author: Moore, J.,

text:
    THE GREAT SOUTHWEST FIRE INSURANCE COMPANY v. THOMAS J. HUSS et ux., t/a The New Old Mill Inn et al.
    [No. 1323,
    September Term, 1980.]

      Decided September 1, 1981.

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

      Bruce R. Miller, with whom were Donald C. Allen and Allen, Thieblot & Alexander on the brief, for appellant.

      Doris P. Scott, with whom was Robert V. Jones on the brief, for appellees Huss. Frederick J. Green, Jr., with whom were Lord, Whip, Coughlan & Green, P.A. on the brief, for appellee Hardester Corporation.
   Moore, J.,

delivered the opinion of the Court.

This is an appeal by an insurer from a judgment against it for $29,400 in favor of its insureds in connection with a fire loss; and a cross-appeal by the insureds solely to preserve their right to proceed against their insurance broker and their premium finance company, the other two original defendants, for alleged negligence in failing to effect reinstatement of their cancelled insurance coverage after their indebtedness to the finance company for delinquent installments payments had been fully paid. As it was tried, the primary issue in the case was whether the insurer had complied with the insurance contract cancellation provisions of Md. Ann. Code art. 48A, § 486F; and it was determined that it had not. We find error and reverse the judgment against the insurer. We also reverse the judgments in favor of the broker and the premium finance company, and remand for a new trial of the insured’s claims against them.

I

Thomas and Janet Huss, the appellees and cross-appellants (plaintiffs below), purchased from The Great Southwest Fire Insurance Company (Great Southwest), appellant and cross-appellee (one of three defendants below), a fire insurance policy which insured the contents of the "New Old Mill Inn,” a tavern in Port Deposit, in the amount of $35,000. The policy became effective on October 21, 1976. Their local insurance agent for some twenty years, L. L. Logan, assisted the plaintiffs in obtaining the policy by contacting the Hardester Corporation, an excess and surplus line insurance agency, which in turn placed the insurance with America’s Insurance Center (A.l.C.), an underwriter of insurance and a general agent for Great Southwest. A.l.C. is not a party to this appeal. The premium of $1,365 was paid in full to Great Southwest in October 1976 by Tifco, Inc. (Tifco), a premium finance company through which plaintiffs financed the premium.

The Premium Finance Agreement provided for nine monthly installments commencing in November 1976 and, in the event of plaintiffs’ default, Tifco was authorized to cancel the policy.

Mr. and Mrs. Huss were late in some of their payments and when this occurred again in April 1977, Tifco, pursuant to Md. Ann. Code art. 48A, § 486F, infra, sent the plaintiffs a written notice of its intent to cancel the policy. After ten days elapsed, Tifco sent a Notice of Cancellation, effective May 12, 1977, to the Husses, Logan, Hardester, and Great Southwest. (A.I.C. received a copy of the Notice of Cancellation from Hardester and also from Great Southwest.)

Six days later, on May 18, 1977, the Husses brought their payments up to date and made the remaining payments to Tifco on time through July, 1977 when their obligation was fully discharged. On May 19, 1977, Tifco sent a Reinstatement Request to the Husses, Logan, and Hardester, but not to Great Southwest. This was a printed form requesting the insurance company to rescind the cancellation and reinstate the policy.* ** The Husses believed that the policy was then reinstated by the insurer. Both Great Southwest and A.I.C. denied at trial that they received the Reinstatement Request despite testimony by a Hardester manager that he mailed it to A.I.C. on May 20, 1977. At all events, the policy was not reinstated and the Husses were unaware of their lack of coverage until after the fire. On this appeal, there is no claim by the Husses of a wrongful refusal by the insurer to reinstate the policy, nor that there was any duty to reinstate the policy if the Reinstatement Request had been received.

Meanwhile, A.I.C. calculated the unearned premium resulting from the cancellation and forwarded to Hardester a credit memo, dated June 10, 1977, which credited Hardester with a return of the unearned portion of the premium on the plaintiffs’ policy. The unearned premium was subsequently paid by check, dated August 17, 1977, from A.I.C. to Hardester.

On July 27, the New Old Mill Inn was destroyed by a fire of unknown origin. Great Southwest did not honor the plaintiffs’ claim under the policy of insurance for the contents of the Inn because it said the policy had been cancelled, pursuant to Tifco’s notice, effective May 12, 1977, and never reinstated.

Plaintiffs then filed suit in the Circuit Court for Cecil County against Great Southwest, Hardester, and Tifco. They alleged that Great Southwest "failed, as required by statute, to forward to Tifco or plaintiffs the unearned premium ... [or] notify the plaintiffs or their agent that the Reinstatement Request was denied.” "Alternate” claims of negligence were separately alleged against Hardester and Tifco, pertaining to Great Southwest’s failure to reinstate the policy following cancellation. Hardester and Tifco filed a third-party claim against A.I.C. Great Southwest cross-claimed against Hardester and Tifco.

The court found no actionable negligence by Tifco in its handling of the Reinstatement Request and directed a verdict in its favor. Hardester’s "liability” with respect to the reinstatement of the insurance policy was not considered "actionable.” The court, however, denied Hardester’s motion for a directed verdict.

The case was then submitted to the jury on special issues as follows:

1. Was Hardester the agent of Tifco at the time it received the Credit Memo on June 10, 1977 for the purpose of forwarding and returning the premium to Tifco on Plaintiffs’ policy?

[If the answer to Question 1 was "no,” the jury was instructed to ignore Questions 2 and 3, and move on to Question 4.]

2. Did Hardester have a duty to tell the Plaintiffs of its June 10, 1977 receipt of a credit memo from the Insurer for the unearned premium?

Note: If the answer to Question 2 is "no,” ignore Question 3.

3. If the answer to Question 2 is "yes,” was Hardester’s failure to do so the proximate cause of Plaintiffs’ loss?

4. Did Hardester Corporation breach its Correspondent’s Agreement with America’s Insurance Center by failing to return the unearned premium to Tifco, Inc. for the account of the Plaintiffs prior to the loss?

5. In what amount, if any, do you find that the Plaintiffs have sustained damage to contents of the New Old Mill Inn as a result of the fire of July 27, 1977?

6. Shall interest be allowed:

(a) If so, from when?

Because the jury answered "no” to the first issue, a verdict was entered by the court in favor of the Husses and judgment in the amount of $29,400 was entered against Great Southwest in accordance with the jury’s response to issue No. 5.

The court entered a judgment nisi for Great Southwest in its cross-claim against Hardester. This was later set aside when the court granted a judgment n.o.v. for Hardester.

II

In the first of these two appeals, Great Southwest seeks a reversal of the $29,400 judgment rendered against it, and maintains principally, as it did below in unsuccessful motions for summary judgment and for a directed verdict, that the return of the unearned premium was not a condition precedent to effective cancellation by the premium finance company; and that the policy was cancelled prior to the fire loss. In the cross-appeal, seeking to preserve their claims against Tifco and Hardester should their judgment against Great Southwest be reversed, the Husses contend that the court erred in granting a directed verdict for Tifco and in entering judgment for Hardester.

A. Appeal by Great Southwest

The issue presented by Great Southwest was all-pervasive at the trial below and, indeed, has been given primary emphasis by the parties on appeal. The trial court held, as a matter of law, that Great Southwest was required to return the unearned premium to Tifco to complete the act of cancellation. The jury was instructed that unless they found that Hardester acted as agent for Tifco for the return of the unearned premium, the policy was still in effect on the date of the loss and the Husses were entitled to recover. Great Southwest argues that the policy was cancelled by the premium finance company as of May 12, 1977 (before the fire), and therefore, it was under no obligation to satisfy the insureds’ loss claim.

Great Southwest’s appeal requires us to construe the provisions of Article 48A, § 486F. These provisions, effective now and at the time of the proceedings below, are as follows:

"§ 486F. Cancellation of insurance contracts.
(a) When in connection with a premium finance agreement, a power of attorney or other authority to cancel any insurance contract or contracts on behalf of the insured is given to a premium finance company, the insurance contract or contracts may not be cancelled by the premium finance company unless such cancellation is effectuated in accordance with the following provisions:
(b) Not less than ten (10) days written notice shall be mailed to the insured of the intent of the premium finance company to cancel the insurance contract or contracts unless the defaulted installment payment is received within said ten (10) day period.
(c) After expiration of such ten (10) day period, the premium finance company may thereafter cancel by mailing to the insurer a notice of cancellation, specifying the effective date of such cancellation, and the premium finance company shall mail a copy of the cancellation notice to the insured at his last known address. No policy may be cancelled by the holder of a power of attorney because the delinquency and collection charge as provided in § 486E has not been paid.
(d) Upon receipt of a copy of such cancellation notice by the insurer or insurers, the insurance shall be cancelled effective as of the date specifíed in the notice as if the aforesaid notice of cancellation had been submitted by the insured himself, but without requiring the return of the insurance policy.
(e) All statutory, regulatory, and contractual restrictions providing that the insured may not cancel his insurance contract unless notice is given to a governmental agency, mortgagee or other third party shall apply where cancellation is effected under the provisions of this section. The insurer, in accordance with said prescribed notice where it is required to give such notice in behalf of itself or the insured, shall give notice to such governmental agency, mortgagee or other person; and it shall determine and calculate the effective date of cancellation from the day it receives the copy of the notice of cancellation from the premium finance company.
(f) Whenever an insurance contract is cancelled in accordance with this section, the insurer shall return whatever gross unearned premiums are due under the contract to the premium fínance company for the account of the insured or insureds within a reasonable time not to exceed 60 days after the receipt by the insurer of the notice of cancellation, or after the completion of any payroll audit necessary to determine the amount of premium earned while the policy was in force. The audit shall be performed within 60 days after the receipt by the insurer of the notice of cancellation.” (Emphasis added.)

The appellees Husses argue that subsection (a) of the statute requires that all of the conditions in subsections (b) through (f) in § 486F be met prior to cancellation. They rely on Government Employees Insurance Company v. Taylor, 270 Md. 11, 310 A.2d 49 (1973), a case involving the cancellation of an automobile policy by a premium finance company, wherein the Court specifically held that the return of the unearned premiums by the insurer to the premium finance company was a condition precedent to cancellation of the policy under § 486F and strict compliance with the statute was required. That case, however, was decided under the 1973 version of the statute. At that time, subsections (d) and (f) read as follows:

"(d) Upon receipt of a copy of such cancellation notice by the insurer or insurers, the insurance contract shall be cancelled as if the aforesaid notice of cancellation had been submitted by the insured himself, but without requiring the return of the insurance policy.
(f) Whenever an insurance contract is cancelled in accordance with this section, the insurer shall return whatever gross unearned premiums are due under the contract to the premium finance company effecting the cancellation for the account of the insured or insureds.”

The Court of Appeals emphasized the phrase, "effecting the cancellation” in reaching its determination. Judge Digges wrote:

"At the crux of this appeal therefore, is what act was chosen by the Legislature to effect the cancellation of an insurance policy when the directive to cancel is initiated by a premium finance company. Fortunately, to discover the Legislature’s designation as to what constitutes this terminal point in the life of an insurance policy we need look no further than subsection (f) of § 486F which reads:
'Whenever an insurance contract is cancelled in accordance with this section, the insurer shall return whatever gross unearned premiums are due under the contract to the premium finance company effecting the cancellation for the account of the insured or insureds.’

Clearly, therefore, cancellation of an insurance policy as controlled by the provisions of this law does not become operative until the unearned premium has been returned by the insurance company to the finance agency.” (Emphasis in original.)

Id. at 18,310 A.2d at 53. The Court, it appears, construed the words, "effecting the cancellation” in subsection (f) as not modifying the word, "company.” Rather, the words, ’’effecting the cancellation for the account of the insured or insureds,” were interpreted as the result of the required return of any unearned premiums.

At the next legislative session after Taylor, the General Assembly of Maryland amended § 486F (d) and (f). Very significantly, the 1974 amendment inserted in subsection (d) the words ’’effective as of the date specifíed in the notice” after the word "cancelled.” (Emphasis added.) Equally important was the deletion in subsection (f) of the phrase "effecting the cancellation,” upon which the decision in Taylor appears to have rested.

The appellees argue that the 1974 amendments to the statute "merely specified the beginning date the insurer should use in computing the 60 day period the insurer had to return the gross unearned premium.” That interpretation is off the mark. It completely overlooks the two critical amendments which we have discussed, including the deletion of the phrase underscored in Taylor.

In State v. Fabritz, 276 Md. 416, 348 A.2d 275 (1975), the Court of Appeals commented on statutory construction as follows:

"The cardinal rule in the construction of statutes is to effectuate the real and actual intention of the Legislature. ... 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. 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. 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.” (Citations omitted.) Id. at 421-22, 348 A.2d at 278.

We think it plain (following on the heels of Taylor) that the insertion by the General Assembly in 1974 of the words "effective as of the date specified in the notice” in subsection (d) and the deletion of the words "effecting the cancellation” from subsection (f), manifest a clear legislative intent that the effective date of cancellation is not when the unearned premium is returned to the premium finance company but the date specified in the Notice of Cancellation issued by the premium finance company. It is plainly stated in subsection (d) that upon receipt of the cancellation notice by the insurer, "the insurance contract shall be cancelled effective as of the date specifíed in the notice.” (Emphasis added.) The return of the gross unearned premiums by the insurer is still a requirement, under subsection (f), but it is not a condition, to the cancellation of the policy. Those conditions are set forth in subsections (b) through (e), inclusive. Subsection (f) applies after the effective date of cancellation.

Therefore, the Husses’ insurance policy was effectively cancelled as of May 12, 1977, the date specified by Tifco in its Notice of Cancellation received by the insurer. The trial court erred in holding, as a matter of law, that Great Southwest was required to return the unearned premium to Tifco before cancellation could become effective. The judgment in the Husses’ favor against Great Southwest must therefore be reversed. The appeal by Great Southwest from the judgment n.o.v. in favor of Hardester in its cross-claim need not be addressed; nor need we consider its alternative contention that the issuance of a credit memo by A.I.C. to Hardester crediting Hardester’s account with the amount of the unearned premium was a return of the unearned premium to Hardester.

B. Cross-appeal by Husses

In the second appeal herein, the Husses cross-appeal against Hardester and Tifco, although candidly stating that their "main thrust” in the appeal is in their "role as appellee to defend the lower court’s ruling as a matter of law.” We turn to the issues raised by their cross-appeal.

1. Huss v. Tifco

In their declaration the Husses pleaded an "alternate claim” against Tifco, alleging that Tifco was negligent in not sending the request for reinstatement to Great Southwest and that, by continuing to accept the premium payments "led them to believe their insurance coverage was intact.” At the conclusion of the entire case the court granted a directed verdict for Tifco on the ground that there was no primary negligence on its part and also because the plaintiffs were contributorily negligent as a matter of law.

The record discloses that a premium finance agreement with Tifco was signed by Thomas J. Huss on October 25, 1976. The amount financed was repayable in nine installments of $184.92. The interest rate was 14.5%. On the reverse side of the printed form, the insured appointed Tifco as its attorney-in-fact to cancel the policy in the event of default. As originally typed, the agreement incorrectly showed Hardester as the insurance company. The testimony, however, reveals that by November 15, 1976 Tifco learned that the actual insurer was Great Southwest and its name and address were inserted in the finance agreement by a handwritten notation. Nevertheless, the Notice of Cancellation, dated May 12, 1977, again listed Hardester as the insurance company. It is conceded, however, that Tifco mailed a copy of the Notice of Cancellation to Great Southwest.

On the other hand, the Reinstatement Request again shows Hardester Corporation, not Great Southwest, as the insurance company and L. L. Logan as the agent. Tifco failed to send the Request to Great Southwest, sending it only to Hardester, the Husses, and Mr. Logan. The copy sent to the insured contained a printed message reading in part:

"This will acknowledge your recent payment. This payment was received by Tifco after Cancellation Notice had been mailed to the insurance companies whose policies were financed under the above account.
We wish to draw your attention to that portion of the premium finance agreement that provides that payments made after cancellation notice has been sent are applied solely for reduction of the account and not for the purpose of reinstatement of insurance coverage. Without waiver of this provision, and as a courtesy to you, Tifco has advised the insurers that your account has been brought up to date, and has asked that the cancellation request be rescinded.
Tifco does not undertake nor warrant that the coverage will be reinstated, or that the insurer will respond to you as a result of our notice. We strongly urge you to contact your insurance agent or broker directly to ascertain the current status of your insurance coverage.”

The president of A.I.C. testified that if either Great Southwest or A.I.C. received the Reinstatement Request and "if there was no problem with the file,” an endorsement reinstating the policy would have been issued.

The fundamental principles which guide us in any determination of the propriety of a directed verdict were recently stated by Judge Liss for this Court in Ralph Pritts & Sons, Inc. v. Butler, 43 Md. App. 192, 403 A.2d 830 (1979), in the following language:

"The standard of appellate review to be employed where a motion for a directed verdict has been ruled upon by the lower court involves a resolution of the question as to whether there is any legally relevant and competent evidence, however slight, from which a rational mind could infer a fact in issue which, if present, would warrant a finding that the trial court invaded the province of the jury by declaring a directed verdict. In such circumstances, the case should be submitted to the jury and a motion for a directed verdict denied. Impala Platinum, Ltd. v. Impala Sales (U.S.A.), Inc., 283 Md. 296, 389 A.2d 887 (1978). Maryland Rule 552 requires submission of a case to the jury if there be any evidence, however slight, legally sufficient as tending to prove negligence, the weight and value of such evidence being left to the jury. Keene v. Arlan’s Department Store of Baltimore, Inc., 35 Md. App. 250, 370 A.2d 124 (1977); Krol v. York Terrace Bldg., Inc., 35 Md. App. 321, 370 A.2d 589 (1977). And meager evidence of negligence is sufficient to carry the case to the jury. Beahm v. Shortall, 279 Md. 321, 368 A.2d 1005 (1977).” Id. at 199-200, 403 A.2d at 835.

Judged by these standards, the conclusion is inescapable that the trial court’s action in granting a directed verdict for Tifco constituted reversible error. Although it sent a cancellation notice to the insurance company to protect its loan, it mailed the Reinstatement Request to everyone but the insurance company after the Husses brought their payments up to date. Assuming, without deciding, that there was no duty to request the reinstatement based upon the disclaimer to the insured, quoted above, it is elementary law that once Tifco undertook to request reinstatement, it was required to act with reasonable care. Kemp v. Armstrong, 40 Md. App. 542, 546-47, 392 A.2d 1161-64 (1978). Under all the circumstances presented here, the question of Tifco’s negligence vel non was at the very least a jury question.

Again the issue of contributory negligence on the part of the Husses was also a question for the jury; plainly they were not contributorily negligent as a matter of law. Mr. Huss testified that he assumed that the Reinstatement Request superseded the cancellation notice and that the policy would be reinstated in due course. He was not alone in this assumption. Tifco’s own witness, Mr. Bittner, made the same assumption, as did the witness for Hardester, Mr. Dickerson — professionals in the field of insurance.

The court erred in granting a directed verdict for Tifco.

2. Huss v. Hardester

We reach the same decision with respect to the Husses’ "alternate claim” against Hardester. Hardester Corporation was the agent of the Husses in the initial placement of the insurance policy and, indeed, is listed as "agent of insured” on the first page of the policy. The former manager of the Excess and Surplus Lines Department of the Corporation, Edward Dickerson, testified that he received from Tifco both the Notice of Cancellation and the request for reinstatement and mailed them himself to American Insurance Center, general agent of Great Southwest, on May 18 and 20, 1977, respectively. Great Southwest and A.I.C. denied receiving the request for reinstatement.

When Great Southwest received the Notice of Cancellation on May 18, 1977, it was forwarded to A.I.C. which, as previously stated, calculated the unearned premium and issued a credit memo to Hardester dated June 10, 1977. It is undisputed that between May 20, 1977 and the date of the fire on July 27,1977, Hardester made no inquiry of A.I.C. or Great Southwest as to whether or not the Husses’ fire insurance policy had been reinstated. It is also undisputed that when Hardester received the credit memo of June 10, 1977 for the unearned premium — the critical evidence that the policy had been cancelled — it did not communicate with the Husses nor with Tifco nor with Mr. Logan, the Husses’ local agent. Hardester also received a check for the unearned premium from A.I.C. on August 17, 1977, and on October 20, 1977 Hardester’s agent, Mr. Dickerson, wrote a letter to A.I.C. (with a copy to Great Southwest) requesting that the Husses be advised whether or not their claim would be honored. The first paragraph of the letter stated in part:

"As a surplus lines agent utilizing non-admitted carriers, our agency has a responsibility to our insured.” (Emphasis added.)

With respect to the duties of Hardester to insurance brokers and to clients for which it had previously written insurance, the president of Hardester, Mr. Bicknell, testified:

"A Our responsibility to Mr. Logan was to attempt to place insurance for him if he came to us, though we assumed no liability for failure to do so, and assume no responsibility or liability for maintaining that broker’s insured with coverage on a continuing basis, as our responsibility was the initial placement. Our responsibility to that broker and his insured, once we obtained a policy of insurance, would be to report any claims to them that were reported to us, and be an intermediary or conduit for the transaction.
THE COURT: Intermediary or conduit for what?
THE WITNESS: For the transaction, for the insurance policy during its life.” (Emphasis added.)

In their declaration Mr. and Mrs. Huss based their alternate claim against Hardester upon an alleged duty as their agent "to ascertain whether or not Southwest did or did not agree to reinstate the insurance coverage” and upon a negligent failure to notify them or Tifco that the credit for the unearned premium had been returned. Had they been so notified, it was alleged, they would have sought insurance coverage for the contents of their premises.

At the close of the entire case the court considered a motion by Hardester for a directed verdict and stated: "[t]he motion for directed verdict by the defendant, Hardester . .. is denied with the qualification that Hardester’s liability with respect to the Reinstatement Request is not considered actionable by the Court.”

Strangely enough, the only issues bearing upon the Husses’ claim against Hardester, namely, issues 2 and 3, were not answered by the jury because they were instructed in the event of a negative response to question 1, to ignore questions 2 and 3 and move on to question 4. Question 2 was whether Hardester had a duty to inform the Husses of its receipt on June 10, 1977 of a credit memo for the unearned premium; and 3, to be answered in the event of an affirmative reply to 2, was whether Hardester’s failure to notify the Husses was the proximate cause of their loss.

On appeal, counsel for Hardester insists that there was no duty owing from Hardester to the Husses after the insurance policy had been placed and paid for on or about November 15, 1977, and that therefore there can be no liability on the grounds asserted by Huss after the alleged omission of Hardester which occurred in and after May, 1977.

We find no authority, and Hardester cites none, for the proposition that an insurance broker such as Hardester owes no duty to an insured after the policy has been placed and paid for. We observe that Hardester took no exception to the submission to the jury of the question whether or not Hardester in this case had a duty to disclose receipt of the credit memo to Mr. and Mrs. Huss. In any case, it is quite apparent that upon the facts shown a jury question was presented concerning the alleged duty of Hardester, the breach thereof, and whether or not the breach was the proximate cause of the Husses’ lack of coverage for their fire loss. Certainly, the testimony of the President and the Department Manager of Hardester as to the responsibility of the company toward its clients, presents a question for the jury as to whether the company failed in its self-perceived role as a middleman or conduit when it failed to advise the Husses or their agent, Mr. Logan, of the receipt of the credit memo showing that their policy had been cancelled, and that their payment of premiums from April through July, 1977, was a wasted effort.

There was sufficient evidence presented to allow the issue of Hardester’s negligence to be placed before the jury.

Judgment for appellees, Thomas J. Huss, et ux against The Great Southwest Fire Insurance Company reversed; judgment for cross-appellees, Tifco, Inc. and Hardester Corporation against cross-appellants, Thomas J. Huss, et ux reversed and case remanded for trial; costs to be equally divided between the appellees/ cross-appellants, Huss and appellees, Hardester Corporation and Tifco, Inc.

      . This type of agency was described by Edward Dickerson, formerly manager of Hardester’s Excess and Surplus Lines Department:
      "It’s referred to as wholesale insurance. We do not write insurance for the general public, we write insurance for insurance agents and brokers whose companies cannot place certain types of hazardous risks, or risks that are different, that must he tailor-made or changed for certain specifications.”

      . As stated infra, A.l.C. was not named a party defendant by the Husses but was a third-party defendant at the instance of Hardester and Tifco. At the close of all the evidence, the court granted A.I.C.’s motion for a directed verdict. That action is not challenged in the appeal or cross-appeal.

      . A premium finance company pays the premium in full to the insurance company and is repaid the amount thereof with interest and finance charges in monthly installments. There is no security for the premium advanced and the insured gives the company a power of attorney, in the premium finance agreement, to cancel the policy in the event of failure to make a monthly installment. Under present law, upon receipt of a Notice of Cancellation from the premium finance company, the insurer has up to sixty days to refund the unearned portion of the premium. The refund is available for reimbursement to the premium finance company for any loss sustained by it because of the insured’s default.

      . The lower court ruled, as a matter of law, that there was no duty to reinstate the policy on the part of the insurer, if the policy was legally cancelled. This ruling is not challenged on appeal.

      . There existed a contract between Hardester and A.I.C. entitled "Correspondent’s Agreement” which established an open accounting system between them.

      . Hardester did not return the unearned premium to Tifco until on or about May 1, 1980, just a few days before the commencement of trial.

      . See n.17, infra.

      . Great Southwest argued alternatively that the issuance by A.I.C. of a credit memo to Hardester crediting Hardester’s account with the amount of the unearned premium, was a return of the unearned premium to Hardester.

      . The purpose of the statute, enacted to curb abuses in the previously unregulated premium finance industry, was summarized in Government Employees Insurance Company v. Taylor, 270 Md. 11, 17, 310 A.2d 49, 52 (1973), as follows:
      "Included in the mischief which resulted from unregulated premium finance agreements was the extraction of usurious interest and excessive service charges. But, perhaps the greatest danger posed by these agreements flowed from the finance company’s right to cancel an insurance policy without notice to the insured when a repayment installment was not made, usually leaving the insured unaware that he was without coverage and significantly jeopardizing the protection available to an innocent victim of the now uninsured’s negligence.”

      . Tifco has submitted no brief on appeal and did not participate in oral argument.

      . The amended subsections (d) and (f), effective July 1, 1974, in their entirety are as follows:
      "(d) Upon receipt of a copy of such cancellation notice by the insurer or insurers, the insurance contract shall be cancelled effective as of the date specified in the notice as if the aforesaid notice of cancellation had been submitted by the insured himself, but without requiring the return of the insurance policy.
      (f) Whenever an insurance contract is cancelled in accordance with this section, the insurer shall return whatever gross unearned premiums are due under the contract to the premium finance company for the account of the insured or insureds within a reasonable time not to exceed 60 days after the effective date of cancellation, or after the completion of any payroll audit necessary to determine the amount of premium earned while the policy was in force. The audit shall be performed within 60 days after the effective date of cancellation.”

      . Cf. Stewart v. State, 275 Md. 258, 270, 340 A.2d 290, 296-97 (1975) (inaction of the Legislature following judicial interpretation of a statute deemed presumption of correct interpretation).

      . Other changes made by the Legislature to subsection (f) in 1974 as well as an amendment made in 1976 to that subsection are not relevant herein, since they pertain to the beginning of the period from which the insurer calculates the time by which it must return the gross unearned premiums to the premium finance company.

      . An "alternate claim” was also alleged against Hardester.

      . The agreement was not executed by Mrs. Huss. The lower court denied the Husses’ motion for a directed verdict against Tifco on that ground. On appeal they again argue that the nonexecution of the agreement by Mrs. Huss was fatal. We need not address this issue.

      . The Husses’ appeal is from the entry of a final judgment in favor of Hardester Corporation against the claims of Thomas and Janet Huss. This was one of twelve judgments entered by order of the lower court on November 21,1980 after this Court, on its own motion, dismissed appeals of Great Southwest and the Husses under Maryland Rule 605 (a).

      . The record fails to reveal any exceptions to the issues submitted to the jury. Whether or not the Husses waived the question of Hardester’s liability by acceding to the method by which the jury was to consider or not to consider the various issues, is not raised on appeal and we do not consider it. We are satisfied, however, that the issues pertaining to Hardester’s alleged negligence are properly before us because of the entry by the court of a judgment for Hardester upon the claim of the Husses, from which their cross-appeal has been taken.

      . As we conclude this opinion, we deem it appropriate to point out that the ultimate disposition of this litigation would have heen facilitated had there been a bifurcation, so that the question of Great Southwest’s liability could have been determined first, in a separate trial.


source: Caselaw Access Project

author: Melvin, J.,

license: Public Domain

text:
    MARVIN CECIL LEMONS v. STATE OF MARYLAND
    [No. 1591,
    September Term, 1980.]

      Decided September 1, 1981.

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

      Peter M. Levin, Assigned Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Diane G. Goldsmith, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Charles P. Lamasa, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Melvin, J.,

delivered the opinion of the Court.

On May 9, 1980, the grand jury of the City of Baltimore filed in the Criminal Court of Baltimore indictment no. 18013002, charging the appellant, Marvin Cecil Lemons, with the first degree murder of one Debbie Kelly "in the month of October”, 1968. Prior to trial, the indictment was amended, without objection, to allege the date of the murder as being November 4, 1971. During the trial, it was again amended (this time over appellant’s objection) to allege the date of the murder as being December 14, 1969.

On June 25,1980, a jury found the appellant guilty of first degree murder and he was subsequently sentenced to life imprisonment.

In this appeal he argues, among other things, that "the evidence adduced at trial was not sufficient to support appellant’s conviction as there was not adequate evidence of corpus delicti independent of appellant’s statements.” Because we agree with this contention, the judgment of conviction must be reversed.

The Law

It is well established in this State and the vast majority of jurisdictions elsewhere that a defendant’s extrajudicial confession standing alone is, as a matter of law, insufficient to support a criminal conviction. To warrant a conviction, such a confession must be accompanied — or as the rule is typically phrased, "corroborated” — by some independent evidence. The reason beneath this long-standing rule is that such a requirement is necessary to "protect the administration of the criminal laws against errors based upon untrue confessions alone.” Wood v. State, 192 Md. 643, 649, 65 A.2d 316 (1949). More particularly, as Judge Moylan observed on behalf of this Court, "The thrust of the principle is to prevent mentally unstable persons from confessing to, and being convicted of, crimes that never occurred.” Borza v. State, 25 Md. App. 391, 403, 335 A.2d 142, cert. denied, 275 Md. 746 (1975). That this concern is real and not frivolous is attested to by psychology and history alike. See Note, Proof of the Corpus Delicti Aliunde the Defendant’s Confession, 103 U. Pa. L. Rev. 638 (1955). Hence, the so-called "corroboration rule” does not rest on idle musings about theorized possibilities but is founded upon sound principle grounded on fact.

Having stated the rule, identified its purpose and confirmed its propriety, we are nonetheless unprepared to apply it to the facts of the present case until we flesh out more precisely just what the corroboration rule requires. Given that a confession must be accompanied by other evidence, we must determine what is demanded of that other evidence both in terms of quality and quantity.

In terms of quality, it is first of all clear, by the very statement of the rule, that this required additional evidence must be, in some sense, "corroborative.” As to what is intended by the word "corroborative,” in this context, two views have been expressed. The view adhered to by a minority of jurisdictions is that any evidence that tends to fortify the truth of the confession is "corroborative.” On the other hand, according to the overwhelming majority of authority, to be "corroborative,” in the sense intended by the rule, the evidence apart from the confession must fortify the truth of the confession in a particular way; i.e., it must relate to the corpus delicti. Annot., 45 A.L.R.2d 1316, 1327-29 (1956); VII J. Wigmore, Evidence § 2071 (Chadbourn rev. 1978); Perkins, The Corpus Delicti of Murder, 48 Va. L. Rev. 173 (1962); McCormick on Evidence, § 158 (Cleary, 2nd Ed. 1972).

As for Maryland, it is reasonably clear that at an early date the Court of Appeals adopted what is now referred to as the majority view. See Markley v. State, 173 Md. 309, 196 A. 95 (1938); Weller v. State, 150 Md. 278, 132 A. 624 (1926). In both Weller and Markley, the Court spoke of the need for independent evidence of the corpus delicti and, indeed, relied on such evidence in sustaining the convictions there appealed. Subsequently, however, a statement has found its way into the dicta of a number of Maryland cases, both from this Court and the Court of Appeals, that has generated some confusion. That statement, as it was phrased in its first Maryland appearance, is as follows:

"[Circumstances corroborating a confession need not independently establish the truth of the corpus delicti at all, either beyond a reasonable doubt or by a preponderance of proof, but any such circumstances will serve which in the judge’s opinion go to fortify the truth of the confession.” Wood v. State, 192 Md. at 650 (emphasis supplied) (citations omitted).

The State in the present case seems to read this quotation as standing for the proposition that Maryland has adopted the minority view of the corroboration rule; admittedly, read in isolation, this statement would seem to be the epitome of that view. Nevertheless, viewing this statement in the context of the cases in which it appears and in light of other Maryland cases on the subject, we cannot accept the reading suggested by the State.

The statement found in Wood was adopted by the Court of Appeals from a seasoned opinion of Judge Learned Hand. Viewing that statement in its original context is instructive of the thought intended:

"The corroboration must touch the corpus delicti in the sense of the injury against whose occurrence the law is directed; in this case, an agreement to attack or set upon a vessel. Whether it must be enough to establish the fact independently and without the confession is not quite settled. Not only does this seem to have been supposed in some cases, but that the jury must be satisfied beyond a reasonable doubt of the corpus delicti without using the confessions, before they may consider the confessions at all. Gray v. Com., 101 Pa. 380, 47 Am. Rep. 733; State v. Laliyer, 4 Minn. 368 (Gil. 277); Lambright v. State, 34 Fla. 564, 16 South. 582; Pitts v. State, 43 Miss. 472. But such is not the more general rule, which we are free to follow, and under which any corroborating circumstances will serve which in the judge’s opinion go to fortify the truth of the confession. Independently they need not establish the truth of the corpus delicti at all, neither beyond a reasonable doubt nor by a preponderance of proof.” Daeche v. United States, 250 F. 566, 571 (2d Cir. 1918) (emphasis added) (citations omitted).

Thus viewed, it is apparent that the portion of the above quotation that has been borrowed by the Maryland cases, such as Wood, supra, refers only to the quantity and not the quality of the corroborative evidence required. That is, it merely stands for the unremarkable proposition that corroborative evidence — to be quantitatively sufficient — need not, by itself, constitute full proof of the corpus delicti by any measure. It cannot be read more broadly to imply that the evidence apart from the confession — to be deemed "corroborative” as a qualitative matter — is not required to at least "touch” the corpus delicti, for that reading is specifically foreclosed by Judge Hand’s prefatory declaration to the contrary.

That the Maryland cases attach the same restrictive meaning to the portion of the statement borrowed from Judge Hand’s opinion in Daeche is evidenced in part by the fact that the vast majority of the Maryland cases involving the corroboration rule, including a number of cases that paraphrase the Daeche statement, specifically refer to the rule as requiring "independent evidence of the corpus delicti.”See e.g., Hadder v. State, 238 Md. 341, 352-353, 209 A.2d 70 (1965); Koprivich v. State, 1 Md. App. 147, 154, 228 A.2d 476 (1967). Moreover, the State has referred us to no Maryland case and our research has not revealed any in which a conviction was affirmed in the absence of some evidence of the corpus delicti aside from the confession. Finally, we think it was made most clear that Maryland continues to adhere to the majority view when, in Johnson v. State, 238 Md. 140, 144, 207 A.2d 643 (1965), the Court of Appeals observed:

"To state that a confession must be 'corroborated’ is misleading. What we have consistently held is that an extrajudicial confession of guilt by a person accused of crime, unsupported by other evidence, is insufficient to warrant a conviction, but that if there is evidence, independent of the confession, which relates to and tends to establish the corpus delicti, the conviction is justified.” (Emphasis added) (Citations omitted).

For these reasons, we conclude that in Maryland, as in the majority of other jurisdictions, evidence is only "corroborative,” in the sense intended by the corroboration rule, if it touches or concerns the corpus delicti and — in that way — fortifies the truth of the accompanying confession. Evidence that may fortify the confession without relation to the corpus delicti will not be deemed "corroborative.”

In addition to being "corroborative,” in the sense of evidencing the corpus delicti to some extent, the evidence that is required to accompany an accused’s confession must also be "independent” of that confession. See, e.g. Jones v. State, 188 Md. 263, 52 A.2d 484 (1947); Franklin v. State, 8 Md. App. 134, 140, 258 A.2d 767 (1969), cert. denied, 257 Md. 733 (1970). Stated otherwise, one portion of a confession cannot be used to corroborate another portion, even if the portion proposed for such use does tend to establish the corpus delicti. A confession simply cannot fortify its own truth. Likewise, multiple confessions of a given accused cannot be viewed as corroborative of one another, for the same danger of untruth that is present in one is present in all. See Williams v. State, 214 Md. 143, 132 A.2d 605 (1957).

Given that an extrajudicial confession must be corroborated by independent evidence of the corpus delicti, it remains to be determined in what quantity the independent evidence will have to be adduced to sustain a conviction. As already alluded to, "it is not necessary that the evidence independent of the confession be full and complete or that it establish the truth of the corpus delicti either beyond a reasonable doubt or by a preponderance of proof.” Cooper v. State, 220 Md. 183, 190, 152 A.2d 120 1959); see Wood, supra. Indeed, in some cases, such evidence might be sufficient though "small in amount.” Bradbury v. State, 233 Md. 421, 425, 197 A.2d 126 (1964). Ultimately, the necessary quantum of independent proof of corpus delicti is dependent upon the facts of the particular case, Cooper, supra at 191, Franklin, 8 Md. App. at 140, and such evidence is said to be, "sufficient if, when considered in connection with the confession, it satisfies the jury beyond a reasonable doubt that the offense was committed and that the defendant committed it.” Jones v. State, 188 Md. at 271-272 (emphasis added). More particularly, the Court in Jones went on to articulate the two elements of the corpus delicti of homicide to which the independent evidence must relate:

"In a homicide case the proof of the corpus delicti is sufficient if it establishes the fact that the person for whose death the prosecution was instituted is dead, and that the death occurred under circumstances which indicate that it was caused criminally by someone.” Id. at 272.

Distilling these statements to their essence, and filtering that through the Jackson v. Virginia standard for testing sufficiency of the evidence, the inquiry on appeal as to whether there is adequate independent evidence of the corpus delicti to corroborate a confession to such an extent as to support a murder conviction amounts to the following: considering the independent evidence of the corpus delicti, together with the confession and the circumstances of the particular case, and viewing all of that in a light most favorable to the prosecution, could any rational trier of fact conclude beyond a reasonable doubt that the alleged victim is dead and that such victim was murdered by the accused?

The Present Case

Eva Appelgate, called as a State witness, testified that she had known the appellant since 1966. In July of 1971 she "started living with him as man and wife” at 1713 Hollins Street in Baltimore. She said that in the year 1974 she had a conversation with appellant "regarding a person known as Debbie. "Appellant told her he knew "Debbie” in the year 1970” at Broadway and Eastern at the Coffee Pot.” He further told her that he brought Debbie home and "knocked her in the head — with a baseball bat”; that he then "scalped her and took her hair out”; that he "took a knife and cut all the flesh off her bones”; that he did this on the "kitchen table”; that he flushed Debbie’s flesh "down the commode” and "the commode stopped up”; that he "took a can of Drano and poured it down the commode” but that "didn’t work” and he "had to take the commode up from the floor.” Appelgate further testified that appellant told her that "he took a saw and sawed her hands and everything - - on the kitchen table”; that "he took a plier and pulled the teeth out - - so she can’t be identified”; that he put the head "in the dog food bag he said and met the garbage truck and put it in there”; that he "took her eyes out too - - to keep her from being identified”; and that he took the bones "to the cellar and took a hammer and broke them up”; and that he put "a dog food bag” containing the hands, feet, hair and bones "into a plastic garbage bag” and "met the garbage truck and put it in.”

The record indicates that appellant had been taken into police custody on January 10 or January 11, 1979, on charges unrelated to the present case and that on January 13, 1979, Eva Appelgate related the 1974 conversation she had with the appellant to the police.

Eva Appelgate further testified that from the time she first knew appellant in 1966 until the time of his arrest "on January 10, 1979”, appellant was "on drugs”, which she described as "LSD, Sunshine, Purple Haze, Marijuana”, and that he also "drank vodka on weekends til I would have to take him to bed and put him in the bed myself because I was — I wouldn’t want to do anything with him when he was drinking.” She also said that appellant told her at the time of the 1974 conversation concerning "Debbie” that what he was telling her "was bad dreams to him - - And he laughed when he was telling me and he told me that it was only a joke, not to pay it no mind.” She and her children continued to live with him from July 1971 until he was arrested in January 1979: "He slept in my bed every night with his head on my shoulder right before he was locked up.” She also said that on November 4,1971 [the date alleged in the indictment as the date of the murder] she saw no evidence "of a dismembered body” in the house.

Linda Ciarpello, Eva Appelgate’s daughter, was also called as a State witness. She testified that sometime in January 1979, before his arrest, she was playing cards with him at her house in the presence of her sister-in-law and mother. At that time appellant told her that "my mother deserved a better person than him”; that "he had done a lot of wrong and that he had to pay for it.” She said she told him that she "couldn’t think that he had done that much wrong” and asked him "if he killed anyone.” Appellant replied that "he had killed a woman ... in one of the bedrooms” and "taken her and chopped the bones up in the cellar and thrown them away in the trash.” She asked him why he didn’t see a psychiatrist and "he said he was afraid because if the police would find out, they would keep him - - He said he was afraid. He had wanted to turn himself in but he didn’t have the courage. Somebody had to do it for him.” At the time of this conversation, appellant was "high — Either he had been drinking or smoking marijuana.” Ciarpello further testified that she had known appellant since 1966 and that she became familiar with his drug habits in 1971; that he took "Purple Haze, LSD, Marijuana”; and that after 1975 he was not taking Purple Haze or LSD "but he smoked marijuana off and on.”

Detective Steve Danko of the Baltimore City Police Department testified that after a conversation with Eva Appelgate on January 13, 1979, he spoke with appellant at police headquarters and that after waiving his Miranda rights, appellant voluntarily confessed to him that he had killed Debbie Kelly. In a written statement, in question and answer form, appellant said that on "4 November ’71,” he took her home with him from the White Coffee Pot where he was working with her at the time. "It was raining. She went to bed with me and we had sex and she went to sleep. I got mad about something and beat her in the head with a club. The club broke, hit me between the eyes. I beat her up and had sex with her after she was dead. I stabbed her with butcher knives. Afterwards, I cut her up and disposed of her the same way. I like the thrill of cold sex and sucking the blood.” Appellant further said in the statement: "I know something is wrong with me. I think death and ghosts and sometimes it’s all clearer to me. Other times these things seem as though they are not so clear.”

In addition to this written statement, the State was allowed to introduce into evidence a number of drawings made by appellant that Detective Danko had obtained from Eva Appelgate. These drawings, most of which Eva Appelgate said she saw him make, were for the most part of nude women, some of them headless or with a large knife or sword inserted in the body. One such drawing was dated October 23,1977; another, dated November 5,1969, depicted a nude man with a club in his hand standing over a nude woman lying on a couch, and was captioned: "Welcome to the Club!”.

The State was also allowed to introduce into evidence a page from a funeral register containing the names of the pall bearers at the funeral of appellant’s father in 1976. Above the list of pall bearers, appellant had written "Death of Death” and under that caption the following: "1970 Debie Kelly Balt.”

On February 8, 1979, Detective Danko again questioned the appellant at police headquarters. Appellant reiterated the substance of his January 13th statement. During the course of the interview he was asked if he knew of any motive for the murder. His answer was, "Only hallucinations, hallucinating moments, maybe that’s something I dream up.” He was then asked, "Does your drawings depict some of these acts?” His answer was, "Possible, yes. Thoughts, thoughts on paper, yes. But as far as me, I don’t know, it’s pointing direct to my feelings, I don’t know. I don’t understand my own drawings sometimes — I can go and say and get it in my mind that it did happen. It was no bad dreams, that it did happen.” (Emphasis added).

The only other witness called by the State in its case in chief was Pete Ganer, who was the manager of the White Coffee Pot at Eastern Avenue and Broadway from sometime before 1967 until 1980. He testified that Debbie Kelly worked for him there as a waitress "for a couple of months, maybe a little longer” sometime in "1969 or 1970.” He said the appellant also worked for the White Coffee Pot chain as a "relief man,” sometimes working for him at Eastern Avenue and Broadway and sometimes at other White Coffee Pot locations. Ganer said he "had no problem” with appellant. "He was doing his job as far as I am concerned.” He described Debbie Kelly, however, as "the type of a girl that flirted a lot” and "when they happened for those two to work together, she spent more time back in the kitchen than up front taking care of the customers.” Because the White Coffee Pot has a policy "that a boyfriend and girlfriend — are not supposed to work together,” Ganer said he informed Debbie of that policy and she said "she would then have a talk with Marvin.” Thereafter, Debbie did not return to work and he heard nothing further about her until 1979 when he "was approached and they told me that she was missing.” He said she was "a liar” and he was "not surprised” when she did not return to work.

Three witnesses were called by the defense. The first witness was Dr. Lawrence Donner, an associate professor in the Department of Psychiatry at the University of Maryland School of Medicine, with a degree in Clinical Psychology and the title of Chief Psychologist, Division of Adult Ambulatory Care, Institute of Psychiatry. He testified that he had examined the appellant on January 9,1980 for approximately six hours. He said, "The major difficulty Marvin seemed to show in interview information was reality testing. He had difficulty distinguishing between fantasies and real life experiences. It appeared to the examiner he was making heavy use of confabulation, that is the spontaneous invention of imaginary experiences to fill memory gaps without conscious intent to deceive. Throughout this session, he maintained a candid manner with the complete absence of any hostility or resentment.” Dr. Donner’s diagnosis of appellant was as follows: "On the basis of the history, my psychological testing, my behavioral observation, I made a diagnosis of schizophrenic reaction, chronic undifferentiated type, along with mild to moderate organic brain syndrome, secondary to alcohol and drug abuse.”

On cross-examination, Dr. Donner stated that at the time he examined the appellant in January 1980, as well as at the time appellant gave his statements to the police, the appellant was insane ("that he lacked substantial capacity to appreciate his behavior and he also lacks substantial capacity to conform to the requirement of the law”). He further said, "I’m also saying currently, he suffers from the same severe mental disorder and would be also in my opinion legally insane now, right this minute.” Dr. Donner further said that in making his statements to the police, "He [appellant] was relating the experiences which he could not determine whether they were dreams, whether they were fantasies, whether they were images, what they were to the police. - - [H]e was not telling them he killed someone. He was telling them images he had. He was completely unsure of himself, whether he had actually done any of these things or not.”

The next witness for the defense was May Arrington, the payroll clerk for the White Coffee Pot Family Inns, Incorporated. She testified that "Deborah L. Kelly” was employed by that company from April 1969 through December 14, 1969, except for the period July 20 through August 24 and one week in September and one week in October. She did not know the reason for her absences, but said it was "not unusual” for a relief girl to have "erratic hours,” indicating that "her hours were some weeks no hours, some weeks more than full time.”

At the conclusion of May Arrington’s testimony, the State moved to again amend the indictment to allege the date of the murder as being December 14, 1969. The amendment was allowed over appellant’s objection. At this point in the trial, defense counsel had one more witness to call, Dr. John M. Henderson. Dr. Henderson, however, was not then available and the defense rested its case with the understanding that it could reopen its case the next day when the doctor was available. The State then sought permission from the court to "put on rebuttal testimony at this time.” The prosecutor proffered that the purpose of the "rebuttal” testimony would be to contradict Dr. Donner’s testimony that appellant’s statements to the police concerning Debbie Kelly’s murder were in large part "confabulations.” The prosecutor proposed to do this by showing that in appellant’s statement taken by Detective Danko on January 13, 1979, the appellant had, in addition to talking about Debbie Kelly, also told him about desecrating the grave of one Leah Williams at the Louden Park Cemetery in Baltimore in February, 1974, and by further showing that there was independent proof that Leah Williams’ grave had, in fact, been desecrated. The independent proof of the grave desecration was to consist of Detective Danko’s investigation of the grave site and his finding that the grave had indeed been disturbed at some time in the past. Detective Danko made this investigation on January 12,1979, after talking with Eva Appelgate on January 11, 1979, and the next day, January 13, 1979, he questioned appellant about it.

Defense counsel vigorously opposed the proffer, pointing out to the court that this evidence of an unrelated "other crime” had been expunged from the statement already presented to the jury and that Dr. Donner had not been asked anything about a grave desecration and that his "confabulation” opinion had not been based on any actions of the appellant concerning it. The court opined, however, that appellant’s statement concerning the grave desecration was "part of the same confession” made to the police on January 13th concerning Debbie Kelly, "And if the State can prove that a substantial segment of the January 13th confession is true, and that actually happened and was reality, then it could have the tendency, perhaps, to erode the credibility of the Doctor’s theory about that confession. And I would say that what is contained in that confession concerning the grave desecration is an offensive and would be viewed by the average person as a sickened act.... So, if the State is able to prove that something even more outlandish than murder, something more bizarre than murder actually happened, and as reality and not one’s imagination, then it would lend credence, perhaps, to the State’s theory that this confession was true.” The court ruled that the proffered testimony would be permitted as "rebuttal testimony at this time.”

The State then recalled Detective Danko as its first rebuttal witness. He read from the January 13th statement the portion concerning the grave desecration: "... Lemons said, Yes, that he did bring home some remains of Leah Williams, Louden Park, like a nightmare. I dug up the grave, banged open the casket, took the woman out, I didn’t have sex with her, I think I played with myself. It was too cold to have sex with her. She didn’t represent anyone to me, she was a nice lady. When I do these things, it’s like a compulsion. You seem to know everything, so I’ll talk to you.” When asked if he "took anything from the body,” he told Detective Danko: "Ring, glasses, she had a grey print dress. I don’t know if I took the dress or not. It’s been years ago back and asked her spirit to forgive me for what I did to her. Sometimes, when I read about murders, I wish I did it myself.”

The prosecutor then asked the court to recall Eva Appelgate "as a Court’s witness to permit me to ask leading questions, because I believe the lady has relevant testimony, extremely relevant testimony to this case and that I cannot vouch for her credibility based on what she’s told me. I can’t be sure she’s going to say anything at all, much less what she’s told me on about four or five separate occasions.” The court said it would call her as a Court’s witness and allow each side to cross-examine her. When she took the stand, the State attempted to elicit from her that the appellant had come home from the cemetery on the night of February 17, 1974 and told her at that time about desecrating the grave of Leah Williams. The attempt was for the most part unsuccessful, her answer to most of the questions being, "I don’t know nothing,” or "I don’t remember.” She did say, however, that she had talked to Detective Danko and told him what she knew only because of his promise that she "wouldn’t have to testify.” She also said she was in love with the appellant and, "I think he’s [appellant’s] already in trouble with all the other things that I said.”

Detective Danko was then recalled in further rebuttal. He testified that after talking to Eva Appelgate on January 11, 1979, he went to the cemetery on January 12th and located Leah Williams’ grave and by using a metal probe determined "that there was damage in truth of the portion of the casket.” He then obtained an exhumation order from the court of January 16th and uncovered the casket. He found a portion of the casket "broken away” and "the body was laying on its left side in the fetal position with its knees drawn up toward the chest.” Large color photographs of the decomposed body in this position were shown to the jury. With that the State rested its case.

The defense then reopened its case and presented the testimony of the previously unavailable Dr. Henderson, an expert in the field of psychiatry and a diplómate of the American Board of Psychiatry and Neurology. He testified that he examined the appellant on two occasions: November 13,1979 and January 8,1980. From the history he took from appellant he determined that, "... almost every problem he’s had of any kind has been involved with some kind of alcohol use or intoxication.” He gave the appellant what he called "the usual mental status examination” which he broke down "into six parts of the person’s mental function or psychological function.” He testified that "part four is called thought content.. .. Mr. Lemon’s thought content was probably the most single strikingly noteworthy part of his exam, because he showed a lot of strangeness in his thought content. It was, we call it bizarre, which is a favorite psychiatric word. It was full of what we call loose associations, which means that he didn’t think very logically, he would jump from one subject to another without any real association between subject A and subject B. He would go off, he would have tangential thought.... He would go off on tangents. You would ask him one question, he would barely start to answer that and be way out in left field talking about something entirely unrelated from where he started. He also had thoughts which were in the jargon symptoms of psychosis or schizophrenia, if you will, that is they were thoughts which he believed or almost believed, most of the time, that were not real things. ... [H]e had very unusual sequences of thought. Furthermore with thoughts, he showed a certain striking confusion because, and he himself readily admitted this, he could not tell the difference between real, quote, real thoughts, and imaginary thoughts. He couldn’t tell the difference between what he dreamed and what he actually experienced. He told me, and subsequently me and Dr. Donner, a number of hairraising tales about things he had done and things that had happened to him which subsequently proved out to be, to our satisfaction anyway, not true.”

Dr. Henderson expressed the opinion, "to a reasonable degree of medical certainty,” that at the time appellant spoke to the police in January and February, 1979, he "was [among other disorders] indeed suffering from a mental disorder” known as "schizophrenia which is a disease which routinely begins in adolescence or early adulthood . . . [M]y opinion is that Mr. Lemons has been for a number of years, probably quite a few years, so disturbed that his ability to distinguish, he’s so split off of reality, so schizophrenic, that his ability to distinguish reality from nonreality is not good enough for him to really make up his mind about even what he said and the truth of it and it’s certainly not good enough for him to understand from someone else what they are saying if it’s at all complicated.” He further said that the disease "can flare up and go back down and does flare up and go back down, get worse and get better, and the hallucinations and delusions and any other crazy thing we look for goes up and down, depending on the level of distress that the person is under at the time.”

On cross-examination, Dr. Henderson, in explaining "the workings of the mind of a schizophrenic individual”, said: "Nothing, no delusions, no hallucinations, no imaginative notion, no matter how strange or unusual it may seem, is totally without basis in fact. It’s not totally without basis in reality, which may sound like a contradiction to what I said before, but I’ll try to make it clearer. It is that the person who has schizophrenia and some other diseases also will see or hear about or think of something quite ordinary and in their mind, will take it and make it into something quite different. ... His mind doesn’t just sit there and churn out fantasies or imaginations. Something has to be seen or perceived by him and then his distorted, his thought disorder takes over and confused thinking then turns into something else.” The final question and answer on cross-examination was as follows:

"Q. So, is what you are saying basically that what Mr. Lemons told the police was largely imaginary, even though it had a germ of truth?

A. I think it is my opinion that everything that Mr. Lemons told the police is a product of his mental illness, but that there is some fragment there that started off each thought train that he’s started talking about.”

The State offered no expert medical evidence of any kind.

Decision

The evidence adduced by the State divides into three categories: 1) evidence that is neither corroborative nor independent of the appellant’s confessions; 2) evidence that is independent but not legally corroborative; and 3) evidence that is both independent and corroborative and is, therefore, of the type required by the corroboration rule. Evidence that falls into the first category includes — in addition to appellant’s statements — appellant’s drawings and the funeral register. These pieces of evidence, though arguably incriminating and no doubt influential to the jury, are no more than written admissions and, as such, stand on no different legal footing than do the confessions themselves. See Bagley v. State, 232 Md. 86, 192 A.2d 53 (1963); see also Williams, supra; Edwards v. State, 194 Md. 387, 71 A.2d 487 (1950). That is, they are part of the body of evidence that is to be "corroborated” and form no part of the independent evidence necessary to satisfy the corroboration requirement.

Evidence comprising the second category (independent but not corroborative) consists primarily of the grave desecration evidence. That appellant disturbed the grave of Leah Williams as he said he had was verified quite apart from his confessions. Furthermore, because this portion of appellant’s confession was true it may, to a very limited extent, fortify the truthfulness of the confession as a whole. Nevertheless, and most importantly, the grave desecration evidence does not, to any degree, touch or concern the corpus delicti of murder, and, for that reason, it cannot be considered "corroborative.” Therefore, contrary to the view taken by the State, the trial judge and no doubt the jury, this evidence is not the type that can be used in satisfaction of the corroboration requirement.

The third category of evidence — that which is both independent and "corroborative” — is the type required by the corroboration rule. The only evidence of this type that was adduced in the present case is the fact that Debbie Kelly, after December 14, 1969, failed to return to work at the White Coffee Pot. This is the sole evidence apart from the confessions that, to any degree, touches or concerns the corpus delicti, i.e., that Debbie Kelly is dead and that her death was criminally caused. However, because this independent evidence touches the corpus delicti to some extent and is, therefore, of the type required by the corroboration rule, does not imply that it touches the corpus delicti to the extent necessary to quantitatively satisfy that rule. In fact, viewing this slender bit of independent corroboration evidence, together with the surrounding circumstances and the equivocal nature of appellant’s confessions, and even viewed in a light most favorable to the prosecution, we ¿re convinced that a jury could not rationally conclude — beyond a reasonable doubt — that appellant was guilty of murdering Debbie Kelly.

In every Maryland case reported thus far involving the corroboration rule in the context of a homicide, the victim’s body had been recovered and there was other independent evidence, either direct or circumstantial, to suggest that the death was not the result of accident or suicide. See, e.g., Miller v. State, 251 Md. 362, 247 A.2d 530 (1968); Hadder, supra; Jones, supra. This, of course, does not imply that the inability to produce a body is an insuperable obstacle, in itself, to the obtention and sustention of a murder conviction. This Court, as well as the Court of Appeals, has repeatedly said that the independent evidence of the corpus delicti "may be circumstantial in nature when direct evidence is not available,” Miller, supra at 382; Franklin v. State, 8 Md. App. at 140, and there is no reason to believe that this statement does not apply to the .fact of death with the same force as it does to the criminal causation. Moreover, courts from other jurisdictions that have been confronted with the "missing body” problem have unanimously concluded that the death of the alleged victim need not be evidenced directly by the production of the body. See, e.g., Derring v. State, 273 Ark. 347, 619 S.W.2d 644 (1981); State v. Lung, 70 Wash.2d 365, 423 P.2d 72 (1967); People v. Cullen, 37 Cal.2d 614, 234 P.2d 1 (1951) Nevertheless, it is clear from these cases that there must be independent evidence, at least circumstantial in nature, that relates to both elements of the corpus delicti. Thus, the problem in the present case is not that the State failed to produce Debbie Kelly’s body, for if she was, in fact, murdered as appellant described, there would be no body to produce; rather, the problem here is that the State failed to adduce sufficient evidence, even of a circumstantial nature, that Debbie Kelly is dead much less murdered.

The State argues that the testimony of Pete Ganer, the White Coffee Pot manager, supplies sufficient evidence from which it could, be inferred that Debbie Kelly is dead. Garner’s testimony established that-there was a friendly relationship between appellant and Debbie Kelly and that Kelly told Ganer she would speak to appellant about the company’s non-fraternization policy while they were working together. Ganer’s testimony also established that thereafter (i.e. after December 14, 1969) Debbie Kelly did not return to work at the White Coffee Pot. From this, the State argues that it might be inferred "that appellant and Miss Kelly had an argument at the time of her disappearance” and that the "circumstances of her disappearance provided some corroboration of the corpus delicti.”

We think the difficulties with this argument are manifold. First of all, there is absolutely no independent evidence of any arguments, threats, or harsh words at any time between appellant and his alleged victim. From Ganer’s testimony, to infer that there was an argument is sheer speculation. Moreover, on the record before us, there is no evidence that Debbie Kelly has "disappeared.” Ganer did not say she disappeared. In fact, to the contrary, he said he was "not surprised,” in view of her unreliability, that she did not return. Except for an unsuccessful attempt to learn of Debbie Kelly’s whereabouts by checking with "the Social Security Administration,” the record is devoid of any efforts by the State to locate her — even at the addresses mentioned by Ganer ("she told me she was from West Virginia. She gave me an address on Broadway and Dundalk, and now I understand she told somebody that she was from Baltimore Street or whatever”) or the appellant himself ("All I knew is she lived on West Baltimore Street or East Baltimore Street somewhere, 2110 or something like that... originally from Harrisonburg, Pennsylvania”). There is no evidence that any of these locations or any public utility companies were checked to ascertain her whereabouts. Nor is there any evidence as to whether or not anyone (family, friends or acquaintances) has ever reported her missing or inquired of her whereabouts from any public or governmental agency.

While it may be true that Debbie Kelly’s failure to return to work at the White Coffee Pot may be consistent with the State’s position that she is dead, this evidence, even by the "slight evidence” test enunciated in Bradbury v. State, supra, falls far short of meeting the requirement of the corroboration rule. Particularly is this so when the equivocal nature of appellant’s statements to the police as well as to Eva Appelgate is concerned, and when, also, the uncontradicted medical testimony is considered concerning appellant’s mental disorders.

In summary, we reiterate that the evidence of the corpus delicti presented by the State, together with the appellant’s statements and all the surrounding circumstances, are legally insufficient to convince any rational trier of fact beyond a reasonable doubt that appellant murdered Debbie Kelly.

This is a case that goes to the very core of the corroboration rule and the interests that that rule is designed to protect. Appellant, by all indications, is a mentally unstable individual with a history of drug and alcohol abuse. He confessed to the crime of murder, but the only independent and legally corroborative evidence of that fact is that the alleged victim failed to return to work one day — a fact that even her employer found unsurprising. To affirm appellant’s conviction on such a slender reed, under these conditions, would render the corroboration rule nugatory and worse yet seriously risk subjecting an innocent man to life imprisonment.

Judgment reversed.

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

      . The State is not alone in its reading of Maryland cases on this point. See, Annot. 45 A.L.R.2d at 1329.

      . The Supreme Court in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L.Ed.2d 560 (1979), held that, after In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L.Ed.2d 368 (1970), the relevant question on review of sufficiency of the evidence, "is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original).

      . The record indicates that appellant’s actual answer was that he had killed "several women”, but the witness was instructed before testifying to say only "a woman” in order to avoid the "other crimes” pitfall enunciated in Ross v. State, 276 Md. 664 (1976).

      . The original page also contained four other feminine names and an "unknown”, each with a date. The dates ranged from 1958 to 1977. These names and dates were expunged from the page shown to the jury.

      . In argument to the jury, the State made much of the italicized portion of this answer. Actually, however, this italicized portion was not a part of the answer to the preceding question. The appellant’s entire statement to the police on February 8,1979, was recorded on tape. The entire tape is filed in the record as State’s Exhibit No. 14 and includes appellant’s statements concerning not only Debbie Kelly but statements concerning the other women listed by him in the funeral register (see note 4, supra) as well as appellant’s confession to desecrating a grave at Louden Park Cemetery in Baltimore. However, in keeping with the goal of all concerned, an attempt was made to edit the tape so as to present to the jury only that portion, together with its transcription (State Exhibit No. 15) that concerned Debbie Kelly. Towards the end of the unedited tape, after being questioned about all of the women, including Debbie Kelly, as well as the Louden Park grave desecration, the appellant made the following statement. This statement does not appear to be the answer to any particular question asked of him:
      "Since you told me it was true about Louden Park, I believe that the rest of them are true now. Since you did say that was true, well, I think the rest of them are true, then I will go on and say that, get it in my mind, that it did happen, no bad dreams, that it did happen. So now I’ll tell you what I know about bad dreams.”
      It will thus be seen that the portions of the statement concerning "bad dreams,” as heard and read by the jury, was not in the context in which they were made. Read in proper context, they exhibit that appellant’s own belief in the reality of his murdering Debbie Kelly, or anyone else, is based not on his recollection of past events but on what he was told by the police concerning an unrelated matter.

      . The record indicates that a plea of insanity had been filed by appellant but was withdrawn before trial.

      . We have assumed, without deciding, that the grave desecration evidence was admissible. Although we do not reach the question, we would note that there is considerable doubt as to the admissibility of this evidence, at least as substantive evidence of guilt. See Ross v. State, 276 Md. 664, 350 A.2d 680 (1976); Hepple v. State, 31 Md. App. 525, 358 A.2d 283 (1976), aff'd 279 Md. 265, 368 A.2d 445 (1977).

      . Detective Danko testified that information from the Social Security Administration "was refused us at the time as to privacy ... to the individual we were making inquiry of.”

      . In view of this disposition of the case, it is not necessary to consider the other two issues raised by appellant in this appeal: 1) that evidence of "other crimes” was improperly admitted into evidence and 2) that appellant was not mentally competent to intelligently waive his Miranda rights.


author: Lowe, J.,

text:
    ELWOOD LEROY LEUSCHNER v. STATE OF MARYLAND
    [No. 945 (On Remand),
    September Term, 1979.]

      Decided September 2, 1981.

      The cause was submitted on remand to Lowe, Couch and Weant, JJ.
   Lowe, J.,

delivered the opinion of the Court.

Perhaps to lay speculation to rest that time, change and the Supreme Court were eroding the Miranda v. Arizona* rule that given an assertion by an accused of his right to counsel (police)" 'interrogation must cease until an attorney is present,’ ” on May 18, 1981 the Court decided Edwards v. Arizona to

"reconfirm these views and to lend them substance, emphasize that it is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel.” 451 U.S. at 485, 68 L.E.2d at 387.

Despite the sense of need to reconfirm its faith in Miranda, the Court strove carefully to assure that it did not intend to impede legitimate methods of law enforcement by further expanding Miranda:

"In concluding that the fruits of the interrogation initiated by the police on January 20 could not be used against Edwards, we do not hold or imply that Edwards was powerless to countermand his election or that the authorities could in no event use any incriminating statements made by Edwards prior to his having access to counsel. Had Edwards initiated the meeting on January 20, nothing in the Fifth and Fourteenth Amendments would prohibit the police from merely listening to his voluntary, volunteered statements and using them against him at the trial. The Fifth Amendment right identified in Miranda is the right to have counsel present at any custodial interrogation. Absent such interrogation, there would have been no infringement, of the right that Edwards invoked and there would be no occasion to determine whether there had been a valid waiver. Rhode Island v. Innis, [446 U.S. 291, 64 L.Ed.2d 297 (1980),] supra, makes this sufficiently clear. 446 U.S., at 298, n. 2.” 451 U.S. at 485-486, 68 L.Ed.2d at 387, (emphasis added).

The facts in Edwards considered "critical” by the Supreme Court were that Edwards had asserted his right to counsel and his right to remain silent on January 19; but the police, without furnishing him counsel, returned the next morning to confront him and as a result of the meeting secured incriminating oral admissions. The issue as seen by the Court was whether Edwards validly waived his right to have counsel present during interrogation.

For two reasons the Supreme Court decided that Edwards had not validly waived that right. First, it pointed out that neither the trial court nor the Arizona Supreme Court undertook to focus on whether Edwards understood his right to counsel and intelligently and knowingly relinquished it. The Arizona courts had been preoccupied solely with the traditional concepts of voluntariness and had misunderstood the requirement of finding a valid waiver of the right to counsel, once invoked.

Secondly, the Supreme Cout noted that although an accused may by his words or conduct waive his Miranda rights, North Carolina v. Butler (441 U.S. 369 (1979)) had strongly indicated that additional safeguards were necessary to establish a waiver when an accused has asked for counsel. The holding of Edwards was simply an explication of the North Carolina v. Butler implication. The holding as expressed by the Court in Edwards was

"that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police.” 451 U.S. at 484-485, 68 L.Ed.2d at 386 (emphasis added, footnote omitted).

— the question before us —

During the time Edwards was being considered, there reposed at the Supreme Court a pro se petition for certiorari submitted by Elwood Leroy Leuschner, from a recent affirmance by this Court of a conviction for having sodomized and murdered a young boy named Troy Krause. On the same day that it decided Edwards, the Supreme Court vacated our judgment and remanded to us Leuschner v. State, 45 Md. App. 323 (1980), cert. denied July 3,1980 (by Maryland Court of Appeals), 288 Md. 738 (1980), for our review in the light of Edwards.

We have carefully reviewed both cases and find that Edwards enhances our original opinion in Leuschner rather than eroding it. Perhaps that is because our interpretation of Miranda has always included the Edwards’ nuance, e.g., Cummings v. State, 27 Md. App. 361, 366-367, cert. denied, 276 Md. 740 (1975); cf. Law v. State, 21 Md. App. 13, cert. denied, 272 Md. 744, 749 (1974), and in Leuschner we, therefore, approached the Miranda issue in that "light.” We will do so once again.

The critical facts in the Leuschner case arose from a search for a 9-year-old boy named Troy Krause, who had been missing for 3 months. When another youngster about the same age (named Rusty Marine) was reported missing also, the police were told by Rusty’s stepfather that his neighbor, Elwood Leuschner, had last seen Rusty near their residences.

Because Leuschner’s niece had previously related that Leuschner had a criminal record, his description was entered by the State Police in a National Crime Information Center Computer. The four-page criminal record indicated that, among other things, Leuschner was wanted in California for parole violation. He was then arrested by Maryland State police on a fugitive warrant and immediately advised of his rights. Although he invoked his right to counsel on the fugitive charge, he pointedly stated that he was perfectly willing to talk to the police about the missing boy, Rusty Marine, who had been the initial subject of inquiry when Leuschner was first approached. He told the police that with regard to the Rusty Marine inquiry, he did not desire an attorney and that he did not need one.

Perhaps because of the domiciliary proximity, the succeeding inquiry initially focused solely upon Rusty Marine who had recently disappeared. No questions appear to have been asked regarding Troy Krause, the victim in the case we were admonished to review, who had disappeared 3 months before.

Although Leuschner was in custody, having been detained upon the fugitive warrant, Mathis v. United States, 391 U.S. 1 (1968), the police attempts to discern Rusty’s whereabouts through Leuschner were conducted in an atmosphere of inquiry rather than as an inquistion; cigarettes, sandwiches, coffee and even Leuschner’s consultations with his paramour were provided upon request. Whenever a different officer would talk with Leuschner, out of an abundance of caution, Leuschner would again be advised of his Miranda rights.

Perhaps because he recognized discrepancies within his interviews, during the late afternoon of the day of his arrest, Leuschner asked for an attorney. This request was not specified in regard to the fugitive warrant under which he was detained, but was obviously in regard to the Rusty Marine questioning. The police offered Leuschner the use of the telephone (already next to him) to call an attorney or, in the alternative, offered to call an attorney for him. Leuschner neither called nor requested assistance but asked rather to see his paramour, Betty Larmore, who was in the next room and who was immediately brought into the interrogation area. Without the slightest instigation by the police officers, Leuschner continued his conversation, talking first to Ms. Larmore in the presence of the officers and subsequently joining them in his conversation.

Since this was the last credible evidence that Leuschner either requested counsel or otherwise even interpretively sought to invoke his Fifth Amendment right, we addressed the issue of waiver on those facts, applying Leuschner’s passing but general request for counsel as if he had invoked his right to counsel regarding the victim Troy Krause; however, it was days later after signing a Miranda waiver form and after confessing to the Rusty Marine murder that the Krause inquiry was first broached. Such a — perhaps unnecessary — dilution of the "fruit-of-the-poisonous-tree theory” to benefit Leuschner does nothing to taint the fruit, however, because the Edwards antidote neutralized any poisonous affect of the tree itself.

In Leuschner, supra, we addressed the question of the Miranda waiver following an invocation of the right and, unlike the Arizona courts, we clearly understood both the requirement and the standard for finding a valid waiver of the right to counsel once invoked despite a finding of traditional voluntariness as well. We held that waiver of counsel was not only voluntary but constituted a knowing and intelligent relinquishment or abandonment of a known right or privilege

"on 'the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused. ’ 45 Md. App. at 330, quoting Butler, supra at 374-375.

We used as our standard that which was set forth in North Carolina v. Butler, 441 at 374-375, as subsequently explicated by Edwards. Expressly using the strong safeguards standard indicated by Butler (and now expressed by Edwards), we set forth in detail "the background, experience and conduct” of the accused, as well as "the particular facts and circumstances surrounding th[e] case”. Edwards, 451 U.S. at 482, 68 L.Ed.2d at 385.

— was there in fact "interrogation” —

But in "light” of Edwards, the particular facts and circumstances of the Leuschner case would have made the waiver determination unnecessary. Relying on Rhode Island v. Innis, 446 U.S. 291, 64 L.Ed.2d 297 (1980), Edwards, as we have quoted it, points out that absent an interrogation by the police there would be no occasion to determine whether there had been a valid waiver. Innis indicates that "interrogation” may be in the form of either express questioning or its "functional equivalent” which may consist of any "words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Innis, supra, 446 U.S. at 301, 64 L.Ed.2d at 308, (footnote omitted). The opinion further points out that:

" 'Interrogation,’ as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself.” 446 U.S. at 300, 64 L.Ed.2d at 307.

Whether police conduct is tantamount to a reinterrogation following Fifth Amendment invocation by request for counsel in the contemplation of Miranda, is also dependent upon the particular facts and circumstances of each case. Vines v. State, 285 Md. 369, 376 (1979). Here, although Leuschner’s version contradicted portions of the State’s case as to his request for an attorney as well as his advisement of rights, the judge simply did not believe him and did believe the State’s testimony. While his ruling was from a position of advantage, our own independent constitutionally required review of a cold record reveals clearly that his judgment was correct. That record reveals not a scintilla of compulsion, nor any indication that there were words (or actions which were their functional equivalent) which would have been reasonably likely to elicit an incriminating response. There was simply no interrogation by the police until well after Leuschner had, by his conduct, words and actions, waived the prior invocation of his right to have counsel present.

— did the police initiate it —

Parenthetically we must recognize that when two justices of the Supreme Court are "not sure what [Edwards] means,” our view of the Edwards’ "light” with which we are admonished to illuminate Leuschner in this review, may be shaded. These two justices, in a concurring opinion, stated that there were two ways of looking at the light cast by Edwards. One of those we have used — that the Court’s opinion can be read as not departing from established doctrine — and we reaffirm our former judgment.

But even in light of the more radical possibility posed by the two of the three concurring justices — that the opinion created a new per se rule requiring a threshold inquiry as to precisely who opened any conversation between the accused and State officials — our former opinion suffices to respond as we have previously indicated. The trial judge believed the testimony that no further questions were asked to elicit the narrations following appellant’s second request for counsel and we found no reason to believe to the contrary. Leuschner, supra at 337 n. 5.

If the two concurring justices are correct that

"police do not impermissibly 'initiate’ renewed interrogation by engaging in routine conversations with suspects about unrelated matters. And police legitimately may inquire whether a suspect has changed his mind about speaking to them without an attorney,” 451 U.S. at 490, 68 L.Ed.2d at 390,

surely an "interrogation” is not "initiated” by officers whose only conduct or conversation following the demand for an attorney is an offer of a telephone and to assist if desired. Listening to a garrulous "suspect” uninterruptedly rattle on alternately to his girlfriend and the police is not an "initiation” of an interrogation — even if such conduct could have been interpreted as a functional equivalent of questioning. Edwards then has not only affirmed our waiver approach based upon the Butler standard we applied, but has provided alternative routes by which we might have arrived at the same destination.

Judgment affirmed.

Costs to be paid by appellant.

      . 384 U.S. 436 (1966).

      . 451 U.S. 477, 68 L.E.2d 378 (1981).

      . A detailed narration of all the facts is set forth in 45 Md. App. 323, together with supporting extracts of testimony.

      . It should be noted that although our prior opinion discussed the judicial marriage of the Fifth and Sixth Amendment culminating in Miranda, Edwards addresses only Tt]he Fifth Amendment right identified in Miranda [as] the right to have counsel present at any custodial interrogation.” 451 U.S. at 485-486, 68 L.Ed.2d at 387.