dissenting:
I cannot agree with my colleagues that this case should be remanded. They say the record does not show the accused intelligently and knowingly waived his federal constitutional right to a jury trial .when ■ his counsel, in his presence, stood up in open court and elected to be tried by the court. They cite no Supreme Court decision directly in point and in note 4 say a contrary decision of the Court' of Appeals is no longer the law.-
An accused' has a federal constitutional right to cross-examine witnesses against him, Bruton v. United States, 391 U. S. 123, 88 S. Ct. 1620, 20 L.Ed.2d 476. Does this mean that everytime a defense attorney decides not to cross-examine a particular witness the trial’ must be stopped while inquiry is made as to whether or not the accused is personally making an intelligent and knowing' waiver? I think not. Recent decisions have gone far in this direction, Boykin v. Alabama, 395 U. S. 238, 89 S. Ct. 1709, 23 L.Ed.2d 274, but there may be a ray of hope *499the trend has ended, and the role of counsel may be restored to its proper place. See the following opinions of the Supreme Court, all of which were filed May 4, 1970: McMann v. Richardson, No. 153 October Term, 1969, 7 CrL 3055, Brady v. United States, No. 270 October Term, 1969, 7 CrL 3064, and Parker v. North Carolina, No. 268 October Term, 1969, 7 CrL 3069.
The majority opinion shows the accused has an I.Q. of only 76, but it also shows he was being tried for his third felony. If on these facts he did not understand his counsel was waiving his right to a jury trial, a more appropriate query might be his mental capacity to stand trial at all.
As disturbing as it is to burden the trial court with what appears to me to be a frivolous hearing, the procedural aspects are even more disturbing. The appellant has never personally stated that he did not understand the waiver; it has only been suggested by his appellate counsel. The question has not, as in State v. Howard, 7 Md. App. 429, 256 A. 2d 192, been presented to a trial court for determination.
If in fact the appellant did not understand the waiver, he is not without remedy. A trial judge must appoint counsel, if the appellant is indigent, and conduct a hearing on his first petition for post conviction relief and must consider this issue or any others appropriately raised. Taylor v. Director, 1 Md. App. 23, 226 A. 2d 358. The proper time for this Court to concern itself with the issue is after it is properly raised and decided by a trial judge. Maryland Rule 1085, directing us to consider, ordinarily, only questions raised and decided below, is founded on solid ground, and should, in my judgment, be applied here. The procedure I have outlined would seem to be clearly constitutional. In Parker v. North Carolina, supra, 7 CrL 3071, the Court said :
“We also have before us the question whether the indictment to which Parker pleaded is invalid because members of his race were allegedly *500systematically excluded from the grand jury which returned the indictment. The North Carolina Court of Appeals refused to consider the claim since under North Carolina law an objection to the composition of the grand jury must be raised by motion to quash the indictment prior to the entry of the guilty plea. Because Parker had failed to raise his objection in timely fashion, relief was unavailable. This state rule of practice would constitute an . adequate state ground precluding our reaching the grand jury issue if this case were here on direct review. See Fay v. Noia, 372 U. S. 391, 428-429 (1963). We are under similar constraint when asked to review a state court decision holding that the same rule of practice requires denial of collateral relief. Ibid. Whether the question of racial exclusion in the selection of the grand jury is open in a federal habeas corpus action we need not decide.”