author: Lowe, J.,

text:
    TIMOTHY PARKS v. STATE OF MARYLAND
    [No. 136,
    September Term, 1980.]

      Decided November 10, 1980.

    The cause was submitted on briefs to Moylan, Moore and Lowe, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Thomas J. Saunders, Assistant Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney General, Alexander L. Cummings, Assistant Attorney General,

      Andrew L. Sonner, State’s Attorney for Montgomery County, and Barry A. Hamilton, Assistant State’s Attorney for Montgomery County, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

The evidentiary issue in the case before us exemplifies a tendency of some prosecutors who "overtry” their cases intending, perhaps, to err if at all on the side of prudence. But too much is not always prudent. A careful carpenter, for example, will resist the temptation to add that one last nail which will frequently split the board, weakening, rather than reinforcing, the structure he is trying to build. A careful lawyer also knows when to stop hammering, although the hairline fractures are not always immediately apparent. Unless the same craftsman defends his structure on appeal, the subtle damages of overbuilding a case may continue to escape him. While the structure withstood it in this case, the value of that last nail was hardly worth the risk — but that is much easier to see in the contemplative light of retrospect.

In this case, originally tried by a jury in the Circuit Court for Montgomery County, a 13-year-old girl was the victim of assault and battery, assault with intent to rape and a third degree sexual offense by appellant who was one of several men between the ages of 18 and 32 who had picked her up in a car. She was molested thereafter in various ways, at different times and at several locations.

Appellant was tried separately from the other participants, some of whom testified in his case, some of whom did not. In addition to submitting evidence of the corpus delicti of the crime, the State established appellant’s criminal agency by a wealth of evidence. Appellant’s brother and his wife established appellant’s presence, explaining that he (the witness) and his brother (the appellant), in addition to one John Norris Anderson, while on an aborted errand, had stopped and picked up the victim who was on a sidewalk and was apparently drunk. Appellant’s brother inculpated Anderson directly and appellant inferentially, by describing their conduct during the drive to the apartment of a friend, Ronald Harrison Reemsnyder, and after leaving the apartment building. When the vehicle was stopped at a deserted military base, the witness stayed in the car, but his testimony inferentially and corroboratively inculpated the other four male passengers, including Anderson and appellant.

An associate of appellant’s also testified corroboratively in regard to appellant’s criminal agency and further inculpated him by reciting an admission indicative of guilt. Another witness who came upon the scene when attracted by the victim’s screams, testified to his observations which also circumstantially inculpated appellant. Testimony of a microscopic examination of hair samples taken from clothing at the scene of the crime revealed that the hairs could have come from appellant. A final witness, Clifford Tragesor, was permitted to testify to a conversation that he had had with John Norris Anderson while both were detained in a jail cell. His testimony was limited to Anderson’s statements concerning only Anderson’s involvement in the criminal conduct. It is this testimony that brought about the appeal here, despite there having been no testimony from Tragesor about conversations with appellant or with Anderson that implicated appellant directly.

The purpose and the relevance of the testimony was primarily to corroborate the testimony of the other witnesses who had inculpated Anderson and appellant, as well as the other participants in their joint venture, thus corroborating not only appellant’s criminal agency inferentially, but tending to prove the corpus delicti by repeating Anderson’s admissions of his own criminal conduct which the panoply of witnesses’ testimony showed was committed while in the car with appellant and the others.

— the right of confrontation —

The single question on appeal relates to the admissibility of Tragesor’s testimony.

"Did the court err in allowing a witness to testify concerning the admission of a codefendant?”

While recognizing that the evidence was admitted under a proper exception to the hearsay rule (admissions against penal interest), appellant attempts to create a constitutional obfuscation of an already cloudy area of criminal law.

"The question which needs to be resolved involves the viability of the Bruton [v. United States, 391 U.S. 123 (1968)] doctrine now that Maryland has adopted the declaration against penal interest exception. Does that exception nullify Bruton, or can they be harmonized?” (Footnote omitted.)

It appears that this was precisely the attack made in Dutton v. Evans, 400 U.S. 74 (1970). Reciting the Dutton facts Judge Morton noted in McDowell v. State, 31 Md. App. 652, 660 (1976), cert. denied, 278 Md. 727 (1976), that the factual posture of Dutton was substantially identical to that of McDowell.

"In Dutton v. Evans, Evans had been convicted in a Georgia court of participating in the murder of three policemen. In the course of the trial, a witness for the state, named Shaw, was permitted to testify that Williams, an accomplice of Evans, had told him [Shaw] while he was in prison awaiting trial that if it had not been for Evans, he, the accomplice Williams, would not 'be in this now.’ Objection to the testimony was made on the ground that the introduction of this hearsay testimony was in violation of Evans’ right of confrontation. The objection was overruled and the issue before the Supreme Court was whether Evans’ murder conviction should be set aside because of the admission of this testimony.”

We find the facts here even more apposite to Dutton, while the evidence now in question is even less damaging to appellant than that which was admitted in Dutton. It further appears that Dutton expressly dispelled the same Bruton obfuscation attempted here.

"There was not before us in Bruton 'any recognized exception to the hearsay rule,’ and the Court was careful to emphasize that 'we intimate no view whatever that such exceptions necessarily raise questions under the Confrontation Clause.’ [Citation omitted.]
It seems apparent that the Sixth Amendment’s Confrontation Clause and the evidentiary hearsay rule stem from the same roots. But this Court has never equated the two, and we decline to do so now.” 400 U.S. at 86 (footnotes omitted).

The significance of Dutton is the Court’s distinguishing that which the Dutton case did not involve:

"This case does not involve evidence in any sense 'crucial’ or 'devastating,’.... It does not involve the use, or misuse, of a confession made in the coercive atmosphere of official interrogation,.... It does not involve any suggestion of prosecutprial misconduct or even negligence, .... It does not involve the use by the prosecutor of a paper transcript, .... It does not involve a joint trial, .... And it certainly does not involve the wholesale denial of cross-examination, ....” Id. at 87.

Mr. Justice Stewart, for the plurality, went on to note that:

"Of the 19 other witnesses, the testimony of but a single one is at issue here. That one witness testified to a brief conversation about Evans he had had with a fellow prisoner in the Atlanta Penitentiary. ... His testimony, which wás of peripheral significance at most, was admitted in evidence under a coconspirator exception to the hearsay rule long established under state statutory law.” Id. at 87 (footnote omitted).

This indicated, we believe, the lack of significance of that testimony in the perspective of an otherwise strong case. The language demonstrates rather clearly that even if it had been erroneously admitted its effect may well have been harmless.

It also appears that Dutton indicates with equal clarity that whether these evidentiary admissible out-of-court admissions of codefendants to a third party are constitutionally admissible must be decided each on its own facts. Id. at 86-88. Taking that as the message of the plurality, we begin with the presumption that the judge’s exercise of discretion is presumed correct, Mathias v. State, 284 Md. 22, 28 (1978), cert. denied, 441 U.S. 906 (1979); but see Hughes v. State, 288 Md. 216 (1980), and we may not under our own appellate procedure, reverse the trial judge’s discretion unless it is abused.

Procedurally, before addressing the constitutional admissibility, we must first assure ourselves that it was evidentially admissible under an exception to the hearsay rule. Here the evidence was allowed in via the exception for statements that are against penal interest which is clearly under the aegis of Maryland evidentiary rules. Jacobs v. State, 45 Md. App. 634 (1980).

We have already addressed the corroborative relevancy of the statement, and so long as it tended toward "Getting The Right Man”, Jacobs, supra at 645, it is not the Court’s role to judge the degree of persuasive effect, only that it does or does not tend to get the right man. It is then necessary simply to determine that the out-of-court declarant is "presently unavailable.” Id. at 653. John Norris Anderson, the declarant, had been tried and convicted by the time this case was being tried, but his conviction was on appeal. It is well-settled that "invocation of the privilege against compelled self-incrimination is a sufficient showing of unavailability.” Id. (citation omitted). Anderson was thus, for purposes of testifying, "presently unavailable.” The trial judge, then, did not abuse his discretion from an evidentiary view.

Using some of the pertinent criteria addressed in Dutton, we next must determine whether the constitutional rules of fair play have been complied with, i.e., as referred to by Judge Moylan in Jacobs, the "Marquis of Queensberry Rules.” Id. at 645. As Dutton points out, while similar values are designed for protection by both evidentiary and constitutional rules, they are neither mutually inclusive, nor mutually exclusive. Dutton, supra at 81-82.

The confrontation issue in Dutton arose

"because the jury was being invited to infer that Williams [a codefendant] had implicitly identified Evans as the perpetrator of the murder when he blamed Evans for his predicament.” Id. at 88.

In the case at bar the hearsay testimony admitted identified only the declarant, a codefendant not then on trial, as a perpetrator. Without other evidence from observations of the other witnesses the testimony would not even inferentially have implicated appellant. Indeed, it would appear that appellant Parks barely slips under the constitutional confrontation issue, if at all. Since the result is the same, we too will err if at all on the side of prudence and address the Dutton issue.

Briefly noting the Supreme Court’s analysis we find here that many of the factors considered in Dutton are either not related to the instant facts or are indicative that there was no denial of appellant’s right of confrontation, e.g.,

1) the evidence was not in any sense " 'crucial’ ” or " 'devastating’
2) although the statement asserted a "past fact,” it did not identify appellant as a perpetrator;
3) the declarant and the declaration indicated personal knowledge;
4) it was unlikely that his recollection was faulty; and
5) since the statement was spontaneous and against his own personal interest he appeared to have no motive to lie.

See Dutton at 87-89.

When we consider the significance of the testimony, id. at 87, it is so "peripheral” that it is difficult to understand the substantial effort made by the State to have injected in its case such an unsettled, appealable issue of this nature. In our view — which has no weight itself — the weight of the testimony elicited was so insignificant in relation to the whole, that had it been admitted in error, that error would have been of questionable harm at worst, even under the test of Dorsey v. State, 276 Md. 638 (1976).

— right to counsel —

It should be emphasized that both evidentially and constitutionally our efforts thus far have been to assure the trustworthiness of the statement made by the out-of-court declarant. Appellant here is expressly concerned as well with the trustworthiness of the witness who related the declarant’s comments. Cf. Dutton, supra at 87.

Although still related to the Sixth Amendment, appellant’s second concern presumably shifts from the confrontation clause to the right to counsel clause, contending as he does, that Tragesor was a police agent seeking to ingratiate himself to better bargain his own criminal problems. His brief succinctly sets forth his contention in this regard:

"Appellant submits that Officer Beane solicited Tragessor’s [sic] aid as of March 18 and that throughout the events he was a state agent. Therefore his questioning of Appellant and Anderson was improper and the statements should have been excluded. See, State v. Blizzard, 278 Md. 556, 366 A.2d 1026 (1976).”

See also United States v. Henry, 447 U.S. 264, 65 L. Ed. 2d 115 (1980).

The issue as raised relates to the right to counsel. We need but remind appellant that no statement of his to Tragesor was admitted in this case. Whether Anderson’s right to counsel was violated is neither shown nor asserted, and would not be relevant in regard to his statements as related to appellant in any case. Appellant has no standing to invoke Anderson’s constitutional rights.

Judgments affirmed.

Costs to be paid by appellant.

      . Anderson v. State, No. 1218 (Ct. of Sp. App., filed May 23, 1980) (unreported).

      . See Reemsnyder v. State, 46 Md. App. 249 (1980).

      . The judge ruled:
      "I will permit that evidence, but both the State and the defense will understand that if Mr. Tragesor starts to talk about what Anderson said about Parks’ involvement we are in serious trouble.

        Therefore, it is my recommendation that the State’s Attorney and the defense attorney sit down with Mr. Tragesor in a small private room and make that clear to him in no uncertain terms.
      MR. HAMILTON [prosecutor]: I have done that preliminarily. Your Honor, but I will take the Court’s recommendation. I told him last night that this was a possibility and to be refining his thoughts so he could testify in that manner.
      THE COURT: Well, I would permit you to lead somewhat, that is when you ask him the question it will be what if anything did Anderson, did John Anderson say about he, John Anderson’s participation in these events.
      MR. HAMILTON: If I may, a clarification, what about what Anderson said about Reemsnyder’s involvement?
      THE COURT: That does not have the same indicia. I will limit it to what Anderson said about Anderson.
      MR. MADDEN [appellant’s attorneyl: As I understand it, as far as the relevancy part is concerned, the Court finds that this could be that limited statement of Tragesor could be relevant to the extent that it may be corroborating?
      THE COURT: Corroborative or tend to offer proof of the corpus delicti.”
      The restriction upon the testimony admitted all but obliterates the significance of the Bruton (v. United States, 391 U.S. 123 (1968)) problem appellant strains to raise. We will address it nonetheless.

      . Not only did the plurality emphasize that it confined itself to deciding the case before it, id. at 86, but also it reemphasized that distinction by repeating that the evidentiary admissibility "in the circumstances of this case did not violate the Constitution.” Id. at 88.


source: Caselaw Access Project

author: MacDANiEL, J.,

license: Public Domain

text:
    STATE DEPARTMENT OF ASSESSMENTS AND TAXATION v. PHILIP M. GLICK et ux.
    [No. 143,
    September Term, 1980.]

      Decided November 10, 1980.

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

      Peter W. Taliaferro, Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellant.

      Amicus curiae brief filed by Elmer J. Kelsey.

      Philip M. Glick for appellees.
   MacDANiEL, J.,

delivered the opinion of the Court.

In this appeal we are asked to construe the definition of "gross income” which appears in the Real Property Tax Credit Act (the so-called "circuit-breaker” credit) codified in Article 81, § 12F-1 of the Annotated Code of Maryland. Specifically, appellant, the State Department of Assessments and Taxation, asks us to decide whether the return of monies, formerly withheld from a federal employee’s earnings and currently repaid as pension benefits constitutes "gross income” within the meaning of the Act.

The facts are not in dispute. Philip M. Glick and his wife Rose, appellees, live at their home in Montgomery County, Maryland. Philip Glick is a retired federal employee. He has received a retirement pension from the Civil Service Retirement Fund since 1971. In 1974, when the Property Tax Credit Program went into effect, the Fund paid appellee Philip Glick $17,986. At that time they notified him that this sum included the last of his past contributions to the Fund, $7,581.

In August 1975, appellees filed an. application for a property tax credit with the Department of Finance of Montgomery County. Appellees stated that Philip Glick’s gross income for 1974 included $10,405 which he had received as a pension; they stated that he had also received a repayment of $7,581 in that tax year from the Civil Service Retirement Fund, but that this represented a return of his contributions to the Fund. Appellees denied that the $7,581 constituted "income” when received in 1974.

The Montgomery County Finance Department disagreed. In September 1975, they ruled that both the $10,405 received as a pension and the $7,581 received as a repayment of past contributions constituted "income” for purposes of the Act. The Department then applied the statute’s eligibility formula and ruled that appellees did not qualify for a property tax credit.

Appellees appealed the County Finance Department’s ruling to the Property Tax Assessment Appeal Board of Montgomery County. In June 1976, the Board reversed the Finance Department’s ruling, and directed the county not to include the repayment of $7,581 in its calculation of appellees’ 1974 "gross income” under § 12F-1 of the Act. In August 1976, the State appealed the Board’s decision to the Maryland Tax Court. A trial de novo was held in June 1977, and in February 1978, the Tax Court issued an Order and Memorandum of Grounds for Decision affirming the Board’s ruling. The State then appealed the Tax Court’s Order to the Circuit Court for Montgomery County. On November 1, 1979, the circuit court affirmed the Tax Court’s decision. This appeal followed.

Before turning to consider the question for decision, we think it advisable to comment upon the proper standard of review in cases such as this. Appellees assert that judicial review of decisions of the Maryland Tax Court is, by statute, severely limited. The circuit court noted as much in delivering its ruling from the bench, citing Article 81, § 229 O of the Annotated Code of Maryland to the effect that the "circuit court... shall affirm the Tax Court order if it is not erroneous as a matter of law and if it is supported by substantial evidence appearing in the record.” And, in Comptroller v. Diebold, Inc., 279 Md. 401 (1977), the Court of Appeals stated, at 407:

"We have held that the standard by which a result reached by the Tax Court is reviewed is whether a reasoning mind reasonably could have reached the factual conclusion which that agency reached, Fairchild Hiller Corp. v. Supervisor of Assessments, 267 Md. 519, 298 A.2d 148, 149 (1973). The application of this test need not and must not be either judicial fact finding or a substitution of judicial judgment for agency judgment.”

And see Comptroller v. Mandel Re-election Com., 280 Md. 575 (1977).

But, as we have said, the facts here are undisputed; and the State does not so much challenge the correctness of the Tax Court’s fact-finding, but rather the correctness of its (and the circuit court’s) interpretation of the definition of "gross income” contained in the statute. As such, the State presents a question of law, and the scope of our review is clear. The general proposition is contained in 73 C.J.S. Public Administrative Bodies and Procedure § 228, from which we quote:

"On a judicial review of an order, decision, or award of an administrative officer, board, commission, or agency, questions of law are open for consideration and determination. An administrative agency’s conclusion of law, or its determination, or decision of a question of law, is subject to judicial review; and on such review the court is free to substitute its own judgment for, and is not bound or concluded by, the judgment or conclusion of the agency. The reviewing court may correct errors of law; ahd it may interfere where the administrative agency has violated, misconceived, improperly construed, or failed to follow, the law, or has proceeded on an erroneous theory of law, or committed a material error of law.... A reviewable question of law may exist where the facts are not in dispute, even though the administrative agency has erroneously labeled or styled its conclusion thereon a finding of fact. So, too, the lack of substantial conflict in the evidence may render a question, which is ordinarily one of fact for a board or commission, one of law for a court. The legal effect of evidence and the ultimate conclusions drawn by an administrative agency from the facts, as distinguished from its findings of primary or evidential facts, are questions of law for the reviewing court.” (Footnotes omitted.)

And see generally Snowden v. Mayor and C.C. of Balto., 224 Md. 443 (1961) (Court will correct illegal action of administrative agency); Gower v. Davis Coal and Coke Co., 197 Md. 52 (1951) (administrative finding based upon erroneous conception of law "clearly reviewable”); and Brown v. Md. Unemp. Comp. Board, 189 Md. 233 (1947) (though facts undisputed, implications of fa5ts constitute question of law). Having these precepts in mind, we turn to address the sole issue in this appeal.

The so-called "circuit-breaker” tax credit, codified as Article 81, § 12F-1 of the Annotated Code of Maryland, was enacted by the General Assembly during the 1974 legislative session. Section (a) provides that,

"For taxable year 1975-1976 and each year thereafter, there is created a program of property tax credits from real property taxation imposed by the State, counties, Baltimore City, municipal corporations and special taxing districts for certain homeowners by reason of income.”

The tax credit is derived by applying the formula contained in section (c); the exact amount of the homeowner’s credit is established through comparison of his financial condition (as measured by "gross income”) with his property tax bill. "Gross income” is defined in section (b) (2) as follows:

"'Gross income’ means total income from all sources, for the calendar year immediately preceding the taxable year, whether or not included in the definitions of gross income for federal or State tax purposes, including but not limited to benefits under the Social Security Act or Railroad Retirement Act as these acts may be amended from time to time, the aggregate of gifts in excess of $300, alimony, support money, non-taxable strike benefits, public assistance received in cash grants, pensions, annuities, unemployment insurance benefits, and workmen’s compensation benefits. Gross income shall include the net income received from business, rental, or other endeavors but in no event shall a loss from business, rental or other endeavors be used in the determination of gross income.”

Essentially, appellees argue that the Maryland Property Tax Credit Act makes "income” the controlling determinant of eligibility; that "income” is a term of art; that it is not the same thing as money, or cash flow, or a return of what one has himself paid out but to which one remains entitled. Appellees direct our attention to a body of cases and other authority construing "income,” beginning with the United States Supreme Court’s decision in Eisner v. Macomber, 252 U.S. 189 (1920), wherein the Court stated, at 207, "Income may be defined as the gain derived from capital, from labor, or from both combined,” provided it be understood to include profit gained through a sale or conversion of capital assets.” Appellees insist that although they are not relying on the fact that both Federal and State income tax laws exclude the repayments in question from gross income, nevertheless they are relying on the fact that, by the terms of the Act itself, "gross income” is defined to include "income from all sources....” And thus, by indirection, they insist that the definition of "income” referred to earlier must control. We find this argument unpersuasive. We think that what must control here, as in other cases of statutory interpretation, is the real and actual intention of the Legislature as expressed in the terms of the statute, taken as a whole. The Court of Appeals expressed this in greater detail in Comptroller v. Mandel Re-election Com., supra, at 578-80:

"Principles relative to statutory construction were summed up for the Court by Chief Judge Murphy in State v. Fabritz, 276 Md. 416, 348 A.2d 275 (1975), cert. denied, 425 U.S. 942 (1976):
'The cardinal rule in the construction of statutes is to effectuate the real and actual intention of the Legislature. Purifoy v. Merc.-Safe Dep. & Trust, 273 Md. 58, 327 A.2d 483 (1974); Scoville Serv., Inc. v. Comptroller, 269 Md. 390, 306 A.2d 534 (1973); Height v. State, 225 Md. 251,170 A.2d 212 (1961). Equally well settled is the principle that statutes are to be construed reasonably with reference to the purpose to be accomplished, Walker v. Montgomery County, 244 Md. 98, 223 A.2d 181 (1966), and in light of the evils or mischief sought to be remedied, Mitchell v. State, 115 Md. 360, 80 A.2d 1020 (1911); in other words, every statutory enactment must be "considered in its entirety, and in the context of the purpose underlying [its] enactment,” Giant of Md. v. State’s Attorney, 267 Md. 501 at 509, 298 A.2d 427, at 432 (1973). Of course, a statute should be construed according to the ordinary and natural import of its language, since it is the language of the statute which constitutes the primary source for determining the legislative intent. Grosvenor v. Supervisor of Assess., 271 Md. 232, 315 A.2d 758 (1974); Height v. State, supra. Where there is no ambiguity or obscurity in the language of a statute, there is usually no need to look elsewhere to ascertain the intention of the Legislature. Purifoy v. Merc.-Safe Deposit & Trust, supra. Thus, where statutory language is plain and free from ambiguity and expresses a definite and sensible meaning, courts are not at liberty to disregard the natural import of words with a view towards making the statute express an intention which is different from its plain meaning. Gatewood v. State, 244 Md. 609, 224 A.2d 677 (1966). On the other hand, as stated in Maguire v. State, 192 Md. 615, 623, 65 A.2d 299, 302 (1949), "[a]dherence to the meaning of words does not require or permit isolation of words from their context '* * * [since] the meaning of the plainest words in a statute may be controlled by the context...” In construing statutes, therefore, results that are unreasonable, illogical or inconsistent with common sense should be avoided whenever possible consistent with the statutory language, with the real legislative intention prevailing over the intention indicated by the literal meaning. B. F. Saul Co. v. West End Park, 250 Md. 707, 246 A.2d 591 (1968); Sanza v. Md. Board of Censors, 245 Md. 319, 226 A.2d 317 (1967); Height v. State, supra.' Id. at 421-22.”

Having considered the definition of "gross income” as contained in Article 81, § 12F-1 (b) (2) "reasonably,” and "with reference to the purpose to be accomplished” by enactment of the circuit-breaker tax credit, we are convinced that the term was meant to encompass the total amount of the payments which appellee Philip Glick received from the Civil Service Retirement Fund during 1974; that is to say, including the $7,581 in question. For purposes of application to this case, we find that the language of the statute is not ambiguous, that it expresses a definite and sensible meaning, and that the legislative intent is plain. At the General Assembly’s insistence, Article 81, § 12F-1 (b) (2) contains not only the general instruction that gross income shall be defined without reference to Federal or State tax statutes ("gross income means total income ... whether or not included in the definitions of gross income for federal or State tax purposes ...”). It also defines gross income by specific reference to certain receipts which are undoubtedly excluded in full from income taxation, as for example under the Federal income tax statute and accompanying regulations: Social Security benefits, Railroad Retirement Act benefits, and "the aggregate of gifts in excess of $300.” Taken as a whole, we think the language of the statute evinces a clear design that all monies accruing to the household during the levy year be included in the homeowner’s gross income for purposes of determining his eligibility for a tax credit. There is absolutely nothing in this language which authorizes the exclusion of paid-in capital from the amount of "pension” payments received, simply because this practice is followed in computing gross income for Federal tax purposes; and we shall not "read in” such a provision.

We reach our result by construing the statute according to the ordinary and natural import of its language. But even if we were to concede, for purposes of argument, appellees’ assertion that the language of the statute is ambiguous or obscure (a concession which would oblige us to look elsewhere to ascertain legislative intent), our result would not change. In our view, the legislative history of Article 81, § 12F-1 (b) (2) since its adoption constitute incontrovertible proof that the statutory language was chosen deliberately, not inadvertently. The predominant theme of that history is the Legislature’s insistence that the definition of "gross income” remain all-encompassing. Between the 1975 and 1979 legislative sessions not less than 12 Senate Bills, and 15 House Bills, have been offered for the purpose of amending the definition of gross income in order to provide exclusions for one or another of the types of income listed therein. Indeed, during the 1975 legislative session two bills were introduced specifically "[to exclude] benefits received under a federal retirement system from the • definition of gross income,” and "[to prohibit] income from U. S. Civil Service Pensions to be included in gross income for the purposes of certain homeowners’ tax credits.” Almost without exception,* none of these bills was ever favorably reported out of the committees to which they had been referred. Manifestly, then, the Legislature intends that Article 81, § 12F-1 (b) (2) shall mean exactly what it says: "gross income means total income....” It is not for this Court to hold otherwise.

Finally, appellees suggest that it is in some sense "unfair” that they should have to declare as gross income that part of appellee Philip Glick’s pension representing a return of his contributions to the retirement fund. They argue that these contributions were already counted as part of Philip Glick’s taxable income once, when the monies were deducted from his salary and credited to his account with the Fund. We take it that by making this argument appellees mean to imply that to include this return of capital in gross income here is to "tax” it "twice.”

But Article 81, § 12F-1 is not a tax; rather, the statute grants a credit against a tax on real property which the homeowner would otherwise be obliged to pay: it is a relief from a burden which must otherwise be borne by homeowners. And the calculation of "gross income” is not undertaken in order to impose a burden on the taxpayer-homeowner; it is instead undertaken to provide a measure of the homeowner’s ability to pay a tax which, but for the statutory credit, would otherwise be due and owing. Therefore, if the prior tax treatment of current receipts is disregarded in the calculation of "gross income” under the statute, it is for the simple reason that such a consideration is irrelevant to the question of ability to pay.

In light of the foregoing, we think the acceptance of appellees’ position would inevitably lead to the very sort of "unfairness” about which they now complain. To give an example, former Federal employees such as appellee Philip Glick would be treated as a favored class, distinct from the other retirees receiving Social Security benefits. Both Federal employees, who contribute to the Civil Service Retirement Fund, and other workers, who have Social Security deductions withheld from their salaries, must pay income tax on those withheld contributions or deductions. Nevertheless, while recipients of Social Security benefits cannot have the return of former withholdings excluded from the calculation of § 12F-1 (b) (2) "gross income,” appellees would have us hold that he and other Federal pensioners are different and have this right. There is no rational basis for this distinction; it is contrary to both the statute’s plain meaning and the Legislature’s expressions of intent subsequent to the statute’s enactment. Therefore, construing the statute according to the ordinary and natural import of its language, we hold that the total amount of pension payments received by appellees in 1974 constitutes "gross income” within the meaning of the Act.

Judgment reversed.

Appellees to pay the costs.

      . The United States Civil Service Retirement Act, 5 U.S.C. § 8331, et seq., required that appellee Philip Glick contribute to the retirement fund during the term of his employment with the Federal Government, between 1933 and 1953 and between 1967 and 1973. The Act also provides that if an employee resigns or dies before he has retired from the U. S. Civil Service his total contribution is to be repaid to him or to his designated survivor or to his estate, with interest from the date of original contribution.
      Although the $7,581 in question was paid into the Fund as a series of deductions from his salary, appellee was nevertheless obligated to report these deductions as part of his taxable income, as and when the deductions were credited to his account.
      This amount, $7,581, when returned to him in 3974, represented the last of the monies which he had paid into the Fund. Both parties agree that the remainder of the 1974 payment ($10,405) and all future pension payments constitute income per se, as distinct from a return of capital.

      . Both parties to this appeal agree that if the $7,581 in question were not "income” under the Act, then appellees are entitled to the tax credit requested.

      . Laws of Maryland, 1974, ch. 750. Repealed and reenacted, Laws of Maryland, Special Session 1975, ch. 1; repealed, reenacted and substantially recodified by Laws of Maryland, 1978, ch. 176. Statutory references herein pertain to § 12F-1 as in force and effect at all times relevant to this appeal.

      . 26 U.S.C. § 61; Reg. § 1.61-1; Rev. Rui. 70-217, 1970-71 CB 12.

      . 26 U.S.C. 8 72; Reg. 8 1.72-13; Rev. Rui. 70-343, 1970-72 CB 4.

      . 26 U.S.C. 8 102; Reg. 8 1.102-l(a).

      . S.B. 277, Maryland Senate Journal, 1975, p. 276 (". .. excluding benefits received under a federal retirement system from the definition of gross income.”); S.B. 374, Maryland Senate Journal, 1975, p. 421 ("... prohibiting income from U.S. Civil Service Pensions to be included in gross income for the purposes of certain homeowners’ tax credits.); S.B. 91, Maryland Senate Journal, 1976, p. 105 ("... providing that the definitions of combined income under the property tax credit programs .. . mean only the combined gross income of the homeownerls] ...”); S.B. 753, Maryland Senate Journal, 1976, p. 853 ("... excepting certain benefit payments under the Social Security Act or Railroad Retirement Act from the definition of gross income; and excepting certain contributions of certain persons to the support of their parent homeowners from the definition of combined income.”); S.B. 46, Maryland Senate Journal, 1977, p. 120 ("... providing that the definitions of combined income under the property tax credit programs ... be changed to mean only the combined gross income of the homeownerls] .. .”); S.B. 73, Maryland Senate Journal, 1977, p. 132 ("... excepting certain benefit payments under the Social Security Act or Railroad Retirement Act from the definitions of gross income; and excepting certain contributions of certain persons to the support of their parent homeowners from the definition of combined income.”); S.B. 378, Maryland Senate Journal, 1977, p. 401 (''... excluding from the definition of combined income ... certain benefits received under the Social Security Act, as amended.”); S.B. 785, Maryland Senate Journal, 1977, p. 1020 ("... excepting the benefits of the Social Security Act and the Railroad Retirement Act from the definition of gross income ... when these benefits exceed a certain percentage of gross income.”); S.B. 786, Maryland Senate Journal, 1977, p. 1021 ("... changing the definition of gross income for purposes of the circuit breaker tax credits for certain taxpayers.”); S.B. 51, Maryland Senate Journal, 1978, p. 127 .. providing that the definitions of combined income ... be changed to mean only the combined gross income of the homeownerls]...”); S.B. 861, Maryland Senate Journal, 1978, p. 2082 ("... modifying the definition of combined income for certain property tax credit purposes.”); S.B. 446, Maryland Senate Journal, 1979, p. 396 ("... providing that Social Security and Railroad Retirement benefits are not included in gross income for purposes of determining certain property tax credits; . . .”).

      . H.B. 55, Maryland House Journal, 1975, p. 91 ("... changing and adding certain definitions for the purpose of applying certain real property tax credits; ...”); H.B. 56, Maryland House Journal, 1975, p. 92 ("... excluding benefits received under the Social Security Act or Railroad Retirement Act from "gross income” ...); H.B. 1339, Maryland House Journal, 1975, pp. 1276-77 ("... excluding from the definition of "gross income” ... certain payments of military disability benefits.”); H.B. 89, Maryland House Journal, 1976, p. 159 (". .. excluding benefits received under the Social Security Act or Railroad Retirement Act from "gross income” ...”); H.B. 153, Maryland House Journal, 1976, p. 190 ("... excluding benefits received under the Social Security Act and Railroad Retirement Act from the definition of "gross income” in the property tax credit program for elderly homeowners.”); H.B. 606, Maryland House Journal, 1977, p. 427-28 (.. . excluding from the computation of "gross income” in the property tax credit program certain benefits under the Social Security and Railroad Retirement Acts.”); H.B. 1226, Maryland House Journal, 1977, p. 987 ("... removing benefits received under the Social Security Act or the Railroad Retirement Act from the definition of "Gross Income” as used in certain property tax credit programs.”); H.B. 1507, Maryland House Journal, 1977, p. 1255 ("... excluding from the definition of combined income the income of certain full-time students.”); H.B. 862, Maryland House Journal, 1978, p. 572 ("... excluding benefits received under the Social Security Act from the definition of gross income used in determining eligibility for certain property tax credits.”); H.B. 1003, Maryland House Journal, 1978, p. 720 (". . . excluding certain benefits from the definition of gross income from certain property tax credit programs.”); H.B. 1004, Maryland House Journal, 1978, p. 720 ("... excluding from the computation of "gross income” ... certain benefits under the Social Security and Railroad Retirement Acts.”); H.B. 1005, Maryland House Journal, 1978, p. 720-21 (". . . excluding certain benefits from the definition of gross income from certain property tax credit programs.”); H.B. 172, Maryland House Journal, 1979, p. 149 ("... excluding certain benefits from the definition of gross income for purposes of the homeowners’ tax credit program.”); H.B. 846, Maryland House Journal, 1979, pp. 2397-98, 2414-16 ("... excluding from the definition of gross income certain income tax refunds with regard to those provisions which concern property tax credits for homeowners.”); H.B. 923, Maryland House Journal, 1979, p. 665 (“... exempting income from certain sources when determining eligibility for the Homeowner’s Property Tax Credit Program.”).

      . S.B. 277, Maryland Senate Journal, 1975, p. 276, see n. 7, supra.

      . S.B. 374, Maryland Senate Journal, 1975, p. 421, see n. 7, supra.

      . H.B. 846, Maryland House Journal, 1979, p. 589, et seq. ("... excluding from the definition of gross income certain income tax refunds with regard to those provisions which concern property tax credits for homeowners.”). Passed by the House of Delegates (116-0) and sent to the Senate, Maryland House Journal, 1979, pp. 2676-77. Passed by the Senate (47-0), Maryland Senate Journal, 1979, p. 3189. Approved May 29,1979, ch. 590, II Laws of Maryland, 1979, pp. 1658-59, effective July 1, 1979.


text:
    ROGELIO EASTMAN v. STATE OF MARYLAND
    [No. 164,
    September Term, 1980.)

      Decided November 10, 1980.

    The cause was argued before Moylan, Lowe and Weant, JJ.

      Victoria Salner Keating, Assistant Public Defender, with whom were Alan H. Murrell, Public Defender, and Nancy Louise Cook, Assistant Public Defender, on. the brief, for appellant.

      Thomas P. Barbera, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Joseph A. Dugan, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

None of the three issues raised by this appeal from convictions by a jury in the Circuit Court for Prince George’s County warrants reversal.

I.

The first concern is that after appellant had failed to file a timely motion to suppress pretrial identification evidence, the trial judge declined a hearing upon an oral motion on the morning of trial. Appellant contends that his counsel’s "reasonable expectation” that the case would not be tried constituted good cause for the failure to file timely. To buttress his contention he stresses the fact that the prosecutor agreed not to object and equates that concession to our expressed belief in Baldwin v. State, 45 Md. App. 378 (1980), that counsel’s reliance upon a prosecutor’s agreement that a similar motion could be filed late constituted "good cause” under Md. Rule 736 a.

Our dicta in Baldwin was not influenced by the agreement with the State’s Attorney that he would not object; rather the "good cause” was the underlying circumstance which led the prosecutor not to object rather than the agreement itself. In Baldwin defense counsel was prepared to file his motion propitiously but was deterred at the request of the State’s Attorney who was engrossed in a prolonged murder trial and was not prepared to address the difficult issue raised by the motion. The defense in Baldwin delayed the filing solely as an accommodation to the State.

In this case the delay was not an accommodation to the State. The prosecutor’s agreement not to object was not even sought during the filing time set forth in the rule but occurred well beyond the 30 days within which the motion should have been filed. The failure to file was not remotely for prosecutorial purposes. To the contrary, the agreement not to object appears to have been an agreement not to rub salt in the already exposed wound of appellant; a gentlemanly accommodation to avoid embarrassing appellant by declining to emphasize the rule violation. Indeed, it was but a week before trial that appellant suggested his intention to move orally to suppress. The prosecutor graciously agreed not to object — and did not.

The only issue then is the "underlying circumstance” whether counsel’s

"... belief, based on a certain amount of reason, that the case would not go forward and be tried,”

constituted "good cause” to avoid the rule’s time requirements. Clearly, if such would suffice, the rule would have little or no meaning. The judge’s discretion was not abused by holding such a reflection did not constitute "good cause.”

II.

Appellant then complains that:

"In his closing argument to the jury, the prosecutor remarked:

I submit that when you take the testimony of those six honest people, and you balance it against what this individual has told you, and there has been no testimony, ladies and gentlemen, other than his, I submit to you that counsel in his opening statement to you does not present evidence in the case, and when Mr. Christian told you that Mr. Eastman did not know where he was, that is what Mr. Christian told you. No evidence has come from the stand on that, (emphasis added).

Appellant’s objection to the comment was overruled, and the prosecutor repeated the point.”

We agree with appellant that there can be no comment on a defendant’s failure to testify, Griffin v. California, 380 U.S. 609 (1965), rehearing denied, 381 U.S. 957 (1965); however, when placed in context, the prosecutor did nothing more than point out that appellant had failed to produce evidence of his lack of knowledge, as had been pronounced by counsel’s opening statement:

"We expect the evidence to show that Mr. Eastman was not arrested for these robberies until August of this year. In other words, it was a time lag of 17 months between the time of the robbery and the time that Mr. Eastman was arrested. For that reason, ladies and gentlemen, we cannot present any evidence as to the content of these crimes. Frankly, my client, when he was arrested in August of this year, could not recall what he was doing on two obscure dates in March of 1978. By the same token, ladies and gentlemen, we will not present an alibi defense, because my client, again, simply lacks the knowledge and the ability to recall as to what he was doing 17 months from the day he was arrested.”

Opening statements are to preview what is to come in the way of evidence, not to argue what may be inferred from facts not in evidence. Appellant’s counsel implicitly promised to prove that

"it was a time lag of 17 months between the time of the robbery and the time that Mr. Eastman was arrested,”

allowing the jury to infer that lapse excused the presentation of evidence

"as to the content of these crimes.”

Counsel went further and asserted the fact that his

"client, when he was arrested in August of this year, could not recall what he was doing on two obscure dates in March of 1978.”

That too was a fact to be proven, despite his declaration and explanation for not presenting "an alibi defense.”

The State’s response, emphasizing that counsel’s opening statement’s promise of evidence was not evidence, was carefully couched:

"I would submit to you that the State has presented all the evidence it can to you from six people who have told you truthfully what they observed on two days in March of 1978. The entire defense’s case has been Ronald Knight. Ronald Knight, a man who was convicted of the Uniform Narcotic Act in 1973. Shoplifting in 1973. Robbery in 1975. Robbery in 1977. Uttering in 1978. Armed robbery and use of a handgun in 1979, and two counts of forgery in 1979. All those convictions are before you, as the judge has instructed you, to let you folks know exactly how truthful this fellow is. Exactly what an honest upstanding member of our community is now proceeding to tell you.
I submit that when you take the testimony of those six honest people, and you balance it against what this individual has told you, and there has been no testimony, ladies and gentlemen, other than his, I submit to you that counsel in his opening statement to you does not present evidence in the case, and when Mr. Christian told you that Mr. Eastman did not know where he was, that is what Mr. Christian told you. No evidence has come from the stand on that.
MR. DUGAN [prosecutor]: No evidence has come from the witness stand on that point, and you are to disregard his statements.”

Unless we are willing to permit unfulfilled promises of evidence in opening statements to stand unanswered, the State cannot be totally precluded from comment. See Pierce v. State, 34 Md. App. 654, 661 (1977), cert. denied, 280 Md. 732, 734 (1977), cert. denied, 434 U.S. 907 (1977). Furthermore, with regard to a defense attorney’s comment on the absence of fingerprint evidence in a criminal case, the Court of Appeals recently held:

"While it is not incumbent upon the State to produce fingerprint evidence to prove guilt, nevertheless, where a better method of identification may be available and the State offers no explanation whatsoever for its failure to come forward with such evidence, it is not unreasonable to allow the defendant to call attention to its failure to do so.” Eley v. State, 288 Md. 548 at 554 (1980).

If it is not unreasonable to permit the defense to comment upon the State’s shortcomings in producing prosecutorial evidence, we can hardly preclude a reciprocal right for the State "to call attention” to the failure of a defendant to come forward with that which he promised to produce.

Although appellant’s failure to take the stand may have been inferable, in light of the context, such inference would have been strained indeed. A more likely inference was available in appellant’s opening statement that he would testify to why he had no alibi. There is not the slightest indication that the State was merely grasping for an opportunity to emphasize the failure to testify. To the contrary, the State carefully avoided any emphasis even by implication.

III.

Finally, appellant contends that the State should not have been permitted to impeach a defense witness by use of a prior contradictory statement because both statement and responding answers to the examination alluded to appellant’s use of drugs, which appellant feels is improper in light of Ross v. State, 276 Md. 664 (1976). The trial judge, however, perceived the problem implicit in the examination and carefully instructed the jury that the testimony was admitted only

.. to test the credibility of the witness. That is the only purpose. That is the only reason I am letting this in.
The statements that the State’s Attorney is making, or the questions that he is asking, and the answers that he is giving, does not, necessarily, mean that it’s true, and you should not accept these questions and answers as any reflection on the defendant. This is simply to test the credibility of this witness.”

Rather than reciting the testimony here to point out the relevance of the credibility cross-examination, it must suffice that we have reviewed it carefully and find no misuse of the procedure in admitting the prior statement. The trial judge perceptively and carefully provided both appellant and the State an eminently fair forum for exposition of their cases on this issue, as well as throughout the trial.

Judgments affírmed.

Costs to be paid by appellant.


author: Liss, J.,

text:
    ROBERT E. CARTER v. M.V. CONSTRUCTION CORPORATION et al.
    [No. 206,
    September Term, 1980.]

      Decided November 10, 1980.

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

      C. J. Kittredge, with whom were Welch, Murphy & Welch on the brief, for appellant.

      William J. Rowan, III, with whom were Rowan, Abell, Quirk & Quinn on the brief, for appellees.
   Liss, J.,

delivered the opinion of the Court.

This is an appeal from a judgment of the Circuit Court for Prince George’s County overruling an order of the Maryland Workmen’s Compensation Commission. Appellant, Robert E. Carter, was employed as a laborer by M.V. Construction Corporation (M.V.), appellee. The insurance carrier for M.V. was the U.S. Fidelity and Guaranty Company, also an appellee in this case.

Robert Massey, Sr. and Robert Massey, Jr. were both superintendents employed by M.V. Their duties included the supervision of construction and concrete work performed by M.V. at various jobsites. M.V.’s work, consisted of supplying concrete, pouring and finishing footings, sidewalks and curbs. The total number of laborers used in performing these services varied from forty to eighty employees depending on weather, outstanding contracts and other variables.

In September of 1977, the Masseys lived across the street from each other. The appellant was assigned to a work crew which included three other laborers, one of whom was a man named Cox. Massey, Jr. was the superintendent of this job crew. Appellant’s workday began at 7:30 a.m. It is conceded by appellant that at the time Carter was hired by M.V., transportation to and from the jobsite was not a part of the hiring contract, either in the guise of a money allowance to the employee or in the actual furnishing of transportation. M.V. furnished company trucks to both Masseys, which they were entitled to use to and from their homes to the designated work site.

The evidence indicated that a custom had developed between the Masseys and the members of their crews by which the laborers, as a convenience to them, could ride in the M.V. trucks from the Masseys’ home to the.work sites in the morning and return to the Masseys’ home at the end of the day. Massey, Sr. described the arrangement as follows:

I told none of my guys. I told them, anybody who was at my house when I left was free to go, but I didn’t run a taxi service. I didn’t take them home. I didn’t go out of my way to pick them up. I didn’t go out of my way to take them home.
Q. Let me ask you this; did you tell them if they got there by a certain time, you would take them to work?
A. Yes, they were free to ride.
Q. And also free to come back?
A. Yes.
Q. When you came home at the end of the day, what would you do with that laborer who lived two houses up? Did you let him off at your house?
A. No, I didn’t stop 'till I pulled in front of the house. I pulled up the truck and everybody got out and went their own separate ways.
Sr. testified that Cox and Carter did not come to his home every morning. He said:
Q. Now, did they [referring to Cox and Carter] go every morning to your place, do you have an apartment or house?
A. House.
Q. Did they go every morning to your house?
A. No. It depends where we were working at. If they were working, like I say, I live in Riverdale; they live in Glendale. Like for working in Columbia, then, don’t come that way. It is out of their way. They went straight to Columbia.
Q. If they didn’t know where to go to that morning, would they go to your place to get directions?
A. No. They’d never come back to get directions, because you know every day where you are going the next day.
Q. Well, this particular morning, had you ever been to the Clinton job before?
A. Yes. The day before.

M.V. executives were aware that Massey, Sr. and Jr. occasionally transported crew members to the jobsites in the M.V. trucks assigned to the Masseys. They were also aware that Cox on occasion rode with the Masseys and on other occasions used his own car to transport himself and other members of the job crews to and from the jobsites. The Masseys received no compensation from M.V. for transporting the work crews and Cox received no allowance or compensation when he used his own vehicle. Most of the crew members walked to the Masseys’ home, but the evidence was that Cox would drive directly to the job four to six times per month without first going to the Masseys. Cox and Carter, the appellant, lived at the same address and were brothers-in-law of Massey, Sr. It was also agreed that Cox and Carter would occasionally stop at Massey, Sr.’s home for a cup of coffee before going to work. None of the other members of the work crews were given that privilege.

On September 19, 1977, the crew members had been working at a site in Prince George’s County, Maryland. They had gone that morning in the Massey trucks from the Massey homes and had returned in the vehicles at the end of the day. All of the crew members knew at that time that they were to return the next day to the jobsite where they had worked on September 19th. On the morning of September 20, Cox drove his car to Massey, Sr.’s home. Carter was asleep in the back of Cox’s car. Cox went into Massey, Sr.’s home for a cup of coffee. Cox decided to drive to the job in his own car, woke Carter, and Carter then left Cox’s car to permit three other members of the work crew to get in. Carter then sat in the front seat of Cox’s car. Massey, Sr. left his home in the M.V. truck followed by Cox. Both vehicles entered the Beltway where Cox’s vehicle was involved in an accident with another vehicle. The accident occurred approximately one-half hour before Carter was due at work. As a result, the appellant sustained serious injuries. Carter filed a claim with the Maryland Workmen’s Compensation Commission which, after a hearing, concluded that the appellant sustained an accidental injury arising out of and in the course of his employment. On appeal, the Circuit Court for Prince George’s County reversed the Commission and held that the Massey custom of transporting M.V. employees to work in the M.V. vehicles was merely a courtesy falling within the "coming and going” rule which generally precluded recovery for injuries sustained while going to or returning from work. It is from this judgment that the within appeal was taken.

The question presented by this appeal is:

Whether the trial court erred in ruling that the injury to the appellant did not occur in the course of his employment and that the "coming and going” rule was dispositive of the appellant’s claim for compensation?

The general rule in workmen’s compensation law is that injuries sustained by an employee while going to and from work do not arise out of and in the course of employment as the hazards encountered on such trips are not incident to the employer’s business. Watson v. Grimm, 200 Md. 461, 90 A.2d 180 (1952). The Court of Appeals has further refined that holding by stating that traveling upon busy highways does not subject an employee traveling to and from work to a greater degree of danger than he would be exposed to as a member of the general public; and that the hazards encountered in such travel are not incident to the employer’s business. Salomon v. Springfield Hospital, 250 Md. 150, 242 A.2d 126 (1968). The "going and coming” rule has resulted in a voluminous body of litigation from which the Court of Appeals distilled a number of exceptions to the application of the rule. These exceptions may be stated as follows:

(a) The free transportation exception
(b) The employer conveyance exception
(c) The premises exception
(d) The proximity or special hazard exception.

(a) The free transportation exception

In Ryan v. Kasaskeris, 38 Md. App. 317, 318 A.2d 294 (1977), we had before us "the free transportation” exception to the "going and coming” rule. Judge Wilner, speaking for this Court, traced the genesis of this exception to Harrison v. Central Const. Corp., 135 Md. 170, 108 A. 874 (1919), and analyzed the cases which applied the exception to a series of differing factual situations. From these decisions we stated the "free transportation” rule as follows:

[I]n terms of the "free transportation” exception to the "going and coming” rule, an injury occurring while an employee is on his way to or from work, which otherwise would be noncompensable as being the result of normal hazards unconnected with the employment, becomes compensable only if, under the terms of the employment, the employer is under some obligation to provide the transportation to the employee. It is that underlying obligation which brings the travel within the scope of the employment. Where that obligation exists, the method of carrying it out becomes irrelevant; but where it does not exist, there is no coverage under this exception. [38 Md. App. at 328-29.]

In determining whether there was an "underlying obligation, an agreement to furnish transportation,” the arrangement need not be express but may be implied from the nature, conditions, and circumstances of the employment and the custom of the employer. See Watson v. Grimm, supra, at 185. In Ryan, supra, the facts established that the employer was obligated to furnish transportation under the terms of the arrangement of employment. In Watson, supra, the employer was operating the vehicle which was involved in an accident and was held to have personal control over the acts and movements of his employees. On the other hand, we conclude that the dispositive facts in the present case make the "free transportation” exception inapplicable as the appellee never had an express or implied obligation to furnish his employees transportation as an incident to their employment. Appellant could be found to have sustained his injuries in the course of his employment only if there had been an underlying contractual commitment by the employer to furnish transportation to the employee. Under those circumstances, it would have been irrelevant whether the employer performed that obligation by supplying his own vehicle, hiring the vehicle of an independent contractor, making arrangements with a common carrier, or reimbursing employees for the cost of transportation by any means the employee might select. See Cardillo v. Liberty Mutual Ins. Co., 330 U.S. 469, 67 S. Ct. 801 (1947). In the absence of such an obligation, however, and where the employee, or his foreman, as in this case, conveyed the employees to and from the place of work as an act of courtesy, an accident occurring during the journey is not covered by the Workmen’s Compensation Act. See Watson v. Grimm, supra, at 185.

(b) The employer conveyance exception

When a journey to or from work is made in the employer’s conveyance, the journey is deemed to be in the course of employment, the reason being that the risk of employment continues throughout the journey. 1 Larson Workmen’s Compensation Section 17.10 at 4-180-189 (1978) states the principle as follows:

If the trip to and from work is made in a truck, bus, car, or other vehicle under the control of the employer, an injury during that trip is incurred in the course of employment. The justification for this holding is that the employer has himself expanded the risk of employment and the attendant risks. He has, in a sense, sent the employee home on a small ambulatory portion of the premises ....
The reason for the rule in this section depends upon the extension of risks under the employer’s control.
Another type of case in which the difference of reason must be observed is that in which a substitution for the normal mode of transportation is made. If there is nothing more in the facts than the bare availability of transportation in the employer’s conveyance, which privilege the employee foregoes in favor of using his own car, motorcycle, or bicycle, compensation has been denied. This result is consistent with the present analysis of the underlying rationale of the employer-conveyance exception, since plainly the employee is not subject to the hazards of a facility of his employer while traveling in the employee’s own vehicle. [Footnotes omitted.]

It is obvious from the facts in this case that even if it might be argued that the employer exercised control over the appellant and the members of the work crew while they occupied its conveyance under the supervision and control of its superintendent, that control no longer existed when the appellant and the other members of the work crew elected to become passengers in Cox’s vehicle. At that point, M.V. had no control over appellant, his co-workers or Cox’s vehicle. Carter was in Cox’s vehicle traveling for his own purpose, pleasure and convenience, as were Cox and the other members of the work crew.

Appellant seeks to justify his decision to ride with Cox on the date of the accident on the basis that it was dangerous for him to sit in the Massey vehicle because of loose tools in the van of the truck. The trial judge found that "the evidence does not substantiate a claim that conditions too dangerous for passengers were present in the van of the truck.”

Therefore, under the facts and circumstances in this case, we find the employer’s vehicle exception inapplicable.

(c) The premises exception

The premises exception to the "going and coming” rule is usually invoked when the employee is injured while traveling along or across a public road between two portions of his employer’s premises, whether coming or going, or pursuing the actual duties of his employment. 1 Larson Workmen’s Compensation Section 15.11 at 4-3, discusses that exception as follows:

The course of employment is not confined to the actual manipulation of the tools of the work, nor to the exact hours of work. On the other hand, while admittedly the employment is the cause of the workman’s journey between his home and the factory, it is generally taken for granted that workmen’s compensation was not intended to protect him against all the perils of that journey. Between these two extremes, a compromise on the subject of going to and from work had been arrived at, largely by case law, with a surprising degree of unanimity: for an employee having fixed hours and place of work, going to and from work, is covered on the employer’s premises. [Footnotes omitted.]

Section 15.14, at 4-34-40, involving travel between two parts of premises, states:

One category in which compensation is almost always awarded is that in which the employee travels along or across a public road between two portions of his employer’s premises, whether going and coming, or pursuing his active duties.
Since, as shown later, a parking lot owned or maintained by the employer is treated by most courts as part of the premises, the majority rule is that an injury in a public street or other off-premises place between the plant and parking lot is in the course of employment, being on a necessary route between the two portions of the premises. But if the parking lot is purely a private one, the principle of passage between two parts of premises is not available, and an employee crossing a public street to get to the parking lot is not protected. [Footnotes omitted.]

The Court of Appeals has applied the "premises” exception to those cases involving parking lots contiguous to the company premises. As the parking lot is generally owned, maintained and controlled by the employer, it is treated as a part of the employer’s premises and includes the public street or other off-premises areas between the plant and the parking lot which encompass the necessary route between the actual premises and the parking area. See Taylor v. Black & Decker Mfg. Co., 258 Md. 605, 267 A.2d 81 (1970); Proctor-Silex Corp. v. DeBrick, 253 Md. 477, 252 A.2d 800 (1969).

Appellant seeks to stretch the premises exception to include the Masseys’ private homes and to contend that these homes were an employment site under the control and maintenance of the employer, M.V. The appellant’s argument is that the work crews were required to assemble each morning at the Massey homes for job assignments and/or job changes. There was evidence to the contrary: Massey, Sr. testified that the employees knew the day before where they were to work the following day. On the specific date of the accident, it is uncontradicted that the workmen knew they were returning to the same jobsite because the work had not been completed the day before. The trial judge’s rejection of the employment premises theory was supported by legally sufficient evidence, the credibility of which was for the trier of the facts. See Schilling v. Waller, 243 Md. 271, 220 A.2d 580 (1966); Miller v. Mueller, 28 Md. App. 141, 343 A.2d 922 (1975).

(d) The proximity or special hazard exception

Finally, the proximity or special hazard exception to the "going and coming” rule is thoroughly discussed in Wiley Mfg. Co. v. Wilson, 280 Md. 200, 373 A.2d 613 (1977). There it was held the proximity rule applies in those cases involving accidents which occur at a point where the employee is within the range of danger particularly associated with his employment. There are two requirements for the application of this rule: (1) there must be a special hazard at the off-premises point; and (2) there must be a close association of the access route with the premises so far as "coming and going” are concerned. In identifying the "special hazard” element required by the proximity rule, the Court of Appeals stated there must be a peculiar and abnormal exposure to a common peril beyond that to which the general public was subjected. See Pariser Bakery v. Koontz, 239 Md. 586, 212 A.2d 324 (1965); Maryland Paper Products v. Judson, 215 Md. 577, 139 A.2d 219 (1958). There was no evidence in this case that the appellant was subjected to any special hazard which would make the proximity rule controlling.

The trial court concluded that the appellees had met their burden of proof in justifying its reversal of the finding of the Workmen’s Compensation Commission. We do not find that the trial judge was clearly erroneous in his conclusion.

Judgment affirmed; costs to be paid by appellant.


text:
    JOSEPH D’ANNA, JR. v. SECRETARY OF PERSONNEL
    [No. 211,
    September Term, 1980.]

      Decided November 12, 1980.

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

      Richard D. Neidig, with whom were Reese & Carney on the brief, for appellant.

      James F. Truitt, Jr., Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, and Charles R. Taylor, Jr., Assistant Attorney General, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Asking for a declaratory judgment in the Baltimore City Court, Joseph D’Anna, Jr. contended that State Employees Personnel Regulation 06.01.01.13 (hereafter, Rule .13) was in conflict with the legislative scheme established in the Merit System Law, Md. Code, Art. 64A, specifically §§ 31, 18 (c), 18 (g) and 22 (b). Appellant contends here, as he did below, that the regulation providing for an employee’s promotion without competitive examination — by reclassification of a position — contradicts the legislative intent that all positions under the State Merit System be filled by examination.

By a written opinion the trial judge perceptively and analytically reached the opposite conclusion. Appellant contends, however, that the trial court failed to apply rules of statutory construction which he feels were appropriate.

"The cardinal rule to be applied in the construction of Maryland statutes is to ascertain the intention of the Legislature and to effectuate the legislative intention. Casey Development Corp. v. Montgomery County, 212 Md. 138, 129 A.2d 63 (1957); Maryland Medical Service, Inc. v. Carver, 238 Md. 466, 209 A.2d 582 (1965); Guy v. Director of Patuxent Institute, 279 Md. 69, 367 A.2d 946 (1977). First, the Court of Appeals and this Court have repeatedly directed that the intention of the Legislature must be sought in the first instance in the words of the statute. Board of Supervisors of Elections of Baltimore City v. Weiss, 217 Md. 133, 141 A. 2d 734 (1958); Kimbrough v. Giant Food, Inc., 26 Md. App. 640, 339 A. 2d 688 (1975); Mauzy v. Hornbeck, 285 Md. 84, 400 A.2d 1091 (1979). Second, where a law, such as the Merit System Law, has various parts, provisions, or sections, it has been a long-standing and accepted rule of statutory construction that all parts, provisions, or sections of a law should be read, considered, or construed together so that all of its parts harmonize with one another and are consistent with its general object and scope and so as to give effect, if possible, to all of its parts. Thomas v. Police Commissioner of Baltimore City, 211 Md. 357, 127 A.2d 625 (1957); Thomas v. State, 227 Md. 314, 353 A.2d 256 (1976); Maguire v. State, 192 Md. 615, 65 A.2d 299 (1949); Fisher v. Bethesda Discount Corp., 221 Md. 271, 157 A.2d 265 (1960). The third rule of statutory construction to be applied in determining the intention of the Legislature is that the Court should consider the object or purpose to be attained by the statutes in question and the evils or mischief sought to be remedied, and the Courts should construe the law so as to carry out, effectuate, or aid in its general purposes and policies, thereby suppressing the mischief and advancing the remedy. State Department of Assessments and Taxation v. Ellicott-Brandt, Inc., 237 Md. 328, 206 A.2d 131 (1965); State v. Fabritz, 276 Md. 416, 348 A.2d 275, on remand 30 Md. App. 1, 351 A.2d 477, cert. den. 425 U.S. 942, 96 S. Ct. 1680, 48 L. Ed. 2d 185; Prince George’s County v. Bahrami, 33 Md. App. 644, 365 A.2d 343 (1976); Cooley v. White Cross Health and Beauty Aid Discount Centers, Inc., 229 Md. 343, 183 A.2d 381 (1962); Department of Tidewater Fisheries v. Sollers, 201 Md. 603, 95 A.2d 306 (1953); Mackie v. Mayor and Commissioners of Town of Elkton, 265 Md. 410, 290 A.2d 500 (1972); Liquor Dealers Credit Control, Inc. v. Comptroller of Treasury, 241 Md. 656, 217 A.2d 571 (1966); Chambers v. State, 6 Md. App. 339, 251 A.2d 30 (1969); Parkinson v. State, 14 Md. 184 (1859).”

While appellant has picked selectively from the multitude of guidelines judicially established for gleaning legislative intent, there is one rather obvious consideration that he has overlooked. The regulation which he contends is in conflict with the legislative scheme was itself approved by the Legislature, at least sub silentio, without any recognition of a conflict.

Rule .13 was published in the Maryland Register on August 31, 1977, and became effective on October 21, 1977. At that time, Md. Code, Art. 40, § 40A (f) provided that at least 45 days prior to the adoption, amendment, or repeal of any rule, regulation or standards by any of the several departments, boards, commissions or other agencies of the executive branch, the rule, regulation or standard shall be submitted to the Joint Standing Committee on Administrative, Executive and Legislative Review (AELR) of the General Assembly. That committee was charged with reporting to the General Assembly, as well as to the Legislative Council, any recommendation for appropriate legislative action necessary to modify, change or reverse any rule, regulation or standard which the committee has considered. Art. 40, § 40A (e).

The proposed regulation had been sent to the AELR committee on August 16,1977, and the 1977 Interim Report of the committee to the General Assembly, dated November 1, 1977, contained no recommendation for "appropriate legislative action” in regard to Rule .13; nor did it indicate in any way that the regulation should have been modified, changed or reversed. When the Legislature charges itself directly, not only with the responsibility to review each regulation as enacted, but also to consider precisely the possible conflicts with its own scheme of things, with which appellant has charged the regulation here, we must infer that the AELR committee has performed its statutory responsibility. In the absence of critical comment, a legal presumption arises that the regulation does not conflict.

The burden to rebut that presumption falls upon he who asserts the conflict, and as pointed out by the well-reasoned opinion of Judge Joseph H. H. Kaplan, appellant has failed to meet that burden. We adopt that opinion and append it here as reflective of our own analysis.

Judgment affirmed.

Costs to be paid by appellant.

MEMORANDUM OPINION AND ORDER

Petitioner requests a declaratory judgment as provided for in Article 41, Section 249 (Administrative Procedure Act) of the Annotated Code of Maryland to determine the validity of State Employees Personnel Regulation 06.01.01.13 (hereinafter "Rule .13”), which provides that an employee within the State Merit System may be promoted without requiring that the employee be on an eligible list for that position established by competitive examination. Petitioner argues that this regulation conflicts with the legislative intent that all positions shall be filled by examination. Petitioner further contends that the Secretary of Personnel (hereinafter "Secretary”) had exceeded his authority by promulgating a regulation which is in conflict with the statute. A hearing was held before this Court on January 2, 1980, at which time testimony was taken, documentary evidence presented and arguments on behalf of Petitioner and Respondent were heard.

Article 64A, Section 18(e), Promotions, provides:

"(e) Promotions. — Promotion is a change from one class to another class with a higher maximum compensation, and vacancies shall be filled by promotion as far as is consistent with the best interests of the classiffed service, in the judgment of the Secretary... ."(emphasis added)

Rule .13, Statement of Duties and Responsibilities of Positions, provides in pertinent part:

"C. Documentation.

"(1) When additional duties are assigned to a filled position that may warrant its reclassification and there is more than one employee in an organizational unit who meets all requirements of the job specification for the prospective higher class, documentation shall be retained indicating the reasons for assigning these additional duties to the employee holding the position.

"(2) An appointing authority may promote from within an organizational unit a qualified candidate who is the incumbent in a position that is reclassified without requiring that the qualified candidate be on an eligible list for the particular classification, provided pertinent documentation is retained.

"(3) Documentation for compliance with this regulation shall include:

"(h) Justification for assignment of additional duties or request for promotional reclassiñcation for the specific individual (justifícation may include experience, training, work performance, seniority, or the fact that no other competition exists for the job);

E. Any action taken under Section C(l) and (2), above, where the employee does not meet all of the requirements of the job specification, will be voided by the Department of Personnel.” (e mphasis added)

The language of Section 18(e) grants the Secretary authority to fill vacancies "by promotion as far as is consistent with the best interests of the classified service, in the judgment of the Secretary.” After being provided with general standards in Section 18(e) of Article 64A, the Secretary has exercised discretion in promulgating Rule .13. Promulgation of regulations has long been recognized as the proper function of administrative agencies. Comptroller of the Treasury v. M.E. Rockhill, Inc., 205 Md. 226, 197 A.2d 93 (1954). The Court’s review of such action is limited to a determination of whether the agency was acting within its legal boundaries. The Court cannot substitute its judgment for that of the agency. Department of Natural Resources v. Linchester Sand & Gravel Corp., 274 Md. 211, 334 A.2d 514 (1975).

Rule .13 permits an appointing authority to promote a candidate who is not on an eligible list provided pertinent documentation is retained. The documentation must include justification for the promotion, which may include experience, training, work performance, and seniority. The requirements of Rule .13 are consistent with Section 18(a), which provides in pertinent part:

"(a) Form and character of examinations. — Examinations ... may be written or oral or in the form of a demonstration of skill or any combination of these ... Any investigation of training and experience and any tests of technical knowledge, manual skill or physical fitness that in the judgment of the Secretary serves to this end may be employed.

This Section gives the Secretary broad discretion in the conduct of examination. The documentation required by Rule . 13 is an "investigation of training and experience” permitted by Section 18(a). The employment record of the employee who is a candidate for promotion is examined to determine if he or she has the required job skills. If the appropriate documentation is provided, the regulation permits the appointing authority to appoint the employee in favor of an applicant from the eligible list. If not, the employee will not be promoted. Or, if an employee is promoted who does not meet the job specifications, the action will be voided by the Department of Personnel. Rule .13 does not give the Secretary discretion to engage in cronyism as suggested by Petitioner. It merely gives the Secretary the authority to promote qualified individuals from within the organizational units in preference to those on an eligible list. Rule .13 is plainly within the broad discretion granted to the Secretary by Section 18(e), and the Court will uphold its validity unless it can be shown that the Secretary has abused his discretion.

Petitioner cites four sections of the Merit System Statute which he argues show that all vacancies in the system must be filled by candidates from an eligible list established by competitive examination. They are Section 44, Section 31, Section 18(g) and Section 22(b).

Article 64A, Section 44, provides that one of the purposes of the Merit System Statute is "... to keep in a workable state the provisions for the promotion of employees as provided in this article . ..” This section refers only to general provisions for promotion. It gives no indication of specific procedure found in the statute and provides no support for Petitioner’s argument that candidates for promotions are to be chosen only from eligible lists.

Article 64A, Section 31, states that:

"The transfer of an employee from a position in a given class to a position in a different class for which a higher maximum rate of compensation is prescribed shall be considered as promotion and, in effect, a new appointment may be made only under the provisions governing appointments herein.”

Section 31 requires that promotions be made with the general provisions regarding appointments to the System. Section 18(e) is a specific provision regarding promotions. The rule of statutory construction is that general language in one part of a statute may be controlled by more specific phraseology in another part. Rafferty v. Comptroller of the Treasury, 228 Md. 153, 178 A.2d 896 (1962). Based on this rule, the specific language of Section 18(e) controls the general language of Section 31 and Section 18(e) prevails. Thus, Section 31 provides no support for Petitioner’s contentions.

Petitioner further argues that Section 18(g) provides the only exception to appointment from an eligible list. Section 18(g) provides:

"(g) Appointments without competitive examinations. — If, after advertising as provided by law for an applicant for a job requiring technical, professional, or administrative skills, no qualified applications are received, a person may be appointed to the job subject to a qualification test only, and not to a competitive examination.”

There is no indication in the statute that this section is to apply to promotions. This section is clearly meant to apply when promotion is not involved and no qualified candidates have been found through the competitive system. This section permits the requirements of appointments to be relaxed so that the position can be filled. Likewise, this section provides no support for Petitioner’s argument.

Section 22(b) provides that if no eligible list exists at the time, the Secretary receives a requisition for an appointment, he must call an examination. The Secretary is required to establish an eligible list within six months of the requisition. This section is generally applicable to new appointments to the merit system where no promotion of an employee is involved. It has no applicability to the validity of Rule .13. This section in no way supports the arguments of Petitioner.

For the above stated reasons, the Court finds that the Secretary, in promulgating Rule .13 has acted within the discretion granted to him by Article 64A, Section 18(e).

Accordingly, it is hereby declared this 11th day of January, 1980, that State Employees Personnel Regulation 06.01.01.13 is VALID and within the discretion of the Secretary of the Department of Personnel and is not an abuse of that discretion, and it is ORDERED that the Petition for Declaratory Judgment be and it is hereby DISMISSED with Petitioner to bear the costs of these proceedings.

Joseph H.H. Kaplan Judge

      . Some of the "multitude” have been set forth recently in In Re: James S., 286 Md. 702 (1980); Mauzy v. Hornbeck, 285 Md. 84 (1979); Frank v. Baltimore County, 284 Md. 655 (1979); Wheeler v. State, 281 Md. 593 (1977), cert. denied, 435 U.S. 997 (1978); Schweitzer v. Brewer, 280 Md. 430 (1977); Mazor v. State, Dep’t of Correction, 279 Md. 355 (1976).

      . Art. 40, § 40A was amended, effective July 1, 1980. The word "Standing” was deleted from the title of the AELR committee, and minor stylistic changes in § 40A (f) were made.

      . Art. 40, § 40A (e) has been redesignated as Art. 40, § 40A (d), and the committee now reports to the Legislative Policy Committee.