The opinion
Davidson, J.,
dissenting:
James McKenzie was convicted by a jury of murder in the first degree. On May 1, 1972, he filed a post-conviction petition raising the single contention that he did not knowingly elect to testify at his trial. He sought a new trial. A hearing was held on his petition on July 26, 1972. In his opinion, Judge Turnbull set forth that *596 McKenzie’s trial counsel testified that he had no independent recollection of advising his client of his Fifth Amendment rights; that the defendant never objected to testifying; and that the defendant was willing to do so. Judge Turnbull further indicated that McKenzie testified that he was not advised by his attorney that he did not have to testify, but that even if he had been sp advised, he still would have taken the stand in his defense. Judge Turnbull found that neither defense counsel, the State’s Attorney or the court had advised McKenzie of his right not to testify. He stated that “no one specifically asked him this morning if he knew that he had a right to decline to testify.” He made no finding as to the critical fact of whether McKenzie knew or did not know of his right to decline to testify. He concluded that because McKenzie had not been advised of that right, he was entitled to relief, and granted him a new trial. The State filed an application for leave to appeal from that order.
The majority, resting its decision upon the ground that no constitutional error occurred, finds the application for leave to appeal meritorious, grants the application, and reverses Judge Turnbull’s order. It does so notwithstanding the absence of a transcript of the testimony at the July 26, 1972, hearing, necessary, in my view, for the independent appraisal of the record, required of this Court when deciding a constitutional issue, English v. State, 16 Md. App. 439, 443 , 298 A. 2d 464, 467 (1973); Gardner v. State, 10 Md. App. 233, 245-46 , 269 A. 2d 186, 192 (1970), cert. denied, 404 U. S. 937 , 92 S. Ct. 279 (1971); Dillingham v. State, 9 Md. App. 669, 714 , 267 A. 2d 777, 801 , cert. denied, 259 Md. 731 (1970) (Orth, J., concurring), and without the benefit of briefs and oral argument by the parties.
Code (1957), Art. 27, § 645-1, insofar as here relevant, provides:
“Any person . . . aggrieved by the order of the court . . . may within thirty (30) days *597 after the passage of said order apply to the Court of Special Appeals for leave to prosecute an appeal therefrom. ... If the application to prosecute such appeal shall be granted, the procedure thereafter shall be in conformity with the rules of said appellate courts and the courts may affirm, reverse or modify the order appealed from, or they may remand the case for further proceedings, but if said application is denied, the order sought to be reviewed shall thereby become final.” (Emphasis added.)
Maryland Rule BK47, insofar as here relevant, similarly provides:
“If leave to appeal shall be granted further proceedings shall be had pursuant to . . . Chapter 1000 (Appeals to the Court of Special Appeals) as if the order granting leave to appeal were the order of appeal filed pursuant to Rule . . . 1012 (Appeal-Time for Filing) . . . .” (Emphasis added.)
These provisions would appear to mandate that in post-conviction proceedings, after a petition for leave to appeal is granted, all of the procedures applicable to direct appeals are to be followed before a decision is reached on the merits. Such procedures include the transmittal to this Court of a transcript of the testimony at a post-conviction hearing and the right of the parties to file briefs and present oral argument.
As set forth in Part II below, I believe there is merit to the application for leave to appeal and I would, therefore, grant the application. But regardless of whether Maryland Rule BK47 is mandatory, as it would appear to be on its face, or discretionary, as the majority asserts, I would set the appeal for further consideration in accordance with the rules set forth in Chapter 1000 and would not now reverse the order below.
*598 II
Even assuming that the merits should be disposed of at this time, I could only concur with the result reached by the majority; I could not agree with its opinion. Before reaching its conclusion that McKenzie’s constitutional rights were not violated, the majority sets forth three other grounds which it asserts would warrant granting the application for leave to appeal and reversing the order for a new trial. One of those grounds invoked the “harmless error” doctrine that even if a constitutional error could be deemed to have occurred, such error was harmless beyond a reasonable doubt. Chapman v. California, 386 U. S. 18 , 87 S. Ct. 824 (1967). If the record shows that McKenzie testified that, even if he had been advised of his right not to testify, he would in no event have availed himself of that right and would nevertheless have elected to testify, I would agree that any constitutional error which might have occurred was harmless beyond a reasonable doubt.
Declining to rest upon the doctrine of harmless error or either of the two other grounds which it asserts would have disposed of the case, the majority goes further to decide that no constitutional error did in fact occur. In so doing it eschews three sound and universally practiced judicial policies: not to pass upon a constitutional question, although properly presented by the record, if there is also present some other ground upon which to dispose of the case; not to decide questions of a constitutional nature unless absolutely necessary to a decision of the case; and not to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. Alexander v. Louisiana, 405 U. S. 625, 633 , 92 S. Ct. 1221, 1226-27 (1972); Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 346-48 , 56 S. Ct. 466, 482-83 (1936) (Brandeis, J., concurring), and cases cited therein; Tauber v. Montgomery County, 244 Md. 332, 337-38 , 223 A. 2d 615, 618 (1966); Middleman v. Maryland-National Capital P & P Comm’n, *599 232 Md. 285, 289-90 , 192 A. 2d 782, 784 (1963); Tyler v. The State, 93 Md. 309, 314 , 48 A. 840, 842 (1901); State v. Insley, 64 Md. 28, 30-31 , 20 A. 1031 (1885). 1
The decision of the majority, in disregard of these principles, proceeds to assert for the first time, insofar as I can discern, that the right of a defendant not to incriminate himself by taking the stand and exposing *600 himself to cross-examination is not a fundamental personal right but is rather a matter of trial tactics committed to the discretion of counsel, without regard to the defendant’s awareness of that right. Thus the majority holds that a defendant who is represented by counsel does not have the right to be advised of or to know of the existence of his right not to testify.
This conclusion rejects the decision of the Court of Appeals in Stevens v. State, 232 Md. 33, 39 , 192 A. 2d 73, 77 , cert. denied, 375 U. S. 886 , 84 S. Ct. 160 (1963). There that Court said:
“Of course, a defendant has the right, under Article 22 of the Maryland Declaration of Rights and under Code (1957), Art. 35, Sec. 4, to refuse to give evidence against himself. Most jurisdictions which have considered the point have held that failure by a trial court to advise a defendant not represented by counsel of his right to refuse to take the witness stand constitutes prejudicial error. See cases collected in Anno., 79 A.L.R.2d 643 (1961). However, we do not deem it essential for the protection of a defendant’s constitutional rights that he be advised by the court of his right against self-incrimination when he is represented by counsel. In Woodell v. State, 223 Md. 89, 95 , 162 A. 2d 468 (1960), we recognized the fact that attorneys, whether employed by the accused or court appointed, are officers of the court and are presumed to do as the law and their duty require them. Where the accused has counsel, it is to be presumed that the accused has been informed of his rights and that when he voluntarily takes the stand he waives the protection of the constitutional and statutory provisions. Here, the appellant was called to the stand by his counsel and in such a case there is no requirement that the court advise him of his right *601 to refuse to testify.” (Citations omitted.) (Emphasis added.)
Stevens states that it is the duty of counsel to inform the defendant of his rights. While it holds that the performance of the duty may be presumed, Stevens does not hold that the presumption is irrebuttable or that rebuttal of the presumption is immaterial. The majority dismisses the Court of Appeals’ rationale for its conclusion in Stevens in favor of a “sounder” rationale never before expressed by any court, from which it concludes that a lawyer has no duty to advise a client of his right not to take the stand.
Moreover, there is substantial authority that the decision whether or not to testify is both a fundamental and personal right of the accused in a criminal case.
In Boyd v. United States, 116 U. S. 616, 631 , 6 S. Ct. 524, 533 (1886), the Fifth Amendment right against self-incrimination was intertwined with the Fourth Amendment right against unreasonable searches and seizures. There, Justice Bradley, said:
“And any compulsory discovery by extorting the party’s oath, or compelling the production of his private books and papers, to convict him of a crime, or to forfeit his property, is contrary to the principles of a free government. It is abhorrent to the instincts of an Englishman; it is abhorrent to the instincts of an American. It may suit the purposes of despotic power, but it cannot abide the pure atmosphere of political liberty and personal freedom.” (Emphasis added.)
In Bram v. United States, 168 U. S. 532, 543-45 , 18 S. Ct. 183, 187-88 (1897), Justice White said:
“In Boyd v. United States, 116 U. S. 616 , attention was called to the intimate relation existing between the provision of the fifth amendment *602 securing one accused against being compelled to testify against himself, and those of the fourth amendment protecting against unreasonable searches and seizures; and it was in that case demonstrated that both of these amendments contemplated perpetuating, in their full efficacy, by means of a constitutional provision, principles of humanity and civil liberty which had been secured in the mother country only after years of struggle, so as to implant them in our institutions in the fullness of their integrity, free from the possibilities of future legislative change. * * *
“There can be no doubt that long prior to our independence the doctrine that one accused of crime could not be compelled to testify against himself had reached its full development in the common law, was there considered as resting on the law of nature, and was embedded in that system as one of its great and distinguishing attributes.”
In Mapp v. Ohio, 367 U. S. 643, 656-57 , 81 S. Ct. 1684, 1692 (1961), the Supreme Court repudiated the concept that the privilege against self-incrimination was merely a rule of evidence “best defended not as an unchangeable principle of universal justice, but as a law proved by experience to be expedient.” Twining v. New Jersey, 211 U. S. 78, 113 , 29 S. Ct. 14, 25 . In Mapp , Justice Clark said:
“We find that, as to the Federal Government, the Fourth and Fifth Amendments and, as to the States, the freedom from unconscionable invasions of privacy and the freedom from convictions based upon coerced confessions do enjoy an ‘intimate relation’ in their perpetuation of ‘principles of humanity and civil liberty [secured] . . . only after years of struggle,’ *603 Bram v. United States, 168 U. S. 532, 543-544 (1897). They express ‘supplementing phases of the same Constitutional purpose — to maintain inviolate large areas of personal privacy.’ Feldman v. United States, 322 U. S. 487, 489-490 (1944). The philosophy of each Amendment and of each freedom is complementary to, although not dependent upon, that of the other in its sphere of influence — the very least that together they assure in either sphere is that no man is to be convicted on unconstitutional evidence. Cf. Rochin v. California, 342 U. S. 165, 173 (1952).
In Malloy v. Hogan, 378 U. S. 1 , 84 S. Ct. 1489 (1964), the Fifth Amendment right against self-incrimination was elevated to full equality with the guarantees of the First Amendment, the prohibition against unreasonable searches and seizures of the Fourth Amendment and the right of counsel guaranteed by the Sixth Amendment by being made enforceable against the states under the Fourteenth Amendment. There, Justice Brennan quoted Dean Griswold as follows:
“ T believe the Fifth Amendment is, and has been through this period of crisis, an expression of the moral striving of the community. It has been a reflection of our common conscience, a symbol of the America which stirs our hearts.’ ” 378 U. S. at 9 n. 7, 84 S. Ct. at 1494 n. 7 (1964).
In Miranda v. State of Arizona, 384 U. S. 436, 442 , 86 S. Ct. 1602, 1620 (1966), Justice Warren said:
“Thus we may view the historical development of the privilege as one which groped for the proper scope of governmental power over the citizen. As a ‘noble principle often transcends its origins,’ the privilege has come rightfully to be recognized in part as an individual’s substantive right, a ‘right to a private enclave *604 where he may lead a private life. That right is the hallmark of our democracy.’ United States v. Grunewald, 233 F. 2d 556, 579, 581-582 (Frank, J., dissenting), rev’d 353 U. S. 391 , 77 S. Ct. 963 , 1 L.Ed.2d 931 (1957). 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.’ Malloy v. Hogan, 378 U. S. 1, 8 , 84 S. Ct. 1489, 1493 , 12 L.Ed.2d 653 (1964).” (Citations omitted.)
There the right against self-incrimination was again equated to the Sixth Amendment right to counsel, when Justice Warren said:
“These precious rights were fixed in our Constitution only after centuries of persecution and struggle. And in the words of Chief Justice Marshall, they were secured ‘for ages to come, and * * * designed to approach immortality as nearly as human institutions can approach *605 it,’ Cohens v. Commonwealth of Virginia, 6 Wheat. 264, 387 , 5 L. Ed. 257 (1821).” 384 U. S. at 442 , 86 S. Ct. at 1611 .
In Wilson v. United States, 149 U. S. 60, 66 , 13 S. Ct. 765, 766 (1893), the highly personal nature of the right to remain silent was described by Justice Field, who wrote:
“But the act was framed with a due regard also to those who might prefer to rely upon the presumption of innocence which the law gives to every one, and not wish to be witnesses. It is not every one who can safely venture on the witness stand though entirely innocent of the charge against him. Excessive timidity, nervousness when facing others and attempting to explain transactions of a suspicious character, and offences charged against him, will often confuse and embarrass him to such a degree as to increase rather than remove prejudices against him. It is not every one, however honest, who would, therefore, willingly be placed on the witness stand. The statute, in tenderness to the weakness of those who from the causes mentioned might refuse to ask to be a witness, particularly when they may have been in some degree compromised by their association with others, declares that the failure of a defendant in a criminal action to request to be a witness shall not create any presumption against him.” 2
The same concept was expressed in a different way in Murphy v. Waterfront Comm’n of New York Harbor, 378 U. S. 52, 55 , 84 S. Ct. 1594, 1596-97 , where Justice Goldberg said:
*606 “The privilege against self-incrimination ‘registers an important advance in the development of our liberty — “one of the great landmarks in man’s struggle to make himself civilized.” ’ Ullman v. United States, 350 U. S. 422, 426 . It reflects many of our fundamental values and most noble aspirations . . . our respect for the inviolability of the human personality and of the right of each individual ‘to a private enclave where he may lead a private life,’ United States v. Grunewald, 233 F. 2d 556, 581-582 (Frank, J., dissenting), rev’d 353 U. S. 391 , our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes ‘a shelter to the guilty,’ is often ‘a protection to the innocent.’ Quinn v. United States, 349 U. S. 155, 162 .” (Footnote omitted.) (Emphasis added.)
An accused has the right to remain silent “unless he chooses to speak in the unfettered exercise of his own will.” Malloy v. Hogan, supra, 378 U. S. at 8, 84 S. Ct. at 1493 . Until he exercises his own will and voluntarily relinquishes this right by taking the stand, it remains his. Miranda v. State of Arizona, supra, 384 U. S. at 460 , 86 S. Ct. at 1620 . The courts have clearly enunciated what constitutes a voluntary relinquishment of a constitutional right. “A waiver is ordinarily an intentional relinquishment or abandonment of a known, right or privilege.” Johnson v. Zerbst, 304 U. S. 458, 464 , 58 S. Ct. 1019, 1023 (1938). It consists of “knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” Brady v. United States, 397 U. S. 742, 748 , 90 S. Ct. 1463, 1469 (1970). In order to relinquish a known right or privilege intelligently, the accused must know of its existence. Boykin v. Alabama, 395 U. S. 238, 242-43 , 89 S. Ct. 1709, 1712 (1969); Application of Gault, 387 U. S. 1, 55 , 87 S. Ct. 1428, 1458 (1967); Miranda v. State of Arizona, *607 supra, 384 U. S. at 468 , 86 S. Ct. at 1624 ; Escobedo v. State of Illinois, 378 U. S. 478, 490-91 , 84 S. Ct. 1758, 1764-65 (1964); Johnson v. Zerbst, supra. Knowledge of the existence of the right is the “threshold requirement for an intelligent decision as to its exercise.” Miranda v. State of Arizona, supra, 384 U. S. at 468 , 86 S. Ct. at 1624 .
Indeed, only recently, this Court has similarly recognized an accused’s right to know that he has a right not to take the stand and not to testify. In English v. State, 16 Md. App. 439, 446 , 298 A. 2d 464, 469 (1973), a post-conviction proceeding involving the question of the propriety of the acceptance of a guilty plea, Chief Judge Orth said:
“The Fifth Amendment privilege against self-incrimination means ‘the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty * * * for such silence.’ Malloy v. Hogan, 378 U. S. 1, 8 . Therefore, in order for an accused to waive the privilege against self-incrimination as it applies to his trial on a criminal charge he must understand that he has the right not to testify and that no unfavorable inference may arise from his not testifying. Unless the record affirmatively shows that he understood this privilege and waived it in the constitutional sense, acceptance of his plea of guilty is not effective.” (Emphasis added.)
In the face of these authorities, I cannot subscribe to the rationale of the majority opinion which would relieve an attorney of his duty to advise his client of his right to decline to testify and would render it immaterial whether the defendant knew of that right. I cannot, like my brothers, reject Stevens, supra, which makes it clear that the attorney has such a duty. While the Supreme Court has never applied the test of intentional relin *608 quishment or abandonment of a known right to an accused’s decision to take the stand, it has determined that the right against self-incrimination is “comprehensive.” Application of Gault, supra, 387 U. S. at 47 , 87 S. Ct. at 1454. It protects the accused “in any proceeding, be it criminal or civil, administrative or judicial, investigatory or adjudicatory.” Murphy v. Waterfront, supra, 378 U. S. at 93, 84 S. Ct. at 1611 (Justice White, concurring); Application of Gault, supra, 378 U. S. at 47, 87 S. Ct. at 1454. The accused must know of this right in a juvenile proceeding, Application of Gault, supra, 387 U. S. at 55 , 87 S. Ct. at 1458; prior to pre-trial custodial police interrogation, Miranda v. State of Arizona, supra, 384 U. S. at 479 , 86 S. Ct. at 1630 ; Escobedo v. State of Illinois, supra, 378 U. S. at 491, 84 S. Ct. at 1765; and before he enters a guilty plea, Boykin v. Alabama, supra, 395 U. S. at 242-43 , 89 S. Ct. at 1712 ; English v. State, supra, 16 Md. App. at 446 , 298 A. 2d at 469 . I am not prepared today, as are my brothers, to say that an accused’s right to know that he need not take the stand at trial is of any less significance.
In my view this Court is not, as the majority states, “of necessity required to sort out and to examine a great swirl of constitutional considerations which play, with giddy interaction, upon [this] seemingly simple decision. . . .” Rather this “complex constitutional question” should only be decided when it is necessary for disposition of the case, and then only after it has been fully and properly presented to the Court.
I respectfully dissent.
. The foundations for these self-imposed restraints are stated in Rescue Army v. Municipal Court, 331 U. S. 549, 571-72 , 67 S. Ct. 1409, 1421 (1947), by Justice Rutledge as follows:
“The policy’s ultimate foundations, some if not all of which also sustain the jurisdictional limitation, lie in all that goes to make up the unique place and character, in our scheme, of judicial review of governmental action for constitutionality. They are found in the delicacy of that function, particularly in view of possible consequences for others stemming also from constitutional roots; the comparative finality of those consequences; the consideration due to the judgment of other repositories of constitutional power concerning the scope of their authority; the necessity, if government is to function constitutionally, for each to keep within its power, including the courts; the inherent limitations of the judicial process, arising especially from its largely negative character and limited resources of enforcement; withal in the paramount importance of constitutional adjudication in our system.
“All these considerations and perhaps others, transcending specific procedures, have united to form and sustain the policy. Its execution has involved a continuous choice between the obvious advantages it produces for the functioning of government in all its coordinate parts and the very real disadvantages, for the assurance of rights, which deferring decision very often entails. On the other hand it is not altogether speculative that a contrary policy, of accelerated decision, might do equal or greater harm for the security of private rights, without attaining any of the benefits of tolerance and harmony for the functioning of the various authorities in our scheme. For premature and relatively abstract decision, which such a policy would be most likely to promote, have their part too in rendering rights uncertain and insecure.
“As with the case and controversy limitation, however, the choice has been made long since. Time and experience have given it sanction. They also have verified for both that the choice was wisely made. Any other indeed might have put an end to or seriously impaired the distinctively American institution of judicial review. And on the whole, in spite of inevitable exceptions, the policy has worked not only for finding the appropriate place and function of the judicial institution in our governmental system, hut also for the preservation of individual rights.”
. The Wilson decision rested not on the Fifth Amendment, but on an Act of Congress. In Griffin v. State of California, 380 U. S. 612 , 613, 85 S. Ct. 1229, 1232 , (1965), the Supreme Court said: “If the words ‘Fifth Amendment’ are substituted for ‘act’ and for ‘statute’, the spirit of the Self-Incrimination Clause is reflected.”