Mathias v. State

Couch, J.,

delivered the opinion of the Court. Lowe, J., dissents and filed a dissenting opinion at page 294 infra.

Following a court trial in the Circuit Court for Harford County (Higinbothom, J.), appellant, Eugene Hugh Mathias, was found guilty of distribution of a controlled dangerous substance and conspiracy to distribute a controlled dangerous substance; he was sentenced to four years incarceration on the former and three years concurrent on the latter. From these convictions he appeals, claiming the trial court erred in refusing to allow him to withdraw his previous waiver of a jury trial and forcing him to be tried by the court.

Appellant and a co-defendant were indicted on four counts of violating the Controlled Dangerous Substance laws of the State. Appellant was arraigned on October 5, 1976, at which time he pled not guilty and elected a court trial (he does not contend here that his waiver of a jury trial was anything but voluntary and intelligent). The court trial was set for June 9, 1977, but was postponed, at appellant’s request, until June 29, 1977. On the morning of trial appellant, through his attorney, sought leave to change his trial election and to be tried by a jury. At the hearing on the motion it developed that early the previous week the State’s Attorney’s office notified appellant’s attorney that the co-defendant was pleading (apparently guilty) to two counts of the indictment. It was further stated that it was not until the morning of trial that appellant’s attorney talked to the attorney for the co-defendant and learned that the co-defendant was going to testify for the State and how deeply prejudicial this testimony was. The State opposed appellant’s motion on the ground that no jury was available, that trial would have to be delayed from six to eight weeks, and that the State had brought a former police witness in from Pittsburgh (and thus already incurred certain expenses). We note that, at the motion hearing, appellant’s counsel stated that perhaps they could stipulate to what the out-of-state witness’s testimony would be. The court felt that appellant had not shown good cause, that there would be inconvenience to the out-of-state witness and expense to the State, and, consequently, denied appellant’s request. The ensuing trial resulted in appellant’s conviction.

It goes without saying that one charged with a criminal offense may elect to be tried by a jury. Maryland Declaration of Rights, Article 5; Sixth Amendment to the United States Constitution. It is also true that a defendant, in a criminal case, may waive his right to a jury trial. State v. Zimmerman, 261 Md. 11, 273 A. 2d 156 (1971). Further, it is clear that a defendant’s election to be tried by the court may be withdrawn. Maryland Rules of Procedure 741 (now 735) provides in part, “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.” Thus our review here is limited to a determination of whether the trial judge abused his discretion in denying appellant’s request for a jury trial, made on the morning of trial, which trial had been scheduled for some eight months.

Chief Judge Murphy, speaking for the Court of Appeals in State v. Jones, 270 Md. 388, 395, 396, 312 A. 2d 281 (1973), stated:

“For purposes of determining whether ‘good cause’ under Rule 741 has been shown to permit the requested change in election, the trial judge should consider, among other things, the reason expressed for making the request, when the request is made in relation to the time of trial, the lapse of time between the election and the requested change, whether there has been a change of counsel, whether the motion is made in good faith and not to obtain delay, whether the granting of the motion would unreasonably delay trial, impede the cause of justice or the orderly administration of the courts, prejudice the State’s case, or unreasonably inconvenience witnesses. Within this framework, the trial judge is vested with wide discretion in deciding whether to permit the requested change in election.”

Applying these standards to the instant case, we are not persuaded that the trial court abused its discretion in denying appellant’s request. Certainly there was inconvenience to the State and to the out-of-state witness, there had been a week’s notice of the change of position of the co-defendant, there was interruption of the orderly administration of the court, and no prejudice to appellant was shown. We note, in this latter respect, that the trial judge stated:

“The court is not going to determine a case on whether or not the co-defendant pleaded guilty. The court is going to determine the case on evidence as it’s presented to it and argument by counsel as to the law so I can’t see first why or in what manner Mr. Mathias can be prejudiced by that fact.”

Judgments affirmed.

Appellant to pay costs.