Wiggins v. State

344 A.2d 80, 275 Md. 689, 1975 Md. LEXIS 997

• Court: Court of Appeals of Maryland
• Decided: September 5, 1975
• Docket: [No. 185, September Term, 1974.]
• Status: Published

Opinions

Smith, J.,

delivered the opinion of the Court. Levine and Eldridge, JJ., dissent and Eldridge, J., filed a dissenting opinion in which Levine, J., concurs at page 717 infra.

In this case appellant, Alphonso C. Wiggins (Wiggins), asks us to overrule our approval in Franklin v. State, 264 Md. 62, 68, 285 A. 2d 616 (1972), of “May 15, 1969, the date of finality set out in . . . Long [v. Robinson, 316 F. Supp. 22 (D. Md. 1970), aff'd, 436 F. 2d 1116 (4th Cir. 1971),] and adopted by Greene [v. State, 11 Md. App. 106, 273 A. 2d 830 (1971)]” as “an appropriate, proper and valid selection” of an effective date for the applicability of that holding. It is pointed out in this regard that Woodall v. Pettibone, 465 F. 2d 49 (4th Cir. 1972), cert. denied, 413 U. S. 922 (1973), held that Long should be retroactively applied. However, the holding of that court in this matter is not binding upon us. We shall decline most respectfully to accede to the point of view there expressed since we believe it to be in error.

In Long the court held “[t]he Maryland Juvenile Causes Act, Md. Ann. Code [(1957, 1966 Repl. Vol.)], Art. 26, Secs. 51 et seq., . . . unconstitutional insofar as it exempts Baltimore City from the uniform juvenile age requirement of eighteen (18) years,” as well as “[t]he provisions of Art. 4, S240 of the Public Local Laws of Baltimore City, as applied since 1945, . . . insofar as they define a child as a ‘person under the age of sixteen years’ thereby excluding sixteen and seventeen year olds in Baltimore City from the scope of the Juvenile Causes Act.”

It is stipulated: Wiggins was born on June 23, 1944. He was indicted in 1960 on a charge of burglary allegedly committed on August 2, 1960. He was convicted and sentenced to a term of imprisonment of not more than one year to run from August 15, 1960. In 1961 he was indicted on five counts of burglary allegedly committed on May 29, June 2, July 3, July 9, and July 26, 1960. He was convicted and sentenced on each count to one year imprisonment, some of which sentences were to be consecutive and some concurrent. He was imprisoned at the Maryland Correctional Institution at Hagerstown, Maryland, from September 28, 1960, until February 4, 1963. Since he had not attained 16 years of age at the time of the incidents on May 29, 1960, and June 2, 1960, “[h]e was waived to the jurisdiction of the Criminal Court of Baltimore to be tried as an adult offender on th[o]se indictments pursuant to a waiver order signed by the Honorable Charles E. Moylan [of the Division for Juvenile Causes of the Circuit Court of Baltimore City on] February 23, 1961. No hearing was held prior to the signing of the waiver order,” nor was Wiggins physically present in the Circuit Court of Baltimore City “either immediately preceding or at the time the above mentioned waiver order was signed and [he] was at no time brought before that court in connection with the offenses for which he was waived.” He was then incarcerated as a convicted adult felon.

Wiggins filed a bill of complaint in the Circuit Court of Baltimore City against the State of Maryland and the Clerk of the Criminal Court of Baltimore in which he requested the court “to declare that the aforementioned convictions of [him] are a nullity and that [he] may suffer no legal disabilities as a result of such convictions.” He also asked the court “to permanently enjoin defendants from keeping or maintaining any record whatsoever stating or in any way indicating that [Wiggins] was convicted of the burglary offenses” previously mentioned. That court ruled against Wiggins. He appealed. The Court of Special Appeals in Wiggins v. State, 22 Md. App. 291, 324 A. 2d 172 (1974), considered and rejected the points here raised. We granted certiorari in order that we might consider the important constitutional question here involved.

Although' we set forth much of the background of the Maryland statutes relative to juveniles in Matter of Anderson, 272 Md. 85, 94-95, 321 A. 2d 516 (1974), we shall again refer to that background for a better understanding of this controversy. Originally, juvenile matters in Maryland were handled by specially designated justices of the peace rather than by judges of courts of general trial jurisdiction. The Maryland Constitution never required justices of the peace to be lawyers and most of them were not lawyers. Provision for a special judicial officer to handle juvenile matters came into Maryland law with passage of Chapter 611 of the Acts of 1902 authorizing the appointment in Baltimore City of a “Magistrate for Juvenile Causes” to “have exclusive jurisdiction of all cases of trial, or commitment for trial, or of commitment to any reformatory or other institution, of all minors under sixteen years of age

In 1940 Governor Herbert R. O’Conor appointed a Juvenile Delinquency Commission “to consider the whole field of the treatment of juvenile delinquency in Maryland, and to report its findings‘to the Governor and to the General Assembly at its session of 1941.” It pointed out that “Baltimore [was] the only large city in the United States whose Juvenile Court judges [were]. Justices of the Peace.” It recommended “an enabling amendment to empower the Legislature to establish a Juvenile Court in Baltimore City.” Chapter 824 of the Acts of 1941 proposed to the people of Maryland a constitutional amendment creating “[a] Juvenile Court . . . for Baltimore City.” The amendment also would have authorized the General Assembly to “establish a Juvenile Court for any other incorporated city or town or any county of the State.” This proposed amendment was rejected by the electorate.

The Governor was authorized by Chapter 323 of the Acts of 1931, which became Code (1939) Art. 52, §§ 83-91, inclusive, to appoint “an additional justice of the peace for each county to be known as the magistrate for juvenile causes for the particular county.” This provision did not apply to Baltimore City nor to Allegany, Washington, and Baltimore Counties. The person so appointed was to be “at least twenty-five years of age [and] a member of the bar of the Court of Appeals of Maryland.” There was the further proviso that “no such appointment shfould] be made in any county until the County Commissioners sh[ould] have provided a salary for such Justice, and shfould] have notified the Governor that such provision ha[d] been made.” ¹ Such justices of the peace were to “have exclusive jurisdiction where jurisdiction [was] given by law to any justice of the peace or magistrate for criminal causes in all cases of trial, or commitment for trial, or commitment to any juvenile institution of any minor under the age of sixteen (16) years.” By Code (1924) Art. 52, § 12 justices of the peace of the State except in Baltimore City, Talbot, Harford, Montgomery, and Frederick Counties, were granted “jurisdiction to hear, try and determine all cases involving the charge of any offense, crime or misdemeanor, not punishable by confinement in the Penitentiary or involving a felonious intent, which m[ight] be committed within their respective Counties” as well as “all prosecutions or proceedings for the recovery of any penalty for doing or omitting to do any act within their respective Counties, the doing of which or the omission to do which, [was] made punishable under the laws of this State by any pecuniary fine or penalty, or by imprisonment in jail or in the Maryland House of Correction, all of which acts or omissions [were] [t]hereby declared to be criminal offenses . . . From this it will be seen that from 1931 in most, but not all, of the State, if a county in its wisdom elected to fund the office of magistrate for juvenile causes then there was to be such a magistrate who then would have exclusive jurisdiction of those prosecutions of persons under 16 which involved misdemeanors, but not felonies. By Chapter 807 of the Acts of 1941 this 16 year provision was raised to 18 years with the further provision that the magistrate should “have concurrent jurisdiction in such cases with the Circuit Courts for the several counties where the minor [was] eighteen (18) years of age but under the age of twenty-one (21).”

The appointment by Governor O’Conor of the Juvenile Delinquency Commission in 1940 had been followed by his appointment on November 1, 1941, of a Commission on the Judiciary Article of the Constitution of Maryland, commonly known as the “Bond Commission” for its chairman, Chief Judge Carroll T. Bond of this Court. The Bond Commission was of the opinion that in order to avoid the multiplication of courts a juvenile court in Baltimore City should be a branch of the Supreme Bench and that a judge of that bench qualified for such work should continue to serve in juvenile matters without rotation in order to promote the most effective administration.² The Report of the Maryland Commission on Juvenile Delinquency 73 (1943) stated that it “accepted] the view that our present courts, that is the Supreme Bench in Baltimore City and the Circuit Courts in the several counties, have inherent jurisdiction to secure to every child in the State proper care and guidance if he or she is lacking in same, whether due to neglect, dependency, delinquency, feeble-mindedness or to a combination of two or more of these causes.” It then went on to recommend:

“Creation of a juvenile court in Baltimore city and in each county or at least in each Judicial Circuit, that shall have (1) original, exclusive jurisdiction, unless expressly waived by such courts in favor of the criminal courts, over children up to 16 years of age in all cases of delinquency, dependency, neglect, abandonment or feeble-mindedness; (2) original jurisdiction to determine paternity in disputed cases; (3) original, exclusive jurisdiction to try, subject to the right of trial by jury unless waived, any parent, guardian or other adult for any wilful act or omission contributing to, encouraging or tending to cause any condition bringing a child within the jurisdiction of a juvenile court, as just defined; and if found guilty, to sentence any such person for any such act or omission as a misdemeanor, to pay a fine or to imprisonment, or both, within limits to be fixed by statute; such juvenile court in Baltimore city to be a part of the Supreme Bench of Baltimore City, and such juvenile courts in the Counties to be parts of the existing circuit courts.” Id. at 85-86.

The General Assembly acted upon this report by enacting Chapter 818 of the Acts of 1943 providing for the exercise of juvenile jurisdiction by the Circuit Court of Baltimore City. Thus, for the first time in Maryland a judge, as distinguished from a justice of the peace, had jurisdiction in juvenile matters. The term “child” was defined as “a person under the age of sixteen years and subject to the jurisdiction of the court.” A delinquent child included an individual “who violate[d] any law or ordinance, or who commit[ted] any act which, if committed by an adult, would be a crime not punishable by death or life imprisonment. . . Unless the judge “in his discretion waive[d] jurisdiction and orderfed] such child held for action under the regular procedure that would follow if such act or acts had been committed by an adult,” he was granted “original, exclusive jurisdiction concerning any child who [was] . . . delinquent. . . .” It is to be noted that as of the time of the passage of this act no provision was made in the counties of Maryland for a juvenile court other than the earlier provision we have mentioned for a justice of the peace in those instances in which the counties saw fit to fund the salary for such justice of the peace as a magistrate for juvenile causes.

Those from without the state who have occasion to read this opinion should understand that the circuit courts of the 23 counties of Maryland are the courts of general trial jurisdiction created by Maryland Constitution Art. IV, § 20. The Constitution provides for Baltimore City what is “styled [as] the Supreme Bench of Baltimore City.” Under Art. IV, § 27, it includes the various trial courts of the City of Baltimore. The sum total of the jurisdiction of those courts equals that of the circuit courts for the various counties. The Criminal Court of Baltimore has the same general criminal trial jurisdiction as the circuit courts in the counties of Maryland. The Circuit Court of Baltimore' City has the equity jurisdiction vested in the circuit courts for the counties.

In 1945 juvenile jurisdiction reached the circuit courts for the counties with the enactment of Chapter 797 of the Acts of that year which became Code (1939, 1947 Cum. Supp.) Art. 26, §§ 48A-48U. It was not applicable to Baltimore City nor to Washington, Allegany, and Montgomery Counties. Other than for the fact' that it defined a child as a person under the age of 18 years with corresponding modifications elsewhere in the act, the 1943 and 1945 acts are similar, including the fact that § 48D of the 1945 act provided that a “[j]udge, after full investigation, m[ight] in his discretion waive jurisdiction and order such child held for action under the regular procedure that would follow if such act or acts had been committed by an adult.” It is to be specifically noted that neither of these acts sets forth any definite criteria to be taken into consideration by such a judge in waiving jurisdiction. It was under such broad powers that juvenile jurisdiction as to Wiggins was waived relative to the crimes he was said to have committed prior to reaching his 16th birthday. By Chapter 127 of the Acts of 1966 the exemption in the statewide act for Baltimore City was eliminated to take effect June 1, 1969, so that after that date only Montgomery County would not be included in the statewide act.³

The Legislative Council appointed a subcommittee on juvenile causes in 1968. Its report recommended extensive revision in the juvenile law. It formed the basis for Chapter 432 of the Acts of 1969. Most of Code (1957, 1973 Repl. Yol.) Art. 26, § § 51-71, was enacted by that chapter. It continued the exemption from the subtitle for Montgomery County. There was no difference, however, between the act for Montgomery County and the statewide act relative to age. As introduced the act would have defined a child as a person who had not reached his 18th birthday except in Baltimore City where until July 1, 1971, this meant a person who had not reached his 16th birthday. The General Assembly in its wisdom elected to cut that date back to July 1,1970. Chapter 730 of the Acts of 1970, however, changed the phase out to 1971. In this regard it is interesting to note that the Bond Commission in its interim report in 1942 did not propose a different age limit for Baltimore City, but recommended that “the jurisdiction [of the juvenile courts] be exclusive over all proceedings involving crimes or offenses by minors below the age of 18 years . . . .”

As indicated, prior to the 1969 enactment nothing was spelled out in the statutes as to what should be considered by a juvenile judge in determining whether or not to waive juvenile jurisdiction and permit an individual to be tried under the usual criminal procedure. Code (1974) § 3-816 (c) of the Courts and Judicial Proceedings Article today specifies that in making a determination as to waiver of jurisdiction the court shall consider the age of the child; the mental and physical condition of the child; the child’s amenability to treatment in any institution, facility, or program available to delinquents; the nature of the offense; and the public safety. No case reached this Court under the prior statutes. It is presumed, however, that in exercising their discretion factors such as these were considered by juvenile judges.

The genesis of the modern retroactivity doctrine in criminal litigation is Linkletter v. Walker, 381 U. S. 618, 85 S. Ct. 1731, 14 L.Ed.2d 601 (1965), in which Mr. Justice Clark said for the Court:

“[T]he accepted rule today is that in appropriate cases the Court may in the interest of justice make the rule prospective....

“[T]he Constitution neither prohibits nor requires retrospective effect. As Justice Cardozo said [in Great Northern Ry. Co. v. Sunburst Oil & Refining Co., 287 U. S. 358, 364, 53 S. Ct. 145, 77 L. Ed. 360 (1932)], ‘We think the federal constitution has no voice upon the subject.’ ” Id. at 628-29.

In Linkletter, the .Court had before it the question of whether the holding in Mapp v. Ohio, 367 U. S. 643, 81 S. Ct. 1684, 6 L.Ed.2d 1081 (1961), that evidence seized in violation of the search and seizure provisions of the Fourth Amendment was required to be excluded in state prosecutions by virtue of the Due Process Clause of the Fourteenth Amendment, should operate retrospectively upon cases finally decided in the period prior to Mapp in reliance upon the prior decision of Wolf v. Colorado, 338 U. S. 25, 69 S. Ct. 1359, 93 L. Ed. 1782 (1949), which Mapp overruled. Mr. Justice Clark carefully traced for the Court the history and theory of the problem presented. He pointed out that “[a]t common law there was no authority for the proposition that judicial decisions made law only for the future,” a view concurred in by Blackstone who “stated the rule that the duty of the court was not to ‘pronounce a new law, but to maintain and expound the old one/ 1 Blackstone, Commentaries 69 (15th ed. 1809).” ⁴ He further observed that “Austin maintained that judges do in fact do something more than discover law; they make it interstitially by filling in with judicial interpretation the vague, indefinite, or generic statutory or common-law terms that alone are but empty crevices of the law. Implicit in such an approach is the admission when a case is overruled that the earlier decision was wrongly decided.” He referred at 625 to Chicot County Drainage Dist. v. Baxter State Bank, 308 U. S. 371, 60 S. Ct. 317, 84 L. Ed. 329 (1940), and observed that Chief Justice Hughes in that case “reasoned [for the Court] that the actual existence of the law prior to the determination of unconstitutionality ‘is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration.’ He laid down the rule that the ‘effect of the subsequent ruling as to invalidity may have to be considered in various aspects.’ [308 U. S.] at 374.” Justice Clark concluded:

“Under our cases it appears (1) that a change in law will be given effect while a case is on direct review, [United States v.] Schooner Peggy, [1 Cranch 103, 2 L.Ed. 49 (1801)],¹¹ and (2) that the effect of the subsequent ruling of invalidity on prior final judgments when collaterally attacked is subject to no set ‘principle of absolute retroactive invalidity’ but depends upon a consideration of ‘particular relations . . . and particular conduct ... of rights claimed to have become vested, of status, of prior determinations deemed to have finality’; and ‘of public policy in the light of the nature both of the statute and of its previous application.’ Chicot County Drainage Dist. v. Baxter State Bank, supra, [308 U. S.] at 374.

The Court then enunciated a three-pronged test to aid in the resolution of the problem:

“We believe that the existence of the Wolf doctrine prior to Mapp is ‘an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration.’ Chicot County Drainage Dist. v. Baxter State Bank, supra, at 374. The thousands of cases that were finally decided on Wolf cannot be obliterated. The ‘particular conduct, private and official,’ must be considered. Here ‘prior determinations deemed to have finality and acted upon accordingly’ have ‘become vested.’ And finally, ‘public policy in the light of the nature both of the . . . [Wolf doctrine] and of its previous application’ must be given its proper weight. Ibid,. In short, we must look to the purpose of the Mapp rule; the reliance placed upon the Wolf doctrine; and the effect on the administration of justice of a retrospective application of Mapp.” Id. at 636.

It will be seen that the Court in its opinion relied heavily upon Chicot County which was based on the doctrine of res judicata. In that case the Court was faced with the question of whether to give its decision in Ashton v. Cameron County District, 298 U. S. 513, 56 S. Ct. 892, 80 L. Ed. 1309 (1936), retroactive application. In Ashton the Court held unconstitutional the 1934 amendment to the Bankruptcy Act which permitted political subdivisions of a state to readjust their debts in certain circumstances under the jurisdiction of United States District Courts. Municipal debts had been readjusted under this act in Ashton and in a case involving Chicot County Drainage District. In Ashton the affected bondholders challenged the constitutionality of the act and won. Thus, the act which conferred the jurisdiction under which the debts of the drainage district had been adjusted was held invalid. The challenge in Ashton had been in the adjustment proceeding. No such challenge had been made in the proceeding involving the bonds of the Chicot County Drainage District and the time for appeal had expired. Nevertheless, some bondholders of that drainage district invoked the holding in Ashton and attempted to recover the full amount on the bonds there in controversy. The drainage district pleaded the readjustment decree of the district court as res judicata. The bondholders, however, relied on Norton v. Shelby County, 118 U. S. 425, 6 S. Ct. 1121, 30 L. Ed. 178 (1886), and contended that since the 1934 act granting jurisdiction had been held unconstitutional in Ashton in the words of Norton it “confers no right; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.” The Supreme Court disagreed and barred the bondholders from collecting.

We glean from the Supreme Court cases that there are three circumstances in which a retrospective application is mandated, (1) where the old rule affected the integrity of the fact-finding process, (2) where no trial was constitutionally permissible, and (3) where the punishment is not constitutionally permissible. In the absence of one of those three circumstances, then the three-pronged Linkletter test is applicable.

Cases involving the integrity of the fact-finding process are represented by the plurality opinion in Williams v. United States, 401 U. S. 646, 91 S. Ct. 1148, 28 L.Ed.2d 388 (1971), relied upon by the Fourth Circuit in Woodall. In Williams Mr. Justice White said for himself and three other justices:

“Where the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial which substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive effect.⁶ Neither good-faith reliance by state or federal authorities on prior constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed to require prospective application in these circumstances.

“It is quite different where the purpose of the new constitutional standard proscribing the use of certain evidence or a particular mode of trial is not to minimize or avoid arbitrary, or unreliable results but to serve other ends. In these situations the new doctrine raises no question about the guilt of defendants convicted in prior trials.

In Williams the Court held that its decision in Chimel v. California, 395 U. S. 752, 89 S. Ct. 2034, 23 L.Ed.2d 685 (1969), which narrowed the scope of permissible searches incident to arrest, was not to be retroactively applied to any search antedating the decision in Chimel, decided June 23, 1969. This decision, like Linkletter, emphasizes that in search and seizure cases the evidence is excluded because of illegal police conduct and not because of its unreliability. Therefore, since the new rule is aimed at deterrence, there is no reason for retroactive application.

It will be noted that the cases listed by Mr. Justice White in footnote 6 of his plurality opinion had a significant effect on the fact-finding process and retroactive application resulted. For instance, in Berger v. California, 393 U. S. 314, 89 S. Ct. 540, 21 L.Ed.2d 508 (1969), the Court gave retroactive effect to its holding that the absence of a witness from the jurisdiction does not justify use at trial of his preliminary hearing testimony unless the state has first made a good faith effort to secure the presence of the witness. This could have a significant effect on the integrity of the fact-finding process since use of such testimony would deprive a defendant of his Sixth Amendment right to confront and cross-examine the witnesses against him, an essential ingredient in our adversary process of truth determination.

Gosa v. Mayden, 413 U. S. 665, 93 S. Ct. 2926, 37 L.Ed.2d 873 (1973), presents a case almost identical with the problem faced here. The Court there had before it the question of whether its holding in O’Callahan v. Parker, 395 U. S. 258, 89 S. Ct. 1683, 23 L.Ed.2d 291 (1969), should be prospective or retrospective in its application. O’Callahan held that a court-martial convened under the Articles of War, 10 U.S.C. § 801 et seq., did not have jurisdiction to try a member of the Armed Forces who was charged with commission of a crime cognizable in a civilian court and having no military significance, alleged to have been committed off-post and while on leave, thus depriving such an individual of his constitutional rights to indictment by a grand jury and trial by a petit jury in a civilian court. A key passage in the plurality opinion of Mr. Justice Blackmun is:

“We must necessarily also consider the impact of a retroactivity holding on the interests of society when the new constitutional standard promulgated does not bring into question the accuracy of prior adjudications of guilt. Wholesale invalidation of convictions rendered years ago could well mean that convicted persons would be freed without retrial, for witnesses, particularly military ones, no longer may be readily available, memories may have faded, records may be incomplete or missing, and physical evidence may have disappeared. Society must not be made, to tolerate, a. result of that kind when there is no significant question concerning the accuracy of the process by which judgment was rendered or, in other words, when essential justice is not involved.

“We conclude that the purpose to be served by O’Callahan, the reliance on the law as it stood before that decision, and the effect of a holding of retroactivity, all require that O’Callahan be accorded prospective application only. We so hold.” Id. at 685.

Mr. Justice Douglas concurred in the result in a companion case of Gosa. He advocated reargument of Gosa, however, on the issue of res judicata. He said he had “reached no position on the merits and would reserve judgment until the issue was fully explored on reargument,” but what he set forth in his opinion were “the reasons why res judicata arguably should lead to an affirmance . . . .” Two paragraphs of his opinion reflect a striking similarity to the case at hand:

“Here the question is whether a civilian, rather than a military, tribunal should have tried him. Does the question whether the ‘jurisdiction’ of the military tribunal can be contested at this late date turn on whether res judicata bars that inquiry?

“Petitioner Gosa in the review of his conviction by the military tribunal never raised the question raised in O’Callahan. If he was ‘constitutionally immune from punishment’ in any court, wé would have the problem presented in United States v. U. S. Coin & Currency, 401 U. S. 715, 723-724. But petitioner was not tried by a kangaroo court or by eager vigilantes but by military authorities within the framework established by Congress in the Uniform Code of Military Justice.” Id. at 689-90. (Footnotes omitted.)

Wiggins relies upon Robinson v. Neil, 409 U. S. 505, 93 S. Ct. 876, 35 L.Ed.2d 29 (1973), as compelling retrospective application of Long on the theory that the jurisdiction previously exercised in this instance by the Criminal Court of Baltimore was unconstitutional. Such a contention was advanced and rejected in Gosa. Robinson does not support the conclusion that retrospective application is compelled here. In Robinson the Court unanimously held that Waller v. Florida, 397 U. S. 387, 90 S. Ct. 1184, 25 L.Ed.2d 435 (1970), was to be given “full retroactive effect.” Waller held that the double jeopardy clause bars state and municipal prosecutions for the same act. Mr. Justice Rehnquist there said for the Court:

“Linkletter indicated, for instance, that only those procedural rules affecting ‘the very integrity of the factfinding process’ would be given retrospective effect. 381 U. S., at 639. In terms of some nonprocedural guarantees, this test is simply not appropriate. In Furman v. Georgia, 408 U. S. 238 (1972), for example, this Court held that in the situation there presented imposition of the death penalty was not constitutionally permissible. Yet, while this holding does not affect the integrity of the factfinding process, we have not hesitated to apply it retrospectively without regard to whether the rule meets the Linkletter criteria. E.g., Walker v. Georgia, 408 U. S. 936.

“The prohibition against being placed in double jeopardy is likewise not readily susceptible of analysis under the Linkletter line of cases. Although the Court has not handed down a fully reasoned opinion on the retroactivity of Benton v. Maryland, [395 U. S. 784, 89 S. Ct. 2056, 23 L.Ed.2d (1969),] it has indicated that it is retroactive without examination of the Linkletter criteria. North Carolina v. Pearce, 395 U. S. 711 (1969); Ashe v. Swenson, 397 U. S. 436, 437 n. 1 (1970). These decisions do not directly control the question of whether Waller should be given retrospective effect but they bear upon its disposition.

“The guarantee against double jeopardy is significantly different from procedural guarantees held in the Linkletter line of cases to have prospective effect only. While this guarantee, like the others, is a constitutional right of the criminal defendant, its practical result is to prevent a trial from taking place at all, rather than to prescribe procedural rules that govern the conduct of a trial. A number of the constitutional rules applied prospectively only under the Linkletter cases were found not to affect the basic fairness of the earlier trial, but to have been directed instead to collateral purposes such as the deterrence of unlawful police conduct, Mapp v. Ohio, supra. In Waller, however, the Court’s ruling was squarely directed to the prevention of the second trial’s taking place at all, even though it might have been conducted with a scrupulous regard for all of the constitutional procedural rights of the defendant.

“We would not suggest that the distinction that we draw is an ironclad one that will invariably result in the easy classification of cases in one category or the other. The element of reliance embodied in the Linkletter analysis' will not be wholly absent in the case of constitutional decisions not related to trial procedure, as indeed this case when contrasted with Furman illustrates.” Id. at 508-09.

Similarly, in United States v. U. S. Coin & Currency, 401 U. S. 715, 91 S. Ct. 1041, 28 L.Ed.2d 434 (1971), the Court considered the effect to be given Marchetti v. United States, 390 U. S. 39, 88 S. Ct. 697, 19 L.Ed.2d 889 (1968), and Grosso v. United States, 390 U. S. 62, 88 S. Ct. 709, 19 L.Ed.2d 906 (1968), “which precluded the criminal conviction of gamblers who properly assert their privilege against self-incrimination as a ground for their failure to comply with [the reporting] aspects of the gambling tax law.” The Court held:

“In the case before us, however, even the use of impeccable factfinding procedures could not legitimate a verdict decreeing forfeiture, for we have held that the conduct being penalized is constitutionally immune from punishment. No circumstances call more for the invocation of a rule of complete retroactivity.” Id. at 724. (Emphasis added.)

As noted, Mr. Justice Rehnquist pointed out in Robinson an example of giving retrospective effect to a decision relative to punishment, the application in Walker v. Georgia, 408 U. S. 936, 92 S. Ct. 2845, 33 L.Ed.2d 753 (1972), of Furman v. Georgia, 408 U. S. 238, 92 S. Ct. 2726, 33 L.Ed.2d 346 (1972). A similar application was made in footnote 22 of Witherspoon v. Illinois, 391 U. S. 510, 88 S. Ct. 1770, 20 L.Ed.2d 776 (1968), in which the Court condemned a jury selection procedure which excluded veniremen who voiced even a general objection to the death penalty or expressed religious scruples against its infliction. In that case the Court concluded that no defendant could constitutionally be put to death at the hands of a tribunal so selected because they were “uncommonly willing to condemn a man to die.”

In Woodall the Fourth Circuit said:

“We think the question of retroactivity is controlled by our decision in Kemplen v. State of Maryland, 428 F. 2d 169 (4th Cir. 1970). It is true, as the state contends, that the unconstitutional treatment of petitioners does not relate to the accuracy of the fact finding function of the judicial process. But as we said in Kemplen, the normal waiver proceeding is a critical point in the criminal proceedings against a juvenile. It is ‘the only opportunity an accused has to plead the defense of his diminished responsibility as a juvenile.’ Kemplen, at 177. To deny juveniles in Baltimore the opportunity of such a defense and to allow it to all other juveniles in Maryland seems to us so fundamentally unfair as to impeach the validity of the ‘adult’ proceedings and render unreliable the guilty verdicts obtained in these proceedings. We hold, therefore, that Long v. Robinson, 436 F. 2d 1116 (4th Cir. 1971), is to be retroactively applied.” Id. at 465 F. 2d 52.

Kemplen v. State of Maryland, 428 F. 2d 169 (4th Cir. 1970), cited by the Fourth Circuit in Woodall, concerned only the question, as Judge Craven put it for that court, of “whether a state may, in enforcing its criminal laws, elect to proceed against a juvenile as if he were an adult without his having counsel at the ‘waiver hearing1 in the juvenile court.” He was held entitled to such counsel and the holding was directed to be applied retroactively.

As we have indicated, the Fourth Circuit in Woodall concluded that conviction of an individual such as Wiggins under our prior procedure is “so fundamentally unfair as to impeach the validity of the ‘adult’ proceedings and render unreliable the guilty verdicts obtained in th[o]se proceedings.” We see it somewhat differently. The waiver hearing is not intended as an opportunity for a juvenile “to plead a defense of his diminished responsibility,” but to afford an opportunity for a judge to determine the fitness of the juvenile for rehabilitative measures giving due consideration to the safety of the public and applying the factors noted in Code (1974) § 3-816 (c) of the Courts and Judicial Proceedings Article. The waiver proceeding is in no way concerned with the ultimate fact-finding determination of whether the accused did nor did not commit the act he is said to have committed. The fact that there has been no waiver is not a matter for consideration in the juvenile proceeding in determining whether the child committed the act in question and thus is delinquent. Likewise, in a trial under adult procedures the fact of waiver is not an element for consideration in determining guilt or innocence. The same evidence presented in a juvenile proceeding or in a regular criminal trial should lead to the same conclusion, although, as we shall point out, at the time of Wiggins’ trials his rights might have been more jealously guarded constitutionally in a regular criminal trial than in a trial under juvenile procedure. The basic difference, however, between trial as an adult and trial as a juvenile lies not in the fact-finding processes, but in the procedures looking to rehabilitation after a determination that an individual did in fact commit acts which were violations of the criminal statutes of this State.

Wiggins was indicted by the Grand Jury of Baltimore City. He was accorded the right of trial by a jury. Since he was accused of a felony, he became entitled to the appointment of counsel on his behalf as had been the Maryland rule for many years prior to the decision of the Supreme Court in Gideon v. Wainwright, 372 U. S. 335, 83 S. Ct. 792, 9 L.Ed.2d 799 (1963). See, e.g., Hill v. State, 218 Md. 120, 145 A. 2d 445 (1958), and Coates v. State, 180 Md. 502, 512, 25 A. 2d 676 (1942). At the time of the filing of the charges against him he would not have been entitled to the assignment of counsel in a juvenile proceeding. His trials in the Criminal Court of Baltimore were presided over by a judge of the Supreme Bench of Baltimore City, just as in the Juvenile Division of the Circuit Court of Baltimore City a Supreme Bench judge would have sat on the issue of delinquency had the charges against Wiggins been in the juvenile court. He was entitled in the Criminal Court of Baltimore to all of the protection of such a trial, including the right to have the rules of evidence made applicable to the proceeding. Four years before the Supreme Court’s decision in In re Gault, 387 U. S. 1, 87 S. Ct. 1428, 18 L.Ed.2d 527 (1967), this Court held in In Matter of Cromwell, 232 Md. 409, 415, 194 A. 2d 88 (1963), that although juvenile proceedings may be conducted without strict regard for the usual court rules, “we think there is at least a minimum standard of fairness that must be observed.” That standard precluded “the introduction of . . . evidence, without advance notice and in a form that prevented cross-examination and clarification,” an act which the Court said “was prejudicial and unfair,” leading to a reversal and a remand of the case for further proceedings. What had there been done by the State was summarized by Judge Henderson for the Court:

“Moreover, the State put in evidence, over objection, summaries of reports by school principals and teachers, that had been gathered by the school superintendent, although the persons making the reports were not present for cross-examination. The original reports were not produced. Not only were some of the statements in these reports highly derogatory, but the statements as a whole were equivocal. At one point the statements as to Dinez speak of an unacceptable behaviour pattern, at another of cooperation in the current year. In the case of Dwight, the statements speak at one point of emotional disturbance, at another of marked improvement. In this case there was also a report from the Health Department, that he had been referred ‘after being suspected’ of a serious sexual offense. Yet there was no finding on the point, and nothing but a notation that he kept appointments irregularly. Apart from being hearsay, the report was irrelevant and misleading.” Id. at 415.

It is common knowledge among those involved with juvenile cases prior to the decision of this Court in Cromwell that evidence similar to that rejected by the Court in Cromwell had been freely admitted in juvenile proceedings. Thus, had Wiggins been before the Circuit Court of Baltimore City for a determination of whether he was a juvenile delinquent the truth-finding processes would not, as of the time of his conviction, have been as carefully carried out as they were in the Criminal Court of Baltimore.

Returning to the three-pronged test enunciated by the Supreme Court in Linkletter, the purpose of the Long rule was to ensure that thenceforth all individuals in Maryland under the age of 18 years would be dealt with on the same basis, regardless of the geographical location of their alleged violations of the criminal law of the State. It is evident that for a period of 25 years, from the time of the enactment of the 1945 general law on juvenile procedure until the decision of the United States District Court for the District of Maryland in Long, the youth of Baltimore City were regarded by the General Assembly as reaching that state of maturity where they should be prosecuted as adults two years earlier than their peers in the remainder of the State.⁵ We have no way of acquiring accurate statistics on the number of persons between 16 and 18 so prosecuted, but considering the fact that during all of those years the population of Baltimore City as reflected by the figures of the United States Bureau of Census was in excess of 900,000 people, it seems safe to say that the number of such individuals is numbered in the hundreds and probably in the thousands. For a number of years what was styled “Part III of the Criminal Court of Baltimore” was designated as “the Youth Court,” intended to deal with those defendants in criminal cases who were between the ages of 16 and 20 years, inclusive. The Report of State’s Attorney’s office of Baltimore City for the year 1961, the year in which most of the convictions of Wiggins took place, reflects at page 15 convictions in 1,104 youth court trials and convictions of 1,443 defendants. Selecting yet another year at random, the report for the year 1966 at page 33 shows 1,285 individual youth defendants convicted. Then selecting at random the 1966-1967 Annual Report of the Administrative Office of the Courts, one notes at page 67 that 10,161 criminal cases were filed during that fiscal year in the Criminal Court of Baltimore and 8,978 such cases were terminated. The same report reflects that for the same period 7,329 juvenile causes were filed in Baltimore City and 7,170 were terminated. We are not to be understood as implying the number of those criminal cases or the number of youth court cases which would involve young people between thé ages of 16 and 18. However, when those youth court figures are read alongside of the figures showing the vast volume of criminal and juvenile matters arising in Baltimore City they give rise to an inference that in any given year out of the 25 a very substantial number of persons between the ages of 16 and 18 would have been prosecuted as adults in Baltimore City.

On the issue of reliance we find persuasive the language used by the Supreme Court in Stovall v. Denno, 388 U. S. 293, 87 S. Ct. 1967, 18 L.Ed.2d 1199 (1967):

“The unusual force of the countervailing considerations strengthens our conclusion in favor of prospective application. The law enforcement officials of the Federal Government and of all 50 States have heretofore proceeded on the premise that the Constitution did not require the presence of counsel at pretrial confrontations for identification. Today’s rulings were not foreshadowed in our cases; no court announced such a requirement until Wade was decided by the Court of Appeals for the Fifth Circuit, 358 F. 2d 557. The overwhelming majority of American courts have always treated the evidence question not as one of admissibility but as one of credibility for the jury. Wall, Eye-Witness Identification in Criminal Cases 38. Law enforcement authorities fairly relied on this virtually unanimous weight of authority, now no longer valid, in conducting pretrial confrontations in the absence of counsel. It is, therefore, very clear that retroactive application of Wade and Gilbert ‘would seriously disrupt the administration of our criminal laws.’ Johnson v. New Jersey, [384 U. S. 719], at 731. In Tehan v. Shott, [382 U. S. 406], we thought it persuasive against retroactive application of the no-comment rule of Griffin v. California, 380 U. S. 609, that such application would have a serious impact on the six States that allowed comment on an accused’s failure to take the stand. We said, ‘To require all of those States now to void the conviction of every person who did not testify at his trial would have an impact upon the administration of their criminal law so devastating as to need no elaboration.’ 382 U. S., at 419. That impact is insignificant compared to the impact to be expected from retroactivity of the Wade and Gilbert rules. At the very least, the processing of current criminal calendars would be disrupted while hearings were conducted to determine taint, if any, in identification evidence, and .whether in any event the admission of the evidence was harmless error. Doubtless, too, inquiry would be handicapped by the unavailability of witnesses and dim memories. We conclude, therefore, that the Wade and Gilbert rules should not be made retroactive.” Id. at 299-300.

The fact-finding process insofar as Wiggins was concerned was certainly not contaminated to the degree of that in Griffin v. California, 380 U. S. 609, 85 S. Ct. 1229, 14 L.Ed.2d 106 (1965). There Article I, § 13 of the California Constitution provided that “in any criminal case, whether the defendant testifies or not, his failure to explain or to deny by his testimony any evidence or facts in the case against him may be commented upon by the court and by counsel, and may be considered by the court or the jury.” The jury was so advised. As Mr. Justice Douglas put it for the Supreme Court:

“The prosecutor made much of the failure of petitioner to testify:

‘The defendant certainly knows whether Essie Mae had this beat up appearance at the time he left her apartment and went down the alley with her.

‘What kind of a man is it that would want to have sex with a woman that beat up if she was beat up at the time he left?

‘He would know that. He would know how she got down the alley. He would know how the blood got on the bottom of the concrete steps. He would know how long he was with her in that box. He would know how her wig got off. He would know whether he beat her or mistreated her. He would know whether he walked away from that place cool as a cucumber when he saw Mr. Villasenor because he was conscious of his own guilt and wanted to get away from that damaged or injured woman.

‘These things he has not seen fit to take the stand and deny or explain.

‘And in the whole world, if anybody would know, this defendant would know.

‘Essie Mae is dead, she can’t tell you her side of the story. The defendant won’t.’ ” Id. at 610-11.

The Court held “the Fifth Amendment, in its direct application to the Federal Government and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” Nevertheless, as indicated in that portion of Stovall which we have quoted, the Supreme Court in Tehan v. Shott, 382 U. S. 406, 86 S. Ct. 459, 15 L.Ed.2d 453 (1966), held Griffin not to have retrospective effect because of the serious impact upon the administration of criminal law in the six states where such comment had been allowed.

Let us consider what retrospective application of Long would involve. First of all, there could be literally hundreds of applications similar to that here made by Wiggins. If there is to be fairness to society as a whole as well as to those individuals previously convicted, it would be necessary for a judge in the Circuit Court of Baltimore City (not sitting in the Division of Juvenile Causes) following the procedures outlined in Matter of Miles, 269 Md. 649, 309 A. 2d 289 (1973), to reconstruct the circumstances bearing on the issue of waiver to determíne nunc pro tunc what a judge under the juvenile act probably would have done had the matter been before him at the time the original charges were brought. He would make his determination using the criteria mentioned in Code (1974) § 3-816 (c) of the Courts and Judicial Proceedings Article (age; mental and physical condition of “child”; “child’s” amenability to treatment in an institution, facility, or program available to delinquents; nature of the offense; and the public safety). Obviously, the chancellor would need to have before him all of the data which possibly could be produced which previously had been laid up in the archives relative to the person before him which could have a bearing on this evaluation. The mere passage of time would impose a very substantial burden on the State from the standpoint of locating and assembling this data. The State would be charged with the duty of providing counsel at such waiver hearing for all unable to afford counsel. Then, if waiver were granted a retrial would become necessary. Any prosecution would then be handicapped by dim memories and the unavailability of witnesses, a very substantial burden to the State. Indeed, in the highly mobile society in which we live it is probable that few of the witnesses would be found at the address indicated at the time of the original complaint. Locating some of them would be like hunting the proverbial needle in a haystack. The passage of time makes it inevitable that many of the witnesses are no longer alive. If the additional relief requested by Wiggins to be carried into effect were to be granted, the State’s burdens would continue in those instances in which it was unable to successfully retry an accused or in which there was an acquittal in a new trial. The State would be obliged to comb countless records for the purpose of eliminating any reference to such convictions.

In the words of Mr. Justice Douglas in Gosa, Wiggins “was not tried by a kangaroo court or by eager vigilantes,” but by a regularly constituted court of this State of the highest trial jurisdiction according to the regular criminal procedure with the right of trial by jury and the assistance of counsel. The State was required to adduce evidence sufficient to prove Wiggins guilty beyond reasonable doubt. We must not lose sight of the sage observation of Mr. Justice Cardozo in Snyder v. Massachusetts, 291 U. S. 97, 54 S. Ct. 330, 78 L. Ed. 674 (1934):

“The law ... is sedulous in maintaining for a defendant charged with crime whatever forms of procedure are of the essence of an opportunity to defend. Privileges so fundamental as to be inherent in every concept of a fair trial that could be acceptable to the thought of reasonable men will be kept inviolate and inviolable, however crushing may be the pressure of incriminating proof. But justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.

. . There is danger that the criminal law will be brought into contempt — that discredit will. even touch the great immunities assured by the Fourteenth Amendment — if gossamer possibilities of prejudice to a defendant are to nullify a sentence pronounced by a court of competent jurisdiction in obedience to local law, and set the guilty free.” Id. at 122.

We find persuasive the holding of Gosa, the language used by Mr. Justice Douglas in his dissenting opinion in Gosa, the holding in Tehan, and the holding and language used in Stovall. Keeping “the balance true” as between the rights of the individual accused and fairness to the accuser and society at large and balancing the rights of Wiggins and persons such as he against the substantial burden to the State, we find no reason, constitutional or otherwise, for imposing upon the citizenry of the State of Maryland the onus which Wiggins here seeks to impose.

Judgment affirmed.

1 . It is obvious that the counties of the State were not particularly interested in implementing at their expense such a juvenile system for Maryland Manual lHS-lHi reflects the existence for terms expiring May, 1945, of magistrates for juvenile causes in Allegany, Montgomery, and Washington Counties only. Separate statutes covered Allegany and Washington Counties. See Code of Public Local Laws (1930) Art. 1, §§ 370-375 and Art. 22, §§ 558-578, originally enacted in 1914 and 1924, respectively. These statutes mandated the appointment and set the compensation as did Code (1939, 1943 Cum. Supp.) Art. 52, § 83A, enacted as Chap. 147 of the Acts of 1943, for Montgomery County.

2 . See Interim Report of the Commission on the Judiciary Article of the Constitution of Maryland 11 (1942) and Report of the Commission on the Judiciary Article of the Constitution of Maryland 12 (1942).

3 . In Anderson, 272 Md. at 97, the author of this opinion failed to note the effective date of this act as June 1,1969.

4 . By a footnote he observed that “[w]hile Blackstone is always cited as the foremost exponent of the declaratory theory, a very similar view was stated by Sir Matthew Hale in his History of the Common Law which was published 13 years before the birth of Blackstone. Gray, Nature and Sources of the Law 206 (1st ed. 1909).”

11 “11 Accord, Carpenter v. Wabash R. Co., 309 U. S. 23 (1940) (intervening statutory change); Vandenbark v. Owens-Illinois Glass Co., 311 U. S. 538 and cases cited at 541-542 (1941); Dinsmore v. Southern Express Co., 183 U. S. 115, 120 (1901) (intervening statutory change); Crozier v. Krupp, 224 U. S. 290, 308 (1912) (intervening statutory change).” Id. at 627.

6 “6 See, e.g., Arenault v. Massachusetts, 393 U. S. 5 (1968) (giving retroactive effect to the right to counsel provided in White v. Maryland, 373 U. S. 59 (1963)); McConnell v. Rhay, 393 U. S. 2 (1968) (giving retroactive effect to the right to counsel provided in Mempa v. Rhay, 389 U. S. 128 (1967)); Berger v. California, 393 U. S. 314 (1969) (giving retroactive effect to Barber v. Page, 390 U. S. 719 (1968)); Roberts v. Russell, 392 U. S. 293 (1968) (giving retroactive effect to Bruton v. United States, 391 U. S. 123 (1968)); Jackson v. Denno, 378 U. S. 368 (1964); Gideon v. Wainwright, 372 U. S. 335 (1963); Douglas v. California, 372 U. S. 353 (1963); Griffin v. Illinois, 351 U. S. 12 (1956).” Id. at 653.

5 . Of course, as the dissent notes, the place in which an individual committed an act bringing him within the jurisdiction of the court, not his place of residence, was determinative of whether he was proceeded against as a juvenile or as an adult. It is probable, however, that the General Assembly believed that the vast majority of such acts committed in Baltimore City were committed by persons residing in that city and that the vast majority of such acts committed in the counties of Maryland were committed by persons residing in the counties.