Opinion
No. 205, September Term, 1967.
Decided May 6, 1968.
JUVENILE CAUSES — Waiver of Jurisdiction — Record Failed To Show Bad Faith On Part Of State's Attorney In Offering Evidence Of Waiver. Appellant's contention that the trial judge should have ordered a mistrial in his prosecution for unauthorized use after the State offered into evidence a waiver of jurisdiction by the juvenile court was held without merit, where appellant's objection to the evidence was sustained and there was no motion below for a mistrial. Rule 1085. pp. 122-123
There was nothing in the record to show bad faith on the part of the State's attorney in offering into evidence a waiver of jurisdiction by the juvenile court. Rules 705, 911. p. 123
APPEAL — Bias, Prejudice, Or Improper Influence Not Presumed. The Court of Special Appeals will not assume that bias, prejudice, or improper influence prejudiced the defendant; the burden is on him to show that such fact existed. p. 123
APPEAL — Waiver Of Issues Not Raised Below. Appellant's contention that the lower court should have declared a mistrial at the time of sentencing was not properly before the Court of Special Appeals for review where there had been no motion for mistrial below. Rule 1085. p. 123
JUVENILE CAUSES — Gault Rulings — Standard Of Retroactivity — Applicability To Waiver Hearings. The rulings in In re Gault, 387 U.S. 1, 87 Sup. Ct. 1428, 18 L.Ed.2d 527 (1967) apply only to waiver hearings held subsequent to May 15, 1967 (assuming that the Gault decision required counsel at waiver hearings). p. 123
Decided May 6, 1968.
Appeal from the Criminal Court of Baltimore (CULLEN, J.).
William Halstead was convicted in a non-jury trial of unauthorized use of a motor vehicle, and, from the judgment entered thereon, he appeals.
Affirmed.
The cause was argued before MURPHY, C.J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.
William R. Lenhard for appellant.
Donald Needle, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Moylan, Jr., State's Attorney for Baltimore City, and I. Elliott Goldberg, Assistant State's Attorney for Baltimore City, on the brief, for appellee.
William Halstead, the appellant, was convicted of unauthorized use of a motor vehicle in the Criminal Court of Baltimore, Judge James K. Cullen presiding without a jury.
In view of the contentions it will be unnecessary to review the facts of the case.
Halstead first contends that the trial judge should have ordered a mistrial after the State offered into evidence a waiver of jurisdiction by the Juvenile Court. His reasoning is that under Maryland Rules 705 and 911 the waiver must be entered on the docket entries but need not be offered into evidence. He further reasons that the attempt to enter the waiver into evidence was a bad faith effort on part of the Assistant State's Attorney to call to the attention of the court the fact that Halstead was considered "a bad boy" by the juvenile judge who allegedly, by custom and usage, did not waive juvenile jurisdiction unless he, the judge, considered the juvenile "a bad boy." There are a number of answers to Halstead's contentions: (1) His objection to the evidence was sustained by the trial judge; there was no motion for a mistrial; therefore, under Maryland Rule 1085 there is nothing before this court to review; (2) there is nothing in the record to support the alleged custom and usage and (3) there is nothing in the record to show the bad faith of the State's Attorney, but on the contrary, it appears to be an innocent error because he was not familiar with Maryland Rules 705 and 911. This court will not assume that bias, prejudice or improper influence prejudiced the defendant; the burden is on him to show that such fact existed. Charles v. State, 1 Md. App. 222, 228 A.2d 620, Borman v. State, 1 Md. App. 276, 299 A.2d 440.
The second contention is that the court should have declared a mistrial at the time of sentencing. Since no motion for a mistrial was made, there is nothing before this court to review, Maryland Rule 1085. The contention seems to be that In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (May 15, 1967) should be applied retroactively to void the waiver of jurisdiction by the juvenile court, since the sentencing was on June 26, 1967 and subsequent to the Gault decision, and Halstead, allegedly (this is not shown by the record) was without counsel at the waiver hearing. The record does show that the waiver was signed in the Juvenile Court on February 8, 1967. In Hammer v. State, 3 Md. App. 96, 238 A.2d 567, we reviewed and rejected this contention. We held that In re Gault applied only to waiver hearings held subsequent to May 15, 1967, assuming, without deciding, that In re Gault required counsel at waiver hearings.
Judgment affirmed.