Lead Opinion
This case involves issues of law similar to our recently consolidated cases in Nalls v. State and Melvin v. State,
I. FACTS
The charges against Petitioner James Szwed (“Szwed”) stemmed from a burglary of a house in Accokeek, Maryland. Szwed was indicted in the Circuit Court fоr Prince George’s County, and charged with first, third, and fourth degree burglary, theft over $1000, and malicious destruction of property. At the conclusion of a bench trial, the court found Szwed guilty of all three burglary counts, theft under $1000, and malicious destruction of property having а value of less than $500. Szwed was sentenced to a term of incarceration of 15 years. Prior to the commencement of the bench trial, the following exchange occurred:
[Defense Counsel]: Mr. Szwed and I have discussed the possibility of a court trial. That is a non-jury trial. Have we not, Mr. Szwed?
[Szwed]: Yes.
[Defense Counsel]: What do you want to do? Do you want the judge to decide your case or a jury?
[Szwed]: The judge.
[The trial judge inquires about Szwed’s age, education, and health.]
*4 [Trial Judge]: Your attorney has indicated that you want to elect to bе tried by the [c]ourt as opposed to a jury; is that correct?
[Sawed]: Yes, ma’am.
[Trial Judge]: If you elected a jury trial, a jury would consist of 12 people from the community whom you would help choose. Their verdict would have to be unanimous. In other words, all 12 jurors would have to bеlieve you were guilty beyond a reasonable doubt or you couldn’t be convicted. If even one felt that you were not guilty or that the State did not prove you were guilty, you could not be convicted. It would be a hung jury, a mistrial would be declared, and you would nоt be convicted of that offense. You could be retried, but you would not be convicted. A judge has to be convinced beyond a reasonable doubt, as well, but the difference is it’s one person versus twelve jurors. Do you understand the difference betweеn a court and a jury trial?
[Szwed]: Yes, ma’am.
[Trial Judge]: What is your election?
[Szwed]: For a judge trial.
[Trial Judge]: I’m going to find he made — has anyone threatened you or promised you anything in order to get you to make that election?
[Szwed]: No.
[Trial Judge]: All right. I’m going to find that he made a free and voluntary election of a court trial versus a jury trial. (Emphasis added.)
Following Szwed’s conviction, he noted an appeal the same day challenging the trial judge’s acceptance of the defendant’s jury trial waiver. The Court of Special Appeals affirmed the judgment in an unreported opinion prior to the publication of this Court’s opinion in Valonis,
In his petition for certiorari, Szwed asks:
Did the trial court err in accepting Szwed’s purported waiver of jury trial and in proceeding with a bench trial without fully complying with Maryland Rule 4-246?
II. DISCUSSION
A. Preservation
Petitioner argues that this Court can reach the merits of this case because, he contends, Valonis created an exception to the general contempоraneous objection requirement to preserve an issue for appeal. On the other hand, the State argues that we relied solely on our discretionary review power pursuant to Rule 8-131(a) to reach the merits in Valonis, and therefore Petitioner’s сlaims in this case are not preserved for review in this Court. As we clarified in Nalls & Melvin, in Valonis we elected to exercise our discretion to review the merits due to our perception of a recurring problem — namely, the failure of trial judges to follow Rule 4-246(b) — and to further encourage trial judges to adhere to the letter of the Rule. For the same reasons stated in Nalls & Melvin, we reach the merits in the instant appeal, notwithstanding the lack of a contemporaneous objection at trial.
B. Compliance with Md. Rule 4-246(b)
In Valonis, we held that a trial judge must cоmply with Md. Rule 4-246(b), and that failure to comply is reversible error. The Rule requires an in-court inquiry into the criminal defendant’s waiver of his or her right to a jury trial. Although the inquiry may be conducted by the prosecutor, defense counsel, the court, or any combination of the thrеe, the Rule also requires that the trial judge engage in the process and announce on the record a finding as to whether the defendant’s waiver was made knowingly and voluntarily.
In the instant case, the trial judge stаted that: “I’m going to find that he made a free and voluntary election of a court trial versus a jury trial.” “Free” and “voluntary” have the same meaning for purposes of compliance with this Rule. Nowhere did the trial judge acknowledge that Szwed’s waiver was made “knowingly,” and therefore, the trial court did not comply fully with Rule 4 — 246(b). As we held in Nalls & Melvin, addressing one half of the required announcement neither suffices as a valid announcement that the criminal defendant’s jury trial waiver was both knowing and voluntary, nor confirms for the appellаte courts that the trial judge was fully engaged in the process. We therefore conclude that the trial judge’s announcement that Szwed “made a free and voluntary election of a court trial” did not comply with Rule 4-246(b).
C. Sanction
As we held in Valonis and reaffirmed in Nalls & Melvin, the only appropriate sanсtion for noncompliance with Rule 4-246 is a reversal. Valonis,
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REMAND TO THE CIRCUIT COURT FOR A NEW TRIAL WITH COSTS.
BATTAGLIA, J., concurs.
ADKINS, MCDONALD and RAKER, JJ., dissent.
Dissenting Opinion
dissenting, which ADKINS and RAKER, JJ., join.
In this case, the Court reverses Mr. Szwed’s convictions because the trial judge, at the conclusion of a lengthy pre-trial colloquy with him concerning his knowledge of his right to a jury trial and his desire for a bench trial, stated, in what was no doubt a slip of the tongue, that she found his decision to be “free and voluntary” instead of “knowing and voluntary.” The Court bases that decision largely on the precedent of Valonis v. State,
It bears mention, however, what is not at stake in this appeal — and in the related appeals in Nalls, Melvin, and Morgan,
Unless we presume that the trial judges were not aware of the requirement that the waiver be knowing and voluntary— i.e., that the judges did not know why they were engaging in the colloquy with the defendants to confirm that fact — it is evident that each of the judges determined that the waivers were knowing and voluntary because, however each articulated that determination, each judge proceeded to conduсt a bench trial without a jury. The only issue in these cases concerns the trial judge’s verbal documentation of the judge’s determination. In this case, the issue is whether the judge’s failure to include the word “knowing” in her finding at the end of the colloquy negates her considerаble effort, on the record, to ensure that Mr. Szwed knew the consequences of his waiver and his affirmation, on the record, that he did.
Presumably, under this new approach, the proliferation of Valonis appeals in this Court and in the Court of Special Appeals will abate. If a defendant must make a contemporaneous objection to an imperfect finding by the trial court to preserve the issue and does so, the trial court will inevitably correct any slip of the tongue and the desire for perfect documentation of the waiver will be satisfied.
Of course, even if the judge documents a waivеr in whatever language we find acceptable, that is not necessarily the end of
Finally, it is worth noting that the colloquy in this case covered the points suggested in the committee note to Rule 4-246, even though they are not required by the rule itself, to ensure that the waiver was Mr. Szwed’s own decision and that he was aware of the consequences of his decision. Compare Transcript (September 26, 2011) at pp. 3-5 with Maryland Rule 4-246, committee note. Substitute the word “knowing” for “free” at thе end and we would have to score this colloquy a perfect “10.” We can only hope to do as well ourselves.
Judge ADKINS and Judge RAKER advise that they join this opinion.
Notes
. In Valonis, in a sharp break from precedent (see, e.g., Boulden v. State,
. Nalls & Melvin v. State,
. It is notable that the oral colloquy and finding required by Maryland Rule 4-246(b), while useful to ensure that a defendant’s waiver of a jury
. As outlined in my dissent in Valonis, I believed, as did at least some members of the Majority in that case and as the text of the decision certainly indicates, that the Court was dispensing with the contemporary objection requirement for alleged violations of Rule 4-246(b). See Valonis,
. An appellate court can also sometimes have a slip of the tongue in this area. See Robinson v. State,
Concurrence Opinion
concurring.
I concur for the reasons set forth in Nalls v. State and Melvin v. State,