State v. Howard

Per Curiam. This is an application for leave to appeal filed by the State of Maryland from an order of Judge Thomas J. Kenney in the Criminal Court of Baltimore, dated December 2, 1968, awarding Isaac Howard a new trial on the ground that at his original trial he was convicted by the court sitting without a jury without first having af ⁴³⁰ firmatively waived his constitutional right to a trial by jury. Following an evidentiary hearing on Howard’s petition for post conviction relief, at which both Howard and his trial counsel testified, Judge Kenney found that Howard was “a person of very dull intelligence,” that he had “difficulty communicating,” that he had attended but one year of school, could not read or write other than his own name, and appeared to be so mentally inadequate as to require a mental examination to determine his competency to stand trial (in the event of a retrial). The transcript of the original trial shows that Howard’s trial counsel elected a court trial for him, there being no explicit showing, however, that Howard concurred in this election.

Judge Kenney held in his opinion that “the preferable practice is for defense counsel to explain in open court on the record the defendant’s right to a jury trial and to obtain in open court his intelligent waiver of the same.” After noting that the trial transcript was similarly silent with respect to whether trial counsel advised Howard of his right to appeal, and to have his sentence reviewed, Judge Kenney concluded that Howard was “of such low mentality