*1 v. STATE OF MARYLAND H. WILLIAMS EDWARD Tеrm, 1980.] September [No. 28, 1981.
Decided December *2 J., argued The cause was before Murphy, Smith, C. JJ. Eldridge, Digges, Cole, Rodowsky, Davidson Willemin, Defender, whom Louis P. Assistant Public with brief, Murrell, Defender, was for Alan H. Public on the appellant. Anselmi, General, Attorney
Michael A. with Assistant Sachs, General, brief, Attorney whom was H. Stephen on the appellee. J., delivered the of the Court. Eldridge, Cole Cole, J., JJ., concur in part part. and dissent Davidson, *3 opinion concurring part filed an in and in at part dissenting page infra, 220 J., which Davidson, concurs. (1) presents important
This case questions concerning Court Appeals’ jurisdiction arising of to review a case under Act, (1957, the Post Conviction Procedure Code Vol., Rеpl. 27, 645A-645J, §§ 1976 1981 Cum. Supp.), Art. and of waiver a criminal right present defendant’s every at stage his trial. 1975,
In December Edward H. Williams was convicted the Criminal Court Baltimore second murder degree and assault thirty-year with intent to murder. He received a sentence on murder ten-year conviction and a consecu- tive sentence on the assault with intent to con- murder viction. The of Special Court Appeals thereafter affirmed the unreported convictions and sentences in an opinion. present 24, 1979,
The proceedings began on October when petition Williams filed a under the Post Conviction Proce- dure petition alia, Act. In contended, his аs amended he inter that he present stage was denied the every be at his trial jury because voir dire was conducted at the bench in his hearing absence. At the on the post conviction
204 introduced, original trial was transcript of the petition, the testified. At original and trial counsel his and both Williams court post conviction trial hearing, the conclusion J.) of several questioning voir dire (Baylor, found that a bench conference place had taken at prospective jurors table, that remained at while Williams dire until after voir to the bench was not called Williams court, upon testi relying complete. The was questioning he that had mоny Williams was aware that he would have the bench conference that he was entitled if he had known the conference attended his had not waived attend, that Williams further found jurors being were prospective when the be that, concluded under court post interviewed. The conviction 680, State, 281 Md. Bunch v. decision in this Court’s right to (1978), had been denied Williams A.2d granted of his The court stage present at a critical trial. a new trial. Williams Special Appeals filed in the Court of
The State then
the State
application,
In the
appeal.
for
application
leave
that,
finding
that Williams
the evidence
argued
despite
to;
was
waived
prеsent,
unaware
his
was
principle
on the
"inaction.”
State relied
by Williams’s
rights even
a number of
accused
waive
"[a]n
citing
knowledge
rights,”
of such
Curtis
though he had no
(1978).
Md.
A.2d 464
for
of Special
the case to the trial court
leave to
and remanded
its
light
decision
Noble
further consideration
In its
This Court then certiorari.
I. has this Court us whether befоre is The threshold issue of the Court judgment the to review jurisdiction jurisdiction we have no argues that The State Appeals. Post Con- arising under the any case to review whatsoever 27, §§ Act, 645A-645J. Art. viction Procedure provides Act in 645-1 Procedure Conviction The Post the trial court by the order of any aggrieved person (30) thirty days "may statute within under the proceeding the Court of to apply of said order passage after the Con appeal an therefrom.” prosecute leave to post in a conviction appeal there is sequently, On the appeal. for leave to only apply to action but contemplate rules hаnd, implementing other the statute the case appeal granted, to if for leave application on to goes 645-1 appeal. Section any be treated other shall as "| shall prosecute appeal such application i]f state that conformity shall be procedure thereafter granted, pro BK47 Rules...Maryland Rule Maryland with the proceedings "further application granted, if vides that appeal were granting if leave to be had as the order shall ... refers to the Ch. 1000 BK47 appeal...Rule the order of Special Appeals the Court of relating appeals rules in this Court.1 relating to certiorаri review Ch. 800 rules in its Act states 1. 645-1 the Post Conviction Procedure Section entirety: Attorney "Any person, including or the General of any county, may attorney City or as the case for Baltimore State’s be, judge passed aggrieved by of the court accor- the order subtitle, thirty days may within after dance with Special Appeals passage apply for leave to the Court said order application prosecute appeal for leave to therefrom. Said to prosecute Maryland an prescribed the or the be in the form shall Attorney Rules, that the General and in the event such attorney state his intention to file shall forthwith State’s application may, stayed, judge appeal, the order but for an discretion, petitioner for his admit to bail in his prosecute required. such appearance If the when *5 January Prior to Code, Art. 5 the relating to (1973 § "Appeals,” provided in 21A as follows Supp., Cum. emphasis supplied): any
"In case or in which proceeding a decision has been the Special rendered Court of Appeals upon appeal from of any county, the circuit court the Criminal or Baltimore, Court one of law or the equity if City, courts of Baltimore it shall made appear to the Court of Appeals upon petition of any party, inсluding the that a review is interest, desirable public and in the the Court of Appeals require, by otherwise, shall certiorari or any such case to be certified to the Court Appeals determination, for its review except such petition shall be entertained the Court of Appeals from denying granting by the or Court the Appeals of an application for leave to prosecute an appeal post conviction and defective delinquent proceedings and from the or denying granting by the Court of Special Appeals peti- of a § tion for review filed under 21 of this article.” Thus, 21A this Court broad jurisdiction the review any decisions Court of appeal granted, procedure shall be thereafter in con- shall be formity reverse or case order affirm, may with Rules and from, modify appealed order it or remand the denied, proceedings, application for further but if said sought thereby to be reviewed shall become final.” provides: BK47 Rule — Proceedings. BK47. "Rule Leave Granted Further appeal granted, directs, If leave to unless the Court otherwise proceedings pursuant (Appeals Chapter further shall be had Chapter (Appeals Appeals) to the Court of to the Special Appeals) order granting appeal as if the order leave to were — pursuant appeal (Appeal filed to Rule or 1012 Times Filing) except if record on for leave appeal shall on constitute entire record considered filing appellant’s then the for the time brief shall be forty days granting within appeal.” after date of the order leave to *6 to However, jurisdiction we had proceeding. or
case in court appellate intermediate action review related exception This appeal. to leave granting or denying appeal to leave granting” or denying only "the to brief, if the Court of in its concedes As the State application. clearly this Court application, an granted Appeals Special the Court of merits of authority to review given was 5, 21A, § was Art. respect, In this decision. Special Appeals’ Conviction the Post § 645-1 of with entirely consistent rules, treated a which implementing Act and Procedure same as granted the had been appeal to in leave case which any appeal. other the Code was 1, 1974, Art. 5 of January
Effective Proceedings and Judicial 12 of the Courts Title re-codified as issue a writ of Court to authority of this The broad Article. in or decided pending proceeding or any "in case certiorari §in 12-201. set forth Appeals” was Special of by the Court contained applications was appeal to for leave exception The worded, and, stated: 12-202, originally as in by may granted by way review of certiorari "No in proceeding or in a case Appeals of the Court denied or has Special Appeals the Court which granted:
(1) post in a con- appeal an prosecute to Leave proceeding; viction
(2) in a defective appeal prosecute Leave to delinquent proceeding;
(3) § 12-305 of certiorari under A for petition title; or this to issue a writ a refusal to from Leave purpose for the sought corpus habeas appropriate or the to bail
determining thе of bail.” amount (1980 Vol.), Repl. as follows: 12-202, presently worded as 2. Section by granted way of certiorari "A review Special the Court proceeding in which Appeals or in a case granted: Appeals or has denied was, therefore, exception modified language proceeding "a case or which the Court of encompass Spe- Appeals cial granted” has denied or appeal. leave to note, a revisor’s relying largely on contends in this wording change effected Court’s modification authority have no to review the and that we jurisdiction Appeals any case which the Court of decision grantеd had denied an that court earlier appeal. leave
The issue of whether the 1974 re-codification was intended
change
deprive
jurisdiction
this Court of
law
after the
review
merits of a case
leave to
was first dealt
this Court in
appeal,
with
Jourdan v.
Appeals granted Act, Delinquent Code the former Defective ceeding under 31B, and (1957, Vol., Art. Supp.), 1976 Cum. Repl. peti Court decision. This affirmed the trial court’s judgment certiorari and reversed tion for a writ of Court, raising this Judge Orth of Special Appeals. Court of "the issue, ground on dissented jurisdictional to review the jurisdiction does have 569. 279 Md. at Special Appeals.” judgment the Court change in language Judge relied on the Orth (id. 570), he believed that Jourdan recodification at (id. 571). In face of this wrongly case was decided Jourdan, however, Court, dissent, in accordance with jurisdiction. assumed decisions, and Moss
Subsequent to
Jourdan
jurisdiction over
in which the
has
exercised
cases
often
*8
an
previously
upon
appli-
had
acted
Special Appeals
State,
Md.
See, e.g.,
290
appeal.
cation for
Ward
leave
19,
76, 79-80,
(1981);
285 Md.
210
§
Proceedings
12-202 of the
Article
Courts and Judicial
on
two occasions since the
July
Jourdan case was decided in
678,
4,
311,
3,
§
§
of
1975. See Ch.
of the Acts
1977 and Ch.
of the Acts of
It
also
Post
1977.
has
amended the
Conviction
678,
1,§
Procedure Act
since 1975. See Ch.
of
twice
the Acts
472,
6,§
of 1977 and Ch.
of the Acts of 1976. On none of
these
Legislature
change
occasions did the
the inter-
pretation
set
those statutes
forth
this Court
Jourdan.
Assembly
presumed
General
is
to be aware
this
and,
interpretation
Court’s
its enactments
if
such inter
pretation
overturned,
legislatively
is not
to have acquiesced
Adm.,
interpretation.
Harden v. Mass Transit
277
(1976).
399, 406,
Consequently, we holdings reaffirm the Jourdan and upon jurisdiction Moss that the limitation this Court’s set § forth in Proceedings 12-202 the Courts and Judicial only Article relates to the action of the Court of Appeals in granting denying for leave to appeal. Except nonreviewability for the specific action, jurisdiction type we have over the of cases listed in § jurisdiction 12-202 to the extent that such conferred statutory 12-201 or provisions. Therefore, other in present case, although Spe- we not review the Court of *9 State’s granting of discretion exercise Appeals’ cial review are authorized appeal, we for leave application to the remanding the case merits on the court’s decision court.3 trial
II out, defendant’s a criminal pointed have often As we law common еvery stage his present at Fourteenth Amend- by the protected right, is to some extent Constitution, guaranteed and is to the United States ment State, 349, 352, 424 Porter v. by Maryland Rule 724. 216, 221, 421 A.2d (1981); Hughes A.2d 371 683-684, and 281 Md. at (1980); supra, Bunch v. 724 states: there cited. Rule cases Required. "a. When Presence every stage of the present at The defendant shall be jury and the trial, impaneling of including the verdict, of sen- imposition and return of the Rules, tence, by these except provided as Required. Not b. When Presence present: A not be defendant need argument question on a 1. At a conference or law; pur- stet is entered prosequi
2. When a nolle Stet). (Nolle Prosequi suant Rule 782 pursuant At Rule 3. a reduction sentence — — Review) (Sentence (Sentence or Rule 774 Court); Revisory Power of In distinguishing Jourdan Moss. 3. There is one this case from fact cases, appeal, granting applications for leave to the Court those after appeal Special Appeals docket thereafter the cases to its transferred case, decisions In
rendered Appeals on the merits. However, this differ- did to its docket. not transfer the case Special Appeals practice of the Court ence in the internal administrative does not affect our Proceedings jurisdiction 12-201 of the Courts and Judicial under the Court of Article tо review the decision of appeal. leave to that court after has *10 any stage 4. At the proceedings of the if defendant corporation, is a
c. When Presence Waived.
A initially defendant at trial his right waives present when: voluntarily
1. He absents himself after the trial commenced, has whether he or not been has by informed the court of his to remain right during trial; or engages justify
2. He in conduct to being his excluded from the courtroom.” light In language paragraph Rule, of the the first of the specifically the including impaneling jury as a stage trial, we have held that a involving bench conference jurors prospective communications between the court or jurors, jurоr to relating impartiality disqualification, is a stage of the at trial which the defendant has a State, personally present. 358; Porter v. supra, 289 Md. at State, Bunch v. supra, Md. at 686-688. Consequently, the trial court in the present correctly case held that Williams had been denied to present his be under Rule 724 when he was absent from the bench conference at which the prospective jurors were interviewed for impartiality.
The present, like most rights, subject Furthermore, waiver. we agree with the observation of the Special Court of Appeals supra, Noble v. 46 Md.App. at that the two circumstances set forth c subsection of Rule 724 only are not the circumstances under which a criminal defendant’s be present can be waived.
The Court Special took Appeals position Williams’s have been waived "inaction,” and it authority remanded this case on the of its supra. Noble peti- Noble also involved a tion under the Post Conviction Procedure Act challenging a criminal conviction on the ground that the defendant was not involving at a bench conference voir dire exam- ination. post judge conviction trial in Noble found that impartiality at examined for juror was prospective one but defendant’s counsel attended conference bench 724 had Although finding that Rule defendant. held violated, in Noble judge trial post conviction been juror’s prospective harmless because that the error was judge defendant and against was prejudice possible prospective juror. excused the original trial had at Appeals proceedings. the case for further remanded the Court of opinion, in Noble Initially, its holding judge’s post conviction disagreed with Turning 156-157. Md.App. error. harmless regarding *11 first waiver, Appeals of Special to the issue the defen question of the failure raise observed that his from con on direct present to be dant’s 159. The Id. at waiver. not itself constitute viction would may a waiver stated thаt then appellate intermediate court The Court of itself. Ibid. original trial at the have occurred 160-161) (id. from this Court’s at Special Appeals quoted 145-147, State, 284 at supra, v. opinion in Curtis like set forth in cases concept of waiver effect that 458, 1019, Zerbst, 58 82 L.Ed. 304 U.S. S.Ct. Johnson v. (1938), relinquishment knowing as intelligent situations, variety of that right, a has no in a counsel represented by criminal a defendant of the tactical raising from an issue because prevented later many counsel, comply with decisions of and that failure to may preclude the legitimate requirements procedural Appeals rights. The Court important assertion of (46 Md.App. its in concluded Noble as follows 161-162): at the present to be
"We think the accused’s
rights
is one of those
bench conference set out above
not one that
by inaction and
which can be waived
intelligent
on an
requires an affirmative act based
rights.
his
understanding of
knowing
who
do
consider that a
counsel
"Nor we
client
his
heat of a trial
overlooked
to be
a short
present at
bench conference is to be
incompetent,
applicant
considered
as
claims.”
holding
waiver
of the Court of
this
case and in
cannot be
with existing
Noble
reconciled
sixty years ago
Court,
law.
than
More
conviction,
reversing
pointed
a criminal
out that thе record
present
failed to
show that
at trial was
' n expressly
himself,”
State,
waived
the accused
Dutton v.
373, 389,
123 Md.
Moreover, holding the the directly contrary to our decision in Noble is this case and facts, to the relevant State, supra. respect With v. Bunch this and Noble. In indistinguishable from case Bunch 681-683, were communications be Bunch, there 281 Md. at juror’s regarding possible court juror and the tween defendant, and discussions between against the prejudice All this relating question. to the was and counsel the court conference, hearing of the defendant out at a benсh at the at table. defense counsel who remained counsel absence object to the defendant’s did bench conference determination judge’s trial agreed with the expressly did not defendant himself disqualify juror. not to Noble, silently he like Williams and any objection; voice trial table. The at the remained defense theory on the convictions upheld Bunch’s during a bench "an act of tactics decision was counsel’s Court, however, conference,” specifically This at 683. id. (id. 688): issue, at concluded addressing the waiver had a under defendant Bunch "Since the present during personally Rules to be concerning possible disqualifi- proсeedings juror bias, and cation since counsel, the waived convictions must cannot be be reversed.” 141-150, 284 Md. at
Nothing supra, in Curtis v. change Special Appeals, effected a byon the Court of relied requirements for waiver of in the held that the definition of every stage of the trial. Curtis Act, (1957, Code Post Conviction Procedure waiver (c), Vol.), 27, § intelligent 645A an Repl. Art. as issue, knowing by the defendant himself raise failure which, under cases like only rights to those applicable was Noia, 439, Zerbst, Fay U.S. supra, Johnson (1963), holdings, and similar L.Ed.2d 837 could S.Ct. voluntary, knowing and intelli- if there was a only be waived himself. gent the defendant relinquishment ordinarily rights, do held the waiver of other which We *13 voluntary аction for a require knowing such waiver effective, by governed to be was not the definition of waiver in the Post Conviction Procedure Act. We summarized our (284 149-150): Md. at holding Curtis as follows Legislature, that the "Consequently, we believe (c) spoke when it of'waiver’ subsection of Art. 645A, term in a using was narrow sense. It (c), 'intelligent
intended that subsection with its standard, knowing’ applicable only those conceptof Johnson v. circumstances where the waiver Other situa Fay applicable. Zerbst and v. Noia was (c), of subsection beyond scope tions are any pertinent or statutes or governed by case law rules.” in Curtis that the waiver stan
Although the Court observed variety to a Zerbst had no dard of Johnson v. in most situations bound rights, and that a defendant was (id. decisions, attorney actions or inactions of his the tactical 145-150), itself set forth no new stan the Curtis any particular or for the waiver requirements dards shows, Instead, from Curtis rights. quotation as the above of Johnson v. Zerbst is not concept where waiver (c) § 645A of the Post Conviction required, and thus where the standards for waiver inapplicable, Procedure Act is any governed "to be case law particular rights are or rules.” pertinent statutes for a waiver of required, law has not Maryland case circumstances, effective in all Nevertheless, "intelligent knowing.”
that the wаiver be done the waiver be required our cases have Because the Court expressly. be done defendant himself and in this case is inconsistent with decision Special Appeals’ law, decision must be reversed. Williams granting was correct post conviction trial court a new trial.
Ill decision of the disagreement with the final Despite our court’s view fully concur Special Appeals, we defendant, like those circumstances that a criminal under by the or inaction Noble, ought bound action here or be his of counsel. is not static and have out that the common law pointed
We
conditions or
subject
light
changing
to modificatiоn in
is
705, 715,
State, 285 Md.
404
knowledge.
increased
Lewis v.
(1979).
changed by
The common law
A.2d 1073
State, supra;
Lewis v.
Legislature.
Court as well as
(1979).
341,
State,
309,
Md.
While of counsel in criminal cases has the role years, two erally past over hundred same changes. significant there have been some nevertheless many involving earlier waiver When of our cases counsel, decided, were there was many indigents, including state-furnished counsel incarceration. possibility of presenting criminal cases Now, however, the Sixth do such under recognize we Declaration Maryland and under Art. 21 of the Amendment Act, Defender Rights, implemented by the Public 218 (1957, Vol.), 27A, Repl. 1-14, §§ Codе 1976 Art. Illinois, 367, by Maryland See, 440 Rule v. U.S. 723. Scott 1158, 59 (1979); Hamlin,
99 S.Ct.
L.Ed.2d
Argersinger
25,
2006,
(1972);
407 U.S.
92 S.Ct.
Today, with complexity many criminal trials and the absolute of counsel if there a danger *15 incarceration, system proceeds upon our assumption primarily that it is counsel’s function to or assert waive most "rights” of out, the defendant. Unless a speaks defendant normally decisions, he be must bound actions Otherwise, and inactions of counsel. the system simply Williams, would not work. Estelle 501, 512, v. 425 U.S. 96 1691, 48 (1976); S.Ct. L.Ed.2d 126 Curtis v. 284 supra, Md. at 145-149. right of the defendant to be at present bench confer-
ences involving jurors examination of or prospective jurors, or during on point communiсations a of between the law jury, trial, court and during stages or certain other of the many more "fundamental” "rights” than other which can be waived counsel’s action or inaction. We know of no why reason apart should be set from other matters which are left to counsel. This conclusion is in accordance with many Thus, of decisions other courts. in a case involving selection, a concerning jury bench conference which defendant, was not attended District of Appeals segments Columbia Court held that "such aof trial are ones in which properly represents counsel a defen- notwithstanding dant’s interests a inability defendant’s States, 522, hear the discussion.” Tatum v. United 330 A.2d (D.C. 1974). 524 App. effect, Ct. of To the People same see v. Carroll, 722, (1976); 408, 396 State v. Mich. 725 240 N.W.2d (1974). Nevels, 668, 668, 192 also, N.W. 669 Neb. 223 See Blier, 501, 557 e.g, 1058, 1060 (1976); State v. 113 Ariz. P.2d
219 (1981); 935, 623 v. Harris, People P.2d 240 v. 28 Cal.3d People (1970). 177, Hudson, N.E.2d 473 46 Ill.2d change to the however, limitation is, important one There of the concerning waiver today announced circumstances, a violation some Under present. clause confrontation a also violation 21 of the and Art. Amendment
of the Sixth
supra, 123
See,
v.
Rights.
Dutton
Declaration
circumstances
Moreover,
some
under
at 386-390.
other
might
implicate
defendant
absence
ordinarily for waiver
rights.
is settled that
It
constitutional
"to be effec-
clause
the confrontation
rights
of one’s
under
was 'an inten-
clearly
that there
tive, must
established
it
known
or
of a
abandonment
relinquishment or
tional
”
1245,
Janis,
1, 4,
U.S.
86 S.Ct.
privilege.’ Brookhart
Zerbst, supra,
1247, 16
(citing Johnson v.
L.Ed.2d 314
464).
Bustamonte, 412
See
Schneckloth v.
304 U.S. at
also
(1973);
2041, 2053, 36
218, 237,
L.Ed.2d
93 S.Ct.
U.S.
337,
1057,
With case, in this of our mandate place after the issuance effective waiver the defendant’s *16 always a require personal every stage of the trial will not is right of confrontation by defendant. Where the waiver the right is involved other implicated, and where there knowing action the defendant requiring intelligent and waiver, ordinarily a defendаnt will himself for an effective attorney. his be action or inaction of bound the however, change that this relates emphasize, We wish to solely the for an effective waiver the requirements in this every stage Nothing of the trial. present itself, as change scope intended State, supra; Hughes v. set forth cases such as Porter v. State, State, supra; supra, Bunch and earlier cases there v. Thus, have cited. a criminal defendant continues to examination, during dire whether at present voir bench conference or not. He is entitled present to be at a conference, bench after the beginning trial, concerning juror disqualificаtion, such as took place Bunch case. He has a right present to be when certain other types of communications occur between jury, the court and such as in Midgett State, involved supra, v. Duffy State, or supra. Nevertheless, if the defendant himself does not affir matively ask present to be at such occurrences or does not express an objection time, at the and if attorney his consents to his absence says nothing regarding matter, present to be will be deemed to have been waived.
Since this change in the entirely law is prospective, it will not apply to trials which already have place. Thus, taken the petitioner Williams is entitled to a new trial as ordered post conviction trial judge. In trial, Williams’s forthcoming however, any issue involving waiver of the right governed will be by the new principles here announced.
Judgment of the reversed, case remanded to that Court with directions to affirm the judgment the Criminal Baltimore. paid by Mayor
Costs to be City Council of Baltimore. Mandate to issue forthwith. Cole, J., concurring in part and dissenting in part:
I agree that
at every stage of the
proceeding
personal
to the defendant
requires
his
express
I disagree
waiver.
that there
any
has been
change in
circumstance since we last decided this
principle
Bunch v.
281 Md.
Judge Davidson authorizes me to state that she concurs in *17 expressed views herein.