author: MacDaniel, J.,

text:
    MILTON E. PITTS, etc. v. MARLENE GERTRUDE BRADFORD MAHAN et vir
    [No. 664,
    September Term, 1977.]

      Decided March 9, 1978.

    The cause was argued before Moylan, Liss and MacDaniel, JJ.

      Myles R. Eisenstein for appellants.

      James K. Carmody, with whom were Serio, Carmody & Nichols on the brief, for appellees.
   MacDaniel, J.,

delivered the opinion of the Court.

Milton E. Pitts (Pitts), to his own use and to the use of Bituminous Insurance Company, the appellants, have filed this appeal from a directed verdict in favor of the appellee granted by the trial court at the conclusion of the appellants’ case.

The appellants raise two questions on appeal. The first is whether the trial court erred in finding Pitts guilty of contributory negligence as a matter of law. The second question is whether the trial court erred in not properly applying the doctrine of last clear chance.

In reviewing directed verdicts we are reminded that all evidence must be considered in the light most favorable to the plaintiff, and all conflicts in the evidence must be resolved in his favor. Curley v. General Valet Service, 270 Md. 248, 311 A. 2d 231 (1973). The plaintiff, however, is not entitled, in the absence of evidence, and upon a mere suggestion of possibilities, to have a jury speculate in his favor. Gutterman v. Biggs, 249 Md. 421, 240 A. 2d 260 (1967).

The facts giving rise to this case and the inferences fairly deducible therefrom are essentially undisputed.

On Saturday afternoon, June 29,1974, Milton Edward Pitts was driving home from work accompanied by two of his fellow employees. As they were traveling north on Ft. Smallwood Road, the left rear tire of the pickup truck in which they were riding went flat. Pitts pulled over onto the right shoulder of the road. Unfortunately, he could not drive the truck completely off the roadway. The left side of the truck was positioned approximately two to four feet out into the northbound lane, exposing the left side of the truck to oncoming traffic. The position of the vehicle, however, did not deter Pitts from attempting to change the tire. While stooped down next to the left rear wheel, apparently unaware of oncoming traffic, Pitts was struck by a northbound automobile driven by the ^appellee, Marlene Gertrude Bradford Mahan (Mahan).

Ft. Smallwood Road in the area of the accident is a two lane highway divided by a double centerline. The road in the vicinity of the accident does not curve to the left or to the right but does transverse several hills. The top of one hill is two hundred'to three hundred feet south of the point of impact. Another hill lies approximately four hundred feet north of the point of the collision.

Mahan, at the scene of the accident, advised the investigating police officer that as she crested the hill to the south of the truck she saw Pitts engaged in changing or looking at the left rear tire. As Mahan approached the disabled truck she pulled to the left across the centerline to pass. As she reached the truck an oncoming car forced her to swerve back to the right of the centerline. It was at this point that she struck Pitts. There was no evidence of speed on the part of Mahan.

On the basis of the above evidence Pitts’ counsel, at trial, conceded that his client was guilty of contributory negligence. This admission was made in response to the court’s questions. The exchange went as follows:

“COURT: Well, what about the duty of your client to observe?
MR. EISENSTEIN: I have no argument that he is, I am not going to argue about contributory negligence because he is in the road and it is not an intersection. He is, perhaps, guilty of, as contributory negligence____
COURT: You admit that he was guilty of contributory negligence as a matter of law.
MR. EISENSTEIN: By being in the roadway. Yes sir. I won’t argue that point.
COURT: You are arguing that it was last clear chance.
MR. EISENSTEIN: Yes sir....”

This admission in effect made it unnecessary for the trial court to decide and rule on Pitts’ contributory negligence. The issue, therefore, was not properly preserved for review. Maryland Rule 1085.

The real issue in this case is the trial court’s ruling that the doctrine of last clear chance did not apply. The court ruled as a matter of law that the negligence of Pitts and the negligence of Mahan were concurrent. A finding of concurrent negligence eliminates one of the legs on which the doctrine of last clear chance stands. Sanner v. Guard, 236 Md. 271, 203 A. 2d 885 (1964).

Generally, the law of last clear chance is that the contributory negligence of an injured person will not defeat recovery if the defendant, by the exercise of ordinary care, could have avoided the consequences of the injured person’s negligence. A limitation of the general rule, which has been adopted by the Courts of Maryland, is that there can be no recovery if the negligence for which the plaintiff is responsible concurs with the negligence of the defendant. Quinn v. Glackin, 31 Md. App. 247, 355 A. 2d 523 (1975). To show sequential rather than concurrent negligence something new or independent must be shown which gave the. defendant a fresh opportunity to avert the consequences of his negligence and the plaintiff’s negligence. Mackenzie v. Reesey, 235 Md. 381, 201 A. 2d 848 (1964).

The appellants contend that the facts support a finding of sequential rather than concurrent negligence. The appellants argue that the appellee’s negligence was in her failure to realize that the southbound approaching traffic would force her into the northbound lane at the point in the road where the disabled truck was located. It is proffered that this act of negligence sufficiently preceded the time of impact to support an inference of sequential negligence. We do not agree. The record reflects no evidence suggesting that the appellee knew or could have known where she would meet the oncoming traffic. To draw any other conclusion would be mere speculation.

The facts in the case fully support the trial court’s finding of concurrent negligence. Pitts’ admitted contributory negligence continued throughout the time he was in the roadway. Mahan’s negligence, if any, immediately preceded the accident. She was in the process of avoiding Pitts when the approaching southbound traffic forced her back into the northbound lane. It was at this instant that the collision occurred. Appellants’ case was devoid of any evidence to show that the appellee had an opportunity after being forced into the northbound lane to avoid the accident. In the absence of a new opportunity to avoid the accident, the concurrent negligence of the parties precludes recovery. Mackenzie v. Reesey, supra; Creighton v. Ruark, 230 Md. 145, 186 A. 2d 208 (1962).

We therefore hold that the trial court was correct in finding concurrent negligence as a matter of law and directing a verdict for the appellee.

Judgment affirmed.

Appellants to pay the costs.


source: Caselaw Access Project

author: Liss, J.,

license: Public Domain

text:
    JOHN E. BRANDAU v. SARAH E. (BRANDAU) WEBSTER
    [No. 738,
    September Term, 1977.]

      Decided March 10, 1978.

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

      Joseph M. Ayd and John J. Bishop, Jr., for appellant.

      William F. Mosner for appellee.
   Liss, J.,

delivered the opinion of the Court.

This controversy involves a dispute between a father and mother over the award of custody of a fifteen and a half year old daughter to the mother. John E. Brandau, appellant, and Sarah Brandau (now Webster), appellee, were married in May of 1960, and five children, Erin, Elizabeth, John, Jr., Micheau and Erika, were born as a result of the marriage. Marital difficulties arose between the Brandaus, and the appellee left her husband and children and began to live with a man named Webster, whom she subsequently married. The wife filed a suit in the Circuit Court for Baltimore County in which she sought custody of the children. The husband filed an answer in which he raised the issue of the mother’s fitness as a custodian of the parties’ minor children. The case came on for hearing before the Chancellor, and on the 29th day of March 1976, the Chancellor signed an order granting custody of the three younger children, John, Jr., Micheau and Erika, to the father and awarding custody of the two older children, Erin and Elizabeth, to the Department of Social Services. The order also provided that the Department was authorized to continue the two older girls in foster care subject to the further order of the court.

In November of 1976, the appellee divorced her husband in Texas, and shortly thereafter, married her paramour. On April 1,1977, the wife filed a petition in the Circuit Court for Baltimore County in which she requested the court to modify the outstanding custody decree and to award the custody of Erin and Elizabeth, who were then still in foster care, to her.

The Chancellor conducted a hearing in open court and the appellee produced a number of witnesses to support her position that the best interests of Erin and Elizabeth, now sixteen and a half and fifteen and a half years old, respectively, would be served by awarding custody to the appellee. Testimony at the hearing indicated that J. B. Webster, her husband, was a chemical engineer who, at the time of the hearing, had been employed by the Union Carbide Company for more than nineteen years. It was also stated that the appellee and her husband resided in a modern apartment complex in Jacksonville, Florida which was near excellent high schools for Elizabeth and Erin. In addition, there were excellent recreational facilities available, and a number of young people in the general age bracket of the young ladies lived in the vicinity. Both the appellee and her husband expressed an eagerness to have the girls reside with them and testified that from every standpoint they were prepared to offer them a suitable environment. The girls had previously visited the Websters in their home and each had enjoyed her visit.

Elizabeth and Erin were interviewed in the Chancellor’s chambers individually, and a record was made of these interviews. The record indicates that Elizabeth told the Chancellor that she desired to live with her mother and stepfather in Florida. She expressed her feeling that she was closer to her mother than she was to her father and that she and her mother could more easily confide in each other. She characterized her stepfather as being a “great” person.

Erin, in her conversation with the Chancellor, also expressed a high opinion of Mr. Webster, but indicated she would prefer to remain in Maryland and complete her senior year in high school before moving to Florida to live with her mother. A social worker from the Department of Social Services, who was the supervisor for Erin and Elizabeth, testified that in her opinion it would be beneficial for the girls to live with their mother.

Appellant did not testify nor did he present any witnesses to contradict the testimony of the appellee’s witnesses concerning the adequacy of the home to be furnished Erin and Elizabeth. He proffered to the Chancellor a series of typewritten exhibits prepared by counsel which purported to contain what would be the testimony of several witnesses if they were called to testify. All of the exhibits concerned a series of abuses which were supposedly perpetrated on Erika by her mother and stepfather on the occasion of Erika’s visit to their home. At that time, Erika was approximately four years old.

Defendant’s Exhibit #1 was headed, “Remarks of Erika Wesley Bond Brandau Concerning Actions of Sarah E. Brandau and Jerome B. Webster as Related to John E. Brandau.” The alleged remarks detailing the abuses of Erika encompassed a series of statements made by Erika to her father in the period from September 3, 1976 to January 8, 1977.

Defendant’s Exhibit #2 was headed, “Remarks of Erika Wesley Bond Brandau Concerning Actions of Sarah B. Brandau and Jerome B. Webster As Related to Irene Brandau.” (Irene Brandau is Erika’s paternal grandmother.) These remarks reportedly began on July 9, 1976 and continued for a number of days thereafter.

Defendant’s Exhibit #3 purported to be a psychiatric report on the Brandau family as prepared by a Dr. Russell W. Reid.

Defendant’s Exhibit #4 was a report of Eileen Higham, Certified Psychologist, of an examination and consultation with Erika.

Objection was made to the admission of each of the exhibits and the objection was sustained. Appellant raises no issue on appeal that the proffers should have been accepted.

Appellant then proffered a prepared statement as to what Erika would testify to if she were called as a witness. Objection to the proffer was sustained. Appellant then sought to call Erika, who was then five years and ten months of age, to the witness stand for the purpose of determining her competence as a witness. Appellant submitted a series of 40 voir dire questions to the Chancellor which would have tested the child’s general knowledge, her recollection of specific facts pertinent to the case, her comprehension of the difference between right and wrong, and her recognition of punishment for false swearing. The Chancellor refused to permit the child to be called to the stand for the purpose of inquiry into her competence as a witness. The Chancellor maintained that because of her age, as a matter of law, she could not qualify as a witness.

He stated,

“I have never talked with Erika, but I have seen her and in my judgment, she is not competent to testify____
“The court believes it is in the sound discretion to exclude the testimony of a child of under six years of age on the basis that such testimony is essentially unreliable. The court has never talked with the child directly, but the court has observed the child and seen the type of child she is, and I believe I have the discretion to exclude her testimony without going further.”

Appellee then rested her case and the Chancellor awarded custody of Elizabeth to the appellee and in accordance with Erin’s express wishes permitted Erin to remain in Maryland in continued foster care. An order encompassing the conclusion of the Chancellor was then submitted and signed, and it is from that order that this appeal is filed.

The sole question to be decided by us is whether the Chancellor erred in refusing to conduct or to allow a voir dire examination of Erika in order to determine her competency to testify as a witness in this case.

It is conceded by the appellee that assuming, arguendo, Erika was a competent witness, and assuming that she had in fact testified concerning the alleged abuses to which she had been subjected by her mother and stepfather, then this testimony would have been relevant and pertinent to the Chancellor’s consideration of whether to grant custody of her fifteen and a half year old sister to the appellee.

It is conceded, on the other hand, by the appellant that in the absence of such competent evidence that the Chancellor had before him more than sufficient evidence to justify his award of the custody of Elizabeth to her mother, and that we would have no right under the principles enumerated in Davis v. Davis, 280 Md. 119, 372 A. 2d 231 (1977) and Ross v. Hoffman, 280 Md. 172, 372 A. 2d 582 (1977) to substitute our judgment for that of the Chancellor. It is clear, then, that the decision required to be made by the Chancellor regarding the determination of the competency of Erika to testify was material to the ultimate outcome of the case.

The capacity of children of tender years to testify is a matter ordinarily within the sound discretion of the trial court. Horsey v. State, 225 Md. 80, 169 A. 2d 457 (1961); Saldiveri v. State, 217 Md. 412, 143 A. 2d 70 (1958); Reckard v. State, 2 Md. App. 312, 234 A. 2d 630 (1967).

The discretion to be exercised by the trial judge must, of course, be exercised by the application of recognized legal principles. Davis v. Corbin, 28 Md. App. 364, 346 A. 2d 488 (1975).

There is no rule which excludes an insane person as such or a child of any specified age from testifying, but in each case the traditional test is whether the witness has intelligence enough to make it worthwhile to hear him at all and whether he feels a duty to tell the truth. McCormick on Evidence Sec. 62 (2d ed. 1972).

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

The trial court is required to make judicial inquiry in determining the competency of a child of tender years and the criteria to be utilized in reaching a conclusion have been stated in Volume 81, Am. Jur.2d, Witnesses, Section 92, as follows:

“In conducting the examination, the Judge must investigate the child’s capacity to communicate, including an ability to understand questions and to frame and express intelligent answers, the child’s capacity to observe and remember the matter about which testimony is sought, and the child’s consciousness of the duty to speak the truth. It has been held that it is the duty of the Court to conduct the child’s examination; that the child’s appearance, fear or composure, general demeanor and manner of answering and any indication of coaching or instruction as to answers to be given are as significant as the words used in answering during the examination, to determine competency, and it is impossible to make such important and necessary observations unless the child appears personally before the court.
“It is error to arbitrarily exclude the child as a witness without such examination.”

In Artesani v. Gritton, 252 N. C. 463, 113 S.E.2d 895, 897 (1960), a child four years and eight months of age was injured when struck by an automobile. At the time of trial, the child was seven years and three months old. The trial court stated that it was “of opinion that by reason of age the witness is incompetent to testify as to matters concerning the alleged collision, and in its discretion sustains the objection of the defendants to the proposed testimony of the witness.” The Supreme Court of North Carolina reversed on the ground that “the test of competency is not age but capacity to understand and relate under the obligation of an oath a fact or facts which will assist the jury in determining the truth with respect to the ultimate facts which it will be called upon to decide.” (Citations omitted).

In Litzkuhn v. Clark, 85 Ariz. 355, 339 P. 2d 389 (1959), it was held that failure to resort to a voir dire examination in determining the competency of a six year old child amounted to an abuse of discretion.

We conclude that it was error for the Chancellor to refuse to conduct the examination of the proposed witness, Erika, either in court or in chambers in order to determine whether she was, in fact, a competent witness. It is true that the decision as to the competency of a witness is within the sound discretion of the trial court but the court must at least conduct such an examination as will disclose the factual basis on which his conclusion as to competency rests. We shall not disturb the award of custody of Elizabeth to her mother at this point in the proceedings, but shall remand this case for further proceedings. We assume that Erika will be produced by the appellant for examination and that the Chancellor will then exercise his discretion as to whether to permit the witness to testify.

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


author: Lrss, J,,

text:
    JOHN A. ERLEWINE et ux. v. HOWELL C. HAPP, JR. et ux.
    [No. 757,
    September Term, 1977.]

      Decided March 10, 1978.

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

      F. Theodore Elliot, III, with whom were DavidE. Aldridge and Zimmerman, Aldridge & Dwyer on the brief, for appellants.

      Herbert D. Morrison for appellees.
   Lrss, J,,

delivered the opinion of the Court.

John A. Erlewine and Millicent V. Erlewine, his wife, appellants, filed the within appeal from an order of the Circuit Court for Frederick County (Barrick, J.), directing them to convey by general warranty deed certain real estate purchased from them by Howell C. Happ, Jr. and Shirley L. Happ, his wife, appellees.

On March 1, 1972, the appellees entered into a written contract under seal to purchase from the appellants real property located in Frederick County, Maryland. The terms of the contract included a provision that the appellants were to execute and deliver to the appellees a good and sufficient deed for the property containing covenants of general warranty and further assurances. As was mutually agreed upon by the parties, the contract further specified, “that the provisions [tjhereof shall survive the execution and delivery of the deed aforesaid and shall not be merged therein____” Settlement was held on May 2, 1972, at which time a deed prepared by the Happs’ attorney was executed by the appellants and delivered to the appellees. The deed, however, instead of containing a clause of general warranty as to title, was inadvertently prepared with a clause of special warranty. None of the parties noticed the discrepancy at the time of settlement — at least no objection was made to the special warranty deed — and it was duly recorded. Subsequently, a boundary dispute arose which was the subject matter of a law suit filed by an adjoining neighbor (claiming title to a portion of the land conveyed by the said deed), which suit, after trial, was decided adversely to the interests of the appellees.

When the appellees became aware of the boundary dispute, they consulted counsel who for the first time called their attention to the fact that the deed they had received from the appellants contained not a clause of general warranty but rather one of special warranty. Appellees demanded that the appellants execute a deed containing the general warranty, but the latter refused to do so. A bill of complaint for specific performance was filed by the appellees; appellants demurred, and the demurrer was overruled. Trial was then had and after the submission of legal memoranda, the trial judge filed an order directing appellants to reconvey to the appellees all that property which was originally conveyed on May 2, 1972, by general warranty deed. This appeal is from that order. We concur with the trial judge’s conclusions and shall affirm.

Appellants’ first contention on appeal is that the appellees’ acceptance of a special warranty deed at settlement extinguished any contractual right to thereafter receive a general warranty deed from the appellants.

A warranty in a deed is a covenant by the grantor to warrant and defend the title and possession of the grantee. A general warranty is a covenant to defend against all lawful claims, whatsoever. A special warranty, in contrast, is a covenant only to warrant and defend against the claims of the grantor and all persons claiming or to claim by, through, or under him. Tiffany, Real Property, § 578 (3rd ed. 1970).

By statute, the Maryland Legislature has provided that, “[a] covenant by the grantor in a deed, ‘that he will warrant generally the property hereby granted,’ has the same effect as if the grantor had covenanted that he will warrant forever the property to the grantee against every lawful claim and demand of any person.” Md. Ann. Code, Art. Real Property, § 2-105 (1974 & Cum. Supp. 1977).

Section 2-106 of the same article provides: “A covenant by a grantor in a deed, ‘that he will warrant specially the property hereby granted,’ has the same effect as if the grantor had covenanted that he will warrant forever and defend the property to the grantee against any lawful claim and demand of the grantor and every person claiming or to claim by, through, or under him.”

The Court of Appeals in Kendall v. Rogers, 181 Md. 606, 611, 31 A. 2d 312 (1943), stated the obligation of the grantor in a special warranty deed:

“[A] covenant of special warranty in a deed casts upon the grantor the obligation of protecting the grantee against any act impairing the title during the holding of the property by the grantor and under such a covenant the grantor would not be liable for acts done by his predecessors that impaired or rendered defective title to property conveyed by him.”

Falconer v. Clark, 3 Md. Ch. 151 (1852); Falconer v. Clark, 7 Md. 177 (1854); Morris v. Harris, 9 Gill 19 (1850).

It is conceded by both appellants and appellees that the law of Maryland is that under ordinary circumstances, a contract for the sale of land and all prior negotiations between the parties are merged into and do not survive the execution and delivery of a deed; that a prima facie presumption arises from the acceptance of a deed that it represents the entire contract of sale and that the rights of the parties are to be determined by the deed. Millison v. Fruchtman, 214 Md. 515, 136 A. 2d 240 (1957); Gilbert Construction Co. v. Gross, 212 Md. 402, 129 A. 2d 518 (1957); Kandalis v. Paul Pet Construction Co., 210 Md. 319, 123 A. 2d 345 (1956); Barrie v. Abate, 209 Md. 578, 121 A. 2d 862 (1956).

The presumption of merger, however, is negated when the contract of sale contains language providing that the agreement shall survive the execution of the deed. In the case sub judice, as we have already noted, there was an explicit agreement that the terms and conditions of the contract were to survive the execution and delivery of the deed, and that they were not to be merged in the deed.

The Court of Appeals addressed itself to the rights accruing to the parties under such an anti-merger contract in the case of Randolph Hills, Inc. v. Shoreham Developers, Inc., 266 Md. 182, 292 A. 2d 662 (1972). In that case, Randolph Hills, Inc. contracted to sell a 32.61 acre parcel of land to Shoreham Developers, Inc., and a dispute arose. A suit for specific performance ensued and Randolph Hills was directed to specifically perform its contract. After settlement, Shoreham filed a bill of complaint seeking the imposition of a constructive trust on funds received from a condemnation award and the sale of a right of way over the property. Randolph Hills defended on the ground that the contractual rights to these funds were waived by the settlement and acceptance of a deed to the remaining parcel. The Court rejected this contention, stating:

“We do not see it quite that way. The June 1962 agreement of sale stated:
‘... the provisions hereof shall survive the execution and delivery of the deed aforesaid and shall not be merged therein; ...’
This clearly prevented the provisions of the contract from being merged into the settlement. The case of Heckrotte v. Riddle, 224 Md. 591, 595, 168 A. 2d 879 (1961), relied on by RHI, is simply enunciative of a line of authority represented by Millison v. Fruehtman, [,supra]; Gilbert Construction Co. v. Gross, [supra]) Kandalis v. Paul Pet Construction Co., [supra]) Barrie v. Abate, [supra], which concludes that the acceptance of a deed gives rise to a prima facie presumption that the rights of the parties are determined by the deed. Such a presumption is clearly negated by a contract provision that the representations contained in the contract survive the settlement. . . .” Id. 266 Md. at 193.

The Court further stated:

"... a purchaser may continue to rely on the covenants in the contract possibly even when he has knowledge of countervailing facts, which is not the case here, since in his answer to an interrogatory Theodore Lerner said that he first learned of the grant of the right of way in April of 1969 and of the condemnation award in January of 1970. This was nowhere controverted.” Id. 266 Md. at 194.

The facts in Randolph are apposite to this case. It is apparent that neither the appellants nor the appellees were aware that the deed contained a special warranty clause until the boundary dispute arose several years after settlement. It is clear from a reading of the contract that the parties intended the provisions therein to survive the execution of the deed and that appellees were entitled to receive a general warranty deed. Appellants attempt to avoid that obligation by suggesting that the delivery and acceptance of the special warranty deed amounted to a mutual modification of the contract. They cite in support of that theory the case of Freeman v. Stanbern Construction Co., 205 Md. 71, 106 A. 2d 50 (1954). An examination of that case, however, convinces us that it is inapposite to the case before us, Freeman being concerned with the modification of a written contract by oral agreements to modify by mutual consent. In order for such a modification to occur, there must be a meeting of the minds preceded by an offer to vary the written instrument and an acceptance by the parties. James L. Kernan Co. v. Cook, 162 Md. 137, 159 A. 256 (1932). There was no testimony to indicate such circumstances in this controversy, and it is obvious that there was no modification of the contract by manual agreement.

All parties to this appeal intended the provisions of the contract of sale to survive and not to be merged into the deed; the language of the contract is explicit as to that purpose. When the contract of sale survives the deed, the acceptance at settlement of less than that which was contractually agreed upon does not amount to a modification of the contract by implication. Hall v. Barlow, 260 Md. 327, 272 A. 2d 386 (1971).

As a second line of defense, appellants urge that the chancellor erred in issuing his order for specific performance in that the appellants are unable to convey good title to that portion of the property which was the subject matter of the boundary dispute. They contend that the remedy of specific performance is to be denied where the contract is impossible to perform or where the ability to perform depends upon the consent of third persons, e.g., as where the property does not belong to the person contracting to convey. Thompson on Real Property, § 4481 (1963 repl. vol. 8A).

Appellants rely principally on Westpark, Inc. v. Seaton Land Co., 225 Md. 433, 171 A. 2d 736 (1961); and Boyd v. Mercantile Safe Deposit & Trust Co., 28 Md. App. 18, 344 A. 2d 148 (1975), which cases we conclude, after close examination, are not applicable here. In both the above instances the issues between the parties arose when a vendor was unable to transfer title to all the land he contracted to transfer to the vendee, and the controversy concerned the right of the vendee to seek specific performance as to the balance.

Here, the chancellor ordered the appellants to deliver to the appellees a deed of general warranty. The purpose of the order is obvious from the trial court’s comment that, “There is no question that the plaintiffs are entitled to some relief and the only way they are going to get that relief is through the general warranty provision of a deed.”

The deed decreed by the chancellor to be executed by the appellants would be a confirmatory deed similar in all respects to the original except that it would contain a general warranty rather than a special warranty clause. The date of the confirmatory deed would be the same date as that of the original deed. The question of the appellees’ title to the portion of land involved in the boundary dispute has already been decided adversely to the appellees’ interests. In the absence of some practical adjustment between the parties, appellees would then be entitled to seek such redress as is available to them under the general warranty clause of the confirmatory deed in these or other proceedings.

Order affirmed.

Costs to be paid by appellants.


author: Lowe, J.,

text:
    KENNETH MAURICE WILSON v. STATE OF MARYLAND
    [No. 766,
    September Term, 1977.]

      Decided March 10, 1978.

      The cause was argued before Lowe, Melvin and Mason, JJ.

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

      Kathleen M. Sweeney, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State's Attorney for Baltimore City, Sheldon Mazelis, Howard Grossfeld and John Denholm, Assistant State’s Attorneys for Baltimore City, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

“The powers and duties of [a] Court of Appeals, are defined and limited. It cannot entertain appellate jurisdiction except when prescribed by the law. Where it undertakes to review the proceedings of subordinate tribunals, the authority must be shown. It is also the province of the appellate Court to decide when an appeal lies, and not the Court from which the appeal is taken.” Wylie v. Johnston, 29 Md. 298, 302.

Although not raised by the parties in this case, the issue decided is whether a trial judge presiding over a post conviction hearing may authorize a second appeal to this Court when he questions the adequacy of the appellate representation. Conversely we must look at the question in light of our own authority to hear such second appeal.

Kenneth Maurice Wilson was tried and convicted of the rape and robbery of Lulu Mae Vicks in the Criminal Court of Baltimore on February 11 and 19, 1975. From February 24 through 28, 1975, another trial was held, which culminated in appellant’s being convicted of having carnal knowledge of, and committing perverted practices on, Jo Ann Murcer. Both cases were appealed, with three issues being raised in each case. All verdicts were affirmed in unreported per curiam opinions in the 1975 September Term.

Appellant filed a post conviction petition in which he claimed eleven grounds for relief:

“1) Perjury.

2) Inadmissible evidence.

3) Improper ‘admission’ of certain information that was perjury in violation of Petitioner’s rights.

4) Illegal sentence.

5) Unconstitutional evidence.

6) Prejudice of presiding Judge.

7) Violation of constitutional right to due process and equal protection.

8) Unconstitutional shifting of burden of proof to Petitioner.

9) Violation of Petitioner’s right to a fair and impartial trial by requiring him to prove his alibi by an independent source and by a preponderance of the evidence.

10) Violation of Petitioner’s constitutional right to a speedy trial.

11) Suppression of evidence by the State.” (emphasis added).

All were denied by the judge at the post conviction hearing except numbers 6 and 10. The judge did not find directly that there was a violation of petitioner’s constitutional right to a speedy trial, or that the presiding judge was prejudiced; he simply indicated that these issues should have been raised on appeal despite then appellate counsel’s opinion that the issues had not been properly preserved for appeal. The judge pointed out in his opinion that the trial courts in both cases had, in fact, acted upon motions raising the. speedy trial questions after having heard argument on them. He also noted that the issue of the trial judge’s bias had not been waived and should have been considered on appeal. He concluded that because these issues had not been raised on appeal despite appellant’s express directions to his counsel:

“... Petitioner was not afforded genuine representation in regard to his direct appeal.”

The judge then

“. . . ORDERED, that the Petitioner be and he is hereby granted a Belated Appeal to the Court of Special Appeals.”

In addition to the speedy trial and bias issues, this appeal that followed attempts again to raise two questions which we had answered on appellant’s first appeal and a third which the post conviction court considered and rejected as having lacked merit.

We hold that the Uniform Post Conviction Procedure Act did not provide the Criminal Court of Baltimore with the jurisdiction to review appellate counsel’s conduct or the issues raised or waived on appeal once that original appeal had been entered. We further hold that this Court has no jurisdiction to hear a second appeal arriving here from the route thus traveled.

In numerous cases we have stated or indicated that the post conviction relief is not available in the appellate stage of criminal proceedings and that only errors relating to the validity of the original judgment are properly cognizable as a basis for post conviction petition review. E.g., Curtis v. State, 37 Md. App. 459, 463; Robinson v. Director, 3 Md. App. 222, 224; Creswell v. Director, 2 Md. App. 142, 144-145; Knox v. Director, 1 Md. App. 678, 680, cert. dismissed, 396 U. S. 995. While the logic behind these expressions has not been explicated (because that issue was not directly before us), it is apparent that our reasoning derived from the clear and limiting nature of the words of the statute reflecting the obvious legislative intent of its enactment. When the language of a statute is clear there is no need to look beyond it for legislative intent. State v. Fabritz, 276 Md. 416, 421, cert. denied, 425 U. S. 942.

The Post Conviction Procedure Act, Md. Code, Art. 27, § 645A, grants a right to institute a proceeding for post conviction relief only to those convicted persons who claim that the “sentence” or “judgment” was “imposed” in violation of the law or Constitutions. It is apparent that appellate courts do not “impose” sentences or judgments. It is that language which has caused us continually to limit post conviction relief to the proceedings leading to, and the imposition of, the original judgment — which term, parenthetically, includes both conviction and sentence.

There is no language in the Uniform Post Conviction Procedure Act which even implicitly permits a supplicant to institute a proceeding under a claim of a legal or constitutional rights violation during the course of an appeal. Nor is there hint of that extended jurisdiction being intended by the Uniform Conference of Commissioners in its “Prefatory Statement”, published when originally it proposed the act, see Handbook of the Nat’l Conf. of Comm’rs of Uniform State Laws (1955), or in the Maryland Legislative Council’s explanation of the legislation contained in its Report to the Maryland General Assembly, 1958, (see Item No. 85 (1)), recommending the Act to the Maryland Legislature.

We have, of course, permitted trial courts to direct a belated appeal when counsel have wrongfully failed in their responsibility to enter an appeal from the trial court on a defendant’s behalf, contrary to his expressed desires. E.g., Robinson v. Director, 6 Md. App. 597; Rhodes v. Warden, 7 Md. App. 423, 426. At that juncture, prior to the entry of an appeal, the trial court still has jurisdiction over the case; however, we have not extended — nor could we extend — the jurisdiction of the nisi prius court by permitting it to review our appellate proceedings after it was divested of jurisdiction by the entry of an appeal.

“[T]he law is well settled that ordinarily, the trial court’s jurisdiction is ended upon the filing of an appeal to this Court.” Stacy v. Burke, 259 Md. 390, 401; State v. McCray, 267 Md. 111, 145.
“After the appeal has been perfected, this Court is vested with the exclusive power and jurisdiction over the subject matter of the proceedings . . . (emphasis added). Bullock v. Director, 231 Md. 629, 633.

We therefore hold that the Criminal Court of Baltimore was divested of jurisdiction when the original appeals were entered. It follows that the issues raised, the conduct of counsel and, indeed, all' elements and related events addressed (or neglected) during the appeal were beyond the jurisdiction of the trial court. The legislative grant of jurisdictional authority to hear post conviction complaints did not coincidentally vest the trial court with the power, not formerly conferred, to examine appellate operations.

To hold otherwise would require a trial court whose proceedings are being reviewed on appeal, to adjudge the propriety of its reviewer’s proceedings. In regard to the issue of competency of 'counsel in such an instance, a nisi prius judge would sit in judgment of an appellate attorney's brief over which he had no jurisdiction and of which he had no official knowledge, and would determine counsel’s adequacy at an unrecorded argument which he did not hear or observe. Every appeal would then be subject to review upon post conviction petition and the trial judge would have to decide whether the issues not raised on appeal were from the failure of an inadequate counsel or a strategic judgment of a sound appellate advocate. If a trial judge had such jurisdiction and responsibility, the impracticality of an unending circle of review would cause the wheels of justice not only to grind “exceeding fine”, but probably to come to a screeching halt.

We may sympathize with a petitioner whose abridgement of constitutional rights at trial may have been compounded by incompetent or slipshod counsel on appeal; nonetheless, whatever avenues of relief may be available to one so deprived in the federal courts or elsewhere, the road to his deliverance does not originate in our Post Conviction Procedure Act. The right of appeal in Maryland is a statutory right which does not exist except where expressly given and which cannot be extended to cases not within the statute, Urbana Civic v. Urbana Mobile, 260 Md. 458, 460-461. Every appeal must comply with the authorizing statute (Cts. Art., Title 12) and the Rules for appeals (800, et seq. and 1000, et seq.), which rules have been constitutionally mandated and sanctified with the imprimatur of law, (Md. Const., Art. IV, §§ 18, 18A). Cf. KRS v. Director, 230 Md. 646, 649. Neither the statutes nor the rules permit a second appeal for either picking up issues overlooked or rehashing after an adverse decision.

Appeal dismissed.

Costs to be paid by appellant.

APPENDIX:

Partial Opinion of the Post Conviction Court

“At his Post Conviction Hearing, Wilson stressed the fact that the same Judge had presided at both trials and that he had instructed his counsel on appeal to include this in his points raised on appeal. He also contended that despite his specific request, appeal counsel did not raise the issue of denial of speedy trial in his appeal.

Appellate counsel for Petitioner appeared and testified at the Post Conviction Hearing. He agreed that the Petitioner had discussed with him the lack of speedy trial and prejudice of the trial Judge. Counsel stated that he advised Petitioner that the speedy trial issue had not been raised at either trial and that he could not go outside of the transcript in preparing his appeal. As to the Judge’s prejudice, counsel felt that although raised at the second trial, it had been abandoned by the Petitioner.

Counsel’s records reflected two and one-half hours spent on appeal. Included in this total was one hour of consultation with Petitioner. At his only visit to him, Petitioner had submitted a number of issues to him, but counsel had rejected them because he felt they were without any basis. Such conclusions by counsel, without concurrence therein by the Petitioner would appear to be violative of Anders v. California, 386 U. S. 738. See also: Tippett v. Director, 2 Md App 465.

While Anders, supra, dealt with a situation where appellate counsel rejected the appellant’s contentions in toto, there is no reason to believe that its basic principle, lack of full appellate review, would not apply where petitioner’s allegations of error were only partially rejected.

In particular, the Court finds that appellate counsel’s testimony on post conviction indicated a lack of familiarity with the trial transcripts. He stated that he felt that the speedy trial issue was not raised on the records. In the Court trial, Indictments 57400384 and 57400386, pages six to nine of the trial transcript, reflect that a Motion to Dismiss for Lack of Speedy Trial was filed by the Petitioner in proper person, argued by counsel and denied by the trial Judge.

Pages fourteen to twenty-one of the transcript of the jury trial, Criminal Informations 27300796 and 27300799, set forth the fact that in those cases the same Motion was filed, argued and ruled upon.

Counsel also testified that the issue of disqualification of the trial Judge was not raised at the second trial. However, he then stated that this Motion was properly before the trial Judge but that Petitioner had ‘dropped’ this objection.

A contention of bias on the part of the trial Judge may now be considered on Post Conviction as well as on direct appeal. Compare: Fisher v. Warden 230 Md 612 and Dailey v. Warden, 3 Md App 425.

On pages twenty-two and twenty-six of the transcript of the jury trial, Criminal Information 27300796 and 27300799, the Petitioner orally moved for the trial Judge to disqualify himself. This Motion was denied by the Court.

Based on the record and on the Post Conviction testimony, this Court concludes that the Petitioner was not afforded genuine representation in regard to his direct appeal.

THEREFORE, it is this 17th day of August, 1977, ORDERED, that the Petitioner be and he is hereby granted a Belated Appeal to the Court of Special Appeals. Said Appeal to be filed within thirty (30) days from this date.”

      . The Murcer case by No. 762, filed August 6, 1976 and the Vicks case by No. 763, filed August 5, 1976.

      . The court's opinion in pertinent part is appended.

      . Curtis involved a post conviction petitioner’s right to pursue a second post conviction petition on the grounds, that counsel at the first post conviction hearing had been derelict in failing to raise the issue of ineffective assistance of trial and appellate counsel at that first hearing. In absolving petitioner’s post conviction attorney for his failure to raise the question of ineffectiveness of appellate counsel, this Court stated:
      “In the first place, the issue, by definition, does not apply to the appellate stage but only to the trial stage.” Id. at 464.

      . But see Scott v. Warden, 6 Md. App. 200, where we granted an application for leave to appeal here from the denial of post conviction relief when counsel on an initial appeal to this Court had failed to apply for a writ of certiorari to the Court of Appeals, apparently in violation of this duty under then Rule 719 b. (7) (b). Despite the fact that we also remanded the case for further factfinding (due to our own inability to perform that function), in that case this Court sat in judgment of appellate counsel’s competency in performing his appellate responsibilities. The trial court had properly denied the relief prayed since the attorney’s omission was not committed while in that court’s jurisdiction. Accord, Payne v. Warden, 8 Md. App. 397.


author: Wilner, J.,

text:
    JUDITH JEAN OARR v. GOVERNMENT EMPLOYEES INSURANCE COMPANY et al.
    [No. 783,
    September Term, 1977.]

      Decided March 10, 1978.

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

      Darlene Perry, with whom were Edward P. Camus and Camus & Perry on the brief, for appellant.

      Albert D. Brault, with whom were Brault, Graham, Scott & Brault on the brief, for appellees.
   Wilner, J.,

delivered the opinion of the Court.

Effective February 5, 1973, Government Employees Insurance Company (GEICO), appellee, renewed for a one-year period a Standard Family Automobile Policy insuring two automobiles owned by James E. Daugherty — a 1970 Ford Torino and a 1966 Chevrolet Corvair. The Ford was normally driven by Mr. Daugherty; the Chevrolet was generally used by his wife Charlene. The policy limits, with respect to liability coverage, were stated to be $20,000 per person and $40,000 per occurrence as to each of the two automobiles.

On September 3,1973, Charlene was driving the Ford when she was involved in an accident with an automobile driven by appellant, Judith Jean Oarr. Ms. Oarr sued Mr. and Mrs. Daugherty for the injuries sustained by her as a result of that accident. The litigation was terminated by a consent judgment against Charlene for $40,000 and dismissal of the claim against James. In pursuance of that judgment, and its obligations under the insurance policy, GEICO paid $20,000 to Ms. Oarr. This case arises from a dispute over the other $20,000.

Ms. Oarr brought an action for declaratory judgment against GEICO alleging that, because of an ambiguity in the policy language, the policy limit of GEICO’s liability to her was $40,000, not $20,000, and that GEICO should be required to pay the balance of the judgment debt. GEICO, of course, believes otherwise, and was able to convince the Circuit Court for Prince George’s County that its position was the correct one. From the granting of summary judgment in GEICO’s favor, Ms. Oarr has appealed. She raises two issues:

(1) Whether the language of the policy was so ambiguous as to create a jury question and to cause the contract to be construed against GEICO and in favor of the insured; and

(2) Whether “stacking” of policy benefits should be allowed where the policy insures two automobiles and the insurer collects separate premiums for each.

Both issues are aimed at the same result — the “stacking” or “pyramiding” of coverage based on the fact that the policy insures two vehicles.

The second issue, as framed, may be disposed of rather quickly. We are aware of no provision of Maryland law, nor any regulation of the Insurance Commissioner, that would require a policy insuring more than one vehicle to provide for the “stacking” of liability coverage. In the absence of such a supervening requirement, therefore, the terms of the policy will control. Thus, if there is to be “stacking”, it will be because the policy provides for it, not because the law requires it. GEICO’s obligations are derived from the policy, which is a contract to be read and construed in the same manner as other contracts. To determine whether Ms. Oarr is entitled to recover the other $20,000 from GEICO, we must therefore look solely to the insurance policy to see what limit of liability has been expressed therein. Consequently, the second issue will be treated as part of the first.

The basic coverages afforded by the policy (and the limits thereto) are shown on the Declaration sheet which, in relevant part, provides as follows:

In Part I of the policy, entitled “Liability”, the company obligates itself “[t]o pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of ... bodily injury, sickness or disease, including death resulting therefrom, hereinafter called ‘bodily injury’, sustained by any person ... arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile____”

The policy includes as “persons insured” under Part I, with respect to the “owned automobile”, the named insured and any resident of the same household.” A “named insured” is defined as “the individual named in the declarations and also includes his spouse, if a resident of the same household.” With respect to these provisions, it is conceded that the Ford Torino is an “owned automobile” and both James and Charlene Daugherty are “persons insured”.

The alleged ambiguity arises from the next two provisions. Under the heading “Limits of Liability”, this language appears:

“Regardless of the number of automobiles or trailers to which this policy applies, the limit of bodily injury liability stated in the declarations as applicable to ‘each person’ is the limit of the company’s liability for all damages, including damages for care and loss of services, arising out of bodily injury sustained by one person as the result of any one occurrence____” (Emphasis supplied.)

This would seemingly make clear that the limit of liability stated in the declarations with respect to the Ford — $20,000 each person — is the total extent of GEICO’s obligation. Later in the policy, however, are stated a number of “CONDITIONS”, one of which, Condition 4, provides, in relevant part, that, “When two or more automobiles are insured hereunder, the terms of this policy shall apply separately to each.”

The point sought to be made by appellant is essentially as follows:

(1) Condition 4 states that “the terms of this policy shall apply separately to each” of the two automobiles insured under the policy;

(2) Thus, the limits of liability expressed in the declarations ($20,000 each person) apply separately to each of the two automobiles, to the same effect as if the vehicles were insured under separate policies;

(3) Mrs. Daugherty is an insured person with respect to both automobiles;

(4) Therefore, by virtue of Condition 4, appellant is entitled to collect $20,000 under Charlene’s insurance with respect to the Ford and $20,000 under Charlene’s insurance with respect to the Chevrolet.

Without pausing at this point to comment upon the substance of this proffered syllogism, we note that it rests entirely upon an assumed effect of Condition 4, without recognizing in any way the language contained in the “Limits of Liability” section of the policy. It is well-settled, however, that courts are not at liberty to ignore a clear provision in an insurance policy in order to avoid what is professed or may appear to be a hardship; indeed, the intention of the parties must be garnered from all of the terms of the policy considered as a whole, and not from the various clauses considered separately. We therefore must assess appellant’s argument, not solely upon the basis of Condition 4, but in the light of what is said in the “Limits of Liability” section.

Appellant recognizes this, but seeks to protect her position by asserting that, to the extent the language found under “Limits of Liability” would produce a contrary result, an ambiguity is created which should be construed against the insurer and in her favor. To the extent (but only to the extent) that the policy is ambiguous, that would be the required construction; and so the threshold issue is whether the two provisions, read together, in fact make the policy ambiguous.

This appears to be a case of first impression in the Maryland courts. There are, however, dozens of decisions of the Federal courts and the courts of other States from which a rather well established pattern has emerged. It is a pattern decidedly antagonistic to appellant’s contention.

The development of the decisional law in this area arose initially and primarily in the context of “medical payments” coverage, involving an undertaking by the insurance company to reimburse its insured for the cost of medical services incurred as the result of bodily injuries sustained by the insured or certain members of his family. The earliest case appears to be Sullivan v. Royal Exchange Assurance, 181 C.A.2d 644, 5 Cal. Rptr. 878 (1960), in which the California District Court of Appeal interpreted a policy insuring two vehicles to preclude the “stacking” of medical payments coverage. In essence, the court concluded that Condition 4 and the “limit of liability” clause were complementary rather than contradictory, that there was therefore no ambiguity, and that the “specific limitation provision” governed.

The approach taken by the California court in Sullivan, with respect to medical payment coverage, has not been followed in subsequent cases throughout the country. Rather, the nearly universal rule is that, in a single Family Automobile Policy of the type issued in this case, in which more than one vehicle is insured, the inclusion of the “limit of liability” clause and Condition 4 suffices to create an ambiguity with respect to medical payment coverage, and that, as a result, the policy will be construed to permit a “stacking” of benefits under that coverage. Not all of the courts adopting this approach have explained the rationale behind their decision in exactly the same way; but, in most instances, the result seems to have been reached upon the theory that:

(1) Medical payment coverage extends to bodily injuries sustained from the operation or involvement of any automobile, and is therefore not dependent upon or related to the involvement of an automobile insured under the policy;

(2) Thus, neither the coverage, nor the premiums collected for it, are really attributable to either, any, or all of the vehicles insured under a multi-vehicle policy;

(3) This type of coverage is therefore more like a personal accident policy than automobile insurance;

(4) If the insured had separate policies on his vehicles, each containing this type of coverage, he would be able to collect up to the policy limit of liability under each policy [i.e., the coverage would be “stacked”);

(5) Condition 4, applying the terms of the policy separately to each insured vehicle, when coupled with the charging of separate and cumulative premiums for this coverage, is consistent with an intent to treat this coverage in the same manner as if it had been afforded under separate policies; and

(6) To the extent the “limit of liability” clause is inconsistent with this approach, there is an ambiguity in the policy, which should and would be construed against the company and in favor of the insured.

This type of reasoning has been applied and extended by some courts to permit the “stacking” of benefits under uninsured motorist coverage, also a “first party” coverage; and it is upon this general line of cases, pertaining to first party coverages, that appellant relies in espousing her position that coverage should be “stacked” in this instance.

It is not necessary for us to determine whether we would follow this line of reasoning with respect to the “stacking” of medical payment and uninsured motorist coverages, and we expressly decline to make such a determination. That issue is not before us in this case. Suffice it to say that there is a clear and decisive distinction between those coverages, on the one hand, and the liability coverage at issue here, on the other, which makes the rationale underlying the “stacking” of the former, even if we were to adopt it, inapplicable to the latter.

We are dealing here with GEIGO’s undertaking:

“To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of ... bodily injury, sickness or disease, including death resulting therefrom ... sustained by any person ... arising out of the ownership, maintenance or use of the owned automobile....”

Unlike the medical payment and uninsured motorist coverages, this undertaking is directly related to, and requires the involvement of, one of the vehicles specifically mentioned in the policy (or a replacement or temporary substitute for it), for which a specific premium is charged. Both the coverage and the premiums charged for it are therefore attributable to those described vehicles. This coverage is automobile, rather than person, based. It is clearly insurance on the vehicle and is not in the nature of a personal accident policy. Moreover, even considering the effect of the extended coverage for “nonowned” automobiles, there would be no “stacking” of liability coverage if the two vehicles were insured under separate policies, a fact which, by itself, undercuts one of the major reasons expressed for allowing the “stacking” of first party coverage under a single multi-vehicle policy.

Most of the courts permitting the “stacking” of first party coverages have recognized, either implicitly or explicitly, that the rationale used by them to support that result would not be applicable with respect to liability coverage. Indeed, where the issue of “stacking” liability coverage has been considered and decided, the courts, with near uniformity, have held the first party coverage cases to be inapplicable and have found the policy to be unambiguous and to preclude “stacking”.

The earliest case reaching this result seems to be Pacific Indemnity Company v. Thompson, 355 P. 2d 12 (Wash., 1960), in which the Supreme Court of Washington characterized Condition 4 — the basis of the argument for stacking — as merely assuring the applicability of the policy “to whichever car is involved in an accident, or to all the cars” and nothing more. Citing the “limit of liability” clause, however, the court concluded that the “contract limits the company’s liability for bodily injury or death of one person arising out of one occurrence to a maximum of ten thousand dollars, with no contribution from one coverage to another.”

In Rosar, supra, note 13, the court agreed with this approach and Concluded, at 163 N.W.2d 131:

“We do not find an ambiguity in the condition that ‘[w]hen two or more automobiles are insured hereunder, the terms of this policy shall apply separately to each.’ There was one injured claimant, one owned and described vehicle involved, and one occurrence. The liability insurance purchased by the assured under these circumstances was limited to $10,000 [the amount stated in the declarations].”

The court then distinguished the medical payment cases, quoting as follows from Government Employees Insurance Co. v. Sweet, supra, 186 So. 2d at 96, 97:

“The medical payments coverage applies to all medical expenses of the named insured while occupying or through being struck by an automobile, except an automobile owned by or furnished for the regular use of the named insured which is not described in the policy. This is the feature which makes medical payments insurance coverage an entirely different type of insurance than public liability or property damage insurance where coverage is attributed to the vehicle causing the damage.”

Precisely the same reasoning appears in Emick v. DairylandInsurance Company, supra, 519 F. 2d at 1325, 1326. After noting the “floating, personal accident insurance character of medical payments and uninsured motorists coverage”, the court stated:

“By contrast, bodily injury liability coverage is linked to the ownership, maintenance or use of an owned automobile or a non-owned automobile by the insured and others to whom the coverage is extended. Its basic purpose has ‘always been conceived to be the protection of the policyholder against loss resulting from legal liability caused by his operation of a motor vehicle’ and, as such, ‘pertain[s] fundamentally to the vehicle.’ 7 J. Appelman [Insurance Law and Practice, pp. 208-209]. It is for this reason that courts have universally rejected the contention that separability clauses create an ambiguity with regard to bodily injury liability coverage where more than one automobile is listed under the policy, and one of the listed automobiles is involved in an accident.”

We are inclined to follow the approach taken by the courts in Pacific Indemnity Company, Rosar, and Emick, not as much because it represents the near unanimous view of the courts that have considered it, but because it is based on sound reasoning. We agree, in particular, with the Washington court in Pacific Indemnity Company that Condition 4, as applied to liability coverage for an “owned automobile” is intended to do nothing more, and indeed does nothing more, than to assure the applicability of the policy to whichever car is involved in the accident. It does not suffice to create an inconsistency with the “limit of liability” clause, and thereby to make the policy ambiguous; nor does it have the independent effect of “stacking” the $20,000 coverage applicable to the Chevrolet on top of the $20,000 coverage applicable to the Ford.

In this policy, unlike those at issue in most of the other cases, the insurer has made a special effort to make clear that the limit of its liability is as stated in the declarations. The “limit of liability” clause states that regardless of the number of automobiles to which the policy applies, the limit is as so stated. No clearer expression of intent is needed.

Accordingly, we conclude that the policy is not ambiguous, it does not permit the “stacking” of liability coverage with respect to the “owned automobiles”, Ms. Oarr is not entitled to collect more from GEICO than the $20,000 it has already paid to her, and the court below was not in error in granting GEICO’s motion for summary judgment.

Judgment affirmed; appellant to pay the costs.

      . Reserve Ins. Co. v. Duckett, 240 Md. 591, 599 (1965); Casualty Co. v. Hinds, 180 Md. 676, 681 (1942).

      . Amer. Etc. Ins. Co. v. Fid. & Cas. Co., 159 Md. 631 (1930); Little v. First Federated Life, 267 Md. 1 (1972); Watson v. U.S.F. & G. Co., 231 Md. 266 (1963).

      . Unit 1 is the Ford Torino, the car involved in the accident; Unit 2 is the Chevrolet.

      . Little v. First Federated Life, supra.

      . Laurel Race Course v. Regal Constr., 274 Md. 142 (1975).

      . Ebert v. Millers Fire Ins. Co., 220 Md. 602 (1959); cf. C & H Plumbing v. Employers Mut., 264 Md. 510 (1972).

      . See, for example, Kansas City Fire & Marine Insurance Co. v. Epperson, 356 S.W.2d 613 (Ark., 1962); Southwestern Fire and Casualty Company v. Atkins, 346 S.W.2d 892 (Tex. Civ. App., 1961); Central Surety & Insurance Corporation v. Elder, 129 S.E.2d 651 (Va., 1963); Government Employees Insurance Company v. Sweet, 186 So. 2d 95 (Fla., 1966); Annotation, Limits of Amount of Medical Insurance Coverage Under Insurance Policy Covering More Than One Vehicle, 21 ALR3d 900. Compare, however, Wachovia Bank & T. Co. v. Westchester Fire Ins. Co., 172 S.E.2d 518 (N.C., 1970), in which the Supreme Court of North Carolina, against a dissent by two of its members, reversed a decision of the State Court of Appeals, and expressly declined to follow what it implicitly recognized was the majority rule.

      . For a restated version of the theory, see Emick v. Dairyland Insurance Company, 519 F. 2d 1317 (4th Cir., 1975), at page 1323.

      . See, for example, Sturdy v. Allied Mutual Insurance Co., 457 P. 2d 34 (Kan., 1969); Virginia Farm Bureau Mutual Ins. Co. v. Wolfe, 183 S.E.2d 145 (Va., 1971); Blocker v. Aetna Casualty and Surety Company, 332 A. 2d 476 (Pa., 1975). Some of the courts permitting the “stacking” of uninsured motorist coverage have done so on the basis of public policy or statutory requirement. See, for example, Cameron Mut. Ins. Co. v. Madden, 533 S.W.2d 538 (Mo., 1976); Tucker v. Government Employees Insurance Co., 288 So. 2d 238 (Fla., 1973).

      . The policy also afforded similar protection with respect to bodily injuries arising from the ownership, maintenance, or use of a “non-owned automobile”. We are not concerned here with that aspect of coverage, however, since the vehicle involved in the accident was an “owned automobile”; and we therefore express no opinion with regard to it. See, however, Emick v. Dairyland, supra, 519 F. 2d 1317; Allstate Insurance Company v. Mole, 414 F. 2d 204 (5tn Cir., 1969).

      . The Ford, for example, would not qualify either as an “owned” or a “nonowned” automobile under a separate policy insuring the Chevrolet. It would be an owned vehicle not stated in the policy; ana thus, the liability coverage under the Chevrolet policy would not extend to it.

      . See, in particular, Wachovia Bank & T. Co. v. Westchester Fire Ins. Co., supra, 170 S.E.2d at 77, reversed, as noted in Footnote 7, 172 S.E.2d 518; Government Employees Insurance Company v. Sweet, supra, 186 So. 2d at 97.

      . See Rosar v. General Ins. Co. of America, 163 N.W.2d 129 (Wis., 1968); Pacific Indemnity Company v. Thompson, 355 P. 2d 12 (Wash., 1960); Emick v. Dairyland Insurance Company, supra, 519 F. 2d 1317; Basso v. Allstate Insurance Co., 504 P. 2d 1281 (Ariz., 1973); Greer v. Associated Indemnity Corporation, 371 F. 2d 29 (5th Cir., 1967). Also, Allstate Insurance Company v. Zellars, 462 S.W.2d 550 (Tex., 1970), dealing with property damage.

      . See also Polland v. Allstate Insurance Company, 266 N.Y.S.2d 286 (1966); Basso v. Allstate Insurance Co., supra, 504 P. 2d 1281; Annotation, Limitation of Amount of Coverage Under Automobile Liability Policy As Affected By Fact That Policy Covers More Than One Vehicle, 37 ALR3d 1263.

      . See Hansen v. Liberty Mutual Fire Insurance Company, 157 S.E.2d 768 (Ga. App., 1967); Hilton v. Citizens Insurance Company of New Jersey, 201 So. 2d 904 (Fla. App., 1967); Wachovia Bank & T. Co. v. Westchester Fire Ins. Co., supra, 172 S.E.2d 518, 525; Virginia Farm Bureau Mutual Ins. Co. v. Wolfe, supra, 183 S.E.2d 145, 147.


author: Gilbert, C. J.,

text:
    WILLIAM BAKER alias Orlando Little v. STATE OF MARYLAND
    [No. 788,
    September Term, 1977.]

      Decided March 13, 1978.

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

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

      Stephen Rosenbaum, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Harvey Greenberg, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

Representative James Madison introduced at the first congress, on June 8, 1789, sixteen (16) amendments to the Constitution of the United States. Four (4) of the amendments did not survive congressional debate, and two (2) failed because the States did not ratify them. The remaining ten (10), in substantially the same form as proposed by Madison, became known as “The Bill of Rights.” Interestingly, one (1) of the suggested amendments that was defeated in the Congress would have prohibited “the states from infringing on freedom of conscience, press, and jury trial.” The Bill of Rights was, in the beginning, a protection against the federal government but not the States. Violations of the rights of the individual by the State were protected only to the extent provided in the State constitution or Declaration of Rights.

The Fourth Amendment, part of Madison’s original package, 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 Declaration of Rights adopted in Maryland afforded the people, through Article 26, protection against general warrants and required an oath or affirmation as a condition precedent to the issuance of a search and seizure warrant.

Both the Fourth Amendment and Article 26, arose from the same historical background, Givner v. State, 210 Md. 484, 124 A. 2d 764 (1956); Salmon v. State, 2 Md. App. 513, 235 A. 2d 758 (1967), and are to be read as being in pari materia. Givner v. State, supra; England v. State, 21 Md. App. 412, 320 A. 2d 66 (1974), aff’d, 274 Md. 264, 334 A. 2d 98 (1975).

Notwithstanding, the Supreme Court’s use of the Due Process Clause of the Fourteenth Amendment in Mapp v. Ohio, 367 U. S. 643, 81 S. Ct. 1684, 6 L.Ed.2d 1081 (1961), as the vehicle through which to apply the strictures of the Fourth Amendment to the States, and with it the “ ‘fruit of the poisonous tree’ ” doctrine, Wong Sun v. United States, 371 U. S. 471, 488, 83 S. Ct. 407, 417, 9 L.Ed.2d 441, 455 (1963), Maryland did not initially follow that doctrine. Mefford v. State, 235 Md. 497, 201 A. 2d 824 (1964); Prescoe v. State, 231 Md. 486, 191 A. 2d 226 (1963). In those cases, the majority of the Court reasoned that the “poisonous tree” doctrine or exclusionary rule discussed in Wong Sun v. United States, supra, and Mapp v. Ohio, supra, did not apply to the States but was limited in its scope to federal proceedings.

As a result of Mefford soA Prescoe, the courts of this State ignored the federal exclusionary rule until 1974. At that time, the Court of Appeals, in Everhart v. State, 274 Md. 459, 337 A. 2d 100 (1975), rev’g, 20 Md. App. 71, 315 A. 2d 80 (1974), made it unmistakable that Michigan v. Tucker, 417 U. S. 433, 445, 94 S. Ct. 2357, 2364, 41 L.Ed.2d 182, 193-94 (1974) and Alderman v. United States, 394 U. S. 165, 89 S. Ct. 961, 22 L.Ed.2d 176 (1969), erased the doubt that had existed, and the “ ‘fruit of the poisonous tree’ ” doctrine, Wong Sun v. United States, 371 U. S. at 488, 83 S. Ct. at 417, 9 L.Ed.2d at 455, became the law of Maryland.

The primal thrust of this appeal is the application vel non of the exclusionary rule — the “fruit of the poisonous tree” doctrine — to the judicial identification of the appellant.

After a hearing on a motion to suppress, Judge Shirley B. Jones, in the Criminal Court of Baltimore, ruled that the arrest of the appellant, William Baker, alias Orlando Little, was not founded on probable cause. She, therefore, excluded from the case any identification of appellant, based upon a photograph made of him subsequent to that arrest. While helpful to appellant, the exclusion of the photographic identification was more of a panache than a victory because the judge found that there was ample evidence that the judicial identifications made by the witnesses were bottomed on evidence that was independent of the baneful photograph. Appellant, however, contends that his illegal arrest precludes any identification of him, so that he should in no way be connected with the offense and must be freed. The argument advanced by appellant may be styled as the “but for” approach. “But for” the illegal arrest he would not have been caught and, ergo, could not have been identified as the culprit.

Before explaining why we reject that absonant argument with its iniquitous result, we set out the fabric from which the appeal has been tailored.

At about 2:45 p.m., on July 23, 1975, Howard Katz an insurance agent, was robbed by two (2) men in the 200 block of East Chase Street in Baltimore City. One of the felons was armed with a sawed-off shotgun. When the police arrived, the victim and two witnesses, gave descriptions of the armed robber. Phillip Hawkes, a witness did not actually see the robbery, but he “got a real good look” at the person who carried the weapon as that person left the area at a “dog’s trot.” Katz was within a few feet of the robber for one (1) to five (5) minutes and looked directly at the robber’s face. Scott, a witness and a former Baltimore County police officer, who was with Katz at the time stared directly at the robber for a period of “no less than one and no more than five” minutes.

Pursuant to a tip from an unidentified informant, the appellant was arrested on July 29, 1975, at the home of his girl friend. The arrest was made without the benefit of a warrant. In holding, as we have already noted, the arrest to be illegal, the trial judge believed there was a lack of probable cause because the information passed on to the arresting officer by the informant failed to pass muster under Aguilar v. Texas, 378 U. S. 108, 84 S. Ct. 1509, 12 L.Ed.2d 723 (1964). Moreover, the judge was not satisfied that there was knowing consent to the search of the girl friend’s apartment, where appellant was found, nor that there were exigent circumstances which excused the obtaining of a search warrant.

Prior to the arrest and booking of the appellant, his name was not known to the police. The next day, appellant’s photograph was shown to Katz and Scott, who identified it as that of the perpetrator of the robbery. Thereafter, Katz and Scott saw the appellant several times in various court proceedings. Hawkes saw the appellant in the City Jail where he was confined while awaiting trial. The two (2) victims and Hawkes testified, during the hearing on the motion to exclude any in-court identification, that their identifications would be based solely on their recollection of the incident and not on any subsequent viewing of appellant or his photograph. During the trial, Katz, Scott, and Hawkes made in-court identifications of the appellant.

Past Maryland cases have held that in-court identifications resulting directly from illegal arrests are not excluded from evidence. Those decisions, however, must be re-evaluated in light of both the subsequent adoption by the Court of Appeals in Everhart v. State, supra, of the “fruit of the poisonous tree” exclusionary rule and of the recent Supreme Court decisions related to that rule. Our reappraisal leads us to conclude that when an illegal arrest is made in good faith and is neither an investigatory nor sham arrest, judicial identification is not to be barred on the basis of its being the “fruit of the poisonous tree.”

Two (2) 1968 decisions of this Court held that in-court identifications were not precluded by the illegal arrests of the individuals concerned. Boucher v. Warden, 5 Md. App. 51, 245 A. 2d 420 (1968); Hartley v. State, 4 Md. App. 450, 243 A. 2d 665 (1968), cert. denied, 251 Md. 749 (1969), cert. denied, 395 U. S. 979, 89 S. Ct. 2136, 23 L.Ed.2d 768 (1969). In Boucher, supra, we said that, notwithstanding the in-court identification, “no fruits of the arrest were received in evidence against the applicant. ...” Boucher v. Warden, 5 Md. App. at 55, 245 A. 2d at 423.

Those cases obviously were decided prior to Maryland’s belated recognition in Everhart, supra, of Wong Sun, supra, and its siblings.

We applied Wong Sun, supra, through Everhart, supra, in Ryon v. State, 29 Md. App. 62, 349 A. 2d 393 (1975), aff’d, 278 Md. 302, 363 A. 2d 243 (1976). The exclusionary rule of Wong Sun, supra, was explicated in In re Appeal No. 245, 29 Md. App. 131, 349 A. 2d 434 (1975) as follows:

“On 14 January 1963 the Supreme Court of the United States decided Wong Sun v. United States, 371 U. S. 471 [83 S. Ct. 407, 9 L.Ed.2d 441 (1963)]. Nearly half a century before, the Court held that evidence seized during a search unlawful under the Fourth Amendment could not constitute proof against the victim of the search. Weeks v. United States, 232 U. S. 383 [34 S. Ct. 341, 58 L. Ed. 652] (1914). The exclusionary prohibition extended as well to the indirect as the direct products of such invasions. Silverthorne Lumber Co. v. United States, 251 U. S. 385 [40 S. Ct. 182, 64 L. Ed. 319] (1920). The exclusionary rule had traditionally barred from trial physical, tangible materials obtained either during or as a direct result of an unlawful invasion. It followed from the Court’s holding in Silverman v. United States, 365 U. S. 505 [81 S. Ct. 679, 5 L.Ed.2d 734] (1961), that the Fourth Amendment may protect against the overhearing of verbal statements as well as the more traditional seizure of tangible evidence.” 29 Md. at 140, 349 A. 2d at 439.

Long before the Fourth Amendment was held, in Mapp v. Ohio, supra, to apply to the States, Mr. Justice Holmes, in Silverthome, supra, wrote that the exclusionary rule mandates not only that evidence obtained in violation of the tenets of the Fourth Amendment may “not be used before the Court but that it shall not be used at all.” 251 U. S. at 392, 40 S. Ct. at 183, 64 L. Ed. at 321. “The Magnificent Yankee,” however, penned a caveat that declared, “[o]f course this does not mean that the facts thus obtained become sacred and inaccessible.” Id.

The Wong Sun Court went further and stated:

“We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ Maguire Evidence of Guilt, 221 (1959).” 371 U. S. at 487-88, 83 S. Ct. at 417, 9 L.Ed.2d at 455.

The three (3) generally recognized exceptions to the application of the fruit of the upas tree are: 1) where the evidence sought to be introduced has an independent source, or 2) the evidence would have inevitably been discovered, or 3) where “the connection between the lawless conduct of the police and the discovery of the challenged evidence has become so attenuated as to dissipate the taint.” In re Appeal No. 245, 29 Md. App. at 140, 349 A. 2d at 440. See Bartram v. State, 33 Md. App. 115, 364 A. 2d 1119 (1976), aff’d, 280 Md. 616, 374 A. 2d 1144 (1977). See also Washburn v. State, 19 Md. App. 187, 310 A. 2d 176 (1973).

For the purpose of determining whether the rule excluding evidentiary “fruit of the poisonous tree” should be applied to a particular situation, the Supreme Court has adopted a balancing test. The Court, in Stone v. Powell, 428 U. S. 465, 96 S. Ct. 3037, 49 L.Ed.2d 1067 (1976), said that “[t]he primary justification for the exclusionary rule ... is the deterrence of police conduct that violates Fourth Amendment rights.” 428 U. S. at 486, 96 S. Ct. at 3048, 49 L.Ed.2d at 1083. The deterrent effect of the exclusionary rule must be weighed against the harm which society suffers when the particular evidence cannot be used in a judicial proceeding. Thus, “[t]he application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served.” United States v. Calandra, 414 U. S. 338, 348, 94 S. Ct. 613, 620, 38 L.Ed.2d 561, 571 (1974). Areas to which the exclusionary rule clearly has not been extended include: grand jury proceedings, United States v. Calandra, supra; the use of the evidence to impeach, Walder v. United States, 347 U. S. 62, 74 S. Ct. 354, 98 L. Ed. 503 (1954); and the raising of illegal search and seizure claims in federal habeas corpus reviews of state court convictions, Stone v. Powell, supra. The reason for the nonapplication of the rule is that the deterrent effect in those situations would be minimal.

The exclusionary rule is a potent judicial weapon fashioned to restrain police trespass on constitutionally protected rights, which is selectively used and discriminately applied. It was not created as a “bonus,” for the criminal, taking the form of the keys to the jail, which might well happen if courts were to employ its severe sanctions indiscriminately. Stone, supra, makes clear that:

“Application of the rule ... deflects the truthfinding process and often frees the guilty. The disparity in particular cases between the error committed by the police officer and the windfall afforded a guilty defendant by application of the rule is contrary to the idea of proportionality that is essential to the concept of justice. Thus, although the rule is thought to deter unlawful police activity in part through the nurturing of respect for Fourth Amendment values, if applied indiscriminately it may well have the opposite effect of generating disrespect for the law and administration of justice.” 428 U. S. at 490-91, 96 S. Ct. at 3050, 49 L.Ed.2d at 1085-86. (Footnotes omitted.)

Chief Justice Burger, concurring in Stone, supra, said that the burden should be on those who propose the application of the exclusionary rule to show that there is a real deterrent effect and that the purpose outweighs the “costs” of the rule. Id. at 499-500, 96 S. Ct. at 3054, 49 L.Ed.2d at 1091.

The Stone Court reaffirmed its traditional approach to the related problem of the illegal forcible obtention of personal jurisdiction. They did not “retreat from the proposition that judicial proceedings need not abate when the defendant’s person is unconstitutionally seized, Gerstein v. Pugh, 420 U. S. 103, 119, [95 S. Ct. 854, 865-66, 43 L.Ed.2d 54, 68] (1975), Frisbie v. Collins, 342 U. S. 519, [72 S. Ct. 509, 96 L. Ed. 541] (1952).” Id. at 485, 96 S. Ct. at 3047, 49 L.Ed.2d at 1082.

Applying the Wong Sun, supra, doctrine to the case now before us, we hold that the in-court identification of the appellant was correctly admitted into evidence by Judge Jones. Perspicuously, Wong Sun, supra, does not apply a “but for” test to evidence. Rather, the question is whether the evidence has been obtained by exploiting the illegality. Exploitation must have a different meaning than “but for.” Learning the identity of a person otherwise lost in a sea of faces, as a result of an illegal arrest not solely for that purpose, is not “exploitative,” but, rather, is the natural result of any arrest. As stated in United States v. Dionisio, 410 U. S. 1, 14, 93 S. Ct. 764, 771, 35 L.Ed.2d 67, 79 (1973),

“No person can have a reasonable expectation that others will not know the sound of his voice, any more than he can reasonably expect that his face will be a mystery to the world.”

See also, Katz v. United States, 389 U. S. 347, 88 S. Ct. 507, 19 L.Ed.2d 576 (1967).

Classification of learning the appellant’s identity and, hence, the judicial identification, as “exploitative” would be inconsistent with the Supreme Court’s reaffirmation of the principle that illegal gaining of personal jurisdiction of a defendant does not prohibit the State from placing that individual on trial. Stone v. Powell, supra.

Other courts have applied the same reasoning. In Commonwealth v. Garvin, 448 Pa. 258, 293 A. 2d 33 (1972), which involved a fact situation like the one before us, the court said: Similarly, in Crews v. United States, 369 A. 2d 1063, 1068 (D.C. Ct. of App. 1977), involving another situation like that before this Court, it was said, quoting in part from Bond v. United States, 310 A. 2d 221 (D.C. Ct. of App. 1973):

“No law abiding society could tolerate a presumption that but for the illegal arrest the suspect would never have been required to face his accusors. Thus, we conclude that the only effect of the illegal arrest was to hasten the inevitable confrontation and not to influence its outcome.” Id. at 264, 293 A. 2d at 37.
“[ ‘ ]Even assuming the illegality of the prior arrest, we regard [appellant’s] position as untenable. In the first place, he points to no particular “fruit” of this alleged “poisonous tree” which was introduced into evidence against him. This doctrine does not operate so broadly as to bar all subsequent prosecutions. Rather it operates on particular evidence, either tangible or testimonial, and, if properly invoked, causes the exclusion only of such evidence. See Wong Sun v. United States [supra]. Here, it would seem that appellant would have us hold that he himself is the “fruit" and accordingly he should have been excluded but “[w]e have ruled on more than one occasion that a court will not inquire into the manner in which an accused is brought before it, and that the legality or illegality of an arrest is material only on the question of suppressing evidence obtained by the arrest.” [Quoting District of Columbia v. Jordan, D.C.App., 232 A.2d 298, 299 (1967).] ’ [Bond v. United States, 310, A.2d at 224-25.] See District of Columbia v. Perry, D.C.App., 215 A.2d 845, 847 (1966); Boucher v. Warden, 5 Md.App. 51, 245 A.2d 420, 423-24 (1968). Cf. M. A. P. v. Ryan, D.C.App., 285 A.2d 310, 315 (1971). Our conclusion rested upon the well-established principle that, given a fair trial, the fact of an illegal arrest will not vitiate a conviction. Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952); Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886). While it is true, as appellant notes, that the Ker-Frisbie doctrine has been the subject of some criticism [see, e.g., United States v. Toscanino, 500 F.2d 267, rehearing en banc denied, 504 F.2d 1380 (2d Cir. 1974); United States v. Edmons, 432 F.2d 577, 583 (2d Cir. 1970)], we have no doubt as to its continued validity. See Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 3047, 49 L.Ed.2d 1067 (1976); Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); Stevenson v. Mathews, 529 F.2d 61, 63 (7th Cir.), cert. denied, 426 U.S. 954, 96 S.Ct. 3181, 49 L.Ed.2d 1193 (1976).”

Even if we were to assume, arguendo, that the in-court identification was in some way fruit picked from the upas tree, that identification testimony would not be excluded. This is so because the deterrent effect of the exclusion of the identification on police conduct would be grossly outweighed by the public detriment. Stone v. Powell, supra.

The Supreme Court said, in Michigan v. Tucker, 417 U. S. at 446, 94 S. Ct. at 2365, 41 L. Ed. at 194 (1974), the law,

“cannot realistically require that policemen investigating serious crimes make no errors whatsoever. The pressures of law enforcement and the vagaries of human nature would make such an expectation unrealistic. Before we penalize police error, therefore, we must consider whether sanction serves a valid and useful purpose.”

The exclusion of evidence in a situation where the police have attempted, in good faith, to follow the law may have little deterrent effect on future police conduct except, perhaps the reverse of that desired. Michigan v. Tucker, 417 U. S. at 447, 94 S. Ct. at 2365, 41 L. Ed. at 194-95. Crews v. United States, supra. There is no evidence in the record before us of any lack of good faith on the part of the officers involved in the apprehension of the appellant. The detriment to the public of excluding all in-court identification of the appellant would be a blanket prohibition of prosecution for the crime. Where, as here, the identity of an individual is characterized as the “illegal fruit,” “in the final analysis,” what is sought “is no less than an immunity from any prosecution.” Crews v. United States, 369 A. 2d at 1072. If this Court were to adopt the rationale urged by appellant, the societal harm would be far greater than in the ordinary exclusionary rule situation where the prosecution must use other untainted evidence. Usually in such cases there is the possibility of prosecution based on other sources of evidence.

We hold that the trial judge properly admitted into evidence the in-court identification made of appellant by the victim and the two (2) witnesses. It is clear that the identifications were based upon their independent observations of the appellant at the time of the robbery and not upon the tainted photograph. Foster & Foster v. State, 272 Md. 273, 323 A. 2d 419 (1974); Johnson v. State, 36 Md. App. 162, 373 A. 2d 300 (1977), certiorari granted September 7, 1977; Dobson v. State, 24 Md. App. 644, 335 A. 2d 124 (1975), cert. denied, 275 Md. 747 (1975).

Appellant next contends that the trial court improperly denied his motion for a mistrial. The motion was based on allegedly prejudicial remarks by the prosecutor during cross-examination of the appellant. Judge Jones sustained the objections and instructed the jury to disregard the questions. Her instructions to the jury appear sufficiently curative. Judge Jones reinforced her instruction to ignore the prosecutor’s remarks when she stated that

“when something is stricken from the record it means literally that, that it is stricken from the record and you must completely ignore anything which has been stricken from the record----[Y]ou [the jury] are to ignore that portion of the testimony or the question, whatever it might have been.”

Appellant avers, however, that the cumulative effect of the prosecutor’s remarks, despite Judge Jones’s curative actions, was sufficiently prejudicial to deny him a fair trial. Judge Jones was, in presiding over the trial, better able than this Court to judge the effect of the improper remarks upon the jurors. She stated,

“I am not satisfied at this point that there has been irreparable damage to the defendant. I’m satisfied the questions were improper, and that’s why I sustained the objections, but I’m going to instruct the jury. I think, as I say, it is not irreparable and prejudicial that I can see at this point.”

Inasmuch as the granting or denial of a motion for a mistrial is within the sound discretion of the trial court, this Court will not overturn the trial judge’s decision unless there was a manifest abuse of discretion. Wilhelm v. State, 272 Md. 404, 326 A. 2d 707 (1974); James v. State, 31 Md. App. 666, 358 A. 2d 595 (1976). We can find no such abuse of diácretion in the instant case.

Judgment affirmed.

Costs to be paid by appellant.

      . Bernard Schwartz, The American Heritage History of The Law in America, ch. II (1974).

      . Id.

      . Id

      . According to Schwartz, Madison “wrote a mandatory imperative into the amendments, substituting the word ‘shall’ for the ‘oughts’ and ‘ought nots’ that had characterized earlier documents guaranteeing similar rights.” See, e.g., Maryland Declaration of Rights Articles 6-12, 14-19, 21-23, 25, 26, 30,32,36,37,39-43, wherein the softer “ought” or “ought not” has been used.

      . This is so even though Article 26 is not couched in the mandatory imperative as is the Fourth Amendment. See n. 4, supra.

      . It was disclosed at the hearing on the motion to suppress and the trial that appellant was wanted for a parole violation, failing to report.

      . According to Hawkes, the charges against him unrelated to this case were stetted.

      . Emmet Lowery (written 1945).