Williams v. State

• Decision Date: 09 March 1971
• Docket Number: No. 145,145
• Citation: 11 Md.App. 350,274 A.2d 403
• Parties: Otis WILLIAMS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 350

11 Md.App. 350

274 A.2d 403

Otis WILLIAMS v. STATE of Maryland.

No. 145.

Court of Special Appeals of Maryland.

March 9, 1971.

Norman Yankellow, Baltimore, with whom was Joseph Rosenthal, Baltimore, on brief, for appellant.

Clarence W. Sharp, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., State's Atty., for Baltimore City and Michael E. Kaminkow, Asst. State's Atty., for Baltimore City on brief, for appellee.

Argued before MORTON, ORTH and THOMPSON, JJ.

MORTON, Judge.

Appellant was convicted in a nonjury trial of rape and sentenced to five years imprisonment. In this appeal it is first contended that he 'did not make an intelligent waiver of his right to a jury trial.' The record indicates that when, at the beginning of the trial, he was asked: 'Your plea today?', his counsel announced: 'The plea is not guilty, court trial.' No other reference to the plea or election of a court trial was made by his counsel, by the court or by the appellant. It is now argued that it was incumbent upon appellant's counsel or the trial judge to have ascertained whether appellant intelligently understood his right to a jury trial and that 'the record being silent on this point it must be resolved in favor of appellant.'

We think this issue is controlled by the recent decision of the Court of Appeals in State v. Zimmerman, Md., 273 A.2d 156 (1971). There the factual posture was substantially identical to that in the case at bar. Zimmerman's counsel entered a plea of not guilty on his behalf and when asked: 'How does he wish to be tried?', counsel replied: 'By the Court.' On his appeal to this Court, Zimmerman contended that the trial judge erred in failing to determine whether he intelligently waived his right to a jury trial. The Court of Appeals granted the State's petition for writ of certiorari and, after reviewing the action of this Court (Zimmerman v. State, 9 Md.App. 488, 265 A.2d 764), held that this issue, not having been raised in the lower court, could not be raised for the first time on Court went on to say that in this factual appeal, citing Maryland Rule 1085. The situation the Uniform Post Conviction Procedure Act (Md.Code, Art. 27, § 645A-645J) provided the appropriate procedures and forum for resolving the issue.

Since the appellant here did not raise the question below he may not now raise it in this appeal. If he persists in having an answer, 'the avenue is open for him through post conviction procedures * * *.' Zimmerman, supra.

It is next contended that the evidence was legally insufficient to sustain the conviction and that the victim was not competent to testify. The victim was an 8-year old, second grade student, who was subjected to interrogation as to her competency to testify by the trial judge, the prosecutor and the defense counsel. She stated that she knew the difference between telling the truth and telling a lie and that if one tells a lie, he will be punished. When asked by whom one would be punished, she answered: 'God.'

The Court of Appeals and this Court have consistently held that whether a child of tender years is legally competent to testify is within the sound discretion of the trial judge and his judgment in this respect will not be disturbed on appeal unless there has been a clear abuse of that discretion. Horsey v. State, 225 Md. 80, 169 A.2d 457; Saldiveri v. State, 217 Md. 412, 143 A.2d 70; Jacobs v. State, 6 Md.App. 238, 251 A.2d 33. While the victim here was unable to give certain dates accurately, did not know the exact meaning of the words 'to swear' or 'to take an oath', it is evident that the trial judge found, and we cannot say he was wrong, that the victim understood the difference between telling the truth and telling a falsehood. We think under the circumstances here that there was no abuse of the trial judge's discretion in finding her legally competent to testify. See ...