State v. Jones

• Decision Date: 03 December 1973
• Docket Number: No. 83,83
• Citation: 312 A.2d 281,270 Md. 388
• Parties: STATE of Maryland v. Gilbert JONES.
• Court: Maryland Court of Appeals

Page 388

270 Md. 388

312 A.2d 281

STATE of Maryland v. Gilbert JONES.

No. 83.

Court of Appeals of Maryland.

Dec. 3, 1973.

James G. Klair, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen. and Edward F. Borgerding, Asst. Atty. Gen., Baltimore, on the brief), for appellant.

Chester Cohen, Assigned Public Defender, Baltimore, for appellee.

Argued before MURPHY, C. J., and BARNES, McWILLIAMS, SINGLEY, SMITH, DIGGES and LEVINE, JJ.

MURPHY, Chief Judge.

In Jones v. State, 17 Md.App. 130, 300 A.2d 392 (1973) the Court of Special Appeals, by a divided panel, reversed Jones' armed robbery conviction and ordered a new trial on the ground that the trial judge had abused his discretion in denying Jones' request to withdraw his prior waiver of a jury trial. We granted certiorari to consider whether the Court of Special Appeals erred in so concluding.

The pertinent facts are these: Jones' case was scheduled for trial on March 30, 1971, before Judge Albert L. Sklar in the Criminal Court of Baltimore. On that date, Jones pleaded not guilty and elected a jury trial. After voir dire examination of the jury panel was concluded, a jury was selected but not sworn, it being agreed that the trial would be continued until April 5, 1971 due to the annual meeting of the Maryland Judicial Conference. After the jury was excused, Jones personally addressed the court, saying:

'. . . I don't think that jury selection was fair because that is not the jury of my choice. I did not have the proper understanding of the proceedings of picking a jury. I don't think it is fair and that is not the jury I want.'

Jones admitted that his court-appointed attorney had informed him that he was limited in the jury selection process to twenty peremptory strikes, but claimed that he 'wasn't aware of what he (his attorney) was saying at the time.' Jones told the court that he wanted to 'strike another jury . . . to get down to the ones I want to judge this case.' Judge Sklar denied the request.

On April 5, before the jury was sworn, Jones' counsel advised Judge Sklar that Jones 'has just informed me he requests a Court trial instead of a jury trial.' The court then carefully explained to Jones the difference between a court trial and a jury trial; Jones said he understood. Thereafter, the court told Jones that he was waiving his right to a jury trial and that 'if you change your mind again and say you want a jury trial later on, you won't be able to get a jury trial because you have given up your right to a jury trial.' Asked by the courr three separate times if he so understood, Jones responded each time that he did. After the court accepted Jones' waiver of trial by jury, his counsel requested a postponement, stating that he learned that morning that Jones had a witness 'that would be crucial . . . to our defense,' and that he needed time to interview her. The State objected, claiming that Jones' 'eleventh hour' request for a postponement was a delaying tactic. Judge Sklar grnated a two-week postponement to afford Jones 'every reasonable opportunity of getting his defense in order.'

On April 26, 1971, Jones' case was again set for trial before Judge Sklar. Jones requested a further postponement, claiming that he had not been successful in contacting his witness; Judge Sklar granted a further postponement.

Trial of the case before Judge Sklar was re-set for May 20, 1971. On that date, Jones moved to dismiss his court-appointed counsel, contending that he was incompetent because of the manner in which he had counseled him during the jury selection process at the proceedings held on March 30, 1971. Jones said that he had not raised the incompetency question earlier because he 'had to give it plenty of thought first.' He told the court that he wanted to employ his own lawyer, that his mother would 'probably' help him financially to do so, and that he would need 'a couple months' to engage new counsel and prepare for trial. While expressing belief that Jones' court-appointed counsel was a competent attorney, Judge Sklar stated that he would nevertheless permit him to withdraw from the case. He advised Jones that he would be rearraigned on June 10, and that privately retained counsel should be engaged prior to that time.

There is no record of any proceeding held on June 10. Because Jones failed to employ his own counsel, the court appointed new counsel to represent him, his appearance being entered on July 15, 1971. The case was finally set for trial before Judge Solomon Liss on December 6, 1971, at which time Jones asked for a jury trial. Judge Liss reviewed the transcript of the prior proceedings, and observed that Jones had previously waived a jury trial, and elected to be tried by the court. He noted that Jones had assisted his counsel in selecting the jury, had exercised his twenty peremptory challenges, and then 'took a look at the jury, he wasn't happy with them, so he decided he wanted a Court trial.' Judge Liss made the further observation that Judge Sklar made it 'perfectly clear' to Jones that his waiver of trial by jury would be binding upon him and that 'I don't think at this point, having gotten what he wanted apparently, which was a postponement and a delay, he can now come in and say I have changed my mind again.' ¹

Judge Liss clarified his reasons for refusing to permit Jones to withdraw his waiver of a jury trial when he disposed of Jones' motion for a new trial. He said that because Jones did not want to be tried by the jury selected at the proceedings held on March 30, 1971, it was a tactical maneuver on his part thereafter to elect a court trial; that there was no assurance that if Jones were permitted to select another jury, that he would not again have changed his mind if the jury was not to his liking; and that 'such tactics on the part of the defendant is an obstruction of the administration of justice.'

In concluding that Judge Liss abused his discretion in refusing to permit Jones to withdraw his waiver, the Court of Special Appeals stated that under Maryland Rule 741, ² as interpreted and applied in Staten v. State, 1o Md.App. 425, 283 A.2d 644 (1971) and Cole v. State, 12 Md.App. 379, 277 A.2d 248 (1971), a previous election, for good cause shown, 'may be withdrawn up until the actual commencement of the trial unless there is a showing that the granting of the motion would unduly delay the trial or otherwise impede justice'; that the record indicated that a jury was immediately available for trial on December 6; and that although 'an accused obviously cannot be permitted to change his election as a dilatory tactic, . . . from the complete record, there as at least a modicum of doubt that the accused fully understood the method by which a jury was selected at the time he participated with his counsel in selection of the jury.' Jones v. State, supra, 17 Md.App. at 134-135, 300 A.2d at 395. In reaching its conclusion, the court found it significant that several months had elapsed since Jones had elected a court trial, that a different judge was presiding at the trial than at the time of the original election, and that new trial counsel had been appointed in the interim. Dissenting, Judge Moylan expressed the view that '(t)he clear import of Judge Liss's ruling is that to permit a defendant, no matter how convoluted and drawn out his path to his objective, to get rid of one jury he doesn't like and then to pick another in its stead would be, ipso facto, to 'impede justice." Jones v. State, supra, at 152, 300 A.2d at 404. He found no abuse of discretion in the denial and noted that Jones had not met his initial burden under Rule 741 of showing 'good cause' for withdrawing his prior election of a court trial.

Judge Moylan concluded:

'I see in this case a frightening demonstration of how over-solicitude can permit criminal dockets to become jammed almost beyond hope of redemption and can permit interminable stops and starts to corrode the very face of justice. I see a Svengali-like appellant who has manipulated shockingly the courts and his attorneys alike. I see a resolute judge who finally called a halt. I applaud. Needless to say, there is subsumed in that greater approbation the firm belief that Judge Liss, at the very least, did not abuse his discretion. . . .'

That an accused may waive his right to a jury trial and elect to be tried by the court is clear. State v. Zimmerman, 261 Md. 11, 273 A.2d 156 (1971); Rose v. State, 177 Md. 577, 10 A.2d 617 (1940). 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. Scates v. State, 244 Ark. 333, 424 S.W.2d 876 (1968); People v. Sears, 138 Cal.App.2d 773, 292 P.2d 663 (1956); People v. Melton, 125 Cal.App.2d Supp. 901, 271 P.2d 962 (1954); State v. Rankin, 102 Conn. 46, 127 A. 916 (1925); Floyd v. State, Fla., 90 So.2d 105 (1956); People v. Catalano, 29 Ill.2d 197, 193 N.E.2d 797 (1963); State v. Kavanaugh, 203 La. 1, 13 So.2d 366 (1943); Newton v. State, 211 Miss. 644, 52 So.2d 488 (1951); Sutton v. State, 163 Neb. 524, 80 N.W.2d 475 (1957); State v. Coble, 118 Ohio App. 258, 194 N.E.2d 64 (1962); Staley v. State, 65 Okl.Cr. 227, 84 P.2d 813 (1938); Staten v. State, supra. See also Annot., 46 A.L.R.2d 919 (1956). The American Bar Association's 'Standards Relating To Trial By Jury,' Approved Draft (1968) adopts the rule of the cases, noting that no good reason exists to allow an accused complete power to withdraw his waiver since the exercise of such a power could...