Huebner v. District Court

GILBERT, Chief Judge. Gisela Huebner and her father, Hans J. Huebner, want a jury trial in the Circuit Court for Prince George’s County. The State, however, invoking the so-called “Gerstung ⁴⁶⁵ Rule,” 1 insists that the Huebners be tried initially in the district court. The State asserts that if either or both of the Huebners are convicted in the district court, he or she would be entitled to a de novo trial on appeal.

That trial may be before a jury. The Huebners, fully cognizant of their de novo -jury trial rights, insist that they, as a matter of right, are entitled under the facts of this case to a jury trial in the first instance. This appeal tests which of those divergent views is correct. The Facts Hans J. Huebner was arrested on January 18 or 19, 1984, and charged with resisting arrest, malicious destruction of property, tampering with a motor vehicle, and disorderly conduct.

The reason for the arrest is not disclosed by the record. Gisela Huebner was arrested at the same time. She was charged with assault and battery upon a police officer, hindering a police officer, and disorderly conduct. The record is also silent as to the reason for her arrest.

In mid March, 1984, a status conference relative to the charges against both parties was convened in the district court before the administrative judge. At that conference the Huebners prayed a jury trial. The State, invoking the “Gerstung Rule,” 2 Courts Art. § 4 — 302(d)(2)(H), declared ⁴⁶⁶ that it did not intend to seek a sentence in excess of 90 days. The judge agreed that if he were trying the cases, he would not impose a sentence in excess of 89 days.

Notwithstanding the State’s representation and the judge’s statement as to the maximum sentence, the Huebner’s filed written demands for jury trials. Prior to commencement of the criminal proceedings in the district court, the Huebners filed a petition for a writ of certiorari in the Circuit Court for Prince George’s County, in which they challenged the jurisdiction of the district court. The circuit court refused relief to the Huebners, declaring that they “had not yet been denied [their] right to jury trial ... because ... [the District Court Administrative Judge] was not the trial judge ... [and the] District Court Rules provide somewhere [3] ... that the presiding judge has to make the determination.” In effect, the circuit court judge felt that the Huebners had put the cart before the horse. The hearing on the writ of certiorari was continued until the district court “presiding judge” ruled on whether to permit the State to invoke the “Gerstung Rule.” When the cases were called for trial in the district court, the State entered a nolle prosequi as to all charges, except that of disorderly conduct.

The Huebners again requested trial by jury. The presiding judge ruled that because the State had nol prossed the charges to which the right to a ⁴⁶⁷ jury attached in the first instance, the prayer for a jury trial would be denied. The judge, however, prudently stayed the case pending a resolution of the writ of certiorari by the circuit court and this Court. On April 18, 1984, the circuit court denied the writ and found that “jurisdiction is properly within the District Court.” The Issues I. What, if any, offenses with which the Huebners were charged entitle them to the right to trial by jury in the first instance?

II

May the State circumvent the accuseds’ right to trial by jury by entering a nolle prosequi to charges where the right attaches? The Law The origin of the right to trial by jury appears to be lost in history. 4 In 3 W. Blackstone, Commentaries on the Laws of England ³⁴⁹, it is said that in England “mention” of trial by jury has been traced to “the laws of King Ethelred.” Ethelred reigned from 978 to 1016. The writers of the Magna Carta were so concerned over the right to trial by jury that they mentioned it more than once in that nonpareil document. 5 Before the Revolutionary War, the Magna Carta guaranteed the right to trial by jury to Marylanders. After the ⁴⁶⁸ war for independence, that right was vested in the people by the State Constitution.

Indeed, that noble instrument twice assures the residents of Maryland of their right to a jury trial. Article 5 of the Declaration of Rights confers upon the populace of this State the benefits of “trial by Jury” according to the English common law and statutes as they existed on July 4, 1776. Article 21 of the Declaration of Rights provides that “in all criminal prosecutions,” an accused “hath a right” to “a speedy trial by an impartial jury, without whose unanimous consent he [or she] ought not to be found guilty.” I. Despite the broad language of Article 21 of the Declaration of Rights, criminal trials without the interposition of a jury have regularly been sanctioned in Maryland. State v. Zimmerman, 261 Md. 11 , 273 A.2d 156 (1971).

The Court of Appeals has consistently held that the “right to a jury trial guaranteed by the Maryland Declaration of Rights does not attach, at least at the initial trial level, to certain minor criminal offenses.” Kawamura v. State, 299 Md. 276, 291 , 473 A.2d 438, 446 (1984) (citing Danner v. State, 89 Md. 220 , 42 A. 965 (1899) and State v. Glenn, 54 Md. 572 (1880)). The Court has acknowledged that “it is difficult to define with precision the class of cases that could be so tried.” Danner, 89 Md. at 226 , 42 A. at 967 . Rather than endeavor to define cases which could be reached by summary proceeding, the court set guidelines for distinguishing those cases that may not be reached by summary proceeding. State v. Glenn and Danner v. State, supra, establish the principle that the State constitutional right to a jury trial attaches in the first instance to offenses which historically have been tried before juries.

The right to trial initially by jury also attaches to any infamous ⁴⁶⁹ offense or any offense subject to infamous punishment. 6 Kawamura v. State, 299 Md. 276, 291 , 473 A.2d 438, 446 (1984). Gisela Huebner, as we have already noted, was charged, in addition to other things, with assault and battery upon a police officer. In 1909 the Court of Appeals in Baum v. Warden of Jail, 110 Md. 579 , 73 A. 294 (1909), held that the State constitutional right to a jury trial attached, at the initial trial level, to the offense of assault and battery. After reviewing the Danner decision, the Baum court observed that with regard to assault, “It is certainly of a more serious character than vagrancy or habitually disorderly conduct.” Baum at 585 , 73 A. at 296 (quoted in Kawamura v. State, 299 Md. 276, 292 , 473 A.2d 438, 447 (1984)).

That position was reaffirmed in State v. Stafford, 160 Md. 385 , 153 A. 77 (1931). There the court, relying on Baum and Danner , held flatly that the State constitutional right to a jury trial attached at the initial trial level to the offense of assault and battery. Hans Huebner was initially charged, among other things, with resisting arrest. That particular crime was, at common law, an “infamous offense” without a prescribed penalty.

According to Blackstone, it was of a “very high and presumptuous nature.” 4 W. Blackstone, Commentaries ¹²⁹. Inasmuch as resisting arrest is of such a serious nature, a person charged with that offense has a State constitutional right to a trial by jury in the first instance. Although we have found no case so holding, we are of the view that the offense is no less serious than an assault and battery committed upon a police officer who is in the ⁴⁷⁰ performance of his duty. 7 Since assault and battery has been held to be of such a nature as to require a jury trial, when elected, in the first instance, Baum v. Warden of Jail, supra, we perceive no rational basis for denying a jury trial, initially, to a person charged with resisting arrest. We hold, therefore, that a person charged with assault and battery or with resisting arrest is entitled to a trial by