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3 800
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VETOES
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in the present law.
15- See new Maryland Rules 771 and 772, fn. 16 infra.
16. Arguably, new Md. Rule 734, effective July 1, 1977,
requiring prior notice to subsequent offenders that the
State will seek increased punishment as authorized by law
would have some application in capital cases where the
aggravating circumstance in question is based upon a
prior conviction of the defendant (see aggravating
circumstances (1) and (6)). It should also be noted that
new Maryland Rules 771 and 772, effective July 1, 1977,
require that any presentence report be furnished to the
defendant or his counsel prior to sentencing to afford a
reasonable opportunity for the parties to investigate the
information in the report and that the State's Attorney
disclose to the defendant or his counsel any information
which the State expects to present to the court for
consideration in sentencing prior to the imposition of
sentence. These two rules will go a long way toward
putting the defendant on notice prior to the sentencing
proceeding that the State may be seeking a death penalty
and, because of the practical considerations which
dictate that any capital sentencing take place promptly
after trial, may effectively afford the defendant such
notice prior to the trial.
17. There is some uncertainty as to the extent to which
aiders, abettors, or counselors could be sentenced to
death under Senate Bill 106. While mitigating
circumstance (4) clearly contemplates such a possibility,
some of the aggravating circumstances imply that perhaps
only the person who actually committed the murder in
question may be sentenced to death rased upon the finding
of an aggravating circumstance.
18. This comports with the due process requirement set
forth in Gardner v. Florida, 45 U.S.L.W. 4275 (March 22,
1977). Gardner would appear to require that presentence
reports be made available to the defendant and counsel
before submitting the issue of sentencing to the jury.
If this is the case, any delay in preparing such reports
will mandate a hiatus between the guilt and sentencing
stages of death penalty trials unless preparation of the
report is begun prior to trial.
19. The practical consideration involved is the
possibility that the trial jury may complete its jury
term and be released from regular jury service following
the completion of the guilt phase of the trial and prior
to any delayed sentencing proceedings. While this
possibility can be dealt with simply by advising the jury
that it will be required to return at such time as the
sentencing proceeding is ready to begin, a more serious
problem would be presented by the possibility that one or
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