This case involves a challenge to the constitutionality of Maryland Code (1974, 1984 Repl.Vol.), § 4-302(d)(2)(ii) of the Courts and Judicial Proceedings Article, which limits a criminal defendant's right to be tried by a jury under certain circumstances.
The relevant facts are as follows. On September 3, 1981, Chegeru Kawamura was charged in the District Court of Maryland, sitting in Montgomery County, with the theft of goods having a value of under $300.00. Under Code (1957, 1982 Repl. Vol.), Art. 27, § 342(f)(2), this offense is a misdemeanor punishable by imprisonment for a period not to exceed eighteen months and/or a fine not to exceed $500.00. On October 6, 1981, Kawamura prayed a jury trial. The State then recommended, and the trial judge agreed to be bound by the recommendation, that Kawamura receive a prison sentence of not longer than ninety days should he be found guilty of theft. Thus, pursuant to § 4-302(d)(2)(ii), the judge denied Kawamura's jury trial request.
As a result of this ruling, Kawamura asked the District Court to declare that § 4-302(d)(2)(ii) violated his right to a jury trial under both the federal and state constitutions. On December 15, 1981, the District Court judge ruled that she could "not find that the Statute is violative of any federal constitutional rights, nor ... that it violates the state constitution," and she ordered that the case be set for trial without a jury at the earliest possible date. Three days later Kawamura filed a motion for reconsideration, again requesting that § 4-302(d)(2)(ii) be declared unconstitutional, and that proceedings in the District Court be stayed pending disposition of an appropriate appeal. The District Court denied Kawamura's motion for reconsideration and request for a stay on January 8, 1982.
Meanwhile, prior to the District Court's January 8th ruling, and because of apparent concern that the issues would become moot once the trial commenced in the District Court, Kawamura filed two separate original petitions in the Circuit Court for Montgomery County. In both petitions Kawamura requested that § 4-302(d)(2)(ii) be declared unconstitutional and that further proceedings in the District Court be enjoined pending resolution of the constitutional issues.
On February 26, 1982, which was forty-nine days after the District Court's January 8th order and three days after the circuit court's denial of his petitions, Kawamura filed an appeal from the District Court's failure to grant a jury trial and to declare § 4-302(d)(2)(ii) unconstitutional. This appeal was dismissed by the District Court, and Kawamura failed to take an appeal from the District Court's order of dismissal.
Thereafter, on March 4, 1982, Kawamura filed a third petition in the circuit court requesting a writ of certiorari under the K Rules for the purpose of reviewing the District Court's decisions denying a jury trial. Upon concluding that the issues raised by Kawamura's certiorari petition had been fully raised and argued in the prior equity and miscellaneous petitions, the circuit court denied the petition for a writ of certiorari. Kawamura again filed a timely appeal to the Court of Special Appeals.
By order of March 19, 1982, the Court of Special Appeals consolidated the three appeals filed by Kawamura, and stayed the District Court criminal proceedings pending disposition of the appeals. Prior to any further proceedings in the Court of Special Appeals, however, we granted Kawamura's petition for a writ of certiorari and also stayed the District Court criminal proceedings.
The first question we must address is whether the merits of Kawamura's constitutional challenge to § 4-302(d)(2)(ii) were properly presented to the circuit court for decision, and consequently are before this Court for review. We believe that the constitutional issues are properly before us.
Preliminarily, we note that the question of the appealability of the District Court's decisions denying a jury trial was not before the circuit court and is not before us, as Kawamura failed to appeal from the District Court order dismissing his appeal.
Nevertheless, Kawamura's contention that § 4-302(d)(2)(ii) unconstitutionally deprived him of his right to a jury trial was appropriately raised in the circuit court pursuant to its original jurisdiction to issue a writ of certiorari. In our view, it was error for the circuit court to deny Kawamura's certiorari petition.
It has long been the common law rule in Maryland that a circuit court has jurisdiction to issue a writ of certiorari to a lower court for the purpose of inquiring into that tribunal's jurisdiction. Thistlewood v. Ocean City, 236 Md. 548, 550, 204 A.2d 688 (1964); State v. Jacob, 234 Md. 452, 457-458, 199 A.2d 803 (1964); State v. Stafford, 160 Md. 385, 389, 391, 153 A. 77 (1931). See Baum v. Warden of Jail, 110 Md. 579, 583, 73 A. 294 (1909); Gaither v. Watkins, 66 Md. 576, 580-581, 8 A. 464 (1887); 2 J. Poe, Pleading and Practice §§ 722-723A (Tiffany's ed. 1925). In such instance, a writ of certiorari may properly issue notwithstanding the availability of a direct appeal. As early as 1887, this Court in Gaither v. Watkins, supra, rejected the argument that whenever an appeal is available, certiorari is improper, stating (66 Md. at 580-581, 8 A. 464, emphasis added):
See also A.S. Abell Co. v. Sweeney, 274 Md. 715, 719, 337 A.2d 77 (1975); Ruth v. Durendo, 166 Md. 83, 86, 170 A. 582 (1934); Roth v. State, 89 Md. 524, 526-527, 43 A. 769 (1899); Weed v. Lewis, 80 Md. 126, 127-128, 30 A. 610 (1894): Judefind v. State, 78 Md. 510, 512, 28 A. 405 (1894).
The Maryland K Rules, effective January 1, 1962, were intended to implement the existing common law practice regarding certiorari in the circuit court. Accordingly, in cases brought under those rules, this Court has approved of certiorari in the circuit court as the appropriate means for that court to review trial magistrate proceedings based on an allegedly unconstitutional ordinance, Thistlewood v. Ocean City, supra, and to review a trial magistrate's power to grant probation without verdict, State v. Jacob, supra. See also State v. Stafford, supra (certiorari is the proper means to review the power of a justice of the peace to try a criminal case without affording the accused a right to elect a jury trial).
When the District Court replaced the existing courts of limited jurisdiction in this State, nothing in the original implementing statute or in later amendments modified the common law remedy of certiorari in the circuit court to test the jurisdiction of the lower court.
In the case at bar, Kawamura sought a writ of certiorari in order for the circuit court to examine the District Court's denial of a jury trial. This question directly related to the subject matter jurisdiction of the District Court. Section 4-302(d)(1) of the Courts and Judicial Proceedings Article of the Code expressly deprives the District Court of jurisdiction over a criminal cause where the defendant is entitled to and requests a jury trial. Subsections 2(i) and 2(ii) define when a defendant is entitled to a jury trial. Subsection 2(i) provides that the right to a jury trial lies where the potential penalty for the offense charged may be imprisonment for a period greater than ninety days. Subsection 2(ii), the constitutionality of which is at issue in this case, contains an exception to subsection 2(i) in the situation where both the prosecutor and judge agree that the defendant will not be sentenced to a prison term in excess of ninety days. Where, as here, the offense charged carries a maximum statutory penalty of eighteen months imprisonment,
Consequently, the circuit court erred in refusing to decide, upon Kawamura's petition for a writ of certiorari, whether the District Court had jurisdiction to try this criminal case after the demand for a jury trial.
In our opinion, § 4-302(d)(2)(ii) is invalid as applied to one charged with theft under Art. 27, § 342(f)(2), or petty larceny as the offense was known prior to 1978.
The State offers two arguments to support its position that § 4-302(d)(2)(ii) did not deprive Kawamura of his state constitutional right to a jury trial. The State first contends that, because application of § 4-302(d)(2)(ii) imposes a ninety-day limit on incarceration, all crimes subject to District Court jurisdiction and § 4-302(d)(2)(ii) are "petty" offenses and may be tried without a jury. Second, the State argues that even if there were a jury trial right for the crime of theft under $300, that right is fully satisfied by affording Kawamura a jury trial in a de novo circuit court appeal after trial and conviction in the District Court.
The first case in this Court to address the constitutional permissibility of trying a criminal defendant before a court of limited jurisdiction, without a right to a jury trial in the first instance, was State v. Glenn, 54 Md. 572 (1880). That case concerned, inter alia, the constitutionality of Ch. 415, § 10, of the Acts of 1878, which conferred jurisdiction upon justices of the peace to try persons charged with being vagrant and habitually disorderly.
The Court in Glenn held that, despite the broad language of several Declaration of Rights sections,
Nineteen years later in Danner v. State, supra, this Court generally reaffirmed the Glenn holding, although it narrowed the class of criminal cases where a jury trial in the first instance could constitutionally be denied. Danner involved a provision of Ch. 128 of the Acts of 1896 which conferred jurisdiction upon justices of the peace to try, without a jury, "all cases of petty larceny, when the value of the property stolen does not exceed the sum of five dollars...." The statute authorized a defendant, who was brought before the justice of the peace, to pray a jury trial, in which event it was the duty of the justice to commit the defendant for trial in the circuit court. The statute also provided for a de novo appeal to the circuit court, with the right to a jury trial, from a final judgment of conviction by a justice of the peace. In Danner the defendant was charged with stealing corn having the value of one dollar. He was convicted of petty larceny by a justice of the peace and sentenced to thirty days in the county jail. At the time, petty larceny was punishable by a maximum of eighteen months imprisonment either in the penitentiary or the county jail. Code (1888), Art. 27, § 157. On Danner's appeal to the circuit court, it had been held that he had waived his right to pray a jury trial. On further appeal to this Court, the conviction was reversed. This Court held that, under the Maryland Declaration of Rights, one charged with petty larceny is entitled to a jury trial in the first instance, that this constitutional right is not satisfied by a jury trial upon appeal, and that Danner had not waived his right to a jury trial.
In its Danner opinion, this Court reviewed State v. Glenn, supra, and concluded that, in light of Glenn, "[i]t is clear that [a jury trial] cannot be demanded in many minor offences. These could always be reached by summary proceedings." 89 Md. at 226, 42 A. 965. The Court then added: "but it is difficult to define with precision the class of cases that could be so tried." Ibid. The Danner opinion acknowledged that "by the common law of England and in some of the States of the United States petit larceny, though a felony,
Finally, the Court in Danner turned to the argument that the defendant's right to a jury trial is satisfied by the entitlement to a jury trial on appeal to the circuit court. The Court indicated that there may be some offenses where the constitutional right to a jury trial attached but was satisfied by a jury trial on appeal, saying (89 Md. at 226, 42 A. 965):
The Court went on to state that "[t]he right of parties charged with ... infamous crimes is more extensive than in ... prosecutions for misdemeanors of minor importance," id. at 227, 42 A. 965. After reviewing several other authorities, the Court quoted with approval from Callan v. Wilson, 127 U.S. 540, 557, 8 S.Ct. 1301, 1307, 32 L.Ed. 223 (1888), that "`[t]he guarantee of an impartial jury to the accused ... secures to him the right to enjoy that mode of trial from the first moment, and in whatever Court he is put on trial.'" Id. 89 Md. at 228, 42 A. 965.
Glenn and Danner, therefore, establish that the right to a jury trial guaranteed by the Maryland Declaration of Rights does not attach, at least at the initial trial level, to certain minor criminal offenses, although this class cannot be precisely defined. Nevertheless the state constitutional jury trial right does attach in the first instance to offenses which historically had been tried before juries. It also attaches to any infamous offense or any offense subject to infamous punishment.
The Glenn and Danner cases, and the above-summarized principles established by those cases, have been subsequently reaffirmed and applied by this Court on several occasions. In Baum v. Warden of Jail, supra, 110 Md. 579, the Court held that, under the Maryland Constitution and the holdings in Glenn and Danner, a justice of the peace in Baltimore City had no jurisdiction to try one charged with assault and battery unless the defendant waived his right to a jury trial at the initial level. While under the pertinent local statute the offense was not punishable by confinement in the penitentiary and was not a felony, the Court, after reviewing the Danner holdings, stated with regard to assault: "It is certainly of a more serious character than vagrancy or habitually disorderly conduct." 110 Md. at 585. As the Court in Baum found that the defendant had not waived his constitutional right to a jury trial, it affirmed the order of the Court of Common Pleas which, upon a writ of certiorari, had directed the defendant's release. See also Lancaster v. State, 90 Md. 211, 215, 44 A. 1039 (1899) (similar to Baum, but there the defendant had waived her right to a jury trial at the initial level); Green v. State, 113 Md. 451, 457-458, 77 A. 677 (1910) (discussion of Baum, with intimation that jury trial right attaches to criminal libel).
On the other hand, in Crichton v. State, 115 Md. 423, 81 A. 36 (1911), the Court held that, under the principles set forth in Glenn and Danner, there was no state constitutional right to a jury trial at the first instance when the defendant was charged with violations of the motor vehicle laws relating to speeding, "especially when the right of appeal is given to Courts where jury trials can be had, as is done by this statute," 115 Md. at 427, 81 A. 36.
Later, in State v. Stafford, supra, 160 Md. 385, 153 A. 77, the Court, relying on Baum and Danner, again held that the state constitutional right to a jury trial attached, at the initial trial level, to the offense of assault and battery. In that case a justice of the peace convicted the defendant of assault and battery and sentenced him to the House of Correction for nine months. The defendant applied to the circuit court for a writ of certiorari, but the court quashed the writ. This Court reversed, holding that certiorari was an appropriate method of challenging the jurisdiction of the justice of the peace, despite the availability of an appeal. The Court further held that the justice of the peace lacked jurisdiction, as the record failed to show that the defendant had waived his state constitutional right to a jury trial.
The principles set forth in Glenn, Danner, Baum, and the other cases discussed above, have never been questioned by this Court. On the contrary, those cases have been regularly cited as viable. See, e.g., Thompson v. State, 278 Md. 41, 52-53, 359 A.2d 203 (1976); In re Johnson, 254 Md. 517, 521, 255 A.2d 419 (1969), appeal dismissed, 403 U.S. 926, 91 S.Ct. 2257, 29 L.Ed.2d 706 (1971); Schowgurow v. State, 240 Md. 121, 125-126, 213 A.2d 475 (1965); Smith v. State, 210 Md. 440, 443-447, 124 A.2d 839 (1956); Callan v. State, 156 Md. 459, 464, 144 A. 350 (1929); Smith v. State, 17 Md.App. 217, 221-225, 301 A.2d 54, cert. denied, 269 Md. 766 (1973). The construction of the state constitutional provisions guaranteeing the right to a jury trial in criminal cases, which is set forth in Glenn, Danner and Baum, has become embedded in our state constitutional law. The State has not demonstrated that the construction is unsound. In our view, it would be inappropriate at this date to overrule those cases.
In light of the above-discussed cases, it is clear that the defendant Kawamura was entitled, under the Maryland Declaration of Rights, to a jury trial in the first instance. Section 4-302(d)(2)(ii) of the Courts and Judicial Proceedings Article cannot be constitutionally applied to deprive a defendant charged with theft under Art. 27, § 342(f)(2), of his right to a jury trial.
While the nomenclature has changed, the offense involved in this case is in substance the same as the offense involved in Danner. The maximum prison term specified by the Legislature for the offense is also the same — eighteen months. While the petty larceny statute at the time of Danner specifically authorized punishment in the penitentiary and the present theft statute mentions no specific state institution, under Art. 27, § 690(b) and (c), such difference is immaterial. In view of § 690(b), one convicted of theft under § 342(f)(2), and sentenced to three months or more imprisonment, could be confined in the penitentiary.
The only distinctions between petty larceny today and the offense at the time of Danner are the monetary amount separating petty from grand larceny and the fact that petty larceny today is classed as a misdemeanor. If the monetary amount has any significance (and it probably does not considering inflation), it would indicate that petty larceny is viewed as a greater offense today. The fact that petty larceny was a felony in 1899 was not the basis for the holding in Danner. Rather, as the Court made clear in Danner, Baum, and other cases, the state constitutional right to a jury trial attaches to many misdemeanors.
Theft, regardless of the amount involved, is and always has been regarded as an extremely serious offense in Maryland. See, e.g., In re Application of David H., 283 Md. 632, 640, 392 A.2d 83 (1978). See also In re Application of Howard C., 286 Md. 244, 245, 255, 407 A.2d 1124 (1979) (Smith, J., dissenting); In re Application of Allan S., 282 Md. 683, 693, 387 A.2d 271 (1978) (Digges, J., dissenting). At common law, a conviction for either petty larceny or grand larceny rendered a witness incompetent to testify due to the "infamous" character of the crimes. Pendock v. Mackinder, Willes Rep. 665, 667 (1755). See Sylvester v. State, 71 Ala. 17, 24-25 (1881); Lyford v. Farrar, 31 N.H. 314, 316 (1855); State v. James, 15 S.C. 233, 235-236 (1881).
Consequently, in light of the Maryland Constitution, § 4-302(d)(2)(ii) of the Courts and Judicial Proceedings Article cannot be applied to one charged with theft under Art. 27, § 342(f)(2). The defendant Kawamura was entitled to a jury trial at the initial level, and, upon his demand for a jury trial, the District Court was divested of jurisdiction.
JUDGMENTS OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY IN EQUITY NO. 78080 AND MISCELLANEOUS PETITION NO. 5855 AFFIRMED. JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY IN LAW NO. 60250 REVERSED, AND CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. MONTGOMERY COUNTY TO PAY COSTS.
Subsequent to those cases, this Court adopted the so-called "collateral order doctrine," permitting appeals from certain interlocutory decisions which conclusively determine an important question, are separate from the merits of the case, and are effectively unreviewable on appeal from a final judgment. See Mann v. State's Atty. for Montgomery County, 298 Md. 160, 164-165, 468 A.2d 124 (1983); Sigma Reproductive Health Center v. State, 297 Md. 660, 666-671, 467 A.2d 483 (1983); Clark v. Elza, 286 Md. 208, 212-213, 406 A.2d 922 (1979); Peat & Co. v. Los Angeles Rams, 284 Md. 86, 91-97, 394 A.2d 801, 5 A.L.R. 4th 1238 (1978); Stewart v. State, 282 Md. 557, 571, 386 A.2d 1206 (1978); Jolley v. State, 282 Md. 353, 357, 384 A.2d 91 (1978). The District Court rulings in this case might well have been appealable under the collateral order doctrine. The orders conclusively determined that Kawamura was not entitled to and would not receive a jury trial at the first tier of his criminal proceedings. Moreover, the issue, involving an accused's constitutional right to a jury trial, is clearly an important one. Whether Kawamura had a right to be tried by a jury at the first instance is a question which would seem to be distinct from the merits of the criminal prosecution. Finally, if not appealable until the conclusion of the District Court trial, Kawamura's claim that he is entitled initially to a jury trial, without first going through a separate non-jury trial in the District Court, would effectively be lost. As pointed out above, however, the matter of appealability is not before us, and a decision concerning the appealability of a District Court order denying a jury trial must await another day.
For a discussion of the common law right to trial by jury in the circuit court, see Thompson v. State, 278 Md. 41, 48-53, 359 A.2d 203 (1976). See also Hardy v. State, 279 Md. 489, 492, 369 A.2d 1043 (1977).