Smith v. State

• Decision Date: 12 June 2003
• Docket Number: No. 128,128
• Citation: 825 A.2d 1055,375 Md. 365
• Parties: Gerald Ballard SMITH v. STATE of Maryland.
• Court: Maryland Court of Appeals

825 A.2d 1055

375 Md. 365

Gerald Ballard SMITH v. STATE of Maryland.

No. 128, Sept. Term, 2002.

Court of Appeals of Maryland.

June 12, 2003.

Craig M. Kadish, Baltimore, for appellant.

Celia Anderson Davis, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for appellee.

Argued Before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

CATHELL, Judge.

On January 18, 2002, Gerald Ballard Smith, appellant, was arrested in Washington County, Maryland and charged with various controlled dangerous substance offenses, including possession of cocaine with intent to distribute. Partly as a result of certain negotiations with the State, some of the charges were dropped. On June 18, 2002, appellant was tried on the remaining charges in a court trial. Following the conclusion of all testimony and argument, he was found guilty of possession of cocaine with intent to distribute. Immediately following the verdict, the parties proceeded to sentencing. Appellant, a subsequent offender, received the mandatory minimum sentence of ten years without the possibility of parole. On July 16, 2002, appellant filed a notice of appeal. On February 26, 2003, we, on our own initiative, granted a writ of certiorari to resolve the following issue:

"1. Was Appellant's waiver of his right to be tried by jury, said right embodied in the Sixth Amendment as well as Article 21 of the Maryland Declaration of Rights, proper where the trial judge, prior to Appellant's waiver, unequivocally stated that he would impose a harsher sentence if Appellant were found guilty after a jury trial, as opposed to a court trial."

We hold that appellant's waiver of his right to be tried by jury was proper, based upon the facts of the case sub judice. The trial judge's statement was ambiguous, not unequivocal, and, most importantly, was made after appellant's counsel had initially indicated, without objection from his client,¹ that the appellant had already chosen to waive his constitutional right to a jury trial.

I. Facts

Subsequent to his arrest, appellant was charged with five counts including possession with intent to distribute a controlled dangerous substance, simple possession, two counts of importation into the State of large quantities of controlled dangerous substances and conspiracy to distribute a controlled dangerous substance. The State, appellee, served appellant with notice that the prosecution would seek to have appellant sentenced as a subsequent offender.²

At the outset of the proceedings, appellant's counsel indicated to the court that appellant would waive a trial by jury in return for a maximum sentence of ten years without parole if appellant were to be convicted by the court, which, based upon his status as a subsequent offender was the minimum sentence appellant could have received if he was found guilty of the charges that would remain pending against him pursuant to his agreement with the State. The trial judge was informed that a part of the agreement between the State and the defendant included the dropping of other charges and a second judge's agreement to sentence defendant to a concurrent period of incarceration on a violation of probation charge. The following dialogue occurred on the record:

"[PROSECUTOR]: Gerald Smith. [Defense Counsel] and I have been trying to reach Judge Boone about an ancillary issue in this case regarding waiver of a jury trial. We are ready to start.

"THE COURT: Are you ready to it do here?

"[PROSECUTOR]: I'm ready to go here.

"[DEFENSE COUNSEL]: We're ready to go, your Honor, with the assent of Judge Boone. My client's agreement to waive jury trial and proceed in this matter was premised upon the cap of 10 and of course the minimum is 10 in the case he has here and Judge Boone running any violation of probation, which is a maximum of I think 33 months concurrent with the 10. We don't think it is a problem. We don't foresee it. We just wanted to run down the hall. We've tried twice today and we have missed Judge Boone both times.

"THE COURT: I don't know what you are going to do. I'm not ... I don't want you to do anything that's going to... I'm willing to be part of a case that's waived jury and proceed to court trial, but I don't think you should ... I'm not going to be part of any sentence that involves another judge.

"[DEFENSE COUNSEL]: We're not asking you to be part of it, Judge ...

"THE COURT: Well you are because you are asking him [Judge Boone] to make a decision before you try this case.

"[DEFENSE COUNSEL]: Actually, your Honor, we are only asking him that if we try the case and he's found guilty, will he be inclined to run the sentence concurrent. We're not asking him to do... not asking you to do anything other than what we've asked you to do.³ We're certainly not asking Judge Boone to do anything other than give him the time, but make it concurrent. It's real simply. In exchange ...

"THE COURT: That simple here, but we are going to go with this. I don't care what he does. If he wishes to waive a trial by jury and proceed to elect trial by court, we go.

"[DEFENSE COUNSEL]: And he will do that provided all the things that [the prosecutor] and I spoke about fall into place for him.⁴ I've had a very difficult time in arranging trial by jury. It's been ... It's been somewhat of a conflict. I will admit my client has really wanted a trial by jury but he's agreed in exchange for receiving certain consideration from the Court, not just from your Honor, but from Judge Boone, he would proceed in this manner. I will be putting something to that effect on the record for post-conviction reasons, your Honor regarding how we are proceeding here today.

"THE COURT: Well he certainly will make a better decision, I think, as far as sentencing is concerned, if he is found guilty by the Court than if he is found guilty by a jury.

"[DEFENSE COUNSEL]: And I have absolutely advised him of that. He knows that your Honor. And I think that is the reason we intend to proceed in this manner. I would ask the Court's indulgence for three minutes to go down the hall.

"THE COURT: Okay, sure. Go right ahead." [Alterations added.][Emphasis added.]

The proceedings resumed ten minutes later. The prosecutor agreed to go forward with a single count of possession with intent to distribute cocaine and entered a nolle prosequi of the remaining counts.⁵ Appellant's counsel then conducted a more formal litany in respect to the waiver of the right to a jury trial to establish the knowing and voluntary nature of the waiver that had already been made. The following ensued on the record:

"[DEFENSE COUNSEL]: We are prepared to proceed with a bench trial. Now by proceeding this way, Mr. Smith, you understand you are waiving your right to a jury trial. You could have had a jury. It would have consisted of 12 people who I would have helped select and you have helped select and the State's Attorney would have participated in the selection. Those people would have been seated here and they would have had to find you guilty beyond a reasonable doubt to a moral certainty and by unanimous verdict. Even just one of those people determined that you were not guilty, that could be a hung jury and you would not be convicted. Do you understand that is not going to happen? You're going to have a trial here before Judge Wright and he's going to apply the same standard, beyond a reasonable doubt, to the two counts that are still remaining, but there will be no particular jury seated. You understand that?

"MR. SMITH: Yes I understand.

"[DEFENSE COUNSEL]: Are you willing to proceed in this matter? And let me preface this by saying that in exchange for proceeding in this manner and not having a jury seated in this case, that the Court has agreed to cap its sentence at 10 years executed time, 10 years period and it's a 10 year minimum mandatory. You understand that the State has filed for that. And Judge Boone, who is the judge you are on probation to, has agreed, solely because you are proceeding in this manner, that he will run any violation of probation time which he gives you concurrent, meaning at the same time, as any time you would get if you were found guilty in front of Judge Wright. Other ... Okay now do you agree to proceed in that manner?

"MR. SMITH: Yes.

"[DEFENSE COUNSEL]: And has any ... Other than what I have put on the record, has anyone promised you anything or threatened you in any manner to give up your right to a trial by jury, other than the representations of Judge Wright that 10 years is your max on this and Judge Boone's representation that he'll run any time on your violation of probation concurrent with any sentence that you might get from Judge Wright?

"MR. SMITH: May I ask you a question?

"[DEFENSE COUNSEL]: Absolutely. You can ask on the record or in private, either one. (Pause while the defendant speaks to counsel.) I apologize to your Honor.

"THE COURT: That's all right. That's all right. No problem. (Pause continues.) Off the record. On the record.

"[DEFENSE COUNSEL]: Now Mr. Smith we just had a conversation off the record and it is my understanding that based upon our conversation, you understand what is going on here today, correct?

"MR. SMITH: Yes sir.

"[DEFENSE COUNSEL]: You are not under the influence of any drugs, alcohol or prescription medication, correct?

"MR. SMITH: No.

"[DEFENSE COUNSEL]: You are not under the care of any psychologist or any psychiatrist for any mental illness that would impair your ability to understand what I am saying to you right now, right?

"MR. SMITH: No.

...

"[DEFENSE COUNSEL]: And you understand that you are giving up the right to a jury trial. And in exchange for giving up your jury trial right and proceeding with a bench trial, meaning a trial in front of Judge Wright, you are getting essentially a cap of 10 years, period, not executed/unexecuted. It doesn't matter because it's a mandatory 10. If you are convicted you

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