author: Weant, J.,

text:
    STATE OF MARYLAND v. JAMES TONY TEMONEY
    [No. 995,
    September Term, 1979.]

      Decided May 12, 1980.

      The cause was argued before Morton, Melvin and Weant, JJ.

      Michael A. Anselmi, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Terrence J. McGann, Assistant State’s Attorney for Prince George’s County, on the brief, for appellant.
    Submitted on brief by Alan H. Murrell, Public Defender, and Thomas J. Saunders, Assistant Public Defender, for appellee.
   Weant, J.,

delivered the opinion of the Court.

On 14 June 1979, a jury in the Circuit Court for Prince George’s County found the appellee, James Tony Temoney, guilty of first degree rape, first degree sexual offense, robbery with a deadly weapon, and carrying a dangerous weapon openly with intent to injure. At the sentencing disposition on 30 July 1979, the appellee was committed to the jurisdiction of the Division of Correction for the balance of his natural life for the first degree rape and the first degree sexual offense, these life sentences to run consecutively; as to the robbery with a deadly weapon charge, Mr. Temoney received a twenty year sentence to run consecutively to the two life sentences; and finally, he was given a three year sentence for the weapon offense, which was to be served concurrently with the twenty year sentence for armed robbery. Thereafter, both the appellee and the State noted timely appeals to this Court.

In his appeal Mr. Temoney argues as follows:

I. The trial court erred in refusing to grant a continuance.
II. The trial court erred in denying [his] motion to dismiss for denial of a speedy trial and due process.
III. The court erred in allowing into evidence statements induced by hypnosis.
IV. The trial court erred in its instructions on hypnosis evidence.
V. The evidence was insufficient to convict [him] of the crimes charged.
VI. The photographic array used to identify [him] was prejudicial and suggestive.
VII. Trial counsel’s representation was ineffective and a denial of his sixth amendment rights.

The State not only rejects each of the above arguments as being unmeritorious, but further contends in its own appeal that "[t]he trial court improperly refused to sentence Temoney under the mandatory provisions of Maryland Code, Article 27, Section 643B (c).”

For purposes of clarity we will outline the facts pertinent to each argument as we address it. Moreover, we will speak to the appellee’s contentions first, since that response will dictate whether we need discuss the merits of the State’s argument.

— Mr. Temoney’s appeal —

I.

The appellee asserts three grounds for his claim that the trial court erred in refusing to grant his requested continuance, and that therefore a reversal of his convictions is required. First, he opines that it was error for the trial judge not to refer the matter of a continuance over to the administrative judge as required by Maryland Rule 746. But see Guarnera v. State, 20 Md. App. 562, 573 n. 1, 318 A.2d 243, 248 n. 1, cert. denied, 272 Md. 742 (1974). Because Mr. Temoney did not raise this particular objection at trial, he has failed to preserve it for appeal. Maryland Rule 1085.

Second, while conceding that according to Maryland Rule 746 "a continuance may only be granted upon a showing of extraordinary cause,” the appellee argues that he did in fact show extraordinary cause in that his counsel, in placing his reasons for the continuance on the record, stated that he was "just not properly prepared for this trial.” In responding to this argument, we find Walter v. State, 4 Md. App. 373, 243 A.2d 626 (1968) to be helpful; there we stated at pages 376-77, 243 A.2d at 627-28:

It is elementary that a continuance is within the sound discretion of the trial court, Bright v. State, 1 Md. App. 657, 232 A.2d 544. The appellants urge however the right to counsel is so fundamental that the action of the court deprived them of counsel. In Ungar v. Sarafite, 376 U.S. 575, 84 S. Ct. 841, 11 L. Ed. 2d 921, the Supreme Court of the United States considered the problem involving the denial of a continuance which allegedly deprived the accused of his right to engage counsel and at 376 U.S. 589, 84 S. Ct. 849 the Court said:
"The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. Avery v. Alabama, 308 U.S. 444, 84 L. Ed. 377, 60 S. Ct. 321. Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality. Chandler v. Fretag, 348 U.S. 3, 99 L. Ed. 4, 75 S. Ct. 1. There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. Nilva v. United States, 352 U.S. 385, 1 L. Ed. 2d 415, 77 S. Ct. 431; Torres v. United States, 270 F.2d 252 (C.A. 9th Cir.); cf. United States v. Arlen, 252 F.2d 491 (C.A. 2d Cir.).”

The circumstances in the case subjudice do not convince us that the trial court’s "denial of a continuance [was] so arbitrary as to violate due process.” Had Mr. Temoney chosen to dismiss his counsel for the alleged improper preparedness and then sought a continuance to seek new counsel, the trial court would not necessarily have been required to grant the requested delay. Guarnera, 20 Md. App. 562, 318 A.2d 243. Thus, we are disinclined to hold that the appellee showed extraordinary cause, and that therefore the trial court clearly abused its discretion in failing to grant the requested continuance.

Finally, because of the State’s alleged failure to provide discovery, the appellee argues that the only remedy available was the granting of a continuance. A review of the record indicates that, like this Court, the trial court was not persuaded that Mr. Temoney was prejudiced by having to go to trial as scheduled. See Powell v. State, 23 Md. App. 666, 329 A.2d 413 (1974). Again, the triaLcourt’s discretion was not clearly abused when the requested continuance was denied.

II.

The record before us shows that the victim first identified Mr. Temoney as her assailant on 28 July 1978; however, Mr. Temoney was not indicted until 10 January 1979, approximately five and one half months later. Moreover, the appellee was not brought to trial until 12 June 1979, i.e., one hundred and fifty-three days from the date of indictment. Believing that both of these intervals constituted improper delays, the appellee filed a motion to dismiss. While the trial court’s disposition of this motion is not as pellucid as we might desire, it appears that the court did in fact consider both of the asserted grounds for dismissal when it denied such. Therefore, both grounds have been preserved for appellate review; they are however devoid of merit.

As to pre-indictment delay, this Court had occasion to address this very issue in Dorsey v. State, 34 Md. App. 525, 368 A.2d 1036, cert. denied, 280 Md. 730 (1977). There we stated at pages 537-38, 368 A.2d at 1044:

Where a defendant can demonstrate actual prejudice ... in circumstances where the delay between the occurrence of the criminal offense and the date of arrest or indictment is unduly long and the actions of the State in delaying were unreasonable, deliberate and oppressive, the due process clause would demand a dismissal of the indictment. [Citations omitted].

Accordingly, we do not believe that the circumstances in the instant case "demand a dismissal of the indictment.” While it may be true that Mr. Temoney was unable to prepare his defense, he admits that this is due in part to his incarceration for another offense. Furthermore, there is no evidence that the State deliberately postponed bringing the indictment in question until it was assured that Mr. Temoney’s preparation of his defense would be hampered. In fact, the record indicates that although the victim identified the appellee as her attacker on 28 July 1978, it was not until late November that the police were able to link the appellee with the apartment complex where the rape occurred. Finally, the subsequent month and a half delay cannot be characterized as "unduly long,” "unreasonable, deliberate and oppressive.” A dismissal of the indictment for this particular delay is therefore not warranted.

Nor do we find the pretrial delay cause for dismissal of the indictment. The one hundred and fifty-three day interval exceeded the permissible delay period by a mere thirty-three days. See Wilson v. State, 44 Md. App. 1, 408 A.2d 102, 106 (1979). Moreover, when this thirty-three day period is analyzed in terms of Barker v. Wingo’s, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), four factor balancing test — the four factors being 1) length of delay, 2) reasons for delay, 3) assertion of the speedy trial right, and 4) prejudice to the defendant, id. at 530, 92 S. Ct. at 2192, 33 L. Ed. 2d at 114, we are unpersuaded that dismissal is mandated.

The appellee’s trial was originally scheduled for 23 April 1979. Had it been held on this date, the speedy trial issue would fall by the wayside. However, on 18 April 1979 the State was granted a continuance, over the appellee’s objection, in order that it might process, fingerprint, photograph, and obtain hair samples from the appellee. While the appellee objected to the continuance granted on April 18 no ground was stated; in fact, he waited until two days prior to the second trial date to assert his speedy trial right. Moreover, on the day of trial he sought a continuance on the ground that he was unprepared. When these facts are balanced, we are unable to say that Mr. Temoney’s indictment should have been dismissed.

III.

The prosecuting witness testified at trial that at the time she was attacked, on 16 May 1978, she observed her assailant for approximately five to eight minutes. It was not until sometime in mid-July, however, that she remembered that the man who raped her had "a white spot on the end of his penis.” This distinguishing trait was not brought to the attention of the police immediately because the prosecutrix was embarrassed. Then, on 28 July 1978, while she was undergoing hypnosis at the request of the police, the prosecuting witness told Dr. Chemol and Corporal Frank Gale about the white mark she had observed; neither knew about this mark beforehand.

On the same day that she relayed this new information to the police, the prosecuting witness also identified her assailant by way of photographic array. None of the pictures in the array displayed full anatomy or the genital area. A month later, the prosecutrix again identified her attacker by picking his picture out of an array.

At trial, and again here, the appellee objected to the court’s permitting the statements induced by hypnosis to be introduced as evidence. The trial judge did not err, however, in admitting this testimony. As we stated in Harding v. State, 5 Md. App. 230, 236, 246 A.2d 302, 306 (1968), cert. denied, 252 Md. 731, cert. denied, 395 U.S. 949, 89 S. Ct. 2030, 23 L. Ed. 2d 468 (1969):

The fact that she ... achieved her present knowledge after being hypnotized concerns the question of the weight of the evidence which the trier of facts, in this case the jury, must decide. [Citations omitted].

In passing, we note that Mr. Temoney’s reliance upon Reed v. State, 283 Md. 374, 391 A.2d 364 (1978) is somewhat misplaced. Reed stands for the proposition that

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 [ v. United States, 293 F. 1013 (D.C. Cir. 1923)] 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. Reed, 283 Md. at 381, 391 A.2d at 368. Accordingly, Mr. Temoney argues that "[h]ypnosis has not been established as an approved scientific method and the introduction into evidence of testimony concerning hypnosis and hypnotically induced testimony was in error.” We do not believe that Reed can be read as broadly as the appellee suggests. Assuming that the scientific validity of the hypnosis technique is in controversy, while such would preclude the admission of expert opinion deduced from that technique, id. (citing Frye, 293 F. at 1014), it would not also preclude, as Mr. Temoney argues, the admission of a description of the procedure used to hypnotize the victim or the hypnotically induced testimony itself. Thus, the appellee’s argument that Reed vitiates the viability of Harding fails.

IV.

In light of our response to argument III, we are disinclined to say that the trial judge’s instruction as to how the jury should view the evidence induced by hypnosis was error.

V.

The question whether or not the evidence adduced at trial was sufficient to convict Mr. Temoney of the crimes charged is answered by viewing said evidence in' the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 2789-90 (1979); Rusk v. State, 43 Md. App. 476, 477, 406 A.2d 624, 625 (1979), cert, granted, January 25, 1980. The record clearly establishes that some person did in fact force the prosecutrix, at knife point, to engage in oral sex as well as vaginal intercourse against her will. This person then took the prosecutrix’s stereo, a wristwatch, and about $30.00 in cash. This however does not necessarily establish the appellee’s criminal agency. It is the evidence as to this matter that Mr. Temoney claims is insufficient. He argues that becáuse identification of him as the prosecutrix’s assailant occurred only after she had been hypnotized, no evidence was produced to satisfy the test outlined in Jackson and Rusk.

Because of our disposition of argument II we disagree with his contention that the identification by the prosecuting witness was so inherently unreliable as to militate against the application of the principle, the validity of which he concedes, that "the credibility of witnesses is a determination for the trier of facts which will not be disturbed upon appellate review.” (Citation omitted). The evidence therefore was clearly sufficient to sustain the appellee’s conviction. See Metallo v. State, 10 Md. App. 76, 267 A.2d 804, cert. denied, 259 Md. 734 (1970).

VI.

In Smith and Samuels v. State, 6 Md. App. 59, 78, 250 A.2d 285, 297, cert. denied, 254 Md. 720 and 255 Md. 743 (1969), cert. denied, 397 U.S. 1057, 90 S. Ct. 1402, 25 L. Ed. 2d 674 (1970) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968)), we stated:

[EJach case involving photographic identification procedure must be considered on its own facts, and "that convictions based on eye-witness identification at trial following a pre-trial identification by photograph will be set aside on that ground only if the photographic identiñcation procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentifícation.” [Emphasis added].

Applying this standard to the case sub judice, we are unconvinced that the pretrial identification by photographic array was such that it would result in "a very substantial likelihood of irreparable misidentifícation.”

Our review of the record indicates that two days after she was raped, i.e., 18 May 1978, the prosecutrix looked at hundreds of photographs but was unable to identify the man who had attacked her. Thereafter, following the hypnotic session on July 28, the prosecutrix was shown approximately ten pictures of black males, all about the same age. From this array, the prosecuting witness selected a photograph which she identified as being that of the man who had raped her; it was a photograph of Mr. Temoney. One month later, the prosecutrix again selected Mr. Temoney’s photograph from a group of at least five pictures; once more she identified him as her assailant. There is no evidence whatsoever that the pictures themselves were suggestive, or that the procedure used was suggestive. Moreover, that the identification occurred after the prosecutrix was hypnotized does not necessitate its being suppressed, if indeed that is the remedy the appellant is seeking, since we have already ruled that the use of hypnosis is not grounds for holding evidence inadmissible.

VII.

As we noted in our discussion in section I, at the commencement of trial appellee’s counsel requested a continuance because he felt that he was not properly prepared to proceed. Counsel’s statements concerning the requested continuance did not necessarily preserve for appeal Mr. Temoney’s objection that he was denied effective counsel; nor do they amount to evidence of incompetency. In any event, because Mr. Temoney has adequate post conviction remedies at his disposal, we decline to discuss this matter further.

— State’s appeal —

Having thus resolved the appellee Temoney’s allegations, we turn now to the complaint of the State. It raises the question of whether the trial court improperly refused to sentence Mr. Temoney under the mandatory provisions of Maryland Code, article 27, section 643B. The appellant State of Maryland argues that it did.

Article 27, section 643B entitled "Mandatory sentences for crimes of violence” reads as follows:

(a) "Crime of violence”. — As used in this section, the term "crime of violence” means abduction; arson; kidnapping; manslaughter, except involuntary manslaughter; mayhem; murder; rape; robbery; sexual offense in the first degree; sexual offense in the second degree; use of a handgun in the commission of a felony or other crime of violence; an attempt to commit any of the aforesaid offenses; assault with intent to murder; and assault with intent to rape.
The term "correctional institution” includes Patuxent Institution and a local or regional jail or detention center.
(b) Mandatory life sentence. ~ Any person who has served three separate terms of confinement in a correctional institution as a result of three separate convictions of any crime of violence shall be sentenced, on being convicted a fourth time of a crime of violence, to life imprisonment without the possibility of parole. Regardless of any other law to the contrary, the provisions of this section are mandatory.
(c) Third conviction of crime of violence. — Any person who (1) has been convicted on two separate occasions of a crime of violence where the convictions do not arise from a single incident, and (2) has served at least one term of confinement in a correctional institution as a result of a conviction of a crime of violence, shall be sentenced, on being convicted a third time of a crime of violence, to imprisonment for the term allowed by law, but, in any event, not less than 25 years. Neither the sentence nor any part of it may be suspended, and the person shall not be eligible for parole except in accordance with the provisions of Article 31B, § 11.
(d) Compliance with Maryland Rules. — If the State intends to proceed against a person as a subsequent offender under this section, it shall comply with the procedures set forth in the Maryland Rules for the indictment and trial of a subsequent offender.

On 23 March 1979, the Assistant State’s Attorney filed in this case two notices of mandatory sentence, the one informing Mr. Temoney that the State would seek a mandatory life sentence without the possibility of parole pursuant to article 27, section 643B (b) and the other notifying Mr. Temoney that the State would seek a mandatory maximum sentence without the possibility of suspension or parole pursuant to article 27, section 643B (c). This action was taken in compliance with Maryland Rule 734c, which provides as follows:

If a mandatory sentence is prescribed by law because of a specified previous conviction, the State’s Attorney, at least 15 days prior to sentencing, shall serve upon the defendant or his counsel a notice of the alleged prior conviction which would require imposition of the mandatory sentence.

At the sentencing, which took place on Tuesday, 30 July 1979, the State’s Attorney called these motions to the court’s attention by stating in part that "I have filed papers under Article 27, Section 643B, (b) and (c). I believe that the defendant fits the criteria under both of these sections. I think most definitely he fits the criteria of 643B (c).” However, as the sentencing hearing proceeded, the State seems to have abandoned its request for sentencing under 643B (b) by stating: "I think quite possibly under 643B (b) the straight mandatory life for the fourth-time offense, I think that probably fails because the defendant didn’t serve a period of incarceration the very first time he committed robbery. He got probation.” The State then proceeded to say: "But I think you are on solid footing when you sentence under 643B (c).”

Following the imposition of the sentence by the court, the following colloquy took place between the court and the Assistant State’s Attorney:

MR. McGANN: For the record, so the record is clear, Your Honor is also sentencing under the provisions of Section 643B (c)?
THE COURT: No.
MR. McGANN: So the record is clear does Your Honor feel that it doesn’t apply in this particular case?
THE COURT: Without holding whether it applies or not, the Court feels that the sentence it has just imposed, regardless of the section you have just referred to, Article 27, Section 643B (c), that the matters of parole are left with the Department of Parole and Probation.
MR. McGANN: So it is perfectly clear, Your Honor is refusing to sentence under that provision in addition to your other sentence?
THE COURT: That is correct.

The State maintains that consideration of section 643B (c) is mandatory and we agree. The title given to section 643B of article 27 of the Annotated Code of Maryland reads: "Mandatory sentences for crimes of violence.” Black’s Law Dictionary 867 (5th ed. 1979) defines "mandatory” as follows: "Containing a command; preceptive; imperative; peremptory; obligatory.”

Carrying out the tenor of the title, subsection (c) covering the third conviction of a crime of violence provides, among other things, that a defendant meeting the criteria set forth therein "shall be sentenced” under the provisions of that section and further that "the person shall not be eligible for parole except in accordance with the provisions of [Maryland Code,] Article 31B, § 11.” (Emphasis added). It is obvious from this language that the Legislature intended a compelling and not a discretionary use of section 643B. In the case of Johnson v. State, 282 Md. 314, 384 A.2d 709 (1978), the Court of Appeals said at page 321, 384 A.2d at 713:

We have stated on numerous occasions that in the absence of a contrary contextual indication, the use of the word "shall” is presumed to have a mandatory meaning, Moss v. Director, 279 Md. 561, 564-65, 369 A.2d 1011 (1977), and thus denotes an imperative obligation inconsistent with the exercise of discretion. Bright v. Unsat. C. & J. Fund Bd., 275 Md. 165, 169, 338 A.2d 248 (1975).

We find no contextual indication in the statute in question that "shall” has any meaning other than a mandatory one.

In the case at hand, the court not only refused to consider the statute, i.e., by saying "without holding whether it applies or not,” it went on to nullify the obvious intent of the legislation, which is to prohibit parole. The trial court said in this regard "that the matters of parole are left with the Department of Parole and Probation.” It is clear that it is just this eventuality that the Legislature was attempting to obviate.

It is argued by Mr. Temoney that the trial judge was correct in refusing to sentence under the provisions of article 27, section 643B because "the State failed to prove the necessary facts required to show that Appellee met the statutory criteria for mandatory sentences.” However, as mentioned, the trial court admittedly did not consider whether this section applied or not. Therefore, since we opine that the consideration of section 643B (c) is mandatory, and since this Court is limited to appellate review and is not empowered to make original factual findings, Hartley v. State, 238 Md. 165, 208 A.2d 72 (1965), we shall remand the case to the trial court pursuant to Maryland Rule 1071 for the trial court’s reconsideration of the facts under the provisions of article 27, section 643B (c).

Conviction affirmed.

Sentence vacated and case remanded for resentencing.

Costs to be paid by appellee.

      . Maryland Rule 746 provides in pertinent part: “Upon motion of a party made in writing or in open court and for extraordinary cause shown, the county administrative judge or judge designated by him may grant a change of trial date.”

      . The reasons given in open court were in addition to those stated in a written motion. The court had already considered those set out in the motion and had denied the requested continuance.

      . The pre-indictment delay being a denial of his right to due process of the law and a speedy disposition of the charges against him. The pretrial delay being a denial of his right to a speedy trial.

      . Dr. Chemol is a member of the American Society of Clinical Hypnosis, as well as related organizations. Furthermore, at the time of trial Dr. Chemol was Chief of Psychology at the Community Mental Health Center, Fort Rucker, Alabama.

      . Corporal Gale is a member of the Prince George’s County Police Department, Sex Squad.

      . Dr. Chemol’s testimony indicated that there is such a controversy.

      . While Reed suggests that the appellee may arguably have reason to object to specific portions of Dr. Chemol’s testimony, i.e., those portions which can arguably be said to constitute expert opinion based upon the validity of hypnosis as a scientific technique, Mr. Temoney has neither set out this particular objection nor cited testimony to support such. We in turn will not seek to do this for him.

      . Article 31B pertains to Patuxent Institution and is not relevant to this matter at this time.


source: Caselaw Access Project

author: Wilner, J.,

license: Public Domain

text:
    GARY EDWARD DARBY v. STATE OF MARYLAND
    [No. 1181,
    September Term, 1979.]

      Decided May 12, 1980.

      The cause was submitted on briefs to Morton, Moore and Wilner, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Geraldine Kenney Sweeney, Assistant Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney General, William H. Kenety, Assistant Attorney General, Arthur Marshall, State’s Attorney for Prince George’s County, and Michael Gallavan, Assistant State’s Attorney for Prince George’s County, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

About 10:30 in the evening of June 27,1978, as they were returning home, Mr. and Mrs. Warren Weaver were met at the entrance to their apartment building by two young men who, at gunpoint, relieved them, respectively, of their wallet and purse. Appellant and a co-defendant were ultimately arrested and charged with a number of offenses arising from the incident. The cases against the two suspects were severed, and after a jury trial in the Circuit Court for Prince George’s County, appellant was convicted of two counts of armed robbery and sentenced to prison for ten years.

In this appeal, appellant asks the following questions:

"1. Did the judge err in denying Appellant’s motion to dismiss for lack of speedy trial?
"2. Did the trial judge err in denying Appellant’s motion to suppress his confession?
"3. Did the trial judge err in overruling defense objection to the jury instructions concerning the confession?”

(1) Speedy Trial

The chronology of relevant events is as follows:

(1) July 20,1978: appellant arrested. This starts the clock running.
(2) August 29, 1978: defense counsel enters his appearance.
(3) September 1, 1978: appellant petitions for "reverse waiver” to Juvenile Court (see Md. Ann. Code art. 27, § 594A).
(4) September 26, 1978: trial set for November 9, 1978.
(5) October 5, 1978: waiver investigation ordered, report to be submitted by November 23, 1978; trial date of November 9, 1978, obviously not possible.
(6) November 28,1978: waiver petition heard and denied; trial scheduled for December 11, 1978.
(7) December 11, 1978: prosecutor assigned to the case is ill; trial rescheduled for February 28, 1979.
(8) February 28, 1979: no courtroom available, trial rescheduled for April 10, 1979.
(9) March 1, 1979: motion to dismiss for lack of speedy trial filed by appellant.
(10) April 10-12, 1979: motion to dismiss for lack of speedy trial denied; trial conducted; ends in hung jury, mistrial declared.
(11) August 13-14, 1979: retrial, ends in convictions.

Appellant’s motion to dismiss dealt only with the delay between arrest and the first trial. He did not complain in the trial court and has not complained here about the additional interval between the two trials. Accordingly, we shall consider the speedy trial issue raised by him only as it relates to the eight-month, twenty-day period from July 20, 1978 to April 10, 1979.

Appellant attacks the court’s ruling on two grounds. He asserts, we think correctly, that the nearly nine-month interval suffices to trigger the balancing test or procedure mandated by Barker v. Wingo, 407 U.S. 514 (1972). See Epps v. State, 276 Md. 96 (1975). From this, he argues (1) that the trial court failed to consider the four balancing factors, but decided the motion solely upon a finding that appellant had not suffered actual prejudice, and (2) that if the balancing test were considered, it would necessitate a finding that his right to a speedy trial had indeed been violated. His complaint, then, is that the court erred both in its ultimate finding and in the process used to develop or support it. We disagree on both points.

With respect to the process, at the hearing conducted on the speedy trial motion, appellant’s chief complaint was that, by reason of the delay since February 28, 1979 (when trial was postponed because of the lack of a courtroom) an important defense witness — the co-defendant, Robert Johnson — had become unavailable. Most of the testimony and argument at that hearing concerned the importance of Mr. Johnson’s testimony, the efforts of the defense to secure Johnson’s appearance, the fact that he had been available on February 28, and his current unavailability due to residence in the District of Columbia. After a recess, the court was able to locate Mr. Johnson and secure his‘appearance as a defense witness. That element of prejudice was therefore satisfactorily resolved.

During the course of the hearing, there was some discussion about the earlier postponements and the reasons for them, and the court was aware that appellant had been incarcerated since his arrest. Counsel’s argument, however, throughout the proceeding, centered on the particular prejudice resulting from Johnson’s presumed unavailability. When Johnson appeared, the court denied the motion with this explanation:

"Motion to Dismiss for Lack of Speedy Trial is denied. The prejudice that the defendant was complaining of was the inability to have a particular witness here to testify in his behalf. That witness is now here. That is the only grounds I heard. I mean, at this time, the only allegation I heard, as far as prejudice to this defendant because of delay. That prejudice has now been eliminated. The motion is denied.” (Emphasis supplied.)

Counsel did not then question the court’s ruling or suggest the failure to consider the other elements of the balancing test.

We concur with appellant that where, as here, the delay is sufficient to trigger the Constitutional balancing test, all elements of it must be weighed and considered by the court. But that does not mean that the court must necessarily articulate its findings as to elements about which there appears to be no dispute. There was simply no argument here as to the length of the delay or when appellant asserted his right; and, to the extent there was any disagreement about the reasons for the delay, the court made its position clear when that subject was being discussed. In announcing its ruling, the court confined its remarks to the only element that was really contested, but we shall not presume from that a failure to consider all of the required elements.

Neither do we agree that the court erred in its ultimate conclusion. A delay of less than nine months, though sufficient to trigger the balancing test, is not a grossly inordinate one. Both by Rule and statute, a six-month period is generally regarded in this State as reasonable for ordinary trial preparation, especially so when complicated by the filing of a waiver petition necessitating a social service investigation.

The case would have been tried within the six-month period — indeed within five months — but for the illness of the prosecutor. The four-month delay occasioned by that and the unavailability of a courtroom on February 28, 1979, though chargeable to the State under the Barker-Epps formula, is not accorded the same weight or significance as a deliberate delay. There was, of course, no evidence of deliberateness here; for the most part, the State made reasonable efforts to proceed expeditiously after the first postponement.

In articulating the assignment of responsibility under Barker, we would characterize the five-month period from arrest to December 11, 1978, as essentially neutral, and the four-month period from then until trial as chargeable to the State but not heavily so. Appellant did not assert his right to a speedy trial until March 1, 1979 (and then only by motion to dismiss, not a demand for immediate trial), and trial was in fact held forty days later.

Our one possible disagreement with the trial court concerns the element of prejudice. Quite apart from the presumptive prejudice attendant to any delay of Constitutional dimension, appellant suffered actual prejudice from his incarceration for the nearly nine-month period. This was not mentioned by the court which, as noted, commented only upon the prejudice alleged by Johnson’s presumed unavailability. That does not mean, of course, that the court ignored the substantial prejudice emanating from appellant’s incarceration. On balance, given the length of delay, the reasons for it, the delay in asserting the right, and the prejudice, we do not believe there has been a Constitutional violation. The motion to dismiss was therefore properly overruled.

(2) Suppression of the Confession

Appellant moved, pretrial, to suppress any confession made by him on the ground that it was involuntary. The docket entries reveal that this motion was heard by the court during the course of appellant’s first trial — on April 11, 1979 — and was denied. The transcript of the first trial is not included in the record now before us, and we therefore do not know what evidence was offered in support of or in opposition to the confession at that time. We know only that the motion was denied, and infer from that that the confession was admitted into evidence.

The first trial, as noted, ended in a mistrial, and the suppression motion — still alive — was set for hearing on the first morning of the second trial. The issue was not addressed preliminarily, however, but arose during the testimony of Officer Larry Begett. Officer Begett, and his colleague Officer Robert Edgar, had initially responded to the call for assistance by the Weavers, had observed and stopped appellant and his co-defendant some 10 minutes later in the general vicinity of the robbery, and had released the pair (notwithstanding Mrs. Weaver’s positive identification of them) because of their uncertainty as to the reliability of the identification.

Begett’s next contact with appellant came on July 20, 1978 — some four weeks later — when he accompanied District of Columbia police officers to appellant’s home in the District in order to effect his arrest in connection with the Weaver robberies. Begett saw appellant again the following night — July 21 — at the Hyattsville Police Station. He said that he had advised appellant of his various "Miranda” rights and had obtained a written waiver of them. When the State offered the waiver form into evidence, an objection was made as to voluntariness. The jury was then excused and testimony on the admissibility of the waiver form and the confession was taken before the court. See Gill v. State, 265 Md. 350 (1972); Dempsey v. State, 277 Md. 134 (1976).

In this sub-proceeding, Begett stated that he read the form to appellant, recorded his answers, and had appellant initial those answers. He said that the answers recorded by him accurately reflected what appellant stated and that appellant signed the form at the bottom. Begett then began to take a written confession from appellant. Appellant answered all his questions and expressed no desire to stop the interrogation.

On cross-examination, Begett acknowledged that (1) appellant had steadfastly maintained his innocence up to that point, (2) although appellant had been arrested some 15 hours earlier, at 8:25 a.m. on the 20th, Begett had him brought to the station from the lockup at midnight on the 20th-21st for interrogation, (3) he had "no specific reason” for not waiting until the next day to conduct the questioning, (4) after arriving at the station, appellant —17 years old — was left handcuffed to a chair for nearly two hours while Begett was "doing paperwork and reviewing the case,” and (5) when Begett started reading him the rights at about 1:50 a.m., appellant said he was "glad it was over with” and started confessing.

Appellant then testified that he signed the confession because he was afraid of the police, making a passing reference to the tragic occurrence, widely reported in the county, in which another young black suspect had shot two officers during an interrogation surrounded by allegations of brutality. Appellant said, specifically, that Officer Edgar told him (1) that he "wasn’t going to leave the station” until he signed "those papers,” and (2) "if I didn’t sign it, he was going to smack my face up to the wall.” He and Edgar, a white officer, were alone at this point. When appellant began to cry, Edgar left the room and Begett, a black officer, returned. Appellant still refused to sign. Then, Edgar "came back and I signed.”

The State neither cross-examined appellant nor produced any rebuttal evidence. At that point, therefore, appellant’s specific charge that Edgar had threatened him with physical harm and continued detention at the police station remained unrebutted, indeed uncontradicted. Nonetheless, the court, "under all surrounding circumstances,” declared the confession to be "freely and voluntarily made,” and therefore overruled the objection to its admission.

The jury was then recalled and Begett essentially repeated his previous testimony. Although he said that appellant never asked to stop the interrogation and that the answers he recorded were those given by appellant, Begett did not, in his direct examination, rebut the charges made by appellant against Edgar. On cross-examination, however, defense counsel managed to provide the State some of its missing evidence with these two questions:

"Q And if Darby [appellant] were to testify that he was threatened by Officer Edgar, would he be lying?
"A Yes, he would.” (Tr. 65)
"Q And so when you picked him up at midnight and began interrogating him at 1:50 he was just voluntarily giving you this information?
"A That is correct.” (Tr. 67)

Appellant repeated his version, in somewhat more detail, to the jury. He again made clear that the alleged threats came only from Edgar, not from Begett, and that Begett was not in the room at the time. This time, however, the State produced both Begett and Edgar in rebuttal, and both denied that any threats were made.

The procedure for resolving a challenge to a confession based upon voluntariness was succinctly set forth in Gill v. State, supra, 265 Md. 350, 357-58:

"The question of the voluntary nature of a confession is initially decided by the trial judge and involves a mixed question of law and fact. If the judge receives it in evidence, its admission then becomes prima facie proof that the statement was freely and voluntarily given. Once received, the evidence pertaining to the admissibility of the confession, which was first heard by the judge, is then submitted to the jury for its ultimate consideration.... Despite the fact that the accused’s statement is received in evidence, if, from all the testimony in the case, the jury is not satisfied beyond a reasonable doubt that it was the free and voluntary expression of the suspect, then they must disregard it in determining his guilt or innocence.”

It is clear from this, and from a subsequent discussion of the procedure in Dempsey v. State, supra, 277 Md. 134, 143 et seq., that although the issue of voluntariness is submitted to both judge and jury, it is submitted to each for a different purpose. The judge determines voluntariness only for the purpose of deciding whether the confession is admissible as evidence — whether the jury can hear and consider it. The jury’s role is to determine what, if any, weight to give the confession. If, contrary to the judge, the jury concludes that the confession is involuntary, it nevertheless remains as evidence in the case — it is not withdrawn as an exhibit, the testimony regarding it is not expunged; the jury simply gives it no weight. In that sense, a confession is not unlike other evidence: the court determines whether it is admissible, the jury determines what weight to give it. The only real difference is the requirement that the jury disregard the confession if it finds the same to have been involuntarily given.

This distinction in function between judge and jury is particularly significant in this case.

In Streams v. State, 238 Md. 278 (1965), and again in Gill v. State, supra, 265 Md. 350, the Court of Appeals made clear that "when it is contended that someone employed coercive tactics to obtain inculpatory statements, the charge must be rebutted. ” (Emphasis supplied.) Gill, at 353. Otherwise, the State has failed to meet its burden of proving that the confession is voluntary.

The problem in this case is that, in the sub-proceeding before the court to determine admissibility of the confession, there was a total failure to rebut appellant’s testimony about Edgar’s threats, and thus the confession, under Streams and Gill, should never have been admitted into evidence. Before the jury, however, there was testimony to contradict appellant’s charge which, if credited, would permit the jury to have found that the confession was voluntary.

Because of the different roles played by the court and jury, we cannot overlook the error made in admitting the confession or deem it somehow cured or rendered harmless by the subsequent evidence presented to the jury. The jury should never have been allowed to hear or consider this confession because, in the critical proceeding to determine its admissibility, the State failed to prove that it was voluntary. We must take cognizance of that error as we would any other error in the admission of prejudicial evidence or as we would if the suppression motion had been considered and improperly overruled pretrial. Upon the authority of Streams and Gill, therefore, we conclude that the court erred in denying appellant’s motion to suppress and thus in admitting the confession. See also Jarrell v. State, 36 Md. App. 371 (1977); Hutchinson v. State, 38 Md. App. 160 (1977).

As reversal of appellant’s conviction is mandated by this determination, we shall decline to address further the alleged error in the court’s instructions. Upon retrial, the court will no doubt consider what the Court of Appeals said in Gill and Dempsey, supra.

Judgments reversed; case remanded for a new trial; costs shall not be reallocated, pursuant to Maryland Rule 1082 f.

      . Counsel conceded that he had made no effort to obtain Johnson’s compulsory appearance, desiring instead that he be a voluntary witness. Johnson was also under indictment but had apparently been released on bond. The bail bondsman produced Johnson in court, and, after advice from counsel, Johnson agreed to waive his right against self-incrimination and testify for appellant. The record before us does not indicate whether Johnson actually testified at the first trial. He was not called as a witness at the second trial.

      . The waiver form dealt primarily with presentment before a judicial officer pursuant to Maryland District Rule 723, but also included the various "Miranda” rights. The last question on it asked, "Have any promises, threats, or inducements been made to pressure or coerce you into making this statement?” Begett wrote in the word "NO” in answer to that question and appellant initialled that answer and signed the form. Begett conceded that appellant was able to read and write, and could therefore have answered the questions himself, but insisted that he wanted Begett to record the answers.

      . Edgar’s name appears as a witness to the confession.

      . Edgar’s response was a curious one:
      "Q That evening, at any time that evening, before, after, or while State’s Exhibit Nos. 1 and 2, the waiver of rights and the confession, were being done, any time before, during, or after that process, did you ever take your glasses off and yell at the defendant?
      "A No, sir, not at that time.

      "Q Did you ever threaten the defendant in any way?
      "A Not at that time, no. ” (Emphasis supplied.)
      No one asked him whether he had threatened appellant at any other time.


text:
    PATRICK L. WILLIAMS v. STATE OF MARYLAND
    [No. 1184,
    September Term, 1979.]

      Decided May 12, 1980.

    The cause was submitted on briefs to Morton, Moore and Wilner, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Nancy Louise Cook, Assistant Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney General, Ray E. Stokes, Assistant Attorney General, Warren B. Duckett, Jr., State’s Attorney for Anne Arundel County, and James Dryden, Assistant State’s Attorney for Anne Arundel County, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

In May, 1975, appellant was charged with four counts of burglary. He pled guilty to four counts of breaking and entering, a lesser included offense, and was convicted thereon. On September 5, 1975, he was sentenced by the Circuit Court for Anne Arundel County to five years imprisonment; however, four years of that sentence were suspended in lieu of active probation.

Appellant served that one year in prison and commenced his four-year probation period on September 5, 1976. On October 5, 1979, appellant was found in violation of the conditions of his probation for reasons that are not in dispute here. The court revoked the probation and committed him to prison for five years.

This, the court had no authority to do. Md. Ann. Code art. 27, § 642 authorizes a court, in revoking probation, to sentence the person to serve "the period of imprisonment prescribed in the original sentence or any portion thereof.” The statute does not permit the court to increase the original sentence, however; and, in that regard, the phrase "period of imprisonment prescribed in the original sentence” must be taken to mean the unexpired term thereof. See Costello v. State, 240 Md. 164 (1965). A person may not be compelled to serve a sentence, or part of a sentence, that he has already served, for that necessarily involves an increase in the original sentence.

In this case, the maximum period of imprisonment allowable under § 642 would have been four years.

Sentence vacated; case remanded to Circuit Court for Anne Arundel County for resentencing; costs shall not be reallocated pursuant to Maryland Rule 1082 f.


author: Gilbert, C. J.,

text:
    MICHAEL LEE LOSCOMB v. STATE OF MARYLAND
    [No. 448,
    September Term, 1979.]

      Decided May 19, 1980.

      The cause was argued before Gilbert, C. J., and Morton and MacDaniel, JJ.

      Broughton M. Earnest for appellant.

      Bonnie A. Travieso, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Sidney S. Campen, Jr., State’s Attorney for Talbot County, and Jane Tolar O’Connor, Assistant State’s Attorney for Talbot County, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

—PREFACE—

This case was argued before the Court on December 10, 1979. We issued an opinion on January 10, 1980. Appellant filed a motion for reconsideration. We granted that motion and recalled the opinion as filed on January 10, 1980. As a result of our reconsideration, we modify our original opinion.

—THE LAW—

Whenever an operator of a motor vehicle is believed, while "intoxicated,” to have caused the death of another person as a result of the manner in which he or she drove his or her motor vehicle, the operator is subject to being charged with either or both of two distinct violations of the Criminal Law.

Md. Ann. Code art. 27, § 388 provides:

"Every person causing the death of another as the result of the driving, operation or control of an automobile, motor vehicle, motorboat, locomotive, engine, car, streetcar, train or other vehicle in a grossly negligent manner, shall be guilty of a misdemeanor to be known as 'manslaughter by automobile, motor vehicle, motorboat, locomotive, engine, car, streetcar, train or other vehicle,’ and the person so convicted shall be sentenced to jail or the house of correction for not more than three years, or be fined not more than $1,000.00 or be both fined and imprisoned.
In any indictment or warrant for manslaughter by automobile, motor vehicle, motorboat, locomotive, engine, car, streetcar, train or other vehicle, it shall not be necessary to set forth the manner and means of death. It shall be sufficient to use a formula substantially to the following effect: 'That A-B on the........day of........, nineteen hundred and........at the County (City) aforesaid, unlawfully, in a grossly negligent manner did kill and slay C-D.’ ”

Cognizant of the degree of difficulty confronting State’s Attorneys’ efforts to prove "gross negligence” in order to establish guilt under section 388, the Legislature enacted a new substantive offense that contained many of the elements of manslaughter by motor vehicle, but added the additional factor of "intoxication,” and reduced the "gross negligence” standard of section 388 to "negligence.” Md. Ann. Code art. 27, § 388A.

The title to Laws 1978, ch. 454, declares that:

"FOR the purpose of providing that any person causing the death of another as the result of his negligent driving, operation or control of a motor vehicle while intoxicated is guilty of a misdemeanor; specifying a name for the misdemeanor; setting the penalties for the misdemeanor; specifying that an indictment for the crime need not contain certain information; providing a form for the indictment; [and] defining intoxicated as it relates to this crime.. ..” (Emphasis supplied.)

Immediately thereafter, the crime of "Homicide by motor vehicle while intoxicated,” section 388A was added to Article 27 of the Maryland Code. Section 388A provides in pertinent part:

"(a) In this section 'intoxicated’ has the same meaning as indicated in and is subject to the same presumptions and evidentiary rules of § 10-307 of the Courts Article regarding intoxication under the vehicle laws of this State.
(b) Any person causing the death of another as the result of his negligent driving, operation or control of a motor vehicle while intoxicated is guilty of a misdemeanor to be known as 'homicide by motor vehicle while intoxicated,’ and the person so convicted shall be punished by imprisonment for not more than two years, or by fine of not more than $1,000 or both fine and imprisonment.
In any indictment, information, or warrant for homicide by motor vehicle while intoxicated, it is not necessary to set forth the manner and means of death.
(c) It shall be sufficient to use a formula substantially to the following effect: 'That A-B on the.......day of.......nineteen hundred and .......at the County (City) aforesaid, unlawfully, while intoxicated did kill C-D, against the peace, government, and dignity of the State.’ ”

A critical part of any prosecution under section 388A is the establishment by the State of the fact that the accused was intoxicated within the meaning "of § 10-307 of the Courts Article.” Consequently, when the State endeavors to prove a charge of "Homicide by motor vehicle while intoxicated” it must rely upon Md. Cts. & Jud. Proc. Code Ann. (1974) § 10-307, in order to demonstrate to the trier of fact that the accused was intoxicated. Courts Art. § 10-307 provides:

"(a) In general. — In a proceeding in which a person is charged with a violation of § 388A of Article 27 or with driving or attempting to drive a vehicle in violation of § 21-902 of the Transportation Article, the amount of alcohol in the person’s breath or blood shown in chemical analysis as provided in this subtitle is admissible in evidence and has the effect set forth in subsections (b) through (e) of this section.
(b) No intoxication presumed. — If there was in his blood at the time of testing 0.05 percent or less, by weight, of alcohol, as determined by an analysis of his blood or breath, it shall be presumed that the defendant was not intoxicated and that his driving ability was not impaired by the consumption of alcohol.
(c) No presumption. — If there was in his blood at the time of testing more than 0.05 percent, but less than 0.10 percent, by weight, of alcohol, as determined by an analysis of his blood or breath, this fact may not give rise to any presumption that the defendant was or was not intoxicated or that his driving ability was or was not impaired by the consumption of alcohol, but this fact may be considered with other competent evidence in determining the guilt or innocence of the defendant.
(d) Prima facie evidence of impairment. — If there was in his blood at the time of testing 0.10 percent, or more, by weight, of alcohol, as determined by an analysis of his blood or breath, it shall be prima facie evidence that the defendant’s driving ability was impaired by the consumption of alcohol.
(e) Prima facie evidence of intoxication. — If there was in his blood at the time of testing 0.15 percent, or more, by weight, of alcohol, as determined by an analysis of his blood or breath, it shall be prima facie evidence that the defendant was intoxicated.” (Emphasis supplied.)

The General Assembly did not expressly amend Courts Art. § 10-302 which provides:

"In a prosecution for a violation of a law concerning a person who is driving or attempting to drive a vehicle in violation of § 21-902 of the Transportation Article, a chemical test of his breath or blood may be administered to the person for the purpose of determining the alcoholic content of his blood.” (Emphasis supplied.)

The net effect of section 10-302, however, is to permit a chemical test whenever there is a violation of any law that involves driving while intoxicated or impaired. Even if such were not the situation, it is patent that the chemical test may be administered to a person charged with a violation of section 388A because in order to violate that section of the criminal code, a violation of Transportation Art. § 21-902 must also occur. Stated more simply, to be guilty of "Homicide by motor vehicle while intoxicated” requires, of necessity, that the operator of the vehicle be intoxicated within the scope of Transportation Art. § 21-902.

An integral part of the legislative scheme to detect and punish the operator of a motor vehicle while intoxicated is that the person accused of violating Transportation Art. § 21-902 or Md. Ann. Code art. 27, § 388A, is not compelled to submit to a chemical analysis, notwithstanding that he or she signed a statement of consent as a prerequisite to obtaining a driver’s license, or renewal thereof, to submit to a chemical test of his or her blood or breath if he or she is " 'detained on suspicion of driving or attempting to drive .. . while intoxicated or ... impaired by consumption of alcohol.’ ” Transportation Art. § 16-205.1 (a) (l).

Courts Art. § 10-309 provides:

"(a) Test not compulsory. — A person may not be compelled to submit to a chemical analysis provided for in this subtitle. Evidence of chemical analysis is not admissible if obtained contrary to its provisions.
No inference or presumption concerning either guilt or innocence arises because of refusal to submit. The fact of refusal to submit is not admissible in evidence at the trial.
(b) Consequences of refusal. — This subsection does not limit the provisions of the vehicle laws regarding the consequences of refusal to submit to a chemical test or tests.”

The predecessor to Courts Art. § 10-309 was interpreted by the Court of Appeals in Mauldin v. State, 239 Md. 592, 212 A.2d 502 (1965). In that case, the Court observed that former Md. Ann. Code art. 35 (Evidence), § 100 (c) provided that " 'no person shall be compelled to submit himself * * * for the purpose of chemical analysis * * * and no inference * * * concerning his guilt or innocence arises by reason of his refusal to submit * * ” The Court went on to state that "the failure to affirmatively or validly agree to .. . [the chemical analysis] does not bar the presentation of its results into evidence.” Mauldin argued that even though he had been advised of his rights, Md. Ann. Code art. 35, § 100 (g), and had consented to the test, his intoxicated state negated the consent. The Court disagreed. Although in Mauldin the Court did not expressly incorporate then Article 35, § 100 (g) into Md. Ann. Code art. 27, § 388, they at least required its application. We do not read Mauldin as holding that the detained person need not be advised of his right to select the type of test, if any, to which he will submit for purposes of analysis, nor do we read it as sanctioning any type of trickery so as to obtain from the detained person a blood or breath sampling for analysis.

Effective July 1,1969, Md. Ann. Code art. 66V2, § 92A was enacted by Laws 1969, ch. 158. Section 92A was subsequently redesignated as section 6-205.1 and now appears as Transportation Art. § 16-205.1. Former section 92A provided in pertinent part:

"(c) It shall be the duty of any police officer who stops or detains any person who he has reasonable grounds to believe is or has been operating or attempting to operate a motor vehicle under the influence of alcohol, or who is or has been operating or attempting to operate a motor vehicle while his ability was impaired by the consumption of alcohol to do all the following things:
1. Detain such person.
2. Request that he take a chemical test or tests of his blood, breath or urine, for the purpose of determining the alcoholic content of his blood, to be administered by a person examined and certified as sufficiently equipped and trained to administer such tests by the Department of Maryland State Police, which is authorized to promulgate rules and regulations for the examination and certification, if detained by a member of the Department of Maryland State Police or by a member of a local police agency which has a member examined and certified to administer the tests.
3. Advise the person of the administrative penalties that may be imposed for such refusal.
4. File with the Department of Motor Vehicles within 48 hours after such detention, a sworn report that he had reasonable grounds to believe that said person had been operating or attempting to operate a motor vehicle upon the highways of this State while under the influence of alcohol, or that said person operated or attempted to operate a motor vehicle upon the highways of this State, while his ability was impaired by the consumption of alcohol and that said person refused to take the chemical test for alcohol, upon the request of the police officer and after having been informed of the administrative penalties that may be imposed for said refusal.”

The current statute, Transportation Art. 16-205.1 (c) mandates:

"Duty of police officer on stopping or detaining suspected person. — If a police officer stops or detains any individual who the police officer has reasonable grounds to believe is or has been driving or attempting to drive a motor vehicle while intoxicated or while his driving ability is impaired by the consumption of alcohol, the police officer shall:
(1) Detain the individual;
(2) Request that the individual permit a chemical test to be taken of his blood or breath to determine the alcoholic content of his blood;
(3) Advise the individual of the administrative penalties that may be imposed for refusal to take the test;
(4) If the individual is licensed under this title, furnish him with a copy of the statement set forth in subsection (a) of this section and inform the individual that he signed this statement when applying for a license; and
(5) If the individual refuses to take the test, file with the Administration, within 48 hours after detention, a sworn report that:
(i) The officer had reasonable grounds to believe that the individual had been driving or attempting to drive a motor vehicle on a highway or on any private property that is used by the public in general in this State while intoxicated or while his driving ability was impaired by the consumption of alcohol; and
(ii) The individual refused to take the chemical test for alcohol when requested by the police officer and after being informed of the administrative penalties that may be imposed for refusal.”

Although an isolated reading of that code section would limit its application only to the offenses of "driving or attempting to drive a motor vehicle while intoxicated or ... driving ability is impaired by consumption of alcohol,” we discern that the legislative intent is clear that the dictates of the statute are not so confined. In the title to Laws 1969, ch. 158, the General Assembly stated:

"AN ACT to add new Section 92A to Article 66V2 of the Annotated Code of Maryland (1967 Replacement Volume, 1968 Cumulative Supplement), title 'Motor Vehicles,’ subtitle 'Administration-Registration-Titling,’ to follow immediately after Section 92 thereof; and to add new Section 104A to the same Article to follow immediately after Section 104 thereof; and to repeal Section 206 of the same Article, subtitle 'Operating Vehicles upon Highways,’ and to enact new Section 206 to stand in the place and stead of the Section so repealed; to provide as a condition to obtaining or renewing a motor vehicle driver’s license, the applicant shall expressly consent to the taking of a chemical test of his blood, breath, or urine, and to provide that the operation or attempted operation of a motor vehicle on the public highways of this State by a validly licensed non-resident motor vehicle operator implies the consent of the operator to the taking of a chemical test of his blood, breath, or urine, if either the resident or non-resident motor vehicle operator is detained by the Maryland State Police or by certain qualified members of local police agencies, and the test is to be given by persons certified and qualified for any offense alleged to have been committed while operating a motor vehicle in an intoxicated condition or operating while his driving ability is impaired by the consumption of alcohol, relating to the presumption arising from a refusal to take a chemical test, and to the revocation, suspension or refusal of licensing, providing for hearing and appeal from suspension or refusal of licensing, and to notify other states in such cases, and relating generally to the licensing of motor vehicle operators and the operation of motor vehicles in this State.” (Emphasis supplied.)

The Legislature apparently meant that Transportation Art. § 16-205.1 (c) should be applied in all instances in which the operation of a motor vehicle in an intoxicated or impaired condition constitutes an element of an offense.

In the preceding chapter of Laws 1969, i.e., Ch. 157, the Legislature enacted then Article 35, § 100 (a). That section provided in pertinent part:

"(a) In any criminal prosecution for a violation of Section 206 of Article 66 Va of this Code (1957 Edition, as amended from time to time) or for a violation of any other law of this State concerning a person who is under the inñuence of intoxicating liquor driving or attempting to drive any vehicle as specified in the other laws, the person may be given a chemical test of his breath, blood or urine or other bodily substance for the purpose of determining the alcoholic content of his blood; provided, that the specimen of blood, breath or urine must have been taken within two hours after the person being prosecuted was first apprehended by the arresting officer; and that the test is administered by qualified personnel with equipment approved by the toxicologist of the office of the chief medical examiner of the Department of Post-Mortem Examiners at the direction of a police officer having reasonable grounds to believe the person to have been driving while under the influence of intoxicating liquor or while his ability is impaired by the consumption of intoxicating liquor.” (Emphasis supplied.)

Subsection (c) of section 100 provided:

"(c) No person shall be compelled to submit himself or any part of his body or bodily substance for the purpose of a chemical analysis provided for in this section and evidence of chemical analysis shall not be deemed admissible if obtained contrary to the provisions of this section; and no inference or presumption concerning either his guilt or innocence arises by reason of his refusal to submit as hereinbefore set forth, nor shall the fact of his refusal so to submit be admissible into evidence at his trial. This subsection in no way limits the provisions of section 92A of Article 66V2 of this Code regarding the consequences of refusal to submit to a chemical test or tests. In any event, the defendant shall have the right to select the type of test administered, and if facilities or equipment are not available for such test then none shall be given, and this fact shall not create any inference or presumption concerning either his guilt or innocence by reason of his inability to take a test, nor shall the fact of his inability to take such a test be admissible in evidence at his trial, nor shall this fact be considered a refusal to take a test under section 92A of this article.”

The right to select the type of test, blood or breath, is presently conferred on a defendant by Courts Art. § 10-305. That section provides:

“The defendant may select the type of test administered, and if facilities or equipment are not available for that test then none may be given, and this fact does not create an inference or presumption concerning either his guilt or innocence by reason of his inability to take a test.
The fact of his inability to take a test is not admissible in evidence at his trial, and this fact may not be considered a refusal to take a test under the vehicle laws.”

The various statutory provisions, i.e., Courts Art. § 10-302, § 10-305, § 10-307, § 10-309, Transportation Art. § 16-205.1 and § 21-902, and the Criminal Code, Article 27, § 388 and § 388A must be read together. When so read, it becomes clear that a police officer who detains an operator of a motor vehicle on the basis that the operator was driving or attempting to drive while intoxicated or impaired as a result of the consumption of alcohol, or any allied offenses must offer the detained individual a choice of a blood test or a breath test, or no test at all. The arresting officer may not direct that blood be drawn from the suspect for the purpose of having it tested for alcoholic content. If an officer is permitted to order such a test, over the person’s objections, or order it obtained by some subterfuge, and use the results at trial, the statutory right of the individual to select the type of test, if any, to which he will submit, is rendered absolutely meaningless.

Legislatures are, like all other democratic organizations, subject to criticism. Neither they nor the courts are infallible. Nevertheless, they would not so meticulously erect a redoubt around a person who is charged with the lesser offenses of "Homicide by motor vehicle while intoxicated,” or "Operating a motor vehicle while intoxicated,” or "Driving while ability is impaired by alcohol,” and yet not afford any of those protections to a motorist accused of the more serious offense, "Manslaughter by motor vehicle.”

Any chemical analysis otherwise obtained by the detaining officer shall not be admissible into evidence unless it is first demonstrated to the trier of fact that the accused was advised of his right to elect the type of test, if any, to which he would submit, and the test given, if any, was in accordance with that election.

To avoid future difficulty surrounding either a blood or breath test, irrespective of whether the charge be laid under Article 27, § 388 or 388A, or under the Transportation Article, the better practice for the detaining officer to follow is:

1) request the person to submit to a chemical test to determine the alcoholic content of that person’s blood;

2) if the person is a licensed Maryland operator, furnish a copy of the consent form that is required of all Maryland licensed operators;

3) inform the person of his or her right to elect whether to submit to a breath test or a blood test or to refuse to submit to either;

4) advise the person that if he or she elects to submit to a chemical test that he or she has the privilege of choosing a physician to administer the test, but the physician is in addition to the physician designated by the officer;

5) inform the person detained that if he or she refuses to submit to a chemical test, no inference or presumption concerning guilt or innocence arises because of the refusal;

6) apprise the person that the results of a chemical test give rise to the presumptions specified in Courts Art. § 10-307;

7) advise the person that' he or she is subject to administrative penalties for failure to submit to the test.

We think that the blood-breath test that is articulated in Courts Art. § 10-307, along with Transportation Art. § 16-205.1 (c) is as much a part of Article 27, § 388 as it is Article 27, § 388A, if and when the basis of the charge under section 388 is that the accused was intoxicated. We hold, therefore, that whenever a person is charged under Md. Ann. Code art. 27, § 388 (Manslaughter by motor vehicle), and the basis of the charge is the alleged intoxication of the accused while operating a motor vehicle, no evidence derived from any chemical analysis administered or caused to be administered by the police, is admissible in evidence unless there has been compliance with Courts Art. § 10-305. The burden, of course, is on the State to satisfy the court that compliance has occurred.

Having resolved the knotty issue of the application of the blood-breath test to prosecutions under Md. Ann. Code art. 27, §§ 388 and 388A, we now turn our attention to the argument of the appellant that the enactment of section 388A implicitly repealed section 388.

The effect of section 388A is, in our view, to create a wholly new substantive crime that requires an element of proof not necessary to a successful prosecution under section 388. The "Homicide by motor vehicle while intoxicated” necessitates a showing that the defendant was intoxicated within the meaning of Courts Art. § 10-307. Indeed, the purpose behind the enacting of the "Homicide by motor vehicle while intoxicated” proviso was to enhance the State’s chances of obtaining convictions of motorists who not only drive while intoxicated but kill innocent third parties as a result of the imbiber’s negligence.

On the other hand, section 388 does not necessitate proof of intoxication. Indeed, "gross negligence” is the standard required, and one need not be intoxicated to be grossly negligent.

Lastly, we observe that a defendant who is accused under Md. Ann. Code art. 27, § 388 (Manslaughter by motor vehicle) and § 388A (Homicide by motor vehicle while intoxicated) of the homicide of another person, cannot be convicted of both offenses since it is manifestly impossible to kill or slay one person twice. Blackwell v. State, supra. Moreover, even though the elements of the two offenses, section 388 and section 388A, vary so that proof of one is not necessarily proof of the other, Thomas v. State, 277 Md. 257, 353 A.2d 240 (1976), rev’g 26 Md. App. 232, 337 A.2d 137 (1975), conviction of both charges, arising from the slaying of the same person amounts to piling punishment upon punishment. Fundamental fairness precludes such a practice.

—THE INSTANT CASE—

A tragedy occurred on July 17, 1978, in Talbot County, Maryland, at the intersection of Md. Route 322 (Easton by-pass) and Glebe Road. The tragedy was the result of a two-vehicle collision. The occupants of one automobile were both killed by the impact.

When Officer Gary W. Roth of the Easton Police Department arrived at the scene of the collision, he checked a "female who was lying on her back in the intersection....” He was unable to detect any signs of life in the person. Officer Roth was then advised that another female "was [in the front seat of one of the cars], pinned in the wreckage, slumped over in a forward crouched ... position. He was "unable to find any signs of life on her either.”

Roth further testified that he was "directed to a third victim,” the appellant, Michael L. Loscomb, who was "laying [sic] by the curb on the grass. He was lying on his right side.” The officer noticed no "external injuries” to Loscomb, but the appellant "was groaning, apparently in pain.” Officer Roth did not "notice any odor of alcoholic beverage on ... [appellant’s] breath.” Loscomb was transported by ambulance to the Easton Memorial Hospital.

Roth continued his investigation at the scene. He found a "large styrofoam cooler in the left rear seat” of the appellant’s Cadillac. The cooler contained "a large glass mug” which was "wet.” What caused the wetness was unknown to the officer. The cooler did not have a top to it. In addition, Officer Roth found "two bottles, alcohol bottles ... in the Cadillac, one empty, and one half full. One of the bottles was underneath the brake pedal of the car.” The officer was unable to say which of the two bottles was under the pedal. He did, however, state that "[b]oth bottles had caps on them.” The empty bottle bore a label indicating that it had contained blackberry brandy. The other bottle was that of Lord Calvert Whiskey.

After Loscomb had been removed to the hospital, Roth endeavored to reach the Chief of Police and "request... [him to] attempt to obtain a blood test for alcohol from ... Loscomb...Roth believed that the blood test was appropriate in view of "the whiskey bottles in the car” of appellant, the double fatal accident, the point of impact, and his feeling that Loscomb was responsible for the collision.

Unable to contact the chief, he radioed the police department and asked them to request the chief to "attempt to obtain a blood test for alcohol from” the appellant.

Later, Roth went to the hospital where he met Chief Cosier. They went "directly into the examination room where ... Loscomb was lying on one of the ... tables.... And they were preparing to draw the blood.” Loscomb was conscious and quipped, "What is this, truth serum?” Two vials of blood were drawn from Loscomb by a physician at the hospital.

Roth informed appellant that the occupants of the other car were dead. At that point, Loscomb said that he wanted to talk to his attorney. Roth then asked the Chief if a consent form had been obtained from Loscomb, and the Chief replied that it had not. Roth explained to Loscomb "what had happened with the blood,” and requested that Loscomb "sign the consent form.” Appellant refused to do so.

On the night of July 17, 1978, appellant received three citations for violations of the motor vehicle laws: driving while intoxicated, impaired or under the influence, Transportation Art. § 21-902; reckless and negligent driving, Transportation Art. § 21-901.1; and failure to drive within a single lane, Transportation Art. § 21-309 (b). One week later, Loscomb was charged with manslaughter by motor vehicle and homicide by motor vehicle while intoxicated. Both charges were levied against Loscomb as to each of the two persons who perished in the collision.

A motion to suppress the blood test was denied by the hearing judge on the ground that the blood test applied only to operating under the influence cases and not to the manslaughter offenses. Hence, the court ruled that the blood test obtained without advising the appellant of his rights was admissible in a trial for automobile manslaughter or homicide by motor vehicle while intoxicated.

At a non-jury trial in the Circuit Court for Talbot County, the results of the blood test were allowed into evidence over the objection of appellant’s counsel. Loscomb was convicted of all offenses for which he stood trial except the reckless or negligent driving violation that the trial judge held to have merged "into the other more serious counts.”

From our earlier discussion of the law, it is at once apparent that the blood test should not have been admitted into evidence. Its admission constitutes reversible error. Moreover, inasmuch as no person may be slain twice, it was impossible for the appellant to be guilty of both manslaughter by motor vehicle and homicide by motor vehicle while intoxicated, of each of the victims. We think that point to be so obvious as not to need further comment.

We reverse and remand the case for a new trial on the two manslaughter by motor vehicle offenses, Md. Ann. Code art. 27, § 388 and the two homicide by motor vehicle while intoxicated charges, Md. Ann. Code art. 27, § 388A.

We affirm, however, the judgment of the circuit court with respect to the traffic charge of failing to drive in a single lane, an offense for which the court imposed a fine of $500. Suffice it to say, without recounting all the evidence, that there was ample evidence from which the court could have concluded that appellant was not operating his vehicle in the proper lane.

Judgments on convictions for violation ofMd. Ann. Code art. 27, § 388 and § 388A reversed and remanded for a new trial.

Judgment on conviction for violating Transportation Art. § 21-309 (b) affirmed.

One-third costs to be paid by appellant.

Two-thirds by Talbot County.

      . If the operator is charged under Md. Ann. Code art. 27, § 388A, the word "intoxicated” means: "If there was in ... [the accused’s] blood at the time of testing 0.15 percent, or more, by weight, of alcohol, as determined by an analysis of his blood or breath, it shall be prima facie evidence that the defendant was intoxicated.” Md. Courts and Judicial Proceedings Code Ann. (1974) § 10-307 (e).

      2. A violation of section 388 is a misdemeanor, separate and distinct from the common law crime of manslaughter. Connor v. State, 225 Md. 543, 171 A.2d 699, cert. denied, 368 U.S. 906 (1961).

      . See e.g., Connor v. State, supra; Lilly v. State, 212 Md. 436, 129 A.2d 839 (1957); Faulcon v. State, 211 Md. 249, 126 A.2d 858 (1956); Thomas v. State, 206 Md. 49, 109 A.2d 909 (1954); Blackwell v. State, 34 Md. App. 547, 369 A.2d 153, cert. denied, 280 Md. 728, 735 (1977); Boyd v. State, 22 Md. App. 539, 323 A.2d 684, cert. denied, 272 Md. 738 (1974); State v. Gibson, 4 Md. App. 236, 242 A.2d 575 (1968), aff'd, 254 Md. 399 (1969).

      4. Section 388A became effective July 1, 1978.

      5. The words, "with a violation of § 388A of Article 27 or” were added to section 10-307 (a) when section 388A of the Criminal Code was enacted. See Laws 1978, ch. 454.

      6. Md. Transportation Code Ann. § 21-902 is concerned with operating a vehicle while intoxicated, while driving ability is impaired by alcohol, while under the influence of alcohol or drugs or both, and driving while under the influence of any of the controlled dangerous substances enumerated in Md. Ann. Code art. 27, § 279.

      . See Courts Art. §§ 10-302 through 10-309.

      . Non-resident drivers are deemed to have consented to the chemical test by virtue of their driving a motor vehicle on the highways or private property within this State. Transportation Art. § 16-205.1 (b).

      . Article 66V2, § 92A became Article 66Y2, § 6-205.1 with the enactment of Laws 1970, ch. 534.

      10. At the time Mauldin was decided, Article 35, § 100(g) required only that the police officer advise the motorist that he might, but need not submit to the chemical analysis. That subsection of section 100 was deleted by Laws 1969, ch. 157.

      11. The substance of Transportation Art. § 16-205.1 and its ancestor, Md. Ann. Code art. 66V2, § 92A is the same. Stylistic changes have, however, in the intervening years, occurred.

      12. Referring to the administrative sanction that may be imposed by the Motor Vehicle Administration.

      13. Thus, where the elected type of test is not available, no sanction may be imposed by M.V.A. for failure to submit to a test.

      . There is no constitutional right to object to the drawing of blood for the purpose of having it tested, by the police, for evidence of intoxication or impairment. See Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966).

      . Md. Ann. Code art. 27, § 388A.

      . Transportation Art. § 21-902 (a).

      . Transportation Art. § 21-902 (b).

      . Md. Ann. Code art. 27, § 388.

      . The blood test showed an 0.18 percent ethyl alcohol in Loscomb’s blood. See Courts Art. § 10-307 (e).

      . The State, on December 13, 1978, entered a nol pros as to the traffic offense of driving while intoxicated, impaired, or under the influence. The appellant was so notified.

      . See Transportation Art. § 27-101 (b).