source: Caselaw Access Project

author: Gilbert, C. J.,

license: Public Domain

text:
    ABRAHAM GOODE v. STATE OF MARYLAND DAVID JEROME WALKER v. STATE OF MARYLAND
    [No. 616,
    [No. 617,
    September Term, 1978.]
    September Term, 1978.]

      Decided March 8, 1979.

    The cause was argued before Gilbert, C. J., and Morton and Melvin, JJ.

      Patricia A. Logan, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellants.

      Stephen B. Caplis, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Richard

      Berger, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

Part of the majesty of American law is the power conferred upon the courts to strike down statutes which run afoul of the Constitution of the United States. No act of Congress or the Legislature may authorize a violation of the Constitution. United States v. Brignoni-Ponce, 422 U. S. 873, 95 S. Ct. 2574, 45 L.Ed.2d 607 (1975); Almeida-Sanchez v. United States, 413 U. S. 266, 93 S. Ct. 2535, 37 L.Ed.2d 596 (1973). When the constitutional defect is brought to the attention of the court, the court is bound by its oath of office to excise the flaw. This is true whether there be a congenital defect in the statute or one that has come about through improper usage.

We herein declare that Maryland Transportation Code Ann. §§ 13-409 and 16-112 are facially constitutional but, in the circumstances of the instant case, were unconstitutionally applied.

The facts giving rise to the matter sub judice are uncomplicated. The appellants, Abraham Goode and David Jerome Walker, were convicted by a jury in the Criminal Court of Baltimore of three (3) handgun violations. The events leading to the convictions began at approximately 11:10 p.m. on September 20,1977, when Sergeant William McLean of the Baltimore City Police Department observed the 1975 Ford Granada in which appellants were passengers parked in front of an abandoned school. McLean saw several people get in and out of the car. At that time McLean was “on random patrol.” The sergeant described the area in which he saw the Granada as “an isolated area,” and “it’s unusual to see a car parked at that particular location at that time of night.” He stopped the police cruiser in a position where he “kept the ... [Granada] under observation.” McLean went on to relate that “[approximately two to three minutes after ... [he] parked, ... [he] saw the car pull away and it went northbound on Carey Street, made a left turn heading westbound on Gold Street.” The operator of the Granada did not violate any traffic laws. Nevertheless, Sgt. McLean radioed that he was following a “suspicious vehicle” and that he “was going to pull the vehicle over.” He requested a “backup unit.” The sergeant then activated his “blue light and spotlight.” McLean and an officer from the “backup unit” approached the halted Granada. The operator, who was not one of the appellants, “could not produce either a driver’s license or a registration for the vehicle.” An attempt to verify that the operator was licensed fell short inasmuch as the “D.M.V. computer was out of service.” The fact that the computer was not working also prevented the police from ascertaining to whom the Granada belonged. All the occupants of the vehicle were “asked” to get out of the car. They complied. A “Mr. Parnell,” had his “hands in front of his sweat shirt. He had a hooded sweat shirt on. It had one of those sewn pockets across the front.” Parnell was told “to remove his hands, and it looked like something was coming out of the pocket with it.” The “something” turned out to be a wallet which “fell open.” McLean said, “From the wallet fell a glassine bag containing a white powder, same type of glassine bag that narcotics are normally packaged in.... At this time Mr. Parnell was informed that he was under arrest for possession of ... controlled dangerous substance.” McLean then returned to the vehicle and “shined the light to the floor directly in front of the passenger compartment.” He observed “what appeared to be the stock of a gun.” McLean withdrew the gun, a sawed-off shotgun, and in so doing discovered a .22 caliber automatic as well as a .32 caliber revolver. The shotgun was unloaded, but the other two weapons contained ammunition.

At a hearing on the appellants’ motion to suppress, the appellants asserted that their arrest was illegal, and that any evidence seized thereafter was tainted. The hearing judge implicitly found that Sgt. McLean had the authority to stop the Granada and to request the operator to produce for examination a driver’s license and registration card. From that premise, the court went on to conclude that when the operator of the vehicle could not produce the requested documents, the police were within their right to order the occupants from the car, and that “bearing in mind the activity of the Defendants as one little bit of probable cause piled on another little bit... the officers were obligated at that time to further search the car to see if any controlled dangerous substance or any weapons were in it.” The motion to suppress was denied, and the case proceeded to trial by a jury with the result we have previously stated.

Inasmuch as the operator of the vehicle in which the appellants were passengers was not ostensibly in violation of any law at the time the car was halted by Sgt. McLean, the justification, if any, for the stopping of the automobile must be found within the Maryland Transportation Article. That article of our code contains two separate provisions which permit police to demand production for examination of a driver’s license or the registration card.

Transportation Art. § 13-409 provides:

“(a) In general — At all times, each registration card shall be carried:
(1) In the vehicle to which it refers; or
(2) By the individual driving or in control of the vehicle, who shall display it, on demand, to any police officer who identifies himself as such.” (Emphasis supplied.)

Section 16-112 of the same article provides in pertinent part:

“(a) Possession and display of license; writing sample.
(1) In this subsection, ‘display’ means the manual surrender of the licensee’s license into the hands of the demanding officer for inspection.
(2) Each individual driving a motor vehicle on any highway in this State shall:
(i) Have his license with him;
(ii) Display the license to any uniformed police officer who demands it....” (Emphasis supplied.)

As the Revisor’s Note points out, the above two sections of the Transportation Article are incongruous and might cause more problems than they solve. As now written, the statutes confer upon a uniformed police officer the authority, under proper circumstances, to demand and receive for examination the operator’s driver’s license and registration card. If, however, the law officer is not in uniform, he is entitled to receive and examine the registration card when he identifies himself as an officer of the law, but he is not entitled to view the driver’s license. One would expect that the refusal of the operator to show his driver’s license to a non-uniformed law officer probably would produce a confrontation between the officer and the motorist that is fraught with peril to both. Such a confrontation could be avoided by a change in the statute so as to bring it in line with section 16-112.

We observe that prior to Laws 1970, ch. 534, the Motor Vehicle Code, then Article 66%, provided that a registration card was to be exhibited “upon demand of any uniformed officer of the law.” Laws 1943, ch. 1007, § 26; Md. Ann. Code (1951) Art. 66%, § 29. A return by the legislature to that particular phraseology could eliminate possible misunderstanding between the police and the motoring public.

Nevertheless, neither Transportation Art. § 13-409 nor § 16-112 nor their predecessors may be read as sanctioning a random stopping of a single vehicle by police for a “routine check” if the stop is arbitrary, gratuitous, and without justification in the form of reasonable suspicion to believe that a specific violation of the motor vehicle code or some other offense has occurred, because such a stop would be violative of the motorist’s constitutional rights. We further overrule any of our prior decisions to the extent that they may indicate a sanctioning of the single stop.

The Fourth Amendment, made applicable to the States through the Fourteenth Amendment, see Mapp v. Ohio, 367 U. S. 643, 81 S. Ct. 1684, 6 L.Ed.2d 1081 (1961); Robinson v. State, 18 Md. App. 678, 308 A. 2d 734 (1973), cert. denied, 269 Md. 765 (1973), provides:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be. violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The Supreme Court of the United States said in Terry v. Ohio, 392 U. S. 1, 16, 88 S. Ct. 1868, 1877, 20 L.Ed.2d 889, 903 (1968) that:

“It is quite plain that the Fourth Amendment governs ‘seizures’ of the person which do not eventuate in a trip to the station house and prosecution for crime — ‘arrests’ in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.”

See also United States v. Brignoni-Ponce, supra.

The United States Court of Appeals for the Ninth Circuit, in United States v. Mallides, 473 F. 2d 859, 861 (9th Cir. 1973), held that “[a] person whose vehicle is stopped by police and whose freedom to drive away is restrained is as effectively ‘seized’ as is the pedestrian who is detained.” Similar holdings are found in state court decisions. See, e.g., State v. Ochoa, 112 Ariz. 582, 544 P. 2d 1097 (1976); People v. James, 44 Ill. App. 3d 300, 3 Ill. Dec. 88, 358 N.E.2d 88 (1976); State v. McKinley, 305 Minn. 297, 232 N.W.2d 906 (1975); Morgan v. Town of Heidelberg, 246 Miss. 481, 150 So. 2d 512 (1963); People v. Ingle, 36 N.Y.2d 413, 330 N.E.2d 39 (1975); and Commonwealth v. Swanger, 453 Pa. 107, 307 A. 2d 875 (1973).

In Terry v. Ohio, 392 U. S. at 20-21, 20 L.Ed.2d at 905, 88 S. Ct. at 1879, the Supreme Court, quoting from its earlier decision in Camara v. Municipal Court, 387 U. S. 523, 534-35, 536-37, 18 L.Ed.2d 930, 938-40, 87 S. Ct. 1727, 1734-35 (1967), asserted that:

“[I]t is necessary ‘first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen,’ for there is ‘no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails.’ ”

The cited cases permit a forcible stop of a motorist, however, when the police officer is able to point to specific and articulable facts, which, together with the rational inferences properly drawn therefrom, warrant a reasonable suspicion that a crime is being committed, is about to be committed, or has been committed. People v. James, 44 Ill. App. 3d at 303, 358 N.E.2d at 91. If the courts were to take a contrary view, they would in effect be clothing the police with “absolute discretion to intrude into the lives of the occupants of motor vehicles,” thereby effectively precluding judicial review of the exercise of the discretion. Id. The police would then be at liberty to stop without rhyme or reason any motorist, at any time, on any whim, merely on the outside chance that the operator of the vehicle would be unlicensed, not in possession of his license, not have a registration card in his possession, or be driving a stolen vehicle. Such a stop is a “fishing expedition” that we will not license. Were we to do so, we would be abdicating the court’s role of buffer between the police and the citizenry.

We recognize that the State has a valid and vital interest in highway safety, and that normally the operation of vehicles by nonlicensed drivers or those operating without a registration card are not readily detectable by mere observation of the manner in which the vehicle is driven. The number of deaths annually attributed to motor vehicle collisions is awesome, without even considering the loss occasioned by bodily injury and property damage arising from those vehicular accidents. Certainly, the State has a duty to protect its citizens through highway safety. Yet, the motorist also has the right to be protected from arbitrary intrusion by the State into his freedom of locomotion. People v. Ingle, supra; see generally, The Right to Travel: In Search of a Constitutional Source, 55 Neb. L. Rev. 117 (1975-76). The question then becomes one of balancing the State’s interest in the welfare of its people against that of the individual motorist. While we conclude that, in the light of the Fourth Amendment, the scale tips in favor of the individual vis-a-vis the State, the latter is not without adequate means of protecting the public’s interest through highway safety. This is true because the factual basis necessary to underpin the stop of a motorist for a spot or routine check, is minimal indeed. Commonwealth v. Swanger, 453 Pa. at 112, 307 A. 2d at 878. An actual violation of the motor vehicle sections of the Transportation Article need not be detected. “All that is required is that the stop be not the product of mere whim, caprice, or idle curiosity.” State v. McKinley, 305 Minn, at 304, 232 N.W.2d at 911. Moreover, it may not be simply because of the motorist’s national origin, race, or sex. “It is enough if the stop is based upon ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.’ (Terry v. Ohio, 392 U. S. 1, 88 S. Ct. 1868, 20 L.Ed.2d 889, supra).” State v. McKinley, 305 Minn, at 304, 232 N.W.2d at 911.

Sgt. McLean, in the case at Bar, did not articulate any specific facts that warranted the intrusion into the motorist’s right to be secure in the automobile he was driving, nor are there any rational inferences properly deducted from the facts, which, when added to Sgt. McLean’s testimony, will pass muster so as to permit trespass upon the Fourth Amendment protection afforded the motorist. In sum, all that the State produced in the way of justification for the stop of the vehicle in which appellants were riding was the suspicion that was aroused within the sergeant’s mind, and that suspicion falls well short of “articulable specific facts.”

Inasmuch as there was no lawful basis for the halting of the vehicle in the instant case, the stop was illegal, and all that flowed therefrom, including the recovery of the guns, was an unconstitutional seizure. The appellants’ motions to suppress the guns should have been granted. We shall reverse without remanding for a new trial because the evidence must be suppressed, and without that evidence, there is no case. Compare State v. Boone, 284 Md. 1, 393 A. 2d 1361 (1978).

Judgments reversed.

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

      . The operator was later identified to be Lawrence Terry Monroe. He was jointly charged and tried with the appellants, but he was acquitted by the jury. ‘

      . Whether the Maryland Constitution permits police to “order” passengers to alight from a motor vehicle is a question which is not presently before us. Nonetheless, we note in passing that the Louisiana Supreme Court recently concluded that the rationale of Pennsylvania v. Mimms, 434 U. S. 106, 54 L.Ed.2d 331, 98 S. Ct. 330 (1977), does not extend to automobile passengers. Acknowledging that the Miming decision permits police routinely to order drivers out of their vehicles when they are stopped for traffic offenses, the Louisiana Supreme Court, nevertheless, determined that "[tjhere is no legitimate support in Louisiana for a rule that would permit police to remove a passenger from an automobile on a routine traffic stop.” State v. Williams, (La. Sup. Ct. 12/15/78), 24 Cr.L. 235.9, 2360 (1979).

      . Parnell was not tried with the appellants.

      . We are unable to find within the record a motion to suppress filed by or on behalf of appellant Walker. Nevertheless, the docket entries reveal that the judge “heard and denied” Walker’s “Motion to Suppress.” We infer that such a motion was filed.

      . In holding that the selective stopping of a single motor vehicle is unconstitutional, we do not imply that the nondiscriminatory stopping of vehicles at a roadblock is prohibited. Where every motorist who passes a given location is stopped, that detention has been sanctioned. Brignoni-Ponce, supra; Almeida-Sanehez, supra. See The Automobile Spot Checks and the Fourth Amendment, 6 Rut.-Cam. L.J. 85 (1974-75).

      . Among those decisions are Kraft v. State, 18 Md. App. 169, 305 A. 2d 489 (1973); Glover v. State, 14 Md. App. 454, 287 A. 2d 333 (1972); and Burkett v. State, 5 Md. App. 211, 245 A. 2d 911 (1968).

      . See also State v. Mayo, Daily Record, August 1(5, 1978, a nisiprius case in which Judge Robert I. H. Hammerman, in a thoughtful analysis of the statutes in question, struck down the so-called “Battaglia plan” (named after now Deputy Chief Frank Battaglia, the father of the plan), a system of random “spot checks” of motorists in Baltimore City. While we agree with the result reached by Judge Hammerman, we do not conclude that Transportation Art. §'§ 18-409 and 1(5-112 are unconstitutional. Neither section, in our view, contravenes the Fourth Amendment. Rather, it is the use being made of the sections that is violative of the Constitution.

      . See e.g., Transportation Art. § 23-105 which pertains to police authority to issue an equipment order directing the owner of the motor vehicle to make or cause to be made certain repairs to the motor vehicle.


author: LlSS, J.,

text:
    VONNIE GARDNER v. ALVIN W. PERKINS, Personal Representative of the Estate of Jesse R. Gardner
    [No. 645,
    September Term, 1978.]

      Decided March 8, 1979.

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

      Joel L. Katz for appellant.

      Peter W. Collery, with whom was Richard M. McGill on the brief, for appellee.
   LlSS, J.,

delivered the opinion of the Court.

Algernon Charles Swinburne (1837-1909) in his poem “Dolores" must have foreseen the sorrows of the marriage of Vonnie Gardner, appellant herein, and her husband, Melvin G. Gardner, deceased, when he wrote

For the crown of our eye as it closes
Is darkness, the fruit there of dust;
No thorns go as deep as a rose’s,
And love is more cruel than lust.
Time turns the old days to derision,
Our loves into corpses or wives;
And marriage and death and division Make barren our lives. (Emphasis supplied)

Vonnie Gardner and the decedent, Melvin R. Gardner, were married on August 1, 1947. From the date of their marriage until Melvin Gardner left Maryland in 1954, the decedent was employed in a Maryland shipyard, and both parties lived in this State as husband and wife. In the early part of 1954, the shipyard was closed for a period of time, and on August 1,

1954, Mr. Gardner left Maryland to look for work. At trial, the appellant testified that it was her understanding that her husband would attempt to find work elsewhere, and if he were successful, he would send for her. About a month after his departure from Maryland, his wife stated that she had received a letter from Mr. Gardner which indicated that he had gone to Indiana. She later learned that her husband had driven a tractor-trailer in Indiana and then had gone into the used furniture business there on his own. She testified that shortly after he left Maryland she wrote asking him to return, and that during his absence he wrote her four or five times. In one of his letters to her, he stated that he would return to Maryland after he had disposed of the stock of his furniture business. He did return on August 1, 1955.

While he was in Indiana, the decedent, on March 22, 1955, filed suit in Indiana for an absolute divorce from the appellant and obtained a final Indiana divorce decree dated May 26,

1955. Appellant testified that she had received no notice of the Indiana proceeding, nor was she aware of the divorce decree until her husband exhibited it to her upon his return to Maryland on August 1,1955. She testified she thought the decree was a joke, and that nothing further was said, about the decree from that point until her husband’s death in November • of 1973. She testified, and there was no contradiction of her testimony, that she and Mr. Gardner thereafter lived together as husband and wife in Calvert County until his death. Appellant entered an agreement into evidence dated the 20th day of February, 1961 by the terms of which the Gardners, designated as husband and wife, purchased a mortgage from one Nina V. Meade which involved property located in Calvert County and owned by Frank Hawkins and his wife. In addition, Mr. Gardner and the appellant were partners in a liquor store located in Huntingtown, Maryland which they were operating at the time of Mr. Gardner’s death.

After Mr. Gardner died, Jesse R. Gardner, his father, filed a bill of complaint in the Circuit Court for Calvert County in which he sought a declaratory judgment and other relief. The bill alleged the marriage of the Gardners and the subsequent alleged final divorce decree obtained in Indiana in 1955. It recited that subsequent to the divorce the parties acquired real and personal property purportedly as tenants by the entireties; that Melvin Gardner died intestate; and that the father was the sole heir of the decedent. Jesse Gardner moved the court to declare the interests of the decedent and the appellant, as to the real and personal property acquired by the parties after their marriage, and before and after the alleged divorce, as well as property owned by them in partnership. It also requested the court to declare that all real and personal property owned by the decedent be considered part of the decedent’s estate and be distributed according to the laws of intestacy in Article 93 of the Annotated Code of Maryland (1969); to require the appellant to account for all partnership assets; and to mandate that the appellant be removed as personal representative of the decedent’s estate.

The appellant’s answer contended that she. and the decedent were married at the time of his death, and that the real estate they acquired after the alleged divorce was held by them as tenants by the entireties and thereby passed by operation of law to the appellant.

While the case was pending, Melvin Gardner’s father, Jesse R. Gardner, died, and Alvin W. Perkins was appointed as executor of Jesse Gardner’s estate. The appropriate motion for substitution of party was filed and following an order of court, Alvin W. Perkins became the complainant in this suit and is now the appellee herein.

The matter came on for trial in the Circuit Court for Calvert County, and after hearing the evidence we have recited, the trial judge entered a decree which provided as follows: that the deceased Melvin Gardner and Vonnie Gardner, were divorced and not married but subsequently held themselves out as husband and wife entering into deeds and agreements; that the parties were partners in the business enterprise located in Huntingtown, Maryland, and the estate of Jesse R. Gardner was entitled to an accounting as of the date of the decedent’s death and entitled to a distribution of the capital account of the deceased to the estate; that all real and personal property belonging to Melvin Gardner be distributed to the estate of Jesse R. Gardner; and all real property owned by the decedent and Vonnie Gardner as tenants by the entireties be the sole property of the appellant. It is from that decree that this appeal was taken.

The sole question raised by this appeal is whether the divorce decree obtained by Melvin Gardner in Indiana was entitled to full faith and credit in the Maryland courts. Appellant, in her brief and in oral argument, relied primarily on her contention that the Indiana courts did not have domiciliary jurisdiction to grant the divorce decree in this case. As we perceive the matter sub judice, there is a preliminary legal question which was not resolved by the trial court.

The first section of Article Four of the Constitution of the United States provides, “Full faith and credit shall be given in each State to the public Acts, Records and Judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” The purpose of the Full Faith and Credit Clause was to promote certainty and uniformity in the rule among the States. Congress, in the exercise of this power granted it by the Constitution, has prescribed the manner in which the records and judicial proceedings of any State may be authenticated. It has defined the effect thereof by enacting that “the said records and judicial proceedings so authenticated, shall have such faith and credit given to them in every court within the United States as they have by law and usage in the Courts of the State from which they may be taken.” Atherton v. Atherton, 181 U. S. 155, 21 S. Ct. 544 (1901); Huntington v. Attrill, 146 U. S. 657, 13 S. Ct. 224 (1892).

Perhaps the greatest difficulty in the delineation of the full faith and credit standards has been the application of the law involving the recognition of foreign divorce decrees. The leading cases in this area are known as Williams I and Williams II. In Williams I (Williams v. North Carolina, 317 U. S. 287, 63 S. Ct. 207 (1942)), the Supreme Court held that a divorce granted in Nevada, on a finding that one spouse was domiciled in Nevada, must be respected in North Carolina where Nevada’s finding of domicile was not questioned, even though the other spouse had neither been served with process nor appeared in Nevada. In Williams II (Williams v. North Carolina, 325 U. S. 226, 65 S. Ct. 1092 (1945)), the Supreme Court had before it the issue whether North Carolina, in the light of the Full Faith and Credit Clause, could refuse to recognize a Nevada decree where it found, contrary to the findings of the Nevada court, that no bona fide domicile was established in Nevada, and that Nevada under these circumstances, lacked jurisdiction to enter a divorce decree. The Supreme Court, in determining the existence of the right to attack collaterally the Nevada divorce decree, said:

The State of domiciliary origin should not be bound by an unfounded, even if not collusive, recital in the record of a court of another State. As to the truth or existence of a fact, like that of domicil, upon which depends the power to exert judicial authority, a State not a party to the exertion of such judicial authority in another State but seriously affected by it has a right, when asserting its own unquestioned authority, to ascertain the truth or existence of that crucial fact. Id. at 230.

In Sherrer v. Sherrer, 334 U. S. 343, 68 S. Ct. 1087 (1948), and Coe v. Coe, 334 U. S. 378, 68 S. Ct. 1094 (1948), the Supreme Court narrowed the right to attack collaterally a divorce decree on jurisdictional grounds in the courts of a sister State when there had been participation by the defendant in the divorce proceeding; where the defendant had been accorded procedural due process to contest the jurisdictional issues in the State issuing the divorce decree; or where, as in Sherrer and Coe, supra, the decree was not susceptible to attack as invalid in the court which granted the divorce.

It is the question of whether the appellant was accorded procedural due process which gives us pause in the case sub judice. The Court of Appeals had before it the issue of notice to establish jurisdiction in Madaio v. Madaio, 256 Md. 80, 259 A. 2d 524 (1969). It said:

It is well settled that the courts of this state must give full faith and credit to a divorce decree rendered by a sister state if that state had in personam jurisdiction over the parties to the proceedings. E.g., Staley v. Staley, 251 Md. 701, 704-05, 248 A. 2d 655 (1968)....
The right to receive notice and to be afforded an opportunity to be heard in any proceeding to which finality is to be accorded is established beyond question in this country. According to the Supreme Court of the United States, “[t]he fundamental requisite of due process of law is the opportunity to be heard.” Grannis v. Ordean, 234 U. S. 385, 394 (1914). In Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306 (1950), Mr. Justice Jackson, for the Court, pointed out that:
“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. * * * The notice must be of such nature as reasonably to convey the required information, * * * and it must afford a reasonable time for those interested to make their appearance * * 256 Md., at 83-84.

In Sanders v. Sanders, 12 Md. App. 441, 278 A. 2d 615 (1971), we said:

It has been stated that “compliance with the statutes on service of process is essential in order to give the court jurisdiction to grant a divorce, unless there is a waiver of service. More obviously, there must be a strict compliance with the statutes and rules on constructive service; compliance is jurisdictional, and if any essential statutory step is omitted, the decree rendered on such service is void. * * * Where a statute requires not only a publication but also that a copy of the petition be mailed by registered mail to the defendant at his or her last known address, the mailing is as much a part of the service as the publication, and where there is a publication but there is no mailing, or the plaintiff causes a notice to be mailed to a false address, the service is void. The mere fact that the defendant has actual notice of the institution of the proceedings against him is not sufficient to give the court jurisdiction where the plaintiff has not complied substantially with the statutes on constructive service.” 24 Am.Jur.2d, Divorce and Separation, Sec. 286, at 437-38. 12 Md. App., at 447-48.

The Indiana statute which was in effect at the time Melvin Gardner filed his divorce suit provided, in Section 37-12-7, the following requirements for notice to non-resident defendants: Notice could be accomplished by publication in a county newspaper of general jurisdiction for three successive times, one week apart. The statute provided that the complainant was required to furnish the address of the defendant, if known, so that copies of the notice could be mailed to the defendant, and if the address was unknown, the plaintiff was required to file an affidavit with the court stating this information. We recognize there were unusual difficulties present in this case, as the complainant was deceased and the original documents and testimony were not available because they had been destroyed by a fire. In spite of these difficulties, the appellant was required to establish by a preponderance of the evidence, that the requirement of notice to the appellant had not been complied with and because of a lack of notice the Indiana court had not obtained jurisdiction over the appellant. The appellee offered into evidence exhibits which apparently established that an order of publication had been filed but there is nothing in the record which indicates that the husband furnished his wife’s last known address or that a notice of the pending divorce suit was ever sent to the appellant. The wife testified that she never received a notice and that her first knowledge of the divorce suit came when her husband returned to live with her and exhibited the divorce decree. The Maryland law is clear as to the presumptive validity of foreign divorce decrees. According to the case of Brewster v. Brewster, 204 Md. 501, 105 A. 2d 232 (1954), a foreign divorce decree is entitled to and must be given presumptive validity and full faith and credit in Maryland unless and until it is attacked and judicially impeached. The burden of proof is on the attacker to establish that the spouse who sought the foreign decree did not acquire a valid domicile in the foreign state or to establish any other facts which would negate the jurisdiction of the foreign court. Colburn v. Colburn, 20 Md. App. 346, 316 A. 2d 283 (1974).

It is implicit that the trial judge recognized the importance of the notice requirement as evidenced by his statement contained in his oral opinion, where he said:

Now whether the divorce is good or not, that depends on whether or not Mrs. Gardner had notice of it; whether he went through the steps to do the things that he was supposed to do in Indiana. And he says and Mrs. Gardner has testified that she had never received any notice, actual notice of this case while it was pending. * * * Somewhere out in Indiana, they decided they had jurisdiction and they obtained jurisdiction, there, and it wasn’t any fraud on anybody, it wasn’t designed to be done in derogation of any other State’s laws.
Now weeding out the question, let’s put aside for a minute the question of notice in this case. .. .

Hence, although the trial judge recognized the question, he never reached a conclusion as to whether the husband ever complied with the necessary notice requirements or whether the appellant wife satisfied her burden of proof in attacking the foreign decree. Apparently the trial judge based his decision on the fact that the Indiana court had decided that it had jurisdiction to grant the divorce decree. If the trial judge was not convinced by a preponderance of the evidence that the husband failed to give the required notice, or that the husband was not properly domiciled in the State of Indiana, then the appellant’s collateral attack failed and the Indiana decree must be given full faith and credit in Maryland. However, if the trial judge accepted the appellant’s testimony, as to the length of Mr. Gardner’s stay in Indiana, it becomes evident that Mr. Gardner lived in Indiana for only nine months when the divorce suit was filed. Hence, he did not procure valid domicile to prosecute the suit and the validity of the decree is nugatory. The trial court was not required to accept the testimony of the wife and from the record it is impossible to determine what was the basis for his decision other than the fact that the Indiana court was apparently satisfied that it had jurisdiction. We conclude that this case should be remanded so the trial judge may hold an additional evidentiary hearing if he deems it necessary and so that he may rule on the result of the collateral attack made on the divorce decree by the appellant.

Case remanded without affirmance or reversal for further proceedings; costs to be paid by appellee.

      . Dolores [1866] stanza 20.


author: Lowe, J.,

text:
    CHARLES EDWARD ROWE, JR. v. STATE OF MARYLAND
    [No. 678,
    September Term, 1978.]

      Decided March 8, 1979.

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

      Thomas A. Pavlinic for appellant.

      Arrie W Davis, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, and Warren B. Duckett, Jr., State’s Attorney for Anne Arundel County, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

A jury in the Circuit Court for Anne Arundel County convicted appellant of second degree murder. His appeal raises four issues, two of which contend that a pretrial inculpatory statement should have been suppressed. A third issue charges a discretionary abuse by the court in allowing a variance in the order of proof presented by the State. The final concern is with the sufficiency of the evidence.

The latter argument acknowledges the confession and the testimony of appellant that he first shot, then stabbed, the deceased. He contends, however, that in both instances they were founded upon a factual justification indicating self-defense. Appellant summarizes this argument by saying:

“Since the element of self-defense was introduced during the presentation of the State’s case in chief, amplified during the presentation of the defense, and never thereafter rebutted by the State, the Appellant contends that the State did not meet its burden of negating the defense elements by proof beyond a reasonable doubt.”

Because appellant stated that he depends upon Gilbert v. State, 36 Md. App. 196 (1977), “to spearhead [his] argument,” we assume that he contends here, as did Gilbert there, that since the State must rely upon a presumption to prove the negative elements of malice necessary to raise the admitted homicide to murder (i.e., non-excuse, non-justification and non-mitigation), such presumption was not raised (or, as in Gilbert at 201, dissipated), because the statement giving rise to the presumption of homicide came in concomitantly with the unrebutted explanations of self-defense. But appellant does not seem to have caught Judge Moylan’s distinction in Gilbert between presumptions and inferences. A presumption is a legally required inference. An inference is a factually permissible presumption. Even if we agree that the negative presumptions in this case either disappeared or never arose, there remains an apparent inference from the mode as well as the cause of death, that — absent the excuse — there was malice in the doing. As indicated by Judge Moylan in Gilbert:

“The flaw in the appellant’s argument is that although the presumption of a fact may have been dissipated [or absent], the permitted inference of that fact is not, thereby, automatically extinguished also. It may, as a survivor, have an independent life of its own. In this case, it does.” Id. at 205.

Judge Moylan went on to point out that it is really a question for the factfinder. It may choose to believe the admission of the homicidal act with its permitted inferences of malice from “how” it was done; and yet, may choose to disbelieve the more subjective reasons expounded in explaining “why.”

“The thing that saves the appellant from the otherwise foreclosing effect of the presumption — the thing that dissipates the presumption — is evidence that is merely legally sufficient to raise the possibility of a defense. The fact finder may believe such evidence and the appellant is, for that reason, entitled to have the fact finder consider it. Just as the fact finder may believe it, so too may he utterly disbelieve it. In that case, it is as if the evidence had never been given. All that has occurred in a case such as this is that the appellant has generated a genuine jury issue.
... The fact that it may be believed is enough to get the defense before the jury; the fact that it may not be believed is enough to keep the State’s case before the jury.” Id. at 205-206 (footnote omitted).

See Smith v. State, 41 Md. App. 277, 280. Our conclusion that there was sufficient evidence to sustain the verdict presupposes that the evidence was admissible.

— involuntary inducement —

We next address the admissibility of the inculpatory statements. Prefatorily we point out that our constitutionally mandated independent appraisal of the record satisfies us that there had been no coercion or improper inducement which caused the appellant to confess. Haynes v. Washington, 373 U. S. 503, 515-516 (1963). The State proved by a preponderance of the evidence that the confession was not made as a consequence of an improper inducement. Lego v. Twomey, 404 U. S. 477, 489 (1972). To support appellant’s assertions to the contrary, he specifies three circumstances which to him warrant an opposite conclusion.

Initially he complains that the atmosphere surrounding the interrogation was too compatible, notwithstanding his sub silentio admission that the warnings required by Miranda v. Arizona, 384 U. S. 436 (1966), were fully given to him. It seems that the interrogating officer explained to appellant that the officer had known what a “no good son-of-a-bitch” the victim had been, and “that the only thing that we wanted to do really was to shake the hand of the man that murdered him____” With a classic non-verbal act which in itself might have constituted a confession, appellant offered his hand to the officer.

Quoting Spell v. State, 7 Md. App. 121, 129 (1969), appellant classifies this friendly atmosphere and suggestive remark as something proscribed by the statement that

“[A confession] cannot be extracted by any sort of threats or violence, nor obtained by any direct or implied promises nor by the exertion of any improper influence ...

But this is not a “psychological coercion” as depicted by appellant and proscribed by Escobedo v. Illinois, 378 U. S. 478 (1964). See Blackburn v. Copinger, 300 F. Supp. 1127, 1139 (1969). It may have been precisely what was felt by the officer (a fact conceded at argument by appellant), however, even assuming the worst, i.e., that it was deceptive trickery to entice a confession — which it inferentially did — it is not unconstitutional to entice confessions deceptively. Hopkins v. State, 19 Md. App. 414, 424 (1973), cert. denied, 271 Md. 738 (1974). An enticement is only improper when

“the behavior of the State’s law enforcement officials was such as to overbear [appellant’s] will to resist and bring about confessions not freely self-determined____” Rogers v. Richmond, 365 U. S. 534, 544 (1961).

Deception short of an overbearing inducement is a “valid weapon of the police arsenal.” Hopkins v. State, 19 Md. App. at 424. The implicit condonation of appellant’s criminal conduct would only be an improper inducement if appellant understood it as a preliminary pardon from his legal responsibility for the commission of the crime. In that case, the question becomes one of reasonable interpretation of the words used under the extant circumstances by a person of the accused’s capabilities, Biscoe v. State, 67 Md. 6, 7 (1887), i.e., whether the condonation was a personal expression or an authoritative absolution. The words used in this case are certainly not such as to automatically render that which follows inadmissible. It is barely conceivable that anyone could have interpreted the officer’s comment as anything more than an effort to “soft soap” the appellant, hoping to trap him into admitting the killing — which appellant did, first by his non-verbal conduct, and subsequently by admitting it in detail but attempting to excuse it as self-defense.

The Biscoe formula requires in perspective, not only the preliminary determination of whether the underlying meaning, of the words used would have clearly constituted to anyone a holding out of an inducement, but even then, to further determine whether the accused had been influenced by such inducement, if one is found to have been offered. Ralph v. State, 226 Md. 480, 486 (1961). See Merchant v. State, 217 Md. 61, 69 (1958); Kier v. State, 213 Md. 556, 561-563 (1957). The detrimental effect of the “inducement” upon the accused must affirmatively appear in the record in order for the defendant to prevail in suppressing his statement. See Ralph v. State, 226 Md. at 487-488. Nowhere does the record reflect that appellant’s interpretation of the remarks was as an offer of freedom to him, or even of limited punishment, as a quid pro quo for confession. More significantly we note that even in his brief here he does not suggest such an interpretation.

While not contending, despite the intended hints, that he was interpretatively misled, appellant does contend that the deception overbore his will to resist, which argument he believes is enhanced by evidence that he was voluntarily drug intoxicated and, consequently (according to a neuro-psychiatric expert) “free from the normal anxiety which people have when faced with dangerous situations.” The appellant’s self-induced susceptibility to suggestion may have enhanced his willingness to reach out for the carrot of flattery dangled by the officer, but it does not transform the words, even interpretatively, into an overbearing inducement of an offer of reward or threat of harm that could elicit the involuntary confession. The confession was not inadmissible merely because he may have been susceptible to suggestion due to the influence of self-administered narcotics, Bryant v. State, 229 Md. 531, 535-536 (1962), although it is a factor to consider. Hopkins v. State, 19 Md. App. at 423.

It follows that we are equally unconvinced by appellant’s alternative argument that the narcotic drugs from which he claims intoxication made it impossible for him intelligently and voluntarily to waive his Miranda rights. Under the two step, voluntariness process, deciding this mixed question of law and fact, Dempsey v. State, 277 Md. 134, 143-146 (1976), the trial judge saw and heard the testimony of the witnesses who testified before him and could weigh the credibility of their testimony. He was not compelled to believe that appellant’s state of sobriety was such as to preclude the voluntary nature of the statement, Bryant v. State, 229 Md. at 536, or the waiver of Miranda rights. Despite the expert’s hypothesized opinion, neither the judge nor the jury was bound by the factual predicate upon which the opinion was based. Nor were they bound by his opinion of the narcotic’s effects, even if they believed the amount allegedly imbibed.

It is the actual condition of the accused which is the consideration, see Bryant and Hopkins, supra, rather than what an expert said it might — or even ought to — have been; and the judge stated that appellant’s apprehensive conduct was not inconsistent with a knowing and an alert accused. The circumstances of this case, as reflected by our independent review of the record, do not indicate that the appellant was incapable of giving a voluntary confession. Pharr v. State, 36 Md. App. 615, 626-627 (1977).

—- it takes one to know one —

While not contending that Miranda rights were not given, appellant does argue that he could not have effectively waived his rights under Miranda (including his right to an attorney), without an attorney’s advice at the time. The facial spuriousness of this “Catch 22” contention compels us to decline dignifying it with a response. This argument was not raised below and, because of its constitutional ramifications, we decline to hold that its preservation for appeal was effected by a general objection to admissibility of the confession. See Vuitch v. State, 10 Md. App. 389, 397-398 (1970).

— order of proof —

The final question is one to which we again found the answer in the record. After the State had closed its case, it learned that appellant had improperly attempted to dissuade a witness from testifying. Two defense witnesses, including appellant himself, had already testified. The State moved to reopen its case and the judge decided to grant the motion at that time because the testimony was relevant to appellant’s credibility, and since he had recently concluded his testimony, it would be pertinent to the manner in which the jury received that testimony. Appellant “does not quarrel with the right of Judge Childs to exercise his discretion and to vary the order of proof.” See Mays v. State, 283 Md. 548, 555 (1978); State v. Hepple, 279 Md. 265, 273-274 (1977). He does, however, “feel the proper course of action should have been to allow the State to open its case at the conclusion of, rather than during, the presentation of the defense’s case in chief so as not to prejudice the Appellant.” (emphasis added). But therein lies the answer. Despite the askance with which we view the interruption of appellant’s case, there is no evidence in the record to indicate that appellant was improperly prejudiced. Any testimony indicative of guilt is, of course, prejudicial; however, there is not a scintilla of improper prejudice nor Of improper judicial motivation indicated in the record nor alleged upon appeal. The discretion, if somewhat questionably exercised, was not abused.

Judgment affirmed.

Costs to be paid by appellant.

      . The officer also admitted that he “could have” remarked that the victim “deserved to die.”

      . The accused was a 23 year old white male of average intelligence, having completed a high school education and taken at least one informal class at the area Community College.

      . At the hearing on the motion to suppress, the judge expressly rejected “the underlying premises of the good doctor” who the judge believed “overspoke himself and didn’t dare retreat from his original premise.”

      . We cannot help but note before passing this issue, that appellant’s elliptic quotation from Townsend v. Sain, 372 U. S. 293 (1963), was quite misleading. We hope that was not intentionally so. The quote was set forth in the context of appellant’s drug intoxication argument and it reads:
      “ ‘An accused’s confession is inadmissible where it is the product of physical intimidation or psychological pressure, or where it is induced by a drug
      The Townsend reference to a confession “induced by a drug” obviously related to drugs administered by law enforcement officials, but appellant left the contrary impression without explanation by elliptically ending the quote set forth in a different context. We would also note that the language quoted is not a direct quote from the opinion.


author: MacDaniel, J.,

text:
    KENNETH COUNTESS v. STATE OF MARYLAND
    [No. 700,
    September Term, 1978.]

      Decided March 9, 1979.

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

      Patricia A. Logan, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Stephen B. Caplis, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Richard

      Berger, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   MacDaniel, J.,

delivered the opinion of the Court.

Kenneth Countess, the appellant, was charged with the crimes of assault with intent to murder and carrying a concealed deadly weapon. On May 8, 1978, after a non-jury trial in the Criminal Court of Baltimore, he was found guilty of the above offenses and was sentenced to thirty years and three years respectively, the sentences to be served consecutively. The following issues are raised on appeal:

1. Did the appellant effectively waive his right to a jury trial?
2. Was the issue of mitigation generated by the evidence? (We have combined the appellant’s second and third issues.)
3. Did the trial court impose an excessive sentence with prejudice and ill-will and without regard for mitigating circumstances?

We will first address the second and third issues, above.

William Smith testified in the trial below that on December 13,1977, at about 12:55 a.m., he was on Pennsylvania Avenue near the “Pig Pen” and the Wonderland Bar. He went into the Wonderland Bar, where he saw a child he referred to as “Shortie” (later identified as Kevin Stevenson) talking to the appellant. Thinking that the boy might need some help to get home at that hour, Mr. Smith left the bar with Shortie. Mr. Smith noticed the appellant wearing a long green coat and standing against the wall. As Mr. Smith raised his arm to put it around the boy’s shoulder he was stabbed in the side by the appellant. He grabbed his assailant and fought with him. Mr. Smith testified that he had never seen the appellant before and that they exchanged no words at any time.

Kevin Stevenson testified that he had told Mr. Smith that the appellant was “messing” with him and that Mr- Smith was going to walk him home. On cross-examination, he denied that he had tried to take money from the appellant, that he and Mr. Smith had been in the “Pig Pen,” or that there had been a fight or argument between Mr. Smith and the appellant prior to the stabbing.

Officer Hillard Fritz testified that after he arrived on the scene he placed the appellant under arrest. A five-inch dagger covered with spots that looked like blood was taken from a pocket of the appellant’s coat which was green and had spots of blood on it. He testified, for the purpose of impeachment, that Kevin Stevenson had told him that the appellant and Mr. Smith had argued at the “Pig Pen.”

The appellant did not testify on his own behalf.

I

In Tripp v. State, 36 Md. App. 459, 465-66, 374 A. 2d 384, 389 (1977), this Court, quoting from Whitehead v. State, 9 Md. App. 7, 10-11, 262 A. 2d 316, 319 (1970), set out the elements of provocation:

“ ‘[T]here may be a homicide which would otherwise be murder which is reduced to manslaughter by circumstances of alleviation or mitigation. Such a case is where the circumstances surrounding the homicide establish that it was provoked. For the “Rule of Provocation” to be invoked there are four requirements:
(1) There must have been adequate provocation;
(2) The killing must have been in the heat of passion;
(3) It must have been a sudden heat of passion —that is, the killing must have followed the provocation before there had been a reasonable opportunity for the passion to cool;
(4) There must have been a causal connection between the provocation, the passion, and the fatal act.’ ”

For requirement (1), above, to be met:

“. . . there must be not simply provocation in psychological fact, but one of certain fairly well-defined classes of provocation recognized as being adequate as a matter of law. Clark and Marshall, Law of Crimes (Sixth Wingersky Ed., 1958), describes the objective character of this test, at 621:
‘To reduce a homicide from murder to manslaughter, the provocation must be adequate in law, and to be so it must be so great as reasonably to excite passion and heat of blood. Passion without adequate provocation is not enough. If a man unreasonably allows his passion to control his judgment, he is responsible to the full extent for the consequences of his acts. The line which distinguishes provocations which will mitigate the offense from those which will not, cannot be clearly defined.' Reasonableness is the test. The law contemplates the case of a reasonable man — an ordinarily reasonable man — and requires that the provocation shall be such as might naturally induce such a man, in the anger of the moment, to commit the deed.’ (Emphasis supplied)” 36 Md. App. at 473, 374 A. 2d at 392-93.

A review of the record shows that the appellant has failed to raise the issue of mitigation because of provocation. As the trial court below suggested, mere evidence of an argument between the appellant and the victim does not meet any of the four requirements, above. The appellant’s evidence is far too vague, and it is not necessarily even suggestive of the conclusion he asks us to reach. The appellant has not satisfied his burden of producing evidence of mitigation through provocation. Only if he had satisfied that burden, would the burden then shift to the State to disprove provocation. Tripp v. State, supra, at 477 [395].

II

With respect to the appellant’s argument that the trial court imposed an excessive sentence without regard to mitigating circumstances and acted on prejudice and ill-will, we adopt the language of this Court in Glass v. State, 24 Md. App. 76, 81, 329 A. 2d 109, 112 (1974):

“We see no abuse in the wide discretion enjoyed by the trial judge in his sentencing authority. The sentences did not exceed the maximum permitted by law, they were not cruel and unusual, and they were not imposed in violation of due process of law. No unworthy motive was indicated.”

III

We now turn to the appellant’s first argument, namely, that the trial court failed to comply with then Maryland Rule 735, Election of Court or Jury Trial, effective July 1, 1977, which provides:

“a. How Made.
Subject to section e of this Rule, a defendant shall elect to be tried by a jury or by the court. The election shall be made pursuant to section b of this Rule and shall be filed within the time for filing a plea pursuant to Rule 731 (Pleas). If the defendant elects to be tried by the court, the State may not elect a jury trial. After an election has been filed, the court may not permit the defendant to change his election except upon motion made prior to trial and for good cause shown. In determining whether to allow a change in election, the court shall give due regard to the extent, if any, to which trial would be delayed by the change.
b. Form of Election.
An election of a court or jury trial shall be in writing, signed by the defendant, witnessed by his counsel, if any, and filed with the clerk of the court in which the case is pending. It shall be substantially in the following form:
(caption of the case)
Election of Court Trial or Jury Trial I know that I have a right to be tried by a jury of 12 persons or by the court without a jury. I am aware that before a finding of guilty in a jury trial all 12 jurors must find that I am guilty beyond a reasonable doubt. I am aware that before a finding of guilty in a court trial the judge must find that I am guilty beyond a reasonable doubt.
I hereby elect to be tried by:........ (insert "the court” or "a jury”)
I make this election knowingly and voluntarily and with full knowledge that I may not be permitted to change this election.
Witness:
Signature of Counsel Signature of Defendant
Date: ............
c. When No Election Filed.
If the election is not filed within the time provided by this Rule, the court, on its own motion or upon the motion of the State’s Attorney, may require the defendant, together with his counsel, if any, to appear before the court for the purpose of making the election in open court. If the defendant fails or refuses to make an election after being advised by the court on the record that his failure or refusal will constitute a waiver of his right to a trial by jury and if the court determines that the defendant knowingly and voluntarily is waiving his right with full knowledge of it, the defendant may then be tried by the court.
d. When Court Trial Elected.
If the defendant files an election to be tried by the court, the trial of the case on its merits before the court, may not proceed until the court determines, after inquiry of the defendant on the record, that the defendant has made his election fora court trial with full knowledge of his right to a jury trial and that he has knowingly and voluntarily waived the right. If the court determines otherwise, it shall give the defendant another election pursuant to this Rule.
e. Causes From District Court.
Where the defendant has a right to a jury trial and his cause has been transferred from the District Court because he has demanded a jury trial, he shall be tried by a jury and may not elect a court trial except with leave of court for good cause shown.” (Emphasis supplied.)

In compliance with section b, the appellant filed the specified written election to be tried by a jury. Subsequently, on the day of trial, when the appellant changed his mind and requested to be tried by the court, the following exchange took place:

“THE CLERK: How do you elect to be tried?
THE DEFENDANT: Judge.
THE COURT: Okay. You understand you have a right to a Jury Trial, Mr. Countess? (Whereupon, the Defendant indicated affirmatively by nodding his head.)
THE COURT: You understand that, sir?
THE DEFENDANT: Yeah, I understand. THE COURT: Has your lawyer fully explained that to you?
THE DEFENDANT: Yeah.
THE COURT: And you have elected to be tried by the Court instead of a Jury?
THE DEFENDANT: Yeah.
THE COURT: I didn’t hear you.
THE DEFENDANT: Yeah.
THE COURT: All right, yeah, okay.”

Relying on this Court’s ruling in Biddle v. State, 40 Md. App. 399, 407, 392 A. 2d 100, 104 (1978), the appellant argues that:

“ ... the trial court [may not] proceed with the trial on the merits until there has been compliance with Rule 735 d, i.e., a determination on the record of a knowing and intelligent waiver of the right to trial by jury. Cf. Davis v. State, 278 Md. 103, 361 A. 2d 113 (1976). A waiver of a constitutional right must appear affirmatively in the record, Boykin v. Alabama, 395 U. S. 238, 89 S. Ct. 1709, 23 L.Ed.2d 274 (1969)

He contends that the record in the case sub judice fails to show a determination by the lower court

“after inquiry of the defendant on the record, that the defendant has made his election for a court trial with full knowledge of his right to a jury trial and that he has knowingly and voluntarily waived the right.” Md. Rule 735 d.

We disagree.

First, we must determine whether Section d of Rule 735 applies to this case. We hold that Rule 735 d must be complied with whenever a defendant elects a court trial regardless of whether a previous election was made under Section b or whether the previous election was of a court or jury trial.

Next, we must determine whether in the case sub judice the mandatory requirements of Section d of Rule, 735 have been satisfied.

The present case is factually different from the Biddle case, supra, where this Court held that the record unequivocally showed non-compliance with Section d in that the record failed to show that the court gave him any explanation of his rights.

In the present case, there was a prior election of a jury trial pursuant to the form specified in Section b. When, on the day of trial, the appellant apparently changed his mind and requested a court trial, he was questioned by the court about his election.

There is no “magic litany” which must take place in the courtroom to demonstrate an effective waiver of the constitutional right to a jury trial. Although Rule 735 d now requires inquiry of the defendant, the exact questions are not mandated. Rather, compliance with this rule must be determined by this Court from a review of the record in each case.

A review of the record in this case convinces us that the mandatory requirements of Rule 735 d have been satisfied. Both the appellant and his attorney signed the form which is part of the record, and it contains all of the information required by Section b. On the day of trial, the appellant indicated, in response to questioning, that he understood that he had a right to a jury trial and that his lawyer had fully explained his right to him. The signed form and the in-court responses to questioning, show that the appellant made his election of a court trial with full knowledge of his right to a jury trial and that he knowingly and voluntarily waived the right.

Judgments affirmed.

Costs to be paid by appellant.

      . Effective January 1,1979, various changes have been made in Rule 735. None of the changes would result in a different outcome in the present case.

      . We note that the following change, effective January 1,1979, in Section d of Rule 735 absolutely mandates this outcome:
      “If the defendant [files an election] elects to be tried by the court, the trial of the case on its merits before the court may not proceed until the court determines, after inquiry of the defendant on the record, that the defendant has made his election for a court trial with full knowledge of his right to a jury trial and that he has knowingly and voluntarily waived the right. If the court determines otherwise, it shall give the defendant another election pursuant to this Rule.” (Italic type indicates new text. [Single brackets] indicates deleted text.)


text:
    JOHN P. BIRO, Personal Representative of the Estate of John Michael Biro v. ROBERT L. SCHOMBERT, Conservator of Richard L. Schombert
    [No. 724,
    September Term, 1978.]

      Decided March 9, 1979.

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

      Ferdinand J. Mack for appellant.

      Hugh E. Donovan, with whom were Donovan & Nash on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

John Michael Biro was killed in an automobile collision on December 23, 1976, while operating his motor vehicle on Route 198, a Montgomery County public highway. At the time of his death, Mr. Biro was twenty (20) years old. He is survived by his father, John P. Biro and his mother, Louise P. Biro.

In November 1977, the parents of John Michael Biro brought suit in the Circuit Court for Montgomery County against Robert L. Schombert. The first count of the declaration was filed under Maryland Courts and Judicial Proceedings Code Ann. § 3-904 (Wrongful Death). The Biros asserted that their son was slain as a result of Richard L. Schombert’s “negligently” driving “a motor vehicle ... onto the wrong side of the road and ... [colliding] head on” with the car driven by John Michael Biro.

Count II of the declaration, grounded on Maryland Estates and Trusts Code Ann. § 7-401, averred that John P. Biro had been appointed as the Personal Representative of his son’s estate. By means of Count II, the estate claimed “funeral and burial expenses for John Michael Biro in the sum of $1773.81,” as well as future loss of earnings.

Following some preliminary sparring among the litigants in the form of discovery, the appellee, Robert L. Schombert, tried for a “technical knockout” by throwing two “blows” in rapid succession.

First, he sought a “partial summary judgment in its [sic] favor on the issue of future damages and injuries to the Estate....” Second, he endeavored to avoid liability to the Biros by maintaining that “no cause of action exists under Maryland’s ‘Wrongful Death Statute.’ ”

The appellee met with a measure of success in that Judge Ralph G. Shure entered a “summary judgment... in favor of ... Robert L. Schombert ... limiting recovery” by the Estate of John Michael Biro “to $2,000.00 funeral expenses.” See Maryland Estates and Trusts Code Ann. § 7-401 (x) (2). Schombert’s motion as to Count I was denied. The partial summary judgment victory in this case is like an eight-point lead in a football game with but two minutes to play. It looms bigger and bigger. When the loss of future earnings is cut from the amount that the personal representative can recover in his claim, and there is no evidence of conscious pain and suffering, about all that is left to litigate is the liability for payment of the funeral bill. Cognizant that the “meat” had been stripped from his case, and rather than proceed to trial on the remaining count and then have the entire case, including the partial summary judgment, reviewed on appeal, the Personal Representative of John Michael Biro’s Estate sought and obtained from Judge Shure a certification “that there is no just reason for delay of the entry of this judgment, and the Clerk shall enter this as a final judgment in accordance with Rule 605 [a], Maryland Rules of Procedure.”

Maryland Rule 605 a permits a trial court to enter “a final judgment upon one or more but less than all of the claims only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” (Emphasis supplied.) By directing the entry of the “final judgment,” the trial court paved the way for appellate review of the “partial summary judgment.” Brooks v. Ford Motor Credit Co., 261 Md. 278, 274 A. 2d 345 (1971); Borden v. Director, State Department of Assessments & Taxation, 19 Md. App. 112, 309 A. 2d 773 (1973); Flores v. King, 13 Md. App. 270, 282 A. 2d 521 (1971).

The single issue raised by the personal representative, as appellant, is, “[i]n a survival action brought pursuant to [Estates] Article 7-401 Annotated Code of Maryland..., may a decedent’s personal representative recover for loss to the estate,, based upon the decedent’s loss of prospective income and savings?”

Estates art. § 7-401 provides in pertinent part:

“(a) Exercise of Powers. — In the performance of his duties pursuant to § 7-101, a personal representative may exercise all of the power or authority conferred upon him by statute or in the will, without application to, the approval of, or ratification by the court. Except as validly limited by the will or by an order of court, a personal representative may, in addition to the power or authority contained in the will and to other common-law or statutory powers, exercise the powers enumerated in this section.
“(x) Prosecute or defend litigation — He may prosecute, defend, or submit to arbitration actions, claims, or proceedings in any appropriate jurisdiction for the protection or benefit of the estate, including the commencement of a personal action which the decedent might have commenced or prosecuted except that:
(1) A personal representative may not institute an action against a defendant for slander against the decedent during the lifetime of the decedent.
(2) In an action instituted by the personal representative against a tort-feasor for a wrong which resulted in the death of the decedent, the personal representative may recover the funeral expenses of the decedent up to $2,000 in addition to other damages recoverable in the action.” (Emphasis supplied.)

The appellant urges us to construe the phrase “including the commencement of a personal action which the decedent might have commenced or prosecuted” to mean that the personal representative, on behalf of the estate, may seek wages that the decedent would have earned during his life expectancy, had he survived. The argument by the appellant is not new. It has been followed in a number of other jurisdictions, but Maryland has not adopted it.

Appellant states that “[wjhile there is no Maryland case directly in point, the decisions of other states, including the neighboring... [Commonwealth] of Pennsylvania, whose law the Court of Appeals relied on in Smith v. Gray[Concrete Pipe Co., 267 Md. 149, 297 A. 2d 721 (1972)], would support the claims asserted by the personal representative.”

A review of the Pennsylvania decisions reveals that it has indeed interpreted statutory language similar to that in Estates art. § 7-401 to permit the personal representative to recover the earnings that the decedent would have earned had he survived, less, of course, his probable costs of maintenance. Ferne v. Chadderton, 363 Pa. 191, 69 A. 2d 104 (1949); Murray v. Philadelphia Transportation Co., 359 Pa. 69, 58 A. 2d 323 (1948); Pezzulli v. D’Ambrosia, 344 Pa. 643, 26 A. 2d 659 (1942).

Even if we were to believe that the reasoning of those courts, which permit recovery by the estate of a decedent for the loss of future earnings less probable future expenses, is sound, we may not follow that line of cases because a barrier exists which blocks such a path. Contrary to the appellant’s urging on oral argument, we do not “write on a clean slate.” The “slate” has been written upon by the Court of Appeals as far back as 1906. At that time the Court decided Stewart v. United Electric Light & Power Co., 104 Md. 332, 65 A. 49 (1906). In that case, the Court traced the history of causes of action bottomed on Lord Campbell's Act (9 and 10 Vic., ch. 93) and also the Survival Action beginning in this State with the Act of 1785, ch. 80. Judge McSherry, for the Court, noted that as late as 1860 no pending personal action “except actions for slander and for injuries to the person should abate by the death of either or any of the parties to the suit.” Id. at 335, 65 A. at 50.

By Laws 1888, ch. 262, and codified as Md. Ann. Code art. 93, § 103 (1904), suits for personal injuries were excluded from that class of cases that abated upon death of either or any party to the cause. Then section 103 provided:

“Executors and administrators shall have full power to commence and prosecute any personal action whatever, at law or in equity, which the testator or intestate might have commenced and prosecuted, except actions of slander....”

The Stewart Court said that the above-quoted statutory language standing alone manifests that the decedent “could have brought a suit in his lifetime for the injuries sustained by him____” Id. at 337, 65 A. at 51. The difficulty in Stewart, as in the case sub judice, is that then section 103 did not stand alone anymore than does current Estates art. § 7-401. Both Code of 1904, § 103 and Estates art. § 7-401 must be read and interpreted in the full light of Maryland’s erstwhile and present Negligence Causing Death statutes. Those two statutes, then art. 67 and present Courts art. §§ 3-901 to 3-904, inclusive, are so substantively alike that the Stewart construction of former Article 67 and its relationship to the then survival statute, Md. Ann. Code art. 93, § 103 (1904), is equally apposite and controlling upon Courts art. §§ 3-901 to 3-904 and Estates art. § 7-401. Any attempt to distinguish the relevant parts of the latter from the former must fail.

Judge McSherry, writing for the Court in Stewart, noted that the statutory provisions of art. 67 and art. 93, § 103 allow “two, separate, distinct and independent causes of action arising out of the same wrongful or negligent act.... As the same act may injure different individuals in different ways there is no reason why those different individuals should not have separate remedies for the recovery of the damages sustained by them respectively, even though those damages flow directly from the same cause.” 104 Md. at 340, 65 A. at 52. The two causes of action are not in the alternative. The Wrongful Death Statute, Courts art. §§ 3-901 to 3-904, permits recovery from the party who negligently caused the death.

Damages in such a case are measured by the standard of pecuniary value of the life of the person who was killed to the person or persons entitled to damages. Damages in Survival Statute actions are limited to compensation for pain and suffering sustained, expenses incurred, and loss of earnings, by the deceased from the time of the infliction of the injury to the time of death.

The sum and substance of Stewart is that under former and current Maryland law two separate actions arise from a death caused by the negligence of another. Specified persons may maintain a suit for injury to them as a result of the death, Courts art. § 3-904. The other, related in that it stems from the same occurrence but, nevertheless, different action, may be brought by a personal representative, Estates art. § 7-401 (x), for pain and suffering sustained by the deceased as a result of the injury, loss of earnings, wages, or other income, and expenses incurred, all accounting from the time of injury to the time of death. Patently, if the claim ceases to accrue as of the time of death, then there can be no valid claim by the estate for loss of future earnings. That is the clear message of Stewart

We hold that Judge Shure did not err in granting the partial summary judgment in favor of appellee with respect to the appellant’s claim for loss of future earnings.

One final comment is in order. The appellant urges that “a parent finds it hard to accept the harsh view the law has taken of the value of a child’s life____” He notes that under the existing law it is cheaper to kill than to injure. Such a result he argues is unjust.

The answer to appellant’s moralistic argument is that 1) the parents are not without a remedy. Maryland’s version of Lord Campbell’s Act was brought into being for the purpose of invalidating the common law concept of no recovery by any one except the injured person. Hence, when that party died the claim died with him. The Legislature, recognizing the devastating social impact of the common law, wisely provided that the wife, husband, parent, and child, as the case may be, can maintain a suit. Courts art. § 3-904. 2) Over 72 years have passed since the Stewart case was decided by the Court of Appeals. The General Assembly has met many times during those years, but they have not seen fit to modify, alter, or change through legislation, the Stewart decision. See Criminal Injuries Compensation Board v. Gould, 273 Md. 486, 497, 331 A. 2d 55, 63 (1975). Certainly, a reasonable mind can, therefore, properly conclude that the General Assembly meant in former Code of 1904, art. 93, § 103, what Stewart said it meant. Moreover, by virtue of that august body’s not having changed, except stylistically, what was section 103, one may infer most strongly that it still means today what it meant in 1906.

Judgment affirmed.

Costs to be paid by appellant.

      . Robert L. Schombert is the Conservator of the estate of his son, Richard. The declaration recites that Richard was the operator of the automobile that struck Biro’s car.

      . Runyon v. District of Columbia, 463 F. 2d 1319 (D.C. Cir. 1972); Foster v. Maldonado, 433 F. 2d 348 (3rd Cir. 1970), applying Pennsylvania law; Florida Cent. & P.R.R. v. Sullivan, 120 F. 799 (5th Cir. 1903) applying Florida law; First Nat. Bank in Greensburg v. M. & G. Convoy, 106 F. Supp. 261 (W.D. Pa. 1952) applying Pennsylvania law; Donahue v. New York, New Haven and Hartford R.R., 21 Conn. Sup. 282, 154 A. 2d 394 (1959); Tully v. Philadelphia W. & B.R.R., 3 Penne. 455, 50 A. 95 (Del. 1901); Oldsen v. Jarvis, 159 N.W.2d 431 (Iowa 1968); Louisville & N.R.R. v. Garnett, 129 Miss. 795, 93 So. 241 (1922); Putman v. Pollei, 153 Mont. 406, 457 P. 2d 776 (1969); Pitman v. Merriman, 80 N. H. 295, 117 A. 18 (1922); Carlson v. Oregon Short Line & U.N. Ry., 21 Ore. 450, 28 P. 497 (1892); Templeton v. Quarles, 52 Tenn. App. 419, 374 S.W.2d 654 (1963); Warner v. McCaughan, 77 Wash. 2d 178, 460 P. 2d 272 (1969).

      . The then applicable Pennsylvania statute was found in Act of July 2, 1937, P.L. 2755, No. 563, § 2 (b). It provided in pertinent part: “Executors or administrators shall have power ... to commence and prosecute ... all personal actions which the decedent whom they represent might have commenced and prosecuted, except actions for slander and for libels____”

      . When Stewart was decided, the then Wrongful Death Statute was codified in Md. Ann. Code art. 67 (1904). It provided in pertinent part:
      “1. Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.
      2. Every such action shall be for the benefit of the wife, husband, parent and child of the person whose death shall have been so caused and shall be brought by and in the name of the State of Maryland for the use of the person entitled to damages; and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought, and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the above-mentioned parties, in such shares as the jury by their verdict shall find and direct; provided, that not more than one action shall lie for and in respect of the same subject-matter of complaint; and that every such action shall be commenced within twelve calendar months after the death of the deceased person.”

      . Current Courts art. §§ 3-901 to 3-904, inclusive, sets out the Maryland Wrongful Death Statutes. It provides in pertinent part:
      “§ 3-902. Liability notwithstanding death.
      (a) Action against person causing death of another. — An action may be maintained against a person whose wrongful act causes the death of another.
      “§ 3-904. Action for wrongful death.
      (a) Primary beneficiaries. — An action under this subtitle shall be for the benefit of the wife, husband, parent, and child of the deceased person.
      (b) Secondary beneficiaries. — If there are no persons who qualify under subsection (a), an action shall be for the benefit of any person related to the deceased person by blood or marriage who was wholly dependent upon the deceased.
      (c) Damages to be divided among beneficiaries. — In an action under this subtitle, damages may be awarded to the beneficiaries proportioned to the injury resulting from the wrongful death. The amount recovered shall be divided among the beneficiaries in shares directed by the verdict.
      (d) Damages if spouse or minor child dies. — For the death of a spouse, minor child, or parent of a minor child, the damages awarded under subsection (c) are not limited or restricted by the “pecuniary loss” or “pecuniary benefit” rule but may include damages for mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, marital care, parental care, filial care, attention, advice, counsel, training, guidance, or education where applicable.
      (e) Restriction to one action under this subtitle. — Only one action under this subtitle lies in respect to the death of a person.
      (f) Action to commence within three years. — An action under this subtitle shall be filed within three years after the death of the injured person.
      (g) Child of parents who have not participated in a marriage

        ceremony. — For the purposes of this section, a person born to parents who have not participated in a marriage ceremony with each other is considered to be the child of his mother. He is considered to be the child of his father only if his father (1) has been judicially determined to be the father m a proceeding brought under § 66E of Article 16, or (2) prior to the death of the child, (a) has acknowledged himself in writing, to be the father, or (b) has openly and notoriously recognized the person to be his child, or (c) has subsequently married the mother and has acknowledged himself, orally or in writing, to be the father.” Md. Courts & Judicial Proceedings Code Ann. §§ 3-902 & 3-904 (1974 & Supp. 1978).

      . Courts art. § 3-904 (d) provides that damages for the death of a spouse, minor child or parent of a minor child is not limited to “pecuniary” loss, benefit, or value.

      . The personal representative may, however, maintain a suit for the funeral expenses of the decedent, but he may not recover in excess of $2,000 for that expense.

      . The Maryland construction of the Survival Statute is not unique. Some other States have arrived at the same conclusion. See, e.g., Murphy v. Martin Oil Co., 56 Ill. 2d 423, 308 N.E.2d 583 (1974); Flowers v. Marshall, 208 Kan. 900, 494 P. 2d 1184 (1972); Allen v. Burdette, 139 Ohio St. 208, 22 Ohio Ops. 209, 39 N.E.2d 153 (1942). See also S.M. Speiser, 2 Recovery for Wrongful Death 2d (1975) ch. 14, § 14:7; 22 Am. Jur. 2d Damages § 129 (1965).


author: MacD aniel, J.,

text:
    WILLIAM OSCAR McCOY and LUTHER ROBINSON v. STATE OF MARYLAND LEROY GAULT v. STATE OF MARYLAND
    [No. 813, [No. 1003,
    September Term, 1978.]
    September Term, 1978.]

      Decided March 9, 1979.

      The cause was argued before Thompson, Mason and MacD aniel, JJ.

      Nancy Louise Cook, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellants.

      Kathleen M. Sweeney, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Sandra A. O’Connor, State’s Attorney for Baltimore County, and Richard McAllister, Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   MacD aniel, J.,

delivered the opinion of the Court.

Following a non-jury trial on August 2, 1978, in the Circuit Court for Baltimore County, co-defendants Leroy Gault (appellant Gault), William Oscar McCoy (appellant McCoy), and Luther Robinson (appellant Robinson) were convicted of larceny to the value of $100 or more. Appellants McCoy and Robinson filed a joint appeal to tin's Court (September Term, 1978, No. 813), and appellant Gault filed a separate appeal (September Term, 1978, No. 1003). These appeals have been consolidated and will be addressed together in this opinion.

Yemon Payne, a night manager, testified in the court below that he left the premises of Beverage Capital, Inc. around 1:00 a.m. on April 13, 1978. As he was leaving, he saw a cream-colored van with two persons inside enter the lot of the plant. He had previously locked the only two gates to the plant. Mr. Payne called the police from a gas station across the street. When he returned to the plant, he saw appellant Robinson hauling skids with a tow motor loaded with cases of soft drinks. He observed the van backed up to the loading dock, and the doors were open. There were cases of soda both inside the van and on the loading dock.

On cross-examination by counsel for appellant Gault, Mr. Payne stated that appellant Robinson was an employee of Beverage Capital but that he did not deal with soft drinks as part of his employment. Appellant Robinson had no reason to be on the premises at that time.

Officer Miller pursued a subject running from the van and subsequently apprehended appellant Gault. Another officer found appellant McCoy crouched in the van, which belonged to appellant Gault. Appellant Robinson was later apprehended walking in the vicinity of the Beverage Capital building. When asked what he was doing there, he replied, according to Officer Kroner, that “he worked there and was just coming out for a breath of air.”

There were 115 cases of soft drinks inside the van and 103 cases on the loading dock.

The appellants, as named below, make the following arguments:

1. That the lower court failed to follow the proper procedures relating to the waiver of a jury trial. (All three appellants.)
2. That Mr. Payne was not competent to testify regarding the value of the property allegedly stolen. (All three appellants.)
3. That the lower court erred in admitting against them evidence solicited on re-direct examination following cross-examination only by appellant Gault. (Appellants McCoy and Robinson.)
4. That, assuming, arguendo, proof of value, the evidence was insufficient to sustain a guilty verdict. (Appellant Robinson.)

I.

The appellants contend that their convictions must be reversed because the trial court failed to comply with Maryland Rule 735, Election of Court or Jury Trial, effective July 1, 1977, which provides:

“a. How Made.
Subject to section e of this Rule, a defendant shall elect to be tried by a jury or by the court. The election shall be made pursuant to section b of this Rule and shall be filed within the time for filing a plea pursuant to Rule 731 (Pleas). If the defendant elects to be tried by the court, the State may not elect a jury trial. After an election has been filed, the court may not permit the defendant to change his election except upon motion made prior to trial and for good cause shown. In determining whether to allow a change in election, the court shall give due regard to the extent, if any, to which trial would be delayed by the change.
b. Form of Election.
An election of a court or jury trial shall be in writing, signed by the defendant, witnessed by his counsel, if any, and filed with the clerk of the court in which the case is pending. It shall be substantially in the following form:
(caption of the case)
Election of Court Trial or Jury Trial I know that I have a right to be tried by a jury of 12 persons or by the court without a jury. I am aware that before a finding of guilty in a jury trial all 12- jurors must find that I am guilty beyond a reasonable doubt. I am aware that before a finding of guilty in a court trial the judge must find that I am guilty beyond a reasonable doubt. I hereby elect to be tried by:..........
(insert “the court” or “a jury”)
I make this election knowingly and voluntarily and with full knowledge that I
may not be permitted to change this election.
Witness:
Signature of Counsel Signature of Defendant
Date:........
c. When No Election Filed.
If the election is not filed within the time provided by this Rule, the court, on its own motion or upon the motion of the State’s Attorney, may require the defendant, together with his counsel, if any, to appear before the court for the purpose of making the election in open court. If the defendant fails or refuses to make an election after being advised by the court on the record that his failure or refusal will constitute a waiver of his right to a trial by jury and if the court determines that the defendant knowingly and voluntarily is waiving his right with full knowledge of it, the defendant may then be tried by the court.
d. When Court Trial Elected.
If the defendant files an election to be tried by the court, the trial of the case on its merits before the court may not proceed until the court determines, after inquiry of the defendant on the record, that the defendan t has made his election for a court trial with full knowledge of his right to a jury trial and that he has knowingly and voluntarily waived the right. If the court determines otherwise, it shall give the defendant another election pursuant to this Rule.
e. Causes From District Court.
Where the defendant has a right to a jury trial and his cause has been transferred from the District Court because he has demanded a jury trial, he shall be tried by a jury and may not elect a court trial except with leave of court for good cause shown.” (Emphasis supplied.)

The record fails to show any election, under section b, of a court or jury trial by the appellants prior to the day of trial. At the trial, the following exchange took place:

“THE COURT: Now, you have a right to a trial by jury. What’s the choice there?

MR. WHITE: As to Mr. Gault, Your Honor, he is aware that he has a right to a jury and he understands what a jury is, 12 people selected to hear this case. In which case they must return a unanimous verdict of guilt, either guilty or not guilty. He elects to waive that right and be tried by the court.

THE COURT: Very well. Mr. McCoy?

MR. GOODMAN: Yes, sir. As far as Mr. McCoy’s concerned, court trial, Your Honor. Waiver of jury trial, the same as Mr. White just explained to his client.

THE COURT: Mr. Robinson?

MR. SHUMAN: Your Honor, Mr. Robinson’s waiving his right to a jury trial and will take a court trial. He has been fully advised that, of his Constitutional right to a trial by a jury comprised of 12 people. And knowing that right he is waiving his Constitutional right to a jury trial.

THE COURT: Very well then.”

Relying on this Court’s ruling in Biddle v. State, 40 Md. App. 399, 407, 392 A. 2d 100, 104 (1978), the appellants argue that:

“... the trial court [may not] proceed with trial on the merits until there has been compliance with Rule 735 d, i. e., a determination on the record of a knowing and intelligent waiver of the right to a trial by jury. Cf. Davis v. State, 278 Md. 103, 361 A. 2d 113 (1976). A waiver of a constitutional right must appear affirmatively in the record, Boykin v. Alabama, 395 U. S. 238, 89 S. Ct. 1709, 23 L.Ed.2d 274 (1969)

They contend that the record in the case sub judice fails to show a determination by the lower court

“after inquiry of the defendant on the record, that the defendant has made his election for a court trial with full knowledge of his right to a jury trial and that he has knowingly and voluntarily waived the right.” Md. Rule 735 d.

We disagree.

The present case is factually different from the Biddle case, supra, where this Court held that the record unequivocally showed non-compliance with section d. In that case the record failed to show that the court gave any explanation of his rights. In the present case, the court informed the appellants that they had a right to a trial by jury and asked each of them whether it was waived. In response, each of the attorneys explained his client’s understanding of his right and indicated that it was waived.

In Countess v. State, 41 Md. App. 649, 398 A. 2d 806 (1979), we said:

“There is no ‘magic litany’ which must take place in the courtroom to demonstrate an effective waiver of the constitutional right to a jury trial. Although Rule 735 d now requires inquiry by the court of the defendant, the exact questions are not mandated. Rather, compliance with this rule must be determined by this Court from a review of the record in each case.”

In addition, while the decision to waive the right to a jury trial must be made by the defendant, it may be voiced by his counsel. In Miller v. Warden, 16 Md. App. 614, 623-24, 299 A. 2d 862, 868 (1973), we said:

“... it is settled that the decision of the accused in this regard, albeit of necessity made by him, need not be ‘announced’ by him.... It is sufficient that the decision, even though announced by counsel, have been in fact made or acquiesced in by the accused.”

Similarly, counsel’s explanation of his client’s understanding of his rights acts as the client’s own explanation provided that the client acquiesces.

A review of the record in this case convinces us that the mandatory requirements of Rule 735 d have been met. As indicated above, counsel for each appellant announced the waiver of a jury trial and explained his client’s understanding of his right. At no time did the appellants, all of whom were present, voice any objection. Indeed, prior to the commencement of the State’s case, each appellant indicated that he was satisfied with the services of his attorney. Together, all of this shows that each appellant made his election of a court trial with full knowledge of his right to a jury trial and each knowingly and voluntarily waived the right.

II

Mr. Payne, the night manager of Beverage Capital, testified that the average value of a case of soft drinks was $2.88, thereby establishing that the value of the goods stolen was over $100. The appellants argue that, because Mr. Payne was not competent to testify as to value, the lower court erred in allowing this testimony. This argument has no merit.

The night manager possessed the necessary knowledge of value of the goods stolen to support his testimony. Mr. Payne oversaw the stock of Beverage Capital as part of his general duties, and he had knowledge of the general sales prices of the items sold.

In addition, Mr. Payne, or, for that matter, the court itself, could easily infer that the value of each of the 218 cases of drinks involved need only be 5(V for the total to exceed $100. Without any doubt, goods of a value in excess of $100 actually were stolen. See Shipley v. State, 220 Md. 463, 467, 154 A. 2d 708, 710 (1959).

III

Appellants Robinson and McCoy argue, next, that the lower court erred in admitting against them evidence elicited on re-direct examination following cross-examination of Mr. Payne by appellant Gault only. With respect to their cases, they argue, there could be no re-direct examination. We disagree. As we said in Murray v. State, 35 Md. App. 612, 616, 371 A. 2d 719, 722 (1977):

“That the indisputably competent testimony happened to come through the medium [of a co-defendant’s case] at a joint trial has no influence upon the overriding consideration that the testimony was competent and that the appellant had no right to be shielded from it. Poff v. State, 3 Md. App. 289, 292, 239 A. 2d 121.”

IV

Appellant • Robinson argues, finally, that, assuming, arguendo, no other errors, there was insufficient evidence with respect to him to sustain the guilty verdict. We disagree. As we stated in Jones v. State, 11 Md. App. 468, 475, 275 A. 2d 508, 511 (1971):

“Under the law of this State the test to be applied by this Court in reaching a determination of the sufficiency of the evidence in a non-jury case is whether the evidence either shows directly or supports a rational inference of the facts to be proved, from which the lower court could fairly be convinced, beyond a reasonable doubt, of the defendant’s guilt of the offense charged, Williams and McClelland v. State, 5 Md. App. 450; Jones v. State, 5 Md. App. 180; Roeder v. State, 4 Md. App. 705; and the judgment of the lower court will not be set aside unless clearly erroneous. Maryland Rule 1086.”

The fact of appellant Robinson’s employment by Beverage Capital does not make it impossible for him to have committed a trespassory taking and, hence, be guilty of larceny. Mr. Payne, as indicated above, testified that the appellant Robinson did not deal with soft drinks in his employment. In addition, the premises were locked for the night and Robinson had no reason to be on the premises at the time of the larceny. This evidence is sufficient under the above test, and the trial judge was not clearly erroneous in finding that Robinson had committed the crime with which he was charged.

Judgments affirmed.

Costs to be paid by appellants.

      . Effective January 1,1979, various changes have been made in Rule 735. None of the changes would result in a different outcome in the present case.

      . In Biddle, supra, it is stated at 407 [104]:
      “One effect of Rule 735 is to make out holding in Miller v. Warden, supra, no longer viable. It is, therefore, expressly-overruled.”
      The overruling of Miller was on other grounds not applicable here.

      . Although on several occasions, objections to this testimony were sustained, on other occasions the testimony was allowed.