State v. Huebner, 94

• Decision Date: 01 September 1985
• Docket Number: No. 94,94
• Citation: 505 A.2d 1331,305 Md. 601
• Parties: STATE of Maryland v. Gisela HUEBNER and Hans J. Huebner. ,
• Court: Maryland Court of Appeals

Page 601

305 Md. 601

505 A.2d 1331

STATE of Maryland v. Gisela HUEBNER and Hans J. Huebner.

No. 94, Sept. Term, 1985.

Court of Appeals of Maryland.

March 24, 1986.

Richard B. Rosenblatt, Asst. Atty. Gen. (Jillyn K. Schulze, Asst. Atty. Gen., Stephen H. Sachs, Atty. Gen., on brief), Baltimore, for appellant.

Louis J. Martucci, Greenbelt, for appellees.

Argued before SMITH, Senior Judge, ELDRIDGE, COLE, RODOWSKY, COUCH and McAULIFFE, JJ., and CHARLES E. ORTH, Jr., Associate Judge of the Court of Appeals of Maryland (retired), Specially Assigned.

CHARLES E. ORTH, Jr., Judge, Specially Assigned.

Hans J. Huebner and Gisela Huebner, his daughter, were arrested in Prince George's County, Maryland, on 18 January 1984. The criminal causes filed against them have yet to be tried on the merits. The delay has no speedy trial implications, constitutional or statutory. The intervening time was spent in attempts to determine whether the District Court of Maryland sitting in Prince George's County or the Circuit Court for Prince George's County has jurisdiction to try the causes in the first instance. The Huebners urge that jurisdiction lies in the circuit court. The State claims that the District Court has jurisdiction. Both the District Court and the circuit court agreed with the State. The Court of Special Appeals agreed with the Huebners. We agree with the Court of Special Appeals. We hold that the Huebners are entitled to be tried in the first instance in the Circuit Court for Prince George's County. We explain how we reached that holding.

The circumstances of the Huebners' arrests are not reflected in the record transmitted to us but apparently there was a brouhaha involving the Huebners and the police which resulted in Hans being charged with resisting arrest, tampering with a motor vehicle and disorderly conduct, and Gisela being charged with assault and battery on a police officer, hindering a police officer and disorderly conduct. ¹ All of these offenses are within the jurisdiction and venue of the District Court of Maryland sitting in the district for Prince George's County. Maryland Code (1973, 1984 Repl.Vol., 1985 Cum.Supp.) §§ 4-301 and 4-302 of the Courts and Judicial Proceedings Article. The Huebners made timely demands for a jury trial. Indeed, they made known to the court and prosecution their desire to be judged by their peers on four occasions and have never wavered from that position. The prosecutor attempted to thwart their elections of a jury trial, and thereby keep the cases within the jurisdiction of the District Court, by announcing at a pre-trial conference before the Administrative Judge of the Prince George's District Court that the State did not intend to seek a sentence in excess of 90 days. The prosecutor was looking to the provisions of Maryland Code (1974, 1984 Repl.Vol.) § 4-302(d) of the Courts and Judicial Proceedings Article. ² The Administrative Judge agreed that if he were trying the cases, he would not impose a sentence in excess of 89 days. So jurisdiction was retained in the District Court, but with an observation by the Administrative Judge that "if the trial judge disagreed as to the limitation of the sentence, the jury trial demand could be reasserted." ³

Before the cases came on for trial, we filed our opinion in Kawamura v. State, 299 Md. 276, 473 A.2d 438 (1984). ⁴ In that case we indicated that § 4-302(d)(2)(ii) was unconstitutional as applied to a defendant charged with an offense to which the Maryland Declaration of Rights guarantees of a jury trial in the first instance attach. ⁵ See Fisher v. State 305 Md. 357, 504 A.2d 626 (1985). ⁶ Kawamura caused the State to try a new tack. It decided to forgo seeking the trial judge's agreement not to impose a sentence of imprisonment for a period in excess of 90 days. Instead, when the cases were called for trial the prosecutor entered a nolle prosequi to each charge against the Huebners except that of disorderly conduct. Of course, the Huebners objected to the entry of nol prosses. The trial judge ruled that action of the State was proper. He observed that the only charges remaining were "the petty offenses of disorderly conduct and disturbing the peace," denied the requests for a jury trial, and retained jurisdiction of the causes in the District Court. When his attention was called to actions filed by the Huebners in the circuit court, however, he held the trials of the criminal causes in abeyance.

The Huebners had instituted actions in the Circuit Court for Prince George's County by way of petitions praying that the court order the issuance of a writ of certiorari to the district court. The petitions sought a determination of the Huebners' entitlement to a jury trial. ⁷ The circuit court deferred action on the petitions pending a decision by the district court trial judge on the jury trial demands. Promptly upon the denials of a jury trial by the district court, the circuit court acted on the petitions. As to each petition, it noted that the District Court of Maryland "conducted further hearings, and, of this date, has determined that the jurisdiction of this case is properly before the District Court of Maryland at the present time." The "Order of Court" in each case concluded:

WHEREFORE, it is this 17th day of April, 1984, by the Circuit Court for Prince George's County, Maryland,

ORDERED that the Petitioner's Writ of Certiorari is hereby denied and that this Court finds that jurisdiction is properly within the District Court of Maryland [sitting in Prince George's County].

The Huebners noted appeals from these judgments to the Court of Special Appeals. The intermediate appellate court reversed. Huebner v. District Court, 62 Md.App. 462, 490 A.2d 266 (1985). We ordered that a writ of certiorari to the Court of Special Appeals, requested by the State, be issued. The propriety of the action of the Court of Special Appeals will be determined by the resolution of the question presented by the State's petition:

Whether the District Court of Maryland retained jurisdiction over the criminal proceedings pending against [Gisela Huebner and Hans J. Huebner] following the prayer for a jury trial so as to render effective the nolle prosequi by the State of all charges on which a jury was demandable?

It is pellucid that the change in the tactics of the prosecution after our decision in Kawamura was triggered by the belief that the constitutional entitlement to a jury trial in the first instance attached to the offenses of assault and battery and resisting arrest but that there was no such entitlement as to disorderly conduct. Apparently this belief was shared by all concerned; neither the State nor the Huebners nor the judge of the District Court nor the judge of the circuit court made any suggestion to the contrary. The Court of Special Appeals expressly determined that the crimes of assault and battery and resisting arrest are within the ambit of the Maryland constitutional right to a jury trial and with the implication that the offense of disorderly conduct proscribed by Md.Code, Art. 27, § 123, is not. Huebner v. District Court, 62 Md.App. at 468-470, 490 A.2d 266.

Kawamura, 299 Md. at 293-294, 473 A.2d 438, pointed out that in State v. Stafford, 160 Md. 385, 387, 153 A. 77 (1931), relying on Baum v. Warden of Jail, 110 Md. 579, 73 A. 294 (1909) and Danner v. State, 89 Md. 220, 42 A. 965 (1899), this Court "held that the state constitutional right to a jury trial attached, at the initial trial level, to the offense of assault and battery." We abide by that holding.

In this State, the crime of resisting arrest and the crime of assault and battery have certain similarities relevant to the right to a jury trial. Each crime constituted an offense at the common law inherited by Maryland. Busch v. State, 289 Md. 669, 673, 426 A.2d 954 (1981); Preston v. Warden, 255 Md. 628, 629, 169 A.2d 407, cert. denied, 366 U.S. 974, 81 S.Ct. 1940, 6 L.Ed.2d 1262 (1961); Matter of Nawrocki, 15 Md.App. 252, 263, 289 A.2d 846, cert. denied, 266 Md. 741 (1972). Neither crime has a penalty prescribed by the legislature; the punishment which may be imposed upon conviction is within the discretion of the sentencing judge. This discretion is tempered only by the constitutional admonitions that the punishment shall not be cruel and unusual. ⁸ Since the constitutional right to a jury attaches to assault and battery, then, by reason and logic, the right also attaches to resisting arrest. In Baum v. Warden of Jail, supra, the court held that an assault offense created by a local statute, even though it was not a felony and was not punishable by confinement in the penitentiary, entitled the defendant to a jury trial. It declared that the offense is "certainly of a more serious character than vagrancy or habitually disorderly conduct." 110 Md. at 585, 73 A. 294. Resisting arrest is a serious crime. "A refusal to submit to lawful arrest and resistance to an officer of the law in the performance of his duties ...," Preston, 225 Md. at 629, 169 A.2d 407, is a real affront to the public welfare and the police power of the state, and cannot be deemed other than serious. ⁹ And the punishment which may be imposed for committing the offense is obviously infamous, even though the crime itself may not be. ¹⁰ See Huebner v. District Court, 62 Md.App. at 470 n. 7, 490 A.2d 266. In Preston v. Warden, 225 Md. at 629, 169 A.2d 407, we held that a sentence of ten years for resisting arrest "was neither excessive nor illegal." ¹¹ In short, the offense of resisting arrest meets the test, indicated in Kawamura and explicated in Fisher, for the attachment of the constitutional right to a jury trial at the initial trial level. We hold accordingly.

It follows that the State acted wisely in abandoning its reliance on § 4-302(d)(2)(ii) of the Courts and Judicial Proceedings Article to retain jurisdiction of the criminal causes against the Huebners in the...