author: Moore, J.,

text:
    CHARLES L. ETTER v. JUDY CAROLE ETTER
    [No. 1401,
    September Term, 1978.]

      Decided September 11, 1979.

    The cause was argued before Moore, Lowe and MacDaniel, JJ.

      Michael L. Pullen for appellant.

      John Severt, with whom was Joseph J. Wase on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

The questions presented on this appeal are whether, pursuant to the Uniform Child Custody Jurisdiction Act, Md. Ann. Code art. 16, §§ 184-207, (Supp. 1978), the Circuit Court for Howard County (Fischer, J.) had jurisdiction, and properly exercised it, to resolve a custody dispute involving a child whose home had been with his father in Dover, Delaware. On the basis of the facts and circumstances disclosed in the record, and the provisions of the Act, we hold that the court was correct in exercising jurisdiction over the controversy.

I

In November 1977, Judy Carole Etter, after years of marital strife, departed from her home in Dover, Delaware, leaving behind her husband, the appellant, and Troy, her 12-year old son. Thereafter, she established residence in Columbia, Maryland, where she secured a job as an accountant. During her separation from Troy, appellee maintained frequent contact with him. No custody decree had been issued by any court; Troy remained with his father by agreement of the parties.

Late in the evening of July 22, 1978, Troy, then 13 years of age, telephoned appellee and pleaded with her to come for him and take him to live with her in Maryland. In the early morning hours of July 23, she and Troy crossed into Maryland and proceeded to appellee’s home in Columbia.

Court proceedings inevitably ensued. The record indicates that on Friday, August 11,1978, the Circuit Court for Howard County signed an ex parte Order granting custody of Troy to appellee “during pendency of this proceeding.” We are told that the court issued the Order after talking with appellee and with Troy, and after the office of the Clerk of the Court had closed. Appellant was not notified of the proceeding. On the same day, at 4;02 p.m., appellant filed a petition in the Family Court of Delaware seeking custody of £he boy. The following Monday, August 14th, at 9:43 a.m., appellee’s petition for “Sole and Exclusive Custody” was filed in the office of the Clerk of the Circuit Court for Howard County. On August 16th, notice of the ex parte Order was sent to appellant. The Delaware court, after learning of the Maryland petition, and believing it had been filed first, by Order dated August 28, 1978, stayed further proceedings in Delaware.

A hearing was held in Maryland on September 20th before Judge Fischer. Appellant, although he had filed no responsive pleading to his wife’s petition, was represented by counsel and appeared as a witness. Two of his neighbors from Dover, Delaware also testified. The court also heard the testimony of appellee and of five witnesses on her behalf. The boy was also a witness. At no time prior to or during the hearing were any statements made or actions taken challenging the validity of the ex parte temporary Order. At the conclusion of the hearing, the parties were permitted to submit memoranda on the jurisdictional question. The court filed its opinion on December 6th, in which it held that Maryland had jurisdiction and awarded custody to appellee.

On this appeal, Mr. Etter raises three issues. He contends that: the ex parte Order was void; Maryland had no subject matter jurisdiction; and, alternatively, the lower court should have declined jurisdiction so as to recognize and enforce the public policies underlying the Uniform Child Custody Act.

II

Relying principally on Maryland Rule 170, appellant first requests that we declare the ex parte Order of August 11, 1978 void because at the time of its issuance no pleadings were on file with the clerk. This Order, interlocutory in nature, granted temporary custody of Troy to appellant. Pursuant to Md. [Cts. & Jud. Proc.] Code Ann. § 12-303 (c) (10) (Supp. 1978), a natural parent may appeal an interlocutory order that deprives him or her of the care and custody of his or her child. Appellant’s trial counsel, who withdrew his appearance after the proceedings below, neither appealed this Order nor raised any questions as to its validity. The point is obviously moot.

Ill

Appellant strenuously contends that the lower court was without jurisdiction to determine custody. The Oregon Court of Appeals in Carson v. Carson aptly described the steps to be followed in determining jurisdiction and the propriety of its exercise under the Uniform Child Custody Jurisdiction Act [hereinafter cited as the Act]. It stated:

“Under the Act the court must go through a multistep process in determining whether to exercise jurisdiction. First it must ascertain whether it has jurisdiction.... If it finds that there is jurisdiction, then the court must determine whether there is a custody proceeding pending or a decree in another state which presently has jurisdiction. If so, the ... court must decline to exercise its jurisdiction____ Finally, assuming the court has jurisdiction and there is not a proceeding pending or a decree, the court then must determine ... whether to exercise its jurisdiction because of convenient forum.” (Emphasis added.)

565 P.2d 763, 764-65 (1977).

In Maryland, Section 186 of the Act sets forth the instances when a court of this State, competent to decide child custody matters, has jurisdiction to make a child custody determination. Md. Ann. Code art. 16, § 186 (Supp. 1978). Subsection (a) (2), relied upon by the court below, confers jurisdiction if, inter alia:

“It is in the best interest of the child that a court of this State assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this State, and (ii) there is available in this State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships____” (Emphasis added.)

It becomes apparent that the critical elements are (a) “a significant connection with [the] State” and (b) that “substantial evidence” be available in Maryland to show the child’s present and future needs. One court has interpreted this “as meaning a high but not maximum degree of connection and access to evidence.” Carson v. Carson, 565 P.2d at 767. Despite appellant’s arguments to the contrary, the record here is replete with evidence showing that the mother and child had a strong connection with Maryland, that substantial evidence was available in Maryland concerning his needs, and that it would be in the best interests of Troy for the Maryland court to exercise jurisdiction. This is reflected in the comprehensive opinion of Judge Fischer. He stated in part:

“It is abundantly clear from the testimony of the parties and witnesses that Troy’s best interests lie with his care and custody being with his mother. The difficult decision for this Court is whether this Court is the appropriate Court to make that decision.
Troy was until quite recently a citizen of the State of Delaware and that State has a paramount interest in Troy’s welfare. It seems apparent from a full review of the Uniform Child Custody Act to which both Delaware and Maryland are signators that it would not be unreasonable to reach the conclusion that Delaware is the appropriate forum in which to litigate Troy’s custody. The Uniform Act was enacted to prevent parents from taking children from one jurisdiction to another in order to change the forum in which to determine custody. But, in the present case, it appears that the Circuit Court for Howard County, Maryland is the proper court to exercise jurisdiction over the parties. The Circuit Court for Howard County meets the jurisdictional requirements of the Uniform Child Custody Jurisdiction Act. Article 16 Sec. 186 (a) (2) of the Act provides that jurisdiction may be invoked where:
‘it is in the best interest of the child that a court of this State assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this State, and (ii) there is available in this State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships.’
The facts of this case indicate that both the child and mother have significant connections with the State of Maryland. The mother has lived and worked in Maryland for nine months and she has acquired a single family dwelling as a residence for both her and Troy. Troy is attending a school in Maryland at Wilde Lake Middle School in Columbia and finding it personally rewarding, in a contrast to his attitude toward school in Delaware. Mrs. Etter and Troy have close family ties with two of the boy’s maternal aunts and the boy and his mother have established close medical connections with Dr. Hayes, a psychologist and resident of Howard County. Dr. Hayes has reported that both Troy and Mrs. Etter must continue with their psychotherapy treatment so that both can recover from the effects of the marital strife.
As to the second requirement of Article 16 Sec. 186 (a) (2) there is available in this State substantial evidence concerning Troy’s present or future care, protection, training and personal relationships. Troy’s mother lives in Maryland and he emphatically desires to remain with her. All of Troy’s school records are in Maryland and Troy’s psychologist, with whom Troy meets regularly, lives in Maryland. It thus appears that the Circuit Court for Howard County, in the present and in the future, has optimum access to relevant evidence about the child and family. In addition this does not appear to be the typical case of a parent unilaterally removing a child from one state to another. In this case Troy was not snatched by a parent. He initiated the call for help to his mother to escape what now can be readily perceived as an intolerable situation.
Troy’s present situation with his mother is a vast improvement over his prior living arrangement with his father. The mother appears to be willing to mold her own life to fit a pattern more in keeping with Troy’s best interest and needs. He appears to be content and happy in school and his anxieties are limited to the prospect of being required to return to his father. This is not to criticize Mr. Etter, he is obviously extremely interested in Troy. He has obtained counsel in both Delaware and Maryland and he travelled to this state to participate in the hearing. It may well be that the pressures which led to his mistreatment of Troy are beyond his control. In any event, Troy’s best interests require that Troy remain in his present living arrangement. From a practical standpoint it would be pointless to return Troy to Delaware. The testimony showed that he tried to run away on two occasions with the intent to join his mother prior to July of 1978.
A young man like Troy cannot be required by force to live with his father if he finds it intolerable to do so. He will in the future, as he has done in the past, find a way to escape to live with his mother.
The Court will, therefore, retain jurisdiction over this matter and permit the father to have reasonable visitation with Troy upon application____” (Emphasis added.)

Appellant argues, however, that the lower court was “divested of subject matter jurisdiction” by virtue of Section 188 of the Act entitled, “Proceeding Pending in Another State.” Subsection (a) provides:

“Except where the child has been abandoned or it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or is otherwise neglected or dependent, a court of this State shall not exercise its jurisdiction under this subtitle if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this subtitle, unless the proceeding is stayed by the court of the other state because this State is a more appropriate forum or for other reasons.” (Emphasis added.)

We disagree with appellant’s contention for several reasons. First, it is a misreading of the quoted language. Clearly, section 188 (a) does not “divest” a court of jurisdiction once jurisdiction has been found under section 186 (“When court has jurisdiction”). It recognizes the existence of jurisdiction but provides that the court shall not exercise it, except in situations of abandonment or emergency or if the other proceeding has been stayed. Furthermore, it is plain from a reading of section 188 in its entirety that the mere fact of the pendency of an action in another state is not determinative of the responsibility of a Maryland court to withhold the exercise of its jurisdiction. The pendency of such other action must be known to the Maryland court. Our courts are, of course, required by section 188 (b) to examine the pleadings and consult the child registry established under section 198 in order to ascertain whether any proceedings with respect to the child are pending in other states or elsewhere in Maryland. See Paltrow v. Paltrow, 37 Md. App. 191, 376 A.2d 1134 (1977), aff’d 282 Md. 413 (1978). Here, however, the respective proceedings — in Maryland and in Delaware — were initiated on the same afternoon, so that neither court could have become informed on that day of the other’s case. The Maryland court issued a temporary custody order. When the Delaware court thereafter learned of the Maryland petition and order, it stayed its own proceedings, thus relieving the lower court, under the last phrase of section 188 (a), of any requirement that it not exercise its jurisdiction. The Judge of the Family Court of the State of Delaware wrote to the Judge of the Circuit Court for Howard County, correctly observing:

“I certainly recognize that you have jurisdiction to intervene absent any knowledge of any pending proceedings in this Court, the home state of the child.” (Emphasis added.)

Finally, we observe that section 194 of the Act entitled, “Custody decree binding and conclusive,” must not be overlooked. That section reads:

A custody decree rendered by a court of this State which had jurisdiction under § 186 binds all parties who have been served in this State or notified in accordance with the Maryland Rules of Procedure, or who have submitted to the jurisdiction of the court, and who have been given an opportunity to be heard. As to these parties the custody decree is conclusive as to all issues of law and fact decided and as to the custody determination made unless and until that determination is modified pursuant to law, including the provisions of this subtitle.” (Emphasis added.)

In the instant case, as previously noted, the father was represented by counsel and had a complete opportunity to participate fully in the proceedings below, both as to jurisdiction and the merits of the mother’s petition for an award of custody.

IV

Even if Maryland had jurisdiction, appellant argues alternatively that the public policy considerations expressed in sections 184,189, and 190 of the Act, establish that subject matter jurisdiction rightfully existed in Delaware. In other words, he maintains that the lower court abused its discretion when it exercised jurisdiction. We do not agree.

With respect to section 184 (“Purpose and construction of subtitle”), it is contended that the provisions of subsection (a) (3) have been ignored. The Act there declares that the “general purposes” are to:

“Assure that litigation concerning the custody of a child takes place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available, and that courts of this State decline the exercise of jurisdiction when the child and his family have a closer connection with another state----”

This declared purpose must be considered in relation to section 186 (a) (2), previously quoted, upon which the lower court based its finding of jurisdiction after a careful evaluation of “substantial evidence” concerning the boy’s future care, protection, training, and personal relationships. The court’s proper conclusion under the latter section involves no subversion of the purpose stated in section 184 (a) (3).

Next, appellant argues that pursuant to section 189 of the Act entitled, “Finding that court is inconvenient forum,” Maryland should have declined jurisdiction. In determining whether a court is an inconvenient forum, section 189 fc) provides that the court “may take into account the following factors, among others”:

“(1) If another state is or recently was the child’s home state;
(2) If another state has a closer connection with the child and his family or with the child and one or more of the contestants;
(3) If substantial evidence concerning the child’s present or future care, protection, training, and personal relation is more readily available in another state;
(4) If the parties have agreed on another forum which is no less appropriate; and
(5) If the exercise of jurisdiction by a court of this State would contravene any of the purposes in § 184.”

While Delaware recently had been the child’s home, we agree with the court below that factors (2) and (3) weighed substantially in Maryland’s favor. Clearly, the court was mindful of these guidelines and, we believe, correctly applied them.

Section 190 of the Act provides that a court may decline jurisdiction “[i]f the petitioner for an initial decree has wrongfully taken the child from another state or has engaged in similar reprehensible conduct....” This section is designed to achieve the purpose of section 184 (a) (5), to “[d]eter abductions and other unilateral removals of children undertaken to obtain custody awards.” Appellee did not “child-nap” Troy in the “classic” sense, as suggested in appellant’s brief. Troy pleaded with her to rescue him. Moreover, appellee was cognizant of the physical abuse Troy had suffered. Her actions were those of a concerned, loving, and responsible parent.

We therefore reject appellant’s final argument that the purposes and policies of the Act were thwarted when Maryland assumed and exercised jurisdiction in the matter of an award of custody of Troy Etter.

Decree affirmed; costs to be paid by appellant.

      . The appellee’s affidavit concerning “information as to child” required by § 191 of the Act stated in part, “I have no information of any custody proceeding concerning Troy Douglas Etter in this or any other state____No other person has physical custody of Troy Douglas Etter but Charles L. Etter has indicated that he intends to seek custody or visitation rights with respect to Troy Douglas Etter.” The affidavit annexed to appellant’s Delaware petition stated that, “To the best of his knowledge and belief, there are no custody proceedings concerning Troy pending in a court of this or any other state.”

      . This Rule simply provides that an action in equity shall be commenced by filing a bill or petition or special case by consent under Rule 329; that process shall not be served upon any bill until the bill and exhibits are filed; and that no injunction or restraining order or orders appointing a receiver shall issue until instruments of record “necessary to show the character and extent of the plaintiff’s interest” shall have been filed with the clerk.

      . In any event, we would judicially notice that, all too often, on late Friday afternoons, judges in chambers are presented with pleadings and ex parte orders; and that such orders are sometimes signed after the clerk has locked the doors, and it is not until Monday morning that the papers are filed. That is indubitably what happened here. Rule 170 is far short of requiring that such an order be held a nullity.

      . Although there was substantial evidence that the father had administered beatings to the boy at the home in Dover, the court did not base jurisdiction on the ‘Emergency” provisions of § 186 (a) (3) or rely upon the “emergency” language of § 188 (a).


source: Caselaw Access Project

author: Morton, J.,

license: Public Domain

text:
    MARYLAND EMPLOYMENT SECURITY ADMINISTRATION v. HOLY CROSS HOSPITAL OF SILVER SPRING, INCORPORATED
    [No. 1403,
    September Term, 1978.]

      Decided September 11, 1979.

    The cause was argued before Morton and Melvin, JJ., and Samuel W. Barrick, Associate Judge of the Sixth Judicial Circuit, specially assigned.

      Carolyn L Polowy, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Joel J. Rabin and Lois F Lapidus, Assistant Attorneys General, on the brief, for appellant.
    Submitted on brief by Stanley J. Nadonley for appellee.
   Morton, J.,

delivered the opinion of the Court.

This appeal is taken by the Board of Appeals (Board) of the Maryland Employment Security Administration (ESA) from an order of the Circuit Court for Montgomery County (Cahoon, J.), reversing a previous decision of the Board. The Board had concluded that employers who elect to be “reimbursers” under art. 95A, § 8 (d), Md. Code, are liable for reimbursement to the ESA of all benefits paid, including overpayments made as a result of agency error. The circuit court reversed, holding that a “reimburser” employer is not liable for the repayment of monies erroneously paid out by the ESA.

Holy Cross Hospital of Silver Spring, Inc., the appellee, operates a nonprofit community hospital in Silver Spring, Maryland. It appears that in December, 1974, a former Holy Cross employee, James C. Grissom, applied to the ESA for unemployment benefits. Grissom had been fired for assaulting his supervisor and the hospital disputed his claim on the ground that he had engaged in “gross misconduct.” On February 14, 1975, an ESA claims examiner found that Grissom was guilty of “misconduct,” as distinguished from “gross misconduct,” and under art. 95A, § 6 (c), disqualified Grissom from receiving benefits for a nine week period. The hospital appealed this decision to an appeal referee, who concluded on April 8, 1975, that Grissom had in fact committed “gross misconduct” within the meaning of art. 95A, § 6 (b). The effect of this decision was to increase Grissom’s penalty to the extent that he would be disqualified from receiving benefits until he earned ten times his weekly benefit amount.

Prior to the referee’s decision, Grissom had been paid benefits totaling $623.00. Holy Cross does not claim that it should receive credit for these payments. Because of “agency error,” however, admitted by the ESA, Grissom continued to receive payments after April 8,1975, when his benefits should have ceased in accordance with the referee’s decision. A total of $2,269.50 was erroneously paid by the ESA and it is this sum which is the subject of the instant case.

On May 10,1976, Holy Cross first requested that it receive credit for the funds erroneously paid to Grissom. The ESA refused to grant such credit and Holy Cross subsequently made at least two other similar requests. By letter dated June 11, 1976, the executive director of the ESA informed Holy Cross that its request for an adjustment was denied, stating, in pertinent part:

“Under the Unemployment Insurance Law, when a non-profit organization elects, as your client did, to be a reimbursing employer rather than a tax paying one, it becomes a self-insurer, and as such, is not entitled to credits of any kind when overpayments are involved until such time as full recovery is effected. In this case there will be no recovery...
The provision in the statute relating to crediting the accounts of employers by removing charges when an overpayment occurs, applies only to tax paying and not to self-insurers, since then the latter would not in any way be contributing to the fund which, if a payment is made to reimburse the employer, would bear the cost of the improper payment at no cost to the self-insurer.”

Holy Cross appealed the executive director’s decision to the Board of Appeals of the ESA. After a hearing, the Board upheld the previous administrative action in which Holy Cross had been “required to reimburse the Unemployment Insurance Trust Fund for benefits paid to former employees due to an error on the part of the agency.” Holy Cross appealed the Board’s decision to the Circuit Court for Montgomery County. The court reversed the Board, stating, in pertinent part:

■ “In the critical phrases the statute authorizes the Hospital ‘... to pay to the Executive Director for the Unemployment Insurance Fund an amount equal to the amount of regular benefits and one half of the extended benefits paid, that is attributable to service in the employ of such non-credit organization,...’ (emphasis added) Article 95A, Sec. 8 (d) (2), An. Code Md., 1978 Cum. Supp. The legislature in the same statute explicitly defines the word ‘Benefits’ as ‘... the money payments payable to an individual, as provided in this Article, with respect to his unemployment, (emphasis added) Art. 95A, Sec. 20 (b), An. Code Md., 1969 Rep. Vol.
Courts are to follow legislative definitions and apply the meanings expressed by the legislature’s use of the defined words. Here, as expressed, ‘benefits paid’ are ‘... money payments payable to an individual, as provided in this Article...’ If what was paid to the claimant was not payable under the act, it was not a benefit paid and is not an amount to be paid by the Hospital.”

As a nonprofit organization, Holy Cross was entitled under the provisions of art. 95A, § 8 (d) to elect either to make tax contributions (in the manner of a regular profit-making organization) or to reimburse the Insurance Fund dollar for dollar for benefits paid to its employees. Holy Cross elected the latter procedure, that is, in the words of the statute, to make “payments in lieu of contributions.” As Judge Cahoon correctly pointed out in his opinion, the effect of such an election is to make the employer, in essence, a “self-insurer.”

The lower court, in reaching its conclusion that a reimburser employer was not liable for benefits erroneously paid, relied heavily on the definition of “benefits” contained in § 20 (b), which is “money payments payable to an individual, as provided in this article____” The court reasoned that “[i]f what was paid to the claimant was not payable under the Act, it was not a benefit paid____” We consider this conclusion a dubious one in light of the language of § 8 (d), which deals specifically with reimburser employers and states, in pertinent part:

“Benefits paid to employees of nonprofit organizations shall be financed in accordance with the provisions of this subsection.” (Emphasis added.)

It is therefore apparent that under § 8 (d) the critical reference is to benefits “paid” rather than benefits “payable.”

It is not contended that there is any express authorization in article 95A for making refunds to reimbursing employers. It appears from an examination of the refund provisions of § 15 that the section refers only to “contributor” employers. The lower court, although aware of this problem, stated that “[i]f the legislature intended an obscure limit or prohibition, it can more clearly express such a burden to organizations to which it has presented an election to be reimbursers.” We believe, however, that the better view is that if the legislature had intended to authorize refunds, or “non-charging,” of benefits to reimburser employers, it would have specifically done so, particularly when § 8 (d) is devoid of any language limiting the payments to be made by reimburser employers to those benefits properly paid.

While there is no Maryland authority on this precise point, we note that other jurisdictions are divided on the issue. We find highly persuasive the reasoning of the Court of Appeals of Oregon in Mann Home v. Morgan, 19 Or. App. 853, 529 P.2d 964 (1974), wherein the court concluded that “non-charging” of benefits must be limited to “contributing” employers because any other interpretation “... would result in the payment of benefits from the Fund without a corresponding payment of taxes or reimbursement of the Fund by the employer with respect to these former employees. The courts will not give an interpretation to a statute which produces an inconsistent or unreasonable result. We agree with the state that the legislature could not have intended to give reimbursing employers a ‘free ride’ at the expense of tax-paying employers.” (Citations omitted.) Id. at 857.

This conclusion also finds support in the legislative history of the provisions permitting nonprofit organizations to elect reimburser status. The states were required by the United States Congress to extend this option to nonprofit employers under the terms of P.L. 91-373 (1970), which amended certain sections of the Internal Revenue Code. The Maryland General Assembly enacted the appropriate legislation in Chapter 790, Laws of Maryland, 1971.

The U. S. Department of Labor prepared draft legislation, which was distributed to the states, demonstrating how the requirements of P.L. 91-373 could be implemented. In the comment following § 8 (f) 4 of the draft legislation, which is substantially similar to § 8 (d) 4 of the Maryland statute, the Labor Department observed that:

“Non-charging of benefits to employers reflects concepts that are not reasonably applicable or adaptable to reimbursing employers. When benefits paid to a former employee of a contributing employer are not charged to the employer’s account, he escapes only the consideration of such benefit payments in the computation of his contribution rate. He does not avoid a potential liability to share with all other contributing employers, to the extent that the fund may require, in meeting such benefit costs. Minimum contribution rates, solvency accounts, socialized costs, etc., are devices that recognize this potential liability.
Reimbursing employers, who are required to pay into the State fund an amount equal to the benefit costs attributable to service in their employment, are in an inherently different position. They are self-insurers, fully liable for such benefit costs of their employees and not liable at all for the cost of any other benefits. If a reimbursing employer, for example, were relieved of the cost of post-disqualification benefits paid to a worker who had quit his employment, no other reimbursing employer could be required to pay into the fund to help meet that cost, as is in effect the case with a contributing employer whose account is non-charged for such a benefit payment. U. S. Dept, of Labor, Draft Legislation to Implement The Employment Security Amendments of 1970 ... H.R. 14705, p. 104.” (Emphasis added.)

It is apparent that the U. S. Department of Labor did not favor the adoption of non-charging provisions for reimburser employers and we think it is reasonable to assume that the Maryland General Assembly was aware of this policy when it enacted the 1971 legislation. The rationale expressed in the comments to the Labor Department’s draft legislation, quoted supra, also demonstrates that there is a rational basis for treating reimburser employers differently from contributor employers with respect to the non-charging of benefits improperly paid. Accordingly, we find no merit in the appellee’s equal protection argument, which was only tangentially noted in its brief. Furthermore, it should be remembered that a nonprofit employer can elect to be either a reimburser or a contributor, a fact which further dilutes any claim of improper discrimination.

Finally, we cannot see that holding reimburser employers liable for erroneously paid benefits is in any way inconsistent with the duty of the executive director of the ESA to seek recoupment of overpayments from the claimant. See art. 95A, § 17 (d). Repayment of funds which have been recouped does not appear to be limited to contributor employers. In this case, therefore, Holy Cross could have been repaid if the ESA had been successful in its recoupment efforts. This is precisely the position that the executive director took in the instant case when he informed Holy Cross that a refund could not be made “until such time as full recovery is effected.”

In summary, our examination of the language and history of the relevant provisions of article 95A leads us to the conclusion that reimburser employers are liable even for those benefits improperly paid.

Judgment reversed; costs to be paid by appellee.


author: Melvin, J.,

text:
    PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY v. DORIS M. GARTELMAN et al.
    [No. 1202,
    September Term, 1978.]

      Decided September 13, 1979.

    The cause was argued before Gilbert, C. J., and Melvin, J., and K. Thomas Everngam, Associate Judge of the Second Judicial Circuit, specially assigned.

      M. Natalie McSherry, with whom were Louis G. Close, Jr., and Whiteford, Taylor Preston, Trimble & Johnston on the brief, for appellant.

      Lee Gordon, with whom were Gordon & Goodman, P.A. on the brief, for appellee Doris M. Gartelman. Ronald H. Jarashow, with whom were William A. Franch and Goldsborough, Franch & Collett on the brief, for other appellee.

       Note: Certiorari granted, Court of Appeals of Maryland, November 16,1979.

   Melvin, J.,

delivered the opinion of the Court.

The issues in this appeal involve the proper application of the Personal Injury Protection Endorsement (the PIP Endorsement) and the Uninsured Motorists Insurance Endorsement (the UM Endorsement) to a policy of automobile liability insurance, issued October 27,1976, by the appellant, Pennsylvania National Mutual Casualty Insurance Company (Penn National) to Gilbert J. Gartelman, the husband of appellee, Doris M. Gartelman.

On July 13, 1977, while Mrs. Gartelman was operating a Garelli “moped” on a public highway in Anne Arundel County, Maryland, she allegedly sustained personal injuries when she was forced off the highway by an unidentified motor vehicle. The moped was owned by Mr. Gartelman. It may be generally defined as a vehicle with two wheels in tandem designed to be operated by human power with the assistance of a small internal combustion engine. Mr. Gartelman’s policy listed seven different motor vehicles owned by him as “covered automobiles.” The moped was not so listed.

Mrs. Gartelman looked to Penn National for benefits under the PIP Endorsement and the UM Endorsement of her husband’s policy. Penn Mutual denied coverage under either endorsement because of a certain exclusion provided in each endorsement. Mrs. Gartelman and her husband thereupon filed a petition for declaratory judgment seeking a declaration that benefits were available to Mrs. Gartelman under each endorsement. The Gartelmans joined the Maryland Automobile Insurance Fund (MAIF) as a defendant in the action and requested a further declaration that in the event the court found no coverage under the UM Endorsement in the Penn National policy, MAIF would “be required to accept the claim of the Plaintiffs under the terms and conditions of Article 48A [Annotated Code of Maryland].”

Penn National’s motion for summary judgment on the issue of the PIP Endorsement was denied; instead, summary judgment in favor of Mrs. Gartelman was granted on that issue. MAIF’s motion for summary judgment, in which MAIF successfully contended that Mrs. Gartelman was covered by the UM Endorsement in the Penn National policy, was granted. Penn National filed a timely appeal from the order of court (Goudy, J.) directing that these two judgments be entered.

The issue as to each endorsement is whether an exclusion provided in the endorsement is legally effective to deny coverage to Mrs. Gartelman.

I.

THE PIP ENDORSEMENT.

Section 539 of Article 48A (Md. Ann. Code, 1979 Repl. Vol.) provides in pertinent part that no policy of motor vehicle liability insurance may be issued after January 1,1973, unless it affords minimum medical, hospital, disability, and loss of income benefits up to $2,500 (the PIP coverage) for “the named insured and members of his family residing in his household... injured in any motor vehicle accident (including an accident involving an uninsured motor vehicle or a motor vehicle whose identity cannot be ascertained)____” (Emphasis added.) Section 540 provides that benefits required under section 539 shall be payable without regard to fault. Section 545 provides for permissible exclusions from the coverage prescribed by section 539 and reads as follows:

“The coverages prescribed under § 539 of this article may exclude from benefits thereunder any person otherwise insured under the policy who:
(a) Intentionally causes the accident resulting in the injury, or
(b) Is injured while operating or voluntarily riding in a vehicle known by him to be stolen, or
(c) Is injured while in the commission of a felony or while in violation of § 21-904 of the Transportation Article.
(d) With respect to motorcycles, economic loss benefits required under § 539 may be excluded, or may be offered with deductibles, options or with specific exclusions. (1972, ch. 73, § 1; 1977, ch. 765, § 13.)”

Penn National sought to comply with the mandate of section 539 by including in the policy issued to Mr. Gartelman its “Maryland Personal Injury Protection Endorsement.” The endorsement contained, however, the following exclusion:

“This insurance does not apply:
(a) ...
(b) ...
(c) to bodily injury sustained by the named insured, or any relative while occupying ... any motor vehicle owned by the named insured ... and which is not an insured motor vehicle.”
“Named insured” is defined in the endorsement to mean:
“the person or organization named in the declarations and if an individual [Mr. Gartelman], includes his spouse if a resident of the same household [Mrs. Gartelman].”
“Insured motor vehicle” is defined in the endorsement as:
“a motor vehicle of which the named insured is the owner, to which the bodily injury liability insurance of the policy applies and for which a specific premium is charged.”
“Motor vehicle” is defined in the endorsement as:
“an automobile and any other vehicle, including a tractor, operated or designed for operation upon a public road by any power other than animal or muscular power.”

Thus, it is clear that under the terms of the endorsement the exclusion quoted above deprives Mrs. Gartelman of coverage because she (a “named insured”) sustained bodily injury while occupying a motor vehicle owned by a “named insured” (Mr. Gartelman) and which was not insured.

Penn National concedes that the endorsement exclusion “is not specifically provided for in § 539.” Nor, of course, is it included in the list of exclusions permitted by section 545. For these reasons Judge Goudy held that the exclusion resulted in less coverage than that required by law and was, therefore, ineffective. We agree.

Section 539 mandates that the benefits of PIP coverage be afforded to, among others, “the named insured and members of his family residing in his household” who are “injured in any motor vehicle accident.” It is not disputed that but for the exclusion, Mrs. Gartelman fits the category of persons to whom coverage must be afforded. A well-established rule of statutory construction was expressed by the Court of Appeals in State Insurance v. Nationwide, 241 Md. 108, 117, 215 A.2d 749 (1966).

“Where a statute expressly provides for certain exclusions, others should not be slightly read therein by implication, for if the Legislature intends other exclusions it is so easy to add them to the already-named explicit ones. CF. Vanderford v. Farmers’ Bank, 105 Md. 164; Fowel v. State, 206 Md. 101; 2 Sutherland Statutory Construction (3 ed.), § 4915.

Here, the Legislature has provided in section 545 for certain permissible exclusions from the coverage mandated by section 539. The exclusion contained in Penn National’s PIP Endorsement is not among them. Penn National would have us add to that list, by judicial fiat, an exclusion that the Legislature did not see fit to provide. This, we decline to do.

Penn National argues that our decision in Lord v. Maryland Automobile Insurance Fund, 38 Md. App. 374, 381 A.2d 23 (1977), supports the conclusion that the disputed exclusion is permissible. In that case, the claimant, a non-resident of Maryland, sought PIP benefits from the named insured’s insurance carrier after sustaining injuries in an automobile accident while he was driving the named insured’s automobile with her consent in Louisville, Kentucky. The insured’s insurance policy contained a provision that excluded from its PIP coverage “any person other than the Named Insured or a member of his family who is a resident of the same household if the accident occurs outside of Maryland." (Emphasis added.) In upholding the validity of the exclusion, we found no statutory bar to “imposing a contractual territorial limitation which excludes [from PIP benefits] non-residents of the State of Maryland.” We cited authority (Couch on Insurance 2d § 37.803 (1961)) to the effect that “[territorial use limitations are valid” and “are not conditions.” We found in the Maryland statutes concerning automobile insurance “no legislative intent” to bar the territorial exclusion challenged in that case.

We are not persuaded that the same considerations that convinced us to sanction the territorial exclusion in the Lord case require approval of the exclusion in the case now before us.

In enacting section 539 of the Maryland Insurance Code, we think the Legislature intended to create two classes of persons to whom the benefits of PIP coverage must be afforded. The first class includes the named insured and his family members residing in his household “injured in any motor vehicle accident,” and the second class includes “other persons” who are entitled to the benefits of PIP coverage only when a vehicle to which the policy applies is involved. With respect to the first class, to which Mrs. Gartelman clearly belongs, the language of the section does not condition coverage upon the occupancy of an “insured motor vehicle” at the time of the accident. The members of that class are entitled to coverage when injured in "any” motor vehicle accident even when an “insured motor vehicle” is not in any way involved in the accident. Because Penn National’s exclusion in its PIP Endorsement does condition coverage for members of the first class upon their occupancy of “an insured motor vehicle” it is inconsistent with statutory requirements and is illegal and ineffective.

II

THE UNINSURED MOTORIST ENDORSEMENT Section 541 (c) of the Insurance Code (Art. 48A) provides:

“(c) Uninsured motorist coverage. — In addition to any other coverage required by this subtitle, every policy of motor vehicle liability insurance issued, sold, or delivered in this State after July 1,1975 shall contain coverage, in at least the amounts required under Title 17 of the Transportation Article, for damages which the insured is entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injuries sustained in an accident arising out of the ownership, maintenance, or use of such uninsured motor vehicle. The coverage required under this subsection (c) shall be in such form and subject to such conditions as may be approved by the Commissioner of Insurance. Any provision in any policy of motor vehicle liability insurance issued after July 1, 1975, with respect to the coverage provided for damages sustained by the insured as a result of the operation of an uninsured motor vehicle, which commands or requires the submission of any dispute between the insured and the insurer to binding arbitration, is prohibited and shall be of no legal force or effect. In no case shall the uninsured motorist coverage be less than the coverage afforded a qualified person under Article 48A, §§ 243H and 243-1. The coverage required under this subsection shall be primary to any right to recover from the Maryland Automobile Insurance Fund pursuant to § 243H of this article.” (Emphasis added.)

The coverage afforded by section 243H includes the following:

“(a) ...
(1) Claims for the death of or personal injury to a qualified person or for damage to property in excess of $100, arising out of the ownership, maintenance or use of a motor vehicle in this State where the identity of the motor vehicle and of the operator and owner thereof cannot be ascertained or it is established that the motor vehicle, at the time the accident occurred, was in the possession of some person other than the owner without the owner’s consent and that the identity of the person cannot be ascertained; provided that
(i) The claimant was not, at the time of the accident, operating or riding in an uninsured motor vehicle owned by him and is not the personal representative of the person so operating or riding in such a vehicle____” (Emphasis added.)

Section 243-1 sets the amounts payable to a claimant under section 243H.

In compliance with section 541 (c), the policy issued by Penn National contained an endorsement (the UM Endorsement) providing that Penn National would

.. pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured highway vehicle because of bodily injury or property damage, caused by accident and arising out of the ownership, maintenance or use of such uninsured highway vehicle____” (Emphasis added.)

The endorsement provides that “an insured” is:

“(a) the named insured and any designated insured and, while residents of the same household, the spouse and relatives of either;
(b) any other person while occupying an insured highway vehicle; and
(c) any person, with respect to damages he is entitled to recover because of bodily injury to which this insurance applies sustained by an insured under (a) or (b) above.”

Penn National does not dispute that Mrs. Gartelman is an “insured” within both the endorsement definition and the “omnibus clause” of the basic automobile liability policy. Nor is it argued that under these circumstances, even though the statute requiring uninsured motorists coverage for an “insured” does not define the word, Penn National would not ordinarily be required by the statute (section 541 (c)) to afford uninsured motorist coverage to a person in Mrs. Gartelman’s position. Penn National’s contention is that Mrs. Gartelman is excluded from coverage solely because of the following exclusion contained in the UM Endorsement:

“This insurance does not apply:
(a) ...
(b) to bodily injury to an insured while occupying a highway vehicle (other than an insured highway vehicle) owned by the named insured, any designated insured or any relative resident in the same household as the named or designated insured.”

“Highway vehicle” is defined in the UM Endorsement to mean:

“... a land motor vehicle or trailer other than
a) a farm type tractor or other equipment designed for use principally off public roads, while not upon public roads,
b) a vehicle operated on rails or crawler treads, or
c) a vehicle while located for use as a residence or premises.”

Unlike the PIP Endorsement, there is no definition of “motor vehicle” in this endorsement. Assuming, without deciding, that a moped is a highway vehicle as that term is used in the UM Endorsement, it becomes evident that the terms of the endorsement exclusion preclude coverage for Mrs. Gartelman’s injuries. The injuries were sustained while she was occupying an uninsured highway vehicle owned by the named insured (Mr. Gartelman).

Once again, however, we must measure that exclusion against statutory requirements. The statute (section 541 (c)) requires that uninsured motorist coverage “in no case ... be less than the coverage afforded a qualified person under Article 48A §§ 243H and 243-1.” There is no contention in this appeal that Mrs. Gartelman is not a “qualified person.” Section 243H (a) (1) (i), however, permits an exclusion from the benefits otherwise afforded a qualified person. This statutorily permitted exclusion provides that coverage will not be afforded if at the time of the accident “[t]he claimant was ... operating or riding in an uninsured motor vehicle owned by him----”

In recent years, the courts in several states that, like Maryland, require automobile liability insurance policies to provide uninsured motorist coverage have had occasion to consider the validity of the policy exclusion of the same type here considered, i.e., a provision that excludes from coverage bodily injury to a person otherwise covered if the injury occurred while that person was occupying an uninsured vehicle owned by the named insured or his family members resident in the same household. See, A WIDISS, A GUIDE TO UNINSURED MOTORIST COVERAGE, § 2.9 (1969 & Supp. 1978); Medina, Insurance: Validity of the Owned-but-Uninsured Motor Vehicle Exclusion Under the Uninsured Motorist Act, 28 OKLAHOMA LAW REVIEW 894 (1975). Where the exclusion is not specifically authorized by statute, it appears that “[c]ourts in a growing number of states — probably now characterized as a distinct majority of the jurisdictions in which the issue has been reached — have adopted the position ... that the exclusion is in conflict with the uninsured motorist statute. These courts reason that the endorsement provision is ineffective because it reduces the scope of coverage required by the statute mandate.” Widiss, supra, § 2.9, pp. 24, 25, 1978 Supp. and cases cited therein.

Penn National argues that its UM Endorsement exclusion does not result in providing less coverage than that required by the Maryland statute. It argues that the endorsement exclusion is no broader than that allowed by the statutorily permitted exclusion in section 243H. We disagree — for two reasons:

1. Under section 243H the “claimant” for bodily injury indemnification in this case is Mrs. Gartelman. Under the stipulated facts, she was not the owner of the moped. She, therefore, does not fit the category of persons for whom the statute permits an exclusion. She, as the “claimant,” was not, “at the time of the accident, operating or riding in an uninsured motor vehicle owned by [her].” (Emphasis added.)

2. Although the moped Mrs. Gartelman was occupying at the time of the accident was “uninsured”, it is not a “motor vehicle” within the meaning of the statutory exclusion contained in section 243H. Penn National argues that a moped comes within the definition of “motor vehicle” contained in section 538 of subtitle 35 (Motor Vehicle Casualty Insurance — Required Primary Coverage) of the Insurance Code (Art. 48A). There, “motor vehicle,” as used in that subtitle, “mean automobile and any other vehicle, including a trailer, operated or designed for operation upon a public road by any power other than animal or muscular power but does not include a vehicle as defined in § 11-165 [taxicab] and § 11-105 [bus] of the Transportation Article of the Annotated Code of Maryland.” It may well be that a moped does come within the definition of “motor vehicle” as used in that subtitle, but section 243H containing the statutory exclusion is in a different subtitle — subtitle 16 (Maryland Automobile Insurance Fund) of the Insurance Code (Art. 48A). Subtitle 16A contains its own definitions section (section 243L). Under that definitions section, “motor vehicle” is not defined, but it is provided that:

“As used in this subtitle,
(c) ‘automobile’ shall include trucks, vans, and trailers, but shall not include motorcycles or motorbikes. (Emphasis added.)
(f) 'uninsured motor vehicle’ means a motor vehicle as to which there is not in force security meeting the requirements of Title 17 of the Transportation Article____”

It is clear that under the Transportation Article the moped ridden by Mrs. Gartelman is classified as a “bicycle,” Transportation Article § 11-104, and that a bicycle is specifically excluded from the definition of a “motor vehicle,” Transportation Article § 11-135. It is equally clear that a bicycle is not required to be registered by the State, Transportation Article § 13-402, and that its owner is not required to obtain or maintain “security meeting the requirements of Title 17 of the Transportation Article” as is the owner of a “motor vehicle,” Transportation Article § 17-104. We also note that the exclusion contained in section 243H (a) (1) (i) of the Insurance Code (Art. 48A) was formerly contained in section 7-621 (2) of former Article 66 ¥¿ that contained the Maryland Vehicle Law. The Maryland Vehicle Law is now contained in the Transportation Article. As already noted, the obvious purpose of the statutory exclusion is to induce compliance with Title 17 of the Transportation Article dealing with “required security”, sometimes referred to as the compulsory insurance law. Title 17 requires “the owner of a motor vehicle [as defined in the Transportation Article] that is required to be registered in this State” to maintain the required security.

From all of the above, we think the legislative intent is clear that, as used in subtitle 16A of the Insurance Code (Art. 48A), “motor vehicle” has the same meaning it does in the Transportation Article. That meaning does not include the moped driven by Mrs. Gartelman at the time of the accident. For this reason, as well as the reason that she was not the owner of the vehicle she was driving, the statutory exclusion does not apply to deny her coverage. Since Penn National’s endorsement, if applied, would deny coverage to Mrs. Gartelman, we hold that it is ineffective and void, as to apply it would result in less coverage to one in her situation than that required by law.

Penn National further argues that even though the exclusionary provision of its endorsement may not be specifically allowed by statute, it should nevertheless be permitted. It is argued, in effect, that public policy should not permit the owner of two or more vehicles to pay for insurance on only one of them and allow the owner’s spouse, as an “insured” under the insurance policy, to claim uninsured motorist coverage thereunder while driving any number of other uninsured vehicles also owned by him. A similar argument has been rejected by the majority of those jurisdictions that have held the policy exclusion void. We reject it here. See Widiss, supra, and Lowery v. State Farm Mutual Automobile Insurance Co., 285 So. 2d 767 (1973), rehr. denied (Jan. 14, 1974), and cases cited therein.

The Maryland statute permits exclusion of only those “insureds” under an automobile liability insurance policy who are owner-operators or owner-passengers of uninsured motor vehicles. With these exceptions, the “primary purpose” of the statute is “to mitigate and ameliorate hardships caused by financially irresponsible and uninsured motorists where the claimants have no other source of compensation.” Unsatisfied C. & J. Fund v. Hamilton, supra. If any other exception to this public policy is to be permitted, it must be done by the Legislature, not the courts.

Penn National also relies on the approval of both its PIP and UM endorsements by the Insurance Commissioner as a basis for upholding their validity. Notwithstanding such approval, if an endorsement,, as in this case, clearly limits coverage required by a statute, the Commissioner’s approval may be disregarded. State Farm v. Maryland Automobile Insurance Fund, 277 Md. 602, 605-606, 356 A.2d 560 (1976).

Judgments affirmed; costs to be paid by appellant.

      . Art. 48A, § 539:
      “... The benefits, or their equivalent, shall cover the named insured and members of his family residing in his household (except such persons as may be specifically excluded in accordance with § 240C-1 of this article) injured in any motor vehicle accident (including an accident involving an uninsured motor vehicle or a motor vehicle whose identity cannot be ascertained), other persons injured while occupying the insured motor vehicle as a guest or passenger, or while using it with the express or implied permission of the named insured (except as provided in § 240C-1 of this article), and pedestrians injured in an accident in which the insured motor vehicle is involved or individuals injured in, on, or alighting from any other vehicle operated by animal or muscular power in an accident in which an insured vehicle is involved.... ” (Emphasis added.)

      . Section 538 of Art. 48A (Insurance Code) defines “accident” as “any occurrence involving a motor vehicle, other than an occurrence caused intentionally by or at the direction of the insured, from which damage to any property or injury to any person results.”

      . See State Farm Automobile Insurance Co. v. Reaves, 292 Ala. 218, 292 So. 2d 95 (1974), where the Supreme Court of Alabama, in interpreting Alabama’s similar statute requiring uninsured motorist coverage, said:
      “While we do not read the statute as requiring every automobile liability insurance policy to include an ‘omnibus clause’, nevertheless once an automobile liability policy is issued extending coverage to a certain class of insureds under such a clause, uninsured motorist coverage must be offered to cover the same class of insureds." 292 So. 2d at 99.
      We agree with that statement. Compare Mullis v. State Farm Mut. Auto. Ins. Co., 252 So. 2d 229 (Fla. 1971), where the Supreme Court of Florida reached essentially the same result by judicially defining the word “insured”.

      . As said by the Court of Appeals in Unsatisfied C. & J. Fund v. Hamilton, 256 Md. 56, 259 A.2d 303 (1969),
      “The policy of excluding from the benefit of the Fund the class of fiersons [owner-operators of uninsured motor vehicles] which argely created the need for the remedial legislation has an easily discernible rational basis. The legislature apparently concluded that if this irresponsible group were excluded from coverage, its members ana future potential members might be induced to become insured so that they might qualify for coverage. If this legislative optimism proved sound, the number of uninsured vehicles — the evil that produced the statute — would be lessened.” 256 Md. at 60.


text:
    GENE THOMAS MEYER v. STATE OF MARYLAND
    [No. 689,
    September Term, 1978.]

      Decided October 9, 1979.

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

      Geraldine Kenney Sweeney, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Kathleen M. Sweeney, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Joseph C. Sauerwein, Deputy State’s Attorney for Prince George’s County, on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

A mother and her three-month old infant were stabbed to death in their Bowie, Maryland home. Appellant, Gene Thomas Meyer, was convicted of first degree murder of the mother and second degree murder of the child and received sentences of life imprisonment and thirty years, to be served consecutively. On this appeal, the major issue presented involves Maryland District Rule 723 (M.D.R.) requiring an arrested person to be presented “without unnecessary delay” before a judicial officer. Appellant, relying upon Johnson v. State, 282 Md. 314, 384 A.2d 709 (1978), contends that two statements obtained from him by the police should have been suppressed as products of an unnecessary delay in presenting him before a District Court Commissioner. In opposition, the State argues: that Johnson should only be applied prospectively to arrests occurring after April 6,1978, the date of the decision; and alternatively, that the delay in presentment was necessary, that the admission of the first statement, if erroneous, was harmless; and that the second statement was a product of deliberate reflection.

Appellant has also challenged an in-court identification allegedly made under “impermissibly suggestive circumstances;” the introduction of allegedly inflammatory color photographs of the crime scene and of the autopsy; the admissibility of opinions contained in the autopsy reports; the seizure of his automobile in Virginia by Prince George’s County (Maryland) Police; and a jury instruction containing a reference to “probable cause.” Finding no reversible error, we shall affirm.

I

The record of the suppression hearings discloses that, on September 23, 1977, Lon Alec Lewis, after finishing work, returned to his home in Bowie and found, in the kitchen, the bodies of his 27-year old wife, Carol, and 3-month old baby, Heather. He summoned help from a neighbor, and the police were called. Both Carol and Heather had been the victims of an assailant who had brutally stabbed them to death with a knife.

Over the next two weeks, Lon Lewis fully cooperated with the police. He permitted them to search his home and consented to being interviewed. During the course of those interviews, Mr. Lewis admitted having a girlfriend in Texas who had been communicating with him by letters mailed to Mr. Lewis at the address of appellant, Gene Meyer. On October 6, 1977, a Prince George’s County police officer visited the appellant at his Rockville, Montgomery County, apartment to obtain any of the Texas girlfriend’s letters that Mr. Meyer.might have been holding for Mr. Lewis. Although Mr. Meyer did not have any letters, he was interviewed, and a written statement was taken in which he discussed Mr. Lewis’ Texas liaison. Mr. Meyer stated that he learned of Mr. Lewis’ girlfriend when he and Mr. Lewis had spent a week in Texas attending a training program sponsored by their employer.

The next day, October 7, 1977, Lon Lewis was further questioned by the police. Early in the evening he admitted his complicity in the murders of his wife and child and was arrested. Over the next few hours he gave a written statement to the police describing in detail an agreement between himself and Mr. Meyer in which the murders of their wives had been planned.

Acting upon this information and the description provided by a witness who saw a man approaching the Lewis house shortly before the murders were committed, the police obtained a warrant for the arrest of the appellant. At 7:15 a.m., on October 8, 1977, Mr. Meyer was arrested at his apartment in Rockville, handcuffed, placed in the back seat of a police cruiser, and given his Miranda warnings.

Detective David Hatfield, who rode in the police cruiser during the trip to the Bureau of Criminal Investigation (BCI) in Forestville, Prince George’s County, from Rockville, testified at the pretrial suppression hearing and described appellant’s reaction when told of the Lon Lewis statement. Mr. Meyer wanted to see the Lewis statement and told Detective Hatfield that the police would have to “prove it” because it was Mr. Lewis’ word against his.

Upon arriving at BCI, the appellant was placed in an interrogation room, unhandcuffed, and offered some coffee. Detective Hatfield obtained the Lewis statement, and together the two men spent almost two hours reading the 14-page typed and handwritten document. Detective Hatfield testified that Mr. Meyer, after reading the statement, offered to tell his side of the story: “[H]e said he would give a truthful response.”

Over the next six hours, until shortly before 4 p.m., Mr. Meyer gave a statement which was transcribed by Detective Hatfield. In this statement (the first statement) the appellant denied any involvement in the murders. Instead, he blamed Lon Lewis, stating “When I heard the news that she got killed I figured he did it or got someone to do it.” Appellant also expanded upon his previous discussion of the Lewis Texas tryst, and he admitted being at the Lewis home on Thursday, September 22, 1977, the night before the murders. He also acknowledged owning a cream-colored suit and a briefcase.

After giving this first statement, the appellant was transported to Upper Marlboro from BCI and presented before District Court Commissioner Michael J. O’Brien at 4:15 p.m. The Commissioner certified that he informed the appellant of his rights set forth in the charging document, and the appellant similarly signed an acknowledgment of receipt of such rights.

On the trip back to BCI from the Commissioner, Mr. Meyer indicated that he was hungry. A steak dinner was purchased, and the appellant ate his dinner back at BCI in an interrogation room. Detective Corporal Michael K. Morrissette was present while the appellant had dinner, and according to Corporal Morrissette’s testimony he engaged the appellant in general conversation, discussing his upbringing, background, job, and marriage.

At 6 p.m., Corporal Morrissette read the Miranda warnings to the appellant. He orally waived his rights and expressed a willingness to talk to the police. During the next three hours, the story gradually unfolded. The appellant admitted killing 3-month old Heather, but stated that it was an accident. He also confessed to the stabbing of Carol Lewis. At 9 p.m., there was a twenty-minute break during which Corporal Morrissette prepared to take a written statement from the appellant. From 9:20 to 10:00, the two men worked on a written statement (the second statement); Corporal Morrissette typed each of the four pages and Mr. Meyer signed each page at the bottom. After the confession was completed, the appellant was asked to sign a written waiver of rights, but he refused. Shortly after 10:00 p.m., Mr. Meyer was transported to the Prince George’s County Detention Center from BCI.

Hearings on the appellant’s motion to suppress evidence, including the first and second statements, were held over a period of four days during March and April, 1978. Judge Jacob S. Levin denied the motions. Trial commenced April 20, 1978 on two counts of murder in the first degree. On April 26, 1978, the jury returned verdicts finding the appellant guilty of the first degree murder of Carol Lewis and the second degree murder of Heather Lewis.

II

The appellant first urges that the trial judge was in error when he denied the appellant’s motion to suppress the two statements taken after the appellant’s arrest. It is his contention that the police violated M.D.R. 723 by unnecessarily delaying his initial appearance before a judicial officer. Citing Johnson v. State, 282 Md. 314, 384 A.2d 709 (1978), he argues that the first statement should have been suppressed because it was taken prior to his initial appearance and during a period of unnecessary delay. Appellant also urges us to rule that the second statement should have been suppressed for two reasons: first, the initial appearance before Commissioner O’Brien was defective because the Commissioner did not read the complete “advice of right to counsel” required by M.D.R. 723 (b); second, the statement was “tainted by the previous illegal detention,” and does, therefore, fall within the Johnson exclusionary rule.

THE FIRST STATEMENT

In response to the appellant’s argument that the period during which the first statement was taken constituted an “unnecessary delay” in bringing the appellant before a judicial officer, the State first urges us to conclude, as did the trial judge, that the nine hour delay was necessary under the circumstances presented here. Appellee points out that the appellant had to be transported to BCI from his home in Rockville, processed, and then transported to the Commissioner from BCI; but concedes that, at most, these events consumed a total of eighty minutes. Any contention that a period of eighty minutes establishes a necessity for a nine hour delay is patently without merit.

In Johnson, the Court of Appeals listed five examples of necessary delay. Id. at 329, 384 A.2d at 717. The examples were intended to be just that; they were not intended to be an entire litany of occurrences from which the State is required to justify a delay in the initial appearance of a defendant before a judicial officer. Lewis v. State, 285 Md. 705, 404 A.2d 1073 (1979).

M.D.R. 723, while allowing for necessary delays in presenting a defendant before a judicial officer, does not countenance a delay for the principal purpose of obtaining a statement or a confession from the defendant. The Maryland Rule has its antecedents in the federal McNabb-Mallory Rule. McNabb v. United States, 318 U.S. 332 (1943); Mallory v. United States, 354 U.S. 449 (1957). In the latter case the Court made it plain that “the delay must not be of a nature to give opportunity for the extraction of a confession.” Id. at 455 (emphasis added); see also United States v. Meachum, 197 F. Supp. 803 (D.D.C. 1961); Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977). M.D.R. 723 is designed to insure that even a defendant arrested pursuant to a warrant is promptly brought before a neutral judicial authority who can formally apprise the defendant of his rights and ascertain his desires with regard to legal counsel. See, e.g., Watson v. United States, 234 F.2d 42 (D.C. Cir. 1956) and 249 F.2d 106 D.C. Cir. 1957).

In the instant case, Mr. Meyer was arrested at 7:00 a.m. and taken to BCI. He was informed of the existence of the Lewis statement implicating him in the murders; he requested to see the statement and then offered his own version denying any involvement in the brutal stabbings. In Commonwealth v. Abu-Ibn Hanifah Bey, 462 Pa. 533, 341 A.2d 907 (1975), the Pennsylvania Supreme Court held that a delay for the purpose of confronting a defendant with a statement implicating him in a robbery and taking his statement thereafter is “unnecessary” under the terms of a similar Pennsylvania rule. Here an obvious opportunity existed for the extraction of a confession after the appellant’s arrest and prior to his initial appearance. It was error to admit the first statement because it was obtained in violation of M.D.R. 723. Johnson v. State, 282 Md. 314, 384 A.2d 709 (1978).

Upon our own independent review of the record, however, we are convinced beyond a reasonable doubt that the erroneous admission of the first statement in no way influenced the jury’s verdict. The error is, therefore, harmless and reversal of the conviction is not required. Dorsey v. State, 276 Md. 638, 659, 350 A.2d 665, 678 (1976). See also Chapman v. California, 386 U.S. 18 (1967); Harrington v. California, 395 U.S. 250 (1969); Fahy v. Connecticut, 375 U.S. 85 (1963). It is of no significance that the error complained of is not of constitutional dimension, for Maryland has but one harmless error rule for criminal cases. Dorsey, id. at 657-59, 350 A.2d at 677-78.

In the erroneously admitted first statement, Mr. Meyer vehemently denied any involvement in the murders; he did accuse Lon Lewis of complicity in the crimes. He also expanded somewhat on the information he had previously supplied to the police concerning Mr. Lewis’ Texas girlfriend. Mr. Meyer did admit visiting the Lewis home the night before the murders, and he did admit owning a cream-colored suit and a black briefcase. The major portion of the first statement, however, was devoted to the appellant’s denial of culpability in the crime.

The evidence in the case was overwhelming. The appellant’s confession detailing the manner of the stabbings was, as we hold, infra, properly received into evidence. Cf. Milton v. Wainright, 407 U.S. 371 (1972) (erroneous admission of inculpatory statement was harmless in light of other properly admitted confessions). An eyewitness identified the appellant, both in and out of court, as the person she saw approaching the Lewis home shortly before the murders were committed. In addition, there was independent evidence of the ownership of the briefcase: a picture of the briefcase lying on the back seat of the appellant’s automobile was admitted along with the briefcase itself. Other evidence clearly linked the appellant to the crime: expert testimony concerning the nature of the wounds on the victims’ bodies and the strength required to inflict such wounds; and blood found on the appellant’s shoes.

The facts contained in this first statement were either cumulative of the other evidence or insignificant in light of the other evidence. Moreover, the essence of the statement was exculpatory. Its admission into evidence, while erroneous under M.D.R. 723 (a), was harmless error in this case. See Bartram v. State, 33 Md. App. 115, 152-56, 364 A.2d 1119, 1141-43 (1976), aff’d, 280 Md. 616, 374 A.2d 1144 (1977); Holloway v. State, 26 Md. App. 382, 395-96, 339 A.2d 319, 326-27 (1975).

THE SECOND STATEMENT

Appellant first asserts that Commissioner O’Brien failed to give the appellant the full advice of right to counsel as required by M.D.R. 723 (b) as set out in M.D.R. 711 (a). This argument is based on the testimony of Commissioner O’Brien at the pretrial suppression hearing and at trial when he was asked to recite the advice given to the appellant; his testimony, while patterned on the Miranda warnings, did not specifically track the language in M.D.R. 711 (a).

We do not think that appellant’s argument can be sustained. It overlooks the acknowledgments signed by both the Commissioner and the appellant at the initial appearance. See n.3, supra. The “advice of right to counsel” that appears on the charging document, which appellant by his signature acknowledged reading and receiving, conforms with the requirements of M.D.R. 711 (a). In light of this documentary evidence indicating compliance with M.D.R. 723 (b), the appellant’s assertion premised on a mere imprecision in the Commissioner’s testimony must fail.

It is also argued by the appellant that the second statement in which he confessed to the murders should have been suppressed because of the preceding illegal detention which violated M.D.R. 723 (a). Since we have found that the appellant’s initial appearance before the Commissioner was unnecessarily delayed by the police, we must focus upon the circumstances surrounding the second statement, specifically to ascertain whether it was an “independent act” and a product of “deliberate reflection.” Johnson v. State, 282 Md. 314, 330, 384 A.2d 709, 718 (1978).

A similar situation was presented in Johnson: the police had taken two statements from the defendant, one prior to his initial appearance and one following the appearance. In ruling that the second statement should have been excluded, Judge Levin stated for the Court:

“Appellant’s second statement, admitting responsibility for the Rainbow Cleaners holdup and shooting, which was given almost immediately upon appellant’s return from the commissioner on January 31, should likewise have been suppressed. We cannot say, on the record before us, that the second confession was an independent act, occurring after time for deliberate reflection and therefore free from the taint of the preceding illegal detention.”

Id. at 330, 384 A.2d at 718 (Emphasis added.)

In our judgment the State has met its burden of showing in this case that the second confession was an independent act and a product of deliberate reflection. Appellant’s first statement was essentially exculpatory; he denied any involvement in the murders. In Johnson, the defendant “all but confessed” in the first statement, id. at 318, 384 A.2d at 711; in the second statement he “confessed outright.” Id. at 318, 384 A.2d at 712. Moreover, appellant here completed his first statement at 3:45 p.m. He was then driven to Upper Marlboro from BCI, presented before Commissioner O’Brien, and transported back to BCI. During the return trip, a stop was made in order to purchase, at his request, a steak dinner.

Questioning by Corporal Morrissette did not begin until after Mr. Meyer had finished his dinner at 6:00 p.m. — almost two hours after his initial appearance before the Commissioner. The questioning lasted for three hours; there was a twenty-minute break, and then the written second statement was prepared between 9:20 p.m. and 10:00 p.m. — a period of five hours after the appellant’s initial appearance. Although the appellant signed the bottom of each page of the second statement, when presented with a written waiver of rights, he declined to sign that paper, thus indicating that he was fully cognizant of his actions at the time. We also note that Corporal Morrissette testified that he gave the appellant full Miranda warnings at the start of the 6:00 p.m. interrogation session and that the appellant orally agreed to waive those rights and to proceed with the questioning.

In evaluating the circumstances surrounding a confession which follows upon the heels of an illegal detention, we do not apply a rigid talismanic test. See generally United States v. Close, 349 F.2d 841, 851 (4th Cir. 1965), cert. denied, 382 U.S. 992 (1966); Wilkins v. Maryland, 402 F. Supp. 76, 83 (D. Md. 1975), aff’d, 538 F.2d 327 (4th Cir. 1976), cert. denied, 429 U.S. 1044 (1977). Instead, we consider all of the circumstances surrounding the confession, including the time, place, and manner of its taking; intervening events; its content compared to prior statements given by the appellant; and other factors reflecting upon the appellant’s alleged free will in making the statement. The list is not exclusive. Taking all of the foregoing into consideration, we hold that the State demonstrated that the second statement was a product of the appellant’s free will divorced from the preceding illegal detention. Judge Levin was correct in denying the motion to suppress the second statement, when he said:

“The inculpatory statement that was taken from the Defendant was taken subsequent to his being taken before the commissioner, and after a time for eating and a time for reflection, and a time for deliberation. It is my judgment that the Johnson v. State of Maryland case is distinguishable from the facts in this case____”

III

On the day Carol and Heather Lewis were murdered, 12-year old Darlene Brown observed a man walking up the driveway toward the front door of the Lewis home between 4:45-5:00 p.m. At that time Darlene was walking down the driveway of her house across the street from the Lewis home. That night after the murders had been discovered, Darlene gave the police a written description of the man she had seen earlier. Four days later she made another written statement describing him. Both descriptions indicated that the suspect was in his late twenties, clean shaven, over six feet tall, and had blondish hair. Darlene also told the police that he was wearing a light-colored suit and that he was carrying a briefcase.

From this description, the police made a composite drawing. Then, on October 8, 1977, the day of appellant’s arrest, Corporal Morrissette brought six pictures to Darlene’s home and asked her to look at the pictures to see if she recognized the man she had seen on the Lewis driveway fifteen days earlier. After discarding a picture of Detective Kowalski who had worked on the composite drawing with her, she carefully considered the other five photographs and picked out the appellant.

Appellant has continually argued that the photographic array was impermissibly suggestive and would, therefore, taint an in-court identification. The photographs are part of the record and we have independently examined them and the testimony concerning the conduct of the array. Although the photographs were not absolutely uniform, they were substantially similar. We are unable to find that the photographic array, under “the totality of the circumstances surrounding it, was so unnecessarily suggestive as to give rise to a very substantial likelihood of irreparable misidentification____” Smith and Samuels v. State, 6 Md. App. 59, 67, 250 A.2d 285, 290 (1969), cert. denied, 397 U.S. 1057 (1970). Indeed, the photographic array shown to Darlene Brown does not have even threshold suggestiveness, and therefore, appellant has not carried his initial burden requiring a response by the State. Godwin v. State, 38 Md. App. 716, 727, 382 A.2d 596, 603 (1978). See McDowell v. State, 31 Md. App. 652, 663, 358 A.2d 624, 630 (1976); Martin v. State, 40 Md. App. 248, 255, 389 A.2d 1374, 1378 (1978).

At trial, but out of the presence of the jury, Darlene, who had never been inside a courtroom before, took the witness stand and was asked to make an in-court identification of the man she saw at the Lewis home. She stood up and pointed to co-counsel David M. Martin, seated at the counsel table with principal trial counsel, Joseph A. DePaul. Appellant had been previously seated among the courtroom spectators. After a bench conference during which the State argued that the defense had engaged in misleading tactics, the judge ordered the bailiff to bring in the jury. However, before the bailiff could leave, Darlene asked permission to try again because “I saw a couple of people I didn’t see before.”

Over vigorous objections by the defense and after some brief questioning by the court, all males in the courtroom were ordered to stand, and Darlene was permitted to walk around the courtroom eliminating the males one by one. When a few men remained standing, she returned to the stand and identified the appellant. She was then questioned by the court and denied receiving any assistance or prompting. She attributed her need for a second opportunity to her failure to look closely, in the first instance, at the men in the back of the courtroom.

Before the jury returned, appellant’s counsel produced six witnesses who testified that Darlene appeared to have had eye-contact with some spectators during the bench conference that followed her erroneous first identification. None of these witnesses heard Darlene speak, although one witness stated that she appeared to mouth some words. After the testimony was concluded, the jury returned and the court, over the appellant’s continuing objection, allowed Darlene to identify the appellant.

As we understand appellant’s argument, it is premised upon an assumption that the judicial identification in the jury’s presence was tainted at the hearing immediately preceding it. During the direct, cross, redirect, and recross examinations of the youthful witness, the circumstances of both her pretrial photographic identification and her judicial identification were brought out before the jury. As Judge Moylan has stated for this Court:

“An in-court identification, as any other evidence, civilly or criminally, may be tested and probed by the traditional device for such testing and probing — the use of cross-examination.... What happens in the courtroom is open for judge and jury to see and does not call for the Sixth Amendment’s special ventilation of musty and secret station house proceedings.”

Green v. State, 35 Md. App. 510, 521, 371 A.2d 1112, 1119, reversed on other grounds, 281 Md. 483, 380 A.2d 43 (1977). The examination by appellant’s counsel of the witness in this case was rigorous and probing. The jury became aware of the erroneous first identification made out of their presence and could weigh that factor in assessing Darlene’s credibility. Moreover, the court conscientiously afforded the appellant an opportunity to challenge Darlene’s judicial identification before it was revealed to the jury. Upon our independent review of the record, we find no error in allowing Darlene to identify the appellant.

IV

Over defense objection, thirty-five pictures were introduced into evidence. Appellant contends that because “the photographs were unnecessary and prejudicial as tending to inflame the passions of the jury,” the trial judge abused his discretion in admitting them.

The admission of photographs is within the discretion of the trial court, and its determination will not be disturbed on appeal unless it clearly abused its discretion in admitting them. Carroll v. State, 11 Md. App. 412, 414-15, 274 A.2d 677, 678-79 (1971). See Rasnick v. State, 7 Md. App. 564, 569-70, 256 A.2d 543, 546 (1969), cert. denied, 400 U.S. 835 (1970); McLaughlin v. State, 3 Md. App. 515, 523, 240 A.2d 298, 303 (1967). See also Clarke v. State, 238 Md. 11, 207 A.2d 456 (1965).

Appellant has failed in his brief to indicate the nature of the prejudice claimed as to thirty-one of the thirty-five photographs. We are unable to find any error by the trial court in admitting the thirty-one photographs.

Of the remaining four photographs, two showed the bodies in the positions in which they were originally found and two were autopsy photographs showing the multiple stab wounds. Originally, the State attempted to introduce thirteen photographs showing the bodies at the crime gcene and prior to the autopsy. The record demonstrates that Judge Levin assiduously evaluated each of the thirteen photographs, selecting four that he thought were appropriate. No abuse of discretion is disclosed by the record, and appellant’s contentions to the contrary must fail.

V

The reports of the autopsies performed on the victims and received in evidence contained identical statements that: “The manner of death is homicide.” Appellant sought to strike those statements at trial prior to the reports being received, and now urges the same point as a basis for a reversal of his convictions on appeal. We find no error.

Appellant’s reliance on Benjamin v. Woodring, 268 Md. 593, 303 A.2d 779 (1973) is misplaced. In that civil case, the decedent’s death was caused by an overdose of barbiturates; the medical examiner’s conclusion of suicide was based on facts extrinsic to the autopsy supplied by Mrs. Benjamin, the plaintiff. Moreover, the manner of death was central to the dispute between the parties.

The medical examiner’s conclusion in the instant case that the deaths of Carol and Heather Lewis were homicidal was a product of the autopsy examinations themselves without the need for extrinsic evidence. Obviously, the multiple stab wounds inflicted upon both bodies were not accidental, natural, or suicidal; they were, therefore, homicidal. Moreover, the autopsy statements were perfectly consistent with the appellant’s defense. In his opening statement, appellant’s counsel argued: “There is no question that Mrs. Lewis and Heather Lewis were brutally slain that day in Bowie. There isn’t any dispute over that. Indeed, we readily concede that.” This position was reiterated in the closing argument when appellant’s counsel informed the jury that Mr. Meyer “is not telling you to disregard the fact that poor Mrs. Lewis and her daughter were killed.”

Since the manner of death was undisputed, leaving appellant’s criminal agency as the primary issue, we think the case fits squarely within our prior decision in Malekar v. State, 26 Md. App. 498, 338 A.2d 328 (1978). What Judge Moylan said there, applies with equal force here:

“The conclusion that the cause of death here was homicidal, stemming from the obvious physical fact of strangulation, was not a product of investigative activity on the part of the Medical Examiner’s Office but was a direct product of the autopsy examination itself. The conclusion, moreover, was completely consonant with the appellant’s theory of the case, since his version of the fatal incident had been that two robbers burst into the home and killed his employer. We see neither error nor prejudice.”

Id. at 510, 338 A.2d 334-35. Similarly, in this case we see no error and it is obvious that appellant has suffered no prejudice.

VI

Appellant objects to the seizure by Prince George’s County Police of his 1974 Maverick parked in his mother-in-law’s driveway in Arlington, Virginia. Specifically, he contends that “the initial warrantless seizure of the car in Virginia was illegal, and tainted the subsequent search pursuant to the warrant in Prince George’s County.” The record unequivocally demonstrates that the police obtained the express permission of Hortensia Meyer, appellant’s wife, for the seizure of the automobile. It is uncontroverted that Mrs. Meyer was a co-owner of the automobile. As such, she had the authority to consent to her automobile being towed from Virginia to Maryland. Appellant’s objection to the seizure is without merit. Wade v. Warden, 278 F. Supp. 904 (D. Md. 1968); United States v. Carter, 569 F.2d 801 (4th Cir. 1977), cert. denied, 435 U.S. 973 (1978).

VII

During the early stages of the trial, the State attempted to introduce the search warrants, applications therefor, and supporting affidavits that had been obtained for the search of appellant’s apartment and automobile. Contained within the applications was the confession of Lon Lewis that incriminated the appellant. In proffering the materials, the State indicated that it wanted to “show this jury that the police didn’t go like storm troopers into that home.” Appellant objected to the introduction of the materials. The court agreed with appellant and refused to admit them; however, as a compromise it instructed the jury:

“All right, ladies and gentlemen of the jury, there were two exhibits, 44 and 45. One is a search warrant for a car. And the other warrant is a search warrant for a premises. I am not going to admit these search warrants, but I instruct you that these search warrants were issued by two separate judges and signed by them to be issued. And they were executed.
And I further instruct you that no search warrant is issued by a judge, either here or in Montgomery County, and this is applicable to both of these search warrants, that they are only issued based upon probable cause.”

It is the appellant’s contention that the instruction was improper “[especially since the technical concept of ‘probable cause’ was not explained to the jury----” He claims that the jury could have been misled to his prejudice into believing that the issuance of the search warrants was evidence of his guilt.

We believe that it would have been preferable for the trial court to have omitted any reference to probable cause or, once having made such a reference, to have explained its technical meaning to the jury. Nevertheless, we do not find that the instruction as given constitutes error. The authority cited by appellant, Dempsey v. State, 277 Md. 134, 355 A.2d 455 (1976), is inapposite. There the court informed the jury of the court’s finding that a confession was voluntary, an issue which the jury had the duty ultimately to decide for itself. Here the instruction, coming early in the trial, in no way usurped or interfered with the jury’s role. Furthermore, there was extensive prior testimony, to which no objection was made, that both warrants had been “approved” by a judge. We find no prejudice.

Judgments affirmed; costs to be paid by appellant

      . After the trial of the appellant herein, Mr. Lewis was tried and convicted as an accessory before the fact to the murders for which the appellant has been convicted as the principal. Mr. Lewis’ conviction was recently reversed by the Court of Appeals, and the case was remanded for a new trial. Lewis v. State, 285 Md. 705, 404 A.2d 1073 (1979).

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

      . M.D.R. 723 (b) (2) provides that the “judicial officer shall require the defendant to read the advice of right to counsel printed on the charging document...” and “shall certify in writing that the defendant has read the advice as to the right of counsel in his presence ....” Commissioner O’Brien did make such a certification. The contents of the advice are prescribed by M.D.R. 711 (a) and were accurately reproduced in the charging document in the instant case.

      . There were several conflicts between the police officers and the appellant in the testimony presented at the pretrial suppression hearings. Mr. Meyer testified that the police continually called him “Crazy Man”; told him he had no rights; denied him food, the use of bathroom facilities, and access to a telephone; and hit him on the head whenever he asked for an attorney. This testimony was flatly contradicted by the testimony of Officers Hatfield and Morrissette. Judge Levin chose to believe the police officers’ version. The credibility of witnesses at a pretrial suppression hearing is for the determination of the trial judge, Boone v. State, 2 Md. App. 80, 95-96, 233 A.2d 476, 485 (1967), subject to reversal only for a manifest abuse of discretion. See Watson v. State, 282 Md. 73, 84, 382 A.2d 574, 580, cert. denied, 437 U.S. 908 (1978); Smith v. State, 20 Md. App. 577, 585-86, 318 A.2d 568, 574-75 (1974), cert. denied, 420 U.S. 909 (1975).
      At trial the jury also heard the conflicting testimony concerning the treatment of the appellant by the police. We note that the appellant does not, on appeal, challenge the voluntariness of his statements or the adequacy of his waiver of his Miranda rights.

      . It may seem anomalous that the appellant is seeking to exclude a largely exculpatory statement. As we read the broad language of the Johnson case, it applies to “any statement” given to the police in violation of M.D.R. 723 without regard to the statement’s content. Id. at 328, 384 A.2d at 717. We note, as did the Supreme Court that “no distinction may be drawn between inculpatory statements and statements alleged to be merely ‘exculpatory.’ If a statement made were in fact truly exculpatory it would, of course, never be used by the prosecution.” Miranda v. Arizona, 384 U.S. 436, 477 (1966), quoted in Milhouse v. State, 31 Md. App. 571, 576, 358 A.2d 262, 265 (1976).

      . We note that the Court of Appeals in Lewis found a six and one-half hour delay to be necessary where its sole purpose was to transcribe a confession given by the defendant prior to his arrest. Lewis v. State, 285 Md. 705, 404 A.2d 1073 (1979). Of course, a totally different situation is presented where, as in the instant case, the arrest precedes any questioning leading to a statement or confession.

      . The prior statement, taken two days before appellant’s arrest, was admitted into evidence; the appellant does not, on appeal, challenge its admission.

      . Because of our disposition of the issues under M.D.R. 723 we do not consider the State’s argument that the Johnson case should be applied prospectively only. Accordingly, we express no view at this time on the merits of the State’s argument. Cf. Shope v. State, 41 Md. App. 161, 396 A.2d 282 (1979). In Lewis v. State, 285 Md. 705, 404 A.2d 1073 (1979), the same argument was addressed to the Court of Appeals but the Court in its disposition of the case found it unnecessary to decide the question.

      . The trial judge conducted suppression hearings both before trial and during trial; he concluded that there was no primary illegality that would taint the judicial identification of the appellant by Darlene Brown. Cf. Green v. State, 281 Md. 483, 380 A.2d 43 (1977).

      . These were pictures of the crime scene, the appellant’s automobile, and the appellant. The victims’ bodies were not fully visible in any of the crime scene photographs.