author: Liss, J.,

text:
    LEON COLLINS v. STATE OF MARYLAND
    [No. 1583,
    September Term, 1981.]

      Decided July 13, 1982.

      The cause was argued before Gilbert, C. J., and Liss, J., and Philip M. Fairbanks, Associate Judge of the Sixth Judicial Circuit, specially assigned.

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

      William C. Rogers, III, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, and Joseph E. Moore, State’s Attorney for Worcester County, on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

Leon Collins, appellant, was charged in the Circuit Court for Worcester County with the first-degree murder of Olivia Collins, his wife. The case was originally tried before a jury on January 16, 1981. Upon submission of the issues to the jury it was unable to agree upon a verdict and a mistrial was declared on January 21,1981. Appellant’s motion to dismiss on the basis of double jeopardy was denied by the trial court. Appellant was subsequently tried and convicted of first-degree murder. Sentence was imposed and it was from the judgment that this appeal was filed. Appellant raises six issues to be determined by this appeal:

1. Did the lower court err in denying appellant’s motion to suppress extrajudicial statements that were not voluntarily made pursuant to a valid waiver of the privilege against self-incrimination and of the right to an attorney’s presence?
2. Did the lower court err in denying appellant’s motion to suppress extrajudicial statements obtained during an unreasonable delay in presenting appellant before a judicial officer in violation of MDR 723a?
3. Was appellant deprived of his constitutional right to a speedy trial?
4. Did the lower court err in admitting hypnotically induced testimony?
5. Did the lower court err in permitting a police officer to testify before the jury that he had been informed that the appellant shot his wife?
6. Did the lower court commit reversible error in failing to provide appellant an opportunity to be present at a critical stage of his trial?

1.

A pretrial hearing was conducted by the trial court on the motion to suppress certain statements elicited by police from appellant. Trooper Hornung of the Maryland State Police Department testified that on July 16, 1980, at approximately 12:30 a.m., he had received a report that Olivia Collins, appellant’s wife, had been shot by her husband at a truck stop on Route 13, south of Pocomoke, Maryland. He further testified that the victim’s whereabouts were unknown and that the appellant’s unoccupied vehicle, with a rifle in the front seat, had been sighted by a trooper at another truck stop adjacent to the truck stop where the incident had occurred. Trooper Hornung proceeded to the appellant’s home and took him into custody. Appellant testified that he was sleeping when he was awakened by a telephone call from the police informing him that his house was surrounded by police and ordering him to come out on the porch with his hands up. Trooper Hornung and two other officers advanced on the appellant with their service weapons drawn and appellant was patted down and taken into the house. Trooper Hornung stated he read the appellant his Miranda warning when he took appellant into custody at approximately 1:00 a.m. Appellant stated that he understood them. Appellant denied being advised of his rights until he was taken to the Snow Hill, Maryland jail at approximately 12:20 p.m. on July 16, but, in any case, he acknowledged being given the Miranda warnings and does not contend that he did not understand them.

Immediately after the Trooper advised appellant of his Miranda rights, the Trooper testified that the following occurred:

"I [Trooper Hornung] asked [appellant] if he was willing to talk to me about his wife, and he indicated that he certainly was. And I said, 'Where is she?’, and he said that he assumes that she was home and claimed not to have any other knowledge of her. He told me that he had been separated, I believe he said, for four months or so.
I then asked him if he owned a weapon, and he said, yes, he had a rifle and it was in the bedroom. And he turned and walked to the bedroom and I followed him. And in the corner behind the dresser he had a .22 caliber rifle. As I recall, the stock was up and the barrel to the floor standing in the corner.
He reached back and picked that up and I immediately took it from him.”

The Trooper then questioned appellant for approximately 45 minutes. All the officers who participated in the questioning of the appellant at one time or another testified that no promises or threats were made. The record makes it clear that the questioning concerned itself almost exclusively with the whereabouts of the appellant’s wife. Appellant assured the officers he wanted to help locate his wife and responded to all questions about where she might be. At about 7:00 a.m., Trooper Hurnung took the appellant to the Snow Hill police station where one Trooper Thomas spoke to him. During his conversation with Trooper Thomas, appellant said he was tired and was permitted to nap for about a half hour. When he awoke, Trooper Thomas spoke to the appellant for about 45 minutes to an hour. Essentially the same questions were asked by Thomas as had been asked by Hornung, i.e., concerning Olivia’s whereabouts and whether appellant killed her. This was acknowledged by appellant, in his testimony in support of the motion to suppress. Appellant further acknowledged that he was never handcuffed, beaten or threatened and that he never made any request of the police that was refused. Appellant ultimately told the officer that he could visualize his wife at a truck stop, driving through water near a boat ramp. Based on this information, appellant, in the company of Troopers Thomas and Hornung, was taken to the municipal boat ramp. When nothing was found at that location, appellant next suggested they look at the boat ramp behind the Campbell Soup plant. There the police found tire tracks leading to the water which appellant stated looked like tracks which could have been made by his wife’s vehicle. Appellant was then taken before a Commissioner at approximately 12:30 p.m. and charged with attempted murder. Two days later, appellant’s wife was found in her car, in the Pocomoke River, near the boat ramp. It is admitted by the State and the appellant that the Miranda warnings were given to the appellant only at the time he was originally taken into custody and that appellant indicated he understood the rights.

Appellant relies primarily on Brown v. State, 6 Md. App. 564, 252 A.2d 272 (1969), to support his claim that he did not validly waive his Miranda rights. Waiver of these rights may be shown expressly or by the attendant circumstances. See North Carolina v. Butler, 441 U.S. 369, 60 L.Ed.2d 286 (1979) ; Leuschner v. State, 45 Md. App. 323, 413 A.2d 227 (1980) . Cf. Swain v. State, 50 Md. App. 29, 435 A.2d 805 (1981) . There is no requirement that there be a statement by an accused that he fully understands and waives his rights.

We have carefully considered Brown, supra, and find it distinguishable on the facts from the case at bar. In Brown, this Court was in accord with the cases that held that the Miranda warnings need not be given anew and that the Miranda waiver need not be expressed each time the officers question an accused. See Miller v. United States, 396 F.2d 492 (8th Cir. 1968); State v. Davis, 157 N.W.2d 907 (Iowa 1968). In Brown, we concluded that the admission of an appellant’s written confession was reversible error where, although he had been given the Miranda warnings the night before, his statement on the following day was given to different interrogators at a police barracks some 50 miles away from the scene of the prior interrogation without any further Miranda warnings or a waiver thereof.

The facts are substantially different in the case at bar. There is not the slightest doubt that the Miranda warnings were properly given when the appellant was taken into custody. The record substantiates that appellant acknowledges having been given the warnings and acknowledges understanding them. The questioning then concerned itself primarily with the whereabouts of the alleged victim. In Brown, this Court considered the time lapse, the distance to the second interrogation, the difference in the interrogators, and the difference in the statements obtained. On the basis of these differences, the Court found that the statements were involuntary.

In this case, the time lapse was substantially less; the ultimate statement was made within 5 V2 hours from the original taking of the appellant into custody and the knowing and voluntary waiver of his Miranda rights. The final questioning occurred at the police barracks and it may be rationally inferred, we think, absent proof to the contrary, that the barracks are located near the appellant’s home.

While it is true that the ultimate information was given to Trooper Thomas rather than Trooper Hornung, it is clear from the record that the officers were cooperating in the investigation and we see no need for Trooper Thomas to have reiterated the Miranda warnings. Finally, the information obtained in the statements was essentially consistent throughout. To the end, the appellant denied doing any harm to his wife and also denied knowing her whereabouts. The vision he related having seen amounted, at the most, to a suggestion that his wife might be found in the water and it is significant, we think, that her body was not recovered until two days after he had been charged. From our own independent review of the record, we find that the Miranda warnings were seasonably given, that the appellant understood and voluntarily waived these rights, and that there was no physical or psychological coercion used in obtaining the statements he made. We conclude that the trial judge did not err in denying appellant’s motion to suppress the appellant’s statements to the police.

2.

Appellant’s second complaint is that the statements made by him to the police officers should have been suppressed because there was an unreasonable delay in presenting him to a judicial officer and, therefore, police had violated Maryland District Rule 723 a, which states in pertinent part as follows:

a. After Arrest.
A defendant who is detained pursuant to an arrest shall be taken before a judicial officer without unnecessary delay and in no event later than 24 hours after arrest.

Appellant claims that the delay was approximately 11 hours. It should be noted the 11 hour delay is well within the 24 hour limit prescribed by the Rule. The State argues that appellant’s inculpatory statements were made not more than 7 V2 hours after appellant claims he was arrested. The State argues that when the appellant was taken into custody there was no intention to arrest him but the police were merely attempting to locate the alleged victim. The Court of Appeals, in Johnson v. State, 282 Md. 314, 329, 384 A.2d 709 (1978), enumerated one of the reasons which would excuse a failure to present an accused before a Commissioner even beyond the 24 hour period designated in MDR 723 as an effort "to obtain information likely to be a significant aid in averting harm to persons or loss to property of substantial value.” The trial court, in hearing the appellant’s complaint on this issue, found as a fact that "the series of events that followed pointed not so much in finding out whether Mr. Collins was guilty of murder or assault with intent to murder, probably as much or more as they were interested in finding this woman who was obviously severely injured and perhaps dying.” The trial judge’s conclusion was clearly correct in the light of the fact that the evidence was that when the police approached appellant in his house they had arranged an ambulance waiting down the road to carry the alleged victim to the hospital. There was evidence before the trial court that during the lapse of time complained of by appellant, a number of firemen and a helicopter were engaged in searching for the victim in a fruitless attempt to save her life. We agree with the trial judge that these facts justified the delay in presenting the appellant to a Commissioner and that the court was correct in denying the motion to suppress on this ground.

3.

Appellant contends that the trial court erred in denying appellant’s motion to dismiss for violation of the appellant’s statutory and constitutional right to a speedy trial. We do not agree. The pertinent time frame of the proceedings in this case was as follows:

July 16, 1980 Appellant arrested.
January 16-21, 1981 First trial — terminating in mistrial.
April 21, 1981 State’s witness undergoes hypnosis.
April 27, 1981 Motion to dismiss for lack of speedy trial.
June 10-11, 1981 Hearing on admissibility of hypnotically induced testimony.
July 1, 1981 Trial rescheduled August 10, 1981.
August 6, 1981 Opinion and order of court on admissibility of hypnotically induced testimony.
August 10, 1981 Motion to dismiss for lack of speedy trial.
August 10, 1981 Trial

In the course of the hearings on the motions to dismiss for lack of a speedy trial it was disclosed that appellant had been incarcerated since the date of his arrest and that the State had opposed and the court had denied bail. At the hearing on April 27,1981, the State requested that the court rule on the admissibility of the hypnotically induced testimony in advance of trial. The record discloses that at the April hearing appellant moved to dismiss the indictment because he had not been tried within 180 days as required by Maryland Rule 746. Appellant did not move to dismiss upon any alleged violation of his constitutional right to a speedy trial. The trial court correctly denied appellant’s motion since we have held that the 180 day rule (Hicks rule) does not apply to retrials. See Donalds v. State, 49 Md. App. 106, 430 A.2d 113 (1981).

After the trial judge denied the motion to dismiss on this ground, a discussion ensued between the State and counsel for the appellant as to the advisability of the trial court ruling pretrial on the issue of the admissibility of the hypnotically induced testimony. The prosecutor indicated that he was prepared to go forward on that issue but the trial judge expressed a reluctance to proceed in the light of the recently decided case of Polk v. State, 48 Md. App. 382, 427 A.2d 1041 (1981). The judge suggested that he would postpone the case if requested by appellant’s counsel and urged counsel to consider making the request in order that he might make a proper defense for his client. After full discussion, appellant’s counsel requested the postponement. The total elapsed time from the date of the original mistrial of January 21,1981, to the date of trial August 10, 1981 was less than seven months. In the light of the factual situation in this case and the numerous complex pretrial issues required to be heard and considered, we do not find appellant’s right to a speedy trial having been violated under Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

4.

Appellant next contends that the trial court erred in allowing the State to admit into evidence the hypnotically induced testimony of one Alfred Lee Davis, one of the State’s witnesses. Davis’ memory had been hypnotically refreshed by Dr. Edmund T. Delaney, an expert in hypnotherapy, during the interim between the first and second trial of appellant. The hypnosis session was conducted after this Court filed its opinion in the case of Polk v. State, supra.

Appellant, in a pretrial motion to suppress, contended that hypnotically induced or refreshed memory is not regarded as reliable within the relevant scientific community and that the trial court should have held Davis to be incompetent to testify.

The admissibility of hypnotically induced testimony and the use of this technique in memory assistance or retrieval has had a somewhat tortured history.

In Harding v. State, 5 Md. App. 230, 246 A.2d 302 (1968), cert. denied, 395 U.S. 949, 89 S.Ct. 2030, 23 L.Ed.2d 468 (1969), we held that:

[O]n the facts of this case the testimony of Mildred Coley [the victim] was sufficient to support a jury’s verdict that Harding [the accused] was guilty of the crime of attempted rape. In so holding we go no further than is required by those facts. The following evidence was adduced:
(1) the hypnosis procedure was fully exposed in the evidence; (2) the man who induced the hypnosis was a professional psychologist and gave his opinion that there was no reason to doubt the truth of the witness’ statement; (3) there was sufficient corroboration of the witness’ testimony: (a) male sperm was found in the victim’s vagina, (b) the accused was one of two males shown to have known where the victim could have been found when the crime was committed, (c) the accused was seen in a station wagon immediately prior to the time the crime was committed. In addition, a precautionary instruction was given. [5 Md. App. at 246-47].

In State v. Temoney, 45 Md. App. 569, 576, 414 A.2d 240 (1980), vacated on other grounds, 290 Md. 251, 429 A.2d 1018 (1981), we relied on Harding, supra, and again held that hypnotically induced testimony was admissible. In Harding, we did not reach the issue of different scientific viewpoints or of general scientific acceptance of the use of hypnosis.

During the post Harding interim to the present, a substantial controversy arose in the scientific community as to the scientific justification for the admissibility of hypnotically induced testimony. A number of jurisdictions followed Harding, however, in each of these cases the courts held that the post hypnotic recall was admissible with all questions going to the weight of the testimony. See, e.g., Clark v. State, 379 So.2d 372 (Fla. Ct. App. 1979); State v. McQueen, 295 N.C. 96, 244 S.E.2d 414 (1978); State v. Jorgensen, 8 Ore. App. 1, 492 P.2d 312 (1971).

In none of the cases above cited was the issue of general scientific acceptance of the hypnosis procedure addressed. As we held in Polk v. State, supra, the test for admission of evidence obtained from the use of a scientific principle, theory or discovery is derived from an early case which involved the question of the admissibility of evidence derived from polygraph tests. See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Although the Frye test had been applied to a variety of situations in a number of jurisdictions, it was not adopted in Maryland until the decision in Reed v. State, 283 Md. 374, 391 A.2d 364 (1978), where Judge Eldridge, speaking for the Court of Appeals, acknowledged that "LT]he test which has gained general acceptance throughout the United States for establishing the reliability of such scientific methods was first articulated in Frye v. United States, [supra].” 283 Md. at 381. Judge Eldridge then quoted from the Frye opinion as follows:

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 deduced 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.) [Id. at 381].

Judge Eldridge further explained as follows:

That is to say, before 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. [Id. at 381].

Reed involved the admissibility of testimony concerning the use of voice prints. The Court of Appeals opined that there were compelling reasons to justify adherence to the Frye principle, when it stated:

Fairness to a litigant would seem to require that before the results of a scientific process can be used against him, he is entitled to a scientific judgment on the reliability of that process [Footnote omitted]. As stated by Judge McGowan, speaking for the court in United States v. Addison, 498 F.2d 741, 743-744 (D.C. Cir. 1974):
"[T]he Frye standard retards somewhat the admission of proof based on new methods of scientific investigation by requiring that they attain sufficient currency and status to gain the general acceptance of the relevant scientific community. This is not to say, however, that the Frye standard exacts an unwarranted cost. The requirement of general acceptance in the scientific community assures that those most qualified to assess the general validity of a scientific method will have the determinative voice.”

The most recent decisions by other jurisdictions have consistently applied the general acceptance rule of Frye. See Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d 170 (1981); State v. Conley, 6 Kan. App.2d 280, 627 P.2d 1174 (1981); State v. LeMountain, 125 Ariz. 547, 611 P.2d 551 (1980); People v. Tait, 99 Mich. App. 19, 297 N.W.2d 853 (1980); State v. Mack, 292 N.W.2d 764 (Minn. 1980); Greenñeld v. Commonwealth, 214 Va. 710, 204 S.E.2d 414 (1974). Contra, State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1980). See also Commonwealth v. Juvenile, 381 Mass. 727, 412 N.E.2d 339 (1980); People v. Lucas, 107 Misc.2d 231, 435 N.Y.S.2d 461 (1980).

The Supreme Court of Minnesota declared in Mack, supra:

Under the Frye rule, the results of mechanical or scientific testing are not admissible unless the testing has developed or improved to the point where experts in the field widely share the view that the results are scientifically reliable as accurate. Although hypnotically-adduced "memory” is not strictly analogous to the results of mechanical testing, we are persuaded that the Frye rule is equally applicable in this context, where the best expert testimony indicates that no expert can determine whether memory retrieved by hypnosis, or any part of that memory, is truth, falsehood, or confabulation — a filling of gaps with fantasy. Such results are not scientifically reliable as accurate.
tfc ijí ífí sfc
The crux of the problem is that hypnosis can create a memory of perceptions which neither were nor could have been made, and, therefore, can bring forth a "memory” from someone who cannot establish that she perceived the events she asserts to remember. [Footnote omitted]. Neither the person hypnotized nor the expert observer can distinguish between confabulation and accurate recall in any particular instance. [292 N.W.2d at 768-769],

Appellant contends that hypnosis is not analogous to other methods of refreshing a witness’ recollection. A hypnotic subject, he charges, has a reduced perception of reality, an alteration in consciousness and a heightened sense of concentration and suggestibility. See Spector and Foster, supra, at 580. The subject is not only more easily influenced but is also more highly motivated to please others, most especially the hypnotist and those who are seen as associated with him. Levitt, supra, at 56. In Commonwealth v. Nazarovitch, supra, the problem of hypnotic suggestibility was pinpointed where it is stated:

The fact that the subject is eager to please the hypnotist does not imply that the subject would knowingly fabricate facts. However, in most cases involving forensic hypnosis, the subject is aware that the reason for the hypnotic session is an inability on his part to remember facts. A subject’s awareness of the purpose of the hypnotic session, coupled with the hypersuggestibility which the subject experiences, amounts to a situation fraught with unreliability. Even when the hypnotist consciously attempts to avoid emitting signals, the problem may not be avoided. The hypnotic individual need not receive direct suggestions in order to try to please the hypnotist. [436 A.2d at 174].

The "memory” produced under hypnosis becomes hardened in the subject’s mind. A witness who was unclear about his "story” before the hypnotic session may become convinced of the absolute truth of the account he recited under hypnosis. See State v. Mack, supra. This conviction reduces the possibility of meaningful cross-examination of the witness.

Appellee agrees that the threshold question in this case is . whether a witness whose memory has been hypnotically refreshed is competent to testify, but contends that the testimony is admissible in a criminal trial if certain safeguards are employed. The State suggests that the purpose of hypnosis is to relax a person so that he can overcome the anxiety which is blocking memory recall. See State v. Hurd, supra. Assuming the safeguards recited in Hurd, supra, are met, counsel for the State argues that a memory refreshed by hypnosis is as reliable and is as subject to cross-examination as a memory refreshed by any other method.

Dr. Daniel Stern, one of the State’s experts on hypnotherapy, described hypnosis as a "heightened state of awareness coupled with a heightened state of relaxation and nothing more.” Dr. Stern testified that (assuming no suggestions were made) "there is no difference in the reliability or validity of memory that is recalled through hypnosis or any other kind of memory recall.”

The State relies heavily on State v. Hurd, supra, where it is held that hypnosis is not a test to determine truth but rather a tool to help a witness recall events in a criminal trial. Id., 432 A.2d at 92. Hurd set forth a detailed and intricate set of procedural guidelines in order to guarantee the fundamental fairness of the use of the hypnotic process. (See note 3, supra.) The State contends that these guidelines were scrupulously observed in the case at bar and that in the light of State v. Hurd, supra, and of Polk v. State, supra, the trial judge did not err in denying the appellant’s motion to suppress. A close examination of Polk, however, reveals that we reversed and remanded that case on the basis that the Frye test was applicable and that there must be a threshold determination as to whether hypnosis was generally acceptable in the relevant scientific community for the purpose of memory retrieval before the question of admissibility was ruled upon.

One of the most recent cases involving the admissibility of testimony retrieved by hypnosis is People v. Shirley, 181 Cal. Rptr. 243, 641 P.2d 775 (1982). The California Supreme Court, in an excellent exhaustive opinion written for the Court by Justice Mosk, concluded that the use of hypnosis to restore the memory of a potential witness was not generally accepted as reliable by the relevant scientific community. 641 P.2d at 804. The Court held that since the Frye test of admissibility had not been satisfied, the testimony of the witness who had undergone hypnosis for the purpose of restoring his memory, of the events in issue was not admissible as to all matters relating to those events from the time of the hypnotic session forward. 641 P.2d at 804.

The Supreme Court of Minnesota, in State v. Mack, supra, held that it made no difference whether the testimony offered was produced by the State or defense, where it stated:

We follow the best scientific authority, however, in rejecting as artificial and unprincipled any distinction between hypnotically-induced testimony offered by the defense to exculpate and that offered by the prosecution to make its case. Regardless of whether such evidence is offered by the defense or by the prosecution, a witness whose memory has been "revived” under hypnosis ordinarily must not be permitted to testify in a criminal proceeding to matters which he or she "remembered” under hypnosis. [292 N.W.2d at 771].

The Mack Court went on to add that it found no reason why hypnosis could not continue to be used as an investigative tool, i.e., to help a subject remember verifiable facts that could serve as "leads” for further investigation of the crime — such as license plate numbers — "as long as the material remembered during hypnosis is not subsequently used in court as part of an eyewitness’s testimony.” Id. at 768. The Court warned, however, that even when a witness is hypnotized for investigative purposes alone, the session must be conducted under safeguards adequate "to assure the utmost freedom from suggestion” in the event the witness is later called to testify to "recollections recorded before the hypnotic interview.” Ibid.

In People v. Shirley, supra, the California Supreme Court followed the reasoning of Minnesota in Mack and declined to foreclose the use of hypnosis by the police for purely investigative purposes. 641 P.2d at 805.

Collins v. Superior Court of State of Arizona, decided en banc on May 4, 1982, 31 Cr.L. 2156, is the most recently decided case involving testimony elicited under hypnosis. In Collins, the Arizona Supreme Court modified its earlier decision that a witness who was hypnotized was incompetent to testify as to any fact. See also State v. Mena, 128 Ariz. 226, 624 P.2d 1274 (1981).

The Collins Court determined that hypnosis is now generally accepted as a reliable investigative tool by the scientific community. The Court, recognizing the inherent risks in the use of hypnosis even for investigatory purpose, decided that the risks could be minimized by safeguards such as cross-examination of the previously hypnotized witness and a record, preferably videotaped, of the witness’s prehypnotic recollection. The Court, in explicating its reasons for its new position, stated:

When used for prompting recall in order to provide valuable leads for investigation, hypnosis has less serious risks than the problem the technique presents when courtroom testimony is involved. Unlike a jury, an investigator need not make subjective evaluations of the truth or falsity of the hypnotic recall. He need only obtain leads for the purpose of subsequent investigation and verification.
[Ajpplying the Frye test of general acceptance and weighing the benefit against the risk, we modify our previous decision and hold that a witness will not be rendered incompetent merely because he or she was hypnotized during the investigatory phase of the case. That witness will be permitted to testify with regard to those matters which he or she was able to recall and relate prior to hypnosis. Thus, for example, the rape victim would be free to testify to the occurrence of the crime, the lack of consent, the injury inflicted and the like, assuming that such matters were remembered and related to the authorities prior to use of hypnosis. [31 Cr.L. at 2156-2157].

After a complete and careful review of the record in this case, as well as the decisions of other jurisdictions and the scientific literature which has been called to our attention, we are convinced that applying the standards explicated in Frye for the use of hypnosis to restore or refresh the memory of a witness is not accepted as reliable by the relevant scientific community and that such testimony is therefore inadmissible. To the extent that previous cases in this jurisdiction have permitted the admissibility of hypnotically induced testimony, we hereby overrule those cases.

We note, however, as is evidenced by dicta in several of the cases which have so held that the practitioners of forensic science are continuing the ongoing controversy as to the appropriate utilization of this technique. The Court of Appeals stated in Reed v. State, supra, at 388:

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. If, on the other hand, a novel scientific process does achieve general acceptance in the scientific community, there will likely be as little dispute over its reliability as there is now concerning other areas of forensic science which have been deemed admissible under the Frye standard, such as blood tests, ballistics tests, etc.

It may well be that as hypnotherapeutical techniques are refined, such techniques may become acceptable in the relevant scientific community as several other techniques have achieved such recognition. Until this occurs, however, hypnosis may be used only for investigatory purposes and under the strict guidelines as set forth in State v. Hurd, supra. (See note 3.)

5.

Appellant, in his fifth assignment of error, complains that the arresting trooper testified before the jury on two occasions that he had received a report that the appellant had shot his wife. We agree that the trooper’s statements should not have been admitted. As we shall reverse on other grounds, the issue is moot and we consider it only for the purpose of guidance at retrial of the case.

6.

Finally, appellant contends that the trial court erred in failing to provide an opportunity for the accused to be present at a critical stage of the trial. As this issue is moot in the light of the retrial contemplated by our mandate in this case, we shall not discuss the issue in depth. Suffice it to say that our own independent consideration of the record convinces us that appellant knowingly waived his right to be present at the particular stage of the trial complained of. See Haley v. State, 40 Md. App. 349, 392 A.2d 551 (1978).

Judgments vacated; case remanded for a new trial.

Costs to be paid by Worcester County.

      . The trial judge, Edward O. Thomas, and counsel for the State and the appellant, are to be complimented for the thorough presentation of the scientific testimony offered in support of and in opposition to appellant’s motion to suppress. We particularly commend Judge Thomas for his exhaustive analysis of the cases from outside jurisdictions which he discussed in his memorandum opinion and his discussion of the law review and scientific journal articles offered as exhibits in this case.

      . See generally, Diamond, "Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness,” 68 Cal. L.R. 313 (1980); Dilloff, "The Admissibility of Hypnotically Influenced Testimony,” 4 Ohio N.U.L. Rev. 1 (1977); Levitt, "The Use of Hypnosis to 'Freshen’ the Memory of Witnesses or Victims,” Trial, April 1981; Spector and Foster, "Admissibility of Hypnotic Statements: Is the Law of Evidence Susceptible?” 38 Ohio St. L.J. 567 (1977); Annot.: Admissibility of Hypnotic Evidence at Criminal Trial, 92 A.L.R.3d 442 (1979); "Evidence-Admissibility of Present Recollection Restored by Hypnosis,” 15 Wake Forest L. Rev. 357 (1979); Note, "Probative Value of Testimony from the Hypnotically Refreshed Recollection,” 14 Akron L.R. 609 (1981); Note, "Safeguards Against Suggestiveness: A Means for Admissibility of Hypno-lnduced Testimony,” 38 Wash. & Lee L.R. 197 (1981).

      . The procedural safeguards as enunciated in Hurd are as follows:
      First, a psychiatrist or psychologist experienced in the use of hypnosis must conduct the session. This professional should also be able to qualify as an expert in order to aid the court in evaluating the procedures followed. Although we recognize that there are many other people trained to administer hypnosis and skilled in its use for investigative purposes, we believe that a professional must administer hypnosis if the testimony revealed is to be used in a criminal trial. In this way, the court will be able to obtain vital information concerning the pathological reason for memory loss and the hypnotizability of the witness. Furthermore, the expert will be able to conduct the interrogation in a manner most likely to yield accurate recall.
      Second, the professional conducting the hypnotic session should be independent of and not regularly employed by the prosecutor, investigator or defense. LFootnote omitted]. This condition will safeguard against any bias on the part of the hypnotist that might translate into leading questions, unintentional cues, or other suggestive conduct.
      Third, any information given to the hypnotist by law enforcement personnel or the defense prior to the hypnotic session must be recorded, either in writing or another suitable form. This requirement will help the court determine the extent of information the hypnotist could have communicated to the witness either directly or through suggestion.
      Fourth, before inducing hypnosis the hypnotist should obtain from the subject a detailed description of the facts as the subject remembers them. The hypnotist should carefully avoid influencing the description by asking structured questions or adding new details.
      Fifth, all contacts between the hypnotist and the subject must be recorded. This will establish a record of the preinduction interview, the hypnotic session, and the post-hypnotic period, enabling a court to determine what information or suggestions the witness may have received during the session and what recall was first elicited through hypnosis. The use of videotape, the only effective record of visual cues, is strongly encouraged but not mandatory.
      Sixth, only the hypnotist and the subject should be present during any phase of the hypnotic session, including the pre-hypnotic testing and the post-hypnotic interview. Although it may be easier for a person familiar with the investigation to conduct some of the questioning, the risk of undetectable, inadvertent suggestion is too great, as this case illustrates. Likewise, the mere presence of such a person may influence the response of the subject. [86 N.J. 545-546],

      . In State v. Hurd, supra, eminent experts from all parts of the country testified at the hearing, including one Dr. Martin T. Orne, a psychiatrist and acknowledged authority on the use of hypnotherapeutical procedures. The expert testimony is thoroughly summarized in the trial court’s opinion, found at 173 N.J.Super. 333, 340-356 (Law Div. 1980). The hypnotic procedure in State v. Hurd was conducted by Dr. Herbert Spiegel, also a psychiatrist and expert in hypnotherapy. Dr. Spiegel admitted that persons under hypnosis could innocently espouse a suggestion as an absolute truth.
      Dr. Orne’s testimony led the court to the following conclusions:
      Among the conclusions to be drawn from Dr. Orne’s testimony is that hypnosis, when properly conducted, may improve a subject’s ability to recall past events to some degree. However, regardless of the care exercised in conducting a hypnotic session, there is an inherent possibility in all hypnosis that the subject’s statements could constitute intentional lies, confabulations or fantasies. It is also Dr. Orne’s position that hypnotically-induced recollections cannot be accepted unless they can be verified by independent corroboration. 1173 N.J.Super. at 345-346].
      Dr. Orne, despite other theoretical differences, agreed that:
      Concerning the forensic use of hypnosis . . . the importance of independent verification of hypnotically-induced recollection, and the most we should legitimately expect from hypnotic interrogations is further data which may serve as leads for more conventional evidence gathering, fid. at 348].


source: Caselaw Access Project

author: Lowe, J.,

license: Public Domain

text:
    LAWTON T. SHARP FARM, INC. v. C. RAYMOND SOMERLOCK et al.
    [No. 1681,
    September Term, 1981.]

      Decided July 13, 1982.

    The cause was argued before Lowe, J., Raymond G. Thieme, Jr., Associate Judge of the Fifth Judicial Circuit, and Hillary D. Caplan, Associate Judge of the District Court of Maryland for District 1, specially assigned.

      James B. Dudley for appellant.

      No brief or appearance for appellees.
   Lowe, J.,

delivered the opinion of the Court.

In this appeal from an order of the Circuit Court for Howard County, the appellant, Lawton T. Sharp Farm, Inc., was the opponent of a petition to permit a private aircraft landing strip in a residential section of Howard County. Since new zoning regulations were adopted during a comprehensive rezoning in 1977, such use has been permitted in Howard County as a special exception in residential and other zones.

In 1978, the petitioners applied for a special exception to operate the private airstrip on their property. The Office of Planning and Zoning recommended approval, the Planning Board recommended denial, and thereafter public hearings were held by the Board of Appeals. Following substantial testimony both for and against the petition, the Board visited the site of the proposed airstrip for an aerial demonstration. Two weeks later the Board reconvened to hear testimony solely about the demonstration.

One witness, Nancy Adams, testified that she purchased a 107-acre farm directly across Sharp Road from the Sharp Farm, and partially moved there in December, 1978, unaware of the petition for an airstrip or that a demonstration was scheduled to be conducted. She purchased the farm to train thoroughbred racehorses, mainly for Maryland tracks. Adams testified that on the morning of the demonstration, she had 15 horses in the lower pasture when a plane flew in over her barn, looking as if it "was going to crash into the hill.” She said her horses are very high-strung animals and that they began going "crazy” in the field. She feared some might break through the fences, because they were running wildly through the fields trying to get away from the noise. She had 51 horses at that time, and some of them were with foal, including one which was insured for $100,000.00. Adams testified to having observed high-strung racehorses injure themselves when excited, and said she had never seen her horses as excited as they were when the airplanes flew over during the take-offs and landings for the aerial demonstration.

After a lengthy review of testimony in the case, the Board recited numerous findings of fact and conclusions of law in a written order dated April 3, 1979, denying the petition. The essence of its findings and conclusions was that an aircraft landing strip was not an "accepted residential use,” that it would interfere with the peaceful enjoyment of persons living in their homes, that it was not consistent with the purpose and intent of the Howard County Zoning Regulations, that it was not the most appropriate use of the land, and that it would not satisfy the reasonable needs of the community.

The petitioners appealed to the circuit court, which affirmed the Board on May 14,1981. On August 24, the court struck its order in response to petitioners’ motion to reconsider, and remanded the case to afford petitioners the right to rebut the testimony of Nancy Adams. Appellant (participating as an appellee below, along with the Howard County Board) then moved for and obtained a reconsideration of the reconsideration, which the court denied on December 11, 1981. In denying the motion, the court relied upon Schultz v. Pritts, 291 Md. 1, which had been decided on July 16, 1981.

Because petitioners had cross-examined Nancy Adams and had the opportunity to rebut but did not move to do so, Judge Fischer decided, based upon Schultz, that his original reasons for remanding were improper. Although he found that "due process” had not been violated under the Schultz rationale, he elected to remand for another reason which was also derived from Schultz.

The judge pointed out that the Court of Appeals had declared in that case a new standard of review of applications for special exceptions, which the Howard County Board of Appeals had not considered. The judge noted that although the Board had generally decided that an airstrip was not an acceptable residential use, that determination was a legislative one which the County decided when it adopted § 122 F 1 of its zoning regulations, providing for private aircraft landing and storage areas in residential zones. See Schultz, supra at 21. Quoting the opinion, he pointed out that the new test was whether the proposed use would

"have any adverse effects above and beyond those inherently associated with such a special exception use irrespective of its location within the zone.” Id, at 22-23.

It was not permissible, he said, to deny the application for the reason that the landing strip was an annoyance or discomfort to its neighbors; only if the particular location of the use provided a particular adverse effect could the application be denied. In Judge Fischer’s words:

"What the Board of Appeals must consider is whether the use contemplated by the subject petition would have adverse effects other than those adverse effects that would be caused by the existence of an airport meeting the applicable standards in any other part of the R zone.”

Although we agree with his interpretation of Schultz, we note that the new standard also gives a special emphasis to the testimony of Nancy Adams, which classically exemplified the Schultz criterion of a particular adverse effect. While the petitioners’ opportunity to cross-examine her and rebut her testimony may have met the due process standard under the Schultz test, their decision not to rebut indicates that they did not comprehend the crucial significance of her testimony. Although we hold that the court did not abuse its discretion by granting a remand on reconsideration, Judge Fischer should clearly advise the Board to reopen its hearing and permit additional, testimony from either side regarding the Schultz standard of review.

Appellant’s contention that a remand is unwarranted because Schultz did not represent a change in the law is absurd. The case is a landmark interpretation which, if not new, was the first light shed upon an obscure nuance. This court labored under a misapprehension in Gowl v. Atlantic Richfield Co., 27 Md. App. 410 (1975), and it is apparent that the Board acted under the same erroneous standard, whether or not it cited Gowl. From its findings and conclusions, it is clear that the Board did not apply the Schultz test, and justice demands that it have the opportunity to apply the correct law to the facts it has heard, or may choose to hear, in that regard.

At oral argument, appellant also argued that Md. Ann. Code (1981 Repl. Vol.) Art. 25A (5) provides that a circuit court has only the

"power to affirm the decision of the board, or if such decision is not in accordance with law, to modify or reverse such decision, with or without remanding the case for rehearing as justice may require.”

From this provision appellant argues that Judge Fischer exceeded his authority by remanding without modifying or reversing. Even if we give credence to that hairsplitting argument, which was not set forth in appellant’s brief, we find that the judge’s authority is implicit, if not semantically explicit in the statute. In Teays v. Supreme Concrete Block, 51 Md. App. 166 (1982), we applied the time-honored principle that a litigant is entitled to the application of a change in law which has come about while he is enjoying his appellate privileges. When that change involves a function of the first level factfinder, the appellate court is not only empowered to remand for such factual findings and further consideration as are necessary, it is required to remand. Only by doing so can an appellant obtain the right to rely on the new law. Teays, supra; see also Yorkdale v. Powell, 237 Md. 121, 124 (1964).

Finally, we note that appellant asks us whether

"[t]he petitioners failed to meet their statutory burden of proving the availability of the minimum 25 acres for the use and to designate the areas of use on a plan;”

and whether

"[t]he circuit court erred in finding and stating that the Board of Appeals had found compliance with all of the requirements and standards when in fact it had not.”

At the root of both of these questions is whether there was sufficient evidence in the record to show compliance. This requires a careful review of the entire record. Appellant, however, has failed to provide us with an extract containing that record, Md. Rule 1028, and we, in turn, are unable and decline to respond to those issues. Sehwartzman v. Payne, 203 Md. 256, 264-265 (1953).

Judgment affírmed.

Costs to be paid by appellant.

      . If the record contains evidence of compliance with the minimum standards and requirements, it is irrelevant for our purposes whether the circuit court properly or improperly interpreted that holding as implicit in the Board’s opinion.


author: Thompson, J.,

text:
    ROGER E. HOLTMAN & ASSOCIATES, LTD. v. STATE OF MARYLAND, DEPARTMENT OF GENERAL SERVICES
    [No. 1685,
    September Term, 1981.]

      Decided July 14, 1982.

    The cause was argued before Gilbert, C. J., and Thompson, J., and W. Albert Menchine, Associate Judge of the Court of Special Appeals (retired), specially assigned.

      H. Patrick Stringer, Jr., with whom was Edward L. Blanton, Jr., on the brief, for appellant.

      Paul S. Sugar, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, and Allan B. Blumberg on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Roger E. Holtman & Associates, Ltd., appellant, filed a petition for confirmation of an arbitration award in the Circuit Court for Baltimore County against the State of Maryland, Department of General Services (State), appellee. The State filed a motion raising preliminary objection on the ground of sovereign immunity. On December 2, 1981, the trial court, sitting in equity, granted appellee’s motion and dismissed appellant’s action with prejudice.

Appellant raises the following issues:'

I. Whether the State is cloaked with sovereign immunity in a suit to confirm an arbitration award predicated upon breach of a post-July 1, 1976 letter contract, where all services required under a pre-July 1,1976 contract with appellant’s predecessor had been completed.
II. Whether the State is cloaked with sovereign immunity in a suit to confirm an arbitration award based on breach of contract, where all of the damages claimed are predicated on a breach of an "extension” of a contract executed after July 1, 1976.

On May 26, 1971, Roger E. Holtman, in an individual capacity, entered into a written contract with the State of Maryland, Department of Public Improvements in which Holtman agreed to perform landscape architectural services for the State on the campus of Towson State College. The contract provided that Holtman was to "Develop Schematic Plans for Phase I of the Educational Street Concept” and for these services he would receive a fee not exceeding $5,000. By October 1971, Holtman had completed the services required and received full compensation for this work. On October 13, 1972, Holtman executed, by letter, a second agreement with the State described as an "Extension” of the 1971 contract and given the same job number, XT 6-7101. By October 1974, all of the work that Holtman could do for the agreed upon consideration had been accomplished.

On November 9, 1976, Roger E. Holtman, President, on behalf of Roger E. Holtman & Associates, Ltd., entered into a new contract with the State providing for a fee of $40,373 and entailing the following services:

"Preparation of detailed plans and specifications for revisions and completion of contract documents turn-arounds at four locations, retaining walls, pathways, plaza paving, amphitheatre, Cook Library forecourt, overall landscaping, site grading, area lighting, benches and street furniture, including bidding phase for work, and supervision of project work, shop drawing inspection and project follow-up required by consultants, and as-built topographic survey.”

According to the uncontested affidavit of the appellant, the 1976 services did not entail use of the 1971 or 1972 designs in that the 1976 services were based upon a land survey which was unavailable in prior years. This latter agreement was given a new "job number” and did not incorporate any of the terms or conditions of the previous contracts. The only evidence of an intent to view this contract as an extension of the prior agreement was the inclusion of a request by the state to consider it an "extension” of the 1972 contract. Appellant thereafter performed the services called for in the contract, later valued at $88,991.43 of which the State has paid $9,873. A dispute arose as to the non-payment of fees and both parties agreed to submit their claims to arbitration. The arbitrator awarded the appellant the sum of f64,587.50 which the State had declined to pay, claiming sovereign immunity.

The doctrine of sovereign immunity bars a litigant from asserting an otherwise meritorious cause of action against the State unless the legislature waives it either expressly or by necessary and compelling implication. Jackson v. Housing Opp. Comm’n., 289 Md. 118, 422 A.2d 376 (1980). By Chapter 450 of the Acts of 1976, the Maryland Legislature waived the defense of sovereign immunity in contract actions. Section 6 of Chapter 450 exempted from the waiver any action based on a contract entered into or executed prior to July 1,1976. The waiver is presently codified in Md. Code Ann. Art. 21, § 7-101 (1957), (1981 Repl. Vol.). In the present case, the State claims that the 1976 agreement was merely an extension of that entered into in 1971 and 1972 and thus is not subject to the legislative waiver of sovereign immunity.

The State argues that the instant case is controlled by John McShain, Inc. v. State, 287 Md. 297, 411 A.2d 1048 (1980). In that case, the John McShain Construction Company entered into a contract in May 1974 to erect a building for the University of Maryland. Beginning in May 1975 the contract was modified to a series of "change orders” each of which provided that "All work proposed herewith shall be done pursuant to the terms and conditions of the existing contract between [the parties] and, except as modified herein, the contract remains in full force and effect.” Id. at 299. Between July 1, 1976 and October 17, 1978, a total of 18 "change orders” were executed. Some time thereafter, the construction company brought suit seeking damages for breach of contract; however, none of the damage claims were based on the "change orders” effectuated after July 1, 1976. The corporation argued that each time the parties agreed to modify the original contract through a "change order” a new contract was formed. The trial court rejected this contention and thereafter granted the State’s motion raising preliminary objection on the ground of sovereign immunity. The Court of Appeals affirmed stating:

"Where, as here, the action is based on a contract which was executed prior to July 1, 1976, and none of the damages claimed are predicated on an alleged breach of a provision of the contract inserted by amendment after July 1, 1976, it is manifest that the defense of sovereign immunity may properly be asserted consistent with the dictates of § 10A.” Id. at 301.

We do not see the controlling effect of John McShain, Inc. Here, the November 1976 agreement did not involve a mere modification of, or extension of time to perform, the 1971 or 1972 contracts; these prior agreements had been completely performed and compensated in full by 1974. We also note: First, the 1971 contract entailed the development of "schematic plans for phase I of the 'concept’ stage of the project.” The 1972 contract provided, without further detail, "to proceed on the above-referenced project. . .” acknowledging and referring to the prior project number. The 1976 contract, however, provided a detailed description of the project which made no specific mention of incorporating the 1972 drawings or plans. Second, while the 1971 and 1972 agreements were both given the same job number, the 1976 agreement was referenced under a new job number. Third, the parties involved in the various projects differed; the prior contracts being entered into between the State and Roger E. Holtman, while the latter was between the State and Roger E. Holtman & Associates, Ltd. The State’s insertion of the word "extension” to the 1976 agreement reveals more of an attempt to retain the sovereign immunity defense than to extend the prior contracts in good faith. The mere use of the term "extension” does not change the essential nature of the 1976 agreement, that being a separate and distinct contract.

We do not condone the State’s attempt to hide behind the skirts of sovereign immunity to avoid what appears to be a lawfully incurred obligation. We, therefore, reverse the finding of the lower court and remand for a hearing as to the confirmation of the arbitration award.

Decree reversed.

Appellee to pay the costs.

      . Some time after the 1972 contract was entered into, Roger E. Holtman incorporated and became the entity of Roger E. Holtman & Associates, Ltd.


text:
    DOROTHY L. SOLE v. PERRY E. DARBY and JEAN M. HORSEMAN, Co-Personal Representatives of the Estate of Anna E. Horseman
    [No. 1686,
    September Term, 1981.]

      Decided July 14, 1982.

    The cause was argued before Moylan and Liss, JJ., and J. Frederick Sharer, Associate Judge of the Fourth Judicial Circuit, specially assigned.

      Stanley H. Miller, 'with whom were Harvey K. Maizels and Goldstein & Miller on the brief, for appellant.

      Charles E. Brooks for appellees.
   Liss, J.,

delivered the opinion of the Court.

On August 31, 1979, Perry E. Darby and Jean M. Horseman (a/k/a Jean M. Karp), the appellees herein, were appointed personal representatives of the estate of Anna E. Horseman, who died on August 16, 1979, leaving a purported last will and testament. The Maryland Code (1974) Estates and Trusts Article, § 7-103 (a) provides in pertinent part for publication of a notice of appointment as follows:

(a) Publication. — After the appointment of a personal representative, the register shall have a notice of the appointment published in a newspaper of general circulation in the county of appointment once a week in three successive weeks, announcing the appointment and address of the personal representative, and notifying creditors of the estate to present their claims. The personal representative shall file or have filed with the register a certification that a notice has been published.
Subsection (b) states the form of the notice is required to be substantially as follows:
TO ALL PERSONS INTERESTED IN THE ESTATE OF........
This is to give notice that the undersigned, ......whose address is..............was, on .....appointed personal representative of the estate of.......who died on.........(with) (without) a will.
All persons having any objection to the appointment (or to the probate of the will of the decedent) shall file the same with the register of Wills on or before six months from the date of the appointment.
All persons having claims against the decedent must present their claims to the undersigned, or file them with the Register of Wills on or before six months from the date of appointment.
Any claim not filed on or before that date, or any extension provided by law, is unenforceable thereafter.

Personal representative

The Register of Wills Office of Baltimore County in the normal course of its duties caused to be published in the Dundalk Eagle, a local newspaper, the notice of appointment which stated that ". . . All persons having any objections to such appointment (or to the probate of the Decedent’s Will) shall file the same with the Register of Wills of Baltimore County on or before March 3, 1980 (6 months from the date of such appointment) . . .” The appellant, Dorothy L. Sole, a resident of North Carolina, is the daughter of the deceased and the sister of Jean M. Karp. She was listed on the "list of all persons interested in the estate of Anna E. Horseman” and provided with a copy of the publication on September 14, 1979, in the normal course of business by the Register of Wills Office of Baltimore County. On March 3, 1980, appellant filed a caveat to the will in the Orphans’ Court of Baltimore County alleging fraud, undue influence and lack of testamentary capacity in the decedent. Appellees moved to dismiss the caveat on the ground that it had not been filed within six months from the date of the appointment of the personal representatives. The Orphans’ Court, by an order dated September 5,1980, dismissed the caveat on the ground that it had not been timely filed. It later developed that a copy of that order was not furnished to the appellant and the effective date of the order of dismissal was changed to December 18, 1980. Appellant filed an appeal to the Circuit Court for Baltimore County where the matter came on for hearing on October 13, 1981.

After hearing argument from counsel, the trial judge concluded that the six month filing period mandated by the Maryland Code (1974) Estates and Trusts Article, § 5-207 (a) had expired on February 29, 1980. The judge thereupon affirmed the order of the Orphans’ Court. It is from that judgment that this appeal was filed.

The issues to be determined by this appeal are as follows:

1. Is the statutory bar of six months established by Maryland Code (1974), Estates and Trusts Article, § 5-207 (a) mandatory?

2. Do the principles of waiver and estoppel toll or otherwise interrupt the statutory bar of the six month filing period where the caveatees caused their notice of appointment to contain an ambiguous filing deadline upon which the caveator relied to her detriment?

1. and 2.

Maryland Rule 8 (a) is the pertinent rule which sets out the manner of computation for determining any period of time prescribed by the Rules, an order of court, or any applicable statute. The formula for computation was discussed by the Court of Appeals in Yingling v. Smith, 259 Md. 260, 269 A.2d 612 (1970). Section 5-207 (a) of the Estates Article in pertinent part is as follows:

(a) Filing petition to caveat. — Regardless of whether a petition for probate has been filed, a verified petition to caveat a will may be filed at any time prior to the expiration of six months following the first appointment of a personal representative under a will, even if there be a subsequent judicial probate or appointment of a personal representative.

Applying Maryland Rule 8 (a) and the interpretation of the formula for computation set out in Yingling, supra, both the appellant and the appellees agree that the last date of the six month filing period would have expired on the 29th day of February 1980, and the caveat was not filed until March 3, 1980.

Appellant, however, contends that the trial judge erred when he held that the six month filing provision of § 5-207 (a) of the Estates Article was mandatory and that the provisions of the statute could not have been tolled or otherwise interrupted by waiver and estoppel. Appellant urges that the statutory bar against the filing of a caveat after the six month period is not necessarily immutable. She offers in support of this contention two cases which illustrate that contention — Bertonazzi v. Hillman, 241 Md. 361, 216 A.2d 723 (1966) and Chandlee v. Shockley, 219 Md. 493, 150 A.2d 438 (1959).

Chandlee v. Shockley, supra, involved a tort claim against the estate of a decedent that had not been filed within the six month period mandated by Maryland Code (1957) Article 93, § 112. The Court found that the administratrix, by promising to settle the case, had induced the claimant to delay the filing of the suit beyond the six month filing period. When suit was filed, the administratrix invoked the protection of the statutory bar.

Judge Hammond, speaking for a majority of the Court, discussed whether there could be waiver and estoppel as to a statute in which the time proviso was part of the right and not merely a limitation of the remedy.

The Court stated that "[i]n an ordinary statute of limitation, the remedy may be waived. On the other hand, most courts have held that if the statute creates a new cause of action with a time limit as a condition precedent, such limit cannot be extended by waiver or estoppel.” 219 Md. at 498. It is clear to us that in this case the statutory time limit is merely a limitation on the remedy.

To the same effect is the case of Bertonazzi v. Hillman, supra, a case in which a claimant filed suit within the six month period allowed by statute but chose the wrong forum. By the time the error was noted the six month statutory period had expired. The Court of Appeals, in discussing the effect of the expiration of the six month period, stated:

Statutes of limitations are designed primarily to assure fairness to defendants on the theory that claims, asserted after evidence is gone, memories have faded, and witnesses disappeared, are so stale as to be unjust. The six-month statute of limitations in suits against executors or administrators has the added purpose of requiring claimants seeking damages resulting from the negligence of a decedent to make claim by suit within six months so that the personal representative of the decedent can make the prompt settlement of the estate contemplated by the law without liability for claims not filed within the time and in the manner prescribed. Chandlee v. Shockley, 219 Md. 493, 502. [241 Md. at 367].

The Court thereupon held that the filing of the original suit in the improper jurisdiction tolled the six month period of limitations and that the subsequent filing in the proper jurisdiction within the six month period allowing for the '••tolled period was sufficient to comply with the statutory requirement.

It is correct that the Chandlee and Bertonazzi cases, supra, concerned themselves with a different section of the Code, specifically Maryland Code (1957) Article 93, § 112, the forerunner of Maryland Code (1974) Estates and Trusts Article § 8-103 (a), but we see no reason why the principles enunciated in those cases do not equally apply to § 5-207 (a) of the Estates Article, which is the section involved in the case at bar.

It is clear in this case that somebody "goofed.” It is equally clear that it was not the appellant. She received at her home in North Carolina by certified mail a photocopy of the notice of appointment which everyone, including the trial judge, agreed was a confusing and ambiguous notice. The notice was not in conformity with the form suggested by the Estates Article, § 7-103 (b), supra, which clearly states that "[a]ll persons having any objection to the appointment [of named personal representatives] (or to the probate of the will of the decedent) shall file the same with the Register of Wills on or before six months from the date of the appointment.” The actual notice received by the appellant notified her that she was required to file her objections with the Register of Wills by March 3, 1980, and in parentheses, within six months from the date of appointment, which date also appeared in the notice. While we agree with the trial judge that the six month period of limitation stated in § 5-207 (a) is mandatory under normal circumstances, we do not agree that in a case such as the one at bar, the rigid adherence to its terms is mandated.

We conclude that under the circumstances of this case the principles of waiver and estoppel do apply in that the personal representatives gave the caveator an ambiguous notice upon which she relied to her detriment.

Order reversed, costs to be paid byappellees.

      . It is clear to us that the confusion and ambiguity in this case are chargeable to the Register of Wills, who was acting on behalf of the personal representatives. We note that while the appellees seek to charge the appellant with notice, an apparent ambiguity existed on the face of the notice. One of the appellees, who is a member of the bar, failed to detect the defect and signed the notice without any objection. To require greater diligence from the appellant than from the Register of Wills or the personal representatives would, in our opinion, lead to an unduly harsh result.


author: Wilner, J.,

text:
    WILLIAM HENRY MEDLEY v. STATE OF MARYLAND
    [No. 1696,
    September Term, 1981.]

      Decided July 14, 1982.

      The cause was submitted on the briefs to Liss and Wilner, JJ., and Martin A. Wolff, Associate Judge of the Fifth Judicial Circuit, specially assigned.
    Submitted by David B. Allen for appellant.
    Submitted by Maureen O’Ferrall Gardner, Assistant Attorney General, Stephen H. Sachs, Attorney General, William A. Swisher, State’s Attorney for Baltimore City and Sandra Kemick, Assistant State’s Attorney for Baltimore City, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

In an indictment filed in the Criminal Court of Baltimore on November 12, 1980, appellant was charged with the first degree murder of one Paul Watkins, use of a handgun in the commission of a felony or crime of violence, and unlawfully wearing, carrying, and transporting a handgun in violation of Md. Code art. 27, § 36B (b). From his conviction on the last charge, appellant noted this appeal, asking:

1. "Did the trial court violate Maryland Rule 757d by failing to inform counsel of the substance of its instructions and of its action on the requests for instructions before jury arguments?”
2. "Did the trial court err in refusing to instruct the jury that the accused had a right to arm himself in reasonable anticipation of an attack?”
3. "Did the trial court err in instructing the jury that they were bound by its instructions on the law?”

Finding no reversible error, we shall affirm the judgment of the court below.

On August 26,1980, at approximately 7:00 a.m., appellant appeared at the apartment of his former girlfriend, Charisse Williams, for the purpose of discussing the storage of Williams’ furniture while she was on military duty. Upon learning from Ms. Williams that the decedent, Paul Watkins, was in another room, appellant left, going downstairs to the seventh floor apartment of another friend, Betty Mae Floyd. Appellant’s departure may have been prompted by the fact that Watkins, who was a heroin user, had earlier told Ms. Williams that he would kill appellant "if he ever saw him in his territory or if he ever said anything wrong to him.”

After appellant’s departure, Watkins made inquiry of Ms. Williams concerning the knock at the door. When Ms. Williams refused to answer, Watkins began to beat her, only to be interrupted a short time later when Betty Mae Floyd knocked at the door. After a brief conversation, Watkins slammed the door on Ms. Floyd, who then returned to her apartment, while Watkins returned to beating the unfortunate Ms. Williams. At some point, Watkins, apparently surmising that appellant had been at the door earlier, grabbed a kitchen knife and, with Ms. Williams in tow, proceeded to Ms. Floyd’s apartment, whereupon he proceeded to bang on the door and demand, in rather inelegant language, that appellant come out. After a short time, the door opened, and appellant, who was armed, stepped out in the hallway. As he did, Ms. Floyd took hold of Ms. Williams and dragged her into the apartment, in the course of which Ms. Williams saw Watkins go "for the knife,” which was tucked- into the back of his pants. Appellant then shot Watkins, who fled to a nearby stairwell, where he died.

At trial, after the presentation of evidence had been concluded, the court called for counsel to make closing argument. Without objection from either defense counsel or the State that the court had not yet announced "its proposed action on the requestfs] for instructions and the substance of the instructions which it propose[d] to give,” as required by Maryland Rule 757d, the Assistant State’s Attorney proceeded, submitting that appellant had "made no effort to retreat,” and that he could carry a handgun only if he had a valid permit to do so.

After the Assistant State’s Attorney had concluded her remarks, and again without bringing to the court’s attention its failure to comply with Maryland Rule 757d, defense counsel addressed the jury. Contrary to what the prosecution had just argued, he told the jury that appellant was unable to retreat and that his client was not guilty of wearing, carrying, or transporting a handgun illegally because he had "the right to arm himself in reasonable anticipation of an attack.”

The next morning, the court, still unaware of its oversight, proceeded to instruct the jury, telling it, inter alia, that "what I tell you about the law is binding on you.” No instruction concerning whether appellant had a right to arm himself in reasonable anticipation of attack was given, although such an instruction had been requested by appellant.

At the conclusion of the court’s charge, defense counsel complained, among other things, of (1) the court’s failure to grant his client’s requested instruction "that a person who is not seeking a fight, but is reasonably apprehensive he might be attacked has a right to arm himself in anticipation of such an attack”; and (2) the court’s general instruction that its instructions on the law were binding on the jury. Additionally, for the first time, and without seeking any specific relief, counsel objected to the court’s failure to comply with Rule 757d. The court made no response other than to submit the case to the jury.

I.

Appellant’s first assignment of error is that the court failed to abide by the provisions of Maryland Rule 757d, thus denying him the "opportunity to reflect on the court’s instructions in closing arguments.” This omission, he contends, worked to his prejudice in the following ways: (1) "[D]efense counsel’s argument that it was the jury’s function to interpret the law as to the facts of the case” "clashed” with the court’s charge that the jury was bound by its instructions on the law; (2) defense counsel’s argument that appellant had a right to arm himself in reasonable anticipation of an attack by Watkins "was not supported by an instruction of the court. . .”; and (3) counsel was unable to ameliorate the conflict by arguing to the jury that "it was their duty to resolve differences between the court and counsel as to the law of the case, and that counsel could argue conflicting interpretations of the law ... even if the court’s instructions were to the contrary.”

In response, the State concedes that the trial court failed to comply with Rule 757d, but argues that the issue was not preserved for appellate review because, as we have seen, "[ajppellant did not bring this omission to the court’s attention until after both closing arguments and the court’s instructions had been given.”

We agree with the State, and conclude that appellant has waived the issue by failing to make a timely objection.

The condition expressed in Rule 757d is a mandatory one. If the trial court opts to reserve its instructions until after closing arguments of counsel, as it has a right to do, it must, prior to their closing argument, "advise counsel of its proposed action on the request for instructions and the substance of the instructions which it proposes to give.” The obvious purpose of that requirement is to enable counsel to anticipate the court’s instructions, and to tailor their arguments accordingly. Given that entirely sensible purpose, it is easy to see how the court’s failure to comply with the requirement could be of considerable prejudice to either or both sides in the case; and, if the prejudice went to the accused, the error would ordinarily require a reversal of any adverse judgment entered against him.

There is, however, the equally compelling, and even more pervasive mandate of Maryland Rule 1085 — that "[t]his Court will not ordinarily decide any point or question which does not plainly appear by the record to have been tried and decided by the lower court; ....”

Maryland Rule 1085 and its counterpart applicable to the Court of Appeals (Maryland Rule 885) express a limitation on appellate review that is of long standing in Maryland. As early as 1826, the General Assembly directed that "the court of appeals shall not reverse or affirm any ... judgment on any point or question which shall not appear to have been presented to the county court, and upon which that court may have rendered judgment.” Acts of 1825, ch. 117. By 1896, it was clear that that limitation was applicable to criminal as well as civil judgments (see Mitchell v. State, 82 Md. 527 (1896); Hamilton v. State, 127 Md. 312 (1916)). The Court of Appeals gave its own imprimatur to the requirement by including it as part of its original "Rules and Regulations Respecting Appeals” (see Rule 9, Md. Code (1951), Appendix B, p. 4823) and by continuing it throughout all the subsequent revisions to the Rules. See Gordon v. State National Bank, 249 Md. 378, 383 (1968). As explained in Basoff v. State, 208 Md. 643, 650 (1956):

"This rule [then Rule 9] applies to both civil and criminal cases. When a party has the option either to object or not to object, his failure to exercise the option while it is still within the power of the trial court to correct the error is regarded as a waiver of it estopping him from obtaining a review of the point or question on appeal. The Court of Appeals adopted the rule to ensure fairness for all parties to cases and to promote the orderly administration of the law.” (Emphasis supplied.)

See also Clayman v. Prince George’s County, 266 Md. 409, 416 (1972), where the Court noted, with respect to Rule 885, that its "principal purposes” were

"(a) to require counsel to bring the position of their client to the attention of the lower court at the trial so that the trial court can pass upon, and possibly correct any errors in the proceedings, Lane v. State, 226 Md. 81, 172 A.2d 400 (1961) and (b) to prevent the trial of cases in a piecemeal fashion, thus accelerating the termination of litigation,. ..

It is a matter of basic fairness to the trial court and to opposing counsel, as well as being fundamental to the proper administration of justice; and one need only look at the extensive annotations to Maryland Rules 885 and 1085 to see that it is rigorously enforced. Even errors oí Constitutional dimension may be waived by failure to interpose a timely objection at trial (see, for example, Smith v. State, 16 Md.App. 317 (1972), cert. den. 267 Md. 744 (1973); Hewitt v. State, 242 Md. 111 (1966)), and so may alleged violations of sub-constitutional procedural rules. See Logan v. State, 289 Md. 460, 487 (1981).

The proper time for objecting to the court’s noncompliance with Maryland Rule 757d was when that noncompliance became manifest — prior to the State’s initial closing argument or, at the very latest, prior to appellant’s closing argument. That is the point at which the omission and any prejudice arising from it became obvious; and that is also the point at which the court could have easily brought itself into compliance and avoided all possible prejudice to appellant. Waiting until after the instructions had been given to bring the matter to the court’s attention runs exactly counter to the expressed purpose of Maryland Rule 1085 and, whether or not intended in this case, smacks of a deliberate entrapment of the trial court. As we said in connection with another section of Maryland Rule 757 (§f), "[i]t is not the purpose and design of the rule to provide an avenue for a party to lay away ammunition in the arsenal of appeal,” but rather "to correct errors while the opportunity to correct them still exists.” Vernon v. State, 12 Md.App. 157, 163 (1971).

II.

Appellant’s second contention is that despite the provisions of Md. Code art. 27, § 36B (b), Gunther v. State, 228 Md. 404 (1962), recognized a residual common law right "to arm ... in reasonable anticipation of attack,” and that, as such, the court erred in denying his request for an instruction to that effect. In the precise context in which the case reaches us, we disagree, finding Gunther to be inapposite.

In Gunther v. State, supra, the defendant was charged with the murder of his brother-in-law. In the face of evidence that he had gone to the decedent’s home armed with a rifle, the defendant sought to prove that he had acted in self-defense, the decedent having the characteristics of a violent and dangerous person. At the conclusion of the case, and evidently in an effort to minimize the negative inferences that could be drawn from the fact that he had armed himself prior to the confrontation, the defendant requested that the court instruct the jury that he had a right to arm himself in anticipation of an assault. The court refused; and upon appeal from the defendant’s subsequent conviction, the Court of Appeals reversed, holding:

"[I]f [the jury] believed that the defendant was not seeking a fight with his brother-in-law, but on the contrary was apprehensive that he might be attacked by him, then the defendant, under such circumstances, would have a right to arm himself in anticipation of the assault. See Perkins On Criminal Law, at p. 48, where the author, in citing State v. Bristol, 84 P.2d 757 (Wyo. 1938), says that '[o]ne who is not in any sense seeking an encounter, but has reason to fear an unlawful attack upon his life, does not forfeit his privilege of self-defense merely by arming himself in advance.’ See also Gourko v. United States, 153 U.S. 183 (1894); Thompson v. United States, 155 U.S. 271 (1894); Hochheimer, Crimes and Criminal Procedure (2nd ed.), § 344; Wharton, The Law of Homicide (3rd ed.), § 324; 30 Corpus Juris, Homicide, §§ 222 and 223; and the cases cited in 40 C.J.S., Homicide, § 120, fn. 87.” Id. at 409 (Emphasis supplied.)

It is important, at the outset, to place the issue presented here in its proper context. At the time the instruction was requested, appellant was charged with a good bit more than illegally carrying a handgun. He was charged also with first degree murder, which he defended on the ground of self-defense. If nothing else, Gunther makes clear that, on the issue of self-defense, appellant was entitled to the requested instruction; and, had appellant been convicted of murder, we would have been obliged to reverse.

The fact is, however, that appellant was acquitted of murder (and of using a handgun in the commission of a felony). The issue before us, therefore, is only whether appellant was entitled to the instruction on the "illegal carrying” charge; is a reasonable anticipation of danger a proper defense to a charge of illegally carrying a handgun without a permit? Within that framework, based upon the facts of Gunther, the issue actually presented in the case, and a careful reading of the authorities cited by the Court, it is clear that the case does not stand for or even support the proposition advanced by appellant.

In the first place, Gunther, and other cases expressing similar holdings (see, for example, Bennett v. State, 230 Md. 562 (1963)), have to be viewed in the light of the statutory law then in effect. They were decided before enactment of the 1972 handgun control law under which appellant was convicted. At the time, the relevant prohibition was art. 27, § 36 (a), which prohibited the carrying of concealed weapons, including handguns. Section 36 (b), however, expressly exempted from the prohibition of § 36 (a) the carrying and wearing of concealed weapons, including handguns, "as a reasonable precaution against apprehended danger.” The carrying of such weapons in that circumstance was not a matter of common law right; it simply was not prohibited by statute.

The 1972 Act (Acts of 1972, ch. 13), under which appellant was convicted, removed handguns from the ambit of both § 36 (a) and § 36 (b), and enacted a new and more pervasive set of restrictions with respect to that one type of weapon. In § 36B (b) of art. 27, the Legislature flatly prohibited the wearing, carrying, or transporting of a handgun, whether concealed or open, unless otherwise permitted by § 36B (c). Section 36B (c) does not carry over, however, the exemption formerly contained in § 36 (b); and thus no longer is the law even neutral on the subject. If a person can convince the Superintendent of the Maryland State Police that he needs to carry a handgun as "a reasonable precaution against apprehended danger,” he may, if he satisfies the other criteria of § 36E of art. 27, be entitled to a permit to carry such a weapon; but absent such a permit (or the applicability of some other provision of § 36B (c)), he is not entitled to carry the gun.

Given that statutory background, Gunther must be read as recognizing no more than the principle expressed in the authorities cited in it — that one does not necessarily forfeit his privilege of self-defense because he has previously armed himself in anticipation of an attack. It does not support the existence of any such right to arm, either as a general affirmative right or as a defense to the violation of a statutory prohibition against possessing or carrying weapons in pub-lie. We are referred to no other authority in support of such a right, and have ourselves uncovered none.

Indeed, what authority there is on the subject seems to establish the contrary principle — that, at common law, it was unlawful for a person to go about armed, even as a protective measure in anticipation of attack. Hawkins (1 Hawkins, Pleas of the Crown, 488 (8th Ed., 1824)) notes that it "is said to have been always an offense at common law” for a person to arm himself "with dangerous and unusual weapons, in such a manner as will naturally cause a terror to the people. . . .” As early as 1328, Parliament decreed in the Statute of Northhampton (2 Edw. III, c. 3) that no person except the King’s servants and ministers would be permitted "to go nor ride armed by night nor by day, in fairs, markets, nor in the presence of the justices or other ministers, nor in no part elsewhere, upon pain to forfeit their armour to the king, and their bodies to prison, at the King’s pleasure.”

In one of the earliest cases arising under that statute, Sir Thomas Figett was arrested because he "went armed under his garments, as well in the palace, as before the justice of the king’s bench.” 3 Coke, Institutes 161. In defense, Sir Thomas pleaded that "there had been debate between him and Sir John Trevet knight. . ., who menaced him, & c. and therefore for doubt of danger, and safeguard of his life, he went so armed.” Id. at 161-62. Notwithstanding this entreaty, Sir Thomas was ordered to forfeit his arms and suffer imprisonment "during the kings pleasure,” the penalties prescribed by the Statute.

Commenting upon this case, a report of which may be found in Norman French at 24 Edw. 3, fo. 33 (Le Second Part De Les Reports Des Cases en Ley, Que furent argues en le temps de le tres Haut & Puissant Prince, Roy Edward le Tierce (1679)), Sir Edward Coke concluded that the Statute of Northhampton did not allow one to "assemble force, though he be extreamely threatened, to goe with him to church, or market, or any other place, . ...” 3 Coke, Institutes 161.

Hawkins agreed, writing "[t]hat a man cannot excuse the wearing such armour in public, by alleging that such a one threatened him, and he wears it for the safety of his person from his assault.” 1 Hawkins, supra, at 489. That fear of attack did not excuse violation of the common law-based Statute of Northhampton clearly suggests that there is no residual common law right to arm in anticipation of attack sufficient to excuse the violation of art. 27, § 36B, a provision which Chief Judge Gilbert noted, in Onderdonk v. Handgun Permit Review Board, 44 Md.App. 132, 135 (1979), "is but a modern improvement on the Statute of Northhampton.”

This seems to be the rule generally applied throughout the country. The view has been expressed that, in a sudden emergency, a person may avail himself of a weapon in the immediate vicinity but not otherwise being unlawfully carried, without offending a statutory prohibition against carrying such a weapon (see, for example, Williams v. State, 76 S.E. 785 (Ga. App., 1912); Caldwell v. State, 198 S.E. 793 (Ga. App., 1938)). However, absent some clear statutory exception such as was formerly embodied in art. 27, § 36 (b), most courts faced with the issue have expressly refused to recognize apprehension of impending danger as a permissible basis for one to carry a weapon in contravention of a general statutory prohibition. See People v. Townsel, 164 N.W.2d 776 (Mich. App., 1968); Lancaster v. State, 541 P.2d 1343 (Okl., Cr., 1975); Taylor v. State, 520 S.W.2d 370 (Tenn. Cr., 1974); Thompson v. State, 452 S.W.2d 467 (Tex. Cr., 1970); State v. Hart, 157 P.2d 72 (Ida., 1945).

We therefore conclude that the court did not err in declining to give the requested instruction on the issue of whether appellant unlawfully carried a handgun. As to that charge, it was not a correct expression of the law.

III.

Arguing that there was a sound basis for dispute "as to whether or not [his] right to arm himself in reasonable anticipation of an attack was a defense to the third count [unlawful wearing, carrying, or transporting of a handgun],” appellant’s final assignment of error is that the "court erred in instructing the jury that they were bound by his instructions on the law.” Again, we must disagree.

Recently, in Stevenson v. State, 289 Md. 167 (1980), the Court of Appeals had occasion to review the scope of Article 23 of the Declaration of Rights to the Maryland Constitution, that unique provision declaring that in "the trial of all criminal cases, the jury shall be Judges of law, as well as of fact.” Reaffirming (in part) past decisions, the Court stated:

"[I]t is incumbent upon a trial judge to carefully delineate for the jury the following dichotomy: (i) that the jury, under Article 23, is the final arbiter of disputes as to the substantive 'law of the crime,’ as well as the 'legal effect of the evidence,’ and that any comments by the judge concerning these matters are advisory only; and (ii) that, by virtue of this same constitutional provision, all other aspects of law (e.g., the burden of proof, the requirement of unanimity, the validity of a statute) are beyond the jury’s pale, and that the judge’s comments on these matters are binding upon that body.” Id. at 180.

As later explained in Montgomery v. State, 292 Md. 84, 89 (1981), Article 23 thus requires the court to instruct the jury that its (the court’s) instructions are advisory only in circumstances where there is a "dispute as to the proper interpretation of the law of the crime for which there is a sound basis.” (Emphasis in the original.)

For the reasons cited above, we believe that there was no sound basis for dispute as to the law of the crime in this instance; and, as a result, we believe that the court properly instructed the jury that they were bound by his legal instructions.

Judgment affirmed; appellant to pay the costs.

      Note: Certiorari denied, Court of Appeals of Maryland, October 26,1982.

      . Art. 27, § 36B (b) provides, in relevant part:
      "Any person who shall wear, carry, or transport any handgun, whether concealed or open, upon or about his person, and any person who shall wear, carry or knowingly transport any handgun, whether concealed or open, in any vehicle traveling upon the public roads, highways, waterways, or airways or upon roads of parking lots generally used by the public in this State shall be guilty of a misdemeanor;.. ..”

      . Maryland Rule 757d provides:
      "The court may give its instructions at any time after the close of the evidence. If, however, the court’s charge is not delivered until after the agrument of counsel to the jury , the court shall, in advance of such argument, advise counsel of its proposed action on the request for instructions and the substance of the instructions which it proposes to give.”

      . Even at that point, counsel could have asked for an opportunity to supplement his argument to the jury in light of the court’s instructions.

      . See 10 Halsbury’s Laws of England, 583 (3d ed. 1955); Rex v. Sir John Knight, Comb. 38 (K.B. 1686); 1 Hawkins, Pleas of the Crown, 488 (8th ed. 1824); Bishop, Statutory Crimes, 531 (3d ed. 1901).