 So.2d 40 (La.), cert. den., 449 U.S. 856 (1980); People v. Jeffries, 197 N.W.2d 903 (Mich.App. 1972).

We find this line of authority, and the reasoning behind it, persuasive. Especially pertinent is the analysis used by the Michigan Supreme Court in People v. Tooks, supra, 271 N.W.2d 503. In judging whether information supplied by a citizen-informant carries enough indicia of reliability to satisfy the Terry-Adams criteria, the court looked at three factors: (1) the reliability of the informant, (2) the nature of the information given to the police, and (3) the reasonableness of the officer’s suspicion in the light of the other two factors. Applying those factors, the court observed first that there was "nothing inherently unreliable about a citizen as opposed to a known informant giving information to the police,” but rather that "information provided to law enforcement officers by concerned citizens who have personally observed suspicious activities is entitled to a finding of reliability when the information is sufficiently detailed and is corroborated within a reasonable period of time by the officers’ own observations.” Id. at 506. To favor a known informant, who is often himself involved with or on the fringe of criminal activity, over the volunteer citizen-informant the court found to be "illogical.” We have expressed similar sentiments in the context of what it takes to establish "probable cause” under Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969). See, for example, Hignut v. State, 17 Md.App. 399, 410 (1973); Dawson v. State, 14 Md.App. 18, 34 (1971) (Moylan, J., concurring); and note the comments of the Court of Appeals in Watkins v. State, supra, 288 Md. 597.

When the information supplied by the citizen-informant is specific and subject to prompt verification, not only is the second factor satisfied but it serves to enhance the informant’s reliability as well, and thus add to the reasonableness of the officer’s resulting suspicion.

In such a situation, asked the court in State v. Hetland, supra, 366 So.2d at 833, "what is a policeman supposed to do? ... Must he ignore the information given?” Along with other courts, we think not. We agree with the restatement from United States v. Sierra-Hernandez, supra, 581 F.2d at 763, that "Conformation from a citizen who confronts an officer in person to advise that a designated individual present on [or near] the scene is committing a specific crime should be given serious attention and great weight by the officer.” As stated in Adams v. Williams, supra, 407 U.S. at 145, "[t]he Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape.”

Applying these concepts to the facts before us here, we believe that Officer Williams was justified in approaching appellant to investigate the information he had just received. Like the situation in Adams, the informant had come forward personally to report that appellant was carrying a concealed gun — an action which could have resulted in the informant’s arrest for making a false complaint had subsequent investigation proved his tip to be incorrect. The information regarding the suspect — his location and. description — was specific, based on the informant’s direct observations made shortly before, and easily verifiable. When the officer went to the restaurant and saw the very person described by the informant, the totality of his information clearly sufficed to justify an investigatory stop.

Although the right to proceed further with a "frisk” "does not follow inexorably” from the right to conduct an investigatory stop (Gibbs v. State, 18 Md.App. 230, 238, cert. den. 269 Md. 759 (1973)), the nature of the information supplied here gave Officer Williams "reason to believe that the suspect [was] armed and dangerous.” Adams v. Williams, supra, 407 U.S. at 146; also People v. Tooks, supra, 271 N.W.2d at 507. Consequently, the "frisk” was reasonable , and therefore justified, and the resulting discovery of a concealed handgun on appellant’s person gave Officer Williams probable cause to place him under arrest. See Adams at 148.

Judgment reversed; case remanded to Criminal Court of Baltimore for retrial; costs shall not be reallocated pursuant to Maryland Rule 1082f.

On Motion by the State of Maryland for Reconsideration Wilner, J.: In footnote 2 on page 3 of the Slip Opinion, we noted that effective January 1,1982, Maryland Rule 735 was modified by the Court of Appeals and that, under the new Rule, the litany set forth in Countess v. State, 286 Md. 444 (1979), was no longer required.
This case was submitted on brief by both the State and appellant. The case was scheduled on the Court docket for December 11, 1981, notice of which was duly published in The Daily Record, commencing with the November 24, 1981 issue, and in the Maryland Register of November 13,1981 (8 Md. Reg. 1850). Notice of the modification to Maryland Rule 735 was published in the Maryland Register of November 27,1981 (8 Md. Reg. 1928). The State made no claim in its brief that the modification effective January 1,1982, should be applied in this case; nor, despite, the notice of the modification given November 27, 1981, did it seek to have the case set for oral argument. In short, it was not until after the Opinion was filed on January 12,1982, that the State belatedly argued that the new modification should be retrospectively applied. The motion is denied. Maryland Rule 1031; Jacober v. High Hill Realty, Inc., 22 Md. App. 115 (1974).

      . Maryland Rule 735d provides as follows:
      "If the defendant elects to be tried by the court, the trial of the case on its merits before the court may not proceed until the court determines, after inquiry of the defendant on the record, that the defendant has made his election for a court trial with full knowledge of his right to a jury trial and that he has knowingly and voluntarily waived the right. If the court determines otherwise, it shall give the defendant another election pursuant to this Rule.” (Emphasis added.)

      . We note that, effective January 1, 1982, the present Maryland Rule 735, which spawned Countess, will be replaced by a new Rule 735 that does not appear to require any particular litany. See 8 Md. Reg. 1928.

      . See also United States v. Unverzagt, 424 F.2d 396 (8th Cir. 1970); United States v. Legato, 480 F.2d 408 (5th Cir.), cert. den. 414 U.S. 979 (1973); Lawson v. United States, 360 A.2d 38 (D.C. 1976); State v. Hetland, 366 So.2d 831 (Fla.App. 1979), aff'd 387 So.2d 963 (Fla. 1980); State v. Hobson, 523 P.2d 523 (Idaho 1974); People v. McElroy, 358 N.E.2d 1180 (Ill.App. 1976); State v. Jernigan, 377 So.2d 1222 (La. 1979), cert. den. 446 U.S. 958 (1980); Commonwealth v. Anderson, 318 N.E.2d 834 (Mass. 1974); State in Interest of H.B., 381 A.2d 759 (N.J. 1977); People v. McLaurin, 403 N.Y.S.2d 720 (Ct.App. 1978) (all holding that information supplied to police via telephone or handwritten messageby an anonymous informant justified a Terry pat-down search). See, as well, Watkins v. State, 288 Md. 597 (1980).

      . Md. Ann. Code art. 27, § 150, provides:
      "Any person who makes a false statement, report or complaint, or who causes a false statement, report or complaint to be made, to any peace or police officer of this State, or of any county, city or other political subdivision of this State, knowing the same, or any material part thereof, to be false and with intent to deceive and with intent to cause an investigation or other action to be taken as a result thereof, shall be deemed guilty of a misdemeanor and upon conviction shall be subject to a fine of not more than five hundred dollars ($500.00), or be imprisoned not more than six (6) months, or be both fined and imprisoned, in the discretion of the court.”

      . Since this case is being remanded for retrial, appellant’s bare allegation that his conviction must be reversed due to perjury on the part of Officer Williams need not be dealt with.


text:
    HOFFMAN CHEVROLET, INC., Garnishee v. WASHINGTON COUNTY NATIONAL SAVINGS BANK
    [No. 758,
    September Term, 1981.]

      Decided January 12, 1982.

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

      Donald E. Beachley, with whom were Miller, Miller & Oliver on the brief, for appellant.

      David K. Poole, Jr., for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

"A writ of attachment may be likened to a dam. Once it is laid in the hands of the garnishee it spontaneously creates a reservoir or collecting pool, from all assets, liquid or otherwise, that are then present or which may flow to the garnishee at any time prior to trial and judgment.”

In this appeal we are asked by Hoffman Chevrolet, Inc., the garnishee-appellant (Hoffman) to reverse a summary judgment entered against it by the Circuit Court for Washington County (Corderman, J.) in favor of the attaching creditor-appellee, Washington County National Savings Bank (Bank).

THE FACTS

Bank held two cognovit notes issued by Victor McSherry, a then employee of Hoffman. The notes being in default, Bank, on November 28, 1979, confessed judgment against McSherry and caused a writ of attachment to be laid in the hands of Hoffman. An answer was filed by Hoffman, as garnishee, in which it asserted that McSherry’s employment was terminated on November 30, 1979. Hoffman also said that it and McSherry "were jointly and severally liable to the Hagerstown Trust Company for the financing of a motor home on which there was a balance in excess of $12,000. That the Garnishee has been advised that the motor home is not in existence and the contract is in default. The last pay check of ... McSherry ... has been applied to the outstanding indebtedness.”

Bank immediately served interrogatories upon Hoffman and subsequently took the deposition of the garnishee’s Treasurer and Office Manager, John W. Martin. That deposition revealed that McSherry participated in the National Automobile Dealers and Associates Retirement Trust (NADART) Pension Plan which is funded by employer and employee contributions. The plan provides that upon resignation or discharge from employment, a participant is entitled to a return of his contributions and a certain percentage of the employer’s contributions which have been credited to the participant’s account.

Following McSherry’s termination of employment with Hoffman, he applied to NADART for a refund of his contributions and any other sums in his particular account. The date that McSherry asked NADART for the funds is not clear from the record except that it was sometime "in early December, 1979.” NADART issued a check to McSherry in the amount of $8,736.63 and forwarded it to Hoffman, where it was received "before Christmas” 1979.

Martin testified in his deposition that the liability of Hoffman and McSherry to the Hagerstown Trust Company was grounded on a note in the amount of $22,347.60. Martin said that the security for the note was a Winnebago motor home.

At some point in time, Hoffman became aware that the Winnebago may have never existed, and, we infer, Hoffman pressed McSherry for payment on the note. As a result, McSherry agreed to apply the NADART funds to reduce the joint indebtedness.

Asserting a setoff based on its claim against McSherry, Hoffman refused to turn over the NADART check in its hands to the garnishor. Instead, Hoffman delivered the check to the Hagerstown Trust Company, which, in turn, secured the endorsement of McSherry. The trust company applied the proceeds to the balance due it by McSherry and Hoffman.

I.

Hoffman, firstly, contends that the NADART check was not subject to garnishment because of a spendthrift provision in the NADART plan. There is no question that this State recognizes generally the efficacy of spendthrift provisions to prevent a creditor’s reaching funds of the debtor held in trust. Watterson v. Edgerly, 40 Md. App. 230, 388 A.2d 934 (1978). Appellant would have us hold that the spendthrift clause of the pension trust protected the refund check from attachment or other legal process.

Hoffman argues that since the check had not actually reached the hands of McSherry the trust was still in effect and, therefore, not subject to the claims of creditors. In support of his argument, appellant cites Hildreth Press Employees Federal Credit Union v. Connecticut General Life Insurance Co., 30 Conn. Supp. 513, 295 A.2d 54, cert. denied, 163 Conn. 643, 295 A.2d 669 (1972), in which the court held that a pension trust containing a spendthrift provision was still in effect even though the trustees had "approved” a cash payment of accumulated funds to the debtor. Since Connecticut does not recognize a "dry” trust, the court reasoned that until there was actual payment to the beneficiary, the funds were protected from creditors by the spendthrift provision. Hildreth, however, is readily distinguishable from the instant action. Here, the trustees had not only approved the transaction, but had issued the check and mailed it to the beneficiary albeit in care of his employer. Thus, there was more than mere approval of a payment; there was a tender of payment.

We think that when the NADART trustees issued the refund check to McSherry and forwarded it to Hoffman, the trust terminated insofar as McSherry was concerned. See Burnham v. Baltimore Gas & Electric Co., 217 Md. 507, 144 A.2d 80 (1958).

Moreover, this State recognizes the concept of a dry or passive trust, Burnham v. Baltimore Gas & Electric Co., supra, and, "[u]nder [a] passive or dry trust the estate of the cestui que trust is ... subject to levy and sale under execution against him.. ..” 90 CJS, Trusts § 197, p. 109 (1955), (emphasis in original). Knettle v. Knettle, 190 Wash. 395, 68 P.2d 218 (1937).

The check in the instant case constituted a credit in the hands of the garnishee belonging to McSherry and was, therefore, subject to attachment. Md. Cts. & Jud. Proc. (1974) Code Ann. § 3-305; Md. Rule G45 a.

II.

Hoffman, secondly, argues that even if the check were subject to attachment, the garnishee had a legitimate setoff against McSherry and, hence, against the garnishor.

"[I]n essence and effect garnishment is a suit by the debtor against the garnishee for the use and benefit of the attaching creditor and, therefore,... the rights of the creditor vis a vis the garnishee cannot rise above those of the debtor.” Messall v. Suburban Trust Co., 244 Md. 502, 506, 224 A.2d 419, 421 (1966).

The Messall Court, citing Farmers and Merchants Bank v. Franklin Bank, 31 Md. 404 (1869), made crystalline that the rights of the respective parties in attachment are determined at the time of trial and judgment, not at the time of the laying of the attachment. This principle bound all property of McSherry that came into the garnishee’s hands before trial and judgment. Messall, supra at 507, 224 A.2d at 421. The check, therefore, was subject to attachment notwithstanding that it was delivered to Hoffman approximately one week after the initial attachment was laid.

Because it co-signed a promissory note with McSherry and subsequently discovered that the security for that note allegedly never existed, Hoffman avers that it possessed a legitimate setoff against McSherry and, ergo, against the garnishor. While we agree that the Messall reasoning is applicable to all garnishment proceedings, our agreement with that general principle avails Hoffman naught under the facts of this case.

There is no evidence whatsoever in the record that the Hagerstown Trust Company loan was in default or that Hoffman had any other cognizable claim in fraud which it could assert against McSherry. Nevertheless, Hoffman says that because any claim "up to the time of trial” may be asserted as a setoff, the granting of a summary judgment was improper since a claim "might” have arisen before trial on the merits, Hoffman’s reading of Messall is myopic. Messall does not negate the entry of a summary judgment whenever there is no genuine dispute of a material fact. Md. Rule 610. In short, merely because Messall uses the phrase "time of trial and judgment” does not mean that the case must go to trial. Messall is satisfied if a summary judgment is validly entered.

In the case now before us, Hoffman not only failed to demonstrate a genuine dispute of a material fact but introduced no affidavits or exhibits evidencing a claim against McSherry. Instead, Hoffman relied entirely on the deposition of Martin in which he testified that there was a joint indebtedness to Hagerstown Trust Company, that McSherry agreed to apply the NADART funds to that indebtedness, and that a Winnebago motor home which was the subject of a security agreement signed by Hoffman and McSherry had "apparently” never existed.

Hoffman offered general allegations that the collateral which had been used as security for a loan from Hagerstown Trust Company may never have existed, but those allegations were unsupported by any evidence. There were no facts before the trial court from which it could properly infer that the loan to Hagerstown Trust Company was in default.

Judgment affirmed.

Costs to be paid by appellant.

      . Attributed to Jim Oigan. See The University of Baltimore Law Forum, Fall 1981, Vol. XI, No. 1, pg. 21, n. 12.

      . The judgment debtor, Victor McSherry, is not a party to the appeal. In any event, irrespective of the outcome, all he will receive is a credit against the sum owed by him to one or the other of the two litigants.

      . While the record extract evidences two promissory notes, one dated September 6,1978, in the amount of $8,942.40, and one dated December 21, 1977, in the amount of $5,162.04, the record before us consists only of the September 6 note and the action on that note.

      . A second writ of attachment was issued on February 7,1980. We have no need to consider that second attachment.

      . Apparently McSherry was due wages in the amount of $677.84 and retained pension contributions in the amount of $206.70. Appellant does not contest that these are attachable funds.