Countess v. State

Decision Date10 December 1979
Docket NumberNos. 36,49,s. 36
Citation286 Md. 444,408 A.2d 1302
PartiesKenneth COUNTESS, John Franklin Fairbanks, Leroy Gault, William Oscar McCoy and Luther Robinson v. STATE of Maryland. STATE of Maryland v. Donald Lee HARRIS.
CourtMaryland Court of Appeals

Nancy Louise Cook, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellants in No. 36 and appellee in No. 49 (Martha Weisheit, Asst. Public Defender, Baltimore, on the brief in No. 49 only).

Valerie A. Leonhart, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellee in No. 36 and for appellant in No. 49.


ORTH, Judge.

Kenneth Countess, William Oscar McCoy, Luther Robinson, Leroy Gault, John Franklin Fairbanks and Donald Lee Harris were found guilty of committing divers crimes proscribed by the General Assembly of Maryland and against the peace, government and dignity of the State. They were duly sentenced. 1 Upon appeal to the Court of Special Appeals of Maryland, the judgments against Countess, McCoy, Robinson, Gault and Fairbanks were affirmed, and those against Harris were reversed. Countess v. State, 41 Md.App. 649, 398 A.2d 806 (1979); McCoy v. State, 41 Md.App. 667, 398 A.2d 1244 (1979); Fairbanks v. State, 42 Md.App. 15, 398 A.2d 814 (1979); Harris v. State, 42 Md.App. 248, 400 A.2d 6 (1979). We granted certiorari in each of the cases. The petitioners present a common question concerning Maryland Rule 735, which concerns the election by a defendant of a court or jury trial in a criminal cause. The petitioners ask: "Did the Court of Special Appeals err in its interpretation and application of Maryland Rule 735?" Countess, McCoy, Robinson, Gault and Fairbanks contend that the court so erred in affirming the judgments against them. The State claims that the court so erred in reversing the judgments against Harris.


The Declaration of Rights of the Constitution of Maryland bestows upon a defendant in a criminal prosecution by this State the right to be tried by an impartial jury of his peers. Md.Const., Declaration of Rights, Articles 5, 21 and 24. 2 When Chapter 700 pertaining to Criminal Causes was completely rewritten effective 1 January 1962, this right was recognized in terms of the waiver of it. Rule 741 read:

An accused may waive a jury trial and elect to be tried by the court. If an accused elects to be tried by the court the State may not elect a jury trial. An election to be tried by the court must be made before any evidence in the trial on the merits is taken unless otherwise provided by local rule of court. 3

The Sixth Amendment to the Constitution of the United States includes the guarantee of a jury trial in criminal cases. 4 In 1968 the Supreme Court of the United States, following its selective incorporation of Bill of Rights provisions into the Fourteenth Amendment, announced its belief that "trial by jury in criminal cases is fundamental to the American scheme of justice," and held, therefore, that the right was applicable to the states through the Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 1447, 20 L.Ed.2d 491 (1968). An accused may waive the right, but whether there is a proper waiver should be clearly determined by the trial court, and the determination must appear upon the record. Courts indulge every reasonable presumption against waiver of fundamental constitutional rights and do not presume acquiescence in the loss of them. Johnson v. Zerbst, 304 U.S. 458, 464-465, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). The classic definition of waiver was enunciated in Johnson "an intentional relinquishment or abandonment of a known right or privilege." Id. at 464, 58 S.Ct. at 1023. The controlling standard depends on the considered choice of the accused. "A choice made by counsel made by counsel not participated in by the (accused) does not automatically bar relief." Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 849, 9 L.Ed.2d 837 (1963). There must be an intelligent and knowing waiver by the accused. In the final analysis, "(t)he determination of whether there has been an intelligent waiver (of a fundamental right) must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused." Johnson, 304 U.S. at 464, 58 S.Ct. at 1023. See Curtis v. State, 284 Md. 132, 141-148, 395 A.2d 464 (1978).


In State v. Zimmerman, 261 Md. 11, 273 A.2d 156, decided 8 February 1971, this Court observed that it is established that "an accused may elect a court trial, thereby waiving a jury trial" and indicated that the election and waiver must be "knowing." Id. at 12, 273 A.2d at 157. 5 Several months later, on 28 June 1971, Rule 741 was amended effective 1 September 1971. The former rule had been silent as to the mechanics of the election, and the revised rule went no further with respect to the procedural aspects of the election to be tried by jury or by court than to prescribe that "(s)uch election shall be made by the accused in open court when first called upon to plead after he is represented by counsel of record or has waived counsel." It spoke in terms of "election" rather than "waiver," See Miller v. Warden, 16 Md.App. 614, 622, n.7, 299 A.2d 862, 867, n.7 (1973), and authorized the court "in its discretion and for good cause shown, at any time prior to the trial (to) permit the accused to change his election."

This Court, by order dated 31 January 1977, effective 1 July 1977, approved and adopted another revision of the entire Chapter 700. Under this revision the matter of election of court or jury trial was contained in Rule 735. On 16 November 1978, Rule 735 was amended to "take effect and apply to all proceedings commenced on and after January 1, 1979, and insofar as practicable, to all proceedings then pending. . . ." As we see nothing to indicate that the 1978 amendments affect the cases in the posture in which they are before us, in determining the cases we shall consider the rule as it now stands, so that hereinafter, unless otherwise indicated, citations to sections are to sections of Rule 735 as presently in effect.

As under Rule 741, the prosecution has no say as to the mode of trial; whether the accused is to be tried by court or jury is his prerogative. It is now spelled out, however, that he shall exercise this prerogative by an election in writing, filed with the clerk of the court in which the case is pending within the time prescribed by Rule 731 for filing a plea. §§ a and b. The writing shall be substantially in the form set out in § b, which indicates it is to be signed by the accused, witnessed by his counsel, if any, and bear the date of its execution. In the suggested writing, the accused expressly acknowledges that he knows of his right to be tried either by a jury of 12 persons or by the court, and that to be convicted, he must be found to be guilty beyond a reasonable doubt in a jury trial by all 12 jurors, and, in a court trial by the judge. He designates which mode of trial he elects and asserts that he made the election "knowingly and voluntarily and with full knowledge that (he) may not be permitted to change (it)."

Even though an accused may be in full compliance with §§ a and b, that is, he has made an election by a writing substantially in the form prescribed, which writing has been duly executed and filed, if he has elected a court trial further steps are required. Despite the acknowledgments set out in the writing, before the trial of the case may proceed on the merits, the court must determine, "after inquiry of the defendant on the record, that the defendant has made his election for a court trial with full knowledge of his right to a jury trial and that he has knowingly and voluntarily waived the right. If the court determines otherwise it shall give the defendant another election pursuant to this Rule." § d.

If an election is not filed in writing as required by §§ a and b, the court on its own motion or upon motion of the prosecution, may require the defendant, with his counsel, if any, to appear before the court to make an election in open court. § c. If the defendant then elects a court trial, the provisions of § d come into play. If he fails or refuses to make an election, the court shall advise them on the record that "his failure or refusal will constitute a waiver of his right to a trial by jury . . . ." § c. Then, "if the court determines that the defendant knowingly and voluntarily is waiving his right with full knowledge of it, the defendant will be deemed to have elected a trial by the court." Id.

Section e deals with a change of election. "Subject to the provisions of section d, after an election for a court trial is made, the court may not permit the defendant to change his election except upon motion made prior to trial and for good cause shown." § e 1. "(D)ue regard to the extent, if any, to which trial would be delayed" shall be given by the court in its determination whether to allow a change. Id. After an election of a jury trial has been made, either pursuant to Rule 735 or in the District Court, "the defendant may waive his right to a jury trial at any time up to 72 hours prior to the time of trial," but "(t)he court may allow a change in the election of a jury trial at any time before trial upon motion and for good cause shown." § e 2. 6


In Zimmerman we had "hasten(ed) to add" that we regarded it to be "the preferable practice in accepting an election of trial by the court from an accused . . . for the trial judge at that time to determine on the record whether this is a knowing election on the part of the accused of a court trial in lieu of a jury trial in much the same manner as that specified by the Court of Special Appeals for acceptance of a guilty plea." 261 Md. at 25-26, ...

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