State v. Zimmerman

Smith, J., delivered the opinion of the Court. We here consider the question of the proper time and place to raise a contention that a defendant in a criminal case did not knowingly waive — or, more properly under Maryland procedure, elect — a jury trial. We shall reverse the order of the Court of Special Appeals which, when the question of the voluntariness of the election was raised for the first time in that court, remanded the case for a determination of that point. We do not consider whether an accused may elect a court trial, thereby waiving a jury trial.

That is established. Rose v. State, 177 Md. 577 , 10 A. 2d 617 (1940) ; Singer v. United States, 380 U. S. 24 , 85 S. Ct. 783 , 13 L.Ed.2d 630 (1965) ; and Patton v. United States, 281 U. S. 276 , 50 S. Ct. 253 , 74 L. Ed. 854 (1930). Nor do we consider whether such election or waiver should be a knowing election and waiver. That is conceded.

What we are concerned with is the time and place for challeng ¹³ ing the knowingness of such election or waiver when the point was not raised at the original trial. Sam Zimmerman was convicted in the Criminal Court of Baltimore City of breaking into the “warehouse” of The First Unitarian Church of Baltimore and stealing property of the value of $5.00 and upwards. As Joseph had a coat of many colors, so Zimmerman is a man of many names. He uses variations of the forename “Samuel” such as “Sam” and “Sammy”.

He apparently prefers to further vary his surname since he is the Samuel Daniels of Daniels v. Director, 238 Md. 80 , 206 A. 2d 726 (1965), and Director v. Daniels, 243 Md. 16 , 221 A. 2d 397 , cert. den. 385 U. S. 940 (1966), and the Samuel Brown of Brown v. State, 5 Md. App. 367 , 247 A. 2d 745 (1968). Zimmerman appealed his conviction to the Court of Special Appeals. One of the three questions he there raised was: “II. Did the court err in failing to determine whether or not appellant intelligently waived his right to a jury trial?” At no time did he there or here contend that his election was not knowingly made. 1 Here he has chosen to frame the question as: “Whether or not the record at trial revealed that the appellee specifically waived his right to a jury trial?” The Court of Special Appeals (9 1 Md. App. 488, 265 A. 2d 764 (1970)) found no merit in any contention other than that relative to waiver.

A divided court remanded the case without affirmance or reversal “for the purpose of the introduction of additional evidence, or otherwise, as may be necessary, for a determination by the lower court whether or not appellant knew of his right to a jury trial and intentionally relinquished or abandoned it, ¹⁴ as if no appeal had been taken and the judgment from which the appeal was taken had not been entered.” It further directed that “[u]pon such determination the record [should] be returned to [the Court of Special Appeals] .” In this case Zimmerman was initially arraigned on June 10, 1969. When the judge then sitting learned that he did not have counsel, he said: “We will appoint an attorney for you, Mr. Zimmerman or Mr. Daniels, and he will be in touch with you. In the meantime, we will enter a plea of not guilty and reserve the question of court or jury trial.” Counsel was appointed. Zimmerman was rfearraigned on September 3 after having first made various pre-trial motions.

In Zimmerman’s presence counsel entered a not guilty plea. Counsel then replied, “By the Court.” in response to the question of the clerk, “How does he wish to be tried?” • No less an authority than the late Carroll T. Bond, Chief Judge of this Court from 1924 to 1943 and a judge of this State for almost 32 years, stated that the Maryland practice of trying cases by judges without juries goes back to more than 80 years before the Revolution. 2 See his article entitled “The Maryland Practice of Trying Criminal Cases by Judges Alone, Without Juries” in 11 A.B.A.J. 699 (1925), where he said: “The present Maryland practice appears to be a development from the ancient English practice of submission to a fine on a charge not capital and punishable by fine, without contesting the charge, the practice which survives in some jurisdictions under the name of nolo contendere. ¹⁵ The history of it in Maryland cannot be exactly stated without a more extended examination than has yet been made of the records of colonial trial courts. The records of the Baltimore County Court of 1693 and 1694 show trials without juries, at the election of the accused. The usual entry was that John Gamble or George Mattox, or whoever else may have been the defendant, ‘Pleaded not guilty and put himself upon the Court.’ And the court found him guilty or not guilty.

Such proceedings would seem to have been plain non-jury trials. The plea, issue and verdict all appear to have been present. That fact, and the fact that trials without juries were held in criminal cases in seventeenth century Massachusetts (Massachusetts Law Quarterly for August, 1923, pages 7 and 27), suggest the need of an investigation of facts before any statement is made that trial by jury in criminal cases was the only form known to the early American law. It is possible to assume too close an adherence to English practice in the colonies. * * * “The form of procedure seems to have been, clearly enough, that of the old English Courts, an instance of which is to be found as far back as a case in the Year Book of 9 Henry VI, 60a, in which, as the Chief Justice there said, the accused posuit se in gratiam Domini Regis et petit se admittit per finem. * * “Inasmuch as, in some other jurisdictions, a question has been raised as to the consistency of the allowance of non-jury trial with constitutional requirements of jury trial, it may be well to make note here of the provisions on that subject in the Constitutions of Maryland.

Since 1776 the several constitutions of the State have ¹⁶ provided, in the Declarations of Rights, that the people are ‘entitled to the common law of England, and the trial by jury, according to the course of that law’ (Declaration of Rights, Art. 5); ‘that in all criminal prosecutions every man hath a right . . . to a speedy trial by an impartial jury without whose unanimous consent he ought not to be found guilty’ (Art. 21); ‘that no man ought to be taken or imprisoned, or dis-seized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property but by the judgment of his peers, or by the law of the land.’ (Art. 23). Since 1851 the constitutions have contained the further provision (now Art. 15, Sec. 5), that, ‘In the trial of all criminal cases, the jury shall be the Judges of Law, as well as of fact.’ No question has even been raised in Maryland as to the consistency of allowing trial without a jury when the accused desires it. “So in this State the practice is one of respectable age, and it seems to Maryland lawyers to be fully as natural a feature of the administration of criminal justice as does the jury trial. They have been quite unaware that there was anything extraordinary in it, and are always surprised when they learn that in other jurisdictions an accused cannot have a trial without a jury if he wishes it.” In Rose v. State, 177 Md. 577 , 10 A. 2d 617 (1940), our predecessors overruled the claim of the defendant that she had been deprived of her constitutional right of trial by jury. In that case through her attorney she initially elected a jury trial.

She withdrew this election at the time of trial and elected to be tried by the court without a jury. Chief Judge Bond there reviewed again the prior practice in Maryland saying: “[I]t is to be borne in mind that trials without ¹⁷ juries have regularly been allowed since near the founding of the province, if not from the beginning, and the clauses were all adopted while the practice was in vogue, and were never regarded as causing any interruption of it.” Id. at 580 . He further said: “The very men who adopted the constitutions, then, or their contemporaries, conceived of the clauses as in harmony with the familiar practice, and we are compelled to take this to be their meaning. [Citing authorities.] There is hardly an institution in the state more firmly established. To the knowledge of men now living, trials without juries have long been elected in the greater number of criminal cases in the state, and in the criminal courts of Baltimore City, where the number of such cases is naturally greater than in other jurisdictions, more than ninety per cent of all trials have for many years been held without juries. “Strictly speaking, there is in this no waiver of a requirement of jury trial.

It is more accurate to say that an equally normal method is elected. And there is no reason for disapproving it as a deprivation of something an accused should have. It is demonstrated that there is a pronounced desire for it. And for persons who fear the effect of any prejudice in the jury box, racial or other prejudice, it is a boon. “Clearly therefore the appellant suffered no deprivation in being given her election, and there was nothing improper in trying her case as it was tried.

Her attorneys object that the recitals in the docket entries do not show that the election was made by the accused in person rather than by attorney, or show other desirable safeguards, but nothing else is required under ¹⁸ the law and regular practice. The recital is that she made the election. But if her attorney made it, that was regular and proper. There is no grievance in any action below in this respect.” Id. at 581 .

See also State v. Hutchinson, 260 Md. 227 , 271 A. 2d 641 (1970) ; Journigan v. State, 223 Md. 405, 409 , 164 A. 2d 896 (1960) ; Byrd v. Warden, 210 Md. 662, 663 , 124 A. 2d 284 (1956) ; and Grammer v. State, 203 Md. 200, 213-14 , 100 A. 2d 257 (1953). In this regard it should be noted that there is a difference between the language in the Constitution of the United States relative to jury trial and the various Maryland constitutional provisions. Art. Ill, § 2 of the Constitution of the United States seems to mandate a jury trial since it provides: “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; * * *” while our constitutional provisions as cited by Judge Bond refer to the right of trial by jury. In his Index of Maryland Statutes and Cases on Criminal Law (3rd ed. 1937), the late Professor John S. Strahorn, Jr., who then taught criminal law at the University of Maryland School of Law, commented: “Right to jury trial and waiver thereof. * * * An aspect of criminal procedure in which Maryland differs radically from the majority of other states is seen in our rule that the defendant may waive a jury and be tried before a Justice of the Peace or Judge of the Circuit or Criminal Court.

Not only may one who has been indicted elect a trial before the Court, but in the case of many crimes it is provided that the Justice of the Peace may ask the accused whether he desires a jury trial and if the accused replies in the negative, the justice may then try him without a jury.” Id. at 34. ¹⁹ This difference may well account for the reluctance in the federal system and in certain states to permit the accused to have the complete and final say as to whether trial should be by court or jury. Not only does the Maryland court trial system expedite the trial of criminal cases, but also any experienced lawyer worth his salt in the trial of criminal matters knows that there are many, many instances where trial before the court is in the best interest of the accused. Consequently, such lawyers over the years have in certain instances deliberately recommended to their clients that they have a court trial. See similar comments in Rose and Hutchinson.

In this case Zimmerman’s knowledge of court procedure was constantly displayed. The record shows he had absolutely no hesitancy in making his thoughts and desires known to the trial judge. At one point in the proceedings counsel for Zimmerman addressed the court advising that Zimmerman had “expressed the desire to [him] that he no longer wished to go on with the trial and wanted other defense counsel”. Upon questioning by the court, Zimmerman said the reason he was dissatisfied was that he had asked his attorney to do things that he would not do.

At this point the record is as follows: “THE COURT: So what you are saying is that you are dissatisfied with your counsel because he indicated to