delivered the opinion of the Court.
Trial by Court or Jury
In
State v. Zimmerman,
“. . . the trial judge to determine on the record whether this is a knowing election on the part of the accused of a court trial in lieu of a jury trial . . . .” Zimmerman,261 Md. at 25 .
Appellant seizes upon that closing paragraph, and asks us to go two steps beyond. He would have us not only elevate the foregoing “preferred practice” to a compulsory ritual — an alternative this court expressly rejected in
Miller v. Warden,
We note at the outset that, unlike the facts before the Zimmerman Court, this appellant personally chose to be tried by a jury:
“THE COURT: Trial by Judge Perrott or a jury?
MR. WILLIAMSON: By a jury.”
As in
Zimmerman,
however, appellant has never indicated that he wanted anything other than the mode of trial he
*341
selected and made no objection on that basis at the trial. We therefore decline to decide the ultimate question of appellant’s voluntary and knowledgeable election. The evidentiary basis for his argument, if there is one, has not as yet been established and thus must await post-conviction proceedings. Md. Rule 1085;
Zimmerman, supra,
We will, however, decide the penultimate question of the trial court’s responsibility when the accused elects a jury trial. Appellant directs our attention to Maryland Rule 741 which provides that he “may elect to be tried by jury or by the Court.” Pointing out the historical (and somewhat unusual) importance of the court trial in Maryland law, he then warms over dishes we have served to others and serves them back to us morsel by morsel:
“[J]udges are men of discernment . . . .” State v. Babb,258 Md. 547 , 550.
A judge presides impartially because of his “professional expertise, experience and judicial temperament . . . .” State v. Hutchinson,260 Md. 227 , 233.
The court trial “is a boon.” Rose v. State,177 Md. 577 , 581.
Judges have “wisdom and experience.” Gunther v. State,4 Md. App. 181 , 184.
Using our pride, like that of Brutus, as the fatal flaw with which he would ensnare us, appellant reasons that, at the very least, he should have been advised of the multitude of admirable qualities he was foregoing by electing trial by jury.
Hoist as we are upon our own petard we dare not grimace lest we show signs of hurt. We are amused, if not bemused, by appellant’s argument, but find ourselves none the less unpersuaded. Having decided that the trial judge need not affirmatively inquire into an accused’s decision to forego a jury trial,
Miller v. Warden,
The Facts
While hardly so aristocratic as the Montagues and Capulets, nor quite as bloody as the Hatfields and McCoys, an interfamily feud became a bitter reality for appellant, James Louis Williamson, the woman with whom he lived and her children among whom were Denise (Nessie) Short and Calvin (Lee) Matthews. On August 8, 1973, sometime during the day, Lee got into a “fuss” with a Mrs. Kane. Nessie accompanied Lee to Mrs. Kane’s house to talk with her. The discussion degenerated rapidly into an exchange of threats. Lee “reasoned” with a stick and Mrs. Kane with an iron pipe. From the combat that ensued one of the gladiators, Mrs. Kane, emerged with a bloody nose.
Later that day, Mrs. Kane’s daughter, Jacqueline, related these events to her brother-in-law, Charles Kessler. He went to Lee’s house, purportedly armed with a shotgun, and threatened Lee. In addition to blaming Lee for bloodying Mrs. Kane’s nose, Mr. Kessler accused him of hitting his four year old son.
Upon hearing shots outside, Nessie, who was by then home, called the police. When they arrived, Nessie could nо longer see Mr. Kessler from her house and was afraid to leave. After the police departed, appellant Williamson arrived home. Nessie and Lee told him what had happened. Thereafter it is unclear whether Mr. Kessler reappeared and *343 resumed his threats or whether Mr. Williamson and Lee sought Mr. Kessler. It is clear that the аrgument over their families’ squabblings resulted in Mr. Kessler’s death. The day ended when Mr. Williamson shot and killed Mr. Kessler — in self-defense according to Mr. Williamson. The jury did not agree. He was convicted of second degree murder and the use of a handgun in commission of a crime of violence, following trial in the Criminal Court of Baltimore, presided over by the Honorаble James A. Perrott.
Reputation Evidence
Appellant claims that the trial court erroneously excluded evidence of the deceased’s reputation which he sought to establish both generally and by testimony of specific acts. Appellant’s counsel below somewhat inartfully articulated the purpose or purposes the evidence was tо serve. The trial court apparently treated the evidence as offered to prove the appellant’s reasonable apprehension of danger and consequent need to defend himself at the time of the killing, and ruled accordingly:
“. . . you have to sufficiently establish a knowledge of the defendant of the propensity of the victim.”
The trial judge was correct with respect to reputation evidence offered to prove the defendant’s state of mind. Contrary to the general reputation rule which prohibits evidence of specific acts, a defendant asserting self-defense may offer evidence of specific acts of which he was aware at the time оf the killing. Such evidence bears on the reasonableness of his actions:
“It is, of course, generally true that the reputation of the deceased cannot be shown by evidence of specific acts. However, where there is testimony tending to support the theory of self-defense, the presence of such testimony entitles thе defendant to the benefit of certain rules of evidence which would not otherwise be available. It is competent for him to prove his knowledge of facts which would have a reasonable tendency to justify his *344 asserted belief as to the existence of a deadly purpose in the overt acts of the deceased . ... On the issue whether or not the accused had reasonable . grounds to believe himself in imminent danger, he may show his knowledge of specific instances of violence on the part of the deceased. Previous acts of violence by the deceased, especially if committed recently, known to the defendant, might have an even stronger influence on his mind than would be produced by knowledge of the reputation of the deceased for violence.” Jones v. State,182 Md. 653 , 659; accord, Gunther v. State,228 Md. 404 , 410; Barger v. State,2 Md. App. 565 , 568-569, cert. denied,249 Md. 731 . [Emphasis supplied].
Although counsel had proffered that he could prove specific violent acts of which his client was aware before the killing, after arguments and the trial court’s ruling permitting him to do so, he was unable to producе the proffered evidence.
Trial counsel did, however, continue to doggedly assert the admissibility of evidence of deceased’s reputation irrespective of appellant’s prior knowledge. Throughout a substantial portion of the transcript, there is a recurring colloquy between trial court and counsel on its admissibility. In response to the trial judge’s previously mentioned ruling, appellant’s counsel at various times protested:
“I am not attacking it from that viewpoint. I am only bringing it in as a matter of the man’s reputation.”
“Your Honor, I am entitled to bring in as many witnesses as I wish to show a reputation in the neighborhood.”
Then, after the court quoted dictum from
Jones v. State,
“I have contended that all along.”
*345 Although we must strain to do so, we will give appellant the benefit of any doubt and interpret his counsel’s remarks as arguing the admissibility of the proffered evidence on an alternative, and conceptually distinct basis, i.e., to bolster or corroborate his version of the circumstаnces of the encounter with the deceased. After reciting the prior knowledge of specific acts rule 1 Wharton, Criminal Evidence, § 236 goes on to explain that alternative:
. . after the defendant has laid a proper foundation by adducing some evidence tending to show that he acted in self-defense, he may introduce evidence of the turbulent and dangerous nature of the victim. Wherе the purpose of the evidence is to show that the defendant had reason to apprehend harm, it must appear that at the time of the encounter he had knowledge of the victim’s reputation, because otherwise his conduct could not have been influenced thereby. But where the purpose of the evidence is tо corroborate testimony for the defendant as to the circumstances of the encounter, such corroborative evidence is admissible whether the defendant had knowledge of the victim’s reputation or not.” [Emphasis supplied].
The issue thus resolves itself into one of relevancy. Does evidence of the victim’s reputation, whether or not known to the defendant, make the testimony regarding appellant’s encounter with the deceased “more probable than it would be without the evidence?” C. McCormick,
Evidence
(2d ed.), § 185 at 437,
Gray v. State,
Although this Court has dealt many times with the admissibility of reputation as bearing on the accused’s state of mind when self-defense is raised, we have never dealt directly with reputation evidence as tending to corroborate appellant’s account of the circumstances of the killing. In
Jones v. State,
“At the conclusion of the testimony the appellant proffered as a witness, the deceased’s mother stating that she would testify to the violent reputation of the deceased. The court declined to permit the witness to testify, ruling that since she had been present in the courtroom during the entire trial, and not sequestered as were all other witnesses, pursuant to Md. Rule 753, she could not testify. Appellant also proffered the daughter and sister of the deceased for the same purpose but the court аlso declined to permit their testimony on the same basis. Even though the admission of the testimony of witnesses who violate a sequestration order is in the sound discretion of the trial judge, Hill v. State,9 Md. App. 65 ,262 A. 2d 573 , we think the trial judge probably should have admitted the testimony of the mother, daughter and sister of the deceased as to his reputation for violence. We do not nеed to rule upon the point since we find reversible error elsewhere.” Id. p. 684.
We now declare what Judge Thompson implied. Assuming the requisite of relevancy, evidence of the victim’s violent reputation is admissible as corroborative of appellant’s self-defense account of the crime. Unlike the state-of-mind exception аllowing evidence of specific acts, however, the *347 customary rule allowing only evidence of general reputation applies.
Here, despite the trial judge’s expressions to the contrary, as each defense witness was called he permitted appellant to elicit that the victim’s reputation was bad and that he had a penchant for shotguns. Objections to questions regarding specific acts were consistently and properly sustained. Regardless of the condition of prior knowledge erroneously expressed as a prerequisite in the court’s ruling, the trial judge properly admitted the evidence appellant sought to introduce. Whatever the judge’s reasons, the admissible evidence of the victim’s general reputation that appellant wanted in, came in. The evidence of specific acts of violence was properly precluded for reasons above stated. The appellant has no ground to complain.
The Bloody Nose
Appellant’s objection to introduction of a photograph of Mrs. Kane’s bloodied nose may be summarily dealt with. We have examined the photograph and in the light of the criteria set out in
Carroll v. State,
Although the photograph showed an injury inflicted by someone other than the appellant, the event depicted was the
causa belli
precipitating the day’s events and thus obviously relevant.
Peterson v. State,
Reconsideration of New Trial Grant
After guilty verdicts were rendered against appellant, sentencing was postponed pending presentence investigation. At the disposition hearing three months later, appellant’s counsеl moved and argued for a new trial on the basis that the motions for judgment of acquittal should have been granted. The Assistant State’s Attorney who had tried the *348 case had since departed from the office and another Assistant was sent in his stead. Claiming no notice of the new trial motion and confessing no knowledge of the facts of the case, the Assistant asked that the matter be continued to allow him to prepare. Judge Perrott, obviously perturbed at what he termed the lack of “continuity” in the State’s Attorney’s Office, told appellant’s counsel:
“I will grant your motion for new trial, Mr. Kaplan.”
The State strongly protested and asserted:
“I am sure there is an argument to be presented.”
The court agreed, saying “I know there is,” and acquiesced in the State’s request for a two-day continuance, but with the following caveаt:
“. . . let the message go out that there is to be continuity.”
At the subsequent hearing the original prosecutor argued as amicus curiae and the motion was denied. When appellant’s counsel objected to the reversal of the apparent grant of the motion, the court responded:
“I didn’t grant it.”
Appellant acknowledges that the majority of jurisdictions permit reconsideration of the grant of a motion for new trial, 24 C.J.S., Criminal Law, § 1510, 58 Am.Jur.2d, New Trial, § 217, but argues that the Maryland rule should be that once the motion is granted, reconsideration is prohibited. Although there may be situations where reconsideration of the grant or denial of a new trial is arguably inappropriate, 1 the present case is clearly not such a situation. Sentencing had not taken place, thus judgment had not been entered.
We further note the use of the word “will” in the trial court’s language, “I will grant your motion.” We are told by *349 The American Heritage Dictionary of the English Language that use of that verb as an “auxiliary followed by a simple infinitive [grant] . . . can indicate:
1. Simple futurity . . .
2. Likelihood or certainty . . .
3. Willingness . . .
4. Requirement or command . . .
5. Customary or habitual action . . .
6. Capacity or ability . . .
7. . . . Probability or expectation . . .
The fact that the judge did not treat the matter as ended by his statement — which if interprеted as appellant urges would have concluded the case — but rather granted the continuance urged upon him by the State to permit argument to be presented thereafter, clearly indicates his intention in using the term to express either a “probability or expectation” or a “simple futurity.” In context it cannot be seriously arguеd that it indicated “certainty.” We interpret the language in accordance with the court’s actions and expressions as meaning a future intention to grant, rather than a present order. Furthermore, appellant’s argument of insufficiency of evidence was the same he had unsuccessfully made twice before on motions for judgment оf acquittal. At no time did the trial court indicate concurrence with the merits of appellant’s argument; on the contrary, Judge Perrott acknowledged the significance of the State’s argument, criticizing only “the system.” While perhaps over-reacting, the trial judge was merely dramatizing his displeasure with the State’s unpreparedness. Even if the motion had been granted, the reversal of that decision was within the trial judge’s discretion under the circumstances indicated. Annot.,
Judgments affirmed.
Notes
. We intimate no opinion thereon.