text:
    CARL WILSON, JR. v. STATE OF MARYLAND
    [No. 1037,
    September Term, 1976.]

      Decided May 19, 1977.

    The cause was argued before Moylan, Powers and Moore, JJ.

      George E. Bums, Jr., Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Stephen B. Caplis, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Ralph M. Burnett, State’s Attorney for Garrett County, and James L. Sherbin, Assistant State’s Attorney for Garrett County, on the brief, for appellee.
   Powers, J.,

delivered the opinion of the Court.

Carl Wilson, Jr. has appealed from the judgment entered against him in the Circuit Court for Garrett County, sitting as a juvenile court. The charge against Wilson, contained in a juvenile petition and a warrant sworn to and issued on 31 August 1976, was:

“* * * committing an act or omission causing Timothy William Beeman, age 13, to be adjudicated a child in need of supervision: To-wit: providing alcoholic beverage to the above named child.”

At the conclusion of a hearing on 1 October 1976 Wilson was found guilty, and was sentenced to imprisonment for two years.

The only issue urged in this appeal is that the lower court erred in denying a motion to dismiss the charge made in the juvenile petition, on the ground of double jeopardy. We hold that the motion should have been granted; that the court erred in denying it; and that the judgment in this case must be reversed.

A substantial degree of . informality pervaded the proceedings below, and we think that justice requires the same degree of informality in our consideration of the issue. Trial of this cáse in the circuit court, sitting as a juvenile court, was consolidated with a similar petition against another adult, Lester Lewis, for the same offense. At the outset, Wilson’s counsel moved to “dismiss the case on grounds of double jeopardy * * * because the defendant was tried in District Court on a criminal offense arising out of the same incident.” Counsel for Lewis made a similar motion. The court was advised that the charge in the District Court was knowingly giving alcohol to a minor, and was brought under Art. 27, § 401. It was stated that the facts were the same as the facts on which the juvenile charge was brought.

Wilson’s counsel argued that it was double jeopardy unless each offense had at least one element that the other offense did not. He stated that all of the elements were the same, “with the addition in this court that there has to be a prior finding of delinquency.” The court said, “There has been.”, and counsel replied, “Yes, sir, there was just a few minutes ago in this court.”

The court ruled, saying:

“ * * * I think where a person, take a hypothetical case where a person, takes a juvenile, or a 13-year old juvenile out and supplies him with alcoholic beverages, that they are guilty of two separate offenses, one, is criminal in the District Court, and the other one is juvenile in Juvenile Court. I think we have two distinctive separate charges. I do not feel that double jeopardy applies in this case, and the motion on behalf of Mr. Wilson and the motion on behalf of Mr. Lewis will be denied.”

To determine whether the charges in the two cases were based upon the same acts, it is necessary to review the evidence briefly. On the afternoon of 14 July 1976, David Albert, 26 years old, was going to return some borrowed tools to Lester Lewis. Albert took the juvenile, a neighbor, with him. On the way, Albert bought a six-pack of beer. He and the juvenile each drank three beers before they arrived at Lewis's house. Lewis was not at home, so they left. Albert bought three more six-packs of beer, then returned and found Lewis at home. Albert, the juvenile, Lewis, and a brother-in-law of Lewis each drank some of the beer. The juvenile became quite drunk.

Albert tried to start his car, and was unable to do so. Wilson, the appellant here, came along and rendered assistance. Then they all had a couple of beers, standing around the car. Next, with the juvenile in the back seat and the three adults, Albert, Lewis, and Wilson in the front seat, they left Lewis's house. As Albert put it, “we” got another six-pack. All of the beer was on the floor of the front seat, and, according to Albert, the juvenile on the back seat kept nagging for beer. Albert said that Wilson and Lewis each handed one beer to the juvenile.

The State argues in this appeal that each of the two charges against Wilson contains an element that the other does not, and therefore prosecution of the second case was not barred by the prohibition against double jeopardy. Code, Art. 27, § 401 (a) says, in part:

“Any person who obtains any spirituous or fermented liquors from any other person licensed to sell them for any minor or person under age 21, except that the age shall be 18 years for beer or light wine, knowing him to be such, to be drunk by the minor or person under age 21, except that the age shall be 18 years for beer or light wine, is guilty of a misdemeanor * *

Code, Courts Art., § 3-831 says, in part:

“(a) It is unlawful for an adult wilfully to contribute to, encourage, cause or tend to cause any act, omission, or condition which renders a child delinquent, in need of supervision, or in need of assistance.
“(b) A person may not be convicted under this section unless the child has been adjudicated delinquent, in need of supervision, or in need of assistance. * * * ”

It is apparent at a glance that the wrongful acts which constituted the crime for which Wilson was tried and convicted in the District Court were:

a. obtaining beer from a person licensed to sell it
b. for a person under age 18
c. to be drunk by the person under age 18.

The element that the alcoholic beverage be obtained from a person licensed to sell it is not an element, as the State points out, of the offense under the juvenile law. The additional element of that offense, the State argues, is that a person may not be convicted unless the child has been adjudicated.

The Court of Appeals, in Thomas v. State, 277 Md. 257 (1976), held that the “required evidence test” is the proper test to determine whether two offenses are the same for double jeopardy purposes. The Court said, at 267:

“The required evidence is that which is minimally necessary to secure a conviction for each statutory offense. If each offense requires proof of a fact which the other does not, or in other words, if each offense contains an element which the other does not, the offenses are not the same for double jeopardy purposes even though arising from the same conduct or episode. But, where only one offense requires proof of an additional fact, so that all elements of one offense are present in the other, the offenses are deemed to be the same for double jeopardy purposes. And of course if both statutes have exactly the same elements, the offenses are also the same within the meaning of the prohibition against double jeopardy, and successive prosecutions are barred.”

In this case the violation of the juvenile law could have been, and was, proved by evidence which was also required to prove the violation of Art. 27, § 401. No new or different element was present in the offense against the juvenile law. To prove guilt of that offense, no additional fact was required to be proved. That the statute makes it a condition precedent to conviction that there be an adjudication against the child is not an element of the wrongful acts committed by the accused.

Prom the beginning the State obviously looked upon adjudication of the child as a mere condition precedent to conviction — not as an element of the crime which it charged that Wilson had committed. The charge was filed and sworn to on 31 August 1976, and included an allegation (at best, anticipatory) of adjudication of the child. Whatever adjudication there was of the child did not become a fact until more than a month later.

Trial of the appellant in the case now before us did place him twice in jeopardy. His motion to dismiss the charge on that ground should have been granted.

Judgment reversed.

Costs to be paid by Garrett County.

      . We are troubled by several questions about this aspect of the case. There was no formal evidence of any District Court charges, proceedings, or results. Presumably, counsel’s comments about it were accepted as the equivalent of evidence. Likewise, there was no evidence of any kind that the child had been adjudicated to be a child in need of supervision, as charged in the juvenile petition and warrant. At most, there was an indication that immediately before the trial of this case, there had been a finding of delinquency. For the purpose of our decision in this case, wernay assume that the fact of appellant’s prior trial, and the fact of an adjudication of the child, sufficient to satisfy the statutory requirement, were proved.

      . Because Lewis and Wilson were convicted in the District Court under Art. 27, § 401, we must assume that both of them participated in this purchase of the fifth and last six-pack of beer involved in the episode.

      . Both appellant and appellee refer to the applicable section of the juvenile law as Courts Art., § 3-840. That section was repealed by Acts of 1975, ch. 554, which, in a general reenactment of the juvenile law, covered the same subject in § 3-831.


source: Caselaw Access Project

author: Moylan, J.,

license: Public Domain

text:
    FRANCES IRENE LEE v. STATE OF MARYLAND
    [No. 1077,
    September Term, 1976.]

      Decided May 20, 1977.

    The cause was argued before Moylan, Davidson and Moore, JJ.

      Harry J. Lambeth, Assigned Public Defender, for appellant.

      F. Ford Loker, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Nelson W. Rupp, Jr., Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

If the appellant were to prevail on this appeal, the criminal trial process would be caught in a “Catch 22” wherein it could move neither forward nor back.

The appellant, Mrs. Frances Irene Lee, was convicted in the Circuit Court for Montgomery County by a jury, presided over by Judge Richard B. Latham, of assault with intent to maim and the use of a handgun in the commission of a felony. Upon this appeal, she raises the single contention that the trial judge committed constitutional error when he refused to accept her proffered guilty plea and encouraged her to go forward with a trial upon the merits.

Prior to trial, the appellant had entered into a “plea bargain” with the State, whereunder the appellant would plead guilty to the charge of assault with intent to murder and the State would nolle pros the remaining counts of 1) assault with intent to maim, 2) assault and battery, 3) simple assault and 4) the use of a handgun in the commission of a felony. When the plea was tendered in court, Judge John F. McAuliffe was meticulously solicitous of the appellant’s rights as he sought to explore the voluntariness of the guilty plea. After probing the routine questions as to the waiver of constitutional trial rights, Judge McAuliffe asked the appellant if she had assaulted anyone. She replied that she had — but with no intention of committing murder. Judge McAuliffe then asked, “Then why do you want to plead guilty to it?”

Appellant’s counsel explained that the plea was being made under the guidelines of North Carolina v. Alford, 400 U. S. 25, 91 S. Ct. 160. 27 L.Ed.2d 162 (1970), whereunder a defendant may proclaim innocence and yet enter a guilty plea in order to negate the threat of greater punishment. The possibility of greater punishment in this case stemmed from the handgun charge which carried a mandatory minimum five-year sentence. Notwithstanding this articulation of defense strategy, Judge McAuliffe tried to communicate the thought that if one had a good defense to the underlying felony and persuaded the fact finder in that regard, then the charge of committing a felony with a handgun would, of necessity, fall with it. The following colloquy took place:

“MR. LAMBETH: Your honor, this is an Alford plea. The State has the fifth count of the indictment, which would mean, I explained to Mrs. Lee, an automatic five-year imprisonment for the commission of a felony with a handgun, and, faced with that, we decided that the guilty plea to the first count, which was the only count that was offered us, was the best way to do it.
THE COURT: Where is the State going to get a felony if they can’t get a specific intent crime out of this?
MR. LAMBETH: As I read the cases, shooting a person is an implication you intended to murder them, no matter if you intended to kill them.
THE COURT: Well, directing a firearm at a vital point of the body and pulling the trigger certainly may permit such an inference that you intended to kill them or do grievous bodily harm, but that is not an inference that cannot be overcome. Suppose the jury believes you that you didn’t intend to hurt anybody or kill or maim him.
THE DEFENDANT: Your Honor, I didn’t intend to even shoot him, but when he stepped toward me I didn’t know what Mr. Stewart was going to do. I thought he was going to strike me or something, and I pulled the handgun, but I didn’t intend to kill him. It was not my intention to go out there and kill him in the first place, just to go out and talk to him.
THE COURT: Do you understand that one of the charges that the State has against you is a charge which could result in your getting an automatic minimum of five years in prison?
THE DEFENDANT: Yes, sir.
THE COURT: That is the use of a handgun in the commission of a felony.
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand that if you did not commit a felony you couldn’t be found guilty of that, even though you used a handgun? Do you understand that?
THE DEFENDANT: Yes, sir.”

Judge McAuliffe then went right to the nub of the matter and received the following response:

“THE COURT: Wouldn’t you be more satisfied by taking your chances with a trial?
THE DEFENDANT: Yes, sir.”

Under the circumstances, Judge McAuliffe refused to accept the plea of guilty:

“THE COURT: The Court will decline to accept a plea of guilty. Set the matter in for trial. Withdraw the plea of guilty to the first count and enter a plea of not guilty to all counts.
Counsel, I’m not going to accept the plea of guilty. It would be impossible to sentence this lady, even on an Alford type plea, where she is denying the very thing that she wants to plead guilty to. How can the Court sentence under those circumstances? I think she is entitled to a trial, and if the State can prove beyond a reasonable doubt that she had a specific intent at the time she did this, so be it. At least the die will be cast and the judge who hears this case will know all the facts and circumstances and know what the trier of fact determines really happens. Certainly, she takes a risk of a mandatory five-year sentence, but she understands that.
MR. LAMBETH: I have explained that to her, and in my conversations with her she doesn’t want to take that risk.
THE COURT: She just told me she did.
MR. LAMBETH: I know she did, but I don’t know if that is what she meant.
THE COURT: You are going to have to be ironclad, absolutely definite and certain with me you don’t want to take that risk before I accept a plea of guilty.”

Defense counsel persisted and asked Judge McAuliffe to question the appellant further. Judge McAuliffe was particularly solicitous as to whether the appellant was making “an intentional relinquishment or abandonment of a known right” because he had developed the fact that she had only completed the ninth grade and the further fact that she had been treated by a county psychiatrist during the years 1972 through 1975. He asked the following question and received the following response:

“THE COURT: Do you understand what we are doing, Mrs. Lee?
THE DEFENDANT: No, sir.”

Questioning whether the relinquishment of the right to stand trial was truly the appellant’s clear choice of action, he probed further:

“THE COURT: I am not satisfied that you really want to plead guilty to assault with intent to murder. Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: It seems to me you would rather have a trial on that, from what you told me, is that right?
THE DEFENDANT: Yes, sir.
THE COURT: Well, I’m going to give you a trial. I will give you a chance to tell the jury.”

Judge McAuliffe then declined to accept the guilty plea and the case was set in for a jury trial before Judge Latham.

Out of such raw material, the appellant has now spun a remarkable argument. She contends that “she was forced to trial when the court rejected her plea of guilty.” She claims that the rejection of her guilty plea “was not based upon a sufficient factual basis, but was a decision in which the court substituted its own spur-of-the-moment personal view (without an evidentiary hearing) for that-of the appellant.” She bases her present claim to the effect that she suffered “a violation of her rights under the 14th Amendment of the U.S. Constitution” upon the fact that she “did not really understand what was happening.” She claims that the trial judge should not have permitted her to elect to stand trial when it “was obvious that the appellant became confused and did not really understand the process, having never participated in a trial before her present experience.” She claims that the election to stand trial was invalid because “it is obvious that the appellant was completely confused. All of her answers were two word responses, one ‘No, sir’ and the rest, ‘Yes sirs’.”

The appellant claims, in effect, that she did not knowingly and intelligently waive her “constitutional right” to enter a guilty plea and that when her guilty plea was rejected, she was thereby denied due process of law.

The appellant’s thesis must be denied for any of four closely related reasons, which are, in ascending order of persuasiveness: 1) it has no basis in logic; 2) it has no basis in federal constitutional law; 3) it is flatly contrary to both Maryland law and to Maryland’s interpretation of federal constitutional law; and 4) it is inherently preposterous.

1. An Affirmative Right Does Not Imply Its Converse

The appellant, who because trial decisions are presumptively correct bears the burden of proof at this level, offers no authority — constitutional, statutory or decisional — to support her proposition that there is a constitutional right to have a guilty plea accepted. She reasons purely from logic that the existence of the right to stand trial necessarily implies the existence of a correlative right not to stand trial; which is to say, the right to due process implies the right to be free of due process. The proposition will not hold water either in logic or in American constitutional experience.

The existence of “A” does not imply the existence of “non-A”. It rather tells us nothing whatsoever about whether “non-A” exists or not. Chief Justice Warren said as much for a unanimous Supreme Court in Singer v. United States, 380 U. S. 24, 34-35, 85 S. Ct. 783, 13 L.Ed.2d 630, 638 (1965):

“The ability to waive a constitutional right does not ordinarily carry with it the right to insist upon the opposite of that right.”

The right to do something simply does not necessarily imply the right to do the opposite. When we sometimes lose our bearings, we must look for the seminal landmarks. When the far-flung implications appear blurred, we must return to basics.

The constitutional right which we are talking about, the full dimensions of which were painfully hammered out only over the course of decades, is the right to stand trial — with its full matrix of other necessarily engaged constitutional rights, including the right to trial by jury, Duncan v. Louisiana, 391 U. S. 145, 88 S. Ct. 1444, 20 L.Ed.2d 491 (1968); the right to be free of compelled self-incrimination, Malloy v. Hogan, 378 U. S. 1, 84 S. Ct. 1489, 12 L.Ed.2d 653 (1964); the right to confront one’s accusers, Pointer v. Texas, 380 U. S. 400, 85 S. Ct. 1065, 13 L.Ed.2d 923 (1965); the right to the assistance of counsel, Gideon v. Wainwright, 372 U. S. 335, 83 S. Ct. 792, 9 L.Ed.2d 799 (1963); etc., etc. This is the fundamental trial process wherein we, as a people, have lodged our faith that justice will fairly be done. The judgment may be hard; it may be soft; we demand only that it be justly arrived at. The constitutional right which is the foundation of our discussion is the affirmative guarantee of a full and fair trial and not some negative reflection thereof. It is the right to stand trial and not the right not to stand trial.

A rapid running of the Bill of Rights makes this truth self-evident. The right not to have troops quartered in one’s private home except in time of war does not imply the equal and correlative right to have them so quartered. The right to bear arms does not imply the equal and correlative right to be excused from bearing arms. The right to be free from unreasonable search and seizure does not imply the equal and correlative right to be subjected to unreasonable search and seizure. The right to be indicted by a grand jury does not imply the equal and correlative right not to be indicted by a grand jury. The right to be free of double jeopardy does not imply the equal and correlative right to be subjected to double jeopardy. The right not to be compelled to be a witness against one’s self does not imply the equal and correlative right to be a witness against one’s self.

The right to a public trial does not imply the equal and correlative right to a private trial. The right to a speedy trial does not imply the equal and correlative right to a delayed trial. The right to a jury trial does not imply the equal and correlative right to a non-jury trial. The right to a jury drawn from the vicinage does not imply the equal and correlative right to a jury not from the vicinage. The right to confront one’s accusers does not imply the equal and correlative right to be shielded from one’s accusers. The right to be free from cruel and unusual punishment does not imply the equal and correlative right to be subjected to cruel and unusual punishment. The right to be free from excessive fines and excessive bail does not imply the equal and correlative right to be subjected to excessive fines and excessive bail,

Put all of them together and what emerges is the self-evident truth that the right to have a fair trial does not imply some equal and correlative right to avoid a fair trial.

2. The Infirm Constitutional Foundation

In locating the cornerstone of her argument, the appellant in her brief is, at least, prophetic:

“The solid foundation for this appeal is the U.S. Supreme Court’s decision in North Carolina v. Alford, 400 U. S. 25; 91 S. Ct. 160; 27 L.Ed.2d 162 (1970).”

Unfortunately, from the appellant’s point of view, that “solid foundation” is made of sand.

In North Carolina v. Alford, the defendant offered a guilty plea to a charge of murder in the second degree, notwithstanding the fact that he denied having been the homicidal agent. After fully probing in all relevant regards the voluntariness of the guilty plea, the trial judge accepted it and sentenced Alford. Alford subsequently had the bad grace to complain that his guilty plea was not voluntary. The sole issue before the Supreme Court was that of whether a denial of criminal agency will, ipso facto, vitiate the voluntariness of a guilty plea, unexceptionable in all other respects. The holding of the Supreme Court was simply that that fact would not invalidate an otherwise voluntary plea. The Supreme Court said, at 400 U. S. 37:

“[W]hile most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty. An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.”

The issue before the Supreme Court was the voluntariness of a plea which was accepted and later challenged by the defendant himself. It did not remotely address the obligation of the judge to accept a plea or the right of a defendant to have a plea accepted. Indeed, the entire argument swirled about the defendant’s claim that his plea should not have been accepted. The Supreme Court continuously referred to a plea as a waiver of the right to stand trial and consistently insisted upon the conditions that it be “voluntarily, knowingly, and understanding^” made. The Court was clear that “[t]he prohibitions against involuntary or unintelligent pleas should not be relaxed.”

One cannot extrapolate from anything in North Carolina v. Alford the notion that a defendant has a constitutional right to have his guilty plea accepted. Indeed, North Carolina v. Alford expressly precludes such a notion. It states clearly that the states have the unquestioned constitutional right to prohibit altogether the practice of taking guilty pleas. The Supreme Court said, at 400 U. S. 39:

“The States in their wisdom may take this course by statute or otherwise and may prohibit the practice of accepting pleas to lesser included offenses under any circumstances.”

To make very certain that its holding in North Carolina v. Alford, dealing only with the voluntariness of a plea made and accepted, could not be twisted as the appellant would now twist it, the Court, at 400 U. S. 38, n. 11, expressly limited its holding:

“Our holding does not mean that a trial judge must accept every constitutionally valid guilty plea merely because a defendant wishes so to plead. A criminal defendant does not have an absolute right under the Constitution to have his guilty plea accepted by the court...”

In Lynch v. Overholser, 369 U. S. 705, 82 S. Ct. 1063, 8 L.Ed.2d 211 (1962), the Supreme Court dealt with a factual situation somewhat closer to that at bar. There, a defendant had sought to withdraw a plea of not guilty and to enter a plea of guilty. Believing that the defendant had a legitimate defense based on insanity, the trial judge refused to accept the guilty plea and required the defendant to go to trial. The ultimate holding dealt with other issues, not here pertinent, but the Supreme Court indicated clearly that a trial judge may always refuse to accept a guilty plea, saying at 369 U. S. 719:

“This does not mean, of course, that a criminal defendant has an absolute right to have his guilty plea accepted by the court. As provided in Rule 11, Fed. Rules Crim. Proc., and Rule 9, D.C. Munic. Ct. Crim. Rules, the trial judge may refuse to accept such a plea and enter a plea of not guilty on behalf of the accused.”

The difference between the constitutional right to stand trial and its converse may be more readily perceived if we pause to appreciate the difference between the two values which are implicated. We, as a people, have a high degree of solicitude to see that no innocent person is wrongfully convicted. We, therefore, hedge the waiver of the right to stand trial with severe limitations. We do not possess the same degree of solicitude over the opportunity of a guilty person to negotiate his way into a lesser sentence. The interests at stake are of a very different order.

3. The Maryland Law

The Maryland Rules of Procedure explicitly state 1) that a judge may always refuse to accept a plea of guilty or strike out a plea of guilty after it has been made and 2) that if he is in a state of doubt as to what the plea should be, he enters a plea of not guilty on behalf of the defendant. The pertinent rules provide:

“Rule 721. Refusal to Plead or to Accept Guilty Plea.
The court may refuse to accept a plea of guilty. If an accused refuses to plead, or if the court has refused to accept a plea of guilty, the court shall enter a plea of not guilty.
Rule 722. Change of Plea of Guilty.
The court may strike out a plea of guilty at any time and enter a plea of not guilty, if it deems such action necessary in the interest of justice.”

Our case law is equally unambiguous. In English v. State, 16 Md. App. 439, 440-441, 298 A. 2d 464, we discussed both the Maryland Rules and the constitutional principle:

“An accused in a criminal proceeding has no constitutional right to plead guilty. He may so plead in Maryland by a rule of procedure, Maryland Rule 720.... However, the trial court may refuse to accept a plea of guilty, Rule 721, and it may strike out a plea of guilty at any time and enter a plea of not guilty, if it deems such action necessary in the interest of justice, Rule 722. Thus the court has broad discretion to refuse to accept a plea of guilty tendered and to strike out a plea of guilty entered. Taylor v. State, 7 Md. App. 558. The accused, cloaked in the presumption of innocence and protected by the full panoply of his constitutional rights, then stands trial upon a plea of not guilty before the trier of fact and law ... to be convicted only upon the State meeting its burden of proving the corpus delicti and his criminal agency beyond a reasonable doubt.”

4. “Catch 22”: Reverse Waiver

The most foreclosing answer to the appellant’s contention, however, is the untold mischief that would be unleashed if her argument were to prevail. She has turned the Constitution on its head. She has taken every constitutional principle militating against the waiver of constitutional rights and pointed them in a diametrically opposite direction. By equating “the waiver of a constitutional right” with “the waiver of the opposite of the constitutional right” she has, in effect, equated “waiver” and “non-waiver.” She has thereby placed the trial judge in an untenable position where, when the proof is in equipoise and does not point cleanly in either direction, he is procedurally paralyzed and unable to move in either direction.

We begin with the appropriate waiver standard, for present purposes, as defined by Johnson v. Zerbst, 304 U. S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461, 1466 (1938):

“A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.”

In the real world of affirmative constitutional rights, this translates:

“A waiver [a plea of guilty] is ordinarily an intentional relinquishment or abandonment of a known right or privilege [the right to stand trial].”

In the appellant’s distorted mirror world of opposites, this becomes:

“A [non-]waiver [the decision to go to trial] is ordinarily an intentional relinquishment or abandonment of [the opposite of] a known right or privilege [a plea of guilty].”

Both propositions cannot be true lest all motion be paralyzed where a defendant’s decision is equivocal, unsure, uninformed and full of doubt.

Where Carnley v. Cochran, 369 U. S. 506, 516, 82 S. Ct. 884, 8 L.Ed.2d 70, 77 (1962), commands, “Presuming waiver from a silent record is impermissible,” the appellant would now have us read, “Presuming non-waiver from a silent record is impermissible.” Where Johnson v. Zerbst commands, “[C]ourts indulge every reasonable presumption against waiver,” the appellant would now have us read, “Courts indulge every reasonable presumption against non-waiver.”

The same stringent standards obviously cannot apply to both the waiver of the right to stand trial and the non-waiver of the right to stand trial (to wit, the election to stand trial). They must cleanly abut, so that anything less than voluntary and intelligent waiver of an affirmative right is, ipso facto, the non-waiver of that right. If we should ever end up in a phantasmagoric hall of mirrors where we could not presume from a silent record either waiver or non-waiver, where we indulged every reasonable presumption against both waiver and non-waiver, we would be frozen into stark inaction. We would be in “the eye” of a hurricane. A defendant who adamantly refused to plead at all, or who flip-flopped hopelessly, could sabotage utterly the trial machinery.

The appellant’s argument, carried out to its logical limits, supplies its own refutation. To reach the correct resolution in this case, we need only ask what the situation would have been if Judge McAuliffe had accepted the appellant’s plea of guilty, notwithstanding her explicit statement, twice repeated, that she wished to go to trial. She, or others similarly situated, would be banging at the appellate gates claiming that her right to stand trial had been unconstitutionally abrogated. Under those circumstances, she would probably be right. She cannot, however, have it both ways. The criminal trial process will not be trapped in a “Catch 22.”

Judgments affirmed; costs to be paid by appellant.

      . The phrase used in the novel of the same name by Joseph Heller to describe the “no win” situation in which World War II airmen found themselves, when they sought to be relieved from combat on the grounds that they had suffered mental breakdowns. To wish to remain in combat was to be crazy, but no one in authority would question the decision. On the other hand, to wish to get out of combat was eminent evidence of good sanity, which status negated the only predicate for getting out of combat. This was “Catch 22.”

        . Johnson v. Zerbst, 304 U. S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461, 1466 (1938).

      . Indeed, a criminal defendant has no constitutional right to testify. Long after the adoption of our Constitution, including its Fifth Amendment, a criminal defendant was universally disqualified as a witness by virtue of his very status as a defendant. That testimonial disqualification was only removed, by statute, in the federal courts in 1878, and in Maryland in 1876. State v. McKenzie, 17 Md. App. 563, 576-579, 303 A. 2d 406.

        United States v. Kobli, 172 F. 2d 919, 924 (3rd Cir. 1949).

      . Singer v. United States, 380 U. S. 24, 85 S. Ct. 783, 13 L.Ed.2d 630 (1965). In Maryland, of course, a defendant does, coincidentally, have a right to a non-jury trial, but this is so by virtue of the common law of Maryland and the Maryland Rules of Criminal Procedure, Rule 741, and not by virtue of any mirror image from the Sixth Amendment. Miller v. Warden, 16 Md. App. 614, 299 A. 2d 862.

      . Platt v. Minnesota Mining & Mfg. Co., 376 U. S. 240, 245, 84 S. Ct. 769, 11 L.Ed.2d 674, 679 (1964).

      . Singer v. United States, supra, 380 U. S. at 35.

      . 400 U. S. at 37.

      . 400 U. S. at 39.


author: Thompson, J.,

text:
    BRIAN B. CHRISTMAN, JR. v. LORRAINE ROSE FARINICK O’CONNOR
    [No. 1084,
    September Term, 1976.]

      Decided May 20, 1977.

    The cause was argued before Thompson, Davidson and Moore, JJ.

      William T. Glasgow and Thomas A. Garland for appellant-cross-appellee.

      William H. Morstein, with whom was Nelson R. Kerr, Jr. on the brief, for appellee-cross-appellant.
   Thompson, J.,

delivered the opinion of the Court.

In this child custody dispute we refuse to be cast in the role of a “Monday Morning Quarterback” by substituting our judgment for the chancellor’s. We shall affirm the decree. When this case was last before us, the chancellor had awarded the custody of the only child of the parties, an eight year old boy, to the mother, and the father had appealed. After remand by this Court, the custody was again awarded to the mother, by the Circuit Court for Howard County, and the father appeals.

In our prior unreported opinion we recited the facts as follows:

“On 31 December 1966, the appellant, Brian B. Christman, Jr. (father), then about age 21, married the appellee, Lorraine Rose Farinick [Christman] O’Connor (mother), then about age 18. One child was born of this marriage, Brian Burdell Christman III, on 6 July 1967. By July, 1969, marital difficulties had become significant and the parties separated. After several weeks the mother advised the father that she had had an affair with a college student and was pregnant. The father returned, and, upon the advice of the Catholic Charities, took her to Puerto Rico where she had an abortion. Thereafter, in September, 1969, the parties became reconciled and moved to Gettysburg, Pennsylvania. This reconciliation did not last long. In October, 1970, the parties separated. In September, 1970, the mother met James F. O’Connor, Jr. (lover), then age 23, who was then married to Janice Paige Cochran Melfa O’Connor, the worn an he had wed on 9 March 1968. On 1 June 1971, though they were each married, the mother and her lover, who had previously engaged in sexual relations but had lived separate and apart, began to live together. Having ‘chosen not to be legally married,’ they simply said vows to one another and then held themselves out as husband and wife. Brian Christman III lived with them and was treated as their son.

“On 15 October 1971, the father, still living in Pennsylvania, obtained a decree of divorce from the mother on the ground of ‘indignities.’ The father did not seek custody and the Pennsylvania court made no award of custody because that court lacked jurisdiction over the child who was then residing with the mother and her lover in another state. On 11 May 1972, the lover became divorced from his wife. In June, 1972, the couple produced a female child, Kelley Arden O’Connor.

“From October, 1970, when the parties finally separated, until the present, the father has lived in Pennsylvania. From the time of the separation in October, 1970, until 1 June 1971, the mother and young Brian lived with her parents in New Jersey. Between 1 June 1971 and March, 1972, they lived with her lover in New Jersey. From there all three moved to Delaware where they and the newly born daughter lived together until 1 February 1973, when they all moved to a home in Columbia, Maryland. Throughout this period of time the father, who was voluntarily paying $80 per month for child support, saw his son on approximately a dozen occasions.

“On 30 March 1973, the father filed a petition in the Circuit Court for Howard County alleging that the mother was not a fit and proper person to have custody of Brian Burdell Christman III and seeking custody of the child for himself. On 18 April 1973, the mother filed an answer denying that she was unfit and seeking permanent custody for herself. On 22 June 1973, after a hearing, Judge Mayfield entered an order granting visiting rights to the father. In another order, entered the same day, Judge Mayfield ordered the Department of Social Services to conduct an investigation into the life and living conditions of the child and to report the results of that investigation to the court. On 30 August 1974, after hearings, the chancellor entered an order granting custody of young Brian to his mother.”

In that case, we discussed the law as follows:

“In custody cases we have repeatedly limited the applicability of the ‘clearly erroneous’ rule to the factual findings underlying the cháneellor’s conclusions as to what constitutes the best interest and welfare of the child, reserving the right to exercise our own best judgment as to the appropriateness of that conclusion. Barsallo v. Barsallo, 18 Md. App. 560, 565 (1973); Mullinix v. Mullinix, 12 Md. App. 402, 412 (1971); Sullivan v. Auslaender, 12 Md. App. 1, 4-5 (1971). Under the facts of this case we have determined that the chancellor was clearly erroneous in arriving at his conclusion that the mother was a fit and proper person to have custody of the child.
“In Maryland there is a presumption of unfitness on the part of an adulterous party. Palmer v. Palmer, 238 Md. 327, 331 (1965); Hild v. Hild, 221 Md. 349, 358 (1960); Pangle v. Pangle, 134 Md. 166, 170 (1919); Widdoes v. Widdoes, 12 Md. App. 225, 237-38 (1971); see Pontorno v. Pontorno, 257 Md. 576, 580-81 (1970). The presumption is rebuttable and, when rebutted, custody may be awarded to the transgressing party. Neuwiller v. Neuwiller, 257 Md. 285, 286 (1970); Kauten v. Kauten, 257 Md. 10, 12-13 (1970); Orndoff v. Orndoff, 252 Md. 519, 522 (1969); Cornwell v. Cornwell, 244 Md. 674, 679 (1966); Mullinix, supra, at 12 Md. App. 411. The presumption of unfitness is overcome by a showing that the adulterous party has repented, has terminated the adulterous relationship, and has changed his or her errant ways so that there is little likelihood of a recurrence of past indiscreet behavior. Kauten, supra, at 257 Md. 12-13; Hild, supra, at 221 Md. 358; Oliver v. Oliver, 217 Md. 222, 228-30 (1958); Trudeau v. Trudeau, 204 Md. 214, 221-22 (1954); Mullinix, supra, at 12 Md. App. 411-12; Widdoes, supra, at 12 Md. App. 235-36. While changing social values might require a change in the public policy of the State of Maryland with respect tó the fitness of an adulterous mother as the custodian of a child, the Court of Appeals has not departed from this mle, and we must apply the law as it is laid down. Widdoes, supra, at 12 Md. App. 236.” (Emphasis added).

Applying those principles to the case, we determined that we were unable to tell from the record what would be in the best interest of the child and remanded the case. The chancellor was directed to determine whether the mother had now repented her illicit conduct and would most likely in the future live an upright and proper life in which the child would have a good moral environment and home life. Additionally, he was directed to keep in mind the rules that while marriage to the former lover is not in and of itself sufficient to show that the person engaged in adulterous or illicit sexual relations is a fit and proper person to raise a child, it is a factor which may be considered in determining fitness, as well as the mother’s attitude towards her past misconduct.

After remand, Judge James Macgill redetermined that the best interest of the child would be to give custody to the mother. He summarized the testimony and the investigations by the social services agencies that had been requested by the trial judge, and found as follows:

“The principal rule by which this Court is to be guided in deciding the issue of custody is that the foremost consideration is the best interests of the child. This Court is not entirely happy with some aspects of Mrs. O’Connor’s character, since it believes that she was less than frank in not making it known that she and her husband were planning to move to Frederick. This fact was of some importance in view of Brian’s testimony that he wanted to remain where he was because of his association with his friends and his interest in the soccer team of which he was a member. This Court also does not believe for a moment that Mr. Kane advised Mrs. O’Connor that Maryland recognizes common law marriages.[] On the other hand, it appears that Mr. Christman’s plans for his own future are uncertain. It has been mentioned that at the earlier hearing before Judge Mayfield he had expressed his intention to marry one woman and at the time of the hearing before this Court he expressed his intention to marry another one, even though he had not yet proposed to her. If Brian were removed from his present home and placed in the custody of his father he would be required to make a considerable adjustment. For part of the time he would be in the care of a couple in York who operates a day care center and he might also have to accustom himself to a stepmother in the event that Mr. Christman’s marriage plans materialized. Mrs. O’Connor has, since the last hearing, married Mr. O’Connor and has expressed her intention to lead an upright and moral life. See: Oulette v. Oulette, 246 Md. 604 and Shanbarker v. Dalton, 251 Md. 252. The sincerity of her intentions cannot, of course, be determined with assurance. This Court, with some reservations, is inclined to believe her. The passage of years, moreover, has a wonderful way of working towards respectability.

“The Court of Special Appeals, in its opinion in this case, said in part: ‘That while marriage to the former lover is not, in and of itself, sufficient to show that a person who had engaged in adulterous or illicit sexual relations is a fit and proper person to raise a child, it is a factor which may be considered in determining fitness ... and that the mother’s attitude toward her past misconduct is also a relevant factor to be considered.’ Of course the principal rule by which this Court must make its determination is the rule that the best interests of the child is the overriding factor.

“The recent case of Sartoph v. Sartoph, 31 Md. App. 58 (1976) contains statements which are pertinent to the issue here. The Court in that opinion said:

‘Accepting the chancellor’s finding that the father was a fit and proper custodian of the child, the question now before us is whether, in our best judgment, the chancellor’s award, which transferred Ronald’s custody from the mother to the father, serves Ronald’s best interests.
‘The custody of children should not be disturbed unless there is some strong reason affecting the welfare of the child. To justify a change in custody, a change in conditions must have occurred which affects the welfare of the child and not the parents. The reason for this rule is that the stability provided by the continuation of a successful relationship with a parent who has been in a day to day contact with a child generally far outweighs any alleged advantage which might accrue to the child as a result of a custodial change. In short, when all goes well with children, stability, not change, is in their best interests.
‘Here, the record shows that Ronald has been in the care and custody of his mother his whole life. Since the separation of the mother and father, during the school year he has spent weekdays with the mother and alternate weekends with the father. He spent the last summer with the father, and planned to spend the next summer with him as well. Under this arrangement, Ronald has grown into a healthy, emotionally well-adjusted child, who is doing well at home and at school.
‘In the absence of any evidence that the mother is presently unfit to care for this child, or that the child is experiencing any kind of difficulty, there is nothing in this record which justifies a change in custody. The stability to be provided by a continuation of the child’s present relationship with his mother in his successful living environment far outweighs any alleged advantage which might accrue to him as a result of a custodial change.’

“This Court thinks that the facts in the case at bar warrant a similar conclusion. It therefore finds that the best interest of Brian would be served by continuing his custody with his mother with liberal visitation rights to his father.”

On the very day the present appeal was argued in our Court, the Court of Appeals made changes in the rules we should follow in custody cases. Davis v. Davis, supra. On page 10 of that slip opinion, the Court said:

“... whereas the fact of adultery may be a relevant consideration in child custody awards, no presumption of unfitness on the part of the adulterous parent arises from it; rather it should be weighed, along with all other pertinent factors, only insofar as it affects the child’s welfare.”

In addition, the Court found that our prior concept of our responsibility in custody cases was in error and recited the new rules as follows:

“In sum, we point out three distinct aspects of review in child custody disputes. When the appellate court scrutinizes factual findings, the clearly erroneous standard of Rules 886 and 1086 applies. If it appears that the chancellor erred as to matters of law, fúrther proceedings in the trial court will ordinarily be required unless the error is determined to be harmless. Finally, when the appellate court views the ultimate conclusion of the chancellor founded upon sound legal principles and based upon factual findings that are not clearly erroneous, the chancellor’s decision should be disturbed only if there has been a clear abuse of discretion.” (footnote 4 omitted). Davis v. Davis, supra at 125-26.

This has been further explained by the Court of Appeals in Ross v. Hoffman, 280 Md. 172, 372 A. 2d 582 (1977):

“The teaching of Davis v. Davis, supra, is plain. The ultimate conclusion as to the custody of a child is within the sound discretion of the chancellor. That conclusion is neither bound by the strictures of the clearly erroneous rule, that rule applying only to factual findings of the chancellor in reaching the conclusion, nor is it a matter of the best judgment of the reviewing court. It is not enough that the appellate court find that the chancellor was merely mistaken in order to set aside the custody award. Rather, the appellate court must determine that the judicial discretion the chancellor exercised was clearly abused. This is the principle which controls the review of any matter within the sound discretion of a trial court as distinguished from a judgment falling squarely within the ambit of the clearly erroneous rule.” Id. at 186.

In the instant case we find there have been no errors of law, no clear errors of fact, and there has been no clear abuse of discretion.

In his brief, the appellant argues, of course, without the benefit of the most recent guidance by the Court of Appeals, first that the appellant had established his capacity to care for the child. With this argument we generally agree, subject to the qualifications expressed by Judge Macgill in his opinion quoted above, but this, of course, is not the determining factor. It merely enables appellant to be considered as one of the possible custodians. Second, the appellant points to the language of the trial court concerning his reservations as to the future or conduct of Mrs. O’Connor. By the very nature of life none of us can state with absolute certainty what anyone’s conduct will be in the future. In such a doubtful area it is most important that we give deference to the superior position of the trial judge to make such fine judgments after having seen and heard the parties testify in his presence.

Finally, the appellant argues that the appellee had the burden to establish that she had overcome her prior adulterous disposition. Of course, we now know under Davis v. Davis, supra, that she had no such burden and that her prior adulteries were only one factor to be considered by the trial judge. His opinion evidences most clearly that he gave proper consideration to that factor. We, therefore, affirm the decree of the chancellor awarding custody of Brian Burdell Christman III to Lorraine Rose Farinick O’Connor.

Mrs. O’Connor has filed an appeal alleging that the trial court erred in awarding her support payments in the amount of only $80.00 per month and in awarding only $500 in counsel fees. The record shows that Mr. Christman has been making voluntary payments in support of his son since 1971 and that he, at the time of the hearing below, was voluntarily paying the sum of $80 per month. It also shows that Mrs. O’Connor had never made a claim for a legal order for support until after such procedure was suggested in our prior opinion and after remand to the trial court. As pointed out by the trial judge, she never testified as to the amount of the expenses of the child, although a written statement was filed which showed them to be $209.52 per month. Inasmuch as through the years the parties hereto have been able to work out, between themselves, the amount of child support and in view of Mrs. O’Connor’s failure to seek court ordered support until suggested by this Court and in view of her failure to testify as to the child’s needs and expenses, we cannot say that the chancellor abused his discretion in fixing the support payments at $80, the amount the parties had voluntarily agreed upon prior thereto.

With reference to the counsel fees, the trial judge found as follows:

“Mrs. O’Connor testified that she was working twenty hours per week at two dollars and forty-six cents per hour for The Hecht Company, a department store, to help pay her legal fees in this case. As she expressed it, it would take her twenty years, on such a salary, to pay her lawyer’s fees. Mr. Christman is paid a base salary of ten thousand, eight hundred dollars per annum plus a bonus and the use of a company car. His net pay is three hundred and eight dollars bi-weekly. He testified that he owed his parents forty-five hundred dollars and he owed five hundred dollars on an account with Master Charge, together with one hundred and fifty dollars for a hospital bill. He is presently voluntarily paying to Mrs. O’Connor the sum of eighty dollars per month for the support and maintenance of Brian. His expenses, including the payment for support, appear to be something in excess of five hundred dollars per month. His net income per month, as this Court figures it, amounts to approximately six hundred and sixty-seven dollars. Under the circumstances this Court concludes that Mrs. O’Connor should be allowed a fee of five hundred dollars for her counsel.”

It was stipulated that Mrs. O’Connor had incurred counsel fees totalling $4,730.50 in the two trials before the chancellor and in the prior appeal, of which she had paid the sum of $1,168.00, leaving a balance of $3,562.50 and that her counsel would testify that the fees were reasonable. After reciting the facts we have quoted above, the chancellor awarded her $500 toward her counsel fees. We think in this area the chancellor abused his discretion and a total fee of $1,500 would be appropriate.

Decree affirmed except counsel fees increased from $500 to $1,500.

Appellant to pay the costs.

      . See Davis v. Davis, 280 Md. 119, 372 A. 2d 231 (1977).

      . Two different chancellors have awarded custody to the mother.

      .“ While it is true that in Mullinix custody was awarded to the mother, who was continuing her relationship with her lover, it was done so only on condition that such indiscretion cease immediately and because of overwhelming evidence of her fitness.”

      . [Mrs. O’Connor had testified that Mr, Kane, an attorney, had advised her she was legally married as the result of a common law marriage to Mr. O’Connor.]


author: Lowe, J.,

text:
    SCOTT & WIMBROW, INC. v. WISTERCO INVESTMENTS, INC. et al.
    [No. 1089,
    September Term, 1976.]

      Decided May 20, 1977.

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

      Peter Ayers Wimbrow, III, for appellant.

      Sally D. Adkins, with whom were Raymond S, Smethurst, Jr, and Adkins, Potts & Smethurst on the brief, for appellees.
   Lowe, J.,

delivered the opinion of the Court.

At issue upon this appeal from the Circuit Court for Worcester County is the propriety of the action of the chancellor in sustaining without leave to amend the demurrer of appellees, Wisterco Investments, Inc. and its codefendants, to the bill of complaint to enforce a mechanics’ lien filed by appellant Scott & Wimbrow, Inc. We find the chancellor’s reasoning eminently sound, and we affirm his decree.

The peculiar advantage of a mechanics’ lien over the more conventional debtor’s suit was substantially diminished by the holding of Barry Properties v. Fick Bros., 277 Md. 15. The lien that once attached on the simple say-so of a claimant must now be proved at a preliminary hearing. The proceeding to enforce the lien was transformed by Barry into a proceeding to establish a lien, Landover Assoc. Lmt’d v. Fabricated Steel Products, Inc., 35 Md. App. 673 (1977). The procedure was formalized by the Legislature by Laws 1976, Ch. 349, § 3, effective May 4,1976, amending Md. Code, Real Prop. Art., § 9-105, to overcome the constitutional prejudgment impediment pointed out by Barry. While there may still be some procedural advantages in the obtention of a mechanics’ lien instead of pursuing an action at law on the contract, there is at least one disadvantage. Because the mechanics’ lien proceeding is still in rem, the collectability of the debt is limited to the particular property described in the lien claim, see Landover Assoc. Lmt’d v. Fabricated Steel Products, Inc., supra, while a judgment on the debt is in personam and subjects all of the properties of the judgment debtor to its claim.

When one considers that a mechanics’ lien exists only by virtue of Md. Code, Real Prop. Art., § 9-101, et seq., the mechanics’ lien statute, Himelfarb v. B & M Weld. & Iron Wks, 254 Md. 37; Freeform Pools v. Strawbridge, 228 Md. 297; and that there can be no lien for anything that does not fall within the provisions of that law, Caton Ridge v. Bonnett, 245 Md. 268, a careful reading of that statute reveals the relief provided by it to mechanics and material men is narrowly circumscribed, even when liberally construed. See Himelfarb, supra; Johnson v. Metcalfe, 209 Md. 537.

A mechanics’ lien provides a peculiar protection to those who have provided skills or materials in the construction or reconstruction of a building, and the lien is essentially against the building itself. Md. Code, Real Prop. Art., § 9-101 (a). Only so much land as is covered by the building is subject to the lien and

“as much other land, immediately adjacent and belonging in like manner to the owner of the building, as may be necessary for the ordinary and useful purposes of the building. ...” Real Prop. Art., § 9-102,

■but it is clear from the legislative history of the mechanics’ lien law that the land is only incidentally involved.

When initially enacted in 1838 by Laws of Md., Ch. 205, the lien was limited to work done in the erection of a building. In 1910, Laws of Md., Ch. 52, the claim was broadened to include materials used in the building. It was not until 1943, Laws of Md., Ch. 982, that the lien was extended to include debts for work done on the land adjacent to the building. That act specifically included grading, filling and landscaping in the “work done for or about” the building. Finally, in 1953, Laws of Md., Ch. 759, suppliers were permitted a lien “for materials furnished for or about the same ....”

Two essential prerequisites for a lien (or a claim for a lien) emerge from this brief analysis. First, the nature or kind of work and the kind and amount of materials furnished must be specified to determine if that work and material were “for or about the building.” Secondly, the owner of the building, the latter’s locality, and a description sufficient to identify the building must be provided. These simple requirements, together with noting the amount claimed and the time the work or material was supplied, are all that was necessary to file a mechanics’ lien claim. Real Prop. Art., § 9-105 (c).

Appellant’s simplified version of compliance with § 9-105, was as follows:

“Notice is given by Scott & Wimbrow, Inc. referred to as lienholder, as follows:
1. Lienholder claims a lien against the structures at Lighthouse Sound, St. Martins Neck, Maryland, and against the property on which such structure is situated, which property is more particularly described in the attached Exhibit ‘A’.
2. Montego Bay Development Corporation, Fountainhead Condominiums, Ocean City, Maryland 21842, Wisterco Investments, Inc., North Park Drive Ext., P. O. Box 1992, Salisbury, Maryland 21801, and William R. Bloxom, Revels Neck Road, Princess Anne, Maryland 21853 referred to as owners, are the legal owners of the real property described above.
3. Lienholder has furnished materials and provided services as shown in Exhibit ‘B’ and has not received payment.
4. Pursuant to Real Property §9-105 Md. Code Am., lienholder claims a lien against the above described property, and against the improvements for One Hundred Thirty Thousand, One Hundred Seventy-three Dollars and Twenty-two Cents ($130,173.22).
SCOTT & WIMBROW, INC.
BY PETER AYERS WIMBROW, III, Esq.,
Vice-President and General Counsel.”
ATTEST:
RAYMOND C. McALLISTER, JR.,
Secretary

Although the necessity of clearly setting forth the nature of the claim and a description of the building are as apparent as the reasons for those requirements, Wimbrow’s version contains only convoluted reference to attached deeds and bills which, when examined, completely fail to comply with the statutory requirements of a lien claim. Its idea of a “description adequate to identify the building” was to refer in its first numbered paragraph to the much broader term “structure”, which, while perhaps including a building, see Freeform Pools v. Strawbridge, supra, certainly does not describe one. Even if the building had been adequately described, however, its “locality” was not. Utilizing the plural this time, Wimbrow claimed its lien against “the structures at Lighthouse Sound, St. Martins Neck, Maryland”. It then refers to an attached deed wherein the “property is more particularly described”. That more particular description sets forth three tracts of land by metes and bounds. The one denominated “Lighthouse Sound” consists of 713 acres, wherein are situate, somewhere we are left to assume, the “structure” or “structures” so vividly described by Wimbrow against which it desired the lien to attach.

Given this description as the foundation of Wimbrow’s bill of complaint to enforce the mechanics’ lien, we need hardly go beyond it to hold that the chancellor was correct in sustaining appellees’ demurrer to the bill. However, it becomes pertinent subsequently to point out further defects in the bill to which the demurrer was also addressed. Wimbrow’s version of setting forth “the nature and kind of work or the kind and amount of materials furnished” was to attach to its complaint a packet of “exhibits” in the nature of bills. These indicated that they represented $130,000 worth of fill dirt and services consisting of moving earth by dozer, crane and elevator pan. It is impossible to determine from them whether the work and material were of the kind which can subject a building or buildings and immediately adjacent land to a mechanics’ lien. The only fill dirt or earth moving which can evoke a lien must be “for or about a building” and its “immediately adjacent” land, and is limited by § 9-101 to

“the grading, filling, landscaping, and paving of the premises.” (emphasis added).

It is perhaps possible, but hardly probable, that appellant provided $130,000 worth of grading, filling, landscaping and paving for a single building and its “premises”. Yet if we were to guess that Wimbrow claims such services and material for more than one building’s premises — which conjecture it invites by using both the singular and plural of “structure” in its description — it has failed to comply with § 9-105 (d), which states that when there is a claim against two or more buildings owned by the same person, the claimant

“ ... shall designate at the same time the amount he claims is due him on each building.”

We find Wimbrow’s contention upon appeal that the entire tract of 713 acres (if not the two additional parcels also described in the deed appended to the bill of complaint) consists of a single lienable unit — “because it is all necessary for the enjoyment and usage of the buildings” — to be spurious. The chancellor may not assume facts not properly pleaded, see Petroli v. Baltimore, 166 Md. 431, and the description of structures, which happen to be a building or buildings, to which “premises” consisting of 713 acres would be “immediately adjacent”, would entail quite an assumption.

Wimbrow further contends that because there existed a statutory solution for its own defective pleading had appellees only sought it as permitted by § 9-102 (b) (which allowed the appellees to apply for a designation of boundaries of the land appurtenant to the building) we should preclude the alternate remedial route of demurrer chosen by appellees. Such an argument also “smells of the lamp.” There could be no designation of boundaries of land appurtenant to a building when there is no “building” designated, described or located in the lien claim. Furthermore, the existence of one remedial avenue does not preclude the election of another, and a demurrer is proper to determine the sufficiency of facts in the proceeding to enforce (or establish) a lien. See Lynn v. Goldman, 216 Md. 562.

The demurrer was obviously properly sustained for failure to describe the building or buildings, for failure to situate them in a reasonable locale, and for failure to describe the nature or kind of work or the kind and amount of materials furnished.

Leave to Amend

Despite the general trend under Md. Rule 320 to permit amendments liberally, “in order to promote justice”, Crowe v. Houseworth, 272 Md. 481, 485; Staub v. Staub, 31 Md. App. 478, 480-481; we find no abuse of the trial judge’s discretion in denying appellant leave to amend. The Legislature did expressly state its intention to extend or even expand the liberal leave to amend in mechanics’ lien proceedings. Md. Code, Real Prop. Art., § 9-110; see also Wilhelm v. Roe, 158 Md. 615; Real Estate Co. v. Phillips, 90 Md. 515. Section 9-110 provides:

“SUBTITLE A REMEDIAL LAW: AMENDMENT TO PROCEEDINGS.
This law is remedial and shall be so construed to give effect to its purpose. Any amendment shall be made in the proceedings, commencing with the claim or lien to be filed and extending to all subsequent proceedings, as may be necessary and proper. However, the amount of the claim or lien filed may not be enlarged by amendment.”

But we find Md. Rule BG 72 dispositive on the facts of this case. The rule provides in pertinent part:

“Pleadings in an action filed under this Subtitle may be amended pursuant to Rule 320 except that after the expiration of the period within which notice of the lien claim must be given, or the petition to establish the lien must be filed if notice is not required, no amendment shall be permitted which will... (2) materially alter the description of the land.”

Although the cases denying leave to amend by substituting different properties for those described in the lien, e.g., Brunecz v. DiLeo, 263 Md. 481 and Gault v. Wittman, 34 Md. 35, might be distinguishable from the case at bar because here the description sought to be altered concerns the same property, and in those cases a different property altogether was intended, Md. Rule BG 72 does not recognize the distinction. Considering the nature of the claim, it is apparent that the amendment would “materially alter the description of the land”. Indeed, in view of the numerous and essential failures of appellant’s claim to comply with § 9-105 (c), amendment would permit a claim where none had been before. Not only would the amendment have to describe a building or buildings, but it would have to locate each building on the premises upon which the work was done or material used, § 9-101, or on premises located immediately adjacent to the building and necessary for its ordinary and useful purposes, § 9-102. Whether there is a large number of buildings or a small number of buildings involved, to describe restrictively anew 713 acres in conformity with the statutory limitations would be to make a material alteration of the description of the land.

At argument Wimbrow explained that it chose the time and expense of an appeal on a lien claim (which would give it no apparent creditor priority in light of Barry, supra), instead of filing a suit in a general creditor proceeding, (which would provide a broader source than the restricted fund available to a mechanics’ lien, see Rust v. Chisolm, 57 Md. 376), “to satisfy [its] academic curiosity”. While such reasons do not. justify an expenditure of judicial time, we hope Wimbrow has learned the answer to whatever may have puzzled it. We find it curious that for such obvious answers one would expend the costs of appeal rather than carefully read the statute.

Decree affirmed.

Costs to be paid by appellant.

      . Because the facts giving rise to this case occurred prior to the effective date of the 1976 revision of the mechanics’ lien law, the sections of the Real Property Article we use are those which existed prior to May 4, 1976. We do not suggest, however, that our result would be different if the more recent wording was applicable.

      . Real Prop. Art., § 9-105 (c. provides:
      “fe] Contents ofdaim. — Every elaim shall set forth:
      (1) The names of the claimant, the owner or refuted owner of the building, and if the contract is made by the claimant with the contractor, architect, or builder;
      (2) The amount or sum claimed to be due, the nature or kind of work or the kind and amount of materials furnished, and the time when the materials were furnished or the work done; and
      (3) The locality of the building, and a description adequate to identify the building.”

      . To the extent that there may be a conflict between Md. Code, Real Prop. Art., § 9-110 (now § 9-112) and Md. Rule BG 72, we note that the Court of Appeals adopted the current version of the Rule by order of July 12, 1976, effective August 9, 1976. The order stated, inter alia,

      “that the Rules changes hereby promulgated shall govern the courts of this State and all parties and the counsel in all actions and proceedings commenced on and after the effective date of this Order; and, insofar as practicable, shall apply to all actions and proceedings then pending”.
      Rule BG 72 is therefore applicable here, and it has the force of law until rescinded, changed or modified by the Court of Appeals or otherwise by law. Md. Const., Art. IV, § 18A. A rule adopted subsequent to a statute prevails until the rule is repealed or modified by a subsequent statute or rule. County Fed. S. & L. v. Equitable S. & L., 261 Md. 246; Hensley v. Bethesda Metal Co., 230 Md. 556. The most recent version of Md. Code, Real Prop. Art. § 9-110 was effective May 4, 1976. Accordingly, we rest our decision on Md. Rule BG 72.


text:
    CLYDE E. BRADY v. STATE OF MARYLAND
    [No. 844,
    September Term, 1976.]

      Decided June 7, 1977.

    The cause was argued and reargued before Thompson, Moore and Melvin, JJ.
    Argued and reargued by James K. Carmody, Assigned Public Defender, for appellant.
    Argued and reargued by Gilbert H. Robinette, Assistant Attorney General, with whom were Francis B: Burch,

      Attorney General; Warren B. Duckett, Jr., State’srAttorney for Anne Arundel County, snd~RonaldM. Naditch, Assistant State’s Attorney for Anne Arundel County, on the brief, for appellee'.
   Thompson, J.,

delivered the opinion of the Court.

This is an appeal by Clyde E. Brady, appellant, from an order of the Circuit Court for Anne Arundel County dated May 27, 1976, denying a motion to dismiss certain indictments. In that motion and on this appeal appellant alleges he was denied his constitutional rights to a speedy trial and due process of the law. The appeal was filed prior to the trial. After argument before this Court on the merits the case was reargued on the question of appealability.

The record in this case, unlike the record in most such cases, shows that the facts were fully developed in a hearing before the trial judge. We wish to publicly commend counsel for their diligence and call upon other defense counsels and State’s Attorneys to follow their splendid example.

Appellant was arrested on November 10, 1973, for the murder of John E. Owens. He was indicted on December 11, 1973, and his counsel entered his appearance on December 28, 1973. Trial was scheduled, for July 16, 1974, but appellant's trial counsel requested a postponement. Trial was rescheduled for September 19, 1974, but the prosecuting attorney was subpoenaed as a witness in an unrelated trial for that date and the case was reset for trial October 2, 1974. When the ease was called for trial the State entered a nolle prosequi on the indictments against the appellant. At that time, the appellant demanded an immediate trial and asked to be released. He was denied release because there was a pending charge of violation of probation. When bond was requested on the probation charge, the State opposed bond on the basis that the appellant was a potential danger to the community, particularly to members of the Owens family; he probably would not return for trial because he was aware that a co-defendant might testify against him; and that it might be dangerous to the appellant to be released because there was a strong feeling in the community against him. Despite the State’s arguments, the appellant was later released in December of 1974.

On April 1, 1975, the appellant was rearrested for his alleged involvement in the murder of John E. Owens. He was indicted on June 9, 1975 as an accessory after the fact, and on September 8, 1975, as the murderer of John E. Owens. Trial was scheduled on both indictments for November 18, 1975, but was postponed by appellant’s trial counsel. Appellant concedes in his brief:

“Since September 11, 1975 the State has often sought to set a trial date but appellant’s counsel asked that trial dates be deferred, pending the outcome of his Motion to Dismiss [now under consideration] which was filed on January 14, 1976.”

Ronald M. Naditch, the Assistant State’s Attorney who was handling the prosecution of the appellant, testified that he wanted to try Alfred R. Howard, a co-defendant, first, in order to get Howard to testify against the appellant. He did not believe he could successfully prosecute the appellant without Howard’s testimony. Naditch caused the appellant to be arrested on April 1, 1975, because he believed that Howard would testify against him as a result of a plea bargain. He expected Howard . to make a statement incriminating the appellant, however, appellant was indicted only as an accessory after the fact because Howard’s statement did not inculpate the appellant in the actual murder. On September 4, 1975, Naditch interviewed a prisoner named David Henkensiefken about an unrelated ease, and Henkensiefken gave Naditch a statement that was inculpatory to the appellant in the present ease. Prior to the interview, Naditch did not know Henkensiefken. Naditch presented Henkensiefken’s statement and other evidence to the grand jury, which returned the second murder indictment.

Alfred R. Howard was arrested on November 16, 1973, for the murder of John E. Owens. Trial was scheduled for February 20, 1974, but postponed by consent of the State and Howard. Trial was rescheduled for August 28, 1974, by consent of the State and Howard, but postponed at the request of Howard. On August 20, 1974, the State requested a trial date of August 27, 1974, but Howard's trial counsel advised that that date was not convenient, and that he required additional time to prepare for trial. A trial date of November 19, 1974, was set as a result of the efforts of the State. Howard had the case removed, and trial began on April 1, 1975. During the trial, a plea bargain was made wherein Howard agreed to testify against the appellant.

Appealability

This Court in Neal v. State, 20 Md. App. 20, 314 A. 2d 710 (1974), held that we would no longer follow the rule that there could be an immediate appeal from a pretrial order denying a motion presenting the questions of double jeopardy or the failure to grant a speedy trial. We said:

“We believe that the time has come for us to reconsider the position we have taken on the basis of Jones [241 Md. 599, 217 A. 2d 367 (1966)] and Harris [194 Md. 288, 71 A. 2d 36 (1950)]. On only one of the 25 occasions when the claim was before the Court of Appeals and resolved in a reported opinion did it hold the right to a speedy trial had been unconstitutionally denied, and that one case was Jones. At the time we decided State v. Lawless, 13 Md. App. 220, on 21 October 1971, we had dealt with the question in 59 reported opinions, including Lawless. On only two occasions did we hold that the right to a speedy trial was unconstitutionally denied, Wilson v. State, 8 Md. App. 299, and Caesar v. State, 10 Md. App. 40. See note 4, 13 Md. App. at 226. Since Lawless, we have considered a claim of the denial of a speedy trial in 19 reported opinions, in none of which did we find that the constitutional right was violated. Since the inception of our Court we have had the question of double jeopardy before us in some 18 reported cases. In only two, State v. Campbell, 7 Md. App. 538, and Jones v. State, 17 Md. App. 504, did we find that another trial would put the accused twice in jeopardy. The piece-meal appellate review of immediate, and, with very few exceptions, patently frivolous appeals from a refusal to dismiss an indictment on an allegation of denial of a speedy trial or of double jeopardy does just what the Court in Lee [161 Md. 430, 157 A. 723 (1931)] anticipated. ‘[Proceedings in every criminal case, great or small, may be stopped and delayed while the accused prosecutes an appeal * * * [adding] just so much to the resources of those who might find vexatious delays advantageous, and [multiplying] appeals in criminal cases * * * Lee, at 434. We believe that it is now more beneficial to the proper administration of criminal justice and of little detriment in the circumstances to the vast majority of those accused of crime, that we follow the rulings of Lee and Pearlman [226 Md. 67, 172 A. 2d 395 (1961)] rather than the apparent exceptions of Jones and Harris.

The Court of Appeals granted certiorari and reversed that part of our decision pertaining to double jeopardy. Neal v. State, 272 Md. 323, 322 A. 2d 887 (1974). In Taylor v. State, 22 Md. App. 370, 323 A. 2d 648 (1974), we examined the holding in Neal v. State, supra 272 Md. 323, and concluded:

“The express message of the Court of Appeals in Neal is unmistakable. A denial of a motion to dismiss an indictment on the ground of double jeopardy is appealable immediately. The underlying message of Neal is equally unmistakable, i.e., our decision in Neal v. State with respect to the holding that a denial of a motion to dismiss for lack of speedy trial is interlocutory and thus not immediately appealable is still viable.” Id. at 372.

The Court of Appeals first recognized the right of an immediate appeal in speedy trial cases in Harris v. State, supra. In 1950, when Harris was decided, criminal appeals in Maryland were a rarity, whereas now they are routine, and as pointed out in detail in Neal v. State, supra 20 Md. App. 20, questions concerning speedy trials arise in many of them. The rule allowing an immediate appeal in such cases is burdensome because in most cases it means that there will be two appeals instead of one. As we pointed out in Taylor v. State, supra and Neal v. State, supra 20 Md. App. 20, the delay involved in the appeal frequently serves as a weapon in the hands of an accused. In addition to the time that is required to process the appeal in this Court, such a hypothetical accused could, and frequently does, petition the Court of Appeals for certiorari. After that Court has acted upon the petition, the accused still has ninety days in which to petition the Supreme Court of the United States for a writ of certiorari, all of which will further delay the trial.

As early as Harris v. State, 6 Md. App. 7, 249 A. 2d 723 (1969), this Court pointed out under Maryland Rule 725 a, the trial judge could withhold ruling on such a motion, for determination at the trial of the general issue. Under new Maryland Rule 736 e which becomes effective July 1, 1977, a motion to dismiss an indictment for denial of a speedy trial can be disposed of at the trial on the merits. Many times there are good reasons to postpone decision on such a motion until the trial, especially where the issue of prejudice to the accused is raised. It would seem that if a trial judge, after proper hearing before trial, felt that the motion should be granted, he would rule on it immediately. If he had doubts concerning prejudice, or for any other reason felt that the motion should be denied, he would quite properly withhold decision thereon until after the trial. As we said in Taylor v. State, supra at 374, the right to immediate appeal should not be dependent upon whether or not the trial judge withholds his decision.

In Smith v. State, 11 Md. App. 631, 276 A. 2d 228 (1971), we held that there could be an immediate appeal in cases involving preindictment delay, i.e., denial of due process. This question is so intertwined with speedy trial problems that we depart therefrom for the same reasons stated above and expressly overrule Smith v. State, supra, as well as similar expressions in other cases. See State v. Lawless, supra at 225, n.2. We summarily, and without opinion, applied our new speedy trial rule to a case involving preindictment delay in O’Dell v. State, No. 235, September Term, 1976, filed May 14, 1976, cert. denied, Md., Petition Docket No. 151, September Term, 1976, filed July 14, 1976.

Appellant’s counsel concedes that the setting of a precedent is important but he argues that the appellant’s rights are important to him and that he has chosen to appeal even though he is incarcerated pending the disposition of the case. In view of this, we will express our thoughts on the issues by way of dicta. Eastgate Associates v. Apper, 276 Md. 698, 704, 350 A. 2d 661 (1976).

Due Process of Law

The appellant contends that when the State entered a nolle prosequi on October 2, 1974, over his objection, and later indicted him for the same offense, he was denied due process of the law. This contention is two-fold. First, it is alleged that the Maryland law as it concerns the State’s right to enter a nolle prosequi amounts to a per se denial of due process. Second, even if the Maryland law does not amount to a per se denial of due process, the use of this tool by the State in this case was “unreasonable, oppressive and capricious.” We do not agree.

Maryland Rule 711 stated that “[a] nolle prosequi of an indictment may be entered by the State’s Attorney only in open court.” The entry of a nolle prosequi under this rule is a matter “within the exclusive -province and discretion of the State’s Attorney.” State v. Hunter, 10 Md. App. 300, 304, 270 A. 2d 343 (1970). It has been well established that the State may enter a nolle prosequi to an indictment at any time before jeopardy'attaches and that the defendant may be reindicted for the same offense. Irvin v. State, 276 Md. 168, 172, 344 A. 2d 418 (1975). There is no question that jeopardy had not attached in this case. See Blondes v. State, 273 Md. 435, 330 A. 2d 169 (1975). Appellant goes to great lengths to show that the effect of this rule is to allow the prosecution to postpone a case without being required to show reasonable need, while the defendant is required to show extraordinary cause in order to obtain a postponement. Md. Code, Art. 27, § 591. Md. Rule 740. He contends that the 'granting to the State of this weapon, not in the arsenal of the defendant, is a denial of due process. Appellant’s argument would have merit if the entry of a nolle prosequi left the accused under the cloud of public accusation and delayed his opportunity to prove his innocence. Its effect, however, is that the accused no longer remains under the imputation of guilt. The abandonment of the prosecution cancels that indictment and restores him to his original position. Barrett v. State, 155 Md. 636, 638, 142 A. 96 (1928). In this manner it differs entirely from a postponement. An accused has no right to be tried on a particular indictment. Greathouse v. State, 5 Md. App. 675, 685, 249 A. 2d 207 (1969).

Although an accused cannot force the State to try him on the particular indictment, if the delay in bringing the second indictment was “unreasonable, oppressive and capricious” such^ delay may constitute a denial of due process of law. Greathouse v. State, supra at 687. It is certainly not “unreasonable” for the State to nolle prosequi a case when it did not'have sufficient evidence to support a conviction. At a later date when it is determined that it did have sufficient evidence to support the conviction, it was its duty to try to obtain a conviction. The State diligently attempted to make a competent case, and it obtained the second indictment within a reasonable time after it felt it had sufficient evidence.

For the delay to be “oppressive” the record must show prejudice. In United States v. Marion, 404 U. S. 307, 324, 92 S. Ct. 455, 30 L.Ed.2d 468 (1971), the Supreme Court clearly spelled out that preindictment delay will not violate the due process clause of Amendment 5 of the Constitution of the United States absent actual prejudice to the defense. Appellant, in his brief, concedes that the delay had not prejudiced the defense of his case, in terms of securing evidence or finding witnesses, but he contends that his case has been weakened because the delay has strengthened the State’s case. Constitutional safeguards are designed to allow an accused every opportunity to present his defense and to prevent the State from gaining an unfair advantage. They are not designed to prohibit the State from lawfully gathering evidence. Barker v. Wingo, 407 U. S. 514, 534, 92 S. Ct. 2182, 2194, 33 L.Ed.2d 101 (1972), held a delay for the purpose of trying a co-defendant in order to secure his testimony against the appellant is not itself oppressive. See also United States v. Fairchild, 526 F. 2d 185 (7th Cir. 1975), cert. denied, 96 S. Ct. 1682 (1976).

The actions of the State could not be considered “capricious” for it is clear that there was a steady intent and purpose, not adverse to the fair administration of justice, to bring the appellant to trial if there was sufficient evidence against him. After the State entered the nolle prosequi, it continued to recommend that the appellant be held without bond or on a very high bond for a violation of probation. While it produced other arguments, it appears that the principal motivation behind this argument was the desire to keep the appellant in the jurisdiction until such time as there might be sufficient evidence to bring a second indictment. The fear that the appellant was possibly considering removing himself from this jurisdiction was founded on a statement by defense counsel that appellant had expressed this desire. There is no question that appellant violated his probation whether the violation was simply technical or more substantial. In setting bond until the probation hearing, the trial judge had to consider an amount sufficient to insure the appellant’s attendance at the hearing; At that hearing it was the duty of the State to bring to the attention of the trial court every fact that would have any bearing on the appellant’s appearance for the probation violation. His alleged involvement in the Owens murder was obviously a factor for the judge to consider in fixing bond. We find that the record does not support the contention that the appellant was denied due process, and would so hold if the question were before us.

Speedy Trial

Length of the Delay

Appellant argues that in considering the length of the delay we should consider all of the time that has passed since the original indictment. We disagree. In Ward v. State, 30 Md. App. 113, 351 A. 2d 452 (1976), we held that the time which elapsed after an accused was arrested counted only until the time he was released after a preliminary hearing. Although that case involved dismissal at a preliminary hearing instead of the nolle prosequi of an indictment, we think it is controlling particularly in view of the similarity of facts, in that the State was waiting to secure the testimony of a co-conspirator in order to secure sufficient evidence to support its charge. See Greathouse v. State, supra at 686.

In considering the length of the delay, we will therefore look at the time between the original arrest, November 10, 1978, and the entry of the nolle prosequi, October 2, 1974, and April 1, 1975, the date of the rearrest, until September 11, 1975, a period in excess of 16 months. The appellant concedes that after September 11, 1975, the State did everything possible to get the case tried. This period of 16 months is sufficiently long under the circumstances of this case to require the balancing process set forth in Barker v. Wingo, supra; Jones v. State, 279 Md. 1, 367 A. 2d 1 (1976); and State v. Wilson, 35 Md. App. 111, 371 A. 2d 140. The factors to be considered in addition to the length of the delay are the following: (1) prejudice to the defendant; (2) the defendant’s demand for a speedy trial; and (3) the reasons for the delay.

Prejudice

Appellant concedes that his defense was not in any way weakened by the delay. He argues that because the State’s case was improved by the delay, he was prejudiced. We do not consider, under the cases heretofore cited under our discussion of due process, that the appellant’s argument has any merit. It is not the same thing to say that an improvement in the State’s case results in automatic prejudice to the defendant’s case, although it is easy to see how such a superficial argument can be made.

The appellant introduced testimony to show that while incarcerated for the period of more than nineteen months, he developed a skin rash and underwent the usual prejudice to his person that most persons incarcerated for such a period would undergo. In other words, we consider this incarceration prejudice to the appellant in the same manner we would consider such a period of imprisonment prejudicial to any other individual.

Demand for a Speedy Trial

It appears that the appellant never made a demand for a speedy trial. It is true that after the State filed the nolle prosequi in October, 1974, the appellant then insisted upon immediate trial, but at that time there was nothing to be tried. Greathouse v. State, supra at 686. We note that after he was reindicted and the defense felt the State was in possession of adequate testimony to secure a conviction, there was no demand for a speedy trial — only a motion to dismiss filed in January of 1976. In considering this objection, we will consider particularly the. language of Barker v. Wingo, 407 U. S. at 528-529:

“We reject, therefore, the rule that a defendant who fails to demand a speedy trial forever waives his right. This does not mean, however, that the defendant has no responsibility to assert his right. We think the better rule is that the defendant’s assertion of or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right. Such a formulation avoids the rigidities of the demand-waiver rule and the resulting possible unfairness in its application. It allows the trial court to exercise a judicial discretion based on the circumstances, including due consideration of any applicable formal procedural rule. It would permit, for example, a court to attach a different weight to a situation in which the defendant knowingly fails to object from a situation in which his attorney acquiesces in long delay without adequately informing his client, or from a situation in which no counsel is appointed. It would also allow a court to weigh the frequency and force of the objections as opposed to attaching significant weight to a purely proforma objection.” (footnote omitted) (emphasis added).

We consider the demand after the State had entered a nolle prosequi on the original indictments to be a “purely pro forma objection” and therefore, entitled to little weight in the balancing process in which we are now engaged.

Reasons for the Delay

For the initial period of eleven months from November 10, 1973 until October 2, 1974, appellant makes no assertion that this period should be “charged to the State.” He concedes that there was no delay “other than normal for that period.” He continues to say that “discovery and other preparation were proceeding with orderly expedition.” We find that the second period from April 1, 1975 until September 11, 1975, must be weighed against the State, although some of this time must be allowed for “orderly procedure.” Epps v. State, 276 Md. 96, 110, 345 A. 2d 62 (1975). The record does not indicate any “deliberate attempt to hamper the defense” as would be weighed heavily against the State. See Jones v. State, supra. The period after September 12, 1975 would be weighed against the appellant, but we do not consider it as appellant states in his brief, “All delays from that time are admittedly at the insistance of appellant for the purpose of preparing and filing his motion to dismiss.”

Conclusion

Under the four-factor analysis we have (1) a 16 month delay; (2) only five months of which are attributable to the State; (8) no actual prejudice to the appellant in excess of that incurred by any other person so incarcerated; and (4) no valid demand for a speedy trial. After weighing these four factors we would hold, if the question were before us, that there has been no denial of appellant’s right to a speedy trial.

Appeal dismissed. Appellant to pay the costs.

      .“ Approximately one-quarter of the opinions of the Court of Special Appeals are reported. Claims of violation of the right to a speedy trial or the guarantee against double jeopardy have been presented to us in cases many more times than is reflected in the reported opinions and have been disposed of in unreported per curiam opinions as not of ‘substantial interest as a precedent,’ pursuant to the mandate of Rule 1092 b. In all likelihood, had we found in any of those cases that the right to a speedy trial had been denied or the guarantee against being twice put in jeopardy had been violated, the opinion would have been published." Id. at 28, 29.