Opher v. State

ROBERT M. BELL, Judge. Following a bench trial in the Circuit Court for Somerset County, the applicant, Carlton Opher, was convicted of theft and unauthorized use of a motor vehicle. He was sentenced to a term of seven years imprisonment. A subsequent motion for modification or reduction of sentence was filed and denied by the court.

In his first petition for post conviction relief, applicant raised issues concerning competency of his trial counsel and the voluntariness of his jury trial waiver and court trial election. Each issue was based upon the trial judge’s acquaintance with the victim in the applicant’s case and the gravamen of applicant’s complaints was that neither the trial judge nor trial counsel informed the applicant of that fact in advance of his waiver and election. Alleging a denial of due process and a fair trial, he sought a new trial. Following a hearing, at which only the issue concerning voluntariness of his jury trial waiver and election of court trial was pursued, 1 the hearing judge denied the relief sought.

First, noting the record demonstrated that the applicant “had a more than adequate understanding of all salient features of a jury trial”, the judge found that the applicant knowingly and intelligently waived his right to a jury trial and elected a court trial. The judge observed: The right to be tried by a jury entitles a defendant to an impartial jury composed of twelve people selected at random. If the defendant voluntarily and intelligently waives that right, he then is entitled to have his case tried by an impartial judge. It was the latter of these two modes that petitioner here selected.

To be entitled to relief under the Post Conviction Procedure Act, petitioner must show that he was deprived of due process under the ⁴⁹³ mode he selected, in that the judge he received was not impartial. Such a showing would entitle petitioner to a new trial at which a different judge, not a jury, would be the trier of fact. Relying on a letter, addressed to applicant’s counsel, in which the trial judge stated that the victim was neither a close personal friend nor related to him by blood or marriage, that the applicant failed to prove that he was prejudiced by a partial judge. Opher’s application for leave to appeal alleges error on the part of the Circuit Court for Somerset County in denying the relief prayed.

Applicant contends that he should not have been required to show bias on the part of the trial judge to obtain a new trial. He further contends that the hearing judge’s ruling that his jury trial waiver was knowing and intelligent was also erroneous. In that regard, he argues that “the court below in its decision, bifurcated the election of a court trial and the waiver of a jury trial, which while procedurally possible is substantively and intellectually impossible. (Epps v. State, 52 Md.App. 308 , 450 A.2d 913 (1982).)” The precise issue presented by the applicant has yet to be considered by any Maryland appellate decision.

We have, however, recently reiterated that which the Court of Appeals has made patent: the trial court must make inquiry of an accused in order that jury trial waiver be effective. Bell v. State, 66 Md.App. 294, 296-301 , 503 A.2d 1351 (1986). While no specific litany is required, id., it is necessary that the totality of the circumstances demonstrates that the waiver was knowing and intelligent. Robinson v. State, 67 Md.App. 445, 466 , 508 A.2d 159 (1986).

See Dortch v. State, 290 Md. 229 , 428 A.2d 1220 (1981); Countess v. State, 286 Md. 444 , 408 A.2d 1302 (1979). Thus, it is not the law in Maryland that, to render a jury trial waiver effective, everything known to a trial judge which may conceivably ⁴⁹⁴ affect an accused’s decision to waive jury trial must be communicated to the accused prior to the jury trial waiver. 1 ® On the other hand, applicant correctly points out that “no accused can intelligently make an election [without] knowledge of facts integral to his intelligent decision.” The question is whether the trial judge’s acquaintance with the victim is such a fact, an issue which has been considered in several federal cases. In United States v. Kelly, 712 F.2d 884 (1st Cir.1983), for example, the defendant contended that he did not knowingly and intelligently waive his right to a jury trial because neither he, nor his attorney knew, at the time of the waiver, that the trial judge had earlier, in a separate proceeding, authorized an extension of a wiretap order allowing the interception of his attorney’s conversations. The court found no error, reasoning: “The type of information ... which the defendant must possess in order to make a knowing and intelligent waiver of the right to a jury trial relates to his knowledge of his constitutional rights.” (Citations omitted) Id. at 888 .

It relied upon United States v. Conforte, 457 F.Supp. 641, 660 (D.Nev.1978), aff’d 624 F.2d 869 (9th Cir.), cert. denied, 449 U.S. 1012 , 66 L.Ed.2d 470 (1980). There, defendants argued that certain pretrial remarks made by the trial judge demonstrated that the trial judge was biased against them and that his failure to disclose that bias resulted in their being unable to make a knowing and intelligent waiver of a jury trial. The court responded: The error in the defendants’ position lies in their assumption that non-disclosure of the judge’s personal opinions deprived them of the information necessary to make an informed and intelligent jury waiver. In fact, the type of information required to make a proper jury waiver relates to the defendants’ knowledge of their constitutional rights, not to the judge’s innermost thoughts or out-of- ⁴⁹⁵ court statements.

Those are matters adequately treated by sections 144 and 455 of the Judicial Code. 2 ⁴⁹⁶ Id. at 660. The point was made even more emphatically in Wyatt v. United States, 591 F.2d 260 (4th Cir.1979). In that case, Wyatt did not know before waiving jury trial that the trial judge had previously presided in the trial of another defendant who had implicated Wyatt in the narcotics trafficking scheme for which he was then on trial. Nevertheless, the court approved the waiver, noting: When ... the circumstances are asserted to relate only to the predilection or special knowledge of the bench trial judge, we think and here hold that if they are not sufficiently grave to require disqualification of the judge ... they could not qualify as circumstances requiring the judge’s sua sponte reconfirmation of an earlier [jury] waiver.

Id. at 265 . We find these authorities to be persuasive. Turning to the case sub judice, other than arguing that the trial judge failed to fulfill a duty to disclose his acquaintance with the victim, applicant does not suggest that there was, or point out any, deficiency in the jury trial waiver process. Indeed, he could not successfully do so.

The record reflects, as the hearing judge found, that the inquiry directed to applicant by the trial judge and the applicant’s responses thereto demonstrate that the applicant had a more than adequate understanding of the nature and composition of a jury and the consequences of electing a court trial so as to knowingly and intelligently waive a jury trial. Under the circumstances, then, applicant may prevail only if the trial judge’s relationship with the victim was such as to ⁴⁹⁷ require the trial judge to recuse himself from trying applicant’s case. Wyatt v. United States, supra. But see United States v. Murphy, 768 F.2d 1518, 1536-41 (7th Cir.1985) (Even where there is an appearance of impropriety—here a strong friendship between the prosecuting attorney and the trial judge, which included a planned joint vacation immediately following the trial—reversal is not required unless substantial rights of the defendant are actually affected.) Three of the Canons of Judicial Ethics and Rule 2 are pertinent to our inquiry.

Canon XIII provides: XIII. Kinship or