Stewart v. State

• Decision Date: 12 March 1990
• Docket Number: No. 102,102
• Citation: 319 Md. 81,570 A.2d 1229
• Parties: James C. STEWART v. STATE of Maryland. Sept. Term 1989.
• Court: Maryland Court of Appeals

Page 81

319 Md. 81

570 A.2d 1229

James C. STEWART v. STATE of Maryland.

No. 102 Sept. Term 1989.

Court of Appeals of Maryland.

March 12, 1990.

Nancy S. Forster, Asst. Public Defender (Alan H. Murrell, Public Defender, both on brief), Baltimore, for petitioner.

Diane E. Keller, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for respondent.

Argued before ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS, CHASANOW and CHARLES E. ORTH, Jr. (retired), Specially Assigned, JJ.

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

Judge Clifton T. Gordy, presiding in the Circuit Court for Baltimore City, received a call from the Criminal Assignment Clerk that a court trial was being transferred to his court. The criminal cause transferred was State v. James C. Stewart in which Stewart was charged with a sexual offense in the third degree and related crimes. When the case was called for trial, the prosecutor said that it was his understanding that the trial would be by the court. Defense counsel observed, "Mr. Stewart prayed a jury trial before Judge [Elsbeth] Bothe sent the case here." Judge Gordy asked whether Stewart needed "to be formally arraigned at this time?" Defense counsel noted that Stewart had already been arraigned. Defense counsel said that the plea would be not guilty, and, with no expression of disapproval by Stewart, that Stewart had elected a court trial. The only pretrial motion was by the State for the sequestration of witnesses which was granted (the defense withdrew all of its motions). Both the prosecutor and defense counsel waived opening statements. The trial proceeded routinely to verdict (guilty of a sexual offense in the third degree) and the imposition of punishment (imprisonment for a term of one year). ¹

At the close of all the evidence, the court indicated that the trial would be continued to resume on the following day. Defense counsel raised the question of bail. She informed the judge that Judge Bothe had revoked bail and requested that Stewart "go back on the bail status that he was on." Judge Gordy said he did not know why Judge Bothe revoked bail and suggested that defense counsel discuss it with her. Defense counsel said, "My understanding was it was revoked during his trial." Judge Gordy ruled that "[Stewart's] bail status will remain unchanged until I can dispose of this matter tomorrow one way or the other on the merits." The judge declared:

I am not getting into how he got his bail revoked, but one way or the other, it won't matter tomorrow. He'll either be free or we'll proceed to disposition. So he will remain in custody of the sheriffs at the present time in the Baltimore City Jail until tomorrow morning.

Stewart then personally requested that he be released on bail. The judge denied the request. Nothing more was said.

When trial resumed the next morning, defense counsel's motion for a judgment of acquittal was denied. Arguments were heard and considered. The judge rendered the verdict. Stewart was allowed allocution through his counsel and his mother. Stewart said that he did not wish to be heard. The State recommended a period of incarceration for "five years suspend all but one year and five years supervised probation upon release from the Department of Correction." The court imposed sentence and explained to Stewart his post-trial rights. Defense counsel asked the judge to "set an appeal bond." The judge inquired, "What would be the ground for the appeal?" It was then, for the first time, that Judge Gordy learned why the case had been transferred from Judge Bothe's court and of the conditions imposed by her on the transfer.

The case was originally set for trial before Judge Bothe. Stewart did not appear. The judge held the case over until the next afternoon. Although informed of the new trial time by his counsel, Stewart again failed to appear. The judge revoked bail and issued a bench warrant. On the following Monday, three days later, Stewart telephoned and was informed by his counsel and by the judge's law clerk that he was obliged to appear for trial that day. Once again, he failed to appear. His appearance was finally obtained two days later through his bailbondsman. Whereupon the following colloquy ensued:

THE COURT: In any event, the warrant was finally served this morning on Mr. Stewart, and Mr. Stewart is here in custody after the Court has waited through three court days ready to proceed with this case.

Now, Hicks runs on Friday. ²

[DEFENSE COUNSEL]: It's my understanding, Your Honor--

THE COURT: What are we going to do? I mean, I'm ready to try the case, if need be.

[DEFENSE COUNSEL]: We're ready to try the case. It's an open--

THE COURT: I'm going to send the current case--

[DEFENSE COUNSEL]: I'm asking the Court to recuse itself.

THE COURT: I'm not recusing myself.

[DEFENSE COUNSEL]: Because the Court has made comments while we've been waiting to get Mr. Stewart in here, indicating that the Court has made up her mind.

THE COURT: I haven't made up my mind about anything other than getting Mr. Stewart here--

[DEFENSE COUNSEL]: Your Honor, you just selected another jury in another trial--

THE COURT: I have been waiting here in this court for three days to resolve this case, and it's going to be resolved in my court. He's not going to come into the court today, as he has, and say I don't want Judge Bothe because she's unfair to make me come to her court.

[DEFENSE COUNSEL]: Not that you're saying he's unfair for coming to court--

THE COURT: If you wish to ask me to recuse myself--

[DEFENSE COUNSEL]: I am.

THE COURT: I've heard your Motion. I deny it.

Shortly thereafter, the matter of the revocation of bail was discussed:

THE COURT: The warrant's been served on him, and I see no reason not to guarantee his presence for the trial, which I've had so much difficulty accomplishing, by keeping him detained until the matter is resolved.

THE DEFENDANT: Your Honor, I have no problems making it to my trial dates. I know my prior ones.

THE COURT: Friday, I was willing to give him the benefit of the doubt, even though you had contacted him and told him to be here. But now it's Wednesday. It so happened that a great deal of court time has been wasted because my court was totally clear on earlier dates this week, as you're aware, and both of you have been in constant touch with me trying to find out where Mr. Stewart was. The waste of resources that's resulted from his failure to appear is one that I'm not going to see duplicated.

[DEFENSE COUNSEL]: But I don't want that problem bleeding over into my trial, Judge. That's what I'm afraid is going to happen.

THE COURT: You mean if he doesn't--

[DEFENSE COUNSEL]: If it's tried here.

THE COURT: It's nothing to do with me, personally. Whatever court he goes to, he's going to have to be available. And he didn't know which court it was going to be assigned to, neither did I. He wants a jury trial, I assume. If he wants a court trial, I'll recuse myself. I do feel that I would be--

[DEFENSE COUNSEL]: If I can have a moment, Judge. Have a seat.

THE COURT: You want to discuss that with him now?

[DEFENSE COUNSEL]: Yes.

THE COURT: You want a few minutes to do it? But he's continued in custody.

After a brief recess, defense counsel addressed the judge:

Your Honor, after discussing the options with my client, it's my understanding Mr. Stewart's going to be waiving a jury trial, requesting a court trial and requesting this Court to recuse itself.

Defense counsel then told Stewart in open court:

Mr. Stewart, you have to make the waiver on the record. You have a right to be tried by a jury of your peers, which would be twelve people you would help to select. All twelve people would have to agree that you are guilty. If one person said they weren't sure you were guilty, it would be hung jury and we would start over again. Or you could have a court trial, a trial before the court. In a trial before the court, a judge would sit alone, would listen to all the testimony and evidence, and the judge would decide whether or not you were guilty or innocent of the crime.

She asked Stewart:

Do you wish to waive a jury trial and request a court trial, sir?

Stewart replied that he did. Defense counsel repeated her request that the judge recuse herself.

THE COURT: I have said in a court trial, under the circumstances, I would recuse myself.

I understand that Judge Gordy is available for a court trial.

I want it understood, very clearly, two things: One is that there must be a court trial. He's waived his right to a jury trial. If it's a jury trial, my recusal does not stand. Is that understood?

[DEFENSE COUNSEL]: That's understood.

THE COURT: Secondly, the bail has been revoked and remains revoked. Of course you can appeal to any other judge. I assume if you want to bring the matter to Judge Gordy, you may. But at this time, the Defendant is in custody.

Thirdly, it was my understanding, when this case was sent to me from the move list before I knew anything about it at all, that the Defendant had rejected an offer of probation, five and five I believe I was told. Is that correct?

[DEFENSE COUNSEL]: That was back in September, I believe, Judge. In August.

THE COURT: Whenever it was, it was before another judge and another court.

[DEFENSE COUNSEL]: That's correct.

THE COURT: That offer was rejected and the Defendant then indicated his desire to be tried.

[DEFENSE COUNSEL]: That's correct.

THE COURT: The offer is not on the table as far as this court was concerned. When I was advised about the nature of the offense in this case, I indicated that I was not amenable to probation. And there has never been any intention, on the part of this Judge, to impose a probationary sentence to this Defendant. I want it made clear to Judge Gordy that it was not this Court's--this Court has not accepted any plea negotiation. And I very definitely have and would have rejected any...