Bremer v. State

Orth, C.’J., delivered the opinion of the Court. ARTHUR HERMAN BREMER does not claim that the evidence adduced at his trial before a jury in the Circuit Court for Prince George’s County was not sufficient to sustain the convictions returned against him. * 1 There was no ²⁹⁸ call for that contention because clearly the evidence was sufficient in law to establish that he carried a handgun on his person, and that he used it in the commission of crimes of violence, assaulting four persons with intent to murder. George Corley Wallace, the Governor of Alabama; Nick Zarvos, a Special Agent of the United States Secret Service; Edred Cole Dothard, a member of the Alabama State Police; and Dora Thompson, a campaign worker for .the Governor, were shot. The shootings occurred at the Laurel Shopping Center in Prince George’s County at a Wallace Rally.

The catástasis of the incident was when Governor Wallace finished his speech, descended from the speaker’s platform ²⁹⁹ and walked among the crowd shaking hands. As he was greeting the spectators, he and Zarvos and Dothard and Mrs. Thompson were shot. Evidence adduced by the testimony of the victims, except Governor Wallace, by physicians who treated them, and by several eyewitnesses was legally sufficient to prove the corpus delicti of each crime. 2 See Mahoney v. State, 13 Md. App. 105 . The testimony of two ³⁰⁰ eyewitnesses who made a positive judicial identification of Bremer as the- person who fired the shots, and evidence tending to show that the bullets causing the injuries were fired from a handgun which was in Bremer’s possession, were legally enough to establish Bremer’s criminal agency.

Honest v. State, 5 Md. App. 480 . The trial court did not err in denying Bremér’s 'motion for judgment of acquittal made at the close of all the evidence. Williams v. State, 5 Md. App. 450 . Bremer urges that the convictions be reversed, not because he is innocent of the wrongdoing of which he was found guilty, but because the convictions were improperly come by.

It is a fundamental tenet of our system of justice that a person is presumed to be innocent until he is proved to be guilty. When a defendant is found guilty, his conviction must be properly obtained upon due regard for his substantive rights and fair observance of appropriate procedural rules. We explained this in McKinney v. Director, 18 Md. App. 50 . “Contrary to views expressed at times by those who may not understand them, laws and rules governing procedures in our system of administration of justice are far from being mere ‘technicalities’. Such laws and rules constitute the flesh which fills out the skeleton made up of our substantive rights and responsibilities.

Without procedures for invoking or enforcing those substantive rights and responsibilities, they would be bare indeed. A right without the means of enforcing it is an empty right. In a society governed by laws and not by men, the laws and rules of procedure must be clearly expressed, and must be carefully followed. The alternative would lead to uncertainty at the least, and perhaps to chaos.

Rights which are found only in the books, with no clear means of vindicating them in the courts, have little more than academic significance. ³⁰¹ We are fully aware that there are times when the application of a procedural rule may appear to frustrate rather than to promote justice. But it is basic in our system of organized society that the greatest good for the greatest number is best accomplished by the uniform application of both substantive and procedural laws and rules which are sufficiently certain that a member of that society may know his rights, and how to assert or protect them.” Bremer presents, as he has every right to do, a spate of reasons why the convictions against him should not stand. Some are procedural; some go to substance; some claim, denial of constitutional rights; some assert violation of statutory prescriptions; all allege prejudicial error on the part of the trial court in refusing matters proposed by him or in permitting matters opposed by him. He contends the trial court erred: I. in not abating or staying the trial; II. in not dismissing the indictments; III. in not rescinding its order for a mental examination of him; IV. in not allowing challenge to the array of jurors; V. in not granting proposed voir dire questions; VI. in not permitting more than four peremptory challenges; VII. in not excluding testimony; (1) concerning his sanity adduced from a doctor who “acknowledged that he did not know the Maryland test”; (2) concerning communications made by him to certain doctors; (3) concerning his sanity because it was admitted during the guilt stage of the proceedings; VIII. in its instructions to the jury; ³⁰² IX. in imposing separate sentences under the 2nd and 6th counts of each indictment; X. in certain of its rulings on the evidence.

After affording them careful consideration, we affirm the judgments. We give our reasons. I On 14 June 1972 Bremer filed a motion to abate or stay the proceedings until “(a) a federal criminal prosecution presently pending against him has been concluded; (b) federal authorities who now have him in custody have surrendered him to appropriate Prince George’s County authorities and (c) the effects upon potential jurors of publicity relating to him and to the matters with which he is sought to be charged herein have been dissipated sufficiently to enable him to obtain a fair and impartial jury in this Court.” The motion came on for hearing on 21 June. After Bremer adduced some evidence through the testimony of the manager of the city home delivery of the Washington Post, it was agreed that the hearing on the motion would be continued to enable the State and defense to prepare a stipulation and submit tangible evidence.

On 28 June Bremer offered various newspapers and excerpts from newspapers and magazines. After the court had examined the evidence, it denied the motion. On appeal Bremer says that the denial was prejudicial error, and in support thereof relies only on that reason in the motion concerning the publicity as derogating from a fair trial. In ruling-on the motion the trial judge observed that the exhibits indicated that immediately after the date on which Bremer was charged “there was considerable publicity about four different people being shot in a shopping center in Laurel.” He said: “It’s rather interesting to note that the publicity that was particularly called to the Court’s attention was that in a magazine section of the Washington Post, which was seven ³⁰³ days later, and in the next edition following the episode of Time Magazine, Newsweek and Life Magazine.

Of course, all of that publicity was ón a national basis and is not concentrated in any way in this area. There was for the first few days considerable publicity in all of the news media. Interestingly enough, not very much in the local county weekly papers. There is no daily paper published in Prince George’s County but the Washington and Baltimore papers, and undoubtedly very much the same news was published in newspapers all over the United States.

I guess even other places beyond the limits of the United States. The test here or the decision involves balancing a number of different factors. One is that a person accused of a crime not only is entitled to a speedy trial, but the authorities administering the system should be interested in bringing about speedy trials, and the public has a definite interest in speedy trials. There is nothing unusual about setting this kind of a case this length of time.

I think counsel for the defendant would be compelled to concede readily a trial date that was set here is not unduly early or unduly speedy. In addition to that, of course, there are cases that by their very nature they generate publicity and they generate discussion, and that can’t be avoided. W'hen one of those kind of cases comes up, there is more coverage by the news media, there is more public interest, there is obviously more publicity, but that is just something that occurs by the very nature of things, and the Court isn’t responsible for that, and we have to balance that with the question that perhaps you can say if the trial was delayed one year there would not be quite as much publicity and people who had read — prospective jurors who had read something about it might have forgotten about it, or the idea would be dim in their minds, ³⁰⁴ but six months it wouldn’t be quite as dim, and if you waited two years it would be dimmer in their minds, and might possibly make an argument to continue one of these kinds of cases for several years. But you have to balance that with other interests, and the final test comes as to whethér or not the kind of publicity and the nature of the case and the circumstances are such, weighing the public interest and getting cases over with and disposed of, and innocent people freed and guilty people dealt with, balancing that out with the questions of delay, and then testing the whole question of whether or not the nature of the publicity has been sufficiently prejudicial or prejudicial to a degree that it would deny the defendant due process.

The classic case in this area is Sheppard versus Maxwell [ 384 U. S. 333 (1966)] which has been cited by both sides, and has even been mentioned in an earlier ruling in this very case, but there the case was of particular local interest because it involved a .prominent local citizen who was accused of murdering his wife. There was a great deal of publicity. Apparently the case created such interest that correspondents from all over the country came there for the trial. Almost constantly in that case the prosecutor was making statements about what witnesses he would be calling, and the defense attorney was making statements to the press' and being interviewed.

They had a complete list of the prospective jurors and they were being interviewed. Witnesses were being interviewed. A coroner’s inquest was on live television and televised over the entire area. Newspaper editorials were demanding an arrest and making assertions of the defendant’s guilt.

Then at the trial itself the greater proportion of the entire courtroom was set out for the press, and they were inside the rail and literally breathing down the backs of counsel and the defendant, and ³⁰⁵ picking up exhibits and looking at them during the course of the trial, and it was even impossible for the defendant to confer with his attorney in the area where he was; he had to go off and seek some kind of seclusion. The Supreme Court held there that the totality of the circumstances were such that the defendant had not received a fair trial, it was not due process, and. that he was entitled to another trial. This was some twelve years later after the conviction. It doesn’t seem to me we are confronted with that.

I did not find in looking over the various clippings and various articles, nor was anything called to my specific attention, that demanded a conviction, that stated anything actually about the trial itself or said anything about the witnesses' who would testify. There were .no statements by either of the prosecuting attorney or the defense attorney, and there were no editorials. It seems to me the circumstances of the case are such that there would bound to be more than, much more than, the usual amount of publicity, but, on the other hand, it does not seem to me that that would prevent the defendant from having a fair trial, though the jury will be carefully instructed in any trial that takes place concerning the full protection of the defendant concerning any publicity; that voir dire questions will be permitted to protect the defendant. I therefore conclude under all of the circumstances nothing has occurred which will jeopardize the defendant’s right to a fair trial or deny him due process, and that the motion to abate or stay proceedings will be denied.” We see no abuse of judicial discretion in the denial of the motion to abate or continue the proceedings as on our independent constitutional appraisal we find as did the trial court that Bremer’s right to a trial by an impartial jury or to due process of law was not denied.

See Bryant v. State, 207 ³⁰⁶ Md. 565. On the circumstances of this case, the doctrines of Estes v. Texas, 381 U. S. 532 , Turner v. Louisiana, 379 U. S. 466 , and Rideau v. Louisiana, 373 U. S. 723 , do not apply. Cf. Groppi v. Wisconsin, 400 U. S. 505 .

We,particularly note the answers to the voir dire questions as discussed in Part V hereof. As we have indicated, the keystone of criminal justice as administered under our system is the presumption of innocence. When the People accuse a person of conduct prohibited in the interest of society as a whole, that person stands trial before his peers cloaked in the presumption and armed with the constitutional guarantees conferred upon him. The People must prove his guilt for him to be convicted.

The measure of proof is beyond a reasonable doubt and the manner of proof is by a fair and impartial trial. No trial is fair and impartial which unduly encroaches upon the constitutional rights of the individual. Individual rights, however, must be weighed against the rights of the People. For society as a whole, no less than the individual member of it, has rights, and the fine balance between them must be maintained.

Although the individual accused of crime has the right to a fair and impartial trial, the People have the right to know the facts concerning matters which affect them, and neither widespread and diverse methods of communicating such facts nor public knowledge of them necessarily derogates from a fair and impartial trial. When the nature of misconduct is such that extensive publicity is sure to follow, and, particularly, when a motivation for the misconduct is the inevitable publicity, it would be ironic indeed were the miscreant to escape punishment because of that publicity. No person has a constitutional right per se not to be tried upon a charge duly made that he committed a crime. For a trial to be precluded or long delayed because of the sheer enormity of the offense’would result in anarchy and anomie.

The right to a fair trial and the right of a free press must be balanced, but with the realization that there is no war between the constitution and common sense. ³⁰⁷ II On 14 June 1972 Bremer filed a motion to dismiss the indictments. He assigns as reasons: (1) all of the counts are unconstitutionally vague; (2) Code, Art. 27, § 36 B (b), a violation of which was charged by the 5th count of indictment 12,376, and § 36 B (d), a violation of which was charged by the 6th count of each indictment are unconstitutional; (3) Code, Art. 27, § 36 B (d) is invalid because it lends itself to the imposition of double punishment for the same act; (4) the 6th count of each indictment merged into the 2nd count thereof. (1) Bremer broadly argues that none of the counts charges an offense. He complains because they do not allege facts.

He gives only three specifics: (i) “the assault with intent to murder counts do not even allege, for instance, that each supposed assault was accomplished by shooting (the alleged victim) with a gun”; (ii) “nor do they in any way specify the manner or means which the State claims Bremer employed to carry out the alleged offenses”; (iii) “the handgun counts do not identify the weapon sought to be referred to in any manner, even as being a pistol”. He concludes that the counts “thus fail to inform [him] of the accusations sought to be made against him and are thus fatally defective.” We do not agree. It is well settled that an indictment is sufficient if it informs the person charged of the acccusation against him as required by Article 21 of the Maryland Declaration of Rights, and if the charge is made with sufficient definiteness to enable him to prepare his defense and to prevent the accused from being charged again with the same offense in a future prosecution. Byrd v. State, 16 Md. App. 391, 396-400 ; Mason v. State, 12 Md. App. 655, 677 , and cases therein cited. 3 The indictment is generally held to be sufficient if it ³⁰⁸ follows substantially the language of the statute proscribing the crime alleged or charges the offense in equivalent words or others of the same import if the defendant is thereby fully informed of the particular offense charged, and the court is enabled to see therefrom on what statute the charge is founded.

Beasley v. State, 17 Md. App. 7, 11 , quoting Baker v. State, 6 Md. App. 148, 157 . The 2nd count of each indictment sets out the date the alleged offense was committed, describes the offense as a felonious assault on a named person with intent feloniously, wilfully and of malice aforethought to murder that person and states that this is “contrary to the' form of the Act of Assembly in such cases made and provided and against the peace, government and dignity of the State.” Code, Art. 27, § 12 prescribes that “every person convicted of the crime of assault with intent to murder shall be guilty of a felony” and designates the sentence. The statute does not attempt to define the elements, but it has been long established that it is necessary that there be proof of an assault, and that it was with an intent to murder, that is, had death ensued the homicide would have constituted murder. Therefore, it embodies the element of malice.

Woodard v. State, 13 Md. App. 114, 121-124 ; Simms v. State, 4 Md. App. 160, 168 . The challenged counts as drawn include the elements of assault, intent to murder, and malice. Clearly the crime of assault with intent to murder is charged, and it was set out with sufficient specificity to enable Bremer to prepare his defense and to prevent him from being charged again with the same ³⁰⁹ offense in a future prosecution. How the assault was accomplished and other details of the commission of the offense were for the probata, not the allegata.

See Rule 712 a. “The means of effecting the criminal intent, or the circumstances evincive of the quo animo, with which the act was done, are considered to be more properly matters of evidence for the jury to demonstrate the intent, than proper to be incorporated into the indictment. . . .” State v. Dent, 3 Gill & Johnson 8, 10. See State v. Falkenham, 73 Md. 463, 468 ; Hollohan v. State, 32 Md. 399, 401 . We hold that the counts charging assault with intent to murder were not unconstitutionally vague. The 5th count of indictment 12,376 presented that on 15 May 1972 Bremer “did unlawfully carry a handgun on or about his person in violation of Article 27, Section 36 B (b), and against the peace, government and dignity of the State.” The statute designated reads in pertinent part: “Any person who shall . . . carry . . . any handgun, whether concealed or open, upon or about his person . . . shall be guilty of a misdemeanor The count follows substantially the language of the statute and is thus sufficiently definite.

Moreover, Bremer demanded and was granted particulars as to this count. The answer to the demand identified the handgun as “One Carter Arms 38 cal., 5-shot revolver, model, undercover, Serial #104347” and stated that Bremer carried the handgun “on or about his person on May 15, 1972 in Laurel, Prince George’s County, Maryland,” which the State intended to show by eyewitnesses. Rule 715. Bremer did not except to the answer to his demand.

We hold that the 5th count of indictment 12,376 was not unconstitutionally vague. The 6th count of the indictments presented that on 15 May 1972 Bremer “did unlawfully use a handgun in the commission of a crime of violence in violation of Article 27, Section 36 B (d) and against the peace, government and dignity of the State.” The statute designated provides: “Any person who shall use a handgun in the ³¹⁰ commission of any felony or any crime of violence as defined in § 441 of this article, shall be guilty of a separate misdemeanor . . . Section 441 defines “crime of violence” to mean certain designated crimes and “assault with intent to commit any other offense punishable by imprisonment for more than one year.” Assault with intent to murder is a felony and the maximum sentence authorized is 15 years. The counts refer explicitly to the statute alleged to have been violated and are drawn substantially in the statutory language.

We hold that the 6th count in each indictment is not unconstitutionally vague. (2) Bremer urges that Code, Art. 27, § 36B is unconstitutional because the title of Chapter 13, Acts 1972, which enacted the statutes “embraces more than one subject, e.g., 'handguns, licenses and private detectives,” and because the body of the Act “includes a subject matter not described in its title, viz, mandatory minimum sentences” without any requirement that the basis for exposure to such mandatory punishment be set out in an indictment. Article III, § 29, Constitution of Maryland, provides that “. . . every Law enacted by the General Assembly shall embrace but one subject, and that shall be described in its title; . . . .” Chapter 13, Acts 1972 is entitled as follows: “AN ACT to repeal and re-enact, with amendments, Section 36 of Article 27 of the Annotated Code of Maryland (1971 Replacement Volume), title ‘Crimes and Punishments,’ subtitle ‘I. Crimes and Punishments,’ subheading ‘CARRYING OR WEARING WEAPON’; to repeal and re-enact, with amendments, Section 36A (c) of said Article and title of the said Annotated Code of Maryland (1971 feeplacement Volume and 1971 Supplement), subtitle ‘I. Crimes and Punishment,’ subheading ‘Carrying Deadly Weapons on Public School Property’; to add new Sections 36B, 36C, 36D, ³¹¹ 36E, and 36F to Article 27 of the Annotated Code of Maryland (1971 Replacement Volume and 1971 Supplement), title ‘Crimes and Punishments,’ subtitle T. Crimes and Punishments,’ to follow immediately after Section 36A of said article, title and subtitle, under the new subheading ‘Handguns’; to repeal and re-enact, with amendments, Section 594B (e) of Article 27 of the Annotated Code of Maryland (1971 Replacement Volume), title ‘Crimes and Punishments,’ subtitle ‘II. Venue, Procedure and Sentence,’ subheading ‘Arrests;’ to repeal Section 90A of Article 56 of the Annotated Code of Maryland (1968 Replacement Volume and 1971 Supplement), title ‘Licenses,’ subtitle ‘Private Detectives;’ to exclude handguns from the provisions of Section 36 of Article 27; to amend the penalties for carrying a handgun on public school property; to make unlawful, generally regulate, and provide penalties for the wearing, carrying, or transporting of handguns; TO MAKE UNLAWFUL THE WEARING, CARRYING, OR TRANSPORTING OF HANDGUNS BY A PERSON WITH A PERMIT WHILE HE IS UNDER THE INFLUENCE OF ALCOHOL OR DRUGS AND TO PROVIDE PENALTIES THEREFOR; to make the use of a handgun in the commission of a felony or crime of violence a misdemeanor and to provide penalties therefor; to allow law enforcement officers to conduct searches for handguns under certain circumstances; to allow law enforcement officers to arrest persons for violating Section 36B of said article pursuant to the provisions of Section 594B (e) of Article 27; to repeal provisions for the issuance of permits to private detectives to carry concealed weapons; TO CORRECT CERTAIN OBSOLETE LANGUAGE AND REFERENCES; TO PROVIDE FOR SEIZURES, FORFEITURES AND PROCEDURES RELATING THERETO; and relating generally to the regulation of handguns.” ³¹² In Leonardo v. Board, 214 Md. 287 , the Court of Appeals noted: “Section 29 of Article 3 of the Constitution has been involved in cases before this Court on numerous occasions.

It has been included in the last three Constitutions of this State, and its purposes are to prevent the combination in one act of several distinct and incongruous subjects, and to inform the members of the legislature of the nature of the bills introduced, which are usually read to them by their titles only, and to permit the citizens of the State to know of proposed legislation. The general rule of its construction is that every presumption favors the validity of the statute, and reasonable doubt is enough to sustain it.” In testing conformity of a title to this constitutional requirement, there is enjoined upon the courts a disposition to uphold rather than to defeat the enactment. Mayor & City Council v. Perrin, 178 Md. 101 ; Allied v. Commissioner, 219 Md. 607 . If several sections of the law refer to and are germane to the same subject matter, which is described in its title, it is considered as embracing but a single subject, and as satisfying the requirements of the Constitution in this respect.

Beshore v. Town of Bel Air, 237 Md. 398 ; Panitz v. Comptroller, 247 Md. 501 . The various sections of the Act, although addressing themselves to several related topics, are germane to a single subject, restrictions on the use and possession of “handguns.” The title, therefore, is not at variance with the constitutional mandate. As to Bremer’s argument about the penalty, the title of the Act includes that the Act is to provide penalties for the use of a handgun in the commission of a felony or crime of violence. Further, we find that the mandate for the imposition of a minimum sentence set out in Code, Art. 27, § 36B (d) does not violate any guarantee in Article 21 of the Maryland Constitution. ³¹³ (3) Code, Art. 27, § 36B (d), proscribing the use of a handgun in the commission of a felony or designated crime of violence, expressly provides that any person so using such weapon “. . . shall be guilty of a separate misdemeanor and on conviction thereof shall, in additi'on to any other sentence imposed by virtue of the commission of said felony or misdemeanor, be sentenced to the Maryland Division of Correction for a term of not less than five nor more than fifteen years, and it is mandatory upon the court to impose no less than the minimum sentence of five years.” The legislative intent is clear.

The question is whether the statute is constitutional. We think it is. We see no violation of the double jeopardy clause of the fifth amendment to the federal constitution, Benton v. Maryland, 395 U. S. 784, 787 , because the crime created by § 36B (d) is separate and distinct from the felony or crime of violence to which it relates. Thus there is no question of being twice put in jeopardy “for the same offense.” See William Cornelius Jones v. State, 17 Md. App. 504 .

Bremer suggests that the 6th count of each indictment merged into the 2nd count. The point is not properly raised in the frame of reference of its presentation. Bremer would have the 6th count dismissed on his pretrial motion. Merger could only occur upon conviction under each of the 2nd and 6th counts.

The doctrine of merger provides no basis to dismiss the counts prior to conviction. See Dorsey v. State, 9 Md. App. 80, 87-88 . 4 III Bremer entered a special plea raising the defense of insanity. 5 On 28 June 1972 the trial court ordered that he be delivered to the custody of The Clifton T. Perkins State ³¹⁴ Hospital and that an examination of him be there made by the Department of Mental Hygiene for . determination whether he was insane at the time of the commission of the alleged offenses and whether he was of such mental incapacity as to prevent him from properly conducting his defense. Bremer promptly filed a motion to strike or rescind the order for the mental examination of him. He claimed it deprived him of his right to remain silent and compelled or sought him to incriminate himself in violation of his constitutional rights.

Upon hearing the same day, the motion was denied. The contention as presented by Bremer is that the lower court erred in refusing to rescind its order for the mental examination. The order was pursuant to Code, Art. 59, § 25 (b), which gives the trial court, when a person interposes the defense of insanity, “ . . . full power and authority to order an examination of the mental condition of such person by the Department of Mental Hygiene . . . . ” There is a statutory privilege extended to patients 6 to refuse to disclose, and to prevent a witness from disclosing any communication, wherever made, relating to diagnosis or treatment of the patient’s mental or emotional disorder. “This privilege applies to communications between patient and psychiatrist, between patient and certified psychologist, between a patient and other patients receiving diagnostic or treatment services in a formal group conducted by the psychiatrist or certified psychologist, or between members of the patient’s family and the psychiatrist or certified psychologist, in the accomplishment of the objectives of diagnosis or treatment.” Code, Art. 35, § 13A (b). But there is no privilege for any relevant communications “in all proceedings, whether civil or criminal, in which the patient introduces his mental condition as an element of his claim or defense . . . .” Code, Art. 35, § 13A (c) (3).

It seems that ³¹⁵ Bremer urges that Code, Art. 59, § 25 (b), considered in the light of Code, Art. 35, § 13A (c) (3), is unconstitutional as applied to him. He argues: “If he elected to cooperate with State psychiatrists, he must accept a substantial risk of self-incrimination by making statements which would later be disclosed to a jury deciding his guilt or innocence. If, on the other hand, he chose to remain silent and refuse cooperation, he must gamble that he would not thereby severely damage his chances of succeeding in his insanity defense, or even lose an opportunity to establish it conclusively.” He ties all this in to the single trial procedure in Maryland whereby the same jury determines both the defendant’s criminal responsibility and his guilt or innocence. He claims that the denial of a bifurcated trial on the separate issues of insanity and guilt of the crime violates due process and equal protection of the laws.

We have held that a bifurcated trial on the separate issues of insanity and guilt of the crimes is not constitutionally mandated. Sweeney v. State, 6 Md. App. 431, 438-439 . We adhere to that view. We pointed out in White v. State, 17 Md. App. 58, 61 , that the plea of insanity is no more than the assertion of an affirmative defense.

We said, in Sweeney , at 438, that such defense, once doubt has been raised as to sanity, see Strawderman v. State, 4 Md. App. 689, 698 , is not determinable apart from the trial on the merits of guilt or innocence under the general issue plea, but is a matter for a finding at the trial by the trier of fact, be it court or jury. We saw no violation of due process then by such procedure and we see none now, nor do we believe that equal protection of the laws is thereby denied. On the contrary, we held in Morris v. State, 11 Md. App. 18, 25-26 , that due process of law was denied where there was a finding of not guilty by reason of insanity at the time of the commission of the offense without the State producing evidence at the trial sufficient in law to establish the corpus delicti of the crime charged and the criminal agency of the accused. When insanity is raised as a defense the procedure to be followed is firmly established.

We laid it out in Strawderman v. State, supra, at 698: ³¹⁶ “So when a plea has been filed in writing alleging that the accused was insane at the time of the commission of the alleged crime, the court should determine preliminarily whether the proof adduced in support thereof is sufficient to raise a doubt as to the sanity of the accused, as defined, in the minds of reasonable men. If it finds that it is not, the State has no further burden with respect thereto and, in a jury trial, the question is not submitted to the jury. If the court finds that the proof adduced was sufficient to surmount the threshold question of doubt as to the accused’s responsibility, the State has the burden of convincing the trier of facts that the accused was sane, and, in a jury trial, evidence on the issue should then be introduced before the jury with proper instructions.” We noted that in a jury trial such proof on the preliminary question should be presented out of the presence of the jury. Id., note 7 at 698.

But see Mahoney v. State, 8 Md. App. 44 . In the light of the established procedure, the propriety of the statutory power in the court to order an examination of the mental condition of a defendant is evident. 7 Where he has pleaded insanity as a defense and presented evidence to meet the threshold question, the maintenance of a “fair state-individual balance” requires that the State be permitted to have him examined. When he is indigent the State is required to provide him with an impartial and competent psychiatrist at the State’s expense. Skinner v. State, 16 Md. App. 116, 123-124 .

This may be done by making available to the defendant the impartial and competent psychiatric staff at the Clifton T. Perkins State Hospital. Brown v. State, 14 Md. App. 415, 423 ; Swanson v. State, 9 Md. App. 594, 600-602 . 8 In such circumstances we believe ³¹⁷ that a defendant’s right against self-incrimination is not violated per se by requiring him to submit to a mental examination. The Supreme Court explained the right in Miranda v. State of Arizona, 384 U. S. 436 , 460: “We have recently noted that the privilege against self-incrimination — the-essential mainstay of our adversary system — is founded on a complex of values. . . . All these policies point to one overriding thought: the constitutional foundation underlying the privilege is the. respect a government — state or federal — must accord to the dignity and integrity of its citizens.

To maintain a ‘fair state-individual balance,’ to require the government ‘to shoulder the entire load,’ 8 Wigmore, Evidence 317 (McNaughton rev. 1961), to respect the inviolability of the human personality, our accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth. ... In sum, the privilege is fulfilled only when the person is guaranteed the right ‘to remain silent unless he chooses to speak in'the unfettered exercise of his own will.’ ” (case citations omitted) Not only was the mental examination to determine Bremer’s sanity vel non required to maintain a “fair state-individual balance,” but it follows that if the State must “shoulder the entire load” of establishing sanity beyond a reasonable doubt, it must have the means to do so at its disposal. The State should not have to rely on examinations made only by experts chosen by Bremer, leaving it with recourse only to cross-examination of them, or to its selected experts whose testimony would be predicated upon courtroom observations and hypothetical questions. 9 Nor do we deem the purpose ³¹⁸ and result of the examination of Bremer by the staff at Perkins to be “the cruel, simple expedient of compelling [incriminating evidence] from his own mouth.” The purpose of the examination was to determine whether Bremer possessed the requisite mental capacity, in the face of his plea that he did not, to be criminally responsible for the criminal acts charged, upon proper proof that he did do them. See United States v. Albright, supra, at 724-725.

We hold that at the time and in the circumstances of the presentation of the motion to rescind its order that Bremer be examined at The Clifton T. Perkins Hospital, the motion was properly denied. IV Code, Art. 51, § 4 (b) (iv) prescribes that when the names of prospective jurors are drawn as designated, “Notwithstanding any other provision of law or this article, the name, address, age, sex, occupation, occupation of spouse, and education of each person” so drawn shall be made public, “unless the jury judge shall determine in any case that the interest of justice requires that this information shall remain confidential”. Section 10 (a) provides: “In criminal cases, before the voir dire examination begins, or within seven days after the defendant discovered or could have discovered, by the exercise of diligence, the grounds therefor, whichever is earlier, the defendant may move to dismiss the indictment or stay the proceedings against him on the ground of substantial failure to comply with the provisions of this article in selecting the grand or petit jury.” Shortly before the voir dire examination began Bremer challenged the array of jurors and moved “for a stay pending production of a jury array or venire facias in accordance with Article 51.” The challenge and motion were made on ³¹⁹ the ground that the education of each person drawn was not made public. It appears that the list of jurors for Prince George’s County as made public in April, 1972, did not designate the “education” of the persons thereon, and although defense counsel did not obtain the list until some four days before the commencement of the trial, it was available to him before that time.

In any event, it is dear that the educational information had been made available to defense counsel before the challenge and motion were made. The trial court denied the challenge and motion for that reason. The transcript reads: “THE COURT: I will deny that because you have made the point and it has been supplied to you. MR.

LIPSITZ [Defense Counsel]: All right, Your Honor. THE COURT: The information is furnished on a questionnaire. And you have it on all the jurors. MR.

LIPSITZ: I agree, I have it today. I am simply making the point for the record that the array is bad because of the failure of the Circuit Court for Prince George’s County to include this information in the published list when the panels were drawn. . . .” We see no prejudice to Bremer in the circumstances and hold that the trial court did not err in denying the challenge and motion. 10 V Bremer proposed fifty-three voir dire questions. The trial court rejected them and asked eleven questions propounded by it. Bremer, although contending that “most of his questions were appropriate,” urges that the failure to ask Nos. 21, 22 and 23, or similar ones specifically aimed at ³²⁰ determining the juror’s exposure to pretrial publicity and particularly to the CBS news film which subsequently became part of the State’s evidence, was extremely harmful to him and vitiated his trial.” 11 The questions asked the jury by the court included whether the prospective juror had expressed or formed any opinion as to the guilt or innocence, or as to the sanity or insanity of Bremer. 12 The penultimate question (No. 10) was: “Have you read, seen, or heard anything about this case which would prevent you from rendering a fair and impartial verdict based solely on the evidence adduced in court during trial. . . as to the guilt or innocence of the defendant and secondly as to the defendant’s sanity at the time of the commission of the alleged offense?” The last question (No. 11) was: “Is there any reason why you would not be able to render a fair and impartial verdict in these cases based solely on the evidence adduced in court during the trial?” ³²¹ In refusing to ask proposed questions 21 and 23, the court thought they were covered by its question 10.

As to proposed question 22, the court said: “Number 22 involves a specific film — and we all recognize there was a great deal of publicity, a great many television programs that prospective jurors would see. My view in this case is that nothing has been brought to me that I think would be prejudicial in that it involved any demand for conviction, any positive statements in that connection, nor am I aware of any publicity that involved information that would not be admissible in this case as contrasted with several cases, Sheppherd versus [Maxwell], and others. . . . For that reason, I don’t feel that a particular item should be pinpointed and brought out.” The purpose of the voir dire examination is to ascertain the existence of cause for disqualification and for no other purpose. Borman v. State, 1 Md. App. 276, 279 .

We said in Phenious v. State, 11 Md. App. 385 , 389: “In Maryland, the extent of a voir dire examination rests within the sound discretion of the trial judge, Rodgers v. State, 4 Md. App. 407 , 213 A. 2d 28 , Culver v. State, 1 Md. App. 406 , 230 A. 2d 361 . Maryland has no rule or statute defining the objects of inquiry in determining the eligibility of jurymen. The cases have, however, established that questions must relate to some specific issue of eligibility; those which are speculative or in the nature of a fishing expedition may be refused by the court in its discretion. Grogg v. State, 231 Md. 530 , 191 A. 2d 435 , Kujawa v. Baltimore Transit Co., 224 Md. 195 , 167 A. 2d 96 , Emery v. F. P. Asher, Jr. & Sons, Inc., 196 Md. 1 , 75 A. 2d 333 .

See Whittemore v. State, 151 Md. 309, 315 , 134 A. 322 . The rule applies even though it would not have been error to have asked the question. McGee v. State, 219 Md. 53 , 146 A. 2d 194 .” ³²² We find no abuse of judicial discretion in the refusal of the court below to ask the proposed questions nos. 21,22, and 23, because we believe that the questions asked by the judge served to assure that Bremer was afforded his specific constitutional rights to trial by an “impartial jury,” Amendment VI, Constitution of the United States and Article 21, Declaration of Rights, Constitution of Maryland, and “to a fair trial in a fair tribunal,” which is the basic requirement of due process. In re Murchison, 349 U. S. 133, 136 .

Although the theory of the law as stated in Reynolds v. United States, 98 U. S. 145, 155 , is that “a juror who has formed an opinion cannot be impartial,” the Supreme Court revisited Reynolds in Irvin v. Dowd, 366 U. S. 717 , and explained, at 722-723: “It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard.

It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” Here we need not go as far as Irvin permits. It was clearly indicated through the voir dire questions put to the jury that no juror had formed an opinion, no juror had “read, seen, or heard anything” which would prevent him from rendering a fair and impartial verdict based solely on the evidence adduced in court during trial, and no juror had reason not to be able to render a fair and impartial verdict based solely on ³²³ such evidence. After performing our duty “to independently evaluate the voir dire testimony of the impaneled jurors,” 366 U. S. at 723 , we conclude that the trial court did not err in refusing to ask the questions as proposed. 13 VI In selecting the jury Bremer was permitted four peremptory challenges as provided by Rule 746 a 2. 14 On this appeal Bremer urges that the restrictions of the Rule should not have been applied to him and argues that in any event the Rule is unconstitutional as denying him due process and equal protection of the laws. We deem the provisions of the Rule as to the number of peremptory challenges to be mandatory and not discretionary, but the short answer to Bremer’s contentions is that the matters are not properly before us because they were not tried and decided below.

Rule 1085. The transcript of the proceedings clearly reflects that the court expressly made known to defense counsel that four peremptory challenges were permitted Bremer and that thereafter, as a peremptory challenge was made on the part of Bremer, the court informed defense counsel of the number remaining. No objection was made to the number of peremptory challenges permitted, nor was the constitutionality of the Rule, either on its face or as applied, challenged. We shall not now consider these issues.

Gibson v. State, 17 Md. App. 246, 252-253 . ³²⁴ VII (1) Dr. William N. Fitzpatrick, a medical doctor certified by the American Board of Psychiatry and Neurology as a specialist in psychiatry, testified on behalf of the State. 15 He said he had seen Bremer on the mornings of 13 and 15 June 1972 at the Towson jail “to perform a psychiatric evaluation of him to answer the question of whether or not he was criminally responsible for certain acts which he is alleged to have committed.” The examination consisted of an interview with Bremer, “direct interaction with him in terms of questioning and listening to what he had to say,” as a result of which Fitzpatrick arrived at a conclusion. The transcript reads: “Q. [by the State’s Attorney]: And as a result of those interviews, sir, did you arrive upon any type of conclusion? A. Yes. Q. Do you have an opinion, sir, as to the sanity of Arthur Herman Bremer on May 15,1972?

MR. LIPSITZ [Defense Counsel]: I will object to the question. THE COURT: The question isn’t put that way, Mr. Marshall. By Mr. Marshall: Q. Are you familiar with Article 59, Section 25 of the Annotated Code of Maryland as to the laws of criminal insanity in the State of Maryland? ³²⁵ A. I am familiar with the test for criminal responsibility under the American Law Institute which, I believe, is applicable.

MR. LIPSITZ: I object, Your Honor, and move to strike the answer. THE COURT: He answered what he is familiar with, but that is not the test in Maryland.” The State then asked Fitzpatrick if Bremer had a mental disorder on 15 May 1972. Over objection the witness recited the observations he made.

It was his opinion that “on that day [Bremer] had the capacity, that is he did not lack capacity to realize the criminality of his behavior and to conform his conduct to the requirements of law.” Asked: “Did you find any evidence whatsoever of mental disease or defect or a mental disorder?”, the witness answered: “In my own terms, no.” On cross-examination Fitzpatrick said that he was examining Bremer for the federal court under the American Law Institute Test and that if the test of insanity in Maryland was not the same as the A.L.I. test, he did not know what it was. Bremer moved to strike his testimony. At a bench conference the court pointed out that in the Maryland test “mental disorder” was substituted for “mental disease or defect.” See Truesdale v. State, 16 Md. App. 260 ; Young v. State, 14 Md. App. 538 ; Sherrill v. State, 14 Md. App. 146 . By the provisions of Code, Art. 59, § 25 (a), “A defendant is not responsible for criminal conduct and shall be found insane at the time of the commission of the alleged crime if, at the time of such conduct as a result of a mental disorder, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.” 16 The term shall not include “an ³²⁶ abnormality manifested only by repeated criminal or otherwise antisocial conduct.” Bremer does not claim that the wrong test was applied by other psychiatrists who evaluated him and testified at his trial, but he urges that Fitzpatrick’s testimony should have been stricken because he did not know what the test was.

We do not believe that the denial of the motion to strike Fitzpatrick’s testimony constituted reversible error in the circumstances. Fitzpatrick said that in the context of what the term meant to him, Bremer did not suffer from a mental disorder. Bremer had opportunity on cross-examination to ascertain what “mental disorder” meant to Fitzpatrick and expressly chose not to do so. In any event, seven other psychiatrists 17 testified on the point.

All of them were of the opinion that Bremer suffered from a mental disorder. Three of them said that Bremer did not lack substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law, álthough one of the three, when pressed, seemed not certain. Two of them said that he did lack such capacity. Two of them were unable to give an opinion as to such capacity.

Although it is true that Bremer could not be found to be insane in the contemplation of the statute if he did not suffer from a mental disorder, it is also true that he could be found sane even though he suffered from a mental disorder. We hold that the denial of the motion to strike Fitzpatrick’s testimony, if error, was not so prejudicial in the circumstances as to require reversal. (2) Bremer charges the trial court with error in requiring Dr. ³²⁷ Eugene B. Brody and Dr. Sheila Hafter Gray, psychiatrists called to testify in behalf of Bremer, “to disclose communications made to them by Bremer regarding alleged events at Laurel, Maryland on May 15,1972.” On direct examination Brody recounted the history of Bremer’s life. Brody had interviewed Bremer, spoken to his father and mother, and read the psychiatric evaluation report by Jonas Rappeport, M. D., the psychological test report by James Olson, Ph.D., a report by a social worker named Mrs. Eloise Agger, a social work report based on a two-hour joint interview with Mr. and Mrs. Bremer, and Bremer’s diary.

He had seen the psychological report by a Doctor Stammyer. Brody described “a third acutely disturbed period” in Bremer’s life, which seemed to end on or about the 1st of March when Bremer decided, he told Brody, “to assassinate either Richard Nixon or George Wallace.” Brody said: “The beginning of his diary on March the 4th was an important moment evidently because it symbolized this decision, and it apparently, that is the making of the decision, apparently had the effect of temporarily resolving some of his tension-producing conflicts, and with this decision and the beginning of action aimed at carrying out the goal, much of the tension associated with the loss of Joan seemed to have diminished for a time. So this was an act which had a function for the patient. It was a symptomatic decision.” Brody told how he followed the story in Bremer’s diary, which detailed his criss-cross of the country in pursuit of President Nixon.

During the cross-examination of Brody the State asked: “In this two-hour conversation that you had with the accused, Mr. Bremer, what else did you talk about? What did you talk about? Did he tell you how he enjoyed shooting Governor Wallace?” The defense objected. At a bench conference the defense gave as the ground for his objection the uneonstitutionality of Code, Art. 35, § 13A (c) (3).

The ³²⁸ court overruled the objection because “the witness had testified as to what he used as a basis and he had even testified as to his plans for the assassination of President Nixon and Governor Wallace, and to invoke this would be to deprive the State of fair cross-examination in that area.” The cross-examination of Brody continued before the jury: “Q. In your conversations with Arthur Herman Bremer, the accused, on July 11 did he tell you about shooting Governor Wallace? A. We didn’t focus on the question of whether or not — Q. Did he — Go ahead, Doctor. MR. LIPSITZ: You may answer, Doctor.

THE WITNESS: We didn’t focus on the question of whether or not he shot Governor Wallace. He did speak about what he might have felt during that act. For example, he had the thought that he would say, ‘A penny for your thoughts,’ while shooting. By Mr. Marshall: Q. Did he tell you that in that conversation July 11?

A. Yes, in that interview. Q. Didn’t you read that in the manuscript? Refer to your notes, Doctor. A. You have my notes.

Q. I am sorry, Doctor. I haven’t had a chance to see them before. A. At first I read it. Of course I read it because that is — Q.

(Handing documents to the witness.) A. I am sorry, that was in the diary, yes, sir. Q. Now I am asking you a simple question. Did ³²⁹ Arthur Herman Bremer admit to you on July 11 whether or not he shot Governor Wallace on May 15,1972? A. He did not.

Q. He did not? You didn’t even ask him that, is that correct? A. I was not prepared to focus on that particular issue. Q. Why not, Doctor?

Isn’t that important to you in the psychiatric field to find out exactly the man’s emotions when he commits a criminal wrong doing? A. He was there and he told me about being there. He told me about having the gun in his hand. He did not tell me that he had shot Governor Wallace.

Q. Why didn’t you ask him that question, Doctor? What type of psychiatric examination is it that you don’t ask that basic simple question? A. I believe that I did ask that question. Q. What did he answer?

A. I don’t remember immediately what he — He answered as he always does, circumstantially and concretely.” The direct examination of Dr. Gray, after her qualifications as a psychiatrist were shown, was brief and to the point. She said she had examined Bremer twice, interviewed his father and mother, and examined various reports, documents and parts of Bremer’s diary. Her opinion was that he was suffering from a mental disorder on 15 May 1972, “latent schizophrenia, which is a mental disease and disorder”, and that he was insane within the meaning of the criminal responsibility statute. She said that “the acts which are alleged here are a direct product of that disease.” On cross-examination the State referred to her statement that the act Bremer was accused of committing was a direct ³³⁰ result of latent schizophrenia.

She was asked: “In your conversations there with Mr. Bremer, you discussed this act that he is accused of, is that correct?” The defense objected on the ground that the statutory exception to the privilege of communication between patient and psychiatrist was unconstitutional. The objection was overruled at a bench conference. 18 The cross-examination of the witness resumed before the jury: “Q. Do you remember my question, Doctor? A. You asked whether Mr. Bremer had discussed with me the acts which are currently the