Harris v. State

• Decision Date: 17 April 1979
• Docket Number: No. 799,799
• Citation: 42 Md.App. 248,400 A.2d 6
• Parties: Donald Lee HARRIS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 248

42 Md.App. 248

400 A.2d 6

Donald Lee HARRIS v. STATE of Maryland.

No. 799.

Court of Special Appeals of Maryland.

April 17, 1979.

Martha Weisheit, Asst. Public Defender, Baltimore, with whom was Alan H. Murrell, Public Defender on brief, for appellant.

Valerie A. Leonhart, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen. and Richard D. Warren, State's Atty. for Wicomico County on brief, for appellee.

Argued before THOMPSON, LOWE and LISS, JJ.

THOMPSON, Judge.

On August 16, 1978, the appellant, Donald Lee Harris, was convicted in the Circuit Court for Wicomico County of robbery with a deadly weapon, two counts of unlawful shooting, ¹ and kidnapping. He was sentenced to eighteen years under the robbery conviction, two consecutive five year sentences under the shooting convictions, and three years (suspended) under the kidnapping conviction.

This appeal presents the following issues:

1. Did the trial judge err in failing to establish on the record, as required by Md.Rule 735d, that the appellant had knowingly and intelligently waived his right to trial by jury?

2. Did the trial judge err in admitting evidence, offered by the State in rebuttal, of a statement made by appellant while in police custody but before being brought before a commissioner pursuant to Md. District Rule 723?

3. Were two separate convictions and punishments for unlawful shooting improper under the facts of this case?

We will develop the necessary factual background as we address each of these issues.

I. The Election of a Court Trial

Md. Rule 735 governs the procedure to be followed when an accused elects between trial by jury and trial by the court. In Biddle v. State, 40 Md.App. 399, 392 A.2d 100 (1978), we held that compliance with the rule is mandatory and where the record fails to show such compliance a conviction must be reversed on direct appeal.

Section b of the rule provides that the election should be made in writing, signed by the defendant, witnessed by his counsel, and filed with the clerk of the court. A form for such written election is set out in the rule. The section b form informs a defendant that a jury consists of 12 persons and that all must be convinced of his guilt beyond a reasonable doubt before he may be found guilty. Section c provides that when no written election is filed the defendant may be required to appear in court for the purpose of making an election. Section d provides that when a court trial is elected the trial shall not commence until an inquiry is conducted on the record to determine whether the election has been made voluntarily and with full knowledge of the right to a jury trial. The obvious purpose of this in-court inquiry is to show affirmatively on the record that the defendant's constitutional right to a jury trial was voluntarily and knowingly waived. In cases where a written election has been filed pursuant to Section b, the inquiry mandated by section d requires an additional safeguard in the determination of the voluntariness and intelligence of the waiver. It requires the trial judge to determine whether the waiver apparent on the form is, in fact, knowing and voluntary.

In the present case we are concerned with the required scope and extent of the section d inquiry. More precisely, the question is whether the inquiry in the record before us was sufficient under Rule 735 d to enable a determination that the appellant voluntarily and knowingly waived his right to a jury trial. The resolution of this issue will be aided by a review of the recent cases in which we have interpreted Rule 735 d.

At one end of the spectrum are Biddle v. State, supra, and Butler v. State, --- Md.App. ---, 398 A.2d 514 (1979). In Biddle, the record was devoid of any indication that the defendant knew of his right to a jury trial or participated in the election of a court trial. It merely showed that defense counsel requested a court trial at the arraignment, in the defendant's presence. We held that under those circumstances, there had been no compliance with the rule. The conviction was therefore reversed. In Butler, the defendant was originally charged in the District Court and the case was removed to the Circuit Court upon election of a jury trial. On the day of trial, defense counsel stated on the record that the defendant had waived his right to a jury trial and elected to be tried by the court. Nothing in the record showed whether the trial judge knew what had transpired in the District Court or whether the defendant had even been present when a jury trial was originally requested in the District Court. Nor was there any showing that he had been advised of his right to a jury trial or participated in the election of a court trial. In holding that Rule 735 d had been violated we said:

"It is evident here, as it was in Biddle, that the court made no effort whatever to comply with section d of Rule 735. It obviously made no inquiry of appellant on the record. Neither is there any indication in the record that the court knew what had transpired in the District Court. Accordingly, there was no basis upon which it could have reasonably concluded that appellant had full knowledge of his right to a jury trial and that he was knowingly and voluntarily waiving that right." At page ---, 398 A.2d at page 518.

In two other recent decisions we have examined and sustained the sufficiency of the Section d inquiry where no written election was previously filed by the defendant. In McCoy v. State, 41 Md.App. 667, 398 A.2d 1244 (1979), the Court informed three co-defendants on the record that they had a right to a jury trial and asked what choice they wished to make. Defense counsel for one of the co-defendants, in the presence of all three, gave a brief explanation of the right to a jury trial along the lines mentioned in the section b form, but omitted any reference to the burden of proof. He then stated that his client elected a court trial. Counsel for each of the other two defendants also expressed their respective clients' desire to elect a court trial. We held that this exchange constituted a sufficient basis for the conclusion that the elections were knowingly and voluntarily made.

In Fairbanks v. State, Md.App. 398 A.2d 814 (1979), defense counsel volunteered that his client understood the nature of a jury trial, that he knew he had a right to such a trial, and that he wished to waive that right and be tried by the court. Counsel then asked his client whether that recital was correct and the defendant replied that it was. This was held to be sufficient compliance with Rule 735 d, although the record did not show that the defendant had been informed of the various incidents of a jury trial as spelled out in section b.

Finally, in Countess v. State, 41 Md.App. 649, 398 A.2d 806 (1979), we held that the section d inquiry was required even where a written election under section b had been previously filed. Countess had elected a jury trial employing the form prescribed by section b of Rule 735. On the day of trial he sought to change his election. The court inquired whether the defendant understood that he had a right to a jury trial, whether such right had been fully explained to him by his lawyer, and whether he elected to be tried by the court instead of a jury. The defendant answered all of these inquiries in the affirmative. In holding that there had been compliance with Rule 735 d we said:

"The signed form and the in-court responses to questioning, show that the appellant made his election of a court trial with full knowledge of his right to a jury trial and that he knowingly and voluntarily waived the right." At page 648, 398 A.2d at page 811.

Several conclusions may be drawn from these decisions with respect to Rule 735 d. First, it is not necessary that the entire inquiry always be conducted on a person to person basis between the judge and the defendant. Statements by counsel in which the defendant has clearly acquiesced may be sufficient. McCoy v. State, supra. Second, it is not necessary to spell out the various aspects of a jury trial, such as the fact that all jurors must be convinced of the defendant's guilt beyond a reasonable doubt before he can be convicted. It is sufficient that the record affirmatively show that the defendant knew that a jury trial was available, that he understood the general nature of a jury trial, and that he nevertheless chose to be tried by the court. Fairbanks v. State, supra, and McCoy, supra. Third, a written election under Rule 735 b does not obviate the necessity for compliance with section d. A written election may aid the court in determining the voluntariness and intelligence of the waiver but the mandatory in-court inquiry must still be made. Countess v. State, supra.

With these principles in mind we now turn to a consideration of the present case. Appellant filed a written election, as prescribed by Rule 735 b, to be tried before the court. Prior to commencement of the trial the following colloquy took place between the trial judge and defense counsel:

"The Court: . . .

You have advised him of his right to a jury trial, Mr. Rogan?

Mr. Rogan: (Defense counsel): Yes, Your Honor.

He pleads not guilty, Your Honor, and trial by the Court. The plea and election stand.

The Court: All right, sir."

This is the only indication in the record that the trial judge made the inquiry called for under Rule 735 d. We hold that it does not constitute compliance with the Rule. In McCoy, Countess and Fairbanks, the defendants themselves were informed on the record, either by the court or counsel, that they had a right to a jury trial. In each case there was some indication that the defendant understood the general nature of a jury trial. In Countess and Fairbanks the defendants affirmatively stated their desire to be tried by the court instead of a jury. In McCoy, the court began the necessary inquiry and counsel continued it by reciting their...