Biddle v. State

Gilbert, C. J., delivered the opinion of the Court. This appeal tests whether Maryland Rule 735 is a prescribed ritual to be followed by trial judges before accepting an accused’s election of a court trial with its appurtenant waiver of trial by jury. This Court, in Zimmerman v. State, 9 Md. App. 488 , 265 A. 2d 764 (1970) (Thompson, J., dissenting), remanded the case to the Criminal Court of Baltimore without affirmance or reversal because, in our view, the record failed to demonstrate that Zimmerman “knew of his right to a jury trial” at the time his attorney elected a non-jury trial, and that Zimmerman “intentionally relinquished or abandoned” that right. We directed the trial court to receive such “additional evidence ... as may be necessary” to make a determination of whether Zimmerman knowingly and intelligently waived his right to a trial by jury.

The Court of Appeals, State v. Zimmerman, 261 Md. 11 , 273 A. 2d 156 (1971), reversed Zimmerman v. State, supra, on other grounds, holding, in essence, that the issue was not properly before this Court, and that we should not have decided it. Md. Rule 1085. During the course of the opinion, delivered for the Court by Judge Smith, the observation was made that “we regard the preferable practice in accepting an election of trial by the court from an accused is for the trial judge at that time 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----” (Emphasis added.) Taking our cue from Zimmerman, this Court, speaking through Judge Moylan in Miller v. Warden, 16 Md. App. 614, 623-24 , 299 A. 2d 862, 868 (1973), stated: “It is axiomatic that a criminal defendant in Maryland has the right to a trial by jury. This right is conferred by Article 5 and Article 21 of the Maryland Declaration of Rights.

It is also conferred ⁴⁰¹ by the due process clause of the Fourteenth Amendment to the Federal Constitution, which has been held by Duncan v. Louisiana, 391 U. S. 145 , to incorporate the jury trial provision of the Sixth Amendment. Our problem is to decide how one elects to exercise that right or, alternatively, how one waives that right. The recognition of the right under the Maryland Declaration of Rights being fifteen years senior to the recognition by the Federal Bill of Rights, we are confident that our experience in implementing that right will not lightly be disregarded. Our preliminary problem is to isolate the precise issue before us.

In the language of the artilleryman, we shall ‘bracket the target.’ Initially, it is settled that the decision as to mode of trial (however made) must be the decision of the accused himself. Counsel may not “make” (as opposed to “announce”) that decision for him. State v. Howard, 7 Md. App. 429 . Our issue lies beyond that.

At the opposite extreme, it is settled that the decision of the accused in this regard, albeit of necessity made by him, need not be ‘announced’ by him or shown upon the face of the record. It is sufficient that the decision, even though announced by counsel, have [s/e] been in fact made or acquiesced in by the accused. It is the true state of the defendant’s mind which ultimately must be ascertained. No catechism a la Boykin or Miranda has been constitutionally prescribed.

Even our holding in Zimmerman v. State, 9 Md. App. 488 , overruled in other regards by State v. Zimmerman, 261 Md. 11 , did not impose such a ritualistic obligation upon the State or the court. Our issue lies short of this.” (Footnotes omitted.) We went on in Miller to hold that under the circumstances of that case Miller had made “an effective waiver of trial by jury.” ⁴⁰² This Court’s Zimmerman and Miller both focused on the scope of then Md. Rule 741 which provided: “An accused may elect to be tried by a jury or by the court. Such election shall be made by the accused , in open court when first called upon to plead after he is represented by counsel of record or has waived counsel. If an accused elects to be tried by the court, the State may not elect a jury trial.

The court may, in its discretion and for good cause shown, at any time prior to the trial permit the accused to change his election.” Then Rule 741 remained in effect until the Court of Appeals adopted, with amendments made on its own motion, the “Fifty-third Report to the Court” which recommended the “rescission of all Rules in Chapter 700 (Criminal Cases) of the Maryland Rules of Procedure ... and the adoption of certain Proposed Rules Changes in substitution therefor____” The new Chapter 700 became effective July 1,1977. It governs the proceeding before us to which we now turn. The appellant, Arthur M. Biddle, Jr., seeks to set aside his conviction by the Circuit Court for Queen Anne’s County on a charge of escape. At a non-jury trial, the appellant was adjudged to be guilty and sentenced to a term of five (5) years imprisonment, to be served consecutively to the sentence of life imprisonment previously imposed on appellant March 30, 1954.

Biddle poses a number of issues for our review, the first two of which are raised by the Public Defender, and the balance have been put to us through counsel at the express direction of Biddle. THE FACTS On July 16, 1977, James Cecil telephoned the Eastern Correctional Camp and reported that he had seen “two men running down the road.” Both “white males were running between my mail box and the next entrance to the West Farm.” When a car approached, the two men “dived in some ⁴⁰³ bushes.... After the car passed these ... two males continued on toward Starkey’s Corner....” A head count at the camp disclosed that appellant and a codefendant, not a party to this appeal, were missing. Trooper First Class S.L. Shelly of the Maryland State Police received a description of the escapees, and he happened upon appellant.

Appellant’s clothing and beard matched that of one of the escapees. Appellant identified himself to the trooper but explained that the trooper had it wrong because appellant was “an F.B.I. agent and ... [he] had received orders, sealed orders to leave the Eastern Correctional Camp from the Director of the F.B.I. and that... he was an agent, undercover, who was sent to Eastern Correctional Camp. He had received orders to leave,... he was following his orders.” Trooper Shelly also followed orders and arrested the appellant for escape. At trial, appellant asserted that he was not escaping but was “attempting to go down the road and make a liquor run.” Such a “run” was for the purpose of purchasing alcoholic beverages for consumption within the camp.

He said that he had “no intent to escape.” He explained his fairy tale about his being an F.B.I. agent as “just a story I made up for him.” The trial judge apparently thought that Biddle’s exculpatory narrative relative to the escape was “just a story ... [Biddle] made up for ... [the. judge].” I. Biddle contends that Md. Rule 735, a vastly more comprehensive and detailed rule than its predecessor, Rule 741, is “expressly mandatory.” He asserts that “it was error for the [trial] court to disregard the rule.” Md. Rule 735 provides: “a. How Made. Subject to section e of this Rule, a defendant shall elect to be tried by a jury or by the court. The election shall be made pursuant to section b of this Rule and shall be filed within the time for filing a plea pursuant to Rule 731 (Pleas).

If the defendant elects ⁴⁰⁴ to be tried by the court, the State may not elect a jury trial. After an election has been filed, the court may not permit the defendant to change his election except upon motion made prior to trial and for good cause shown. In determining whether to allow a change in election, the court shall give due regard to the extent, if any, to which trial would be delayed by the change. b. Form of Election.

An election of a court or jury trial shall be in writing, signed by the defendant, witnessed by his counsel, if any, and filed with the clerk of the court in which the case is pending. It shall be substantially in the following form: (caption of the case) Election óf Court Trial or