author: Moore, J.,

text:
    KAREN B. GHASSEMIEH et al. v. ELAINE SCHAFER
    [No. 763,
    September Term, 1981.J

      Decided July 8, 1982.

      The cause was argued before Thompson, Móore and MacDaniel, JJ.

      Albert McComas, with whom were R. Roger Drechsler and Lord, Whip, Coughlan & Gréen, P.A. on the brief, for appellants.

      J. Thomas Caskey, with whom were Semmes, Bowen & Semmes on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

In this case, a 13-year-old girl in eighth grade pulled a chair away from her teacher who fell to the floor, hurting her back. Approximately one month less than three years later, the teacher filed a negligence action against her former pupil in the Circuit Court for Baltimore County (Sfekas, J.). From a judgment for the defendant, this appeal is taken. For the reasons stated herein, we shall affirm.

I

The appellant, Karen B. Ghassemieh, age 29 on February 24, 1977, was a teacher of art with the Baltimore County Schools, assigned to Old Court Junior High. On that date, she was teaching an 8th grade class of "above average” students, including the appellee, Elaine Schafer, then 13. While the teacher was about to sit down to assist another student, Elaine pulled the chair away. At trial the teacher described what happened:

"I got to Terri’s seat and because I am very tall it is my practice either to kneel down next to the children or to sit down. Terrie got up very quickly and I went to sit in her seat. As I went to sit down, I tucked the chair underneath me as I usually do. As I relaxed to sit down, the chair was gone. It was pulled out and I fell to the floor hurting my back.”

Elaine Schafer testified that she pulled the chair away "as a joke.” She further testified on direct examination:

"Q. When you pulled the chair, was there any doubt in your mind that she would miss the chair and fall to the floor?
A. I knew she was going to fall to the floor.
Q. Was that your intent?
A. Yes.”

On cross-examination she repeated that, "I did it as a joke.” She also said that she did not intend any injury. Thus:

"Q. You mean you did not intend to have any harm done to her, is that right?
A. I intended for her to fall to the floor, not for her to be injured.”

The declaration was not filed until January 24, 1980, although in answers to interrogatories, Mrs. Ghassemieh said she was treated for back problems throughout 1977 and 1978. Count One alleged that the defendant "carelessly and negligently” moved the chair; Count Two, the claim of the teacher’s husband, incorporated "all the allegations of negligence and want of due care as referred to in Count One hereof,” and alleged that the husband had been caused to incur expenses and losses by "the carelessness, recklessness and negligence on the part of the defendant....” Count Three also incorporated "all the allegations of negligence and want of due care as referred to in Count One hereof,” and alleged that "as a direct result of the carelessness, recklessness and negligence of the Defendant, Elaine Schafer, as more fully set out in Count One hereof,” the plaintiffs had suffered injury to their marital relationship.

The trial was bifurcated, on motion of the defendant. At the close of the evidence, each side moved for a directed verdict. The appellants’ (plaintiffs’) motion was based on two grounds: (a) the defendant was shown to be negligent as a matter of law and (b) there was no evidence that the plaintiff, Karen Ghassemieh, was contributorily negligent. The appellee’s (defendant’s) motion was predicated on a claim that the evidence established a battery, an intentional tort, and not negligence, as alleged.

Both motions were denied. With respect to the defendant’s motion, the court ruled:

"As to the motion of the defendant, the Court will deny that motion, but I will include in the instructions the definition of a battery and let the jury make the determination whether this in fact was, if it was a negligent act on the part of the defendant or if in fact it was a battery, which would certainly not be encompassed in the action brought by the plaintiff in this case, but I would allow that to go to the jury by way of instruction.”

Before the judge instructed the jury, the following exchange Occurred:

"MR. CASKEY (counsel for defendant/appellee): I would move that the Court present the question to the jury as a question as to the battery versus negligence issue. I would request that the jury be given the instructions as to what constitutes negligence and as to what constitutes battery and to have them answer the question — do you find that it was negligence, battery, or neither?
MR. HUESMAN (counsel for plaintiff/appellant): Well, I think, Your Honor, before I respond to that, I guess a lot would depend on exactly the way the questions are phrased.”

In the instructions which immediately followed, the court began by saying: "The case before you is an action based on a claim of negligence.” Thereafter, negligence was defined in general terms and an instruction was given on contributory negligence, characterized by the court as an "affirmative defense” asserted by the defendant. The court then instructed on battery, as follows:

"The Court has indicated that this is an action in negligence. A battery is an intentional touching which is harmful or offensive. Touching includes the intentional putting into motion of anything which touches another person or the intentional putting into motion of anything which touches something that is connected with or in contact with another person. A touching is harmful if it causes physical pain, injury or illness. A touching is offensive if it offends a person’s reasonable sense of personal dignity.
"If you find, that the defendant acted with the intent to cause a harmful or offensive touching of the plaintiff and that that offensive touching directly or indirectly resulted, then this constitutes a battery and your verdict must be for the defendant, as this suit has been brought in negligence and is not an action in battery.” (Emphasis added.)

At the conclusion of the instructions, trial counsel for the plaintiffs (appellants) excepted as follows:

"Also, we except to that portion of the charge with regard to the defínition of battery. We think under the Maryland law, under the major rule, although we have never been able to find a case in Maryland in that regard, we do believe that it is essential to commit a battery that it contains some of the elements of assault. We believe that it is necessary to show that the defendant actually intended to harm the plaintiff and we believe on the basis of the defendant’s own testimony that she did this as a joke, that she had no intention to commit bodily harm.” (Emphasis added.)

The trial court overruled all objections. With respect to the battery objection, the court did not address the definitional point raised, but said:

"The battery instruction, the Court felt was appropriate in view of the fact that this is an action in negligence, and if the jury would find from hearing the testimony in the case that in fact there was a battery and not negligence, it may very well have the opportunity to make a determination in favor of the defendant.”

Approximately 25 minutes after the jury retired, the court received a request that the definition of battery be given again. Counsel for the teacher objected. The court stated that, in the absence of agreement of counsel, it would decline to repeat the instruction. One-half hour later, the jury returned a verdict for the defendant.

II

The gravamen of the plaintiffs’ appeal is that the trial court erred in giving the following portion of the instruction on battery quoted above:

"If you find that the defendant acted with the intent to cause a harmful or offensive touching of the plaintiff and that offensive touching directly or indirectly resulted, then this constitutes a battery and your verdict must be for the defendant, as this suit has been brought in negligence and is not an action in battery.”

In support of this principal contention, appellants maintain that:

"(1) The mere fact that the evidence adduced may have established that the defendant acted intentionally in pulling the chair out from under the appellant, Karen B. Ghassemieh, does not preclude recovery of damages for a cause of action in negligence.
(2) Assuming, arguendo, that there was a variance between the allegations of the declaration and the evidence adduced, the variance was immaterial and was waived by the defendant.
(3) To permit the defendant to escape liability for her tortious conduct merely because she acted intentionally, rather than negligently, would be fundamentally unjust and contrary to public policy.”

We are confronted with a threshold consideration not raised by the appellee and, therefore, neither briefed nor argued but essentially jurisdictional: Was the appellant’s objection to the battery instruction, quoted above, a sufficient predicate for their position on appeal? They now argue:

"The instruction given by the trial judge was improper because if the jury had found that the defendant acted intentionally in pulling the chair out from under the appellant, Karen B. Ghassemieh, it could nevertheless have awarded damages for negligence.”

And further:

"Thus, a finding of gross negligence or of willful and wanton misconduct may impute a finding of intentional conduct. Consequently, a finding that the appellee had acted intentionally would have been fully consistent with the allegations of the declaration charging negligence. The trial court, therefore, erred in instructing the jury to the contrary. While it is clear that [appellee] intended to pull the chair out from under Mrs. Ghassemieh, it is equally clear that she did not intend to injure Mrs. Ghassemieh, . . ,”

Our problem arises from Maryland Rule 554 (Instructions to the Jury) (1982 ed.), particularly subsections (d) and (e) concerning, respectively, "objection” and "appeal.” Subsection (d) provides in part:

"If a party has an objection to any portion of any instruction given, or to any omission therefrom, or the failure to give any instruction, he shall before the jury retires to consider its verdict make such objection stating distinctly the portion, or omission, or failure to instruct to which he objects and the .ground of his objection.” (Emphasis added.)

And subsection (e) provides in its entirety:

"Upon appeal a party in assigning error in the instructions, shall be restricted to (1) the particular portion of the instructions given or the particular omission therefrom or the particular failure to instruct distinctly objected to before the jury retired and (2) the grounds of objection distinctly stated at the time, and no other errors or assignments of error in the instructions shall be considered by the appellate court. ” (Emphasis added.)

Trial counsel for the plaintiffs did not object, as appellate counsel now objects, to any instruction on battery, but only to "that portion of the charge with regard to the definition of battery.” (Emphasis added.) Trial counsel was objecting to the court’s definition of battery as an "intentional touching which is harmful or offensive,” contending that a battery includes "some of the elements of assault.”

Trial counsel never stated as a basis for his objection that no instruction on battery should be given because this was an action in negligence. The objection at trial was simply that the definition of battery lacked an essential element, i.e., the defendant actually intended to harm the plaintiff. However, intent to do harm is not essential to a battery. The gist of the action is not hostile intent on the part of the defendant, but the absence of consent to the contact on the plaintiffs part. Prosser, Law of Torts, § 9 at 36 (4th ed. 1971). Thus, horseplay, pranks, or jokes can be a battery regardless of whether the intent was to harm. Garratt v. Dailey, 279 P.2d 1091 (Wash. 1955), aff'd, 304 P.2d 681 (1956).

Trial counsel never argued to the trial court that, as contended at oral argument before us, negligence and battery are not mutually exclusive, or that a single intentional act can be the basis for both battery and negligence, or that the jury could award damages for negligence even if a battery had also been proved. Only on appeal do appellants make clear their challenge to the instruction that "this suit has been brought in negligence and is not an action in battery” and if battery were found, "your verdict must be for the defendant.” The trial judge was not given to understand that the plaintiff really objected to any instruction on battery. The judge reiterated his negligence versus battery instruction in explaining why he felt the battery instruction was appropriate, and the plaintiff did not object.

Thus, the objection below did not reach the broader issue raised on appeal, and under Rule 554 (e) it "may not be considered by the appellate court.” Fiege v. Boehm, 210 Md. 352, 364, 123 A.2d 316 (1956). Cf. Sergeant Co. v. Pickett, 283 Md. 284, 288 -9, 388 A.2d 543 (1978) (substantial compliance with Rule 554 sufficient to preserve question for appellate review).

Ill

Even if appellants’ first contention — the mere fact that the defendant acted intentionally does not preclude recovery of damages for negligence — has merit, we observe that the case was not tried within the familiar framework of negligence: duty, breach, causation, and injury. The plaintiffs failed to develop evidence showing that Elaine Schafer had a duty to refrain from any act which a reasonable person should recognize as involving an unreasonable risk of harm to another. Restatement (Second) of Torts, §§ 285, 291, 297 (b) (1965). Duty requires the actor to conform to a certain standard of conduct for the protection of others against unreasonable risks. Prosser, supra, § 30 at 143. See also § 31 at 145. The essential question is whether the plaintiffs’ interests are entitled to legal protection against the defendant’s conduct. Id., § 30 at 143.

The defendant here stated several times that she did not mean to harm her teacher, that she meant it as a joke. The defendant was asked: "You knew it was wrong to do this, didn’t you?” and "What did you think would happen when she did fall.” But the pivotal question was not asked: "Were you aware that a tall adult like Mrs. Ghassemieh could have been severely injured by your conduct?” An affirmative answer would have established her knowledge of the risk involved. A negative answer would have raised a jury question as to whether a reasonable 13-year-old should have known that such a prank constituted an unreasonable risk of harm to another, and thus, she had a duty to refrain from such conduct.

While it is true that ". .. the absence of intent is essential to the legal conception of negligence,” Adams v. Carey, 172 Md. 173, 186, 190 A. 815 (1937), the presence of an intent to do an act does not preclude negligence. The concepts of negligence and battery are not mutually exclusive. See Edgerton, Negligence, Inadvertence and Indifference; the Relation of Mental States to Negligence, 39 Harv.L. Rev. 849 (1926).

In understanding the overlap, Prof. Prosser’s explication of the distinction between intended and unintended acts is helpful:

"In negligence, the actor does not desire to bring about the consequences which follow, nor does he know that they are substantially certain to occur, or believe that they will. There is merely a risk of such consequences, sufficiently great to lead a reasonable man in his position to anticipate them, and to guard against them. If an automobile driver runs down a man in the street before him, with the desire to hit him, or with the belief that he is certain to do so, it is an intentional battery; but if he has no such desire or belief, but merely acts unreasonably in failing to guard against a risk which he should appreciate, it is negligence. As the probability of injury to another, apparent from the facts within his knowledge, becomes greater, his conduct takes on more of the attributes of intent, until it reaches that substantial certainty of harm which juries, and sometimes courts, may find inseparable from intent itself. Such intermediate mental states, based upon a recognizable great probability of harm, may still properly be classed as 'negligence,’ but are commonly called 'reckless,’ 'wanton,’ or even 'wilful.’ They are dealt with, in many respects, as if the harm were intended, so that they become in effect a hybrid between intent and negligence, occupying a sort of penumbra between the two.” (Emphasis added.)

Prosser, supra, § 31 at 145.

The plaintiffs in this case could properly have sought a negligence instruction based on the Restatement of Torts and quoted by Prosser, id. at 207, n.12:

"Every person is negligent when, without intending to do any wrong, he does such an act or omits to take such precaution that under the circumstances he, as an ordinarily prudent person, ought reasonably to foresee that he will thereby expose the interests of another to an unreasonable risk of harm. In determining whether his conduct will subject the interests of another to an unreasonable risk of harm, a person is required to take into account such of the surrounding circumstances as would be taken into account by a reasonably prudent person and possess such knowledge as is possessed by an ordinarily reasonable person and to use such judgment and discretion as is exercised by persons of reasonable intelligence under the same or similar circumstances.”

We see no reason why an intentional act that produces unintended consequences cannot be a foundation for a negligence action. Here, an intentional act — the pulling away of the chair — had two possible consequences: the intended one of embarrassment and the unintended one of injury. The battery — an indirect offensive touching, a technical invasion of the plaintiffs personal integrity — was proved. However, a specific instruction on negligence — namely, that the defendant had a duty to refrain from conduct exposing the plaintiff to unreasonable risk of injury and breached that duty, resulting in her injury — was not requested. Nor was any exception made to the general negligence instruction that was given. Nor did the plaintiff at trial take the unequivocal position that she was proceeding on a theory of negligence, notwithstanding the co-existence of an intentional act, i.e., a battery. See, e.g., Maneikis v. St. Paul Insurance Co., 655 F.2d 818 (7th Cir. 1981) (malpractice and fraud not mutually exclusive theories of recovery; same act may give rise to claims of both). In sum, appellants are asserting now the arguments they should have made at trial. Such hindsight can avail them nothing.

Judgment affirmed; appellants to pay the costs.

      . The teacher sued in the first count to her own use and to the use of the School Board’s Workmen’s Compensation insurer, United Pacific Insurance Company. The second count alleged a cause of action of her husband’s for household expenses. The third count alleged a cause of action of the teacher and her husband under Deems v. Western Maryland Railroad Co., 247 Md. 95, 231 A.2d 514 (1967).

      . This action was brought almost three years after the incident. However, appellant began experiencing back pain in March 1977, a month or so later; she had a myelogram then and again in early 1978. In September 1978, she had a spinal fusion. We observe that appellee did not plead the one-year statute of limitations, Md. Cts. & Jud. Proc. Code Ann., § 5-105 (1980 Repl. Vol.), governing battery, but she had no occasion to do so in light of the allegations in the declaration.

      . In Lewis v. Woodland, 140 N.E.2d 322 (Ct.App. Ohio 1955), the defendants were held liable when the plaintiff broke her back after being frightened by a toy rubber lizard placed in her lap. The point was not raised, but the defendants’ act of placing the toy in the plaintiffs lap is a technical battery. Liability was found on a theory of negligence. The case held that the perpetrator of a practical joke which is the cause of injury to a person is liable for damages.

      . Under the Federal Torts Claims Act, 28 U.S.C. § 1346 (b) (1976), the distinction between negligence and battery is maintained. The Act abrogates sovereign immunity by allowing suits for damages against the federal government only when "caused by the negligent or wrongful act or omission of any employee of the Government....” Thus, the actions of a federal employee who screamed "boo” at the plaintiff, pulled his hat over his eyes, and began to ride him piggyback, were characterized as a battery and therefore specifically excluded from the Act under § 2680 (h). Lambertson v. United States, 528 F.2d 441 (2d Cir. 1976). In holding that the plaintiff could not avoid the intentional tort exclusions of § 2680 by claiming negligence, id. at 444, the court stated:
      "We would find it much more pleasant to reach a decision based on what we wish Congress had said, rather than what it did say. However, to permit plaintiff to recover by 'dressing up the substance’ of battery in the 'garments’ of negligence would be to [judicially admit at the back door that which has been legislatively turned away at the front door.’ Id. at 445, quoting Laird v. Nelms, 406 U.S. 797, 802 (1972).”
      We observe that outside the federal statute and any workmen’s compensation statute barring suits between co-employees, an action for negligence may lie if plaintiff could show that the defendant through intentional horseplay exposed the plaintiff to an unreasonable risk of harm, i.e., the meat hooks that were six inches from plaintiffs head and into which he fell, injuring his mouth.


source: Caselaw Access Project

license: Public Domain

text:
    PRINCE GEORGE’S COUNTY, MARYLAND v. LOUIS J. CARUSILLO et ux.
    [No. 826,
    September Term, 1981.]

      Decided July 8, 1982.

    The cause was argued before Morton and Moore, JJ., and Richard M. Pollitt, Associate Judge of the First Judicial Circuit, specially assigned.

      Alan E. D’Appolito, Associate County Attorney for Prince George’s County, with whom were RobertB. Ostrom, County

      Attorney for Prince George’s County, and Michael O. Connaughton, Deputy County Attorney for Prince George’s County, on the brief, for appellant.

      Russell W. Shipley, with whom was John P. McDonough on the brief, for appellees.
   Moore, J.,

delivered the opinion of the Court.

Once again, Prince George’s County asks this Court to uphold its refusal to upgrade the water and sewer classification of the 3.46 acres owned by the appellees, Louis J. and Anna Carusillo. We ruled in favor of the County in 1979, affirming the Circuit Court for Prince George’s County (McCullough, J.), which had dismissed the Carusillos’ petition because they had failed to exhaust their administrative remedies after the County Council denied their request. Carusillo v. Prince George’s County, No. 385, September Term, 1979, filed December 12,1979 (unreported). However, the Court of Appeals reversed, finding that the Carusillos had no administrative remedies to exhaust before seeking review of the Council’s action. Carusillo v. Prince George’s County, 289 Md. 436, 424 A.2d 1106 (1981). Accordingly, the case was remanded, and Judge McCullough, who on May 5, 1981 held a hearing on the merits, remarked, "we are back to square one.” Even so, the court concluded that the County Council’s refusal to grant the appellees’ requested upgrade was arbitrary and capricious. Thus, the writ of mandamus was proper and the court ordered appellees’ property upgraded.

On appeal, the County contends that mandamus is not applicable to the denial of an application for the upgrade of a water and sewer classification because Art. 43 § 387C, Md. Ann. Code (1957, 1980 Repl. Vol.) requires the exercise of discretion by the Prince George’s County Council. Further, the County asserts that its refusal to grant the upgrade was not arbitrary and capricious and was supported by substantial evidence. We agree with Judge McCullough’s reasoning and shall affirm.

I

Louis J. and Anna Carusillo’s property is located on Livingston Road in Oxon Hill, Maryland, just off Indian Head Highway, a major state artery, and adjacent to the historic St. John’s Church, which has water and sewer service. The property is zoned C-2 (General Commercial-Existing) and is in water and sewer systems area 5, which means that the County expects to provide water and sewer services from seven to ten years after the adoption of the Ten-Year Water and Sewer Plan, as mandated by Art. 43 § 387C. This statute requires annual revisions and amendments to the Ten-Year Plan, which initially took effect in 1971. On February 1, 1977, the Carusillos applied for an upgrade to area 3, which would have made water and sewer services available in one to two years. Under the present designation, the property cannot be developed because water and sewer service is not available. When the County Council enacted the annual revisions on December 16, 1977, after the proper notice and public hearing pursuant to Section 387C (b)l.(i), no provision was made for upgrade of the Carusillo property. Thus, their request was effectively denied. However, a request by Dave Brown Chevrolet, a commercial property about two miles away, to upgrade to area 3 was granted.

The Carusillos filed an Amended Petition for a Writ of Mandamus, Declaratory Judgment, Injunction, Damages, and other appropriate relief on August 28, 1978. They alleged that certain criteria described in Section 387C, in council resolutions enacted pursuant thereto, and in the Ten-Year Plan were applicable to all individual requests for water and sewer area changes, and that they met these criteria.

The criteria included the following:

1. a preliminary subdivision plan approved by the Maryland-National Capital Park and Planning Commission (M-NCPPC);
2. sewage and transmission capacity within the .applicable drainage basin;
3. proper zoning;
4. conformity with the adopted master plan; and
5. ability to be serviced by a non-program extension.

At the trial on January 29, 1979, the parties stipulated to the following:

1. That the property of the Petitioners [Carusillos] herein involved can be served without additional programmed size sewer;
2. That there existed, at the time of the decision in this matter by the County Council for Prince George’s County, physical system capacity for the proposed development of the Petitioners’ property;
3. That the criteria publicly set forth by the County Council for change in sewer systems area category are contained in the adopted Ten Year Water and Sewer Plan text as well as Article 43, Section 387C;
4. That the above criteria were applied to Petitioners’ property'as well as others;
5. That Petitioners’ property is presently zoned C-2;
6. That such zone allows the construction of a retail commercial store containing 3,000 square feet;
7. That a request by Dave Brown Chevrolet for sewer systems area category 3 was approved by the Council;
8. That Dave Brown Chevrolet is located in the same drainage basin (i.e., Piscataway Sewage Treatment Plant) as Petitioners’ property; and
9. That St. John’s Church which opposes the extension of sewer to this property is sewered by public sewer and water and is almost across the street from the property.

The County’s only witness was Ken Leslie, a planner with the County Department of Program Planning and Economic Development, the agency responsible for receiving individual requests for upgrades and coordinating the reviews of such requests by the Department of Public Works, the Department of Health, the Washington Suburban Sanitary Commission and the M-NCPPC. He testified that the sewer line to which the Carusillos sought access was an extension off the main line (to which St. John’s Church was hooked) and had been built in 1969 to pick up a failing septic tank problem in a subdivision called Fort Foote Estates. The intention, he said, was not to open up the drainage basin to new development but to provide service to a health hazard area. The Carusillos proposed to build, at their own cost, a 1,360-foot line to this extension which led to the main trunk line.

According to Mr. Leslie, the major facts underlying his recommendation that the Carusillos’ property remain in area 5 were:

1. there was no pending growth in the large area 5 surrounding the Carusillo acreage;
2. while the original South Potomac Master Plan designated the property for commercial use, the new Master Plan for Subregion VII was being drawn up and any changes in sewer classification should await its promulgation;
3. the extension of sewer into area 5 would not conform with the orderly expansion of public utilities which is one of the major purposes of the Ten-Year Plan;
4. the recommendation of the M-NCPPC in favor of an upgrade, because adequate public facilities including water and sewer existed, was based on a mistake of fact that the Carusillos’ property was in area 4, not 5;
5. although the property’s preliminary subdivision plan was approved, as required by the Ten-Year Plan’s criteria, an accompanying site plan, required by the M-NCPPC, has not been approved;
6. the proximity of the property to St. John’s Church, which opposed the development, and the 100-year flood plain, since filled, "has raised several questions regarding the most appropriate land use for the property”; and
7. although Livingston Road is capable of handling the increased traffic, all major intersections with Md. Route 210 (Indian Head Highway) are now "experiencing operational problems” which would be compounded by any additional traffic in the area.

On remand, Judge McCullough specifically held that three of these factors were inappropriate in considering a systems area change, to wit, the site plan, the location of St. John’s Church, and the expected increase in traffic. The Carusillos, he said, had met all the criteria required for an upgrade, and the Council’s action in refusing to grant the change was arbitrary and capricious because no evidence was presented to the Council to warrant such refusal.

II

The plaintiff seeking a writ of mandamus must demonstrate that a public official has a plain duty to perform certain acts, that the plaintiff has a plain right to have those acts performed, and that no other adequate remedy exists by which plaintiffs rights can be vindicated. University of Maryland v. Cleland, 504 F.Supp. 351, 354 (D.Md. 1980). Criminal Injuries Compensation Board v. Gould, 273 Md. 486, 331 A.2d 55 (1975). The writ will not lie if the plaintiff has any other remedy, A.S. Abell Co. v. Sweeney, 274 Md. 715, 337 A.2d 77 (1975); if the duty to act is discretionary and not ministerial, Maryland Action for Foster Children, Inc. v. State, 279 Md. 133, 367 A.2d 491 (1977); or if the action is not shown to be arbitrary, capricious or illegal. Tyler v. Baltimore County, 251 Md. 420, 247 A.2d 704 (1968). The writ will lie if no statutory provision for a hearing or review exists and public officials are alleged to have abused their discretion. State Department of Health v. Walker, 238 Md. 512, 209 A.2d 555 (1965).

The County argues that Art. 43 § 387C requires the exercise of much discretion by the Council, various officials and several agencies. We agree. The County does have discretion in formulating and amending the Ten-Year Water and Sewer Plan, in preparing a statement of policies and objectives to be achieved and implemented by the Plan and subsequent amendments, and in considering all aspects of planning, zoning, population estimates, engineering economics, and other state regional, municipal, local and area plans. However, nothing in Section 387C grants the County any discretion to set up criteria defining each of the six water and sewer areas and then refuse to permit any change when an applicant has met the criteria in a specific classification. Nothing in Section 387C says the Council or county officials may pick and choose among those who have met the criteria, to grant an upgrade to one and not to the other. Such far-reaching discretion is equivalent to arbitrariness. See Walker, supra, 238 Md. at 523.

The language of the statute, Art. 43, § 387C (b) 4.(i) is clear:

"4. In addition, every county plan shall—
(i) Provide for the orderly expansion and extension of community and multiuse water supply systems, community and multiuse sewerage systems and solid waste disposal systems in a manner consistent with all applicable county and local comprehensive land use plans and sizing and staging of facilities construction shall be consistent with these plans. The plan shall demonstrate this through the use of graphic and tabular information.
(v) Delineate with all practical precision those portions of the county which community and multiuse water supply systems, community and multiuse sewerage systems and community solid waste disposal systems may reasonably be expected to serve within the succeeding ten-year period, and any portions in which the provision of such services is not reasonably foreseeable, taking into consideration all related aspects of planning, zoning, population estimates, engineering, and economics, and all State, regional, municipal and local plans;...”

So is the language of the Ten-Year Plan, as amended:

"Generally no request for a system area map amendment seeking system areas 1 through 3 will be approved unless the sewage flows and water demands produced by the development and all other land in system areas 1 through 3 could be accommodated by the water and sewerage system in existence or by system improvements which are planned to be made within the next two years. In addition such requests will not be approved unless a preliminary plan of subdivision has been approved for the proposal.”

Together, these provisions demonstrate that the County’s discretion is limited to formulating, reviewing and revising the Plan which shall "[P]rovide for the orderly expansion and extension” of water and sewer systems "in a manner consistent with all applicable county and local comprehensive land use plans. . . .” Thus, Section 387C is a prospective statute, District Land Corp. v. Washington Suburban Sanitary Commission, 266 Md. 301, 292 A.2d 695 (1972), and does not confer ultimate discretion on the County Council to deny an area classification change to an applicant who has met the criteria. The County is bound by its own criteria and cannot bootstrap its desire to retard or thwart development in a commercially zoned area onto a statute designed to prevent future sewer moratoria. The writ of mandamus was properly issued to force the County to grant area 3 classification to the Carusillos. Further, the writ is also proper on the ground that no hearing or review is provided to those who are refused reclassification. Walker, supra, 238 Md. at 522. See also Carusillo, supra, 289 Md. at 441.

Ill

The County also argues that the refusal to upgrade the property from area 5 to area 3 was supported by substantial evidence. However, the "evidence” in support of this argument is illusory at best.

1. The County alleged that extension of the 1,360-foot "non-program” sewer line to the Carusillos’ property would be inconsistent with the statutory direction that the Ten-Year Plan provide for orderly expansion. However, the Carusillo line would be funded by the Carusillos, hooked up to an existing sewer line that predates the Ten-Year Plan, and closed to any other property abutting its length.
2. The County claimed that reclassification should await the new master plan being prepared by the M-NCPPC so as to be consistent with comprehensive land use plans as mandated by Section 387C (b) 4. (i). However, attempting to apply a non-existent recommendation of an unpublished and unadopted master plan would have violated Prince George’s County, Md., Code § 27-119.6(a) (1979) which says such plans shall have no legal effect until approved by the Council.
3. The County argued that the M-NCPPC was mistaken in recommending area 3 classification because it had believed the property to be in area 4. However, the mistake is irrelevant and was caught by the County Planning Department. Moreover, the preliminary subdivision plan was approved based on the actual availability of public facilities, and was not contested.
4. The County contended that its denial was justified by the lack of a site plan and specificity in the Carusillos’ application for upgrading. However, the site plan is a condition of subdivision prior to the issuance of building permits. It, like specific details of the proposed development, is not required for a sewer area upgrade. Further, Mr. Leslie admitted on cross-examination that the proposed shopping facility would be very unlikely to exhaust the available sewage plant capacity.
5. The County stated that development of the Carusillo property would adversely affect traffic,' and thus approval of the reclassification would be inconsistent with consideration of "planning, zoning, population estimates, economics,. ..” Section 387C(b)(iii). However, the report of the Department of Public Works and Transportation stated that Livingston Road, on which the Carusillo property is located, could handle the increased traffic. Also, the M-NCPPC had approved the preliminary subdivision plan on July 22, 1976, based on its finding that sufficient public facilities and services existed, including adequate access roads. See Prince George’s County, Md., Code § 24-103(a)(15)(1979); Board of County Commissioners v. Gaster, 285 Md. 233, 401 A.2d 666 (1979).
6. The County declared that sewage capacity in the Piscataway Drainage Basin for commercial and industrial projects could be exhausted if all property in areas 1 through 4 were developed. However, the test for advancement to area 3 is whether there is available capacity (or due to be programmed within two years) for all commercial and industrial properties within the drainage basin in areas 1 through 3. The County’s own forecast shows an excess of 700,000 gallons per day.
7. Finally, the County claimed that the property’s proximity to St. John’s Church and the lack of a need for a shopping center were appropriate factors to consider in denying the change because they are "related aspects of planning” under Section 387C (b) 4 (v). However, the property is zoned commercial and opposition to its development by St. John’s Church does not change that fact, however much church members may dislike such development. Further, "need” is not a criteria of sewer area classification. See Aspen Hill Venture v. Montgomery County Council, 265 Md. 303, 289 A.2d 303 (1972).

The record amply supports the findings by the trial judge that the County was bound by its own criteria, that the Carusillos met all the criteria required for reclassification and that, therefore, they were entitled to an upgrade from sewer area 5 to area 3.

Judgment affirmed; appellant , to pay the costs.

      . Pursuant to Art. 43 § 387C (b)4.(v) (1980 Repl. Vol.), the County’s Ten-Year Plan includes the following water and sewer systems areas:
      Area 1 — service by systems existing or under construction
      Area 2 — service by extensions of existing systems in final planning stages
      Area 3 — service intended to be available in one to two years
      Area 4 — service intended to be available in three to six years
      Area 5 — service intended to be available in seven to ten years
      Area 6 — no planned service

      . Judge McCullough ruled in the first trial that upgrading the Dave Brown property to area 3 was irrelevant but in his opinion and order on May 27, 1981, he stated: "An additional consideration in determining whether or not the action by the government is arbitrary and capricious is that the Council did in fact grant a request from another applicant, Dave Brown Chevrolet, which is located in the same drainage basin as petitioners’ property.” Dave Brown’s application shows a request for upgrading from area 4 to area 3. The evaluation of the County Planning Department says that the proposal for a 32,000-square-foot new car agency on Indian Head Highway conforms to the master plan, which recommends employment uses, and would be in line with the new master plan for subregion VII being developed. Both Dave Brown’s and the Carusillos’ applications met the criteria required for area 3 classification.

      . In their motion to advance for trial following the Court of Appeals’ reversal, the Carusillos pointed out that the new subregion VII master plan recommended downzoning of their property from commercial to "low suburban land use.” The downzoning would be effective with final adoption of the plan, then expected by the end of 1981, unless they developed and utilized their property in line with its commercial zoning. In the mid-1960s, the property had been rezoned from rural residential to commercial.

      . Initially, the Carusillos proposed to build a 39,000-square-foot shopping center and office complex, but this was scaled down to a 3,000 square foot commercial facility after negotiations with St. John’s Church, which opposed such development.

      . The County in its answer to the amended petition conceded it was bound to grant the request if the applicant met the criteria. The County admitted paragraph 8 of the petition: "The Council was under a duty to apply these criteria uniformly in determining the merit of individual requests for systems area changes. When the criteria for a particular system area is [sic] met, a systems area change to that systems area must be granted, if requested.”

      . The purpose of the statute, which is "almost philosophical in tone” according to the Carusillos’ counsel, was to ensure that in the late 1960s the County never again experience the type of sewer mortorium imposed because of insufficient sewage treatment capacity. The statute requires counties to adopt and submit to the State Department of Mental Health and Hygiene comprehensive water and sewage plans which, when approved by the Department, control the construction and use of water and sewer systems. See Smoke Rise, Inc. v. Washington Suburban Sanitary Commission, 400 F.Supp. 1369 (D.Md. 1975). While the "use of water and sewer regulations as tools to plan for and achieve orderly, rational development has received approval from the Maryland courts, id. at 1391, the regulations (or criteria) cannot be used as a basis for ad hoc decisions. While the County may under Art. 43 § 387C (b) 1. (i) make such revisions in the plan "as it deems necessary to accomplish the plan’s objectives and policies,” it may not refuse requests for upgrades in area classification when the criteria it requires for such changes are met. See Poolesville v. Montgomery County Council, 24 Md. App. 347, 330 A.2d 711 (1975); 60 Att’y Gen. Op. 508 (1975).

      . The Ten-Year Plan contains a disclaimer that when a sewer line traverses areas 4, 5, or 6 to provide service to areas 1, 2, or 3, the line shall be deemed limited access, and those areas so traversed shall not be construed as being in areas 1,2, or 3 regardless of the physical availability of such service. In any case, those wishing to hook into the line must fulfill the criteria before doing so.


author: Thompson, J.,

text:
    IN RE: ERNEST J.
    [No. 1204,
    September Term, 1981.]

      Decided July 8, 1982.

    The cause was submitted on briefs to Gilbert, C. J., and Thompson and Moore, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Martha Weisheit, Assistant Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney General, Diane G. Goldsmith, Assistant Attorney General, John L. Norton, III, State’s Attorney for Dorchester County, and Fletcher

      Thompson, Assistant State’s Attorney for Dorchester County, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Ernest J., the appellant, was charged with being a delinquent child by virtue of the breaking and entering of the home of Charles Woodward in Cambridge, Maryland. At an adjudicatory hearing held on August 26, 1981, Judge Charles E. Edmondson presiding, the appellant was found to have committed the delinquent act. Thereafter, following a disposition hearing, he was placed under the supervision of the Juvenile Services Administration.

The appellant raises the following issues:

1. Whether the identification of appellant was suggestive and illegal.
2. Whether the juvenile court erred in admitting evidence of appellant’s prior contacts with juvenile services.

FACTS

Charles Woodward testified that on the morning of June 1,1981, he was shaving in an upstairs bathroom in his home when he heard the front door open. Looking down from the top of the staircase, he observed the appellant standing near the bottom of the stairs. When Woodward asked the boy what he wanted, he responded that he was looking for a Mrs. Stokes. Woodward advised him that he knew of no such person. Appellant thereafter departed, and Woodward immediately contacted the police.

Officer Douglas McConnell, notified of Woodward’s complaint and description of the boy, observed the appellant standing on a corner approximately 10 blocks from Woodward’s home. McConnell stopped the appellant, advised him of his rights, and transported him to police headquarters. McConnell further stated that appellant refused to admit anything other than he had been on the front porch of the house. Shortly thereafter, Woodward was called to the police station where he identified the appellant, who at the time was talking to a detective, as the boy he had seen in his house.

The appellant, testifying on his own behalf, denied being in the vicinity of Woodward’s residence and denied making any statement to McConnell about being on Woodward’s front porch.

At the conclusion of the adjudication hearing, the court said:

"[T]he State has proven beyond a reasonable doubt that the ... [appellant] unlawfully broke and entered Mr. Woodward’s house, that an act was committed which would be a crime if committed by a person who is not a child, that the ... [appellant] was the criminal agent and the court has further heard testimony that he is in need of supervision, treatment or rehabilitation, and finds him delinquent.”

I. Identification

The appellant contends that the court erred in permitting Woodward to make an identification of him at the adjudication hearing as the intruder in the house. Specifically, he maintains that Woodward’s initial identification during a showup at the police station was so inherently suggestive as to render any subsequent identification prejudicial.

The short answer to the appellant’s contention is that he failed to file a motion to suppress Woodward’s identification and did not object at the hearing to Woodward’s testimony. Even if the appellant had properly preserved his objection to the identification, we would see no error in view of the circumstances surrounding the identification, summarized by the trial court as follows:

"Mr. Woodward observed the young man and engaged in some dialogue with him for a period of about five minutes; that the lighting condition was good; that he observed the kind of clothes he was wearing, and shortly after that, within the hour, the young man was apprehended by the police and at time was wearing the same clothing as described by Mr. Woodward.”

In Foster and Forester v. State, 272 Md. 273, 302, 323 A.2d 419, cert. denied, 419 U.S. 1036 (1974), the Court of Appeals disposed of a similar contention stating:

"Although some suggestiveness is inherent in such a factual situation — the appellants, standing outside the stopped vehicle in the presence of at least four policemen — it is not one of undue suggestiveness, 'in view of the countervailing considerations that prompt, on-the-scene identifications are likely to promote fairness, by enhancing the reliability of the identifications, and permit expeditious release of innocent subjects.’ ” (citation omitted).

II. Improperly Admitted Testimony

Michael Baker, a juvenile services officer, testified during the adjudication hearing as follows:

"Q. And do you have the case of Ernest J .. . ?
A. Yes, sir, I do.
Q. How old is Ernest J .. . ?
A. Ernest currently is fifteen years of age, with date of birth of 10-6-65.
Q. Is he a child in need of the Court’s assistance, guidance, treatment or rehabilitation?
A. Yes, sir. Ernest has had a lengthy contact with our agency, plus his involvement in the current charge definitely indicates he is in need of everything.”

The appellant objected to Baker’s last remark and on appeal contends that while such testimony may have been relevant for purposes of disposition, it was of no relevance to the adjudication hearing. We agree.

The process by which a child is determined to be "delinquent” consists of a two-step procedure. First, there is an adjudicatory hearing, defined in Md. Cts. and Jud. Proc. Code Ann., § 3-801 (b) as "a hearing to determine whether the allegations in the petition, other than allegations that the child requires the court’s assistance, treatment, guidance or rehabilitation are true.” Thereafter, a disposition hearing is held to determine: "(1) [wjhether a child needs or requires the court’s assistance, guidance, treatment or rehabilitation; and if so (2) [t]he nature of the assistance, guidance, treatment or rehabilitation.” § 3-801 (m). Despite the separate and distinct functions of each hearing, an overlap has surfaced which has resulted in erosion of the definitive roles of these proceedings. This overlap emanates from the conflicting signals in the statute as to the appropriate hearing in which the issue of the need for the juvenile’s supervision can be, or must be, presented. The primary purpose of the adjudicatory hearing is to determine the merits of the allegation in the petition. § 3-819; Md. Rule 914. Relying on § 3-819 (b) trial courts have generally imposed a finding of "delinquency” at the conclusion of this hearing once they have been satisfied that the juvenile committed the act in question. See, e.g., In Re: David K., 48 Md. App. 714, 429 A.2d 313 (1981); In Re: Dominic W., 48 Md. App. 236, 426 A.2d 432 (1981). However, as evidenced in the present case, confusion arises as to whether the court may conclude that the juvenile is a "delinquent child,” as defined in § 3-801 (k) without further inquiry as to the child’s need for supervision.

Section 3-801 (k) defines delinquent child as one "who has committed a delinquent act and requires guidance, treatment, or rehabilitation(emphasis added). The definition indicates that before a juvenile can be classified as a "delinquent child” there must be a finding of both the existence of the delinquent act and the child’s need for supervision. There is no statutory mandate, however, that these elements be satisfied at the adjudicatory level. Neither the language set forth in § 3-819 or § 3-801 reveals any duty of the adjudicatory judge other than a determination as to whether or not the juvenile committed a "delinquent act.” That the legislature intended to exclude all inquiry into the child’s need for supervision at the adjudicatory level is revealed in the following 1976 revised definition set forth in § 3-801 (b):

"Adjudicatory hearing. — 'Adjudicatory hearing’ means a hearing to determine whether the allegations in the petition, other than allegations that the child requires the court’s assistance, treatment, guidance or rehabilitation are true.” (emphasis added).

This manifests legislative intent to maintain the distinct functions of the adjudicatory hearing and the dispositional hearing by eliminating all inquiry into the child’s need for guidance or treatment from the former, thereby preventing irrelevant and potentially prejudicial facts from being taken into consideration in the adjudication of pending charges.

Although the signals are conflicting, we conclude that it is only after the adjudicatory judge finds that the juvenile has committed a delinquent act and the dispositional judge finds that the child is in need of treatment or guidance, can a juvenile be classified as a "delinquent child” as defined in § 3-801 (k). While it was improper to permit at the adjudicatory hearing the testimony of the juvenile services officer as to the child’s need for supervision, we conclude that the error was harmless beyond any reasonable doubt. See, Dorsey v. State, 276 Md. 638, 659, 350 A.2d 665 (1976). We reach this determination because by its remarks, the trial court showed that it did not base its decision on any testimony received from the juvenile services officer.

Judgment affirmed.

Appellant to pay the costs.

      . Section 3-819 (b) provides:
      “Before a child is adjudicated delinquent, the allegations in the petition that the child has committed a delinquent act must be proved beyond a reasonable doubt.”

      . Section 3-801 (j) defines delinquent act as:
      "... an act which would be a crime if committed by an adult.”

      . This problem has been acknowledged in dicta in In Re: Appeal No. 544, 25 Md. App. 26, 35 n. 9, 332 A.2d 680, (cert, granted, later dismissed as improvidently granted) (1975), where, upon reviewing the relevant definitions in § 3-801, the Court stated:
      "Thus, there appears to be an overlapping. To be delinquent, a child must be in need of supervision, treatment, or rehabilitation. This, therefore, has already been determined at the adjudicatory hearing before the disposition hearing is held.”
      While this footnote indicates that the issue of the child’s need for court supervision should be raised at the adjudicatory hearing as well as the dispositional hearing, it should be noted that this conclusion was premised on the pre-1976 version of § 3-801 (b) which provided: " 'Adjudicatory hearing’ means a hearing to determine the truth of the allegations in the petition”, thus, not taking into consideration the legislative intent to eliminate such evidence as revealed in the amended 1976 version which added the limiting words "... other than, allegations that the child requires the court’s assistance, treatment, guidance or rehabilitation. . . .”


author: Morton, J.,

text:
    JAMES EDWARD WARD v. STATE OF MARYLAND
    [No. 1249,
    September Term, 1981.]

      Decided July 8, 1982.

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

      Gary W. Christopher, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Diane G. Goldsmith, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Richard P. Arnold, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

Appellant was convicted by a jury, sitting in the Circuit Court for Prince George’s County, of being an accessory to second degree murder in the contract murder of his spouse’s boyfriend and was sentenced by the court (Blackwell, J.) to thirty years’ imprisonment. He raises a number of issues on appeal which will be addressed, along with the relevant facts, separately:

"1. Did the court err in refusing to declare a mistrial in response to the jury’s deadlock?
2. Did the court err in imposing a sentence greater than that imposed on the principals?
3. Was a sentence greater than ten years barred by principles of double jeopardy?
4. Was Appellant denied the right to a speedy trial?
5. Was the evidence sufficient to support Appellant’s conviction?
6. Was Appellant’s conviction barred by principles of double jeopardy?”

Jury Deadlock

The trial began on a Thursday and continued until 3:37 p.m. that day at which time the jury retired to deliberate its verdict. Shortly thereafter an exchange was had, via notes, between the court and the jury. At 6:11 p.m., when the jurors asked to rehear certain testimony, the court, with the approval of defense counsel, instructed them to rely on their recollections. The jurors were then told they could order dinner and they presumably did so. At 11:10 p.m. the court reconvened and the trial judge proposed giving the jury, in light of their lengthy deliberation, an Allen charge, similar to one given in Allen v. United States, 164 U.S. 492 (1896). Defense counsel objected to such a charge, insisting that there was no indication that the jury was deadlocked. At that propitious moment, the jury sent this note to the judge:

"Judge Blackwell: We have taken four ballots and cannot come up with a unanimous vote. Is there anyway we can ask you a question about this situation. We have been deadlocked for six hours. Frederick Dichter, Foreman.

Now defense counsel was of the view that not only had the time passed for an Allen charge but it "might be time for a mistrial.” He made no such motion, however. Rather, he immediately thereafter stated: "If the court is going to give the Allen charge, may I ask the court if it is going to give the ABA recommended instruction” accepted by the Court of Appeals in Burnette v. State, 280 Md. 88, 96 (1977). The trial judge then gave a modified Allen charge virtually identical to that set out in Burnette.

The jury returned to their deliberations and at 12:02 a.m., an hour later, again requested to review certain testimony. The judge, again with defense counsel’s agreement, requested the jurors to rely on their recollections. The jury continued to deliberate from 12:06 a.m. until 3:02 a.m., at which time the court, with defense counsel’s consent, advised the jurors they could return home for the remainder of the night and that they should return and resume deliberations at 10 a.m. if they could arrive at a verdict with additional time for deliberations.

The jury resumed deliberation at 10 a.m. on Friday morning. At 1:55 p.m, they sent this note to the judge:

"A portion of the jury cannot arrive at either a guilty or not guilty verdict since 5:00 p.m. Thursday. This is still a result of all the deliberations by all of us.”

In a second note the jury asked "can a jury vote undecided?” In response to the latter, the jury was instructed that their verdict had to be unanimous and that a vote of undecided was not a vote. They were then individually polled as to whether it was their judgment that they felt they were "hopelessly deadlocked or unable to arrive at a verdict in this case with additional time to deliberate.” Each responded affirmatively.

Defense counsel interpreted the jury’s note and poll to mean that it was hopelessly deadlocked and could not arrive at a unanimous verdict. Counsel moved for a mistrial and opposed, as coercive, the court’s proposal to give a second Allen charge. The trial judge, while agreeing with defense counsel that the situation would "be hopeless” if the vote was still divided, interpreted the jury’s notes to mean that there was a juror who had not yet decided as to appellant’s guilt or innocence. Without ruling on the motion, the trial judge decided to repeat the Allen charge, indicating that if, after the Allen charge and some additional reasonable time, the jury was unable to arrive at a verdict that afternoon, he would be willing to declare a mistrial.

At 2:18 p.m., after a second Allen charge, the jury resumed its final deliberations and 44 minutes later, after requesting and receiving additional instructions, returned a verdict of guilty.

The first issue for us is whether, after having given the Allen charge followed by the subsequent indications — by note or poll — that the jury was irretrievably deadlocked, the court, in again giving the instruction and sending the jury back for further deliberation, in effect coerced a verdict.

At the outset we note that the error asserted here is not the coercive nature of the supplemental "dynamite” or Allen charge given. It contained no threat to unreasonably detain the deliberating jury, nor was it addressed specifically to the minority jurors of the deadlocked panel. See Smoot v. State, 31 Md. App. 138 (1976). Although the instruction, like all supplemental verdict urging instructions, poses a latent danger of coercion, there is otherwise nothing objectionable about the particular charge given which was taken virtually word for word from that approved by the Court of Appeals in Burnette.

The coercive effect, appellant argues, is in repeatedly returning the jury to deliberate further when, after due and orderly consideration, they had twice indicated deadlock. Appellant misunderstands the very purpose of an Allen charge. Assuming the jury’s difficulty was, as appellant argues, reaching a unanimous verdict, this is precisely the situation in which an Allen charge is appropriate.

The treatises and case law for the most part are agreed that the length of time the jury is to be held in an effort to secure an agreement is best left to the discretion of the trial court. 93 ALR 2d 627, 636 (1964); 53 Am.Jur. Trial (1st ed. § 962). The trial judge is accorded considerable latitude to return the jury for continued deliberations, short of genuine prejudice to a party, if he feels that further deliberation might be productive. This is true even where the jury reports that it is hopelessly deadlocked, Devault v. United States, 338 F.2d 179 (10th Cir. 1964), and unable to reach a verdict, Decker v. State, 386 N.E.2d 192 (Ind. 1979), People v. Alexander, 305 N.E.2d 61 (Ill. 1973)

"The ABA Standards Relating to Trial by Jury,” § 5.4 (b) recommends that where the court determines that a jury is unable to agree, it "may require the jury to continue their deliberations and may give or repeat” an Allen instruction, but it shall not "require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.” The Commentary indicates that:

"[Section 5.4 (b)] is intended to make it clear that the trial judge may send the jury back for further deliberations notwithstanding the jury’s indication to the court that it has been unable to agree. It is the general view that the court may send the jury back for additional deliberations even though the jury has indicated once, twice, or several times that it cannot agree or even after they have requested that they be discharged.”

The rationale, as the Tenth Circuit has wisely observed, is that:

"The jury cannot determine the length of its deliberations, since, * * * that is the function of the trial judge in the exercise of sound judicial discretion. It is not unusual for a jury to advise the court that it is deadlocked and to thereafter agree and return a verdict. * * * Experience in the trial of jury cases demonstrates that jurors are not always the best judges of whether or not they are able to reach a verdict. In most cases for twelve human minds to agree, it takes careful consideration of the law and the evidence in the case and after that, discussion among the jurors of their views of the case. It is this kind of serious deliberation that is contemplated in our jury system. An experienced trial judge, in most cases, should be able to tell whether a jury has given its best consideration to the case. Therefore, the law imposes upon the trial judge judicial discretion to determine when the jury is deadlocked and unable to reach a verdict.” Devault, supra, at 182-83, quoting Mills v. Tinsley, 314 F.2d 311 (10th Cir.), cert. denied, 374 U.S. 847 (1963).

We cannot but conclude that under the circumstances disclosed here the trial judge acted entirely within his discretion in twice sending the jurors back and giving them supplemental instructions when he thought they could arrive at a unanimous verdict despite their protestations to the contrary.

Illegal Sentence

Appellant asserts that the sentence imposed was illegal for two reasons: because his sentence as an accessory was greater than that imposed on the principals and because it was barred by principles of double jeopardy.

Appellant had previously been found guilty of conspiracy to murder his spouse (Count 1), conspiracy to murder Gerald Godbout, her boyfriend (Count 2), and being an accessory before the fact to Godbout’s murder (Count 3) and was sentenced to three consecutive life terms. Count 4, attempt to murder his spouse, and Count 5, responsibility for the murder of Godbout under Md. Ann. Code (1957, 1971 Repl. Vol.), art. 27, § 616, were nol prossed. We affirmed the convictions in Ward v. State, 30 Md. App. 113 (1976) (hereinafter "Ward I”). A new trial was ordered by the circuit court under post conviction relief procedures because appellant had been denied effective assistance of counsel as to Counts 1 and 2. Those counts were dismissed and a new trial was awarded as to Count 3, apparently because certain evidence admitted to prove the conspiracy counts may have affected the jury’s verdict on the accessoryship count. That order was affirmed by this Court in Ward v. State, an unreported opinion (No. 1359, September Term, 1976), filed September 29, 1977 (hereinafter "Ward II”).

Prior to his new trial on Count 3, appellant filed motions to dismiss. The circuit court agreed that Count 3, unspecified as it was to degree, was limited to the charge of accessory to first degree murder, in part because it believed there was no such crime as accessory before the fact to second degree murder and had to be dismissed because the principals had been convicted of second degree murder. The State appealed the dismissal of the indictment and the Court of Appeals, having issued a writ of certiorari before review by this Court, reversed, holding that a trial on the count of accessoryship before the fact to second degree murder was not precluded. State v. Ward, 284 Md. 189 (1978) (hereinafter "Ward III”).

Upon remand and before commencement of the second trial on Count 3, the trial court denied appellant’s remaining motions to dismiss on speedy trial and double jeopardy grounds. Appellant immediately appealed the double jeopardy ruling. The Court of Appeals, after again issuing a writ of certiorari prior to review by this Court, affirmed the denial of the dismissal on double jeopardy grounds, disagreeing with appellant’s theory that the nolle prosequi of Count 5 at the first trial amounted to an acquittal of all offenses charged in the fifth count, including the accessoryship charge. Ward v. State, 290 Md. 76 (1981) (hereinafter " Ward IV”). The second trial then proceeded and appellant was convicted as an accessory before the fact to second degree murder.

(1)

Although at the time of appellant’s sentencing the principals committing the murder had pleaded guilty to murder in the second degree and each had been sentenced to ten years’ imprisonment, the trial judge, after retrial, sentenced appellant to thirty years’ imprisonment, the maximum sentence on the accessoryship conviction. Appellant argues that common law principles mandate that appellant receive no more than the ten year sentence received by the second degree murder principals to the crime. Appellant cites, as support, Nuthill v. State, 11 Humph. 247 (Tenn. 1850), and the language of the Court of Appeals in " Ward III” that "an accessory should never suffer more punishment than the principal.” Although the Court in " Ward III” held only that the appellant, as an accessory before the fact, could not be convicted of a higher degree of murder than the principals, appellant argues that the above quoted language also precludes an accessory from receiving a longer sentence than a principal of the same degree.

The State responds that the common law requires only that the accessory not receive a longer sentence than that which could potentially be imposed upon the guilty principals. Since the thirty year sentence imposed on appellant as an accessory before the fact of second degree murder does not exceed the maximum thirty year sentence to which the principals were potentially subject, this common law rule, according to the State, has not been violated. The State finds support in State v. Loveless, 80 S.E.2d 442 (W.Va. 1954), wherein it is stated that "[t]he test is not whether the principals received a more severe penalty than the accessory, but whether or not the former could, under the law, have received a penalty equal to that imposed upon the accessory.” Id. at 449.

The rationale of such an approach is that the culpability of an accessory may very well exceed that of the principal, thus warranting imposition of a harsher sentence on the accessory. State v. Barrow, 232 S.E.2d 693, 698 (N.C. 1977). As the Court of Appeals stated in Henry v. State, 273 Md. 131, 150 (1974):

"It is elementary that in passing sentence in a given case the sentence should be fashioned, to the best of the sentencing judge’s ability, to the facts and circumstances surrounding the crime and the individual then being sentenced. Each defendant in each case is unique in the proper sense of that often misused word.”

Thus, in Loveless, supra, it was held not to be error to sentence the accessory to death even though the principals, because of the presence of mitigating circumstances, received sentences of life imprisonment where the principals could also have received death sentences.

We find no error in sentencing appellant to a greater term than that actually received by his presumably less culpable principals.

(2)

Appellant asserts that that portion of the sentence in excess of ten years is barred by principles of double jeopardy. He argues that because neither the initial indictment nor instructions in the first jury trial specified any degree of murder, the first jury’s guilty verdict on the third charge of being an accessory before the fact to Godbout’s murder "must be construed as a finding of guilty to the charge of accessory before the fact to manslaughter,” the lowest grade of homicide for which the maximum sentence is ten years’ imprisonment under Md. Ann. Code (1957), art. 27, § 387. Having been convicted at his first trial as an accessory only to manslaughter, he must be acquitted of being an accessory to murder in the first or second degree.

Appellant, not having raised the issue in "Ward III” or " Ward IV,” has waived it. He never asserted in " Ward III” that he had been convicted only as an accessory to manslaughter, even though the Court of Appeals there dealt with the issues of whether there could be an accessory to murder in the second degree and whether the form of the count permitted appellant to be thus tried. Nor did appellant assert, in the double jeopardy appeal of "Ward IV,” that his retrial was barred on the second degree accessoryship count because he had been "acquitted” at the first trial. His only double jeopardy allegation was that the nolle prosequi of Count 5 prohibited retrial on the charge of being an accessory. Appellant has been before the appellate courts on these charges on four prior occasions and cannot raise yet another double jeopardy argument on this fifth appearance.

Speedy Trial

Appellant asserts that he was denied his constitutional right to a speedy trial as a result of a seven year delay from the time of his arrest on July 10,1974, until his second trial on August 24, 1981.

A delay of "constitutional dimension” in bringing an accused to trial triggers the "difficult and sensitive balancing process” of Barker v. Wingo, 407 U.S. 514 (1972), which has been consistently applied by the Court of Appeals. Jones v. State, 279 Md. 1 (1976); Erbe v. State, 276 Md. 541 (1976); Smith v. State, 276 Md. 521 (1976); Epps v. State, 276 Md. 96 (1975). We conclude that a delay as long as seven years, one month and two weeks is worthy of constitutional scrutiny.

The balancing test established in Barker requires consideration of four factors: (1) the length of the delay, (2) the reasons for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant or his case.

The pertinent events to which these factors are to be applied are:

July 10, 1974 Appellant arrested
July 17, 1974 Appellant indicted
September 13, 1974 Case assigned for trial on November 19, 1974
November 15, 1974 Appellant moves for speedy trial
November 18, 1974 State moves to continue case
January 31, 1975 Appellant moves to dismiss the indictment for lack of speedy trial
February 4, 1975 Appellant’s motion to dismiss for lack of speedy trial denied
February 5, 1975 Trial begins
March 10, 1975 Appellant sentenced
April 4, 1975 Appellant files notice of appeal
January 29, 1976 Court of Special Appeals affirms appellant’s conviction "Ward I”
March 1, 1976 Mandate issued by Court of Special Appeals
May 5, 1976 Certiorari denied by the Court of Appeals
July 23, 1976 Petition for relief under Uniform Post Conviction Procedure Act filed
December 16, 1976 Order and opinion granting appellant’s petition for post conviction relief filed (Counts 1 and 2 dismissed; new trial ordered on Count 3)
September 29, 1977 Post conviction decision affirmed by Court of Appeals, " Ward II”
November 9, 1977 Case set for retrial on February 14, 1978
December 6, 1977 State’s petition for writ of certiorari denied
January 17, 1978 Motion to dismiss for lack of speedy trial filed
February 10, 1978 Motion for continuance filed by State because of illness of prosecutor. Order granting continuance to April 19, 1978, filed
April 11, 1978 Hearing on appellant’s motion to dismiss on double jeopardy grounds. Motion granted
May 1, 1978 Notice of appeal filed by State
December 21, 1978 Court of Appeals reverses the trial court’s order of dismissal and remands for a new trial " Ward III”
January 22, 1979 Mandate of Court of Appeals issued
February 23, 1979 Trial set for May 14, 1979, with motions to be heard on April 18, 1979
April 23, 1979 Motions rescheduled for hearing due to illness of prosecutor
May 9, 1979 Appellant’s remaining motions to dismiss heard
May 11, 1979 Motions denied and appellant files notice of appeal
November 26, 1979 Court of Appeals grants writ of certiorari prior to hearing in Court of Special Appeals
January 3, 1980 Case argued in Court of Appeals
April 7, 1981 Opinion affirming trial court’s denial of appellant’s motion to dismiss on ground of double jeopardy filed by Court of Appeals, "Ward IV”
May 7, 1981 Mandate of Court of Appeals issued
June 25, 1981 Trial is set for August 24, 1981
August 3, 1981 Pretrial motions filed by appellant
August 4, 1981 Notice setting pretrial motions for August 13, 1981, filed
August 13, 1981 Pretrial motions heard and denied
August 24, 1981 Trial begins

Reasons for the Delay

When we categorize the delays, as the State suggests, it becomes apparent that most are either chargeable to appellant or not chargeable to either appellant or the State.'

The first period from July 10,1974, the date of appellant’s arrest, until February 5,1975, his first trial, has been previously considered by this Court in " Ward I.” While we there stated that the delay between November 19, 1974, and February 5, 1975, was attributable to the State, we also stated that it was not heavily weighed against the State. In light of Wise v. State, 47 Md. App. 656, 675 (1981), wherein this Court stated that 180 days are regarded as necessary for orderly trial procedure, the State can, at most, be charged with 30 days.

The second period from February 5,1975, until December 16, 1976, reflects appellant’s trial and his efforts through appeal to this Court and through post conviction relief procedures to obtain reversal. Such delay, even where reversal follows, is not relevant to the analysis. Britton v. State, 10 Md. App. 70, 73 (1970).

Our concern is only with the delay in proceeding with the retrial once the mandate has been issued remanding the case to the trial court. Coleman v. State, 49 Md. App. 210, 220 (1981). Thus, the next period of interest is that from the issuance of the mandate on December 16,1976, to the setting of trial on April 11, 1978. Approximately one year of that time period — from December 16, 1976, until December 6, 1977 — the State was appealing the grant of post conviction relief. Delays caused by government appeals should be charged against the State only when the appeal is taken in bad faith or as a dilatory tactic. See United States v. Herman, 576 F.2d 1139, 1146 (5th Cir. 1978); United States v. Jackson, 508 F.2d 1001, 1005 (7th Cir. 1975); United States v. Bishton, 463 F.2d 887, 890 (D.C.Cir. 1972). We are in agreement with the assessment of the trial judge presiding at the appellant’s speedy trial motion that the issue being appealed by the State was not a frivolous one; thus, the duration of the pending appeals cannot be charged to the State.

The second delay in the time period was from February 14, 1978, when the trial was to commence, until April 11, 1978, when appellant’s pretrial motions to dismiss were heard. Although the record indicates that the two month postponement was at the request of the State due to the prosecutor’s illness, when viewed in another light there was a delay of just over four months between the Court of Appeals’ denial of certiorari and the hearing on appellant’s pretrial motions. Because this was a retrial, the facts of which should have been familiar to the prosecutors who had tried the case once, "something less than the ordinary six-month allowance” is appropriate. Coleman v. State, 49 Md. App. at 222. Eight months to process a case, two months of which were caused by the defendant, were held in Coleman not to be grossly inordinate and we cannot say that four months were grossly inordinate under the circumstances here.

The next time lapse, between the granting of appellant’s motion to dismiss on April 11, 1978, and the Court of Appeals’ decision in "Ward III” on December 21, 1978, cannot, appellant concedes, be weighed against the State.

Appellant does argue as excessive, however, the five month delay between the filing of " Ward III” on December 21, 1978, and the hearing on appellant’s pretrial motion on May 9, 1979. Because the mandate of the Court of Appeals was not issued until January 22, 1979, the delay in retrying appellant was in fact only three and one-half months. See Coleman, supra. Although the State had twice fully prepared for trial, we cannot say that three and one-half months are an unreasonable length of time to process the case for retrial.

The final delay, argues appellant, rests in the lap of the Court of Appeals. Appellant’s appeal from the denial of his motion to dismiss on the ground of double' jeopardy was argued before that Court on January 3,1980, and not decided until April 7, 1981, a full year later than the three months contemplated by the Maryland Constitution, Article IV, § 15.

While other courts have flatly stated that "a violation of the right to a speedy trial can arise from the consumption of an excessive amount of time by the appeals court considering an interlocutory appeal,” Atkins v. Michigan, 644 F.2d 543, 548 (6th Cir.), cert. denied, 452 U.S. 964 (1981), we have held that when a trial is delayed as a result of defendant’s attempts at reversal, the speedy trial right is not affected, even where reversal follows. Britton v. State, 10 Md. App. 70 (1970). Certainly appellant cannot be in a better situation where his appellate attempts fail.

While it is clear that appellant, who was incarcerated from the time of his first sentencing on March 10,1975, until May 11, 1978, made repeated requests for a speedy trial, on balance, having carefully considered each of these factors and all of the circumstances, we conclude that appellant’s constitutional right to a speedy trial was not infringed.

Sufficiency of the Evidence

Appellant’s penultimate ground for appeal is the sufficiency of proof of his criminal agency; in particular, that he "aided, counseled, commanded or encouraged” the murder of Godbout. We think the evidence, although primarily circumstantial, was sufficient to convince a rational trier of fact beyond a reasonable doubt that appellant "aided, counseled, commanded or encouraged” the murder of Godbout. Jackson v. Virginia, 443 U.S. 307, 319 (1979).

Appellant’s former wife testified that on three separate occasions appellant made threatening remarks, in her presence and over the telephone, to the effect that "I would get my divorce, but it would not be the way I wanted it, that he would have his friend take care of me”; "that if I didn’t get rid of my boyfriend, that he would walk in and kill us by shooting us”; and "get rid of your boyfriend or I will kill you both.”

A note was found in the car driven by the principals at the time of their arrest describing appellant’s wife, address and work hours; the make and tag number of an automobile in which she could be "picked up,” (which tag number matched that of the car Godbout was driving at the time of his death) and Godbout’s name. The note was typed on a script typewriter which matched, with "reasonable probability” in the eyes of a document examination expert, the typewriter used to type a letter to the Prince George’s County Human Relations Committee bearing appellant’s signature.

Appellant’s ex-wife and her daughter testified that in August, 1974, they found in appellant’s home a notebook in which was written Godbout’s name, address and automobile tag number.

There was further testimony by a witness in a civil case against appellant that appellant said that he "had perjured myself when I said that I didn’t know when he had hired Brockman and Maness to kill his wife. That I knew damn good and well when it was. It was the day that he had met them at Jesse Stephen’s home .... That I lied when I said I didn’t know when the date was on the witness stand .. . .”

There was sufficient evidence to sustain appellant’s conviction.

Denial of Appellant’s Motion to Dismiss

Appellant lastly contends that the trial court erred in denying his motion to dismiss on the ground of double jeopardy in that his acquittal in " Ward II” as an accessory to first degree murder bars his retrial. The Court of Appeals in "Ward IV,” addressing another double jeopardy argument that appellant’s retrial as an accessory to second degree murder was precluded by the State’s nolle prosequi of the Count 5 murder charge, specifically stated that appellant could be retried on the charge of accessoryship to second degree murder. See 284 Md. at 209.

Judgment affírmed; costs to be paid by appellant.

      . "[Judge Blackwell]: The verdict must represent the considered judgement of each juror. In order to return a verdict, it is necessary that each juror agree thereto. Your verdict must be unanimous. It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if you are convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purposes of returning a verdict. You are not partisans. Since this is a criminal case, you are judges —judges of the facts. Your sole interest is to ascertain the truth from the evidence in the case.
      Counsel, anything further?”

      . Although the jurors individually polled said they were deadlocked and one of the notes was worded "can a iurv vote undecided?,” indicating the jury as a whole could not agree, the accompanying note clearly indicated that "a portion of the jury [could not] arrive at either a guilty or not guilty verdict” after 12Vi hours of deliberation. While the jury’s communications are rather ambiguous, it does not matter in the final analysis which difficulty they confronted.

      . Obviously, if the jury’s difficulty was that one or more jurors had not yet come to a decision, the trial judge acted appropriately in sending them back for further deliberation.

      . But see Thompson v. United States, 354 A.2d 848- (D.C. Cir. 1976).

      . See Md. Ann. Code (1957), art. 27, § 414.

      . While the State conceded that appellant was denied effective representation of counsel at his initial trial because of defense counsel’s failure to assert the defense of the statute of limitations to the conspiracy charges, the State urged that a new trial on the accessoryship charge was not necessary because evidence improperly admitted as to the existence of a conspiracy was independently admissible on the accessory charge as well.

      . That provision states that "[i]n every case an opinion, in writing, shall be filed within three months after the argument, or submission of the cause ----” It has been held, however, to be directory only. McCall’s Ferry Power Co. v. Price, 108 Md. 96 (1908); Pope v. Secretary of Personnel, 46 Md. App. 716, 718 (1980).


author: Gilbert, C. J.,

text:
    JOHN H. COUSER v. STATE OF MARYLAND
    [App. No. 21,

    September Term, 1981.1

      Decided July 8, 1982.

      Before Gilbert, C. J., and Morton and Bishop, JJ.
    Submitted by applicant John H. Couser in proper person.
    Submitted by Stephen H. Sachs, Attorney General, and William A. Swisher, State’s Attorney for Baltimore City, for respondent.
   Gilbert, C. J.,

delivered the opinion of the Court.

John H. Couser, the applicant, was convicted by a jury in the Criminal Court of Baltimore (Dorf, J.) of possession of heroin with intent to distribute. He was committed to the custody of the Division of Correction for a period of twenty years consecutive to a sentence he was then serving. We affirmed the Criminal Court in Couser v. State, 36 Md. App. 485, 374 A.2d 399 (1977), aff'd, 282 Md. 125, 383 A.2d 389 (1978), cert. denied, 439 U.S. 852 (1978).

On January 7, 1981, Couser filed a petition under the Uniform Post Conviction Procedure Act (Art. 27, § 645A — 645J). After a hearing, relief was denied, and this application for leave to appeal ensued.

The applicant advances two reasons why he thinks we should grant his application, namely:

1. He was denied the right to attend a bench conference where jury voir dire was discussed; and
2. the State, by failing to disclose a potential witness, "effectively denied him the right to an informed comparative rejection.”

I.

The applicant asserts that he was not present at a bench conference during which the trial judge questioned an already impaneled juror so as to determine the juror’s possible bias. The State, for reasons not explained in the record, failed to make a pre-trial disclosure that a Miss Sinceray Jones would be called as a State witness. After the jury was impaneled, the State’s Attorney realized he would call Miss Jones. He promptly informed the trial judge and defense counsel of his intention. As soon as the trial judge realized that Miss Jones would be called as a witness, he halted the trial proceedings and conducted further voir dire at the bench. One juror stated that he had had some previous contact with Miss Jones, but said that it would not influence his decision. Appellant’s counsel declared that he had no objection to having that juror continue. No other juror had had any previous contact with Miss Jones. Couser v. State, 36 Md. App. at 497, 374 A.2d at 405.

The hearing judge held that an impromptu voir dire conference was a "stage of the trial” at which the applicant had the right to be present.

"[A] defendant’s presence is required at proceedings conducted for the purpose of determining a juror’s post-impaneling disqualification.” Tisdale v. State, 41 Md. App. 149, 156, 396 A.2d 289, 293-94 (1979).

Having determined that the bench conference was a "stage of the trial” which applicant had a right to attend, the hearing judge, relying upon this Court’s opinion in Noble v. State, 46 Md. App. 154, 416 A.2d 757 (1980), then ruled that the applicant had waived his right to attend the conference by virtue of his "inaction.”

Subsequent to the hearing judge’s ruling in this case, the Court of Appeals issued a series of decisions that substantially altered the law with respect to the right of an accused to be present at various stages of trial. Noble v. State, 293 Md. 549, 446 A.2d 844 (1982); Williams v. State, 292 Md. 201, 438 A.2d 1301 (1981); and State v. Magwood, 290 Md. 615, 432 A.2d 446 (1981).

The Court of Appeals, in the Noble, Williams, and Magwood triology, has announced three questions that must be answered before a post conviction hearing judge may properly grant relief because of the petitioner’s absence from a "stage of the trial.” The three questions are:

1. Did the defendant validly waive the right to be present?

2. Was the violation of the right harmless error?

3. Was the impropriety corrected?

If the answer to question no. 1 is in the affirmative, there is no need to answer 2 or 3, and relief must be denied. Should the answers to questions 1 and 3 be in the negative, but the answer to question 2 be in the affirmative, relief must be denied. Where the answers to questions 1 and 2 are in the negative, but the answer to question 3 is in the affirmative, relief must be denied.

It follows that in order for a petitioner to obtain post conviction relief when the basis of the action is absence from a "stage of the trial,” answers to the three questions must indicate that there was no waiver, and that any error, absent a waiver or correction, was not harmless.

For the guidance of hearing judges, we expound upon waiver, harmless error, and correction of impropriety as they are applied to a "stage of the trial.”

(1) Waiver.

The Court, in Williams v. State, supra, set forth the rule for determining waiver of the right to be present. Actually, the Court established two distinct rules, one applicable to trials completed before December 28, 1981, and a different rule for trials in process or begun after December 28, 1981. The rules are:

A. Trial completed before December 28, 1981:

"The Maryland case law has not required, for a waiver of the right to be present to be effective in all circumstances, that the waiver be 'intelligent and knowing.’ Nevertheless, our cases have required that the waiver be done by the defendant himself and be done expressly.” 292 Md. at 216, 438 A.2d at 1308.

B. Trial in process or begun after December 28, 1981:

"With respect to all criminal trials, or parts of trials, taking place after the issuance of our mandate in this case, an effective waiver of the defendant’s right to be present at every stage of the trial will not always require a personal waiver by the defendant. Where the right of confrontation is not implicated, and where there is involved no other right requiring intelligent and knowing action by the defendant himself for an effective waiver, a defendant will ordinarily be bound by the action or inaction of his attorney.
Nevertheless, if the defendant himself does not affirmatively ask to be present at such occurrences or does not express an objection at the time, and if his attorney consents to his absence or says nothing regarding the matter, the right to be present will be deemed to have been waived.” 292 Md. at 219-20, 438 A.2d at 1310.

Because the trial of the applicant in the instant case was completed before December 28, 1981, he is not deemed to have waived his right to attend the bench conference unless he "expressly” by "himself’ waived his right to be present. The hearing judge found as a fact that:

"Although the Petitioner was present in the courtroom when the bench conference took place, the record does not show whether or not he was present at the bench conference during these discussions.”

Therefore, the applicant cannot be said to have by "himself” "expressly” waived the right to be present at the bench conference. The test of Williams, supra, was not satiated.

(2) Harmless Error.

The Noble Court opined that the harmless error principle applies to violations of a criminal defendant’s right to be present at stages of the trial. The Court held:

"[T]he harmless error principle is fully applicable to a defendant’s right to be present during a stage of the trial. Prejudice will not be conclusively presumed. If the record demonstrates beyond a reasonable doubt that the denial of the right could not have prejudiced the defendant, the error will not result in a reversal of his .conviction.” 293 Md. at 568-69, 446 A.2d at 854.

When possible disqualification of a juror potentially prejudicial to the defendant is involved and the juror examined is retained on the jury, "it would normally be difficult to conclude the violation of the defendant’s right to be harmless.” '293 Md. at 571, 446 A.2d at 855. On the other hand, if, under such circumstances the juror is excused, the error would ordinarily be harmless.

(3) Correction.

In State v. Magwood, supra, the Court decided that even in those situations in which a criminal defendant is absent from a "stage of the trial,” he did not waive his right to attend, and the harmless error principle is inapplicable, the error of the absence, nevertheless, can be corrected.

All that need be done to correct the error is to explain to the defendant, on the record, the substance of what occurred at the proceeding he did not attend. Although the explanation in Magwood was supplied by the trial judge, there is no reason the explanation could not be given by defense counsel or by the Court’s having the court reporter read the transcript, if any, of the proceeding to the defendant.

We shall remand the instant case to the hearing court in order that it might determine the application of waiver, harmless error, or correction to the facts of this particular case. Patently, if the three questions that arise from Noble, Williams, and Magwood are answered adversely to the applicant, the petition for post conviction relief will be denied.

II.

There remains one other issue to be decided. The applicant asserts that because the State failed to inform him of its intention to call Miss Jones he did not peremptorily challenge prospective jurors as he might have done had he known the State was going to call Miss Jones as a witness. This issue was considered in the applicant’s direct appeal, Couser v. State, supra, and decided against him. He may not relitigate it in a post conviction proceeding. Art. 27, § 645A (b) and Wells v. Warden, 244 Md. 722, 224 A.2d 276 (1966).

Application for leave to appeal neither granted nor denied.

Case remanded for further proceedings pursuant to this opinion.

      . The date Williams was decided.

      . Ibid.