Chаdwick Michael NALLS v. STATE of Maryland; Justin Allen Melvin v. State of Maryland
Nos. 54, Sept. Term, 2013, 95, Sept. Term, 2013
Court of Appeals of Maryland
April 23, 2014
89 A.3d 1126
JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED. APPELLANT TO PAY COSTS.
Brian L. Zavin, Assistant Public Defender (Paul B. DeWolfe, Public Defender, Baltimore, MD), on brief, for Petitioner.
Sarah Page Pritzlaff, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Respondent.
Argued before BARBERA, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, MCDONALD and WATTS, JJ.
GREENE, J.
In this opinion, we address challenges that have arisen since the issuance of our decision in Valonis & Tyler v. State, 431 Md. 551, 66 A.3d 661 (2013). In that case, we held that trial judges must comply with
I. FACTS
A. Chadwick Michael Nalls
The charges against Petitioner Chadwick Michael Nalls (“Nalls“) arose out of a sexual encounter with Nori W., who
[Defense Counsel]: You can elect to have a judge or a jury trial. You and I have discussed this at length, have we not?
[Nalls]: Yes.
[Defense Counsel]: A jury consists of 12 people who you and I would have limited ability to help choose that would sit in that box. The jury would listen to the evidence and have to decide beyond a reasonable doubt that you‘re guilty. All 12 would have to find you guilty. All 12 would have to find you not guilty. If it were 11 to 1, that‘s called a hung jury and the matter can be retried. Do you understand that?
[Nalls]: Yes, sir.
[Defense Counsel]: Now in this particular case, I am electing, or you‘re electing not to have a jury trial. Do you understand that?
[Nalls]: Yes, sir.
[Defense Counsel]: Is that what you wish to do?
[Nalls]: Yes.
[Defense Counsel]: Instead of having all the judge now must be convinced beyond a reasonable doubt. She alone is going to make that determination. Do you understand that?
[Nalls]: Yes.
[Defense Counsel]: And you‘re doing this freely, monetarily2 [sic], and you and I have discussed it at great length, is that correct?
[Nalls]: Yes.
Pursuant to a petition for post-conviction relief, Nalls obtained permission to file a belated appeal. In an unreported opinion, the Court of Special Appeals reversed Nalls‘s conviction for third degree sexual offense but otherwise affirmed the judgment of conviction. Relevant to this appeal, the Court of Special Appeals held that the issue of the validity of Nalls‘s waiver of his right to a jury trial was not preserved for review, but, notwithstanding his failure to preserve the waiver issue, the court would hold that the trial court adequately announced its finding that Nalls‘s jury trial waiver was proper. This unreported opinion was filed prior to this Court‘s publication of Valonis, 431 Md. 551, 66 A.3d 661. We thereafter granted Nalls‘s petition for certiorari, Nalls v. State, 432 Md. 466, 69 A.3d 474 (2013).
B. Justin Allen Melvin
The charges against Petitioner Justin Allen Melvin (“Melvin“) originated from the theft of an All-Terrain Vehicle (“ATV“). Melvin was charged and convicted in the Circuit Court for Caroline County with theft between $1,000 аnd $10,000, theft under $1,000, and conspiracy to commit those offenses. Following a bench trial, Melvin was sentenced to 10 years incarceration with all but five years suspended and five years supervised probation for theft between $1,000 and $10,000 and 18 months concurrent for theft under $1,000. The court merged the conspiracy convictions for sentencing purposes. During a status conference the week before Melvin‘s scheduled trial, the following discussion took place:
[Trial Judge]: Alright, Mr. Melvin you are here today for a jury ... well, you are here today for actually, for a status conference and [defense counsel] has advised that you wish to waive your right to a jury trial and you find him again ... your jury trial is scheduled for ...
[Defense Counsel]: The 8th.
[Trial Judge]: April? Huh? The 8th of February, which is next week. And you have a right to a trial by jury and if you choose a jury trial, you and your lawyer and the State would pick twelve people from the voters rolls, and the driver‘s rolls of Caroline County. They‘d represent a cross section of the community in each of the twelve. They would have to be satisfied beyond a reasonable doubt that you were guilty in order to find you guilty. All twelve would have to agree that you were not guilty in order to find you not guilty. If they cannot agree that would be a hung jury and the State could try you over until you were found not guilty or guilty. If you waive your right to a jury trial, you will be tried before a Judge, and the Judge would have to be satisfied by a reasonable ... I‘m sorry, beyond a reasonable doubt you were guilty in order to find you guilty. Is it your intention to waive your right to a jury trial today and proceed with a court trial when you come to court?
[Melvin]: Yes[,] Your Honor.
[Trial Judge]: And has anybody made any threats or promises to make you do that?
[Melvin]: No.
[Trial Judge]: You realize by waiving your right to a jury trial now you can‘t come back on the trial date and say you want a jury trial, do you understand?
[Melvin]: Yes, Your Honor.
[Trial Judge]: Alright, I‘m satisfied that you knowingly, intelligently waived your right for a jury trial. Thank you. (Emphasis added.)
Following Melvin‘s conviction, he noted a timely appeal. After the Court of Special Appeals affirmed the judgment in an unreported opinion, Melvin filed a Motion for Reconsideration. The intermediate appellate court denied the motion, but recalled its April 30, 2013 opinion due to this Court‘s subsequent filing of Valonis, and filed a new unreported opinion affirming the judgment on July 29, 2013. The Court of Special Appeals held that, pursuant to this Court‘s decision in Valonis, Melvin‘s failure to object does
We granted Nalls‘s and Melvin‘s Petitions for Writ of Certiorari to determine:
(1) What constitutes compliance with the Rule that a trial judge must determine and announce on the record that the defendant‘s waiver of a jury trial was knowing and voluntary; and
(2) Whether defense counsel‘s lack of an objection in the face of the trial court‘s failure to determine and announce on the record that the defendant‘s jury trial waiver was knowing and voluntary precludes the case from review by the appellate courts.3
II. DISCUSSION
Valonis & Tyler v. State, 431 Md. 551, 66 A.3d 661 (2013) (hereinafter ”Valonis“), was decided so recently that3
A. Compliance with Md. Rule 4-246(b)
As a general matter, a criminal defendant‘s right to a jury trial is a fundamental right under both the United States and Maryland Constitutions. See
In Maryland, a defendant‘s right to waive a trial by jury may be exercised only by the defendant. Smith v. State, 375 Md. 365, 379, 825 A.2d 1055, 1063 (2003). Such a waiver is valid and effective only if made on the record in open court and if the trial judge determines, after an examination of the defendant on the record and in open court, that it was made “knowingly and voluntarily.”
Maryland Rule 4-246(b) ; Smith, 375 Md. at 378-81, 825 A.2d at 1063-64; State v. Bell, 351 Md. 709, 716-17, 720 A.2d 311, 314-15 (1998); Tibbs v. State, 323 Md. 28, 29-32, 590 A.2d 550, 550-52 (1991); Martinez v. State, 309 Md. 124, 131-34, 522 A.2d 950, 953-55 (1987). This factual determination is circumstance-specific and has two equally important components: the waiver must be both “knowing” and “voluntary.” Tibbs, 323 Md. at 31, 590 A.2d at 551; State v. Hall, 321 Md. 178, 182-83, 582 A.2d 507, 509 (1990); Stewart v. State, 319 Md. 81, 90, 570 A.2d 1229, 1233-34 (1990); Martinez, 309 Md. at 133-34, 522 A.2d at 955.
Valonis, 431 Md. at 560-61, 66 A.3d at 666.
A defendant may waive the right to a trial by jury at any time before the commencement of trial. The court may not accept the waiver until, after an examination of the defendant on the record in open court conducted by the court, the State‘s Attorney, the attorney for the defendant, or any combination thereof, the court determines and announces on the record that the waiver is made knowingly and voluntarily. (Emphasis added).
In Valonis, we explained the evolution of the Rule:
Md. Rule 4-240 was adopted by the Court of Appeals in 1984 (patterned after revised Rule 735).... The Rule is designed to ensure that a criminal defendant who expresses a desire to be tried by the court be afforded an opportunity to waive his right to a jury trial. That opportunity is afforded when the nature of a jury trial is explained to him [or her] along with some explanation of the nature of a court trial and/or the distinction between the two modes of trial. This Court and the Court of Special Appeals have said that compliance with the Rule is determined based on the facts and circumstances of each case[,] and the totality of the circumstances as reflected by the entire record. The intermediate appellate court has also noted that Rule 4-246 was intended to incorporate the constitutional due process standard for waiver of a fundamental right but no more. We observed in Martinez, 309 Md. at 133, 522 A.2d at 955, that “[f]or a waiver to be valid, the court must be satisfied that the defendant‘s election was made knowledgeably and voluntarily.” In other words, the waiver must have been an
431 Md. at 561-62, 66 A.3d at 666-67 (footnote omitted).
As amended in 2008, the Rule very clearly sets out a two-step procedure: (1) “an examination of the defendant on the record in open court,” commonly referred to as the “waiver colloquy,” and (2) “the court[‘s] determin[ation] and announce[ment] on the record that the waiver is made knowingly and voluntarily,” which we refer to as the “determination and announcement requirement.”
In the present cases, we explain what is required of trial judges to comply with both steps of the waiver procedure under
The second part of the relevant phrase, “determines and announces on the record,” is likewise clear. To announce findings explicitly is “to make publicly known” or “to proclaim formally.” Black‘s Law Dictionary 98 (8th ed. 2004). This requirement is “in place to ensure that the waiver procedure is not discharged as a merе matter of rote, but, instead, is undertaken with sound and advised discretion, to conclude that the defendant‘s waiver is or is not knowing and voluntary.” Valonis, 431 Md. at 568, 66 A.3d at 671 (quotations omitted). Requiring the trial judge to evaluate the criminal defendant‘s waiver and to announce the trial judge‘s determination on the record speaks to the importance of the criminal defendant‘s fundamental right to a jury trial. In addition, compliance with the requirement that a trial judge announce explicitly his or her findings on the record assists in appellate review. We rely upon the trial judge‘s pronouncement because of the obvious limitations to our review of a cold record. The trial judge is in a position to view the defendant‘s demeanor and body language, including facial expressions, tone of voice, etc., in making his or her finding of waiver. In that regard, we do not rely on implicit findings.
The final part of the Rule is “that the waiver is made knowingly and voluntarily.” Although a “fixed litany” is not required, Abeokuto v. State, 391 Md. 289, 320, 893 A.2d 1018, 1036 (2006), both concepts of “knowingly” and “voluntarily” must be addressed in the trial judge‘s announcement. See
In Martinez v. State, 309 Md. 124, 522 A.2d 950 (1987), we pointed out that “[a] competent waiver must depend on the unique facts and circumstances of each case. However, the court must be concerned that the waiver is not a product of duress or coercion. Furthermore, a defendant must have some knowledge of the jury trial right before he is allowed to waive it.” 309 Md. at 134, 522 A.2d at 955. To be certain, “knowingly” and “voluntarily” are two distinct concepts. “Knowingly” has been regarded as synonymous with “intelligently,” State v. Zimmerman, 261 Md. 11, 13 n. 1, 273 A.2d 156, 158 n. 1 (1971), and has been defined as “having or showing awareness or understanding,” Black‘s Law Dictionary 888 (8th ed. 2004). Maryland courts have consistently required that for an action to be voluntary, it should be both an exercise of “unconstrained free will” and be “intentional.” Wills v. Jones, 340 Md. 480, 495, 667 A.2d 331, 338 (1995). The Committee Note concerning Rule 4-246 suggests that a knowing waiver ensures a defendant‘s understanding of his right to a jury trial, and a voluntary waiver is one made under a defendant‘s free will, uncoerced, and uninfluenced by drugs or alcohol.4 So long as the trial judge determines that a4
waiver is made both “knowingly” and “voluntarily,” or uses synonyms that represent the same concepts, the court will have complied fully with
In both cases under review, the trial judges failed to comply with
B. Preservation
Generally, in order to “preserve” an issue for appellate review, the complaining party must have raised the issue in the trial court or the issue was decided by the trial court.
In the instant cases, as in Valonis, there is no question that Petitioners did not object to the trial court‘s determination and announcement at the time it was made, ergo, the issue now raised by Petitioners is, by definition, unpreservеd. Nevertheless, we reached the merits in the Valonis cases, stating:
Rule 4-246(b) is a rule of procedure governing the waiver of a fundamental constitutional right. Its provisions specifying that the defendant be examined on the record regarding his or her waiver of the right to a jury trial, and that the trial court make a determination and announcement with regard to whether the waiver was knowingly and voluntarily made are subject to strict compliance. Because the onus is on the trial court to announce its determination, it would be, as indicated by the Court of Special Appeals in the Valonis case, “perverse to penalize [the defendant] for failing to alert the court to [an] error in a procedure whose whole purpose was [and is] for the court to ensure that [the defendant] understood what was going on.” As Judge Bell, now Chief Judge of this Court, writing for the Court of Special Appeals noted in Bell v. State, 66 Md.App. 294, 298, 503 A.2d 1351, 1353-54 (1986) (citations omitted) in his review of Maryland cаse law, the record should affirmatively show compliance with the Rule‘s tenets, and “failure to object does not preclude appellate review.” The waiver of the constitutional right to a trial by jury must “appear affirmatively in the record.... [i]ndeed, it is the very basis of the appeal.” Id. (citations and quotations omitted). Moreover, because of the importance of this Rule in this case it is desirable that we opine on the matter “to guide the trial court or to avoid the expense and delay of another appeal.”Md. Rule 8-131(a) .
Valonis, 431 Md. at 568-69, 66 A.3d at 671. It is the mixture in our explanation of dual bases for reaching the merits that has led to some confusion and the instant appeals.
In the cases before us, the Petitioners believe that Valonis created an exception to the general contemporaneous objection requirement to preserve an issue for appeal. The State, on the other hand, argues that by citing Rule 8-131(a), we relied solely оn our discretionary review power to reach the merits in Valonis. With the benefit of hindsight, we clarify.
As we made clear in Valonis,
Although appellate courts ordinarily will not reach an issue not decided by the court below, in limited circumstances, “if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal[,]” appellate courts may exercise their discretion to decide an issue that was not preserved. See
Similarly, based on the continued confusion surrounding this issue in the trial courts, we shall exercise our discretionary review under
C. Sanction
The State contends that the appropriate remedy in situations involving noncompliance with
In addition, a limited remand would be impractical. If we were to order a limited remand, the trial judge would be required to review a waiver colloquy that took place several months, if not years, prior. Although the trial judge may have a clear memory of the particular defendant‘s waiver, it is more likely that he or she would be reviewing an otherwise cold record to confirm and аnnounce that the defendant made a knowing and voluntary waiver those several months or years8
D. Nalls‘s Conviction of Sexual Offense in the Third Degree
Respondent in Nalls v. State filed a conditional cross-petition for certiorari asking this Court to determine whether the Court of Special Appeals erred in finding that Nalls‘s conviction for third degree sexual offense should be vacated. This issue is unique to this case, and we therefore answer it separately. After review of the record, we conclude that the Court of Special Appeals‘s iteration of the relevant evidence is persuasive, and we therefore adopt its holding that the evidence was insufficient to support a conviction of third degree sexual offеnse. At the time of the commission of the crimes charged, third degree sexual offense was codified under
(1) ... an intentional touching of the victim‘s or the actor‘s genital, anal, or other intimate area for sexual arousal or gratification, or for the abuse of either party.
(2) “Sexual contact” includes an act:
(i) in which a part of an individual‘s body, except the penis, mouth, or tongue, penetrates, however slightly, into another individual‘s genital opening or anus; and
(ii) that can reasonably be construed to be for sexual arousal or gratification, or for the abuse of either party.
The intermediate appellate court in Bayne v. State, 98 Md.App. 149, 632 A.2d 476 (1993) made it clear that evidence of a single act of penile penetration cannot be the basis of a conviction for third degree sexual offense. In that case, the court described the evidence against the defendant as follows: “In light of the victim‘s assertion that appellant touched her with his ‘private’ on at least one occasion and her failure to remember whether there were other occasions, we must, in reviewing this issue, assume that only one assault took place and that it involved the appellant‘s penis penetrating the victim‘s genitals.” Bayne, 98 Md.App. at 156, 632 A.2d at 479.
The issue before the court in Bayne was whether the trial court erred when it failed to include the definition of “sexual contact” in its jury instruction for third degree sexual offense. Bayne, 98 Md.App. at 157, 632 A.2d at 480. If the definition had been included in the jury instruction, the court reasoned, “the second degree rape and the third degree sexual contact charges could have been described, under the circumstances of this case, as separate and mutually exclusive acts.” Id. Because the definition was not part of the jury instruction, however, an improper inference could have been drawn that
In the case at bar, the evidence presented by the State in its case in chief showed that: (1) the victim was asleep in her bedroom and awoke to a feeling of pain in her vagina and realized Nalls was having intercourse with her; (2) the SAFE examination showed abrasions to the victim‘s genitals consistent with vaginal penetration; and (3) a DNA analysis revealed the presence of Nalls‘s DNA on vaginal swabs that were collected from the victim during the SAFE examination. As in Bayne, the only evidence on the record demonstrates the act of penile penetration. Considering the evidence in the light most favorable to the State, we affirm the intermediate appellate court‘s reversal of Nalls‘s conviction for third degree sexual offense because no rational trier of fact could find, beyond a reasonable doubt, that Nalls committed an act of sexual contact in addition to an act of vaginal penetration.
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED IN PART. CASES REMANDED TO THAT COURT WITH DIRECTIONS TO REMAND TO THE RESPECTIVE TRIAL COURTS FOR A NEW TRIAL WITH COSTS.
BATTAGLIA, J., concurs.
ADKINS, MCDONALD and WATTS, JJ., concur and dissent.
BATTAGLIA, J., concurring.
I concur with the Majority‘s conclusion that “in both cases under review, the trial judges failed to comply with
Rule 4-246(b) is a rule of procedure governing the waiver of a fundamental constitutional right. Its provisions specifying that the defendant be examined on the record regarding his or her waiver of the right to a jury trial, and that the trial court make a determination and announcement with regard to whether the waiver was knowingly and voluntarily made are subject to strict compliance. Because the onus is on the trial court to announce its determination, it would be, as indicated by the Court of Special Appeals in the Valonis case, “perverse to penalize [the defendant] for failing to alert the court to [an] error in a procedure whose whole purpose was [and is] for the court to ensure that [the defendant] understood what was going on.” As Judge Bell, now Chief Judge of this Court, writing for the Court of Special Appeals noted in Bell v. State, 66 Md.App. 294, 298, 503 A.2d 1351, 1353-54 (1986) (citations omitted) in his review of Maryland case law, the record should affirmatively show compliance with the Rule‘s tenets, and “failure to object does not preclude appellate review.” The waiver of the constitutional right to a trial by jury must “appear affirmatively in the record, and a failure of it to so appear is not grounds for dismissal of the appeal ... [i]ndeed, it is the very basis of the appeal.” Id. (citations and quotations omitted). Moreover, because of the importance of this Rule in this case it is desirable that we opine on the matter “to guide the trial court or to avoid the еxpense and delay of another appeal.”Md. Rule 8-131(a) .
Valonis v. State, 431 Md. 551, 568-69, 66 A.3d 661, 671 (2013). In sum, it is indeed a “perversity” to require an objection, as it would be to require, for judicial intervention, an individual to
MCDONALD, J., concurring and dissenting, which ADKINS, J., joins.
For the reasons set forth in my dissenting opinion in Szwed v. State, 438 Md. 1, 89 A.3d 1143, 2014 WL 1613414 (2014), I disagree with the plurality‘s application of
Judge ADKINS has advised that she joins this opinion.
WATTS, J., concurring and dissenting.
Respectfully, I concur and dissent.1 I would hold that any issue as to the circuit courts’ announcements of Petitioners’ waivers of the right to a jury trial pursuant to
Following Valonis v. State, 431 Md. 551, 66 A.3d 661 (2013), questions arose as to whether this Court had eliminated the requirement of a contemporaneous objection to preserve for appellate review the issue of the waiver of the right to a jury trial, or whether an objection was indeed required but this Court had nonetheless exercised its discretion pursuant to
In light of the plain language of Valonis, in addition to agreeing that a contemporaneous objection is required for preservation, and as the Court now explains-that in Valonis
In the present cases, I would hold that Melvin and Nalls failed to preserve any issue as to the circuit courts’ announcements of their waivers of the right to a jury trial by failing to contemporaneously object after the circuit courts announced that they were “satisfied” that Melvin “knowingly, intelligently waived [his] right for a jury trial[,]” and “satisfied” that Nalls “waived [his] right to have a jury trial and [he was] going to have a court trial“; and I would proceed no further. Notably, in Melvin and Nalls, Petitioners do not contend that they did not knowingly аnd voluntarily waive their right to a jury trial; nor do they contend that the record fails to demonstrate that the waiver was made knowingly and voluntarily. Stated otherwise, Petitioners fail to raise a substantive challenge before this Court regarding their waivers of the right to a jury trial. Instead, the issues that Petitioners raise concern only whether the circuit court‘s announcement accepting the waiver complied with the format dictated by
Although I would find the issue unpreserved, insofar as compliance is concerned,
Thus, for all of the reasons stated above, I, respectfully, concur and dissent.
not comply with
Maryland Rule 4-246(b) would be to ignore the substance of the circuit court‘s extensive waiver colloquy, which demonstrated that the waiver was knowingly and voluntarily made.Similarly, prior to the circuit court announcing that it was satisfied, the record in Nalls reflects that defense counsel thoroughly explained the right to a jury trial and the jury trial process to Petitioner in a colloquy before the circuit court, and that Petitioner responded affirmatively that he understood the jury trial right and chose to waive it. Specifically, in response to defense counsel‘s question as to whether he was “doing this freely, voluntarily, and you and I have discussed it at great length,” Nalls said, “Yes.”
Notes
The plain language of Valonis mandated such a determination. In Valonis, 431 Md. at 569, 66 A.3d at 671, we narrowly “conclude[d] in the two cases before the court that the issue of waiver [was] preserved for appellate review notwithstanding the defendant‘s failure to object.” (Emphasis added). In reaching that conclusion, we specifically stated:
Rule 4-246(b) is a rule of procedure governing the waiver of a fundamental constitutiоnal right. Its provisions specifying that the defendant be examined on the record regarding his or her waiver of the right to a jury trial, and that the trial court make a determination and announcement with regard to whether the waiver was knowingly and voluntarily made are subject to strict compliance. Because the onus is on the trial court to announce its determination, it would be, as indicated by the Court of Special Appeals in the Valonis case, “perverse to penalize [the defendant] for failing to alert the court to [an] error in a procedure whose whole purpose was [and is] for the court to ensure that [the defendant] understood what was going on.” As Judge Bell, now Chief Judge of this Court, writing for the Court of Special Appeals noted in Bell v. State, 66 Md.App. 294, 298, 503 A.2d 1351, 1353-54 (1986) (citations omitted) in his review of Maryland case law, the record should affirmatively show compliance with the Rule‘s tenets, and “failure to object does not prеclude appellate review.” The waiver of the constitutional right to a trial by jury must “appear affirmatively in the record, and a failure of it to so appear is not grounds for dismissal of the appeal ... [i]ndeed, it is the very basis of the appeal.” Id. (citations and quotations omitted). Moreover, because of the importance of this Rule in this case it is desirable that we opine on the matter “to guide the trial court or to avoid the expense and delay of another appeal.”Md. Rule 8-131(a) .Accordingly, we conclude in the two cases before the court that the issue of waiver is preserved for appellate review notwithstanding the defendant‘s failure to object.
(Emphasis added) (alterations and omission in original).
In Valonis, 431 Md. at 569, 66 A.3d at 671, we expressly limited the preservation finding to “the two cases before the court” after giving reasons for issuing the ruling as to the two cases. Indeed, in Valonis, one of the reasons given for exercising the discretion to addrеss what would otherwise have been an unpreserved issue, due to a lack of objection, was to provide guidance to the trial courts and avoid the expense and delay of another appeal. See Valonis, 431 Md. at 569, 66 A.3d at 671 (“[B]ecause of the importance of this Rule in this case it is desirable that we opine on the matter ‘to guide the trial court or to avoid the expense and delay of another appeal.’
We rephrased these issues for the sake of clarity.
Nalls asks:
Must Petitioner‘s jury trial waiver and subsequent conviction in a bench trial be set aside because the trial judge failed to determine and announce on the rеcord that Petitioner was knowingly and voluntarily waiving his right to a jury trial as expressly required by Md. Rule 4-246?
Respondent‘s cross-petition in Nalls asks:
Is the reversal of a lawful conviction the only appropriate sanction for a non-substantive violation of Rule 4-246(b)?
Did the Court of Special Appeals err in finding that Nalls‘s conviction for third degree sexual assault should be vacated?
Melvin asks:
Must Petitioner‘s jury trial waiver and subsequent conviction be set aside because the trial judge failed to determine and announce on the record that Petitioner was voluntarily waiving his right to a jury trial as required by Maryland Rule 4-246?
Melvin is a perfect example of where focusing strictly on the terms of the announcement rather than the substance of the waiver colloquy would amount to elevating form over substance. In Melvin, it is undeniable that the colloquy was more than sufficient to demonstrate that Petitioner‘s waiver of the right to a jury trial was knowing and voluntary. The record reflects that, prior to trial, upon hearing that Petitioner desired to waive his right to a jury trial, the circuit court advised Petitioner of the right tо a jury trial, described the jury trial process, and asked whether Petitioner intended to waive his right to a jury trial and proceed with a bench trial, and Petitioner replied: “Yes, Your Honor.” Specifically, the circuit court advised and questioned:
And you have a right to a trial by jury and if you choose a jury trial, you and your lawyer and the State would pick twelve people from the voters rolls, and the driver‘s rolls of Caroline County. They‘d represent a cross section of the community in each of the twelve. They would have to be satisfied beyond a reasonable doubt that you were guilty in order to find you guilty. All twelve would have to agree that you were not guilty in order to find you not guilty. If they cannot agree that would be a hung jury and the State could try you over until you were found not guilty or guilty. If you waive your right to a jury trial, you will be tried before a Judge, and the Judge would have to be satisfied ... beyond a reasonable doubt you were guilty in order to find yоu guilty. Is it your intention to waive your right to a jury trial today and proceed with a court trial when you come to court?
Moreover, the circuit court specifically inquired into the voluntariness of the waiver, asking: “And has anybody made any threats or promises to make you do that?” Petitioner responded “No.” The circuit court next asked: “You realize by waiving your right to a jury trial now you can‘t come back on the trial date and say you want a jury trial, do you understand?” Petitioner responded affirmatively. Immediately thereafter, the circuit court announced: “Alright, I‘m satisfied that you knowingly, intelligently waived your right for a jury trial.”
From this record, it is readily apparent that the circuit court‘s announcement that the waiver was “knowingly [and] intelligently waived“-as opposed to knowingly and voluntarily waived-was the equivalent of, and, indeed, intended to be, the required finding; i.e., the circuit court‘s pronouncement was no more than a slip of the tongue. To hold that the circuit court‘s determination and announcement did
(a) A person may not:
...
(2) engage in sexual contact with another if the victim is a mentally defective individual, a mentally incapacitated individual, or a physically helpless individual, and the person performing the act knows or reasonably should know the victim is a mentally defective individual, a mentally incapacitated individual, or a physically helpless individual.