State v. HowardState v. Howard
- Reporters:
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- Before:
- Murphy
This is аn application for leave to appeal filed by the State of Maryland from an order of Judge Thomas J. Kenney in the Criminal Court of Baltimore, dated Decеmber 2, 1968, awarding Isaac Howard a new trial on the ground thаt at his original trial he was convicted by the court sitting without a jury without first having af *430 firmatively waived his constitutional right to a trial by jury.
Following an evidentiary hearing on Howard’s petition for post conviction relief, at which both Howard and his trial counsel testified, Judge Kenney found that Howard was “a person of very dull intelligence,” that he had “difficulty communicating,” thаt he had attended but one year of school, could not read or write other than his own name, and appeared to be so mentally inadequate as to require a mental examination to determine his comрetency to stand trial (in the event of a retrial). The trаnscript of the original trial shows that Howard’s trial counsеl elected a court trial for him, there being no explicit showing, however, that Howard concurred in this election. Judge Kenney held in his opinion that “the preferablе practice is for defense counsel to exрlain in open court on the record the defendant’s right to a jury trial and to obtain in open court his intelligent waiver of the same.” After noting that the trial transcript was similarly silent with respect to whether trial counsel advised Howard of his right to appeal, and to have his sentenсe reviewed, Judge Kenney concluded that Howard wаs “of such low mentality that he did not understand fully his right to a jury trial and did not, therefore, make an ‘intentional relinquishment or abandonment of a known right or privilege,’ ” this being the applicable test to determine the waiver of a federаl constitutional right under Johnson v. Zerbst, 304 U. S. 458. In directing that Howard be awarded a new trial, the court did not purport to disbelieve Howаrd’s trial ■ counsel who testified that he had in fact advised Hоward of his right to a jury trial. 1 As indicated, it appears to be the underlying basis of Judge Kenney’s opinion that even if such аdvice had been given, Howard did not, either as a mattеr of fact or law, waive his constitutional right to a jury trial.
In its application for leave to appeal, the State con *431 tends that there was no medical evidence to supрort the court’s finding of Howard’s mental inadequacy; that there was no evidence other than Howard’s own testimоny that he was not advised of his right to a jury trial; and that, consеquently, the court could not find that Howard was incapаble of understanding his own attorney’s advice.
We have obtained and reviewed the transcript of the post сonviction hearing before Judge Kenney. Considering the сourt’s opinion, including its factual findings in light of the transcript, we are unwilling to hold that Judge Kenney’s conclusion awarding Howard a new trial was erroneous. Compare Moore v. State, 7 Md. App. 330.
Application denied.
Notes
. Howard testified that he was not told by his trial counsel of his right to trial by jury.