Mathias v. State

• Decision Date: 17 November 1978
• Docket Number: No. 26,26
• Citation: 394 A.2d 292,284 Md. 22
• Parties: Eugene Hugh MATHIAS v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 22

284 Md. 22

394 A.2d 292

Eugene Hugh MATHIAS v. STATE of Maryland.

No. 26.

Court of Appeals of Maryland.

Nov. 17, 1978.

Claude L. Callegary, Baltimore, for appellant.

Michael A. Anselmi, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen. and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, ORTH and COLE, JJ.

SMITH, Judge.

We shall here hold that a trial judge did not abuse his discretion when he denied the request of an accused on the morning of trial to change his election of a court trial to that of a jury trial.

In a court trial in the Circuit Court for Harford County appellant, Eugene Hugh Mathias (Mathias), was convicted of distribution of a controlled dangerous substance and conspiracy to distribute such substances. A divided panel of the Court of Special Appeals affirmed the conviction in Mathias v. State, 39 Md.App. 291, 384 A.2d 482 (1978). We granted the writ of certiorari in order that we might consider the issue here presented.

For purposes of the case before us, the facts are relatively simple. Mathias and a codefendant were arraigned on October 5, 1976. At that time Mathias entered a plea of not guilty and elected to be tried by the court. Trial originally was scheduled for June 9, 1977. It was postponed to June 29, 1977, because of the trial schedule of Mathias' attorney. When the case was called for trial on June 29 counsel for Mathias advised the court that Mathias "wish(ed) to elect not a court trial but a jury trial . . . ." He then proceeded to set forth the reasons for the request:

"(I)t was early of last week that we were notified by the State's Attorney's Office, by Mr. Coleman that the codefendant in this case was pleading to two counts of the indictment. ¹ At the time of the original arraignment both defendants pleaded not guilty and elected to be tried by the court. After notifying my client of that situation and the fact that the codefendant Deal would be a witness against him, Mr. Matthias then requested me to request the court to withdraw his waiver of jury trial and to request a jury trial on the basis that the testimony of the codefendant is so totally prejudicial to his rights and could be entirely disregarded by a jury, that of this codefendant and in spite of (State v. Jones,) 270 Md. 388, (312 A.2d 281 (1973),) the court has discretion to change the waiver of a jury trial to a jury trial and that discretion of the court can go in both directions. We are now requesting that the court withdraw the waiver and that we be allowed to have a jury trial. I understand that there is some question of a witness and perhaps we could stipulate to that one witness who I understand is from out of town, what his testimony would be."

Counsel for Mathias said that it was not until the morning of trial that he "finally learned the extent of the codefendant's testimony . . . and how deeply prejudicial it (might be) . . . ."

The State opposed the motion, pointing out that there had been no indication prior to the morning of trial that there would be a prayer for a jury trial, that the clerk "ha(d) prepared the case on the assumption there would be no jury so there (was), in fact, no jury present and available for the court to select a jury th(at) morning and that permitting (Mathias) to have a jury trial would mean a delay." The State contended that this change in election would mean postponement for six to eight weeks. It was observed that had Mathias "given even a day or two notice" arrangements could have been made to have a jury present that day. (Harford County is not sufficiently populous and does not have sufficient litigation for there to be a jury in the courthouse every day of the week.) The State also pointed out that it had brought a former police officer in from Pittsburgh as a witness.

In denying the request, the trial judge referred to State v. Jones, 270 Md. 388, 312 A.2d 281 (1973). He said:

"Now, when you consider the various facts, one is the very late request for the change, I mean, even a day or two and certainly I believe Mr. Callegary ((counsel for Mathias)), you were aware of it by the end of last week that a codefendant was going to plead guilty and even if then if you had requested a jury trial the clerk could have had one available. So, the original plea was months ago, of course, the facts were a little bit different and in addition to that the State has a witness coming from Pittsburgh who the State has paid the expenses and those expenses have already been incurred and it's not a certainty that this witness would be available if the case is taken out of the assignment and if the jury trial was granted. It would necessitate taking the case out of the assignment. It would not be heard for six to eight weeks from now and it would certainly be an inconvenience for this witness to come here from Pittsburgh and possibly be required to have to return.

"So, I don't doubt that the motion is made in good faith, Mr. Callegary, certainly I don't have any doubt on that score but I think when you weigh all of the factors that are supposed to be considered, that exercise of discretion in this case would be best exercised by denying the motion and proceeding with the court trial because frankly the court can't see there is any real prejudice to Mr. Mathias. So, I will deny the motion."

Since this case was tried prior to July 1, 1977, then Maryland Rule 741 was applicable. ² It states:

"An accused may elect to be tried by jury or by the court. Such 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. If an accused elects to be tried by the court, the State may not elect a jury trial. The court may, In its discretion and for good cause shown, at any time prior to the trial permit the accused to change his election." (Emphasis added.)

There is not the slightest suggestion that the trial judge in this case was in any way biased against Mathias. The parties here concede, as indeed they must after our holding in Jones, that the action of the trial court here is to be reviewed upon the basis of whether it was an abuse of discretion. Chief Judge Murphy pointed out for the Court in Jones, 270 Md. at 393, 312 A.2d at 284, "Under the prevailing rule an accused has no absolute right to withdraw his waiver of a jury trial; whether it will be permitted is a matter committed to the sound discretion of the trial court." He cited a number of cases in support of this proposition together with Annot. 46 A.L.R.2d 919 (1956). To this could be added State v. Lawrence, 216 Kan. 27, 530 P.2d 1232 (1975), decided subsequent to Jones with facts closely approximating those in this case; 3 C. Torcia, Wharton's Criminal Procedure § 437 (1975), 47 Am.Jur.2d, Jury, § 70 (1969), and 50 C.J.S. Juries § 111 at 825 (1947). Accord, Staten v. State, 13 Md.App. 425, 283 A.2d 644 (1971); Cole v. State, 12 Md.App. 379, 277 A.2d 248 (1971); and Walter v. State, 4 Md.App. 373, 243 A.2d 626 (1968). L. Orfield, Criminal Procedure From Arrest to Appeal (1947), in discussing waiver of jury trial, comments at 394-95, "It seems sound to leave the matter (of withdrawal of a waiver) in the discretion of the courts, subject to such rules for applying that discretion as the courts may develop."

Precisely what is meant by an abuse of discretion seems not to have been articulated by this Court. However, some bench marks are to be found. For example, in Washington, B. & A., etc., R. R. v. Kimmey, 141 Md. 243, 250, 118 A. 648 (1922) relative to the discretion to be exercised in considering a motion for a new trial, Judge Urner said for our predecessors, "A discretion could not be characterized as sound which wholly disregarded evidence by which its exercise should have been aided." In Horton v. Horton, 157 Md. 127, 133, 145 A. 355 (1929), concerning the discretion of orphans' courts in the case of intestacy to grant letters to a child or to the husband or widow, as the case might be, the Court said, "(I)t means that the court shall actually exercise a discretion, and that it shall make its choice after considering the relative merits and fitness of the applicants, and their respective claims to consideration, and not that it may act without regard to such consideration solely at its pleasure or caprice." In Lee v. State, 161 Md. 430, 157 A. 723 (1931), Chief Judge Bond said for the Court:

"The meaning of discretionary power in a trial court, and the rules governing review of discretionary orders on appeal, have often been stated in vague, loose terms which furnish no exact guidance; but for the purposes of this case it seems to us sufficient to observe only that the judgment and discretion must be exercised in solving the exact problem of the law, upon all the considerations which properly enter into the problem, and form it. For instance, the discretion being for the solution of the problem arising from the circumstances of each case as it is presented, it has been held that the court could not dispose of all cases alike by a previous general rule. Union Bank v. Ridgely, 1 Har. & G. 324, 407 ((1827))." Id. at 441, 157 A. at 727.

In Jones v. State, 185 Md. 481, 489, 45 A.2d 350, 353 (1946), the Court held that "the exercise of discretion" might "be reviewed if exercised in a harsh, unjust, capricious and arbitrary way." Much more recently Judge O'Donnell said for the Court in Wilhelm v. State, 272 Md. 404, 326 A.2d 707 (1974) "Lord Halsbury, L. C., in Sharp v. Wakefield (1891) A.C. 173, 179, said:

' "Discretion" means when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to private opinion; according to law, and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And...