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3792
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VETOES
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particular aggravating circumstances without having
previously notified the defendant of its intention to do
so. 15
The fact that the statute itself does not require
such pretrial notice certainly does not mean that
pretrial notice could not be furnished as a matter of
course by prosecuting attorneys or that the Court of
Appeals could not adopt a rule of statewide application
calling at least for general prior notification of the
fact that the death penalty will be sought. 16
Obviously, in light of our view that such prior
notification comports with a basic sense of fairness and
justice, we would urge such a course of action upon the
State's Attorneys and the Court of Appeals.
We have previously commented in an opinion to
Delegate Isaiah Dixon of March 17, 1977, on the subject
of aiders, abettors and counselors in the context of
capital punishment. Since those remarks, which were
given in connection with a proposed amendment to House
Bill 785, are equally appropriate here, we should repeat
them for your benefit. 17
"While it is our considered opinion that it is
constitutionally preferable to subject aiders,
abettors and counselors to the same possible penalty
as the actual perpetrator, no controlling judicial
authority of which we are aware supports a
conclusion that the failure to do so would render a
capital punishment statute facially
unconstitutional. We should hasten to add that it is
possible that in a given case where the aider,
abettor or counselor is the true culprit and the
actual perpetrator simply a tool of the accomplice
the courts might find a violation of equal
protection grounded in subjecting the perpetrator to
capital punishment but not the accomplice. We must
concede that the likelihood of such a result
occurring in a particular case is diminished by the
presence in House Bill 785 of certain mitigating
circumstances which would tend to protect an actual
perpetrator who was acting under the domination of
others." [The same type of mitigating circumstances
are contained in Senate Bill 106.]
We should also bring to your attention one practical
feature of Senate Bill 106 pertaining to the preparation
of presentence reports and the necessity for conducting
sentencing proceedings promptly following the completion
of the guilt determination. Art. 41, § 124(c) of the
Annotated Code of Maryland (1971 Repl. Vol., 1976 Cum.
Supp.) requires that prior to the sentencing of a
defendant convicted of a felony a presentence
investigation must be completed by the Division of Parole
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