author: Moylan, J,,

text:
    ROLAND NEVILLE GODWIN v. STATE OF MARYLAND
    [No. 200,
    September Term, 1977.]

      Decided November 14, 1977.

      Opinion Modified February 28, 1978.

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

      Joseph A. DePaul and James E. Kenkel, with whom were William C. Brennan, Jr., and DePaul, Willoner & Kenkel, P.A. on the brief, for appellant.

      Kathleen M. Sweeney, Assistant Attorney General, with whom were Francis B. Burch, 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 on the brief, for appellee.
   Moylan, J,,

delivered the opinion of the Court.

This case grows out of a macabre series of cold-blooded executions reminiscent of the St. Valentine’s Day Massacre. As one of those executioners, the appellant, Roland Neville Godwin, was convicted in the Circuit Court for Prince George’s County by a jury, presided over by Judge Jacob S. Levin, of three counts of first-degree murder, four counts of kidnapping and four counts involving the unlawful use of a handgun in the commission of a felony. Upon this appeal, he raises seven contentions:

1) That an extrajudicial identification of him by a codefendant-turned-State’s-witness was unconstitutionally received in evidence;

2) That a tainted in-court identification of him by the sole survivor of the executions was unconstitutionally received in evidence;

3) That a tainted extrajudicial photographic identification by a witness was unconstitutionally received in evidence;

4) That he was unduly restricted in his cross-examination of State’s witnesses in terms of impeaching their credibility;

5) That the trial court erred when it failed to declare a mistrial because of allegedly improper argument by the State’s Attorney;

6) That the trial court committed error when it failed to instruct the jury on the meaning of premeditation; and

7) That the kidnapping convictions should have merged into the felony-murder convictions.

Initially, we will briefly set the factual backdrop of the case. A codefendant and ultimate State’s witness, Johnnie Mae Jones, was apparently the victim of a robbery. Instead of complaining to the authorities, she complained to her brother, codefendant Willie Lee Jones, Jr., and the two of them elected to take the law into their own hands. They were joined in this venture by their two ultimate codefendants, James Richard Person and the appellant.

The four victims were Alvin Jones, Anthony Cunningham and David Dock, all three of whom were executed, and Ronald Swayne, who survived to testify. There were strong intimations in the evidence that the executioners as a group and the victims as a group were part of a narcotics-using culture and that there were some social acquaintanceships flowing between the two groups.

The executions occurred during the pre-dawn hours of October 24, 1975. Ronald Swayne left his home at between 8 and 9 p.m. on October 23 in his own car, a red Cougar. He drove to the residence of his friend (and one of the executed victims) Alvin Jones. He there picked up Jones and another of the ultimate victims, Anthony Cunningham. The threesome drove to an apartment building on C Street in southeast Washington. Swayne blew the horn of his automobile and two individuals came out of the apartment to join them. They were two of the ultimate killers, but danger signs had not as yet reared their heads. The two individuals were codefendant James Richard “Reds” Person, an acquaintance of Swayne, and the appellant, “a tall slim black man” whom Swayne had never seen before. Shortly thereafter, David Dock, the remaining ultimate victim, came out of the same apartment and joined “Reds” Person and the appellant in an orange Volkswagen. The orange Volkswagen took off first; Alvin Jones directed Swayne to follow in his red Cougar. Both cars, and all six persons, drove out of the District of Columbia into Seat Pleasant in Prince George’s County, Maryland. All six individuals went into an apartment. They there joined codefendant Willie Lee Jones, Jr. (“Junior”). Swayne testified that he himself was a former drug user and that Alvin Jones was still, as of that night, a heavy drug user. Alvin Jones was in the process of “shooting some narcotic drugs into his arm” when Swayne heard a shot. He looked up and saw that three of the group —- “Reds” Person, “Junior” Jones and “the tall slim black man” (the appellant) — all had pistols and were training them upon the other four men. Swayne, along with Cunningham, Dock and Alvin Jones, was told to lie down on the floor. All four of the victims were then covered up with blankets. Swayne heard conversation dealing with the fact that “somebody’s sister had been robbed.” “Reds” Person and the appellant then placed all four of the victims into a blue Cadillac. Swayne and Cunningham were put on the floor of the back seat. Alvin Jones and Dock were put in the trunk. “Reds” Person and the appellant then drove the Cadillac for between twenty minutes and half an hour to an unknown location.

It was at this unknown location that the identification phase of the “drumhead court-martial” was to take place. Swayne overheard someone say, “Get Junior’s sister.” About half an hour later, Johnnie Mae Jones (Junior’s sister) arrived at the scene. “Reds” Person ordered Cunningham and Swayne to lift up their heads from the floor. Johnnie Mae Jones identified Cunningham as one of the men who had robbed her, thereby sealing his doom. She indicated, on the other hand, that Swayne was not one of her robbers, thereby saving his life. She subsequently was observed to identify Alvin Jones, who lay in the trunk of the blue Cadillac, as one of the robbers. Although Swayne did not testify as to having observed her identify David Dock, who also lay in the trunk of the blue Cadillac, presumably he was also somehow “deemed guilty.”

The testimony of Johnnie Mae Jones essentially corroborated- that of Ronald Swayne. She testified that she was picked up by her brother “Junior” Jones at between 1 a.m. and 3 a.m. on the morning of October 24. Her brother drove her to a location in Maryland “on a dark road near a little white church.” She there observed two of her brother’s friends, “Reds” Person, whom she had known before, and a “tall slim black man,” whom she had not known before and whom she knew that night only as “Slim.” “Slim” and “Reds” then ordered Cunningham and Swayne out of the back seat of the Cadillac. She testified that she knew that there were other unidentified individuals there because she heard “someone banging on the trunk of the Cadillac.” After she had exonerated Ronald Swayne, “Slim” ordered her brother “Junior” to take Swayne and to put him in the trunk of Swayne’s own car, the red Cougar. “Slim” then ordered “Junior” Jones to take Johnnie Mae Jones and Swayne home. “Junior” Jones and Johnnie Mae Jones left in the red Cougar, with Swayne in the trunk.

The story at that point is picked up by the testimony of Ronald Swayne. From his position in the trunk of his own red Cougar, he felt the car drive off. When the car stopped, “Junior” Jones released Swayne from the trunk but ordered Swayne to drive at “Junior” Jones’s direction. As of the moment when Swayne was released from the trunk, Johnnie Mae Jones, presumably now “home,” had left the automobile and the presence of Swayne and “Junior” Jones. At Jones’s direction, Swayne drove the car to an unknown location where they rejoined “Reds” Person and “the tall slim black man” later identified as the appellant. The appellant ordered “Junior” Jones to put Swayne back in the trunk of Swayne’s Cougar. From the trunk, Swayne heard a lot of shooting and then a “big boom.” He heard people running back to the car, heard them “jump into the car and pull off.” After the car had stopped, Swayne struggled for about five to ten minutes and finally “was able to pop his trunk open.” He was the only one upon the scene and he drove his car home.

A disinterested witness, Donald McCain, supplied some of the missing threads. During the early morning hours of October 24, he was staying in a house in Seat Pleasant, Maryland. He looked outside and saw an individual standing by his U-Haul van. Apprehensive about his van, he kept a close lookout and then went outside. He saw parked near his van both a blue Cadillac and a red Cougar. When he walked outside, he observed two individuals, one whom he already knew as James “Reds” Person, who asked McCain for a cigarette. The other individual, later identified photographically as the appellant, he described as “a tall slim black man.” After returning to the house where he was staying, he observed these two men walking up the street and one of them appeared to be carrying an object which looked like a gun. From the house, he later heard “about four, five or six shots; a few of these shots sounded like a shotgun and one sounded like a .22 caliber gun.” He looked out the window and observed two individuals running back toward the two cars. One of the individuals jumped into the blue Cadillac and the other jumped into the red Cougar and they both drove off.

Alvin Jones was found wounded in a nearby field. He later died at the Prince George’s County General Hospital. Found wounded in a nearby creek bed was Anthony Cunningham, who also later died in the Prince George’s County General Hospital. Also found in the creek with a head wound was David Dock, who was pronounced dead upon arrival at the Prince George’s County General Hospital.

The appellant was granted a trial severance. Identifications, both judicial and extrajudicial, were made of the appellant by three separate witnesses. Each of those identifications gives rise to an appellate contention.

1. The Extrajudicial Identification by _Johnnie Mae Jones_

At issue here is the mechanics of the identification as well as the constitutional soundness thereof. Although mechanically the identification involved a somewhat unusual two-step process instead of the more “garden variety” one-step process, we see no impediment. Involved was simply a bit of elementary logic as to which any fact finder should have the requisite competence. Johnnie Mae Jones had never seen the appellant before the night of the killings. At the trial, sixteen months after the fact, she was unable to make a judicial identification of him in the courtroom. (It is not without significance that the appellant had radically altered in appearance during the intervening sixteen months.) Johnnie Mae Jones, however, was unequivocal in her conclusion that the same "Slim” who had been the only member of the three-man “firing squad” not theretofore known to her as of the morning of October 24,1975, had been the same “Slim” who had stood in the dock with her; her brother, Willie Lee “Junior” Jones, Jr.; and James Richard “Reds” Person at a pretrial hearing on March 30, 1976, five months after the crimes and eleven months before for failure to identify the appellant in the courtroom at the time of the appellant’s trial. Her testimony established the major premise of the ultimate identification syllogism: The “Slim” who was at the crime scene is the “Slim” who stood with my brother, “Reds” Person and me in the dock on March 80, 1976. A equals B.

The minor premise was supplied by Edward Garrison Neal, a former Assistant State’s Attorney who had been present at the pretrial hearing of March 30, 1976. He stated that four prisoners stood in the dock. They included Johnnie Mae Jones, later turned State’s witness; her brother, Willie Lee “Junior” Jones, Jr.; and James Richard “Reds” Person. The fourth person was Roland Neville “Slim” Godwin. Mr. Neal identified the Roland Neville Godwin who was a codefendant at the pretrial hearing of March 30,1976, as the same Roland Neville Godwin sitting at the trial table as the defendant on February 7, 1977. B equals C.

With the evidentiary establishment of that minor premise, the conclusion was ineluctable:

A equals B.

B equals C.

A equals C.

To wit, the “Slim” whom Johnnie Mae Jones observed at the crime scene is effectively identified as the appellant in this case. We see no flaw whatsoever in this chain of logic.

Granting that what was introduced in this case was an extrajudicial identification of the appellant made by Johnnie Mae Jones on March 30, 1976, the appellant challenges that extrajudicial identification on the grounds that it was impermissibly suggestive. We cannot agree with the appellant that exclusion was called for. We note initially that the police were not guilty of any contrived circumstances for identification purposes. The pretrial hearing of March 30, 1976, was not contemplated as an identification procedure in any way, shape or form. Four defendants were in court to have hearings on motions made by them. They were not there to identify each other. Johnnie Mae Jones herself was still a full-fledged defendant, who had not agreed to become a State’s witness. Self-evidently, she was not asked to identify anyone. The recollection that the man she knew as “Slim” at the crime scene had been with her in the prisoner’s box at the pretrial hearing was something that came to light only during her testimony at the trial upon the merits. Moreover, the appellant was represented by counsel at the pretrial hearing of March 30, 1976. There was simply no Sixth Amendment violation of the right to the assistance of counsel such as would invoke the per se exclusionary rule of United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U. S. 263, 87 S. Ct. 1951, 18 L.Ed.2d 1178 (1967).

When we are looking not at a deprivation of the Sixth Amendment’s right to counsel but only at so-called impermissive suggestiveness, it is now clear in the light of Neil v. Biggers, 409 U. S. 188, 93 S. Ct. 375, 34 L.Ed.2d 401 (1972); Manson v. Brathwaite, 432 U. S. 98, 97 S. Ct. 2243, 53 L.Ed.2d 140 (1977); Foster v. State, 272 Md. 273, 323 A. 2d 419; and Dobson v. State, 24 Md. App. 644, 335 A. 2d 124, that we exclude neither the extrajudicial identification itself nor a judicial identification based upon it except in those cases where there is a “substantial likelihood of irreparable misidentification.” In Manson v. Brathwaite, the Supreme Court spelled out the factors which militated against a per se exclusionary rule even where there had been present an element of impermissive suggestiveness. In opting rather for the “totality of circumstances” approach, it said, at 53 L.Ed.2d 152-153:

“The third factor is the effect on the administration of justice. Here the per se approach suffers serious drawbacks. Since it denies the trier reliable evidence, it may result, on occasion, in the guilty going free. Also, because of its rigidity, the per se approach may make error by the trial judge more likely than the totality approach. And in those cases in which the admission of identification evidence is error under the per se approach but not under the totality approach cases in which the identification is reliable despite an unnecessarily suggestive identification procedure — reversal is a draconian sanction. Certainly, inflexible rules of exclusion, that may frustrate rather than promote justice, have not been viewed recently by this Court with unlimited enthusiasm.”

The Court’s conclusion in Manson v. Brathwaite was clear, at 53 L.Ed.2d 154:

“We therefore conclude that reliability is the linchpin in determining the admissibility of identification testimony for both pre- and postStovall confrontations. The factors to be considered are set out in Biggers____ These include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.”

Applying the factors to be considered in this regard as spelled out in Neil v. Biggers, supra, we conclude, upon our constitutionally mandated, independent review, that no such likelihood was here present. Johnnie Mae Jones was in close contact with “Slim” for a significant period of time immediately preceding the shootings. “Slim” addressed her at point-blank range and asked her to identify at least several individuals. The incident was such as to rivet serious attention to it. The pretrial confrontation occurred within a few months of the crime. Johnnie Mae Jones appeared certain in her testimony that the man at the crime scene was the same man who stood with her as a codefendant at the pretrial hearing. Under the “totality of circumstances” approach mandated by the due process clause of the Fourteenth Amendment, we perceive no error in the admission of this pretrial identification.

2. The Judicial Identification by _Ronald Swayne_

The surviving victim, Ronald Swayne, identified the appellant as one of his assailants. The appellant takes umbrage at this judicial identification, claiming it to have been the poisoned product of a tainted one-on-one showup conducted by the police approximately two days after the crimes. Although we are by no means persuaded that even the extrajudicial identification itself, measured against the standard set out in Neil v. Biggers, might not pass muster, for admissibility purposes, in terms of its substantial reliability, it is unnecessary to undertake that lengthy analysis. If the in-court identification is not, indeed, the product of the earlier extrajudical identification, the suggestiveness vel non of that earlier confrontation is immaterial. As we pointed out in Green v. State, 35 Md. App. 510, 523, 371 A. 2d 1112:

“For an in-court identification to be suppressed, two things must be shown:
(1) That the extrajudicial identification procedure was the proximate cause of the ensuing in-court identification. (Even if there has been a tainted, to wit, impermissibly suggestive, extrajudicial identification procedure, the in-court identification may still be admissible if it is shown to be not the product of the earlier, tainted identification procedure. . . .).”

In this case, the independent source of Ronald Swayne’s judicial identification is clear. With the jury out of the room, the following was established unequivocally on direct examination:

“Q. Is your identification of the tall man in this courtroom today, Mr. Swayne, based upon your observations of him through the entire incident, or was it based upon anything or anyone you saw that Saturday in the District of Columbia police station?

MR. DE PAUL: Objection.

THE COURT: Overruled.

THE WITNESS: Based upon what I seen during that incident.”

The defense effort, on cross-examination, to cast doubt upon the independent source of the in-court identification was unavailing:

“Q. Of course, the help you got from the police helped you out a little bit, didn’t it?

A. Not really.”

The in-court identification was properly permitted.

3. The Extrajudicial Photographic Identification ___________ by Donald McCain _

Evidence was introduced establishing that Donald McCain had on approximately March 31,1976, identified a photograph of the appellant as one of the men he observed on the night of the crimes. Again, the lengthy analysis under Neil v. Biggers is unnecessary, because of the utter failure of the appellant to establish, as is his burden, any initial taint in the photographic viewing. There were ten pictures in the photographic array. Though all were not uniform, they were all of young Negro males, some with facial hair and some without. There was nothing to highlight the photograph of the appellant as the one to be picked. There was no suggestion that the police in any way indicated to McCain that it was the appellant’s photograph that should be singled out. Under Smith and Samuels v. State, 6 Md. App. 59, 250 A. 2d 285, the appellant simply did not carry his initial burden requiring the State to go forward in any regard.

4. The Limitation Upon the Cross-Examination _of the State’s Witnesses_

The appellant sought to cross-examine both Ronald Swayne and Donald McCain as to past criminal conduct or involvement with the police. Upon timely motion by the State, the trial judge ruled that such cross-examination, for purposes of impeaching credibility, must be limited to the showing of actual convictions of crime. With some few exceptions, this is the basic law of Maryland in this regard. Niemoth v. State, 160 Md. 544, 557, 154 A. 66; Hurley v. State, 6 Md. App. 348, 355, 251 A. 2d 241; Neam v. State, 14 Md. App. 180, 188, 286 A. 2d 540. The trial judge, in these situations, is faced with a delicate balancing. If there is a genuine suggestion or proffer that a witness’s involvement with the police is subjecting that witness to a strong motivation to lie, such evidence should be permitted. On the other hand, it must be rigorously guarded against that a witness be diminished in the'eyes of a jury simply by a showing that he is “a bad man.” It is furthermore to be noted that our law is evenhanded in terms of impeachment and deals equally with witnesses in a civil setting and in a criminal setting and without regard to whether they are witnesses for the prosecution or witnesses for the defense. It will never be permitted that defendants be free to slash away at will at State’s witnesses while having the character of their own witnesses more solicitously shielded from attack.

In this case, no proffer indicated that the police had subjected either State’s witness to any pressure to testify on behalf of the State. Ronald Swayne was a victim of this crime, not a friend of the defense who was grudgingly turned into a State’s witness. Under the circumstances, we see the effort of the defense to establish that Ronald Swayne had participated in several robberies that had been nol-prossed and that Donald McCain was “a dope pusher” and that he was involved with “prostitution rings” and with “stolen cars” as primarily an effort to discredit the two witnesses by showing that they were “bad men.” In Johnson v. State, 30 Md. App. 512, 517, 352 A. 2d 371, Judge Lowe pointed out the cautious limitations that should be placed upon efforts such as those advanced by the appellant in this case:

“We do not mean to imply that any time a witness testifies against a criminal defendant his entire record of previous arrests becomes relevant to the inquiry. Only where there is some present possibility of coercion should such cross-examination be allowed. If it should appear that the cross-examination is directed simply at casting the witness in the suspicious light that falls upon anyone under formal accusation, the trial judge must not allow it.”

We do not feel in this case that the trial judge abused the discretion which is wisely vested in him.

5. Allegedly Prejudicial Remarks in __Closing Argument___

The argument of the appellant to the effect that the prosecutor made prejudicial remarks in the course of closing argument is simply without factual predicate. The appellant claims that the prosecutor told the jury that Johnnie Mae Jones had made a photographic identification of the appellant, when in fact she had not made such a photographic identification. We cannot read into the words of the prosecutor any such meaning. In contrasting the ability to make an identification shortly after the crimes with the inability to make an in-court identification sixteen months later, the prosecutor was referring to the changed appearance of the appellant. He said the following:

“Now, we have two identifications, each of which is supporting the other. Where there might be a weakness in one, it is supported by the other, and vice versa.
But is that all we have? Is there anything more? Yes. She was our first witness. You heard her testimony. She was there. Johnnie Mae Jones.
She saw Roland Godwin as we see him in this picture.”

The prosecutor was here referring to a picture which the jury had of the appellant as he looked sixteen months earlier. Although the grammatical structure of the sentence might permit of some ambiguity, we cannot perceive a clear and false statement having been made, and certainly not one calling for a mistrial. For the lack of a factual predicate, the argument falls.

6. Jury Instructions: “Premeditation”

The appellant complains that the trial judge did not give an instruction, or at least an adequate instruction, in terms of defining the element of premeditation. We cannot agree. Recognizing that “[tjhere is'no necessity for the court to use the exact language requested.” Nelson v. State, 5 Md. App. 109, 120, 245 A. 2d 606, we think that the trial judge in this case did convey the essential meaning of premeditation. His instruction in this regard was as follows:

“In Maryland there are two degrees of murder: murder in the first degree and murder in the second. And the distinction between the two is based on the element of premeditation and deliberation.
All murder which shall be perpetrated by means of poison or lying in wait or by any kind of willful, deliberate, and premeditated killing shall be murder in the first degree, and in that regard for a homicide to be willful there must be a specific purpose, and there must be a specific design to kill.
First degree murder, in essence, is killing in cold blood after having calculated the circumstances. The burden is on the State of Maryland, based on all the facts that you have heard, to show circumstances providing willfulness, deliberation, and premeditation, if you are to find Mr. Godwin guilty of murder in the first degree.
After a full and fair consideration of all the facts in this case, if you are not convinced beyond a reasonable doubt that the State has proven murder in the first degree to your satisfaction, you will find him not guilty of that charge.
If, however, after a full and fair consideration of all the facts in this case you are convinced beyond a reasonable doubt that they have proven all the elements necessary to convict him of murder in the first degree, you are to find him guilty of this charge.
Murder in the second degree is the unlawful killing of a human being with malice, but without premeditation and without deliberation. After a full and fair consideration of all the facts and circumstances of this case, you are convinced beyond a reasonable doubt that the State has proven to your satisfaction all the elements necessary to convict him of this offense, you will find him guilty of this offense.
If, however, you are not convinced beyond a reasonable doubt after a full and fair consideration of all the facts and circumstances, you will find him not guilty.” (Emphasis supplied)

Following the court’s instructions, the exchange that occurred between appellant’s counsel and the trial judge is enlightening:

“With regard to your definition of murder in the first definition, Your Honor gave — you said it was killing with malice. You did not use the phrase ‘with malice aforethought’ as a distinction between —

THE COURT: I don’t know what ‘aforethought’ is.”

We applaud both the candor and the correctness of the statement. As of the Twentieth Century at least, the word “aforethought” is absolutely devoid of any meaning whatsoever. As we pointed out in Evans v. State, 28 Md. App. 640, 693-695, 349 A. 2d 300:

“A similar erosion took place with respect to the word ‘aforethought.’ In its pristine state, it connoted that the intention to kill had existed some appreciable time before the actual execution of the deed. It connoted the same thing by way of preplanning that premeditation connoted early in the 19th century (when it entered the law as an attempt to rejuvenate the earlier meaning of ‘aforethought’) and significantly more by way of preplanning than premeditation connotes today (premeditation having in the meantime suffered a semantic erosion of its own). The word ‘aforethought’ today is devoid not simply of an ordinary, layman’s meaning but of any meaning at all, even as a term of art. As is pointed out by Perkins, Criminal Law (2á Ed. 1969), at 34-35:
‘Undoubtedly the word “aforethought” was added to “malice” in the ancient cases to indicate a design thought out well in advance of the fatal act. But as case after case came before the courts for determination, involving killings under a great variety of circumstances, there came to be less and less emphasis upon the notion of a well-laid plan. And at the present day the only requirement in this regard is that it must not be an after thought. “Killing with malice” is sufficient of itself to negative any possible notion of an afterthought, and apart from the historical background the word “aforethought” would not be needed.’

To the same effect is Purver, The Language of Murder, 14 U.C.L.A.L.Rev. 1306, 1309 (1967):

‘Just as the word “malice” confuses and misleads, the word “aforethought” likewise muddles thinking:
“The fact that malice aforethought means merely that malice must exist at the same time as the act, in effect makes ‘aforethought’ meaningless surplusage, since the requirement is satisfied by the presence of malice or ‘concurrent’ malice rather than an antecedent malice. The unimportant character of the adjective ‘aforethought’ is seen in the fact that in many opinions ‘malice’ and ‘malice aforethought’ are used interchangeably and that in many, ‘aforethought’ is itself omitted.” [Quoting from 1 Wharton, Criminal Law and Procedure §243, at 527 (Anderson Ed. 1957)]
Since today “aforethought” may be “as instantaneous as successive thoughts of the mind” or “on the spur of the moment,” the word no longer serves its original function of drawing attention to the duration of the deliberation to kill as the criterion for distinguishing murder from other homicides.’

The use of the now anachronistic language still haunts us, however. As Purver further points out, at 1306:

‘Precision in the use of legal language is essential, particularly in the law of homicide. In a murder trial the use of a word or turn of a phrase may mark the difference between whether the accused leaves the courtroom free — or sentenced to death.
Yet the phrase “malice aforethought,” used in defining murder, peers at us like a demon through the dust of more than four hundred years of history, lying in wait to clutter statutes and confuse juries. In examining the historical background of the phrase, one probes the roots of a term which, though withering on the vine, lives on to strangle the penal codes of the several states.’

And, at 1309:

‘Since “malice” does not mean “ill-will” and “aforethought” does not mean “beforehand,” jury instructions, though necessary, sound ridiculous.’

The word ‘aforethought’ is today an absolutely useless appendage on our law. It has over the centuries been utterly drained of any meaning whatsoever. As a word of no utility but with an ever-present potential for confusion (some may innocently think that ‘aforethought’ means aforethought), it should be struck from the lexicon of our homicide law.”

Defense counsel then more appropriately went on to the more pertinent subject of “premeditation”:

“With regard to the instruction on first degree murder, instruction Your Honor gave made no mention of premeditation in the sense of defining premeditation.

You simply said ‘premeditation’.

THE COURT: Do you have a definition?

MR. DE PAUL: Pre-planning, pre-conceiving.

THE COURT: I thought I said that.”

We are persuaded that looking at the instruction as a totality, the necessary notion that the killing be thought out in advance was communicated to the jury. Particularly was this communicated by the sentence:

“First degree murder, in essence, is killing in cold blood after having calculated the circumstances.”

Even if in some other circumstances, not here pertinent, a more painstaking and precise dissection of the element of premeditation were necessary, this was not such a case. With a fully articulated and well-planned scheme of executions taking place over the course of several hours, that element of first-degree murder was so clearly and unequivocally established as to leave no room for debate. Realistically, the only question in this case concerned the criminal agency (the identification) of the appellant and not the corpus delicti of the crime. In commenting upon the harmlessness of the even arguable error, we note, moreover, that a common sense, layman’s definition of “premeditation” would redound to the benefit of a defendant and the more formal, case-law definition of “premeditation,” as a term of art, would work to the benefit of the State. Significant in this regard is the law on premeditation, as discussed in Chisley v. State, 202 Md. 87, 106-107, 95 A. 2d 577:

“It is not necessary that deliberation and premeditation shall have been conceived or have existed for any particular length of time before the killing. Their existence must be judged from the facts of the case. Webb v. State, supra. The Court of Appeals of New York, in Leighton v. People, 88 N. Y. 117, 120, put it in this wise: ‘If, therefore, the killing is not the instant effect of impulse, if there is hesitation or doubt to be overcome, a choice made as the result of thought, however short the struggle between the intention and the act, it is sufficient to characterize the crime as deliberate and premeditated murder.’ The same ruling is made in People v. Majone, 91 N. Y. 211, 212: ‘Such design must precede the killing by some appreciable space of time. But the time need not be long. It must be sufficient for some reflection and consideration upon the matter, for choice to kill or not to kill, and for the formation of a definite purpose to kill. And when the time is sufficient for this, it matters not how brief it is.’ ”

A layman’s understanding of “premeditation” would be something that requires an appreciable length of time; the more sophisticated lore of the case law is that “premeditation,” contrary to popular understanding, can occur in a very brief time. A failure to have told the jury this could only have helped the appellant, not hurt him. Error, even if such had been present, would under the circumstances of this case have been palpably harmless. Chapman v. California, 386 U. S. 18, 87 S. Ct. 824, 17 L.Ed.2d 705 (1967).

7. Felony-Murder and the Question of Merger

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.

The appellant urges that Frye v. State, supra, compels us to find a merger of the underlying felony into the murder unless the verdict, or the evidence, showed unmistakably that the murder was of the premeditated variety rather than of the felony-murder variety. He reads Frye overbroadly. Frye is, of course, predicated upon Newton v. State, supra. The holding of Newton, at 373 A. 2d 267, was, in this regard, as follows:

“If ... the murder conviction is premised upon independent proof of wilfulness, premeditation and deliberation under § 407, or if the evidence is sufficient for a jury to find those elements, the offenses would not merge. ” (Emphasis supplied)

Even more significant than the words of Newton themselves is the fact that Newton cites as authority for this proposition the case of Robinson v. State, 249 Md. 200, 238 A. 2d 875. In Robinson, as in the present case, there was ample evidence to support either a finding of premeditated murder or a finding of felony murder. The defendant in that case, as the defendant here, was urging that the conviction for the underlying felony (in that case assault with intent to rape) must merge into the murder conviction where there is a possibility that the first-degree murder conviction was based upon the felony-murder theory. The Court of Appeals rejected that contention, saying at 249 Md. 209:

“Since there is an abundance of evidence to support a verdict of premeditated murder under § 407 of Article 27 we must reject appellant’s presumption that the jury found him guilty of a felony murder under § 410. It is entirely possible, and we think it more than likely, that the jury’s verdict reflects a finding that the murder of Florence was premeditated.”

Judgments affirmed; costs to be paid by appellant.

      . On January 3, 1977, a jury convicted codefendant Willie Lee “Junior” Jones, Jr., of three counts of first-degree murder, four counts of kidnapping and four counts of using a handgun. Jones was sentenced to three life terms, four 30-year terms and four 16-year terms, all sentences to be served consecutively. On October 4,1977, a Prince George’s County jury, presided over by Judge Levin, convicted codefendant James Richard “Reds" Person also or three counts of first-degree murder, four counts of kidnapping and four counts of using a handgun. Person is scheduled to be sentenced on November 7,1977. On October 10,1977, the indictment against Johnnie Mae Jones was nol-prossed, in exchange for her testimony as a State’s witness.

      . Indeed, there will frequently be situations where a finding of murder in the first degree is predicated not upon the premeditation theory or the felony-murder theory as mutually exclusive alternatives but rather upon both of them together. An over-rigidification of the decisional process could work untold mischief. Posit a hypothetical situation. All twelve jurors are unanimously agreed that a defendant is guilty of murder in the first degree. In terms of how they arrive at their decision, however, there is no such agreement. Three are adamantly convinced that there has been premeditation but no felony. Three others are adamantly convinced that there has been a felony-murder but no premeditation. Three others are equally stubborn in their insistence that the first-degree verdict is supported by both premeditation and felony-murder. Three others are absolutely persuaded that there is guilt of murder in the first degree but are in a state of balance as to whether it is because of the premeditation principle or the felony-murder principle. Is this jury hung? Is the declaration of a mistrial called for? Obviously not! Why? Because it would be absurd!


source: Caselaw Access Project

author: Liss, J.,

license: Public Domain

text:
    JOSEPH A. McANDREW v. DOROTHY J. McANDREW
    [No. 564,
    September Term, 1977.]

      Decided February 28, 1978.

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

      Joseph A. Lynott, Jr., for appellant.

      Nelson M. Oneglia, with whom were Horowitz, Oneglia, Goldstein & Foran, P.A. on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

The appellant, Joseph McAndrew (hereinafter, the husband), is an engineer employed by the RCA Corporation. His wife Dorothy, appellee (hereinafter, the wife), is a guidance counselor with the Prince George’s County school system. The parties were married in Scranton, Pennsylvania on August 6, 1966 and shortly thereafter moved to Prince George’s County. In May 1971 the parties purchased a home in Oxon Hill, Maryland and resided there until their separation in 1976. The parties had no children of their own and adopted a minor child, Collean, who is now five years of age. On February 18, 1976 Mrs. McAndrew, without prior notice to her husband, moved out of the house, taking Collean and most of the furniture with her and moved into an apartment. The wife informed the husband where she and the child were and arranged for the husband to visit with the child over the weekend. During the ensuing week the husband took Collean from the baby-sitter and. secreted her in Pennsylvania. At the trial, the wife testified that she felt it was in the child’s best interest “not to be grabbed back and forth” and she permitted the child to remain with the father until trial.

On February 26, 1976 the husband filed a bill of complaint in the Circuit Court for Prince George’s County seeking custody of Collean. The wife filed a cross-bill of complaint praying custody, support and maintenance. After a hearing before a master for domestic relations causes for Prince George’s County on September 10,1976, it was recommended that custody pendente lite be awarded to the husband. An order to that effect, also establishing specific visitation privileges, was signed by the chancellor on October 14,1976.

The case came on for trial on January 19, 1977, and numerous witnesses were presented by both the husband and the wife. Voluminous testimony was taken. At the conclusion of the testimony the chancellor ordered an investigation be made by the Juvenile Court Services Division of the county. Pending receipt of the report and a subsequent hearing to be scheduled, the chancellor ordered that the child remain in the husband’s custody. The report was received in April, 1977 and oral argument was held before the chancellor on May 5,1977. At that time, the chancellor proceeded to render an oral opinion in which he expressed his factual and legal conclusions as follows:

“Now, the ball is in the court’s lap, what to do with it. Let me comment first, this is the most difficult custody case this member of the bench has had to deal with. Normally in these cases we’re able to analyze the evidence before us and find a bad situation on one side and a better situation on the other, or in that area. Here, frankly, the court finds it very difficult to find anything significantly bad on either side.
“So here we have a child who admittedly is in the hands of its adopted father initially because he took the initiative and took the child without having gone through the judicial process and then later on a pendente lite matter. I would have to agree with Mr. Whitaker, the Master. This was not definitive placement of custody. But I could conclude that it was commendable that he took this attitude, one of calm, if you will, stability. But I don’t view this case as a case where truly after a full hearing, custody has been granted to one parent or the other by the court and shortly thereafter there is a petition to change the custody____
“I don’t believe in this case I’m bound by the same criteria the Court of Special Appeals told me I should have been bound by in the Vernon [v. Vernon, 30 Md. App. 564, 354 A. 2d 222 (1976)] case, to wit a changed position. I will not apply that rule in this case. We all recognize, gentlemen, the rules to follow. Two significant rules in this case are not what the parents feel, not what the parents want, not what the parents would like but what in the Court’s judgment is in the best interest or in the better interest, in this case, truly for the child.
“We know from other cases that there is a presumption in favor of the maternal side when everything else is equal and that is very significant as Judge Moylan [sic] stated in Cooke [v. Cooke, 21 Md. App. 376, 319 A. 2d 841 (1974)], a fairly recent case____That presumption has no bearing in the decision making process until the Court has reached the position where truly everything is even-steven on both sides. It’s only then you bring that into play.
“Well, I have reviewed my notes, and I took copious notes, gentlemen, and I read your memoranda and I’ve read the report and in balancing everything else, as I said, this is the most difficult custody case I’ve been exposed to. I think the matter is an even-steven situation. I think balancing everything out, my mind is in a state of equipoise, if you will, and being in a state of equipoise, I will accordingly award custody of this child to Mrs. McAndrew.”

The maternal preference principle is a comparatively recent development in the law of custody of minor children, having its genesis in the latter part of the last century. Under the early English common law the father had the absolute right to custody regardless of the welfare of the child. That preeminent right was recognized by the colonial courts but its raison d’etre was based on the father’s responsibility to furnish discipline and support. The courts maintained the right of the state to interfere in those instances in which the parent failed to execute his duties properly and reserved the right to appoint a guardian where necessary for the protection and welfare of the child. Maryland has long since abandoned the concept of the child as parental property, and the equity courts of this state have exercised their jurisdiction “with the paramount purpose in view of serving the welfare and promoting the best interests of the children.” Ross v. Hoffman, 280 Md. 172, 175, 372 A. 2d 582 (1977.) and cases there cited. As was stated by the Court of Appeals in Butler v. Perry, 210 Md. 332, 342, 123 A. 2d 453 (1956), “it is too elementary to be stressed that the welfare of the child is the controlling test in a custody case.”

Maryland, however, joined a majority of the other states in swinging even further from the common law principle that the pater familias had an absolute right to custody and adopted the position that the interest of young children, particularly females, ordinarily is best served when they are placed in the custody of their mother. The rationale for this principle was that the mother was the natural custodian of her young and that her love for her child is irreplaceable. In some of the states the reasons for the adoption of the rule were stated in almost lyrical poetic terms.

As the principle evolved, some of the states gave statutory recognition to the maternal preference principle by adopting laws which stated the preference in favor of the mother. The majority of jurisdictions continue to follow the rule that the mother is the preferred party in matters of custody. Other states, including Maryland, enacted statutes which stated that neither parent has any rights superior to the rights of the other in child custody matters. However, the Court of Appeals continued to recognize the maternal preference principle without considering the possible effect of Article 72A, § 1 of the Maryland Code which proscribed the preferring of either party in a custody dispute. This was the state of the law when we had before us the case of Kirstukas v. Kirstukas, 14 Md. App. 190, 286 A. 2d 535 (1972).

In that case, Judge Moylan recognized the continued viability of the maternal preference principle by quoting from Hild v. Hild, 221 Md. 349, 357, 157 A. 2d 442 (1960):

“ ‘Since the mother is the natural custodian of the young and immature, custody is ordinarily awarded to her, at least temporarily, in legal contests between parents when other things are equal, even when the father is without fault, provided the mother is a fit and proper person to have custody.’
“See also 2 Nelson, Divorce and Annulment, Section 15.09 (2d ed., 1945); Kauten v. Kauten, 257 Md. 10; Oberlander v. Oberlander, 256 Md. 672; Cornwell v. Cornwell, 244 Md. 674; Palmer v. Palmer, 238 Md. 327; Sellman v. Sellman, 236 Md. 1; Wallis v. Wallis, 235 Md. 33; Parker v. Parker, 222 Md. 69; Oliver v. Oliver, 217 Md. 222; Roussey v. Roussey, 210 Md. 261; Townsend v. Townsend, 205 Md. 591; Trudeau v. Trudeau, 204 Md. 214; Porter v. Porter, 168 Md. 296; Barnett v. Barnett, 144 Md. 184; Levering v, Levering, 16 Md. 213; Mullinix v. Mullinix, 12 Md. App. 402; Widdoes v. Widdoes, 12 Md. App. 225; Myers v. Butler, 10 Md. App. 315.” 14 Md. App. at 194.

Judge Moylan concluded that , the principal factual determination to be made by the chancellor in a custody case concerned what was in the best interest of the child but that in reaching this determination the maternal preference was a valid factor to be placed in the balance scale. He stated at 196, .

“The so called ‘preference’ for the mother as the custodian particularly of younger children is simply a recognition by the law, as well as by the commonality of man, of the universal verity that the maternal tie is so primordial that it should not lightly be severed or attenuated. The appreciation of this visceral bond between mother and child will always be placed upon the balance scales, and all else being equal or nearly so, will tilt them. As heavy a factor as it may be, however, it is still but a factor. Every statement of the preference is hedged about by the context ‘all else being equal.’ If, after giving due weight to the maternal preference, the scales nonetheless demonstrate the better suitability of the father or, indeed, of some third person to serve the interests of the child, the path for the chancellor is clearly indicated. The ‘better interests’ of the child is always the paramount consideration.”

See Nelson, Divorce and Annulment, § 15.09 (2d ed. 1945).

Kirstukas, supra, was modified somewhat in Cooke v. Cooke, supra, where Judge Lowe of this Court pointed out that it was only when all else was equal that the maternal preference rule was to be applied. He noted that the Maryland Constitution was recently amended by the addition of Art. 46 of the Declaration of Rights, the Equal Rights Amendment (E.R.A.), which provides that “Equality of rights under the law should not be abridged or denied because of sex.” Since the applicability of the E.R.A. was neither raised nor argued before this Court in Cooke, we declined to consider that case vis a vis the amendment while “acknowledging that we do so in its shadow.” Id. at 379. Looking only to the basic principle of equality, Judge Lowe stated that the maternal preference must be exercised within certain restrictions. He concluded that the maternal preference principle was intended to be used only for the limited function of serving as a tie-breaker and that the child’s best interest was the measure by which the issue of custody was to be decided. He stated at 380,

“We concede that it is unlikely that litigants will have parental qualities so equally balanced that resort to the maternal preference will be necessary. It should therefore not be expressed as a consideration at all, except in those limited instances where it would be impossible to decide upon the evidentiary facts.”

In this case we are called upon to decide whether in the light of the present state of the law we may continue to adhere to our previous conclusion that the maternal preference principle is a viable tool to be utilized as a tie-breaker in child custody cases. The determining factor in this decision is a 1974 amendment to Article 72A, Sec. 1, in which the Legislature made explicit its desire that “in any custody proceeding, neither parent shall be given preference solely because of his or her sex.” The title to that Act states:

“AN ACT concerning Custody of Children — No Preference to Either Spouse for the purpose of providing that neither spouse shall be given preference because of sex in a court custody proceeding.”

At the time this Act was passed, there was no preference of either spouse in a custody proceeding, based on sex, other than the maternal preference. It was, therefore, that maternal preference, being the only, sex based preference then established in the law, that the General Assembly intended to abolish. Unless the 1974 amendment had that effect, it had none at all; and we will not presume that the Legislature intended to enact a meaningless statute in so important an area. Accordingly, we conclude that, since July 1, 1974, the maternal preference has been abolished by statute in child custody cases.

This is not to suggest that the best interests of the child may not require a consideration of the biological and psychological differences between the parents (or other potential custodians) to the extent that they bear upon their ability to provide the care needed by the child at the time. The inquiry here must concern the needs of the particular child and each of the parties’ relationship with the child. A parent is no longer presumed to be clothed with or to lack a particular attribute merely because that parent is male or female.

To the extent that we postulated in Cooke that a preference of any type could be a tie-breaker, we disaffirm that theory. Our choice of that term in retrospect, like the use of the term maternal preference, was ill advised. There can be no tie-breaker in a custody case because, as we indicated in Cooke, supra, there should never be a tie. The determination of custody is an area in which discretion is vested in a judge and in which appellate review of his exercise of that discretion is limited. Davis v. Davis, 280 Md. 119, 372 A. 2d 231 (1977); Ross v. Hoffman, supra. He has at his command not only the evidence offered by the parties but a full panoply of social service and other extrajudicial agency resources. From all of that he is required to make a decision. If, in a petition for modification, he is unable to conclude that custody should be changed, then it ought not to be changed. Vernon v. Vernon, supra. This is nothing more than a recognition of the principle that a person seeking some court action has the burden of showing why the court should take that action, and that, if he fails to meet that burden, whatever it is, the action should not be taken.

We conclude that the chancellor, in this case, erred in applying the heretofore recognized maternal preference principle. We are required to remand the case for further proceedings. We express no opinion as to the ultimate determination of the controversy as we perceive that additional information will undoubtedly be available to the chancellor when the issue of custody of this child is again considered.

Order awarding custody to appellee vacated; remanded for further proceedings in conformance with views expressed herein.

Costs to abide result.

      . An excellent discussion of the development of child custody law was recently written by Chief Judge Gilbert of this Court in Montgomery County Dept. of Social Services v. Sanders, 38 Md. App. 406, 381 A. 2d 1154 (1978).

      . Annot., 70 A.L.R.3d 262, 267-68 (1976).

      . In Bath v. Bath, 150 Neb. 591, 35 N.W.2d 509 (1949), it was observed that because the love, solicitude and devotion of a mother cannot be replaced by another, and is worth more to a child of tender years than all other things combined, a child should not be deprived of the necessary and wholesome influences of these characteristics of a mother if it can be reasonably avoided. In Hines v. Hines, 192 Iowa 569, 185 N. W. 91 (1921) the court observed that the natural inclination to give to the mother the custody of her children of tender years is a recognition that the mother is God’s own institution for the rearing and upbringing of the child, and puts a premium on child culture in the hands of an expert.

      . Annot., 70 A.L.R.3d at 293-97.

      . Id. at 268.

      . Id. at 297-301; Maryland Code (1957, 1977 Cum. Supp.) Art. 72A, § 1.

      . Article 72A, “Parent and Child,” was added to the Maryland Code by Chapter 561 of the 1929 Laws of Maryland and took effect as of June 1,1929. Despite its mandate that “[The parents] shall have equal powers and duties, and neither parent has any right superior to the right of the other concerning the child’s custody,” the Court of Appeals continued to recognize the maternal preference principle. See Hild v. Hild, 221 Md. 349, 157 A. 2d 442 (1960); Oliver v. Oliver, 217 Md. 222, 140 A. 2d 908 (1958); Trudeau v. Trudeau, 204 Md. 214, 103 A. 2d 563 (1954).

      . Laws of Maryland, 1974, ch. 181, effective July 1,1974 (some five weeks after our decision in Cooke).

      . Appellant, below and on appeal, raised the issue of the effect of the Maryland Equal Rights Amendment on the maternal preference principle in custody cases. We do not reach the issue here since we conclude that Art. 72A, Sec. 1 is dispositive of this case.


author: Davidson, J.,

text:
    COATS & CLARK’S SALES CORPORATION et al. v. BARBARA H. STEWART et al.
    [No. 123,
    September Term, 1977.]

      Decided March 8, 1978.

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

      B. Ford Davis for appellants.

      Herbert J. Arnold, with whom were Robert Earl Wilson and Arnold, Beauchemin & Huber, P.A. on the brief, for appellees.
   Davidson, J.,

delivered the opinion of the Court.

John A. Stewart died as a result of injuries received in an automobile accident. His widow, Barbara H. Stewart (wife), filed a “Dependent’s Claim” with the Workmen’s Compensation Commission (Commission), seeking benefits for herself, her deceased husband and their minor child (appellees). Benefits were denied because Mr. Stewart (husband) had not sustained an injury “arising out of and in the course of employment.”

On appeal to the Circuit Court for Baltimore County, Judge Marvin J. Land reversed the order of the Commission and granted summary judgment in favor of the wife and child. He remanded the case to the Commission for a determination of “the issue of dependency.” The appellants, Coats & Clark’s Sales Corporation (employer), and Atlantic Mutual Insurance Company (insurer) appeal. Their sole contention is that the trial court erred in granting summary judgment because there were two material disputes of fact.

The record before the Commission shows that on 22 September 1973, the husband, then District Manager for the employer, and his wife were to attend a dinner party to honor two other employees. Only past and present employees and their spouses were invited to the party, which was to begin at 6 p.m. at the home of an employee, and was to be paid for by the employer. The husband was to present a watch to one of the honored employees. At approximately 5 p.m., while driving an automobile provided by the employer, in which the wife was present, the husband was injured in a car accident and died.

I

The record shows that the wife testified before the Commission that at the time of the accident she and her husband were on their way from their home to the party. They intended to stop first at a grocery store, which was located on their route, to purchase nonperishable groceries. They intended then to proceed to the party without returning home. They never reached the grocery store.

Mr. Persina, an insurance adjuster who investigated the accident at the request of the insurer, testified that he interviewed the wife shortly after the accident. She told him that, because there was no food at home for their child and baby sitter on the evening of the accident, she and her husband were “going to return home with these groceries, drop them off at the house, then go to the party.” He conceded that a statement handwritten by him and signed by the wife at the time of the interview, did not indicate that the Stewarts were going to return home with the groceries.

Appellants first contend that there is a material factual dispute as to whether the Stewarts intended to return home with the groceries before going to the party. They assert that, if the Stewarts intended to return home from the grocery store before going to the party, at the time of the accident the Stewarts would have been on a self-contained trip undertaken for personal purposes, independent of and having no relation to the employer’s party. They conclude that under such circumstances the husband’s injuries would not be compensable because they would not have been sustained in the course of his employment.

Appellees contend that it is immaterial whether the Stewarts intended to return home with the groceries before going to the party. They maintain that obtaining food for the baby sitter was in furtherance of the business purpose of the employer. They conclude that, under these circumstances, even if the Stewarts at the time of the accident were on a self-contained trip to obtain food for the baby sitter, the husband’s injuries would have been compensable because they would have been sustained in the course of his employment.

Under the Workmen’s Compensation Act, an injury is compensable if it arises out of and in the course of employment. Generally, an injury arises in the course of employment when it occurs within the period of employment at a place where the employee may be in the performance of his duties and while he is fulfilling those duties or engaged in doing something incident thereto. Employment includes not only the actual physical labor but the whole period of time or sphere of activities. Generally, an injury is not compensable if it occurs while an employee is going to or coming from work. If an injury occurs, however, while an employee is traveling in order to perform a “special errand” or “special mission,” it is compensable. A special errand or special mission is a trip undertaken by the employee at the direction or request of an employer for the purpose of helping the employer’s business. Such special errands or missions may require a trip at a time other than the time the employee ordinarily goes to or comes from work and may require services outside the employee’s regular duties. The essential characteristic of a special errand or mission is that it would not have been undertaken except for the obligation of employment.

The novel question to be decided here is whether an employee’s self-contained trip to a grocery store, to obtain food for a baby sitter needed to enable him to attend a company-sponsored social event, is a special errand or mission. The Court of Appeals has held that certain company-sponsored social events are sufficiently work related to be incidents of employment, so that injuries which occur during such events are compensable. Neither the Court of Appeals nor this Court has decided the question of whether an employee’s trip to such a function constitutes a special errand or mission.

Courts in other jurisdictions which have considered the latter question have held such trips to be special errands or missions if the event itself was sufficiently work related to be an incident of employment. Thus, if an injury which occurred during the event itself would have been compensable, an injury which occurred during the trip to or from the event would be compensable under the special errand or special mission exception.

At least two jurisdictions have considered the additional question of whether an employee’s self-contained trip, distinct from a trip to or from a work-related social event, is an incident of employment and thus a special errand or mission. In Shell Oil Company v. Industrial Accident Commission, an employee, employed as a service station manager, was driving to a company-sponsored dinner meeting in another town when his car became disabled. He left the car at a gas station and continued to and returned home from the dinner meeting using other transportation. Two days later, the employee was killed while attempting to tow the disabled vehicle to his service station. The California District Court of Appeal held the injury to be compensable. Recognizing that the employee’s self-contained trip to retrieve his disabled vehicle was an integral component of his attendance at the dinner meeting, that Court said:

“The car broke down while Byrd was acting within the scope of his employment, a result which should have been anticipated by the employer. That he would return to get his vehicle and not simply abandon it, should likewise have been anticipated by his employer. Thus, by reason of the fortuitous circumstances which developed, Byrd had to return to get his vehicle and he was still performing a service which was directly connected to the original errand. Byrd’s death while enroute from Stockton to Merced occurred in the course of his employment.”

The specific question of whether an employee’s self-contained trip undertaken to secure the services of a baby sitter needed to enable him to attend a work-related social event was itself an incident of employment and therefore a special errand or mission was considered in Harrison v. Stanton. There an employee was injured while driving a baby sitter to her home after attending a work-related party. The Superior Court of New Jersey held the injury to be compensable, stating:

“Here the employer had previous knowledge that some of the social entertainments of the club were arranged for the members and their wives; he knew that the petitioner and his wife had an infant child too young to be left at home unattended; he was aware of the necessity in such instances of engaging the services of a baby sitter, for whose attendance he paid, and that the sitter resided elsewhere in the community. He had reason to anticipate that the petitioner and his wife would not return home from such evening functions until some late hour in the night. The employer entrusted his motor vehicle to the petitioner for his use on such occasions. It had been the custom of the petitioner to transport the sitter to and from her home whenever she was so engaged. And so the presence of the baby sitter at the petitioner’s home appears to have been one of the conditions under which the petitioner was expected to execute the intent and purpose of his employer.
“We would surmise that some provision for the return of the sitter to her home when her services terminated at midnight or thereabouts w;ould not only be reasonably necessary but perhaps exacted. Assuredly in this instance the transportation of the baby sitter was predominantly in furtherance of the petitioner’s , attendance at the party.
“In the light of the evidence we are led to the opinion that the reasonably appropriate activities of the petitioner in obtaining the presence of the baby sitter at his home was intrinsically a component of the mission of attending the ball which the petitioner was expected, if not directed, by his employer to fulfill and that but for the consummation of that mission the petitioner would not have encountered the accident and its injurious consequences.
“In the peculiar circumstances of the case we conclude that the accident arose out of and in the course of the petitioner’s employment____”

In applying these principles to the instant case, we follow the rules of statutory construction which establish that the Workmen’s Compensation Act should be construed as liberally in favor of injured employees as its provisions will permit in order to effectuate its benevolent purposes, and that any uncertainty in the law should be resolved in favor of the claimant. The record establishes, and the parties do not contend to the contrary, that the company-sponsored dinner party was sufficiently work related to be an incident of employment. Accordingly, a trip to or from that social event would have been a special errand or mission. The record further shows that because spouses were expected to accompany employees to the party, which was scheduled for 6 p.m., the services of baby sitters were necessary to enable those employees who had children to attend. While the facts here are less compelling than those in Harrison, they are sufficient to show that the presence of the baby sitter was an integral component of the husband’s attendance at the party, so that a self-contained trip to obtain a baby sitter would also be a special errand or mission.

In our view, the task of obtaining food for a baby sitter is a reasonable and necessary incident to obtaining a baby sitter’s services. Because that task would not have been undertaken except for the obligation of employment, it, like the task of transporting the baby sitter, is an integral component of an employee’s attendance at a work-related social event. Accordingly, we hold that an employee’s self-contained trip to obtain food for a baby sitter needed to enable him to attend a work-related social event is a special errand or mission. Therefore, an employee’s injury sustained during such a trip is one sustained in the course of his employment and is compensable.

Under the present circumstances, it is immaterial whether the Stewarts intended to return home with the groceries before proceeding to the party. The existence of an immaterial factual dispute does not prevent the entry of summary judgment. The trial court did not err.

II

The wife additionally testified before the Commission that at the time of the accident she and her husband were proceeding on the route he customarily took to reach 1-695 (the Baltimore Beltway). This involved going north for a short distance, then west to 1-83 (the Baltimore-Harrisburg Expressway), then south on 1-83 to 1-695. She further stated that she would riot have used the route her husband used to reach 1-695. She said that she would have gone either west to York Road or east to Dulaney Valley Road and then south to 1-695. Finally, she said that, by taking the route her husband chose, they “could stop at the store and still get on [1-83].” The employer placed a map into evidence which purported to show that the route taken by the husband was longer than either of the routes the wife would have taken, and that the grocery store was not located along either of the shorter routes.

Appellants contend that, if, as the wife testified, the Stewarts did not intend to purchase food for the baby sitter or tó return home before going to the party, but rather intended to proceed to the party immediately after purchasing groceries for themselves, there would nevertheless be a material factual dispute. They maintain that the evidence supports an inference that the Stewarts were not on a direct route to the party at the time of the accident. They assert that, under such circumstances, the husband would not yet have been serving the employer’s business purpose or would have substantially deviated from that business purpose to serve a personal purpose. They conclude that the husband’s injuries would not be compensable because they would not have been sustained in the course of his employment.

Appellees maintain that there is no evidence to show or support a rational inference that the Stewarts were not on a direct route to the party. They conclude that, under these circumstances, the husband’s injuries would be compensable because they would have been sustained in the course of his employment.

There is nothing in the record, even when viewed in the light most favorable to appellants, that supports an inference that the Stewarts were not on a direct route to the party at the time of the accident. The map indicates that the three routes to 1-695 described by the wife differ only slightly in length, and that the husband’s preferred route was not substantially longer in distance than those preferred by the wife. It additionally shows that the major portion of the route customarily used by the husband and used on the night of the accident was a limited-access highway. In contrast, the two routes customarily used by the wife consisted of a combination of residential streets and nonlimited-access major traffic arteries. Thus, the map not only shows that the husband’s preferred route was not substantially longer in distance, but also supports an inference that it was shorter in time. Accordingly, the map does not support an inference that the Stewarts were not on a direct route to the party. The wife’s testimony that she would have used a route different from that chosen by her husband, and that by using the route chosen by her husband they could “stop at the store and still get on the Expressway,” also fails to support an inference that the Stewarts were not on a direct route, particularly in light of the wife’s testimony that her husband customarily used the route he chose on the night of the accident.

In the absence of any evidence in the record to show that the Stewarts were not on a direct route to the party, there is no factual dispute. Accordingly, the trial court did not err.

Judgment affirmed.

Case remanded to the Circuit Court for Baltimore County for remand to the Workmen's Compensation Commission for a determination of the nature and extent of dependency.

Costs to be paid by appellants.

      . Mr. Persina was then employed by Crawford and Company, insurance adjusters. The insurer here had asked him to investigate this accident in order to determine liability with respect to a third party claim.

      . He explained his failure to include this information as follows:
      “Well, when I saw her, she was pretty well banged up. Her leg was in a cast. I felt sorry for Mrs. Stewart because she just lost her husband. I didn’t want to pressure her with a lot of questions and I just didn’t put it down, or didn’t follow through that line of questioning. That’s why I didn’t put it down.”

      . Md. Ann. Code, art. 101, § 15 (Cum. Supp. 1977).

      . Wiley Mfg. Co. v. Wilson, 280 Md. 200, 206, 373 A. 2d 613, 616 (1977); Watson v. Grimm, 200 Md. 461, 466, 90 A. 2d 180, 183 (1952); Pappas v. Modern Mfg. Co., 14 Md. App. 529, 532, 287 A. 2d 798, 800 (1972).

      . Sica v. Retail Credit Co., 245 Md. 606, 612, 227 A. 2d 33, 36 (1967); Watson v. Grimm, 200 Md. 461, 466, 90 A. 2d 180, 183 (1952).

      . Wiley Mfg. Co. v. Wilson, 280 Md. 200, 206, 373 A. 2d 613, 616 (1977); Pariser Bakery v. Koontz, 239 Md. 586, 590, 212 A. 2d 324, 326 (1965); Ryan v. Kasaskeris, 38 Md. App. 317, 319, 381 A. 2d 294, 295 (1977).

      . Director of Finance for City of Baltimore v. Alford, 270 Md. 355, 360-62, 311 A. 2d 412, 415-16 (1973); Reisinger-Siehler Co. v. Perry, 165 Md. 191, 198-99, 167 A. 51, 53-54 (1933); see Maryland Paper Products Co. v. Judson, 215 Md. 577, 591, 139 A. 2d 219, 226 (1958).

      . Reisinger-Siehler Co. v. Perry, 165 Md. 191, 198-99, 167 A. 51, 53-54 (1933); see 1 Larson, Workmen's Compensation Law, § 16.10 (1972).

      . Reisinger-Siehler Co. v. Perry, 165 Md. 191, 198-99, 167 A. 51, 53-54 (1933); see Director of Finance for City of Baltimore v. Alford, 270 Md. 355, 364, 311 A. 2d 412, 417 (1973).

      . Sica v. Retail Credit Co., 245 Md. 606, 618-19, 227 A. 2d 33, 39-40 (1967); see Selected Risks Ins. Co. v. Willis, 266 Md. 674, 677-78, 296 A. 2d 424, 425 (1972).

      . 1 Larson, Workmen’s Compensation Law, % 22.23 at 5-84 to 5-85 (1972).

      . See e.g., Lawrence v. Indus. Comm’n of Ariz., 281 P. 2d 113, 115-16 (Ariz. 1955); Stakonis v. United Advertising Co., 148 A. 334, 335-36 (Conn. 1930); Lybrand, Ross Bros. & Montgomery v. Indus. Comm’n, 223 N.E.2d 150, 154 (Ill. 1967); Caron’s Case, 221 N.E.2d 871, 874 (Mass. 1966); Ricciardi v. Damar Products Co., 211 A. 2d 347, 350-51 (N.J. 1965); Kelly v. Hackensack Water Co., 92 A. 2d 506, 507-08 (N.J. Super. 1952); Dorman v. New Process Gear Division, Chrysler Corp., 353 N.Y.S.2d 264, 266-67 (App. Div. 1974); Hill v. McFarland-Johnson Engineers, 269 N.Y.S.2d 217, 218 (App. Div. 1966); Miller v. Keystone Appliances, Inc., 2 A. 2d 508, 5 09-11 (Pa. Super. Ct. 1938).

      . 18 Cal. Rptr. 540 (Ct. App. 1962).

      . 18 Cal. Rptr. 540 at 542.

      . 97 A. 2d 687 (N.J. Super. 1953).

      . 97 A. 2d 687 at 690.

      . Wiley Mfg. Co. v. Wilson, 280 Md. 200, 217, 373 A. 2d 613, 622 (1977); Bethlehem-Fairfield Shipyard, Inc. v. Rosenthal, 185 Md. 416, 425, 45 A. 2d 79, 83 (1945); Stonesifer v. State, 34 Md. App. 519, 524, 368 A. 2d 492, 496 (1977); Keene v. Insley, 26 Md. App. 1, 11-12, 337 A. 2d 168, 174 (1975); Md. Ann. Code, art. 101, § 63 (1964 Repl.Vol.).

      . Lynx, Inc. v. Ordnance Products, Inc., 273 Md. 1, 8, 327 A. 2d 502, 509 (1974); Salisbury Beauty Schools v. State Board of Cosmetologists, 268 Md. 32, 40-41, 300 A. 2d 367, 373-74 (1973); Rosenthal v. A1 Packer Ford, Inc., 36 Md. App. 349, 358-59, 374 A. 2d 377, 382 (1977); Maryland Rule 610 d 1.

      . The record shows that, in order to reach the party, the Stewarts would have had to travel east on 1-695..

      . Dietz v. Moore, 277 Md. 1, 4, 351 A. 2d 428, 431 (1976); Fenwick Motor Co. v. Fenwick, 258 Md. 134, 138, 265 A. 2d 256,' 258 (1970); Woodward v. Newstein, 37 Md. App. 285, 289-90, 377 A. 2d 535, 538 (1977).