*1 EUGENE HUGH MATHIAS v. STATE OF MARYLAND Term, September
[No. 1978.] Decided November 1978. L. Callegary appellant. Claude Anselmi, General, Michael A. Assistant Attorney Burch, General, B. whom were Francis Attorney Clarence Sharp, General, brief, Attorney W. Assistant on the appellee. Eldridge J., opinion delivered the Court. Smith, J., dissenting opinion filed a JJ., dissent Cole, Cole, J., 35 infra. page concurs
which Eldridge, *2 his not abuse trial did here hold that a We shall the of on request the an accused he denied discretion when to that of a court trial change his election morning of trial to of a trial. jury County Court for Harford trial in the Circuit
In a court of (Mathias), convicted Mathias was Hugh Eugene appellant, and substance dangerous controlled distribution of panel A distribute such divided substances. conspiracy the conviction affirmed Appeals of Special the Court 291, A. We App. Mathias v. might consider in order that we granted of certiorari writ the presented. the issue here relatively us, before the facts are of the case purposes
For on October arraigned codefendant were simple. Mathias and a plea guilty of not 5,1976. Mathias entered a At that time scheduled court. Trial was by originally elected be tried 9,1977. because It to June postponed for June was attorney. When the case was schedule of Mathias’ of the trial for Mathias advised for trial on June counsel called a court trial but a court that Mathias to elect not “wish[ed] trial____” the reasons for рroceeded then set forth jury He request: notified was of last week that we were early “[I]t Office, Mr. that Attorney’s Coleman the State’s in this was two pleading the codefendant case indictment.[1] counts of the At the time original not arraignment pleaded both defendants court. After guilty elected to be tried and the fact notifying my client of that situation against the codefendant Deal be a witness him, request me to Mr. Mathias then 29, 1977, Wednesday. worthy was 1. It thus of note that June Mathias Therefore, “early previous] that counsel for it week” if were [in this was it follows that was then that the codefendant knew more than a week be pleading guilty, Wednesday presumably would since before the trial date regarded as the middle of the week.
court to his withdraw jury request on jury basis that the testimony codefendant so totally prejudicial rights and could entirely disregarded by a jury, this codefendant and in spite [State A. (1973),] 2d 281 the court Jones,] [312 has discretion to the waiver of a trial to trial and go that discretion the court can in both directions. are requesting We now court withdraw the waiver and that bewe allowed to have a jury trial. I understand that there is some question perhaps of a witness and stipulate we could to that one witness Iwho understand is from out of town, his testimony what would be.” Counsel for Mathias said the morning until trial that he “finally learned the extent of the codefendant’s *3 testimony ... and deeply prejudicial be]____” how [might it motion,
The State opposed pointing the out that there had been no indication prior trial morning of that there trial, would be a a prayer jury for the clerk “ha[d] prepared the on the assumption case there would no be jury fact, so [was], there jury present and available the court a jury select morning and that permitting th[at] a have trial mean jury delay.” The State [Mathias] contended in election would mean postponement eight for six to weeks. It was observed thаt had “given Mathias even a or day arrangements two notice” could have (Harford been made have jury present day. sufficiently County populous and does not have litigation sufficient for there to abe jury courthouse day week.) every the The State also pointed out that it had brought a former police officer in from as a Pittsburgh witness. denying the request, referred to State v. He said:
“Now, you facts, when consider the various one late very request change, mean, for the I even day and certainly two I Mr. Callegary believe by Mathias)], you were aware [(counsel going that a codefendant was of last week end if had you if then and even plead guilty have had one available. trial the clerk could course, the So, ago, of plea was months original and in addition to a little bit different facts were Pittsburgh from coming who has a witness State those expenses expenses paid has certainty and it’s not already inсurred have case is if the would be available that this witness if the was assignment out of the taken case out of taking the granted. It would necessitate eight heard for six to It would not be assignment. certainly be and it would from now weeks from to come here for this witness inconvenience to have to Pittsburgh possibly required be return.
“So, is made in I don’t doubt that the motion doubt faith, Callegary, certainly any Mr. I don’t have weigh all of the you I think on that score but considered, that supposed thаt are to be factors in this case would be best exercise of discretion proceeding the motion and by denying exercised see frankly the court can’t trial because So, I will to Mr. Mathias. prejudice there is real the motion.” deny 1, 1977, then prior July tried this case
Since was applicable.2 It states: Maryland Rule byor may by jury elect to tried “An accused *4 the by shall made accused court. election be the Such submitted Standing and Procedure Committee on Rulеs of Practice 2. Our Register 30,1975. 3:1 Md See Report its 53rd to us under date December 7, 1976), rules (January of the which recommended extensive revision 8-39 1977, 31, passed January an order we to criminal cases. On applicable adopting Register 1,1977. 4: 4 Md. July See 235-275 rules effective new 16,1977). Maryland applicable to election of Rule 735 (February court or defendant, currently writing, signed by the in Under it the election must “be trial. counsel, by any, the clerk if and filed with witnessed his part, provides pertinent in pending.” 735 a in which the case Rule court filed, may permit the defendant an the court “After election has been good upon prior change except to trial and his motion made to election 26 open
in
court when first
upon
called
to plead after
he is represented
counsel
by
of record or has waived
If
counsel.
an accused elects
court,
to be tried
by
may
not elect a jury
may,
trial. The court
in its
shown,
discretion and for
causе
at any
prior
time
permit
to change
accused
added.)
his election.” (Emphasis
There is not
slightest suggestion
trial judge
in this case was in any way
against
biased
Mathias. The
parties
concede,
here
as indeed they must after
holding
our
Jones,
in
the action of the trial court here is to be
upon
reviewed
the basis of whether
it was an
abuse
discretion.
Chief
Murphy pointed out for the
in
Court
270 Md. at
“Under the prevailing rule an accused
has no absolute right
trial;
withdraw
a jury
permitted
whether
will
is a
be
matter committed
sound discretion of the trial court.” He cited a
number
cases in support of this proposition together with Annot. 46
A.L.R.2d
(1956).
919
To
Lawrence,
this could be added State v.
216
(1975),
Kan.
Precisely what is meant abuse of discretion seems not to have However, been articulated this Court. some bench marks are to be found. For example, Washington, B. & A. R. 243, 250, 118 R. v. Kimmey, A. 648 determining election, cause shall shown. In whether extent, allow a give regard due any, delayed if which trial would change.”
27 considering in to be exercised to the discretion relative trial, Judge predecessors, said for our for a new Urner motion sound which characterized as “A discretion could not be its should exercise wholly disregarded evidence which 127, 133, 145 Horton, In 157 Md. have aided.” Horton v. been orphans’ courts (1929),concerning A. the discretion or to the grant letters to child intestacy the case of said, widow, be, might as the case or Court husband “[I]t discretion, and actually the court shall exercise means that the relative considering its choice after that it shall make applicants, respective and their merits fitness of the and consideration, regard not that it act may claims without consideration, In Lee caprice.” at its solely pleasure to such State, 430, 157 (1931), Judge Bond said A. 723 Chief v. for the Court: in a trial meaning discretionary power
“The court, governing and the rules review discretionary orders on have often been appeal, vague, furnish exаct stated loose terms which it for the of this case seems guidance; purposes but only judgment to us sufficient observe the exact solving must exercised in discretion law, all the considerations which problem upon problem, into it. For enter and form properly for the solution instance, being the discretion case of each arising from the circumstances problem that the court held it has presented, previous alike all cases dispose could not 324, 1 H. & G. Ridgely, Bank rule. v. general Union at 441. [(1827)].” Id. 481, 489, State, v. 185 Md. 45 A. 2d might of discretion” “be Court held that “the exercise harsh, capricious unjust, if exercised in reviewed said for recently Judge more O’Donnell arbitrary way.” Much 2d 707 Court Wilhelm (1974): C.,
“Lord Halsbury, Sharp L. v. Wakefield [1891] A. C. said: *6 ‘ “Discretion” means when it is that said something is to done within the discretion of the authorities that that something is to according be done to the of rules reason and justice, according private opinion; law, according to and not be, humour. It vague, is not arbitrary, fanciful, and but legal regular. and And it limit, must be exercised within the to which an honest man competent to the discharge ” of ought his office to confine Id. himself.’ at 438. recognized
We have
in other matters
since
discretionary rulings by trial judges carry a
of
presumption
validity, the
establishing
burden of
an abuse of discretion in
particular
case
appellant.
lies with the
I.
Prop.
W. Berman
Brothers,
Porter
13-14,
v.
276 Md.
(1975);
In Jones Chief Murphy referred American Bar Association’s “Standards Relating by Jury,” Trial § Approved (c) Draft 1.2 provides, of which “A defendant may not voluntary withdraw a and knowing waiver trial by jury] a matter of right, court, but the [of its discretion, may permit prior withdrawal commencement of the trial.” The commentary accompаnying standard instructive. It states:
“In a few jurisdictions the defendant may withdraw his of jury waiver trial at time before Orfield, the trial. Criminal Procedure From Arrest view, However, prevailing (1947). Appeal standard, the withdrawal adopted lies by jury knowing waiver voluntary Annot., 46 A.L.R.2d of the court. in the discretion because rejected has been minority view complete the defendant allowing reason found, while has power to withdraw power could of such it is that the exercise apparent incоnvenience. delay often result with consent “The standard limits withdrawal prior to the commencement to the time a motion made after trial; agree that the cases Id. 922. The timely. is not way is under standard also indicates whether withdrawal discretion rests should be allowed that a regard, it should be noted court. *7 should held that withdrawal of cases have
number if the would an unreasonable not allowed result be be Id. 39-40. delay trial. Ibid.” from the distinguish this case Although Mathias wishes attempt on the apparent of there facts whеre Jones trial, fully of the the la w cited in is part delay Jones against the here that law. shall evaluate facts applicable. We said the Judge Murphy In Court: Jones Chief not, apparent think it “Whether intentional or we caused, can justice can be delay be impeded, minute motions to withdraw jury last purposes determining For whether waiver. 741 has shown to ‘good cause’ under Rule election, change the in permit requested consider, among things, other the judge should making request, the expressed reason trial, time request is made in relation and the lapse of time the election between counsel, change, whether there has been a is in faith and not to whether the motion made granting motion delay, obtain whether the trial, impede the cause of unreasonably delay justice orderly courts, administration of the prejudice case, the State’s or unreasonably framework, inconvenience witnesses. Within trial judge is vestеd with wide discretion deciding to permit whether requested change election.” Id. at 395-96. our put evaluation we aside Dorsey v. is which cited Mathias
argument
prejudice
that “even if
is a factor it is clear that
the State has the
burden
demonstrate
beyond reasonable
doubt that
error
not
did
contribute
result.” This
argument stems from the statement of the trial judge, quoted
by the Court of Special Appeals,
“The court going is determine a case on pleaded whether оr not guilty. the co[-]defendant going The court is to determine the case on evi- presented argument dence it’s coun- why sel as the law I so can’t see first or in what prejudiced by manner Mr. can Mathias that fact.” Dorsey inapposite. It had to do with the standard to be applied in determining error, whether error was harmless error having been found. Here the issue is whether the trial judge has acted in fairly discretion, a matter within sound hence whether there error.
It should be borne mind that there whenever are codefendants a case there is a always possibility on the very morning of trial one those codefendants will change his mind of stage fright because or some other reason *8 plead determine to guilty, possibly a accepting proposition bargain a plea previously made State. To hold that whenever this takes place and such a going codefendant then to testify against another codefendаnt codefendants such individuals are entitled to automatically change their of prior election a court make a of trial assignments shambles and court administration. It also should be borne mind that one of the subjects general on which the public criticizes severely lawyers and courts is they appear are called to as aat later home to return are sent trial and then witnesses date. from out a witness had because was concerned thе trial at considerable brought had
of state who been Mathias offered is true that It to the State. expense in the event that witness testimony of as to the stipulate personal is a difference between But there a later trial. may of fact the trier in court where of a witness testimony determining demeanor witness consider testify that a witness would stipulation and a credibility pointed having our illustrated This well to certain facts. [, of Rule 886 portion that “the latter casеs out divorce a trial court opportunity relative applicable is not where witnesses,] of the credibility examiner, simple for the a court before testimony was heard to observe opportunity not have the judge did reason that the Bartell v. credibility.” weigh their the witnesses and thus to Bartell, cases there that the suggestion there is to noted that was cited. It was true. testimony include that such stipulation would known for counsel had about the fact that defense Givеn plead guilty going that the codefendant was week for the anticipated might testify that he might thus well have from the State’s witness the inconvenience to not available Pittsburgh, the fact day question, on the County courthouse Harford postponement meant permitting change would have weeks, and the indication eight six to case for day or two court had notice even judge that had the have could the mode the desire of the trial part of discretion on the provided, find no abuse we judge. affirmed;
Judgment appellant pay the costs.
Cole, J, dissenting-.
This Court today holds trial court did not abuse its
32
denying
discretion in
Mathias’ motion
his
withdraw
I
jury
disagree
respectfully
trial.
dissent.
argue
I do
the principle
not
with
the final
of such
issue
determination
is left
the sound discretion
Jones,
of the'trial
cited in State
judge. See cases
v.
388, 393,
(1973).
I quarrel
281
Nor do
our prior
holdings
saddle
burden
prove
upon
which
arbitrariness
him who attacks such exercise of discretion. Franceschina v.
633,
(1973).
Hope, 267 Md.
it is to me that that law is misapplied here because Jones inapposite. is factually
Jones was a veteran criminal having conduct previously convicted on parole a number occasions and on charged armed he robbery which was was committed. March On he aborted successfully first attempt try by claiming, him after the was selected, that he didn’t like the was advised of proper procedure selecting jury. When was 5, 1971, reset for April being he elected a court trial after thoroughly such election would mean advised waiver of right his to be tried He jury. requested also postponement procure an essential witness. On April 1971,Jones again appеared court and requested further postponement obtain the attendance the same witness. May On declaring Jones returned attorney incompetent and succeeded in persuading trial court to postpone his trial until another lawyer was appointed. Judge Trial was rescheduled before Liss in December, 1971 and that he be allowed to withdraw his waiver of jury trial. denied his Liss request. We reversed the Court of Special Appeals (Moylan, action affirmed the J., ultimately dissenting) opinion rendering Judge Murphy Chief judge. *10 said:
Court Liss’ conclusion supports record amply The faith, rather acting but not that Jones was system by seeking manipulate judicial to liking, to his not discharging jury, admittedly one order, as Jones another replacing jury it with it, I to to ones want put get ‘to down himself addition, frequent Jones’ this case.’ alleged his last for requests postponements, trial witness, time locate a to minute need for additional with his of dissatisfaction his sudden announсement trial, request his brought to when he was attorney time his to employ extended additional own so, and his to do a tactic of failure evidence lawyer, Also, significance, manipulation delay. court-appointed represented by
fact that new 15,1971, did counsel as not seek withdraw July trial until December prior his waiver of a of trial. Id. at 394-95. day sought by being means avoid whatever available tried at all. Mathias appeared
In the case sub court with judice, 5,1976 on he arraignment counsel October entered a plea guilty of not From date and elected court trial. trial, did in court day appear
until the Mathias not to seek he in postponement any way attempt nor did other pending prosecution. forestall his The selected the time State appeared trial as June 1977 and Mathias with counsel on any except for trial he ready day day other He his by jury. gave be tried reason for seeking to his waiver of withdraw vital change the evidence presented against nature of to be (which him he had date discovered within week trial) him morning and confirmed on the convinced that his his He opportunity prove jury. best innocence was before had learned that a deal his co-defendant had made had, therefore, agreed
State and as the testify principal against witness him. This reduced the trial issue whether the fact-finder him or his believed co-defendant. Mathias presented matter to court at his first time. opportune Attorney The State’s contends that Mathias or counsel prior should have notified him to trial the real issue is but under all reasonably Mathias acted whether might something he done circumstances whether have differently. opposed State Mathias’ motion on the grounds that no available,
jury was that trial necessarily delayed would eight from six to weeks and that had already State brought Pittsburgh a witness from at its expense. Mathias suggested that he stipulate testimony of the out witness, thereby state saving further *11 expense.
The judge conceded that Mathias’ motion was made good faith, in thus that he implying attempting was not Nevertheless, avoid trial. ruled granting court that motion result in out would inconvenience to the of state witness, expense to considerable the State and substantial in delay the proceedings.
It is to noted that the record that be does reveal the trial any made the out inquiry of state witness as to any inconvenience he suffer if required would he were to return. It is to note equally important out of state witness testified that he arrange could to come to Maryland back as a no apparent witness and indicated inconvenience. That the out of state witness would be inconvenienced and would incur expense presumed, considerable rather than evidence, deduced by from the trial seems judge clear from the record. Certаinly, the cost from transportation Pittsburgh Harford County would have been basis to ruling. event, the trial court’s justify In any testimony this witness was only cumulativé Mathias’ offer to stipulate his testimony, right thereby waiving cross-examination, outweighed argument that the jury would judge be unable to his credibility. readily are not juries also stated judge in more counties. populous in Harford as County
available However, to the of this this fact should not inure detriment to make to the dispatch defendant since he moved with known changed question court his circumstance. The was whether just easily This case could delay such was reasonable. eight by jury. tried six to weeks later
have been
factors,
than consider
the trial court merely
Rather
these
concluding
dismissed them
that Mathias
suffer no
would
his guilt
the court
not determine
on
prejudice because
or not the co-defendant pleaded guilty.”
“whether
dissenting
very aptly observed
opinion
in his
below
Lowe
an
such
compelled
felt
voluntеer
judge
the “fact that
subconsciously
at least
indicates that he was
assurance
thing he disclaimed.”
very
influenced
Jones,
the fundamental ... of trial ... if the withdrawal waiver protected it is not a court only such a trial is refused faith, or is made to good made in obtain seasonably some real harm will be appears or it delay, public____ done to the in the trial
Thus, supra, did not vest State v. we granting denying discretion judge unbridled required to a trial. We withdrawal giving regard due soundly, to exеrcise that discretion judge cause. showing good rights upon of the defendant is manifest from the record that Mathias demonstrated It cause and that the trial abused his discretion *12 requested. today the relief invites denying majority preserve in order to pray defendants to trials in all cases right greater thereto. I can their constitutional envision I, of justice. administration impediment orderly therefore, dissent. respectfully to state than he concurs
Judge Eldridge has authorized me herein. expressed with the views