author: Lowe, J.,

text:
    PETER ANGELOS et al. v. MARYLAND CASUALTY COMPANY
    [No. 331,
    September Term, 1977.]

      Decided December 12, 1977.

      The cause was argued before Davidson, Lowe and Wilner, JJ.

      Glenn B. Harten and Michael A. Amselmi for appellant Peter Angelos. Gregory S. Hrebiniak, with whom were M. Carr Ferguson, Assistant Attorney General, John J. McCarthy, Edward J. Snyder and Jervis S. Finney, United States Attorney and Herbert Better, Assistant United States Attorney, on the brief, for appellant United States of America.

      Gordon Murray and Julian I. Jacobs, with whom was Allen Handen on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

The Circuit Court for Calvert County was called upon to determine the priorities to the surplus proceeds from a second mortgage foreclosure sale as between the holder of a third mortgage, Peter Angelos, and a judgment creditor, Maryland Casualty Company. The Angelos’ third mortgage had been executed before, but recorded after, the institution of a suit by Maryland Casualty Company, whose debt had been subsequently reduced to judgment. The court applied the doctrine of lis pendens and awarded the fund to the judgment creditor. Angelos, the third mortgagee, appealed.

A further complication arose after that appeal when the United States of America was permitted by this Court to intervene. The intervenor is asserting tax liens against the surplus from the foreclosure sale by the second mortgagee. The ultimate right to the proceeds depends upon facts not in this record, and while we find the trial court’s judgment to have been in error, we cannot finally determine the full extent of the rights of the parties without further fact-finding.

The initial case which brought on the appeal arose when John and Carolyn DeVaughn, who had come upon bad times, executed to their attorney, Peter Angelos, a third mortgage in the amount of $50,000 as consideration for his legal services. The record is not clear as to whether that consideration was to cover only past services or was intended to include advances for future services. A week after the DeVaughns executed the mortgage, but before Angelos recorded it, Maryland Casualty Company claims to have sued the DeVaughns, presumably under an indemnity agreement for $690,357.00 which Maryland Casualty had apparently paid on account of the DeVaughns under a bonding agreement. A companion suit sought to enjoin the DeVaughns from divesting themselves of their residence, the subsequent sale of which provided the funds under dispute here.

The chancellor entered judgment on behalf of Maryland Casualty Company under the doctrine of lis pendens. Lis pendens literally means a pending action; the doctrine derives from the jurisdiction and control which a court acquires over property involved in an action; pending its continuance and until final judgment is entered. Under the doctrine, one who acquires an interest in the property pending litigation relating to the property takes subject to the results of the litigation. It is clear that the doctrine has no application except where there is a proceeding directly relating to the property in question, or where the ultimate interest and object of the proceeding is to subject the property in question to the disposal of a decree of the court. Feigley v. Feigley, 7 Md. 537, 563; see Applegarth v. Russell, 25 Md. 317.

We need not decide the unlikely prospect that the petition for an ex parte injunction to restrain the sale of land preserving an asset for a general creditor was sufficient to comply with the Feigley requisite that the proceeding relate directly to the property in question, since Angelos’ property interest was acquired through a mortgage obtained prior to the commencement of the litigation upon which Maryland Casualty’s lis pendens claim rests, and therefore is not subject to the operation of the doctrine.

Md. Code, Real Prop. Art., § 1-101 (c) defines the term “deed” as used in the Real Property Article to include, among other things, “mortgage”. Subsequent § 3-201 states that:

“Every deed [or mortgage], when recorded, takes effect from its effective date as against the grantor, ... and every creditor of the grantor with or without notice.” (emphasis added).* *

Although the mortgage was recorded after the suits were filed, under the statute it took effect against Maryland Casualty as of the date of mortgage, which was (assuming the title report to be correct) nearly a month before the suits were filed.

Maryland Casualty contends, however, that the Angelos mortgage is not a valid mortgage because “there was some question as to what was the consideration for this mortgage in the court below.” The argument that follows is based upon comments made by the chancellor which raised some question as to the validity of the mortgage on the basis of some evidence that part of the consideration may have been for future rather than present services.

“We think there is a substantial question in this case. It is whether this mortgage is valid at all because we apprehend that under the Maryland law a mortgage as argued by Mr. Handen must be given for present consideration and an affidavit to that effect must be entered into. The testimony clearly shows that the mortgage in this case was given in an attempt to secure these attorneys for work which they had done for their clients extending for some period of time in the past and contemplating perhaps some future work but not as much future work as apparently was done.
In any event, we prefer to say that — let’s assume for the purpose of argument that this was a valid mortgage although we have grave doubts about that.”

The chancellor’s reference to the necessity for present consideration in a mortgage, like that of appellee who has parroted him, was apparently misconceived by his contemplation of the law as it existed prior to the legislative amendment in 1972 by Chapter 349. All of the authority they rely upon was predicated upon the old statute and such cases are therefore inapposite in light of the new law presently codified in Real Prop. Art., § 7-102 (b), which reads:

“(b) Priority of future advances. — If after the date of the mortgage or deed of trust, any sum of money is advanced, any endorsement or guaranty is made, or the liability under an indemnity agreement arises, priority for such sum of money or for any indemnity arising under the endorsement, or guaranty, or indemnity agreement dates from the date of the mortgage or deed of trust as against the rights of intervening purchasers, mortgagees, trustees under deeds of trust, or lien creditors, regardless of whether the advance, endorsement, or guaranty was obligatory or voluntary under the terms of the mortgage or deed of trust.”

We can benefit interpretively here from the relatively new legislative procedure of supplying commentary explaining the effect of statutory changes. The extensive comment following that section includes the explanation that:

“The change abolishes the distinction as to whether the advance was obligatory or voluntary under the terms of the mortgage, and makes all future advances date back to the date of the mortgage so as to squeeze out the intervening rights of third parties. ” (emphasis added).

It is apparent then that as to Maryland Casualty the subsequently recorded Angelos mortgage prevails because executed before appellee’s suits were filed, regardless of whether the consideration was present or future.

Unfortunately, it is not so simple as between Angelos and the United States of America who was permitted to intervene due to its interest in the proceeds established by tax liens purportedly filed on August 29, 1975.

The Intervenor

On July 20, 1977 the United States moved to intervene pursuant to Maryland Rule 208 a. 6There having been no answer filed the motion was granted and an order permitting intervention was signed by Chief Judge Gilbert on August 9, 1977. Although it is questionable whether we can decide issues the evidence of which is not before us, because we must reverse this case as between the original parties, we will discuss, for purposes of assisting the lower court, the priority of the intervenor as well. We are limited in our reasoning to the extent that we can base our analysis only upon the same thin evidence stipulated to in the form of a title report, which we pointed out in reaching the issue of lis pendens as the only evidence that we could find in the case of the suits relied upon by Maryland Casualty in its lis pendens assertion. But see n. 1. That report also contained the only reference to pending tax liens submitted as evidence in the case.* * Without a record with more substantial foundation, our discussion is necessarily espoused somewhat in the abstract; however, we write for the guidance of the lower court, which will have the issue to decide either on remand for retrial of the Rule W75 a. proceeding or will be confronted with pending exceptions to the auditor’s report. In either case, our anticipating the question will hopefully.- avoid the expense and delay of another appeal to this Court. Md. Rule 1085.

The United States conceded in open court and in its brief as intervenor, that to the extent the consideration for the Angelos mortgage consisted of his past services, Angelos’ claim would prevail over the government liens. This is so because except for liens subsequently discharged, the only liens filed or refiled by the government came not only after Angelos’ mortgage was executed, but after it was recorded as well. The Internal Revenue Code, I.R.C. § 6323 (a), clearly states that the lien imposed by § 6321 is not valid as against a “holder of a security interest,” until notice of the lien has been filed. “Security interest” is defined as meaning

“ ... any interest in property acquired by contract for the purpose of securing payment or performance of an obligation or indemnifying against loss or liability. A security interest exists at any time (A) if, at such time, the property is in existence and the interest has become protected under local law against a subsequent judgment lien arising out of an unsecured obligation, and (B) to the extent that, at such time, the holder has parted with money or money’s worth.” § 6323 (h) (1).

Thus the Angelos mortgage is a security interest that protects Angelos to the extent that he had provided services prior to the filing of notice of the tax lien on August 29,1975. Furthermore, Angelos may be protected for the value of his services rendered for 45 days thereafter, depending upon a factual finding of whether he had knowledge of the filing. 26 U.S.C. § 6323 (d); see Legislative History, (1966) U. S. Code Cong. & Ad. News 3730-3731.

It would appear that Maryland Casualty’s interest in the $54,646.34 surplus from the Union Trust Company’s second mortgage foreclosure sale is subordinate to the United States’ as well as Angelos’. Maryland Casualty contends that the United States lacks power to attach a tax lien to the property at issue because it, in effect, stands in the shoes of the taxpayer, who retains only so much of an interest in the property as would exist after all encumbrances upon the property had been satisfied. Appellee continues its argument by stating that “the determination of what is ‘property’ and ‘rights to property’ is a question to be determined by State Law,” citing Aquilino v. United States, 363 U. S. 509, and claiming that under Maryland law, the taxpayer-owner’s property interest in the surplus from the foreclosure sale is subject to the rights of other lienors and encumbrances, of which Maryland Casualty is one. Therefore, since Maryland Casualty has a judgment lien amounting to more than the total amount of the sale proceeds (the judgment lien being good as of the date of filing suit, under the doctrine of lis pendens), the taxpayer retains no property interest; and if the taxpayer has no property interest, then the United States has nothing to which its lien can attach.

Unfortunately for appellee, every step in its circuitous argument is flawed. In the first instance, the Maryland Legislature has intentionally elected to utilize federal law in determining the meaning of “real property” with respect to federal tax liens. See Comment to Former Article 21, Title 3, Subtitle 4 preceding Real Prop. Art., § 3-401. Even if Maryland law were applicable in determining what the property rights of the taxpayer are, it would not necessarily be applicable in defining the property interests of lienors. On the contrary, as will be seen, those interests appear to be well defined by a long line of established case decisions. Finally, appellee’s erroneous conclusion must give us pause as it is so obviously founded upon a false premise. If the taxpayer has no property to which a federal tax lien can attach under Maryland law, how is it that there is property to which Maryland Casualty can attach a judgment lien under Maryland law? Obviously, regardless of what law is applied, the determination of what property or rights to property the taxpayer has is to be made at the time the lien attaches, and not at the time it ripens into a collectable debt. Once the lienors are entitled to recover on their encumbrances, the question becomes simply one of priorities.

In order for Maryland Casualty to have priority over the United States, Maryland Casualty’s judgment would have to have been choate prior to the filing of the tax liens. That means that the identity of the lienor, the amount of the lien and the property subject thereto must all have been established before the filing. United States v. City of New Britain, Conn., 347 U. S. 81. While holding that an attachment lien is not adequately specific or perfected until ripened into a judgment, the Supreme Court has equated such “inchoate or contingent” imperfection to “merely a lis pendens notice that a right to perfect a lien exists.” United States v. Security Trust and Savings Bank, 340 U. S. 47. It follows that lis pendens cannot be classified as a choate lien, see also City of New Britain, supra, and like an attachment or garnishment, is not perfected until it has ripened into a judgment. United States v. Liverpool and London and Globe Ins. Co., Ltd., 348 U. S. 215; United States v. Security Trust and Savings Bank, supra.

It would appear as a practical consideration then, that unless Maryland Casualty can prove that it comes within one of the exceptions of § 6323 (b) or (c), whatever the division is determined to be between Angelos and the United States, it will have nought remaining of the $54,646.34 of which it can avail itself. This will probably be true notwithstanding the result of the additional factual determination regarding the amount of the tax lien.

That determination becomes necessary because the original tax liens filed on February 13,1975 for the tax periods ending December 31, 1971 and 1972 were withdrawn or discharged on December 10,1976. On August 29, 1975 they were refiled with accumulated interest, along with additional liens for the tax periods ending December 31, 1973 and 1974. None of these liens were presented evidentiarily to the court; however, it is apparent from the colloquys between court and counsel in the record (recognizing the liens on the one hand and representing that the tax claim had been released on the other) that both court and counsel were aware of them. Such issue may be raised upon retrial or at a hearing upon the exceptions filed or to be filed, but without adequate facts in the record we will not decide those factual questions which were not “plainly tried and decided” by the lower court. Md. Rule 1085. Therefore we express no opinion upon the validity of any lien, yet neither do we by this opinion foreclose that issueis being raised. Since the proceedings will be retried ab ovo to permit the full participation of the intervenor, it will be entitled to raise whatever issues to which it would have been entitled as an initial party. Parenthetically, neither Angelos nor Maryland Casualty should be precluded from amending its pleadings within the rules to assert whatever actions or defenses may be appropriate, notwithstanding any waiver for purposes of this appeal. See, e.g., n. 6, par. 2.

Summary of Priorities

The Angelos recorded mortgage having been executed July 18, 1975, prevails over the Maryland Casualty Company’s judgment of February 2, 1977, as do all valid tax liens filed before the judgment was perfected. To the extent the Angelos mortgage is a “security interest,” to the extent the mortgage was in consideration for Angelos’ past services), it prevails over the tax lien. In the absence of Angelos’ knowledge of the filing of tax liens, his mortgage prevails for services rendered through the forty-fifth day after the tax liens were filed.

The court at the hearing upon the exceptions to the auditor’s report or upon retrial of this case must determine the following questions:

1. Whether valid tax liens had been filed and, if so, upon what date.
2. Whether Maryland Casualty can take priority over the claims of the United States by coming within any exception outlined in § 6323 (b) or (c) of the Internal Revenue Code, bearing in mind that Maryland Casualty’s claim, as regards the intervenor, is from time of judgment, not from time of institution of suit. Assuming the date to be as alleged, August 29, 1975, (which was after both execution and recordation of the Angelos mortgage), in order to determine the amount of Angelos’ priority over the United States (should the United States prevail over Maryland Casualty), the court must determine:
(a) How much value (by service or otherwise) Angelos had provided the DeVaughns in consideration for the third mortgage prior to the date the tax liens were filed.
(b) Whether Angelos as counsel for the DeVaughns, or in any other capacity, “had actual notice or knowledge” of the filing of the tax liens, and, if so, precisely when was the knowledge acquired; and
(c) Based upon that finding, how much value was given by Angelos within forty-five days after filing or until he actually knew of the filing, whichever first came to pass.
(d) The value of the services given to the DeVaughns by Angelos prior to the filing of tax liens, plus the value of whatever services were rendered by Angelos for the DeVaughns before knowledge of the tax lien filing, within forty-five days of filing, constitutes Angelos’ priority. The balance of the surplus (which appears from the auditor’s report in the record to be $54,646.34), is subject to a second priority to the United States of America to the extent of any valid tax liens filed prior to the final judgment of Maryland Casualty Company against the DeVaughns (February 2, 1977).

3. Any other factual findings necessary for determination of all of the issues raised, or to be raised by amendment or supplemental pleadings.

Judgment entered upon order of April 41977, reversed.

Case remanded for a new trial.

Costs to be paid by appellee Maryland Casualty Company.

APPENDIX

CHRONOLOGY

1. 8/13/71 — DeVaughns purchase property in Calvert Co.

2. 8/13/71 — DeVaughns execute 1st mortgage to Calvert Bank

3. 11/6/73 — Affiliated Contract Consultants execute application for bond to Md. Casualty

4. 1/25/74 — DeVaughns execute Blanket Indemnity Agreement with Md. Casualty

5. 5/13/74 — DeVaughns execute 2nd mortgage to Union Trust

6. 2/13/75 — IRS files Notice of Tax Lien in Calvert Co. Cir. Ct.

i. T/P*end. 12/31/71, D/A**l/24/75 $165,367.71

ii. T/P*end. 12/31/72, D/A**l/24/75 172,902.42

$338,270.13

(note: these subsequently discharged 12/10/76)

7. 7/18/75 — DeVaughns execute 3rd mortgage to Angelos

8. 7/23/75 — Md. Casualty files bill of complaint against DeVaughns based on Indemnity Agreement

9. 7/24/75 — Md. Casualty petitions for .injunction against DeVaughns

10. 7/25/75 — Court issues injunction restraining DeVaughns from transferring property

11. 8/27/75 — Angelos records 3rd mortgage

12. 8/29/75 — IRS Notice of Tax Lien

refiled with added interest for:

i. T/P*end. 12/31/71, D/A**8/28/75 $169,401.13

ii. T/P*end. 12/31/72, D/A**8/28/75 177,277.14

$346,678.27.

initially filed for:

iii. T/P*end. 12/31/73, D/A**5/5/75 22,391.19

iv. T/Pend. 12/31/74, D/A6/16/75

13,141.69

$35,532.88

13. 1/5/76 — Union Trust petitions for foreclosure of 2nd mortgage

14. 11/30/76 — Property sold to Healy, Angelos’ agent, for $80,000.

15. 12/10/76 — IRS releases liens of 2/13/75

16. 1/31/77 — Sale ratified.

17. 2/2/77 — Court orders that Md. Casualty recover $690,357 from DeVaughns — Judgment

18. 2/3/77 — Angelos moves to have surplus applied to 3rd mortgage

19. 2/4/77 — Md. Casualty moves to have surplus applied to its judgment

20. 2/14/77 — IRS files proof of claim in this case

21. 3/2/77 — DeVaughns appeal Md. Casualty (2/2/77) judgment (case transmitted to C/S/A4/4/77)

22. 3/14/77 — Court opinion in instant case — in favor of Md. Casualty

23. 4/4/77 — Court order and judgment

24. 4/12/77 — Angelos appeals to this Court

25. 4/19/77 — Auditor’s Report and Account

      . Neither the extract nor the record indicates that the pleadings or records of these cases were included in this case below or on appeal. Had the appellant questioned the sufficiency of the evidence we would be hard pressed to determine that upon which the chancellor relied.
      There is an unsigned title report in this case, entered into evidence by stipulation, indicating that two equity proceedings had been filed by Maryland Casualty against the property owners, Mr. and Mrs. DeVaughn; .one seeking the judgment aforesaid, the other incorporating the first by reference and seeking to enjoin the DeVaughns “from divesting themselves of the residence which is the subject matter of this report.” Neither the pleadings in those two cases, nor the judgments in them, were offered in this case as evidence.
      It is evident from the testimony that all parties took for granted that the equity suits had been filed on or about July 23 and 24,1975. The most direct testimony substantiating the correctness of this presumption came from a former associate of appellant Angelos.
      “Q. Mr. CapliS; you have read Equity 30-17, have you not, which concerns itself with Affilliated Contractors and John A. DeVaughn and I will call your attention to the various bonds that are filed in here and are there not indemnified agreements in each of these cases signed individually by the DeVaughns?
      A. Well, without looking over each paper in particular, generally there are bonding documents in that suit, in Equity 80-17.1 did come in contact with Equity 30-17 some time in August of 1975.
      Q. In this file, it speaks for itself, this shows that that case was filed on July 23rd, 1975?
      A. That is what the file indicates.”

      . Although we have appended to this opinion a chronology of all relevant events as we were able to perceive them from the brief's, extracts and record before us as a ready reference for the pedantic, the facts thus far recited are sufficient to determine the priorities as between the original claimants. Details of the proceedings are not available because of the limited evidence appearing in the record.

      . The wording of that sentence incorporates the holding of Knell v. Green Street Building Association, 34 Md. 67. See Comment to Former Article 21, Title 3, Subtitle 2 immediately preceding Real Prop. Art., § 3-201.

      . Prior to the 1972 amendment the law regarding mortgages for future advances read:
      “No mortgage or deed in the nature of a mortgage shall be a lien or charge on any estate or property for any other or different principal sum or sums of money than the principal sum or sums that shall appear on the face of such mortgage and be specified and recited therein, and particularly mentioned and expressed to be secured thereby at the time of executing the same; and, except as is hereinafter provided, no mortgage or deed in the nature of a mortgage shall be a lien or charge for any sum or sums of money to be loaned or advanced after the same is executed, except from the time said loan or advance shall be actually made; and, except as is hereinafter provided, no mortgage to secure future loans or advances shall be valid unless the amount or amounts of the same and the times when they are to be made shall be specifically stated in said mortgage; this not to apply to mortgages to indemnify the mortgagee against loss from being endorser or security, nor to any mortgages given by brewers to maltsters to secure the payment of the latter of debts contracted by the former for malt and other material used in the making of malt liquors; nor are the provisions hereof intended to apply to deeds of trust in the nature of mortgages or any other deeds of trust to secure bonds, notes or other obligations. Provided, however, that any mortgage, if it so recites, may secure future advances to be made at the mortgagee’s options, prior to the full payment of the mortgage debt but not to exceed m the aggregate the sum of thirty-five hundred dollars ($3500) nor to be made m an amount which would make the mortgage debt exceed the original amount thereof; and all such future advances so made shall be liens and shall be secured by such mortgage equally and to the same extent as the amount originally advanced on the security of such mortgage, and all such future advances shall be a lien on the property therein described as of the date of the original mortgage, good and valid against and superior to all rights of subsequent creditors, purchasers, mortgagees, and other lienors and encumbrances, and any of them, provided the full amount of any such advance is usea for paying the cost of any repair, alterations or improvements to the mortgaged property.”

      . The United States, it appears, had filed notice of a federal tax lien in the Circuit Court for Calvert County on August 29,1975, and had additionally filed a proof of claim in this case one month prior to the March 14th hearing. We presume, without deciding, that the former action was taken to comply with the requirement of the Maryland Revised Uniform Federal Tax Lien Registration Act, Md. Code, Real Prop. Art., §§ 3-401 — 3-405, and that the latter was done pursuant to Md. Rule W75 a. The fact of these notices may account for the recognition of a tax lien by the parties and by the court. It does not explain why the government was not notified of the hearing to determine priorities.

      . Maryland Casualty Company moved on the day of argument, November 14,1977, for leave to present additional legal arguments including opposition to the government’s right to intervene. For obvious reasons we denied that motion as untimely offered. Md. Rule 1036 c.
      A second argument sought to be raised in the motion presented at the final hour contended that the Angelos mortgage was a fraudulent conveyance. That issue was not raised below either by pleadings or evidence and no contention thereof was raised timely by brief. Any such contentions are therefore deemed waived. Burke v. Equitable Life Assur., 256 Md. 559, 563-564.

      . We note that appended to Maryland Casualty’s brief are what appear to be copies of notices of federal tax liens filed on February 13, 1975, and August 29,1975, and notice of revocation filed December 10,1976. There was also a Proof of Claim filed in the record reciting those liens filed (and refiled) on August 29, 1975, however, this was not in evidence and should not have been included as part of the record for our review.

      . The record forwarded this Court from the Circuit Court for Calvert County contains an auditor’s report and account filed in the case after the judgment appealed from and after the filing of the appeal. The report and account was ratified “except that portion which provides ‘surplus to be distributed pursuant to Order of Court dated April 4, 1977’ ”. That is the order appealed from which we will reverse and remand for a new trial. Because no notice was provided the United States of America pursuant to Md. Rule 595 (g), or in accordance with the “W” rules, the government has now excepted to the auditor’s report as has Angelos. They will be given the opportunity to participate as intervenors upon retrial as well. Procedurally then, upon reversal of the original case here on appeal, the guidance we hope to provide by reaching the issues may aid the trial court upon hearing the exceptions to the auditor’s report and accounting, or upon retrial of the case here appealed, or both — if that becomes necessary.

       Tax Period Ending

       Date of Assessment

       Court of Special Appeals


source: Caselaw Access Project

license: Public Domain

text:
    ALBERT M. CAHN v. PRINCE GEORGE’S HOMES, INC. et al.
    [No. 337,
    September Term, 1977.]

      Decided December 12, 1977.

      The cause was argued before Davidson, Lowe and Wilner, JJ.

      James R. Bucher, with whom were Sasscer, Clagett, Charming & Bucher on the brief, for appellant.

      Joseph S. Casula for appellees.
   Lowe, J.,

delivered the opinion of the Court.

This appeal arises from a contract between two parties, each of whom claims ownership of the same land, derived from tax sales. The appellant, Albert M. Cahn, purchased the land, along with several other parcels, at a tax sale conducted by the Collector of Taxes for Prince George’s County on March 1,1965, and was duly issued a certificate of sale. After a year and a day had expired, but before the expiration of two years of the date of the certificate of sale, Md. Code, Art. 81, § 100, on March 1,1967, appellant filed a bill of complaint to foreclose the right of redemption on the subject property as well as on others he had bid in at the time.

Nothing further occurred in the case for nearly three years, until November 14, 1969, when the case was ordered removed from the Stet Docket on petition to permit an unrelated property owner to redeem and “to bring the rest of the cases to completion.” If the former was accomplished, the latter was not. The “rest of the cases”, including the one at bar, again lay dormant until August 21, 1974, when a decree pro confesso was taken against the defaulting defendants by appellant.

That belated spurt of activity appears to have been stimulated by a tax sale held on May 14, 1974, at which the collector of taxes, without previously having instituted proceedings or intervened in the pending case, again offered the subject property for sale for taxes then delinquent. Appellant, however, having obtained a decree pro confesso, again elected to tread water. He did nothing until after February 19, 1976, when principal appellee, Prince George’s Homes, Inc., presumably stirred him once again by filing a bill of complaint to foreclose the equity of redemption. On April 28, 1976, appellant filed a “PETITION TO REDEEM” in which he asked the court to fix the amount necessary to redeem as authorized by Md. Code, Art. 81, § 94. The petition to fix the amount was opposed by appellee.

After some preliminary legal feints and procedural footwork, the cases were consolidated and decided in the Circuit Court for Prince George’s County on motion for summary judgment. The chancellor granted summary judgment to Prince George’s Homes, Inc. for the reason that:

“Albert [M.] Cahn did not exercise his right to foreclose the rights of redemption in said property acquired at the first tax sale by obtaining a final decree within the time limited by statute and, therefore, the subsequent sale of the property by the County to Prince George’s Homes, Inc. for all taxes currently in arrears extinguished and voided all rights the defendant Albert [M.] Cahn had acquired under the tax certificate he purchased on March 1, 1967.M ” (emphasis added).

Among other things, the final order denied appellant Cahn’s “PETITION TO REDEEM”, as well as his bill to foreclose the equity of redemption. Appellee, Prince George’s Homes, Inc., was granted an “indefeasible title in fee simple” to the property.

Appellant raises two questions which together go to the heart of the case.

I.

“Did the Court err in denying the Petition to Redeem filed by Albert M. Cahn in Equity E-681?”

The answer to the first question is clearly in the affirmative. The court has no jurisdiction to deny a party of interest a right to redeem until the right of redemption has been finally foreclosed by the issuance of a final decree. That right may be exercised only by a party of interest, who must pay to the collector the amount required for redemption, Md. Code, Art. 81, § 92, and the statute does not predicate this upon court approval or review. The primary authorization statutorily granted the court providing for foreclosure of the right of redemption by issuance of a final decree to the tax sale purchaser upon his petition in conformity with the statute, Art. 81, §§ 97 through 123, is unrelated to the right to redeem before foreclosure. The only authority given the court which is related to the right of redemption is that which arises when the right to redeem is exercised after an action to foreclose is instituted. Even then, the court’s jurisdiction is expressly limited “to fix[ing] the amount necessary for redemption ....” Art. 81, § 94. Nowhere in the statute is there a hint of authority legislatively granted to the court to deny an owner or other person having an estate or interest in the property, the right to redeem. The court cannot invoke its general equity jurisdiction in tax sale foreclosure cases because in view of the special and limited jurisdiction outlined in the statute, the Legislature clearly did not contemplate nor grant the exercise of general equity jurisdiction therein. Dampman v. Litzau and Sonntag, 261 Md. 196, 202.

II.

“Did the Court err in dismissing the Appellant’s suit to foreclose the right of redemption?”

The answer to the second question is also in the affirmative and the court’s error was again occasioned by an overreading of the statute. We have been consistently admonished that when the words of a statute are clear and used in their natural and ordinary signification with a commonly accepted meaning, there is no room for interpretation. Balto. Gas & Elect. Co. v. Board, 278 Md. 26, 31. The statute here places no time limitation upon concluding a foreclosure proceeding and obtaining a final decree. The limitations are upon the filing of the proceeding. After providing that once one year and a day have passed after the tax sale, the tax sale purchaser may file to foreclose the equity of redemption, the statute cautions that:

“Unless a proceeding to foreclose the right of redemption is filed within two years of the date of the certificate of sale, the said certificate shall be void and any and all right, title and interest of the holder of the certificate of sale of his predecessors thereof, in and to the property sold shall cease and all money received by the collector on account of the said sale shall be deemed forfeited, and shall be applied by the collector on the taxes in arrears on said property.” (emphasis added). Md. Code, Art. 81, § 100 [now § 100 (a)].

The right to redeem, however,

“... exist[s] and continue[s] until finally barred by the decree of the court of equity in which the foreclosure proceeding is filed.” Art. 81, § 100; Heill v. Staniewski, 265 Md. 722, 726.

When the appellant filed his initial proceeding within that time frame, his interest in the property (which is in the nature of a mortgagee, Keefauver v. Richardson, 233 Md. 545, 550-551) entitled him to be among those having a right to redeem, Art. 81, § 87; and. see Art. 81, § 103 (c). Since there is no statutory limitation upon concluding such suit, it presumably may “hang fire” interminably, subject only to dismissal for procedural inaction under Md. Rule 530 or similar local rules. Such dismissal not being an issue here, the failure to proceed propitiously to decree, or to acquire it within the two year statutory limit' for filing, does not terminate appellant’s “interest” devolved from his certificate of tax sale.

Appellee relies upon Bullard v. Hardisty, 217 Md. 489 and Shapiro v. National Color Ptg. Co., 191 Md. 194, for the proposition that failure to foreclose within two years voids the tax sale certificate, and thus argues that the interest prerequisite to appellant’s right to redeem is negated. We do not read that in the statute, neither do we interpret those cases to so conclude.

Appellee relies upon two sentences of dicta in Shapiro, supra, 191 Md. at 202, where the Court in analogizing a tax sale purchaser with a mortgagee generally restated the statutory rule using rather broad terminology:

“Under the new law a ‘purchaser’ at a tax sale is virtually a mortgagee. He can, and within two years must, foreclose his lien and get either (a) a marketable title to the property or (b) payment of his lien.” (emphasis added).

It is apparent that in drawing an analogy between the two proceedings, the Court used the term “foreclose” in a generic sense. The phrase set off in commas relating to the two year limitation was not intended to convey the view that payment or title must be obtained in two years. The phrase was simply to acknowledge a simple difference between that case and the ordinary mortgage case referred to in the descriptive analogy. When read for its primary purpose of painting an analogous picture, without the cautionary reference to the statute’s peculiar limitation’s provisions, the thought intended to be conveyed is clear.

“Under the new law a ‘purchaser’ at a tax sale is virtually a mortgagee. He can ... foreclose his lien and get either (a) a marketable title to the property or (b) payment of his lien.”

In Bullard, supra, 217 Md. at 494, appellee notes the Court stated that a certificate holder must “exercise” the right to foreclose within two years or such certificate becomes void and of no effect. That is absolutely correct; however, to determine what is necessary to “exercise” the right to foreclose, we look to the statute and see that all the Legislature required was the filing of the proceeding to commence that “exercise”.

Bullard, we believe, goes against appellee. It is substantial authority for the principle that if proceedings are commenced propitiously to foreclose, but have not been concluded or abandoned, a tax collector has no authority to resell the property a second time without having intervened in the proceedings for the purpose of having them concluded.

“In the event of such delay as to indicate abandonment, the collector could intervene in the proceedings for the purpose of having them concluded.” Id. at 492.

The clear holding of that case was that the tax collector (who had not intervened):

“... was precluded from selling the property in question at the second sale thereof for the taxes due the City of Rockville which accrued subsequent to the date of the first sale, and that the latter sale was a nullity.” Id. at 493.

Applying those principles here in the light of the “delay [such] as to indicate abandonment,” it is clear that while the tax collector could have intervened to conclude the Cahn proceedings by having them declared abandoned or by forcing obtention of a decree, he could not proceed with a second sale without such judicial determination having been obtained through his intervention. Nor could the judge properly have declared the Cahn proceedings abandoned nunc pro tunc at the instance of appellee, so as to breathe life into the second sale, which was void ab initio absent the collector’s intervention. The circle is complete when it is pointed out that the appellee who sought that determination had only such standing as was provided by whatever interest it could derive from a tax sale that was void in its inception. It had no standing to institute the second proceeding nor to intervene in the first.

The statute obviously has a gap in it through which appellant sought to benefit. He purchased several properties in 1965, filed propitiously to foreclose the equity of redemption, then proceeded no further. By not going on, he subjected himself to the unlikely danger of a subsequent redemption by an owner; however, even if the property were redeemed, he would be reimbursed for all of his original outlay plus interest, § 93. The benefits derived from inaction on the other hand are substantial. He was required to pay only so much of the purchase price at time of sale as was prescribed by the collector, the balance not being due until foreclosure is complete. All taxes accruing between the date of sale and final decree continue to be assessed “as though no sale had been made”, Art. 81, § 96, and although these taxes, interest and penalties are additional property liens, they need not be paid until foreclosure is finalized. Thus, a tax sale purchaser may maintain a marketable interest in property with a minimum downpayment but with no risk of loss 1 (even of interest on his downpayment), nor obligation to pay taxes, and hold the property indefinitely as its value increases. In light of its express intent to encourage foreclosure of the rights of redemption, it is unlikely that this procedural loophole was intended by the Legislature. It exists nonetheless. The subsequent adoption of Md. Rule 530 by the Court of Appeals would seemingly carry out the expressed legislative purpose by automatically dismissing cases inactive for eighteen months. In this case however, that rule was either not applicable or not applied below and is not before us now.

We reverse the judgment of the court below. Since the second sale to appellee was a nullity (Bullard, supra, 217 Md. at 493), the chancellor should dismiss the proceeding filed by appellee to foreclose the equity of redemption in Equity case number E-681. Having acquired no interest from the void sale, appellee has no standing to oppose appellant’s petition to foreclose in Equity number D-1250, which petition should be granted upon compliance with the statutory prerequisites and subject to proof of compliance with procedural rules not before us on this appeal.

Judgment reversed.

Case remanded for entry of judgment pursuant to this opinion.

Costs to be paid by appellees.

      . There is no issue before us relative to a Rule 530 dismissal or similar proceeding, simply an uncontested order upon petition to remove the case from the Stet Docket. There is no indication when, how or why it was placed on a Stet Docket.

      . We are not apprised of the necessity of this petition.

      . Assignee of the certificate of sale from the purchaser at the second tax sale.

      . The opinion referred to Cahn’s certificate as purchased on March 1, 1976. The last two numbers were obviously transposed and we have used the intended date in our opinion.

      . Appellee’s motion for summary judgment which was granted by the court claimed that it was “entitled ... to redeem the property”. Obviously appellee meant that it was entitled to foreclose redemption on the property.

      . While there are several possible legislative solutions, it seems the General Assembly might, at the very least, require that the County Collector of Taxes receive notice that a petition to foreclose the equity of redemption has been filed. Under the present statute his only direct knowledge of the proceeding comes at its conclusion when the court’s decree directs him to execute a deed to the holder of the certificate of sale. Md. Code, Art. 81, § 115. Ironically, the statute provides that a plaintiff “may” name the State of Maryland as a defendant but makes no provision for naming the county whose interest exceeds that of the State.


author: Couch, J.,

text:
    WILLIE LEE JONES, JR. v. STATE OF MARYLAND
    [No. 199,
    September Term, 1977.]

      Decided December 13, 1977.

      The cause was submitted on briefs to Gilbert, C. J., and Morton and Couch, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Martha G. Villmoare, Assistant Public Defender, for appellant.
    Submitted by Francis B. Burch, Attorney General, Kathleen M. Sweeney, Assistant Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, Robert Bonsib and Michael Whalen, Assistant State’s Attorneys for Prince George’s County, for appellee.
   Couch, J.,

delivered the opinion of the Court.

Willie Lee Jones, Jr., appellant, was found guilty of three counts of first degree murder, four counts of kidnapping, and four counts of use of a handgun in a crime of violence, following a jury trial in the Circuit Court for Prince George’s County (Levin, J. presiding). He was sentenced to three consecutive life sentences for the murder convictions, and other consecutive sentences totaling 180 years for the kidnapping and handgun convictions. He appeals from those judgments.

Appellant submits five questions for our review as follows:

“1. Did admission of Appellant’s inculpatory statements violate the Sixth Amendment?
A. Were the statements improperly admitted because they were taken without counsel present after counsel had been retained and there was no showing of a valid waiver of the right to counsel?
B. Were the statements improperly admitted because they resulted from ineffective representation by counsel?
2. Did admission of Appellant’s inculpatory statement violate the Fifth Amendment because the State did not show by a preponderance of the evidence that the statement was voluntary?
3. Were statements of one of the homicide victims properly admitted as dying declarations?
4. Did the trial judge improperly refuse an instruction of Appellant’s Sixth Amendment rights?
5. Did Appellant’s kidnapping convictions violate the prohibition against double jeopardy?”

Inasmuch as the factual background for this appeal was so recently set forth by Judge Moylan, speaking for this Court, in Roland Neville Godwin v. State of Maryland, (No. 200, September Term, 1977, filed November 14, 1977), we will not again set forth the facts except to supply them, where necessary, as we address the various questions.

I

SIXTH AMENDMENT VIOLATIONS

A.

STATEMENT ADMITTED WITHOUT A SHOWING OF VALID WAIVER OF RIGHT OF COUNSEL

Appellant argues that his Sixth Amendment right to have the assistance of counsel for his defense was violated in that there was no showing of a valid waiver to have his counsel present at his interrogation by the police although counsel had been retained.

It is axiomatic that appellant did have the right to the assistance of counsel under the Sixth Amendment, and that this right extended to the interrogation posture of the case. However, it is equally axiomatic that this right, like any other constitutional right, may be waived, Sabatini v. State, 14 Md. App. 431, 287 A. 2d 511 (1972), providing such waiver is freely, voluntarily, and intelligently made. Further, it is clear that any such waiver must be affirmatively shown on the record and cannot be presumed from a silent record. Anderson v. State, 6 Md. App. 688, 253 A. 2d 387 (1969).

Appellant’s argument is two-pronged; first, he contends deceit was practiced upon him by Prince George’s County police officers rendering his statement involuntary; second, he was continually questioned despite his requests to talk to his attorney (he did, in private) which evidenced his “consistent reliance” upon the advice of counsel, thereby refuting any suggestion that he had relinquished his Sixth Amendment rights.

Turning first to appellant’s argument that waiver is not possible in a “deceit situation”, the record reveals that appellant first turned himself in to Washington, D. C. authorities upon the advice of counsel, that he was given his “rights” and signed a waiver form. His attorney was present in the interrogation room when he gave this statement and reviewed the statement when it was reduced to writing.

The following day, appellant was transported to Prince George’s County where he was interviewed by Detective Tucker; his attorney was not present at that interview. Tucker advised appellant of his rights and had him sign a waiver form. The record discloses that during the initial 2% hour interview, Corporal Hall questioned appellant for about 45 minutes. Hall stated that he took appellant’s shoes and left the room with them in order to make appellant believe that his shoe prints had been identified at the scene of the crime. When Hall returned to the room he told appellant his shoes appeared to match the prints at the scene, although Hall admitted this was untrue.

After approximately 2 Vi hours of interrogation, appellant asked to talk to his attorney and was allowed to contact his attorney on the telephone. Appellant talked privately with his attorney for some fifteen minutes, following which the attorney talked to Detective Tucker at the attorney’s request. During their telephone conversation, Tucker told the attorney that the police did not believe appellant was telling the truth and that Tucker wanted to take an additional statement from appellant.

Following the phone conversation, Tucker resumed the interview with appellant and asked him what his attorney had told him. Appellant replied that “he told me to tell the truth”. Tucker then told appellant to tell the truth. Appellant proceeded to give an oral statement, which later was reduced to writing. It was also shown that appellant acknowledged in writing, before giving the typed statement following the oral statement to Tucker, that he had talked to his attorney, was given his constitutional rights, and that he wished to give Tucker an additional statement.

It is clear that the deceit complained about involves only the handling of appellant’s shoes, and Hall’s subsequent statement. We are not persuaded that appellant’s contention that the deceit rendered the statement involuntary can be sustained. In Hopkins v. State, 19 Md. App. 414, 424, 311 A. 2d 483, 489 (1973), this Court stated:

“(T]he mere fact that the accused was motivated to make an inculpatory statement in reliance upon the officer’s deceit does not render the accused’s statement inadmissible or involuntary.”

In Hopkins, supra, a police officer informed an accused that an accomplice had made a confession in which he implicated the accused, which was in fact untrue. The Court went on to say:

“While Escobedo and a host of other cases proscribe the use of force to obtain a confession, there is nothing in the Court’s opinion that bans the use of deceit as a valid weapon of the police arsenal.”

Id. at 311 A. 2d 489.

We note here that the claimed deceit in this case only resulted in appellant asking to contact his attorney and could not be viewed as a threat or coercion so as to make the statement involuntary. Accordingly, we see no reason to retreat from our position taken in Hopkins.

Appellant next attacks the voluntariness of his statements because his “consistent reliance” upon the advice of counsel refutes any suggestion that he had relinquished his Sixth Amendment right to counsel. He argues that the Supreme Court, in Brewer v. Williams, 430 U. S. 387, 97 S. Ct. 1232, 51 L.Ed.2d 424 (1977) stated, “Waiver requires not merely comprehension but relinquishment, and Williams’ consistent reliance on the advice of counsel in dealing with the authorities refutes any suggestion that he waived that right”. Appellant correctly cites Brewer for this limited proposition. However, appellant’s reliance on Brewer under the facts of this case is misplaced, because the Court there also pointed ' out:

“The Court of Appeals did not hold, nor do we, that under the circumstances of this case Williams could not, without notice to counsel, have waived his rights under the Sixth and Fourteenth Amendments. It only held, as do we, that he did not.”

Id. at 405-406, 97 S. Ct. at 1243, 51 L.Ed.2d at 441.

Reliance on State v. Fowler, 259 Md. 95, 267 A. 2d 228 (1970) to support appellant’s contention on this issue is likewise misplaced. In Fowler, the defendant had been given his Miranda warnings several times, although the record was silent as to his response each time he received the warnings. Fowler also interrupted his interrogation to call his brother to see if he had gotten an attorney for him; the police knew this and continued with the interrogation because “he didn’t stress that he wanted an attorney”. There were other factors present in Fowler that are not present in the case sub judice. It is clear from the record here that Fowler does not dictate that appellant in this case did not validly waive his Sixth Amendment rights.

Thus we conclude that if the record does affirmatively show a waiver of appellant’s right to have counsel in this case, then any attack on the admissibility of any statement given thereafter must fail. So far as this particular issue is concerned, we keep in mind we are only dealing with the statement given to Detective Tucker at the Prince George’s County Bureau of Criminal Investigation Office in Forestville which was taken without appellant’s counsel being present. The record clearly shows that a written waiver was obtained from appellant before any interrogation was begun at that location. Further, the record discloses that after appellant and Tucker talked to appellant’s counsel, appellant agreed to tell the truth, gave an oral statement, and then allowed this to be reduced to writing in which he acknowledged he had talked to his attorney and was given his “constitutional rights”.

We hold that under the circumstances of this case, as revealed by the record, appellant voluntarily and knowingly waived his right for counsel to be present, and thus there was no error by the trial court in refusing to suppress the statements on these grounds.

B.

WERE THE STATEMENTS IMPROPERLY ADMITTED BECAUSE THEY RESULTED FROM INEFFECTIVE ASSISTANCE OF COUNSEL

Appellant argues that since he had a constitutional right to the assistance of counsel, it necessarily follows that he was entitled to the effective assistance of counsel. McMann v. Richardson, 897 U. S. 759, 90 S. Ct. 1441, 25 L.Ed.2d 763 (1970); State v. Renshaw, 276 Md. 259, 347 A. 2d 219 (1975). He further argues that he was guaranteed effective assistance, among other things, in protecting himself against self-incrimination. Since his counsel advised him to tell the truth, and was not present when appellant gave his statement to Detective Tucker, appellant contends this amounted to ineffective assistance of counsel. Also, appellant maintains the police should have recognized it as such and not capitalized on such inadequate representation in securing the confession. He thus argues that his confession should have been suppressed.

It must be observed that the factual basis supporting appellant’s contention is limited to counsel allowing appellant to give a statement to the District of Columbia police authorities in his presence; in allowing appellant to give a statement to Prince George’s County Police authorities in his absence, but after a fifteen minute telephone conversation with appellant and counsel; and in telling appellant to tell the truth.

There is no doubt that appellant was entitled to the effective assistance of counsel. McMann v. Richardson, supra; State v. Renshaw, supra. However, we conclude this evidence forms little basis upon which to find that this advice and action demonstrated incompetence on the part of counsel. Appellant’s counsel at the time was not called as a witness, and the record, therefore, does not disclose the basis upon which he gave his advice, so we cannot say that such advice was incompetent per se. See People v. Wong, 35 Cal. App. 3d 812, 111 Cal. Rptr. 314 (1974), for a strikingly similar case in which the same conclusion was reached. There may have been many reasons why the attorney gave the advice he did, but none was apparent from the record, and we think it clear that the point cannot be decided on this appeal, but may be raised in a petition for post conviction relief. Evans v. State, 236 Md. 532, 204 A. 2d 554 (1964).

II

DID ADMISSION OF APPELLANT’S INCULPATORY STATEMENT VIOLATE THE FIFTH AMENDMENT BECAUSE THE STATE DID NOT SHOW BY A PREPONDERANCE OF THE EVIDENCE THAT THE STATEMENT ' WAS VOLUNTARY

Appellant contends that his statement given to Detective Tucker was involuntary because of:

1) the absence of a valid waiver of his Miranda rights, and
2) the presence of coercive elements during the interrogation.

What we have previously said in our discussion of appellant’s contention is adopted here in answer to this contention. We find no merit with respect to the lack of proof of a valid waiver of counsel, nor to appellant’s argument that his statement was involuntary because it was coerced. Nor do we find, under the facts of this case, any necessity for the police to have given appellant his Miranda warnings again after Detective Hall’s false statement and appellant’s telephone conversation with his attorney. We do observe, however, that at this point appellant did execute a form of waiver and we are satisfied that he did so fully aware of his rights. We see nothing here that brings the case within Brown v. State, 6 Md. App. 564, 252 A. 2d 272 (1969), although we agree with our predecessors in Brown when they said:

“We quite agree with the cases which hold that the Miranda warnings need not be given anew nor the Miranda waiver expressed each time the officers question an accused.” Id. at 569.

We conclude that the record clearly shows this statement to have been given voluntarily, in the constitutional sense, and there was no error in denying appellant’s motion to suppress.

Ill

WERE STATEMENTS OF ONE OF THE HOMICIDE VICTIMS PROPERLY ADMITTED AS DYING DECLARATIONS

The trial court admitted, over objection of defense counsel, two statements made by one of the victims, William (Tony) Cunningham. The appellant claims that the trial court erred in admitting these statements because they do not meet the established criteria required for the dying declarations exception to the hearsay rule.

The specific criteria that appellant contends these statements do not meet is the requirement that the declarant be conscious that death was near and certain. Connor v. State, 225 Md. 543, 171 A. 2d 699 (1960); Chandler v. State, 7 Md. App. 646, 256 A. 2d 695 (1969). It is clear from the authorities that a sense or mere belief of impending death is not sufficient to constitute the statement a dying declaration; the declarant must have abandoned all hope of recovery. 2 Torcia, Wharton’s Criminal Evidence § 321 (13th ed.) cited with approval in Connor); McCormick, Evidence § 680 (2d ed.) (cited by Connor); 5 Wigmore, Evidence § 1440 (3d ed.) (cited with approval in Connor); Hawkins v. State, 98 Md. 355, 57 A. 27 (1904).

The authorities also agree that the belief of impending death need not be expressed by the declarant, but may be inferred from the circumstances, such as the fatal quality of the wound or from statements made to the declarant by a doctor or others. Connor v. State, supra.

After reviewing both statements and the relevant accompanying circumstances, we are unable to conclude that the declarant, Cunningham, at the time of the first statement at issue, was certain that he would die, and had abandoned all hope of recovery. Therefore, we think that the trial court erred in admitting this statement. We now explain why.

The first statement was made by Cunningham, at the scene of the homicide a short time after the shootings, to Officer Linger of the Prince George’s County Police. At the trial the officer recounted the statement and surrounding circumstances. Officer Linger testified that when he arrived at the scene, Cunningham was lying face up, partially in a small creek. Linger helped move Cunningham onto the bank of the stream, and observed that the victim had been wounded by a shotgun blast to the side. Although Cunningham was in pain and groaning, his speech was “understandable”. Linger testified to the following conversation:

“Cunningham: Is it bad?

Linger: It doesn’t look good. I am no doctor, hang on, an ambulance is on the way. Who shot you?

Cunningham: James Person.

Linger: Anybody else?

Cunningham: Junior Jones.”

While the nature of the wound was extremely serious and, standing alone, might allow an inference that Cunningham had abandoned all hope of recovery, the expressions of Cunningham and Officer Linger indicate that this was not the case. Declarant indicated initially that he did not know how bad his wound actually was. Such a question, standing alone, negates any inference drawn solely from the seriousness of the wound itself. Additionally, Officer Linger held out hope to Cunningham by telling him to hold on until the ambulance and medical help arrived. Given those circumstances, the statement simply does not meet the necessary criteria so as to constitute a valid dying declaration, and it should have been excluded as hearsay.

The second “dying declaration” was made by Cunningham to Officer Bethel at the emergency room of Prince George’s General Hospital. Officer Bethel testified at trial that:

“As they were wheeling the victim into a room, an emergency room, he noticed the hospital personnel and he was pleading for assistance because he was dying. At that time I asked him who had shot him. He replied Junior Jones, sawed-off shotgun, and James Person.”

Also relevant to the circumstances concerning this statement are the conversations that Cunningham had with Officer Bethel while being transported to the hospital. Bethel testified:

“I asked him if he knew he was going to die. He replied yes, I know I am going to die. Please get me to the hospital.”
“He pleaded with the medical personnel to please help him, he was dying.”

Officer Bethel considered that the statement made at the hospital was a “resumption” of the ambulance conversations.

We conclude that Cunningham was certain that death was impending; that he had abandoned all hope of recovery. Cunningham did expressly state that he knew he was dying. Each time, according to Officer Bethel, these expressions of impending death were followed by requests for medical assistance, which indicated hope for amelioration of pain but not a hope of recovery.

In Hawkins v. State, supra, the Court of Appeals held that certain dying declarations met the requirement of abandonment of hope of recovery, despite one statement to the effect, “Do get me help; if you don’t send for the doctor I will die.” That statement, however, was constantly preceded and followed by statements that the declarant knew she was going to die. In addition, those constant expressions were bolstered by the declarant’s mother who testified that “she could see death in her eyes.”

It is evident from the circumstances that Cunningham had abandoned all hope of recovery, and the second statement does qualify as a dying declaration and was properly admissible.

Even though we have found that the trial court erred in admitting the first statement made by Cunningham, we find the error to be harmless in light of all the properly admitted evidence in this case. Upon our own independent review of the record, we find, beyond a reasonable doubt, that the trial court’s error in admitting this statement did not influence the verdict. Dorsey v. State, 276 Md. 638, 350 A. 2d 665 (1976); Ross v. State, 276 Md. 664, 350 A. 2d 680 (1976); Saunders v. State, 28 Md. App. 455, 346 A. 2d 448 (1975). The record reveals Swain’s testimony which placed the appellant at the scene and as a participant in the kidnapping, which is enough by itself to warrant conviction. In addition, the appellant’s own corroborated confession totally inculpates him in the murders. In light of the overwhelming evidence present in the record, we have no difficulty in declaring our belief that the error was harmless beyond a reasonable doubt.

IY

DID THE TRIAL JÜDGE IMPROPERLY REFUSE AN INSTRUCTION ON APPELLANT’S SIXTH AMENDMENT RIGHTS

This contention is bottomed on appellant’s request to the court to instruct the jury further, after its initial instructions, with specific regard to appellant’s Sixth Amendment rights. The record reveals the court had previously given the following instructions:

“Evidence has been produced here that the defendant has confessed that he has committed the crime or crimes with which he is charged. You are instructed that you are to disregard it, these alleged confessions, in your evaluation of the evidence against the defendant unless you are satisfied beyond a reasonable doubt that the defendant was clearly advised of each of his rights before making the confession, that while he was in custody and while he was undergoing interrogation the defendant must have been specifically advised of his rights as follows:
That he had a right to remain silent. That anything he said could be used against him in a court of law. That he had the right of presence of an attorney during any questioning. And lastly, that if he could not afford an attorney that one would be appointed for him prior to any questioning if he so desired.
And the burden is on the State to prove to your satisfaction beyond a reasonable doubt that these confession or confessions that have been admitted into evidence were reasonably and freely and voluntarily made by Mr. Jones.
You must weigh in your deliberations any circumstances of pressure against the power of Mr. Jones to resist. A voluntary confession is defined as one which under all the circumstances is the product of a free and unconstrained will which has not been overborne or compelled.
If you find that the evidence shows beyond a reasonable doubt that the confession was freely and voluntarily made by the defendant, then you are to consider this confession or confessions along with all the other evidence that has been presented in this case in arriving at a verdict.
You are instructed that a valid confession alone is-not sufficient evidence upon which to convict anyone. You must find that the defendant’s confession has been corroborated by independent evidence to establish that a crime has been committed and this evidence need not establish by itself that a crime has been committed beyond a reasonable doubt, but need only to fortify the truth of the confession.
You must make a determination, if you find that the confession was voluntarily made, you must rule on that like all the other evidence in this case and just put it along with all the other evidence to satisfy yourselves beyond a reasonable doubt that Mr. Jones is either gulity or innocent of the crime or crimes with which he is charged.”

Defense counsel made the following additional request: •

“In addition to that, in dealing with the confession, the Court only told them that they are to be concerned with whether — he should be concerned, remain silent, the Court has not told them about effective representation of counsel nor indeed has the Court told them that when the police know that an individual has an attorney, that that attorney should be present, and I ask that the Court supplement it — the Court having given those instructions, that the Court supplement it with the specific instruction that if the police knew that the man was represented by an attorney and they proceeded to interrogate without that attorney present, that they must take that into consideration.”

While the record is silent as to the court’s ruling on this point, it is clear that in giving additional instructions the court did not include this request. The question we must answer then, is, should the trial judge have so instructed.

By rule (Md. Rule 756 (b) ) and case law it is the duty of the trial judge in a criminal case to give an advisory instruction, on request, on every essential point of law supported by the evidence. Notwithstanding that rule, it is clear that a specific request may be denied, if the instructions as a whole adequately cover the points of law raised. Id.; Harris v. State, 11 Md. App. 658, 276 A. 2d 406 (1971). The record is clear in the instant case that the instructions as given by the trial judge did adequately embrace the requested instruction even though not in the precise language of the request. We perceive no error.

V

DID APPELLANT’S KIDNAPPING CONVICTIONS VIOLATE THE PROHIBITION AGAINST DOUBLE JEOPARDY

Finally, appellant argues that under the rationale of Newton v. State, 280 Md. 260, 373 A. 2d 262 (1977), his convictions for kidnapping must be merged with his murder convictions. The State contends that merger is not required because there was evidence from which the jury could have found appellant guilty of murder, independent of the kidnapping, i.e., there was evidence from which the jury could have found “wilfulness, premeditation, and deliberation”.

This Court was confronted with the identical issue in Godwin v. State, supra, where Judge Moylan, speaking for the Court, said:

“The appellant’s final contention is that since the conviction for murder in the first degree might have rested upon Article 27, § 410, providing, inter alia, that all murder committed in the perpetration of a kidnapping shall be murder in the first degree, the underlying felony of kidnapping must, in three of the indictments at least, merge into the ensuing felony-murders. The appellant relies upon Newton v. State, 280 Md. 260, 373 A. 2d 262. Newton, of course, does not stand for such a proposition at all. It rather holds that if the only credible evidence before a fact finder which could justify finding that the highest degree of blameworthiness existed in a homicide case was the fact that one of the felonies spelled out in §§ 408-409 or 410 was being perpetrated, or attempted, then and only then would the undergirding felony, or its attempt, merge of necessity into the conviction for homicide. If, on the other hand, there was legally sufficient, independent evidence of wilfulness, deliberation and premeditation under Article 27, § 407, then the merger would not be compelled. Newton v. State, 280 Md. at 273-274. And see Frye v. State, 37 Md. App. 476, 378 A. 2d 155 (1977).
In the present case, the clear evidence establishing premeditation could not have been more beyond dispute. This was a classic ‘ambush’ or ‘lying in wait’ case. The three murderers set out upon a well-articulated and unequivocal scheme of luring into a trap, kidnapping, transporting to a deserted area, subjecting to an identification process at the hands of Johnnie Mae Jones and then executing all of those persons who had ostensibly robbed her. This calculated and deliberated chain of events stretched out over many miles and several hours. There was no sudden anger or mutual affray. The homicide victims were helpless targets. Under the circumstances of this case, a merger of the convictions is not remotely called for.”

Our holding in Godwin is dispositive of the issue before us.

Judgments affirmed.

Appellant to pay costs.

      . Jones’ statement to Detective Tucker, October 29, 1975, State’s Exhibit Number 22, includes:
      “Question: AH right. Is it correct that after having talked with your attorney on the telephone and having been advised of your Constitutional rights you now wish to give me an additional statement concerning (he triple homicide which occurred 10-24-75 on Deputy Lane, Seat Pleasant, Maryland?
      “Answer: Yes. * * *”

      . Now Rule 757 b.


author: Morton, J.,

text:
    ISAAC NEWTON JOHNSON and CHARLES TERRELL WALTERS v. STATE OF MARYLAND
    [No. 263,
    September Term, 1977.]

      Decided December 13, 1977.

      The cause was argued before Morton, Mason and WlLNER, JJ.

      Bradford C. Peabody, Assistant Public Defender, with whom was Ajan H. Murrell, Public Defender, on the brief, for appellants.

      Arrie W. Davis, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Gilbert Rosenthal, Assistant Attorney General, John S. Hollyday, State’s Attorney for Washington County, and Darrow Glaser, Assistant State’s Attorney for Washington County, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

Appellants, Isaac Newton Johnson and Charles Terrell Walters, were convicted by a jury in the Circuit Court for Garrett County (Thayer, J., presiding) of murder in the first degree (felony murder), attempted robbery with a deadly weapon, assault and use of a handgun in the commission of a felony. Both were sentenced to life imprisonment for the murder convictions and consecutive five year terms for the handgun convictions. Additionally, terms of ten and five years, respectively, were imposed on each appellant for the attempted robbery and assault convictions, to run concurrently with the life sentence.

Appellants contend in this appeal that the trial court erred (1) in denying their motions for separate trials and (2) in admitting extra-judicial statements uttered by Walters which implicated Johnson in these crimes in violation of the rule against the admission of hearsay evidence and the confrontation clause of the sixth amendment; that (3) appellants’ simultaneous convictions for felony murder and the underlying felony violate the fifth amendment prohibition against double jeopardy and (4) appellants’ convictions for assault should merge into their convictions for attempted robbery with a deadly weapon.

The record reveals that on March 15, 1975, at approximately 8:25 p.m., Ralph Charles Hull was shot and killed while in the grocery store which he operated in Hagerstown, Maryland. During the course of a four day trial, the State elicited the following testimony.

Claudus Barger, who was peripherally connected to the offense, testified that several days prior to the crimes he and several friends, including appellants, drove past the victim’s store. According to Barger, one of his passengers “said something about it would be an easy place to knock off or something.” Although not certain, Barger thought that Walters had made the remark. Barger also testified, over objection, that between 5 and 5:30 p.m. on the evening of the crimes Walters told him that “he was going to pick up Ike and make some money.”

It was further revealed that Barger, upon learning that appellants had been arrested, removed a .38 caliber pistol and holster from Walters’ car. Barger removed three live shells and one spent shell from the gun and flushed the shells down the toilet. The gun was eventually recovered by the Hagerstown Police Department.

Lieutenant Paul Mentzer testified that the .38 caliber bullet removed from the victim’s body was discharged from a gun similar to the one that Barger had found in Walters’ car, although the bullet was too mutilated to be positively identified. There was also testimony that Walters was carrying a .32 caliber revolver when he was arrested.

The State produced two witnesses, Stephen Hull and Donald Pitznogle, who identified Johnson at a lineup as being one of the participants in the robbery. Although unable to identify either appellant at the lineup, the father of Donald Pitznogle testified that he saw Johnson flee from the victim’s store carrying a gun, shortly after he had heard a shot emanating from within the store.

John Kahl-Winter, when called to the witness stand by the State, testified that he had approached Walters earlier on the day of the shooting and asked him to repay a prior loan. Walters instructed Kahl-Winter to meet him at the Hat Tavern that evening as he “would be picking up a check at 8:00 p.m.” At the tavern Walters showed Kahl-Winter a .32 caliber revolver and told him that “this is what I’ve been doing.” Walters also told him that he had just finished “pulling a job” in Damascus for $400 and that he had “pulled a couple” others around town. Later that evening, after Walters had returned to the Hat Tavern, Kahl-Winter once again approached Walters for the money. Walters retorted that “[i]t didn’t go down right, we had to shoot the man.”

The final witness called by the State was Margaret Shawyer, Johnson’s girlfriend. She testified that Johnson called her on the evening of March 15,1975, at approximately 8:35 p.m. and “sounded nervous and his voice was quivering.” Johnson mentioned something to her about a “fight,” although he was vague over the telephone about details. Johnson informed Shawyer that he would “have to leave town for three or four days” and wanted her to come with him. Although she told him that she would be unable to leave Hagerstown, she did comply with his request to pick him up in a taxi. She further testified that during the course of the telephone conversation Johnson had exhibited anxiety about the police. Upon rendezvousing with appellants at the Hat Tavern, Shawyer stated that Walters rhetorically asked, “Why does everybody have to be a hero?”; and that Johnson inquired of her how she would feel “if . . . [he] had shot and killed somebody?”

In his defense Walters presented several alibi witnesses and attempted to discredit Shawyer’s testimony. Johnson did not put forth a defense.

Appellants first contend that the trial court erred in denying their motions for separate trials pursuant to Maryland Rule 735, which reads:

“If it appears that an accused or the State will be prejudiced by a joinder of offenses or of defendants in an indictment, or by joinder for trial together, the court may order an election or separate trial of counts, grant separate trials of defendants' or provide such other relief justice requires.”

The propriety of the trial court’s refusal to grant a severance is measured by the standards we recently articulated in McCree v. State, 33 Md. App. 82, 92-93, (1976), where we said:

“As we stated in Peterson v. State, 15 Md. App. 478, at 496:
‘The decision as to whether to grant a severance lies within the sound discretion of the trial judge under Maryland Rule 735, and one of the factors to be considered is the saving of time and expense which unnecessary separate trials would entail. Jennings v. State, 8 Md. App. 312. The Assistant State’s Attorney proffered and the evidence bore out such a strong probability of a common criminal effort by all defendants, including Logan, that the evidence admissible as to one would have been admissible as to all.’
“We see no abuse of discretion. We feel here as we did in Mason v. State, 18 Md. App. 130, at 141:
‘Under the circumstances of this case, where the evidence necessary to convict one of the appellants was the same evidence required to convict all of them, to have granted a severance would have resulted in a multitude of trials and unnecessary expense.’ ”

As in McCree and Mason, most, if not all, of the evidence admitted below would have been admissible in each trial if Johnson and Walters had been separately tried. We do not feel that the trial court abused its discretion in refusing to grant a severance in light of the length of the trial — four days — and the concomitant expense thereof. McKnight v. State, 280 Md. 604 (1977).

McCree notwithstanding, Johnson argues that the trial court erred in refusing to grant a severance because it was apprised of possible issues arising under Bruton v. United States, 391 U. S. 123 (1968), which, Johnson feels, mandated the granting of his request for a separate trial.

In Bruton, the petitioner was convicted partially on the basis of a confession given to a law enforcement official by Evans, Bruton’s co-defendant, which not only incriminated the confessor but also incriminated Bruton. Since Evans asserted his fifth amendment right not to testify, Bruton argued that the admission of Evans’ confession violated his right under the sixth amendment to confront all witnesses against him because he was denied an opportunity to cross examine Evans on the witness stand. See Pointer v. Texas, 380 U. S. 400 (1965). In reversing Bruton’s conviction Justice Brennan, speaking for the Court, stated:

“This case presents the question, last considered in Delli Paoli v. United States, 352 U. S. 232,whether the conviction of a defendant at a joint trial should be set aside although the jury was instructed that a co-defendant’s confession inculpating the defendant had to be disregarded in determining his guilt or innocence.
“[T]he court [below], relying upon Delli Paoli, affirmed petitioner’s conviction because the trial judge instructed the jury that although Evans’ confession was competent evidence against Evans it was inadmissible hearsay against peititoner and therefore had to be disregarded in determining petitioner’s guilt or innocence.... We have concluded, however, that Delli Paoli should be overruled. We hold that, because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining petitioner’s guilt, admission of Evans’ confession in this joint trial violated petitioner’s right of cross-examination secured by the Confrontation Clause of the Sixth Amendment. We therefore overrule Delli Paoli and reverse.” 391 U. S. at 123-26.

Bruton thus stands for the proposition that the introduction of a co-defendant’s confession to a law enforcement official, which also inculpates his co-defendant, violates the non-confessing defendant’s right to confront all witnesses against him and that said violation cannot be cured by an admonition to the jury not to consider the confession against the non-confessing defendant.

The State, in this appeal, adopts the argument advanced by the state’s attorney below that “he did not believe Bruton would apply in the instant case because he believed Bruton to apply:

‘... only to extra judicial admissions made to law enforcement officers where there are two or more defendants, and we have them. These two men were never interrogated. The police didn’t even try to take a statement from them. So, I submit to you there is no Bruton problem ... and if they [statements] would be improper under Bruton, the court wouldn’t permit them. If I thought they were improper, I wouldn’t offer them. But we don’t even have them, we have no testimony or statements which come under the Bruton rule ....’”

We do not here reach the soundness of the State’s position since, as we shall discuss below, even if the failure to grant a severance in light of alleged Bruton problems was erroneous, such error, in the context of this case, would be harmless beyond a reasonable doubt. Dorsey v. State, 276 Md. 638 (1976).

We agree with appellants’ contention that the out-of-court statements by Walters and Kahl-Winter were pure hearsay and erroneously allowed into evidence against Johnson in violation of the rule prohibiting the admission of hearsay statements. “Hearsay evidence has been defined as ‘testimony in court of a statement made out of court, the statement being offered as an assertion to show the truth of the matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.’ ” Mutyambizi v. State, 33 Md. App. 55, 65 (1976), quoting McCormick, Evidence 584 (2d Ed. 1972). Thus, there can be no question that the testimony Johnson complains of was hearsay evidence.

We think it equally clear that it does not fall within any of the established exceptions to the hearsay rule. It is true that “the modern cases and text leave no room to doubt the statement that the accepted principle today is that evidence of declarations of a plan, design or intention presently entertained by the declarant is ... admissible when offered as evidence that the design was carried out by acts or omissions of the declarant.” Md. Paper Products Co. v. Judson, 215 Md. 577, 591 (1958). See also Bartell v. Bartell, 28 Md. App. 180 (1975), rev’d on other grounds, 278 Md. 12 (1976).

The availability of this exception to the hearsay rule is, however, subject to the following caveat when Walters’ out-of-court comments aré offered into evidence against Johnson:

“A further related problem is raised when the declarant’s statements tend to prove cooperative actions on the part of others. If those cooperative actions themselves are at issue, there is a significant danger that the jury will use the declarant’s statements as proof not only of the declarant’s actions but also of the cooperative actions by a third person. In effect, the declarant’s statement will be taken as proof of the other person’s intent and as proof that this intent was carried out. For example, in the homicide prosecution of Frank, a witness testifies that on the morning of the killing the victim said, T am going out with Frank tonight.’ While this tends to prove the victim’s acts, it also tends to prove that Frank went out with the victim, a fact very much in issue. Despite the danger that juries will be neither willing nor able to make the distinction, courts have tended to admit the statements in these cases with limiting instructions directing the jury to consider them only on the issue of the declarant’s actions.” McCormick, supra at 699.

Since the trial judge did not instruct the jury that Walters’ inculpatory out-of-court statements were not to be considered in assessing Johnson’s culpability, their admissibility is not permitted under the plan, design or intention exception to the hearsay rule.

In Mutyambizi v. State, supra at 66, Judge Liss, speaking for this Court, set forth with approval the following statement from 2 Wharton, Criminal Evidence, § 272, at 21 (13th ed. 1972):

“Where hearsay evidence has been improperly admitted over the objection of the adverse party, the error will require a reversal if the evidence relates to a material issue or is prejudicial to such adverse party. If the hearsay evidence is neither material nor prejudicial, the error will be ignored, provided that the conviction is amply supported by other competent evidence. Thus, the admission of hearsay evidence will not constitute reversible error where it is merely cumulative.”

See also Johnson v. State, 23 Md. App. 131, 136 (1974).

Whether the admission of Walters’ out-of-court statements was a violation of Bruton, which we do not decide, or simply a violation of the hearsay rule, our review of the record convinces us that the introduction of the hearsay testimony was harmless “beyond a reasonable doubt, [and] that the error in no way influenced the verdict” rendered against Johnson. Dorsey v. State, supra at 659. Johnson’s girlfriend, Margaret Shawyer, testified that she spoke to Johnson over the telephone shortly after the murder had occurred at which time he “sounded nervous” and exhibited anxiety about the presence of the police; that he mentioned something about a “fight” and indicated that he had to leave town for a few days. More importantly, Shawyer testified to Walters’ rhetorical statement, “Why does everybody have to be a hero?,” as well as Johnson’s fatal query: “How would you feel if I had shot and killed somebody?” If any doubts remained as to Johnson’s involvement in these offenses, they were dissolved, in our view, by the eyewitness testimony of Stephen Hull, the younger Donald Pitznogle and the elder Donald Pitznogle that they had observed Johnson wielding a gun while participating in the robbery.

We agree with appellants’ next contention that the simultaneous convictions and sentences for felony murder and the underlying felony (attempted robbery with a deadly weapon) violate the fifth amendment prohibition against being twice placed in jeopardy. Newton v. State, 280 Md. 260 (1977). Accordingly, we reverse appellants’ convictions for attempted robbery with a deadly weapon.

Appellants lastly contend that the convictions for assault merge into their convictions for attempted robbery with a deadly weapon. As this contention was not raised in the court below, it may not be made for the first time here. Maryland Rule 1085; Colbert v. State, 18 Md. App. 632 (1973).

Judgments of first degree murder, assault and use of a handgun in the commission of a felony, affirmed; judgments of attempted robbery with a deadly weapon, reversed; appellants to pay one-half the costs; one-half the costs to be paid by Washington County.

      . A hearing was held on Walters’ motion for severance on October 20, 1976, before Judge Stuart F. Hamill. Johnson’s motion was heard immediately prior to trial on February 22, 1977, by Judge Fred A. Thayer.

      . Rules 734 and 735 were consolidated into Rule 745, effective July 1, 1977.

      . Appellants refer specifically to Walters’ statement to Barger on the evening of the crimes that "he was going to pick up Ike and make some money” and to Kahl-Winter’s testimony that Walters related to him at the Hat Tavern at 9:45 p.m. on the evening of the crimes that “[i]t didn’t go down right, we had to shoot the man.” It is patent that the use of “we” referred to Johnson and Walters (Adam and Green v. State, 14 Md. App. 135, 142 (1972)) and that “Ike” was appellant Isaac Newton Johnson.

      . See n. 2, supra.

      . Clearly, the statements were admissible against Walters as an admission against penal interest. Smith v. Branscome, 251 Md. 582 (1968); Harris v. State, 27 Md. App. 547 (1975).