Walter v. State

• Court: Maryland Court of Appeals
• Writing for the Court: THOMPSON; Daniel Ambrose Walter and Jack Dempsey Maude, the appellants, were both convicted of grand larceny by the Circuit Court for Prince George's County
• Citation: Walter v. State, 4 Md.App. 373, 243 A.2d 626 (Md. App. 1968)
• Decision Date: 17 June 1968
• Docket Number: No. 151,151
• Parties: Daniel Ambrose WALTER and Jack Dempsey Maude v. STATE of Maryland.

Page 373

4 Md.App. 373

243 A.2d 626

Daniel Ambrose WALTER and Jack Dempsey Maude v. STATE of Maryland.

No. 151.

Court of Special Appeals of Maryland.

June 17, 1968.

James J. Casey, Hyattsville, for appellant Daniel Ambrose Walter; Andrew C. Yslas, Hyattsville, on the brief.

Steny H. Hoyer, Marlow Heights, for appellant Jack Dempsey Maude; Thomas B. Yewell, Marlow Heights, on the brief.

Alfred J. O'Ferrall, III, Asst. Atty. Gen., of Baltimore, for appellee. Francis B. Burch, Atty. Gen., Baltimore, Arthur A. Marshall, Jr., State's Atty. for Prince George's County Robert J. Woods, Asst. State's Atty. for Prince George's County, Upper Marlboro, on the brief.

Before MURPHY, ANDERSON, MORTON, ORTH and THOMPSON, JJ.

THOMPSON, Judge.

Daniel Ambrose Walter and Jack Dempsey Maude, the appellants, were both convicted of grand larceny by the Circuit Court for Prince George's County, Judge Ralph W. Powers presiding without a jury. Walter was given a three year sentence and Maude a four year sentence. They allege error in the trial court's refusal to continue the case in order to obtain new counsel, in denying their rights to withdraw their waiver of a jury trial, and in the denial of their motions for a change of venue. In view of the contentions it will be unnecessary to give a statement of the facts.

On March 23, 1967 at the time both appellants were arraigned, their privately retained counsel entered his appearance and each elected a court trial. The trial was set for April 5th, but prior to that time it was continued until April 24th at the request of the appellants' counsel. The appellants were notified of the new trial date several days prior to April 5th. On the morning of the trial the appellants made an oral motion for a continuance for the purpose of obtaining new counsel. They alleged they could obtain new counsel within twenty-four hours. The record does not show whether or not the court was free to try a case the second day. The State's Attorney objected to the postponement because he had a witness that had come from the State of Florida for the day of trial whereupon the court requested the reasons for the request which were set out as follws:

'THE COURT: Do you have anything to add?

'Do you want to make that of record? Because that is what it is based on, the action of the Court. We don't usually grant continuances when the trial date has been set and parties have been notified and come up ready for trial with witnesses, and then ask for a continuance.

'Is there anything further that you would like to say?

'THE DEFENDANT MAUDE: It is just that-

'THE COURT: Speak up.

'THE DEFENDANT MAUDE: I can't feel confident with him. That is all I can say.

'THE COURT: Is there anything you would like to say in connection with it, Walter?

'THE DEFENDANT WALTER: About the same thing. I just don't feel quite confident with the lawyer and I would like to change counsel.

'THE COURT: Why not? You engaged him as your attorney. He has been your attorney until this morning. Why didn't you act any sooner than this?

'THE DEFENDANT MAUDE: For one thing, we just found out a few more things this morning that just isn't right.

'THE COURT: Just found out what?

'THE DEFENDANT MAUDE: We found out a few things this morning that just isn't right.

'THE COURT: What are you talking about?

'THE DEFENDANT MAUDE: Well, it is just that, you know, witnesses in the case, and stuff, and he don't feel he should use them and we feel we should, and it is just a number of things. He just isn't acting the way we would like him to act, that is all.

'THE COURT: Is there anything further?

'THE DEFENDANT WALTER: No.'

It is elementary that a continuance is within the sound discretion of the trial court, Bright v. State, 1 Md.App. 657, 232 A.2d 544. The appellants urge however the right to counsel is so fundamental that the action of the court deprived them of counsel. In Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921, the Supreme Court of the United States considered the problem involving the denial of a continuance which allegedly deprived the accused of his right to engage counsel and at 376 U.S. 589, 84 S.Ct. 849 the Court said:

'The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. Avery v. State of Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377. Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality. Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4. There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. Nilva v. United States, 352 U.S. 385, 77 S.Ct. 431, 1 L.Ed.2d 415; Torres v. United States, 270 F.2d 252 (C.A. 9th Cir.); cf. United States v. Arlen, 252 F.2d 491 (C.A.2d Cir.).'

On the vague information furnished the court as to the reason for the continuance, we cannot say that the trial judge abused his discretion. ¹

The appellants secondly contend that the court committed error in refusing, on the morning of the trial, their right to withdraw their waiver of a jury trial.

Maryland Rule 741 provides as follows:

'An accused may waive a jury trial and elect to be tried by the court. If an accused elects to be tried by the court the State may not elect a jury trial. An election to be tried by the court must be made before any evidence in the trial on the merits is taken unless otherwise provided by local rule of court. (Uniform Rule 34)'

The Local Rules of the Circuit Court for Prince George's

County, Chapter 700, Criminal Causes, Local Rule 702, Arraignment and Jury Election provides:

'a. Election by Defendant

At the time of arraignment under Maryland Rule 719, or within fifteen days thereafter, the defendant shall elect whether or not a jury trial is desired. If no election is made within that time it shall be conclusively presumed that the accused waives his right to a jury trial and elects to have the case tried by...