author:
Melvin, J.,
      Moylan, J.,
     Lowe,«/.,

text:
    JASPER VINES, JR. v. STATE OF MARYLAND
    [No. 83,
    September Term, 1978.]

      Decided December 6, 1978.

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

      Arthur A. DeLano, Jr., Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Diane G. Goldsmith, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Marshall Feldman, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Melvin, J.,

delivered the opinion of the Court. Moylan, J., concurs and filed a concurring opinion at page 668 infra. Lowe, J., dissents and filed a dissenting opinion at page 867 infra,

On May 18,1976, the appellant, Jasper Vines, Jr., was found guilty at a jury trial in the Criminal Court of Baltimore of possession of heroin in sufficient quantity to indicate an intent to distribute. He had been charged with that offense as a subsequent offender, and following the jury verdict on May 18,1976, elected to have the issue of whether or not he was a subsequent offender tried by the court. The court determined that he was a subsequent offender and on July 22, 1976, he was sentenced to the custody of the Division of Correction for a period of 20 years.

In this appeal, four questions are presented:

“1. Did the trial judge err in denying Appellant’s motion to suppress his alleged confession?
2. Is Appellant’s conviction and sentence as a second offender under Article 27, § 800 null and void?
8. Did the trial judge err in denying Appellant’s motion to suppress evidence?
4. Was the evidence sufficient to sustain Appellant’s conviction?”

As we find no reversible error, the judgment below will be affirmed.

I

Appellant was arrested on September 15,1975, at his home at 420 North Castle Street in Baltimore during the execution of a search and seizure warrant. He was taken to police headquarters and advised of his Miranda rights by Detective Snipes, whereupon appellant stated he did not want to answer any questions and according to police witnesses none were thereafter asked. Appellant was then taken from the interview room to the “roll call” room in the same building. There was a table in the roll call room on top of which were displayed several “tinfoil packets”. One of the three police officers in the room then told the appellant that the items displayed had been recovered from 420 North Castle Street. According to police testimony the appellant then “stated that it was his stuff” and “wanted to know what he could do to help himself out”. On appeal, appellant contends that the display of narcotics was tantamount to unlawful “interrogation” in violation of the dictates of Miranda v. Arizona, 384 U. S. 436 (1966). We disagree.

As stated by the U. S. Supreme Court in Miranda, supra, at 478:

“In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement.-Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated.... Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.” (Emphasis supplied)

Under the circumstances here, we do not interpret the statement made by the police to the appellant and the appellant’s viewing of the narcotics as “interrogation” simply because they were followed by an incriminating disclosure from the appellant. See Brewer v. Williams, 430 U. S. 387, 419-420 (1977) (Burger, C. J. dissenting); Howell v. State, 5 Md. App. 337 (1968); Hopkins v. State, 19 Md. App. 414 (1973), cert. denied, 271 Md; 738 (1974); Cummings v. State, 27 Md. App. 361 (1975); Dent v. State, 33 Md. App. 547 (1976); Humphrey v. State, 39 Md. App. 484 (1978). Thus, although the inculpatory statements were made in a custodial setting, we hold that they were not the product of “interrogation” proscribed by the Miranda decision.

Appellant’s further claim that the inculpatory statements were not voluntary as being the result of “phsychological coercion” is likewise without merit. It is not disputed that shortly before making the inculpatory disclosure, appellant had been fully apprised of his right to remain silent and that anything he said might be used against him in a court of law. It is also undisputed that he understood those rights. Merely because the police entertained the hope (not expressed to appellant) that the display of narcotics would produce an incriminating statement does not mean that in allowing the appellant to view the display they were improperly compelling, coercing, or inducing the appellant to speak. We agree with the trial judge who, in denying the motion to suppress, said: “The defendant I don’t think was compelled under the atmosphere to say anything, and he wasn’t asked any questions as far as I am concerned in the roll call room”. Ironically, according to appellant’s version of the events in the roll call room, the police never informed him that the drugs displayed were seized in the raid on his house, but rather in the area of a nearby bar — thus rendering the notion of “phsychological coercion” even more remote.

Our independent review of the record as a whole convinces us that the appellant’s constitutional privilege against compulsory self-incrimination was in no way violated.

II

Appellant contends that his conviction and sentence as a subsequent offender is a nullity because the addendum filed with the indictment pursuant to then Rule 713 b referred to the wrong section number of Article 27 (i.e. section 300 instead of section 293). This contention is likewise devoid of merit. The addendum properly set forth all the facts necessary to charge appellant as a subsequent offender under the correct section number (293). The parenthetical notation to section 300 at the end of the addendum was non-essential and mere surplusage. As said by the Court in Sonnier v. United States, 314 F. 2d 69, 70 (4th Cir. 1963), the appellant “could not have been more clearly informed of the nature of the charge against him if the correct citation had been made”. See, also, Kirsner v. State, 24 Md. App. 579, 583, cert. denied, 275 Md. 752 (1975).

Ill

The appellant attacks the sufficiency of the probable cause in the application for the search and seizure warrant that resulted in his arrest and the seizure of the heroin he was charged with possessing. Applying the “two pronged test” of Aguilar v. Texas, 378 U. S. 108 (1964), and Spinelli v. United States, 393 U. S. 410 (1969), we note that appellant argues only that the “veracity prong” of the test has not been met. In this regard, the affidavit in support of the warrant states:

“[The informant] has proven to be reliable in the past and has supplied your affiant information which has led directly to the arrest of (1) person for a narcotic violation and the recovery of a quantity of controlled dangerous substance. [The informant] has also made another controlled narcotic purchase for your affiant. [The informant] has supplied information to your affiant which your affiant has verified and found to be true and factual. [The informant] states that he or she is familiar with heroin and its effects and has used heroin in the past. [The informant] further stated that he or she is also familiar with the manner in which heroin is packaged for street sales and the prices of heroin.”

In addition, the affidavit describes in detail a “controlled buy” from the appellant performed by the informant under the direct supervision of the affiant.

Under the circumstances, we have no difficulty in concluding that there was sufficient probable cause for issuance of the warrant. Sewell v. State, 34 Md. App. 691 (1977).

IV

Finally, appellant challenges the sufficiency of the evidence to warrant his conviction. Our review of the record convinces us that this contention is totally meritless. Williams and McClelland v. State, 5 Md. App. 450 (1968).

Judgment affirmed.

Costs to be paid by appellant.

Moylan, J.,

concurring'.

I concur. I join unequivocally both in the result in this case and in all aspects of the majority opinion by Judge Melvin.

By way of concurrence, however, I offer these few additional comments in the desire to come to grips with the sincere, but unsettling, observations made by Judge Lowe in dissent. I share his anguish at what seems, sometimes, to happen to the language as it is used by courts. He chides the Law for not always meaning what it seems to be saying. I find his observations particularly unsettling because they reinforce an increasingly entertained feeling of my own that the language of the Law frequently fails utterly to communicate what is really happening. It would behoove us, I submit, to take a leaf from the book of the Realistic School of Jurisprudence, led by Karl Llewellyn of Columbia and Jerome Frank of the Second Circuit, which revolutionized in the 1930’s our thinking about the very process of Law. Their first commandment was to look beneath the surface of the words used by courts at what is really happening within courts and judges. Animated by that realistic approach, I note the following observations.

Judge Lowe reads the facts in this case to fall beneath the coverage of Miranda v. Arizona. I agree with Judge Melvin that the facts in this case are not covered by Miranda v. Arizona. Even assuming, however, that Judge. Lowe’s reading of the facts is correct (which I do not believe), I still could not agree with his legal conclusion. His logic, otherwise impeccable, proceeds, I believe, from a false premise.

The unspoken predicate for Judge Lowe’s analysis is that the spirit of Miranda r. Arizona is still alive and well on East Capitol Hill. It is my reading of both the case law and of the history of our times that the spirit of Miranda has been dead for a decade. Because of judicial procedural conservatism, Miranda, as a shriveled skeleton of itself, is not technically dead. It is still capable of controlling a situation squarely on all fours with its facts. As a vital juridical force, however, capable of even minor extension to other sets of facts, it was sapped of all vitality as long ago as the Presidential Election of 1968.

The law, in splendid isolation, simply cannot ignore what every realistic layman knows to be true. Leaving aside all value judgment and simply assessing the judicial-political realities of our times, Miranda v. Arizona came at the very crest of the Warren Court’s revolution of the constitutional-criminal process. More than any other case, Miranda became the public symbol of that revolution. It spawned countless state and federal proposals, both statutory and by way of proposed constitutional amendment, to dismantle much of the reform worked by the Warren Court. As Mr. Dooley observed a century ago, “The Supreme Court reads the election returns.” In significant measure, the election of 1968, for better or for worse, was a mandate to cut back on the Warren Court generally and on Miranda specifically. In the wake of that mandate, the Supreme Court was significantly restructured qualitatively as well as quantitatively.

Although the fiction of the law pretends otherwise, the Supreme Court is not a monolithic Rock of Ages but a fluid body, changing as its composition and the political complexion of that composition changes. It might well be that the Warren Court would have read the facts now before us as Judge Lowe reads them, but that is beside the point. I have no doubt that the Burger Court would read the facts before us as Judge Melvin and I read them. The hard reality is that the Burger Court, and not the Warren Court, today represents “the law of the land.”

Not once since 1968 has the Supreme Court reversed a conviction on the basis of Miranda nor even held Miranda to apply. Despite clear language in Miranda pointing the other way, Harris v. New York, 401 U. S. 222 (1971), held that Miranda did not apply to a confession offered in rebuttal for purposes of impeachment. Michigan v. Tucker, 417 U. S. 433 (1974) , denied Miranda even the dignity of being of “constitutional dimension,” as it held that a Miranda violation was not even enough to trigger analysis under the “fruit of the poisonous tree” doctrine. Oregon v. Hass, 420 U. S. 714 (1975) , like Harris v. New York, refused to apply Miranda to a rebuttal-impeachment situation, dealing with a case where a request for counsel under Miranda had been flatly ignored by the police. United States v. Mandujano, 425 U. S. 564 (1976) , refused to apply Miranda to interrogation before a grand jury. Oregon v. Mathiason, 429 U. S. 492 (1977), refused to apply Miranda to a case where a parolee-suspect voluntarily came to the police station and was there interrogated. In Brewer v. Williams, 430 U. S. 387 (1977), the Supreme Court, in reversing a conviction for what clearly could have been a Miranda violation, pointedly ignored the very existence of Miranda and based its decision on other grounds.

The unmistakable message I get from the Supreme Court was expressed by this Court in Bartram v. State, 33 Md. App. 115, 149:

“To give ‘the broadest possible reading’ to Miranda in any respect is simply not the current tenor of Supreme Court thinking. The constitutional interpretations of that Court are not immutable as the laws of the Medes and the Persians. It is to blink at reality for the law to pretend not to see what every literate layman knows — that Miranda v. Arizona is in definite disfavor with the strong majority of the present membership of the institution charged with interpreting the law of the land. Miranda has not been overruled and is not likely to be overruled. The disfavor is manifested by its being read and applied in a restrictive rather than an expansive manner.”

Even Judge Lowe’s reading of the facts must concede that the case before us is not absolutely controlled by a literal, four-square application of Miranda. There is some room for maneuvering. We may determine, guided by the prevailing spirit of the law of the land, whether to squirm slightly forward or inch slightly backward. To discern that prevailing spirit, it is not enough to read Miranda in a vacuum. We must set a weather eye for the larger tide to see whether the direction of movement is forward or backward. The trend is unmistakable. Its message is clear that Miranda, even as far as it goes, is in distinct disfavor and that it will not be extended by the Supreme Court by so much as a millimeter. This is the reason I perceive for giving Miranda a tightly restrictive reading in this case. If, on the other hand, Miranda. were riding a flood tide rather than an ebb tide, one might agree with Judge Lowe that a logical extension of its spirit would compel the result he urges. My reading of the history of our constitutional law for the last decade indicates that as of 1978, Miranda is a setting sun and not a rising sun. I am not unhappy with this state of affairs but even if I were, objectively I would still have to read the history of the decade in the same way.

I quite agree with Judge Lowe that a cleaner method of accomplishing this constitutional purpose would be frankly and candidly to overrule Miranda. That prerogative, however, lies in Washington and not in Annapolis.

Judge Lowe suggests as an alternative avenue for reaching the result he seeks a holding that the right to the assistance of counsel under the Sixth Amendment was violated. The Supreme Court has made it clear that an individual only becomes “the accused” for purposes of the attachment of the right to counsel as of the time of indictment. Kirby v. Illinois, 406 U. S. 682 (1972); Massiah v. United States, 377 U. S. 201 (1964).

I agree completely with Judge Melvin in his reading of the facts and the application of the law to those facts and, therefore, I vote to affirm. Even if, arguendo, I agreed with Judge Lowe’s reading of the facts, I would still vote to affirm because of my strong conviction that Miranda is now sapped of all vitality except in those cases squarely covered by it.

Lowe,«/.,

dissenting:

I respectfully dissent. When appellant cut short his interrogation in the “interview room” because “he didn’t want to answer any questions” he explained that he was “going to get a lawyer” although he did not want one at that moment. Appellant was then taken to the “roll call” room where the incriminating evidence taken from his apartment was spread out on a table. Upon being told that the evidence had been taken from the address where appellant presumably lived, he admitted ownership of the proscribed drugs. Some of the testimony of the officer who testified as to the “spontaneity” of appellant’s “blurt” is necessary to set the stage for my concern with the majority opinion:

“Q. [Defense counsel]: Is it not a fact that the purpose you would bring him into the second room for, specifically the roll call room where the narcotics were laid out on the table, was that you attempted-let’s be honest if you can — to get a statement?
MR. GREENBERG: Objection.
THE COURT: Overruled.
MR. GREENBERG: It’s on the phraseology, Your Honor.
MR. SNYDER: I will strike that phraseology on that. Was the purpose for bringing the Defendant into the roll call room an attempt to get an incriminating statement from him?
THE WITNESS: That was not the sole purpose.
BY MR. SNYDER:
Q, What was one of the purposes?
A. The sole purpose was to obtain his help in getting information relative to who was over top of them.
THE COURT: How was that going to result from his seeing all of that stuff to give a statement as to who was on top of him?
THE WITNESS: Well, it works in strange ways. Usually that’s our policy.
THE COURT: What do you mean by that?
THE WITNESS: Well, to let the person know what we have laid out and just so we can obtain his information to help us.
THE COURT: How do you get that information by showing him ?
THE WITNESS: We say this is what we have.
THE COURT: And then what?
THE WITNESS: We get a copy of the return and are there any questions about what was recovered. It was just an attempt to get him to help us.
THE COURT: What do you mean by help you?
. THE WITNESS: In heroin traffic in the neighborhood of the 437 Club.
THE COURT: By getting him to cooperate and telling the people who are dealing in the narcotic traffic?
THE WITNESS: Yes, if he has any knowledge.
BY MR. SNYDER:
Q. Once again, Detective Snipes, you are saying your purpose is two-fold, one to get a statement that he was involved and two you could get him to turn informant or State’s evidence, is that correct?
A. The main object was to get him to turn State’s evidence.
Q. Did you get him to admit any involvement before turning State’s evidence?
A. I don’t think so.
Q. How can a man turn State’s evidence if he hasn’t told you it’s his stuff?
MR. GREENBERG: Objection.
THE COURT: Overruled.
THE WITNESS: I don’t think he admitted anything if that’s what you are asking.
MR. SNYDER: If we analyze what was said prior, wehaveaman who doesn’t want a lawyer, not at that time, but eventually; you stop questioning him and you take him to the roll call room and the purpose of that is to get him to become an informant or turn State’s Evidence?
MR. GREENBERG: Objection.
THE COURT: Overruled.
THE WITNESS: Yes.
MR. SNYDER: Yet he never told you that it was his stuff to begin with?
THE WITNESS: Right.
MR. SNYDER: We understand you, the purpose of that was mainly to get him to turn State’s Evidence?
MR. GREENBERG: Objection.
THE COURT: Overruled.
THE WITNESS: Yes.
MR. SNYDER: Another purpose was to get him to make an incriminating statement?
MR. GREENBERG: Objection.
THE COURT: Overruled.
THE WITNESS: I would say that was a thought, but that was not the main purpose. (Tb.36-39) (Emphasis added)
THE COURT: The statement to you, this is my stuff, did that statement immediately follow what you said, this is what we recovered from your house?
THE WITNESS: Yes.
THE COURT: It was his immediate response to that?
THE WITNESS: Yes. (Tb.42)
MR. SNYDER: You are testifying then that it wasn’t his expressing that it was his stuff that you then informed him how or he may help, is that correct?
THE WITNESS: Yes.
MR. SNYDER: Let me ask you this, Detective Snipes, let me ask you this, in the interview room the Defendant told you that he did not want to answer any questions and he told you that?
THE WITNESS: Yes.
MR. SNYDER: You testified that one of the purposes for taking him into the roll call room was to show him the narcotics, to show him it was his?
THE WITNESS: Yes.
MR. SNYDER: Why did you do that if you did not intend to ask him questions”?
MR. GREENBERG: Objection.
THE COURT: Overruled.
THE WITNESS: Why did I do that?
MR. SNYDER: Yes.
THE WITNESS: To get him to help us. (Tb.44-45) (Emphasis added)”.

It is perfectly ridiculous to permit this admission (which amounts to a confession) to be introduced upon the lame excuse that no actual question was asked. The question was implicit, however punctuated, and in whatever room it was propounded. The Supreme Court in Miranda v. Arizona, 384 U. S. 436, 473-474 (1966), stated unequivocally that:

“If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.” (Footnote omitted and emphasis added).

In light of Miranda’s unequivocal directive it should be unnecessary to state the obvious. The procedure that followed in the roll call room, which was admittedly intended to elicit from appellant information relating to other persons in the narcotics world, presupposed appellant’s participation therein. Accordingly, it was a denial of appellant’s fifth amendment rights, and hardly a subtle one at that. If Miranda’s clear meaning has so little viability as to permit so embarrassingly apparent a subterfuge as this, Miranda should be reversed by the Supreme Court outright, rather than circumvented in this manner. We are wont to point with pride at our judicial platitudes prescribing constitutional protections of individual rights, but we view them with alarm when we are called to apply them in a hard case. Allowing semantic subterfuge to frustrate clearly stated constitutional protections cause the public to look askance at our system, and with good reason.

The continued interrogation by the “show and tell” method was admittedly intended by the police to elicit information; primarily, to find out from appellant the names of his superiors and associates in the drug business, and secondarily, to obtain an incriminating statement. Obviously, if the primary purpose was accomplished, as I have noted, it presupposed a self-incrimination by appellant. This deliberate intent as expressed by the police distinguishes this case from Humphrey v. State, 39 Md. App. 484, 490-492 (1978). There Judge Morton was careful to point out that appellant’s confession was tantamount to a spontaneous statement because it was “ ... not prompted by any questioning on the part of the police. In fact, Detective Bateman specifically stated that it was not necessary for appellant to say anything.” Id at 492. Notwithstanding this distinction, had I been on the Humphrey panel, there, too, I would have dissented. Here I am even more disturbed, because we are condoning a standard procedure of interrogation which is a shamefully obvious method of circumventing Miranda.

The admittedly deliberate conduct by the police is also most significant in light of appellant’s custodial condition and his express declaration that he was going to get a lawyer. Assuming, however, that we concede that the Supreme Court is moving away from Miranda, it should be pointed out that appellant’s sixth amendment rights were also directly violated (unless the Court is moving away from these protections too).

Despite the fact that appellant was not formally indicted, he was certainly at a stage in the preliminary proceedings when he obviously needed effective representation of counsel. Upon his arrest, appellant was no longer a mere suspect and the officers weren’t simply making inquiries into an unsolved crime. He was an accused, and the interrogation was a form of pretrial preparation. Indeed, the nature and effect of that which the police deliberately elicited from him indicates that this was perhaps the only stage when legal advice would help him.

In Massiah v. United States, 377 U. S. 201 (1964), a police investigation continued against Massiah — after his indictment — and an incriminating conversation was surreptitiously obtained by the police. The Court held that Massiah was denied his sixth amendment right to counsel.

“In Spano v. New. York, 360 U. S. 315, 3 L.Ed.2d 1265, 79 S. Ct. 1202, this Court reversed a state criminal conviction because a confession had been wrongly admitted into evidence against the defendant at his trial. In that case the defendant had already been indicted for first-degree murder at the time he confessed. The Court held that the defendant’s conviction could not stand under the Fourteenth Amendment. While the Court’s opinion relied upon the totality of the circumstances under which the confession had been obtained, four concurring Justices pointed out that the Constitution required reversal of the conviction upon the sole and specific ground that the confession had been deliberately elicited by the police after the defendant had been indicted, and therefore at a time when he was clearly entitled to a lawyer’s help. It was pointed out that under our system of justice the most elemental concepts of due process of law contemplate that an indictment be followed by a trial, ‘in an orderly courtroom, presided over by a judge, open to the public, and protected by all the procedural safeguards of the law.’ 360 U. S., at 327 (Stewart, J., concurring). It was said that a Constitution which guarantees a defendant the aid of counsel at such a trial could surely vouchsafe no less to an indicted defendant under interrogation by the police in a completely extrajudicial proceeding. Anything less, it was said, might deny a defendant ‘effective representation by counsel at the only stage when legal aid and advice would help him. 360 U. S., at 326 (Douglas, J., concurring).
Ever since this Court’s decision in the Spano case, the New York courts have unequivocally followed this constitutional rule. ‘Any secret interrogation of the defendant, from and after the finding of the indictment, without the protection afforded by the presence of counsel, contravenes the basic dictates of fairness in the conduct of criminal causes and the fundamental rights of persons charged with crime.’ People v. Waterman, 9 N. Y. 2d 561, 565, 175 N. E. 2d 445, 448.
This view no more than reflects a constitutional principle established as long ago as Powell v. Alabama, 287 U. S. 45, 77 L. Ed. 158, 53 S. Ct. 55, 84 ALR 527, where the Court noted that ‘... during perhaps the most critical period of the proceedings ... that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thoroughgoing investigation and preparation [are] vitally important, the defendants ... [are] as much entitled to such aid [of counsel] during that period as at the trial itself.’ Id. at 57, 77 L. Ed. 164. And since the Spano decision the same basic constitutional principle has been broady reaffirmed by this Court. Hamilton v. Alabama, 368, U. S. 52, 7 L.Ed.2d 114, 82 S. Ct. 157; White v. Maryland, 878 U. S. 59, 10 L.Ed.2d 193, 83 S. Ct. 1050. See Gideon v. Wainwright, 372 U. S. 335, 9 L.Ed.2d 799, 88 S. Ct. 792.
Here we deal not with a state court conviction, but with a federal case, where the specific guarantee of the Sixth Amendment directly applies. Johnson v. Zerbst, 804 U. S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019, 146 ALR 357. We hold that the petitioner was denied the basic protections of that guarantee when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel. It is true that in the Spano ease the defendant was interrogated in a police station, while here the .damaging testimony was elicited from the defendant without his knowledge while he was free on bail. But, as Judge Hays pointed out in his dissent in the Court of Appeals, ‘if such a rule is to have any efficacy it must apply to indirect and surreptitious interrogations as well as those conducted in the jailhouse. In this case, Massiah was more seriously imposed upon ... because he did not even know that he was under interrogation by a government agent.’ 307 F. 2d at 72-73.” (footnotes omitted and emphasis added). 377 U. S. at 204-206.

I find no distinction in the underlying reasoning here that appellant was not yet indicted. He was obviously under arrest (when his speedy trial rights commence), in custody, and was entitled to counsel at this crucial stage of his proceeding. Massiah v. United States, 377 U. S. at 204-205. A custodial interrogation, unlike a simple lineup for identification purposes (See Kirby v. Illinois, 406 U. S. 682 (1972)), is a stage of the proceedings wherein counsel’s assistance is extremely important, else why require a recitation of rights to include that of counsel. (“You have a right to counsel — but not yet.”). To paraphrase Mr. Justice Douglas in Spano, supra, (as repeated by the Court in Massiah, supra} a constitution which guarantees counsel to a defendant under interrogation, after indictment, could hardly justify denying counsel to an arrested accused not yet indicted, saying on the one hand such interrogation is a crucial stage of the proceeding and on the other that it is not. In either case:

“Anything less... might deny a defendant ‘effective representation by counsel at the only stage when legal aid and advice would help him.’ ” Massiah v. United States, 377 U. S. at 204.

It is implicit in the warnings prescribed by Miranda that before appellant can waive his fifth amendment self-incrimination right he must be informed of — and waive — a right to counsel at any further interrogation. Obviously then, the sixth amendment right to counsel is inseparably interwoven by Miranda into the fifth amendment right against self-incrimination. If the latter is violated, the former is necessarily so as well. It is most apparent in this case where appellant articulately exercised both rights. For the police to bring in deliberately through the back door that which they could not take through the front, denies appellant his rights under both the fifth and the sixth amendments. I would reverse and remand for retrial without the use of the damning admission of ownership of the hard evidence.


source: Caselaw Access Project

author: Morton, J.,

license: Public Domain

text:
    MICHAEL AKONOM and JOSHUA GREGG v. STATE OF MARYLAND
    [No. 92,
    September Term, 1978.]

      Decided December 6, 1978.

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

      Martha G. Villmoare, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellants.

      Stephen B. Caplis, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Charles Lamasa, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

Appellants, Michael Akonom and Joshua Gregg, were tried jointly before a jury in the Criminal Court of Baltimore (Allen, J.) on two separate counts of murder and related handgun offenses. The jury found each of them guilty on two counts of first degree murder and also returned guilty verdicts on all outstanding handgun charges. Two consecutive life sentences were imposed for the murder convictions.

The charges stemmed from the shooting deaths of Malcolm Crawley and Bland Gatewood on June 25,1976, at Crawley’s home. There is no question that the victims and appellants knew each other. There was testimony indicating that Akonom had previously been “set up” by Gatewood in an abortive narcotics arrest and that Gregg had once been charged with assaulting Crawley. It is clear from the record that appellants were in the neighborhood at the approximate time of the shootings and there was evidence that appellant Akonom was in possession of a .45 caliber handgun on the day of the murders. Ballistics evidence showed that the victims were killed by .45 caliber bullets. The actual murder weapon, however, was never discovered.

The crucial fact for the purposes of this appeal is that on July 9, 1976, appellant Gregg, after several hours of questioning, voluntarily submitted to a polygraph examination at Baltimore City police headquarters. He also gave police a signed statement in which he denied involvement in the murders. On neither occasion was he represented by counsel. Prior to the polygraph examination, Gregg signed a “stipulation” agreeing that in the event of a trial, either the State or the defense could introduce the test results, provided the results were “conclusive.” The record also indicates that Gregg was advised of his constitutional rights prior to his statement and prior to the polygraph examination.

The examination was administered by Larry Howell, an employee of the Baltimore City Police Department who received training in polygraphy during his service with the United States Army. Howell, whom the court qualified as an expert witness, testified at trial that the examination consisted of a combination of “relevant” questions concerning the crime, irrelevant questions and control questions. Deceptive answers to control questions are anticipated. They are intended to aid the examiner in determining the reactibility of the subject.

The four “relevant” questions were:

1. Were you there in the house when Malcolm and Bland were shot?
2. Do you know for sure who shot Malcolm and Bland?
3. Were you involved in Malcolm and Bland’s death in any way?
4. Do you know what happened to the gun after the shooting?

Howell testified that Gregg answered “no” to all four of the relevant questions. He further testified that the polygraph results indicated that Gregg’s responses to the first three relevant questions were “untruthful,” but that Gregg was “telling the truth” when he responded negatively to the fourth question.

It is in this factual posture that appellants contend that the admission of testimony concerning the results of Gregg’s polygraph examination constituted reversible error as to both appellants’ convictions notwithstanding that Gregg volunteered to subject himself to the examination and agreed that the results could be used by the State or himself regardless of the outcome.

We announced in Rawlings v. State, 7 Md. App. 611 (1969), a case of first impression, that we would follow the general rule that polygraph evidence is inadmissible, but we did not reach the question of the effect of a stipulation between the State and the defense upon the admissibility of such evidence. We have since cited Rawlings with approval in Smith v. State, 31 Md. App. 106, 120 (1976); Smith v. State, 20 Md. App. 577, 594 (1974); Wilson v. State, 20 Md. App. 318, 334 (1974).

In adopting the rale of inadmissibility as enunciated by the Supreme Court of New Hampshire in State v. LaForest, 207 A. 2d 429 (1965), this Court stated in Rawlings, supra, 614:

“We have examined all available authorities and have concluded that at this stage in the science or the art of lie detecting, the rationale of the general rule expressed above represents the sounder approach to the issue.”

The New Hampshire court noted that while the polygraph is a valid investigative tool, “[nevertheless the results of these tests have been rejected by the courts as evidence of guilt or innocence of the accused by the overwhelming weight of judicial authority on the ground that these tests have not yet attained sufficient scientific acceptance as an accurate and reliable means of ascertaining truth or deception . . . .” LaForest, supra, 430. More recently, we observed in Johnson v. State, 31 Md. App. 303, 307 (1976), that “[t]he reason for excluding the results of a polygraph examination is the questionable reliability of such evidence.”

The State, however, argues strenuously that the stipulation in the instant case disposes of the admissibility problem. It is clear from the record that the trial judge admitted the evidence on this basis. Judge Allen stated: “The issue... here is not the admissibility of lie detector tests vel non, but the issue of a lie detector test after a stipulation____”

In support of its contention, the State relies heavily upon State v. McDavitt, 297 A. 2d 849 (N.J. 1972) and State v. Valdez, 371 P. 2d 894 (Ariz. 1962). In those cases, the highest courts of New Jersey and Arizona, while acknowledging the general rule against admissibility of polygraph evidence, held such evidence admissible upon stipulation by the parties provided there is a factual showing that the stipulation is clear, complete, and voluntary and that the test is administered by a competent examiner using established polygraph techniques.

We find these cases unpersuasive and would venture to suggest that they are guilty of putting the cart before the well-known horse. As we see it, the crucial issue is whether, as a matter of law, this type of evidence is sufficiently reliable or trustworthy. It cannot logically be argued that a stipulation enhances in any significant way the inherent reliability of evidence produced by a so-called scientific process or art. See, e.g., Pulakis v. State, 476 P. 2d 474, 479 (Alaska, 1970). Even proponents of the use of polygraph evidence admit that a stipulation does not increase its reliability. One strong supporter suggests that “when a court admits polygraph evidence upon stipulation, it is probably because of a tacit belief in the accuracy of the technique.” Tarlow, Admissibility of Polygraph Evidence in 1975: An Aid in Determining Credibility in a Perjury-Plagued System, 26 Hastings L.J. 917, 956 (1975). Thus, while we are generally reluctant to invalidate agreements entered into by the parties, we view this as one of the unusual occasions when we are obligated to do so. See generally Annot., Relief From Stipulations, 161 A.L.R. 1161; Peddicord v. Franklin, 270 Md. 164, 175 (1973).

As the Supreme Court observed in Young v. United States, 315 U. S. 257, 259 (1942), “the proper administration of the criminal law cannot be left merely to the stipulation of the parties.” The Young dictum seems particularly apt in this instance where the stipulated polygraph evidence comprised the heart of the State’s case against Gregg. In fact, Detective Steve Danko of the Baltimore City Police Department testified that Gregg would never have been charged if he had “passed” the polygraph test. Accordingly, we decline to sanction the use of evidence produced by an allegedly scientific device unless it is first demonstrated that the underlying process is scientifically reliable.

The proper evaluation of polygraph evidence, irrespective of any stipulation, is a difficult task. In adhering to the exclusionary policy laid down in Rawlings, supra, and its successors, we see nothing in the recent decision of the Court of Appeals in Reed v. State, 283 Md. 374 (1978), which obliges us to reconsider our prior position. The Reed case set forth, for the first time in Maryland, a uniform standard for judging the admissibility of scientific evidence. That standard is the test articulated in the landmark case of Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923), where the court found that evidence produced by a crude forerunner of the modern polygraph was insufficiently reliable and therefore inadmissible:

“ ‘Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony dededuced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. (Emphasis supplied.)’ ” Reed, supra, 381.

Elaborating on the Frye test, the Court of Appeals stated:

“* * * [BJefore a scientific opinion will be received as evidence at trial, the basis of that opinion must be shown to be generally accepted as reliable within the expert’s particular scientific field. Thus, according to the Frye standard, if a new scientific technique’s validity is in controversy in the relevant scientific community, or if it is generally regarded as an experimental technique, then expert testimony based upon its validity cannot be admitted into evidence.
The identity of the relevant scientific community is, of course, a matter which depends upon the particular technique in question. In general, members of the relevant scientific community will include those whose scientific background and training are sufficient to allow them to comprehend and understand the process and form a judgment about it. ’’ (Emphasis supplied.) Reed, supra, 381-82.

Hence, it is clear under Reed that the relevant “field” in which the polygraph belongs is not limited to those who practice the science (or art) of polygraphy, but extends into the larger scientific community as well. This conclusion is in accord with Frye, where it was determined that a primitive lie detector test lacked sufficient “standing and scientific recognition among physiological and psychological authorities.” Frye, supra, 1014.

Upon rejecting the contention that the trier of fact might determine the validity and weight of scientific evidence on a case by case basis and decrying the inconsistencies that would inevitably result from such a practice, the Court of Appeals restated the Frye rule in the following terms:

“As long as the scientific community remains significantly divided, results of controversial techniques will not be admitted, and all defendants will face the same burdens.” (Emphasis added.) Reed, supra, 388.

Unfortunately, the record before us does not provide an adequate basis for determining whether the polygraph has gained “general acceptance in the scientific community” under the Frye-Reed test. The only “expert” testimony in the present case came from the polygraph examiner himself, an individual apparently qualified in polygraphy but without any broader scientific training. Moreover, as we noted earlier, the trial judge mistakenly assumed that the stipulation made it unnecessary to rule on the threshold issue of the admissibility of the disputed evidence.

There is, of course, a very large body of material on the subject of polygraph testimony. In our examination of the case law as well as numerous articles in law reviews and professional journals, we have found no discussion of the subject more thoroughly researched or persuasively reasoned than the recent opinion of the Supreme Court of Michigan in People v. Barbara, 400 Mich. 352, 255 N.W.2d 171 (1977). In Barbara, the Michigan court, applying both the Frye test and Michigan’s own variant of that test, reaffirmed its long-standing rejection of polygraph evidence in all trials, including evidence submitted pursuant to stipulation. Barbara relaxed the polygraph ban to the very limited extent that judges were granted discretion to consider polygraph results if offered by a defendant in a post conviction proceeding for a new trial. The court was careful to point out that under these strict limitations, “the polygraph examination would not itself be evidence,” but would merely be used “to buttress the credibility of new witnesses,” Barbara, supra, 173, and “would not set a pattern for admissibility at trial,” id. at 199.

It is undisputed that the polygraph has made significant progress since the time of Frye and that it is now widely used as an investigative tool by law enforcement agencies and private industry. See, e.g., Barbara, supra, 193; U. S. v. Wilson, 361 F. Supp. 510, 511 (1973). Proponents of the use of the polygraph in the court room point to studies indicating that the tests are accurate upwards of 90 percent of the time. The problem with such claims is that the figures have been supplied by polygraphers and generally lack verification by relevant scientific disciplines. On this point, the Michigan Supreme Court remarked upon the “difficulty in empirically verifying polygraphic findings” as well as the existence of “some questions concerning the accuracy figures.” Barbara, supra 189. The court further observed:

“The fact is, that the results of most polygraph examinations are not verified by extrinsic evidence, and there are no scientific studies performed by other than polygraphers which purport to demonstrate scientific means of verification. This factor alone has been responsible for much of the anti-polygraph sentiment outside the polygraph profession.” Id.

See also U. S. v. Wilson, 361 F. Supp. 510, 514 (D. Md. 1973), where after two days of expert testimony, the federal District Court for Maryland concluded: “[T]he fundamentally psychological component of the examination, the subjectivity of interpretation, and the incipient stage of experimental research, preclude the finding of a particular degree of probability of accuracy of a polygraph examination. Thus, it is impossible at this time to assess the substantiality of the degree of error in the polygraph process.”

In any event, acceptance among polygraphers is clearly not the “general acceptance” required under the Frye-Reed test and acceptance among psychologists and psysiologists “cannot be demonstrated, because such acceptance does not exist.”

Another serious concern of scientists and jurists alike is the critical role of the examiner in polygraph testing. Discussing this problem in U. S. v. Wilson, supra, 512, Judge Young stated:

“A study of the theory and process of the polygraphy examination reveals complexities not present in the fields of fingerprint, handwriting, voiceprint, ballistics and neutron activation analysis, all of which are based on the identity or behavior of physical phenomena. The experts and studies differ as to the capability of the polygraph industry to cope with these complexities, but none would dispute their existence. The distinction is that polygraphy, albeit based on a scientific theory, remains an art with unusual responsibility placed on the examiner. The acquainting of the examiner with the subject matter is often a source of improper suggestion, conscious or subconscious. The preparation of the test and the discussion with the examinee of the polygraph procedure furnishes additional opportunity for improper subjective evaluation.”

If one thing is clear from the great mass of literature on polygraph testing, it is that the scientific community is still “significantly divided,” Reed, supra, 388, in its opinion concerning the validity of the technique. While this conclusion by itself dictates that polygraph evidence must remain inadmissible, there are other serious problems associated with its use. These problems often result from the fact that the polygraph device is unique in that its truth-seeking function nearly duplicates the purpose of trial. Additional policy arguments that have been advanced include:

“(1) that the jury will put inordinate weight on the testimony of the examiner, (2) that, although the testimony of a ballistics or fingerprint expert is usually significant, ‘a demonstrated lie or truth to the question “Did you kill X?” would invariably be perfectly conclusive’; (3) that examination results offered unilaterally by the defendant would always be favorable to him and his opponent would not be able to examine him under the lie-detector, nor to cross-examine him should he refuse to take the stand; (4) that, even where the defendant consents to take an examination, while incarcerated the conditions under which the consent is obtained and the examination is given may be a factor in producing results unfavorable to the defendant; (5) that the presumption of innocence may be threatened by the inordinate weight likely to be given to failing to take a polygraph examination once such examination results are generally admitted * * (Footnotes omitted.) Note, Problems Remaining for the “Generally Accepted” Polygraph, 53 B.U.L.Rev. 375, 377 (1973).

See also testimony of Henry S. Dogin, Deputy Assistant Attorney General before the House Committee on Government Operations, reported in 16 Crim. L.Rep. (BNA) 2306 (1975). It should be noted that the U. S. Justice Department has adopted a firm policy opposing the use of polygraph evidence at trial. See Abbell, Polygraph Evidence: The Case Against Admissibility in Federal Criminal Trials, 15 Am.Crim.L.Rev. 29, 30 (1977).

We are also troubled by other likely effects of institutionalizing polygraph testing. Were private practices to spring up, some defendants might “shop around” until they passed an examination without divulging prior unsuccessful tests. On the other hand, the indigent defendant would be unable to “take an examination without the government’s financing and knowledge.” Wilson, supra, 514.

For these reasons, we believe not only that polygraph evidence fails to meet the Frye-Reed standard of “general acceptance,” but also that its admission is certain to be highly prejudicial because of its apparent conclusiveness. We are therefore compelled to reverse the conviction of appellant Gregg, whose polygraph examination was a principal component of the State’s case.

It is a harder question with respect to appellant Akonom. Although the jury was cautioned that the polygraph evidence was to be considered only against Gregg, we have grave doubts about the efficacy of such an instruction under the circumstances of this case. The State’s theory was that the defendants, two friends motivated by revenge, acted in concert in the killings of the two victims. While the circumstantial evidence against Gregg was weak, the State’s case was stronger against Akonom, who admitted being in possession of a handgun in the home of one of the victims shortly before the shootings.

The clear import of the polygraph evidence was, however, that Gregg was present at the shootings, that he knew who actually shot the victims and that he was personally involved in their deaths. Given the State’s theory of the case, it is hard to imagine how this evidence could be considered in any way that was not prejudicial to Akonom, particularly in light of Gregg’s allegedly “truthful” response denying knowledge of the whereabouts of the gun after the shooting.

We conclude therefore that the introduction of the polygraph evidence was necessarily so prejudicial as to warrant the reversal of both appellants’ convictions. In view of our conclusion, we do not reach the remaining issues presented in this appeal.

Judgments reversed as to both appellants; case remanded for a new trial; costs to be paid by the Mayor and City Council of Baltimore.

      . Prior to trial, Akonom’s motion for severance was denied.

      . Gregg’s motion for judgment of acquittal was granted with respect to charges of carrying a handgun.

      . We are aware that courts often accept evidence, otherwise objectionable, on the basis of a stipulation or (in criminal law) under the doctrines of waiver or lack of standing, but in virtually all such instances the evidence in question satisfies judicial standards of reliability. The “harmless error” doctrine also provides an interesting analogy: while the admission of evidence tainted by an illegal search may be “harmless,” the introduction into evidence of a coerced confession requires automatic reversal, at least in part because of the theory that its origin renders it highly unreliable. See, e.g., Jackson v. Denno, 378 U. S. 368, 386 (1964).

      . Among the many helpful commentaries are: Abbell, Polygraph Evidence: The Case Against Admissibility in Federal Criminal Trials, 15 Am.Crim.L.Rev. 29 (1977); Annot., Physiological or Psychological Truth and Deception Tests, 23 A.L.R. 2d 1306; Annot., Polygraph: Stipulation of Admissibility, 53 A.L.R. 3d 1005; Burkey, The Case Against the Polygraph, 51 A.B.A. J. 855 (1965); Forkosch, The Lie Detector and Mechanical Jurisprudence, 28 Okla.L.Rev. 288 (1975); Highleyman, The Deceptive Certainty of the Lie Detector, 10 Hastings L.J. 47 (1958); Levitt, Scientific Evaluation of the Lie Detector, 40 Iowa L.Rev. 440 (1955); Lykken, Psychology and the Lie Detector Industry, 29 Am. Psychologist 725 (1974); Note, Pinocchio’s New Nose, 48 N.Y.U.L.Rev. 339 (1973); Note, The Emergence of the Polygraph at Trial, 73 Col.L.Rev. 1120 (1973); Reid and Inbau, Truth and Deception: The Polygraph Technique (Baltimore, Williams & Wilkins Co., 1966); Skolnick, Scientific Theory and Scientific Evidence: An Analysis of Lie Detection, 70 Hale L.J. 694 (1961).

      . In People v. Davis, 343 Mich. 348, 370, 72 N.W.2d 269 (1955), the Michigan court stated that the prerequisites for the admissibility of polygraph evidence were “general scientific recognition” of the tests and a showing that “reasonable certainty” follows from them.

      . On the stipulation point, see Stone v. Earp, 331 Mich. 606, 611, 50 N.W.2d 172 (1951).

      . Barbara, supra, 187. See also U.S. v. DeBetham, 348 F. Supp. 1377, 1381 (S.D. Cal. 1972). In addition, one well-known text by psychophysiologists states, “No adequate evaluation of the validity of the polygraph * « * is yet available.” Orne, Thackray, and Paskewitz, On the Detection of Deception, in Handbook on Psychophysiology 750 (Greenfield and Sternbach eds. 1972).

      . Two studies of juror reaction to polygraph evidence indicate that the test results would be regarded by some jurors as conclusive. See Kaplan, Lie Detector: An Analysis of Its Place in the Law of Evidence, 10 Wayne L. Rev. 381, 386 (1964). But see Tarlow, supra, 968-69.


author: Melvin, J.,

text:
    R. EDWIN BROWN et al. v. JOHN T. HARDISTY
    [No. 118,
    September Term, 1978.]

      Decided December 6, 1978.

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

      Bex L. Sturm, with whom were Brown & Sturm on the brief, for appellants.

      Earl C. Hill, Jr., for appellee.
   Melvin, J.,

delivered the opinion of the Court.

The appellant property owners, R. Edwin Brown, individually and as trustee under the will of Hatton D. Brown, and Richard P. Brown, as trustee under the same will, seek shelter under Maryland Code Article 81, Section 111 (1957, 1975 Repl. Yol., 1978 Cum. Supp.) from the application of Rule 604 b of the Maryland Rules of Procedure.

A plaintiff in a proceeding to foreclose a property owner’s right to redeem property sold at a tax sale is entitled, in accordance with Article 81, Section 111, to be reimbursed, upon redemption, for, among other items, “actual attorney’s fee, not to exceed $100.00.” On the other hand, Md. Rule 604 b provides for the payment, without limitation, of “reasonable attorney’s fees” that are incurred by a litigant in “any proceeding” (emphasis added) “in an action or part of an action” if the court finds that the proceeding was had ... without substantial justification” by “the moving party.”

We here hold that the limitation on attorney’s fees contained in Art. 81, § 111, does not prevent the application of Rule 604 b in an action to foreclose a property owner’s right to redeem property sold at a tax sale. We hold further that the Circuit Court for Montgomery County (Thieme, J.) was not clearly erroneous in applying the rule under the circumstances. These holdings require that the judgment below be affirmed, but, as we shall later explain, with some modification as to the amount of attorney’s fees awarded.

The trial judge’s finding that the appellants proceeded without substantial justification was predicated primarily on the fact that the issues raised by the appellants in this c^se had already been settled in previous litigation in which the appellants had participated. An understanding of the present case requires a recitation of the factual and legal posture of the previous litigation.

I

In December 1972 the appellants received notice of tentative assessments for the 1973 levy year of $12,380 on a 20 acre parcel of land and $1,980 on a 1 acre parcel of land owned by them in Montgomery County. The tentative assessments, resulting in a tax levy on the parcels of $534.70, were, in the appellants' view, a “huge increase” over the assessments of the previous year. Consequently, a protest was filed. The Supervisor of Assessments, after a hearing in July 1973, entered the tentative assessments as final assessments for the 1973 levy year.

While an appeal of the Supervisor’s ruling was pending before the Property Tax Assessment Appeal Board, the appellants received the tax bill based on the increased assessments. The appellants failed to pay the bill. On June 10, 1974, the collector of taxes held a tax sale at which the appellee, John T. Hardisty, purchased the property and received certificates of sale for each parcel. Shortly thereafter, on July 1,1974, the Tax Assessment Appeal Board reduced the assessments on the parcels. After the reduction the tax due on the two parcels was $34.56. A revised tax bill, including a charge for both interest on the unpaid 1973 taxes and costs of the tax sale, was sent to the appellants. The appellants objected to the imposition of the additional charges. Following an unsuccessful attempt in the Circuit Court for Montgomery County to enjoin the Director of Finance from collecting the interest and costs, the appellants appealed to this Court.

The issue raised at that time and resolved in an opinion by Powers, J., in Brown v. Montgomery County, 30 Md. App. 107, 351 A. 2d 156 (1976), was whether taxes based upon an assessed valuation made final by the Supervisor of Assessments may be collected while an appeal from that assessment is pending. The appellants proposed that a taxpayer “should be required to pay taxes based upon a final assessment only after exhaustion of his appeal rights”. In response the Court stated that the appellants’ proposition voiced “an understandable taxpayer grievance, but if the law were as appellants would have it, the capability of the taxing authority to perform its public functions could be brought to a standstill by mass appeals. The potential harm of such a rule is intolerable to government.” Id. at 109, 110. After noting both the absence in Art. 81 of any provision which postpones or suspends the obligation to pay taxes while an appeal is pending and the presence of provisions imposing a mandatory duty on the collector of taxes to proceed to sell “the property of the taxpayers for delinquent taxes assessed and billed for the taxable year starting 1 July 1978”, the court held as follows:

“.. . [Tlhe obligation to pay taxes, legally assessed and legally billed, was not stayed or suspended pending an appeal from the assessment, and ... non-payment by the taxpayers here inevitably resulted in a sale of their property by the collector of taxes and the requirement upon them to pay interest, penalties and costs in order to redeem their property”. Id. at 112, 113. (Emphasis added)

With respect to recovering a refund for overpayment after an assessment has been reduced, the Court pointed out that the taxpayers are adequately protected by Art. 81, § 214. Judge Powers further stated as follows:

“. . . The amount which the taxpayers were told they must pay in order to redeem their property from the tax sale included interest, penalties, and advertising and other costs of the tax sale, as required by Art. 81, § 93. The position of the taxpayers was and still is that they should not have been required to pay any taxes'while the appeal from the assessment was pending. The appellants do not disagree with the manner in which the redemption law was applied, but they contend that it should not have been applied at all.” Id. at 112.

Art. 81, § 93, clearly provides that the “person redeeming shall pay to the collector the whole amount of money received by such collector from the sale of the property, together with interest at the rate of six percent per annum from the date of sale to the date of the payment of the redemption money ...”. It is not disputed that the collector received from the tax sale of the property the 1973 taxes ($534.70) that had been levied on the higher assessments.

II

On June 9, 1976, the appellee, pursuant to Art. 81, § 100, filed the present action to foreclose all rights of redemption of the two parcels he had purchased at the tax sale on June 10, 1974. The bill of complaint correctly stated the amount necessary for redemption as including the $530.70 in unpaid taxes appellee paid for the property based on the 1973 higher assessment that was in effect at the time of the sale.

Art. 81, § 94, provides that if a property owner wishes to redeem his property after an action to foreclose the right of redemption has been instituted, he must “apply to the court before which such action is pending to fix the amount necessary for redemption____” Ordinarily, this procedural step in the process is a mere formality free of controversy — and it should have been in this case. Nevertheless, the appellants, while complying with Art. 81, § 94 by applying to the court to fix the redemption amount, did so in combination with various other pleadings (an Answer, Petition for Rehearing, and Amended Answer) in which they persisted in their contention that their property “was sold under an invalid levy and that the taxes are invalid; that the proceedings to sell were invalid, and the property in question was sold at an invalid sale, and ... that the amount for redemption should be” “the taxes for the levy year commencing July 1, 1973” based on the assessments as determined on appeal by the Tax Assessment Appeal Board and not on the assessments in effect at the time of the tax sale. This, of course, was directly contrary to our holding in Brown v. Montgomery County, supra.

A hearing on the matter was finally held on January 4,1978 before Judge Thieme. At the hearing, one of the appellants, a practicing attorney, who had actively participated in the previous litigation, testified that he based his contention that the property was sold under an invalid levy “upon the fact that a levy, a tentative, a proposed increase in assessment does not become a valid assessment until the appeal time has lapsed” and that “we are here to get a ruling on the validity of whether the County, Montgomery County can validly sell on what is a tentative assessment while the process of getting the assessment to finality is in process”. Judge Thieme responded, correctly we think, that “the Court of Special Appeals has answered that question quite clearly.”

At the conclusion of the hearing Judge Thieme passed two separate orders. The first determined the same amounts necessary for redemption, plus incidental costs and accrued interest, that had been stated in appellee’s bill of complaint. Apparently finally convinced that Brown v. Montgomery County, supra, would render futile any further attempt to attack the tax sale, no appeal was taken from this order. Judge Thieme’s second order invoked the “without substantial justification” provisions of Md. Rule 604 b and required the appellants to pay to appellee’s attorney $1,125.00 “for legal fees and costs incurred in the prosecution of this action”. It is from this second order that the appellants have taken this appeal.

Ill

The appellants do not question the validity, veJ non, of Rule 604 b itself, or the power of the Court of Appeals to adopt the rule. They seek reversal of Judge Thleme’s Order on two grounds. Firstly, they contend that the $100 limitation on attorney’s fees contained in Art. 81, § 111 prevents application of the Rule. Secondly, they contend that even if the rule applies, there was “substantial justification” for the proceedings had by them.

Applicability of the Rule

Maryland Rule 1 (Scope of Rules) provides that in addition to applying to procedure generally, both at law and in equity, Rule 604 b applies as well “to the Special Proceedings dealt with in Chapter 1100” of the Rules. One of the “Special Proceedings dealt with in Chapter 1100” is tax sales. See Rule BS40, providing that “the procedure for tax sales . . . shall be in accordance with Code, Article 81, Sections 70 to 123”. The Maryland Rules of Procedure, of course, “have the force of law, replacing inconsistent legislative provisions, subject only to the power of the Legislature to provide otherwise”. Hauver v. Dorsey, 228 Md. 499, 502, 180 A. 2d 475 (1962); Md. Constitution, Art. IV, § 18.

Both the statute (Art. 81, § 111) and the rule (604 b) deal with attorney’s fees. In our view, however, they are neither irreconcilable nor mutually repugnant. It is therefore not necessary to determine which takes precedence over the other. The allowance for attorney’s fees in the statute contemplates the usually non-controversial and clearly defined procedural steps required of a tax sale purchaser in the redemption process. It is inconceivable to us that the Legislature would have restricted the purchaser to reimbursement of only $100 for attorney’s fees if he were required to defend against frivolous claims in the proceedings. The statute simply does not contemplate, and therefore does not address, that possibility. Rule 604 b does address that possibility, providing for “reasonable attorney’s fees” if the possibility becomes a reality. We think that read together the statute and the rule can be harmonized so as to give effect to both. As said by the Court of Appeals in Commission on Medical Discipline v. Bendler, 280 Md. 326, 330, 373 A. 2d 1232 (1977),

“. . . Where, as here, two statutes deal with the same subject matter and are not inconsistent with one another, they must be construed together and, to the extent possible, full effect given to each. [Citations omitted]. While these statutes were enacted at different times and contain no reference to each other, they must be harmonized insofar as possible. [Citations omitted.]”

See also Smith v. Gray Concrete Pipe Co., Inc., 267 Md. 149, 155, 297 A. 2d 721 (1972), where the Court held that the rule that two statutory provisions that are “neither irreconcilable nor mutually repugnant” should be construed in harmony with their respective objects and tenor is especially applicable where the statutes relate to the same subject matter.

In sum, we hold that Rule 604 b is applicable to proceedings to foreclose redemption rights under Article 81 and that in awarding reasonable attorney’s fees under the rule the court is not restricted to the monetary limitation contained in § 111.

Without Substantial Justification

In ruling on appellee’s request for attorney’s fees under Rule 604 b, Judge Thieme found as a fact that “the case was without substantial merit”. We interpret this as a factual finding under the rule that the “proceeding[s]” “had” in the foreclosure action by the appellants, as the “moving part[ies]” were “without substantial justification”. So interpreted, we cannot say that his finding was clearly erroneous under the circumstances. Rule 1086.

The amount awarded was based on an itemized statement of charges for services performed by appellee’s attorney in connection with the proceedings to foreclose, billed at the rate of $50.00 per hour. Included in the statement was the following item, for which $200 was allowed:

“(a) June of 1976: Negotiated extensively with defendant R. E. Brown as to whether it would be necessary to file suit; prepared Bill of Complaint to Foreclose Rights of Redemption and filed same.
4 hours”

It is the allowance for this item that we think requires modification of the Order. The rule speaks to attorney’s fees incurred in a “proceeding” in “an action or part of an action” in which “the moving party” in the proceeding acts “... without substantial justification . . . .” The rule does not contemplate reimbursement of attorney’s fees incurred during negotiations prior to the time an action is filed or proceedings are “had” in that action. Moreover, in this case, the bill of complaint filed by the appellee against the appellants cannot be said to have been filed “without substantial justification”. At that point, the appellee, not the appellants, was “the moving party”. The appellee argues that were it not for the appellants’ refusal to redeem the property within two years after the tax sale by paying the proper redemption money it would not have been necessary to file his bill of complaint. This may be true. See Art. 81, § 100. On the other hand, we find nothing in Article 81 requiring a property owner to redeem at any time. An owner’s right to redeem, however,

“. . . exist[s] and continue[s] until finally barred by decree of the court of equity in which the foreclosure proceeding is filed”. Art. 81, § 100. Heill v. Staniewski, 265 Md. 722, 725, 726, 291 A. 2d 449 (1972); Cahn v. Prince George’s Homes, 38 Md. App. 280, 284, 378 A. 2d 157 (1977), aff'd., Pr. George's Homes v. Cahn, 283 Md. 76, 389 A. 2d 853 (1978).”

Appellants’ failure to.redeem, prior to the filing of the foreclosure action, can not be equated to a “proceeding” had by them “without substantial justification”.

For the above reasons, we hold that it was error to reimburse the appellee for the $200 attorney’s fee charged in the item described. The other items contained in the attorney’s statement clearly cover charges resulting from “proceedings” “had” by the appellants in the foreclosure action, and as indicated earlier, we cannot say the trial court was clearly erroneous in finding them to be “without substantial justification”. The appellants do not challenge the reasonableness of the fees awarded — only that they should have been awarded at all under Rule 604 b.

Order awarding $1,125 attorney’s fees modified by reducing award to $925.

As modified order affirmed.

Costs to be paid by appellants.

      . Art. 81, § 111, states:
      “Upon redemption, the plaintiff shall be entitled to be reimbursed for expenses actually incurred in a proceeding to foreclose the right of redemption. In addition, the plaintiff, upon redemption, shall be entitled to be reimbursed for fees actually paid for recording the certificate of sale, for actual attorney’s fee, not to exceed the sum of $100.00, for expenses actually incurred in the service of process by publication, for fees for a necessary title search, not to exceed $75 for each property, except that the court, upon proof that the search was unusually difficult, may allow not more than $100 for each search, and for taxes, together with interest and penalties thereon, arising subsequent to the date of sale which have been actually paid by the plaintiff. The plaintiff shall not be entitled to be reimbursed for any other expenses incurred by him.”

      . Maryland Rule 604 b states:
      “In an action or part of an action, if the court finds that any proceeding was had (1) in bad faith, (2) without substantial justification, or (3) for purposes of delay, the court shall require the moving party to pay to the adverse party the amount of the costs thereof and the reasonable expenses incurred by the adverse party in opposing such proceeding, including reasonable attorney’s fees.”

      . And the same amount that had been contained in a prior ex parte order of court (Frosh, J.) dated July 12,1976 that had been entered after appellants’ initial Answer. This order was stricken after the court received appellants’ “Petition for Rehearing” on July 19, 1976.