Abeokuto v. State

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Abeoku to v. State, No. 129, Sept. Term, 2004. CRIMINAL LAW - CONSTITUTIONAL LAW - DEATH PENALTY - SIXTH AMENDMENT RIGHT TO JURY TRIAL - ARTICLES 5, 21, AND 24 OF THE MARYLAND DECLARATION OF RIGHTS - RECORD OF VOLUNTARY AND KNOWING WAIVER OF JURY TRIAL RIGHT - STATUTORY RIGHT TO JURY SENTENCING - RECORD OF VOLUNTARY AND KNOWING WAIVER OF JURY SENTENCING RIGHT - REQUEST FOR CONTINUANCE - FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION - CUSTODIAL INTERROGATION FOURTH AMENDMENT RIGHT AGAINST UNREASONABLE SEARCH AND SEIZURE - CONSENT TO SEARCH AND SEIZE PROPERTY - PROBABLE CAUSE NEEDED TO ISSUE WARRANT TO SEARCH AND SEIZE PROPERTY - IMPROPER INCREASE OF SENTENCE IN VIOLATION OF RULE 4-345 - MERGER OF KIDNAPPING AND CHILD KIDNAPPING CONVICTIONS FOR SENTENCING PURPOSES Jamaal Kenneth Abeokuto was convicted, following a bench trial, of first-degree murder, first-degree assault, kidnapping, child kidnapping, extortion, and wearing or carrying a dangerous w eapo n openly w ith th e inte nt to injure in the d eath of th e eig ht-year old daughter of his female romantic interest. The trial court sentenced him to death for the murder conviction and periods of incarceration for each of the other convictions, although mergin g the as sault co nviction with th e murd er conv iction. The Court of Appea ls conclude d that the trial court properly accepted Abe okuto s waiver of jury trial because the overall relevant portions of the record reflected a knowing and voluntary waiver when the inquiry by the court ensured that he had some knowledge of the jury trial right and the waiver was no t a product of coercion . Although the trial court knew that Abeokuto had been prescribed an anti-psychotic medication, the court was not required, at that time, to determine w hether he was taking the medication or if he was experiencing any side effects of the medication that would impact adversely upon his ability to give a knowing and voluntary waiver because the court, virtually contem poraneo usly with the jury trial waiver inquiry, heard testimony regarding his mental health and medication state in a competency inquiry. The Court also determined that the lower court did not abuse its discretion to deny requests for a continuance of trial and sentencing because a sound ba sis existed for denial of the re quests. The lower court also committed no error when it admitted Abeokuto s statement obtained at the police station, without the receipt of a Miranda warning, because the statement was not a product of a custodial interrogation. Abeokuto was not arrested during the questioning and no reasonable person would b e led to believ e to the contrary. The record revealed no coercion throughout the interrogation, either during the interrogation at issue or the eleven hours before the relevant interro gation. He agreed to answer questio ns and did so c oopera tively. He wa s not depriv ed of his fr eedom o f action in any significant way. The lower court committed no error when it admitted clothing obtained from Abeokuto at the police station because he consented to the search and seizure by silently unbuckling and lowering his pants so th at detectives c ould obse rve the labe l of his jean pants, and, in respo nse to a requ est by police fo r the clothing , removing all of his clothing and laying it on the table. The lower court committed no error when it admitted the fruits of a search of Abeokuto s car because the affidavit in support of the search warrant provided probable cause for the search when it stated that Abeokuto was the last person to see the victim alive and demonstrated that his statements were inconsistent with the stateme nts of o thers. A major ity of the Court vacates the sentences and directs a new sentencing hearing. Three members of the Court would vacate the sentencing because the record did not demons trate a knowing and voluntary waiver of the jury sentencing right because the trial court, in view of the relatively long passage of time since the competency determination proceeding, failed to inquire anew into Abeokuto s medication state and consider its impact on his ability to give a knowing and voluntary waiver when the facts of the case raised that issue. A fourth member of the Court would vacate the sentencing proceeding for other reasons. A majority of the Court also found error in the sentencing in that the trial court illegally increased Abeokuto s sentence for extortion by its Amended Commitme nt Order, in violation of Maryland R ule 4-345, and failed to merge the kidnappin g and child kidnapping convictions for sentencing purposes. Circuit Co urt for Baltim ore Cou nty Case # 03 CR 2127 IN THE COURT OF APPEALS OF MARYLAND No. 129 September Term, 2004 JAMAAL KENNETH ABEOKU TO v. STATE OF MARYLAND Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Harrell, J. Con curr ing a nd D issen ting Opinion by Wilne r, J., joined by Cathe ll and B attaglia, J J.; Conc urring a nd Dis senting Opinio n by Bell, C .J., joined b y Green e, J.; Conc urring a nd Dis senting Opinio n by Rak er, J., joined by Bell, C.J., and Greene, J. Filed: February 13, 2006 In this direct appeal by Jamaal Kenneth Abeokuto (Appellant) of his conviction by the Circuit Court for Baltimore County for first-degree murder (and other crimes) and the resultant primary sentence of death, we are asked to consider the following questions: 1. Did the trial court err in determining that Appellant s waiver of his constitutional right to a trial by jury at the guilt/innocence phase w as kn owing and volun tary? 2. Did the trial court err in admitting evidence of Appellant s post-arrest an d post-Miranda 1 warning silence? 3. Did the trial court err when it denied Appellant s requests for continuance to permit ne w coun sel to prepare for trial and the sentencing hearing? 4. Did the suppression court err when it denied Appellant s motion to suppress his statement, given without a Miranda warning , at the Hom icide Unit? 5. Did the su ppression c ourt err when it denied Appellant s motion to suppress his clothing taken by police while he was at the Hom icide Unit? 6. Did the suppression court err when it determined that the issuance of the warrant to search Appellant s car was supported by probable cause? 7. Did the trial court err in accepting Appellant s sentencing jury waiver? 8. Did the trial court illegally increase Appellant s sentence for extortion? 9. Did the trial court err in admitting into evidence at the sentencing hearing the testimony of a medical expert when he opined that Appellant had lied about symptoms of psychosis? 1 Miranda v. Arizona, 384 U.S. 436, 86 S .Ct. 1602, 16 L.Ed.2d 694 (1966). 10. Did the trial co urt err in adm itting victim s impact testimony by the victim s family members? 11. Should Ap pellant s death sentence be reversed as a result of the prosecutor s closing argument at the sentencing hearing when he stated that the trial court proceeding would not be the final proceeding? 12. Did the trial court err in imposing separate sentences for kidnapping and child kidnapping? 13. Did the trial court err if it in fa ct found a s separate aggravating circumstances that the victim was taken in the course of an abduction or kidnapping and that the victim was a child abducted in violation of § 3-503(a)(1) of the Criminal Law Article? 14. Did the trial court err in admitting into evidence at the sentencing hearing a handgun reco vered from A ppellant s car? 15. Did the cu mulative effect of the alleged errors deprive Appellant of a fair trial and/or a fair sentencing hearing? 16. Should the failure of the indictmen t to allege princ ipalship and aggravatin g circumstances have precluded the imposition of a sentence of death? 17. Is the Ma ryland death p enalty statute unconstitutional because it requires that a ggravating circumstan ces outw eigh mitigating circumstances only by a preponderance of the evidence? I. A. Appellan t, Jamaal K enneth A beokuto , was fou nd guilty, following a bench trial in the Circuit Court for Baltimore County, of: first-degree murder, first-degree assault, kidnapping, 2 and child kidnapping of his girlfriend s eight-year old daughter, M arciana Monyai Ringo; extortion; and, wearing or c arryin g a dangerou s we apon openly with the intent to injure. According to the State s evidence at trial, Abeokuto abducted Marciana on 3 December 2002, took her to a wooded area in Harford County, and killed her by slitting her throat and kicking her hea d. After charging in Harford County, the Circuit Court for Harford County granted Appellant s request for a change of venue, citing pre-trial publicity in Harford County, and transferred the case to the Circuit Court for Baltimore County. Appellant separately elected to waive bo th his ri ght to tria l by jury and sentenci ng by jury. A ccor ding ly, he was tried and, after being found guilty, sentenced by the court. On 15 November 2004, the court sentenced him in open court as follows: death for the murder conviction; merged for sentencing purposes the first degree assault count with the murder co unt; ten years of incarceration , to be served from the initial date of Appellant s arrest (24 December 2002), for the extortion conviction; thirty years of imprisonment for the kidnapping conviction, consecutive to the sentence for extortion ; three years for th e deadly we apon con viction, to be s erved con secutive to the extortion and kidnapping sentences; and twenty years to be served for ch ild kidnapping, to run concurrently with the sentences for the extortion, kidnapping, and dead ly weapon convic tions. A t the sentencing hearing, the court stated, as to the sentence for murder, that it found two statutory aggravating circumstances proved beyond a reasonab le doubt, kidnapping and child kidnapping. The court found as a mitigator, by a preponderance 3 of the evidence, that Appellant had not been found guilty previously of a crime of violence. Penultim ately, the court determined that the State had proven beyond a preponderance of the evidence that the aggravating circumstances outweighed the mitigating circumstances. It therefo re impo sed the senten ce of d eath fo r Marc iana s m urder. In the trial judge s required Post-Sentencing Report, he stated that, although he found at the sentencing proceeding two a ggravating circumstan ces, kidnap ping and c hild kidnapping, he wish[ed] to clarify that although the evidence names [sic] Kidnapping and Child Kidnapping, the Court considered one Kidnapping as the aggravating circum stance. The sentence of ten years for the extortion conviction was later amended in the Commitment Report and the T rial Judge s P ost-Sentencing Report to reflect that it was to be served consec utive to t he sent ence f or the m urder c onvictio n. B. The State s evidence presented at the suppression hearings on 12 and 13 November 2003 2 revealed the following facts: At approximately 4:45 p.m. on 3 December 2002, Officer Joseph Petryszak of the Baltimore City Police Department responded to 5300 Leith Road, Apartment C, because he 2 Appellant sought to suppress all of the statements that he gave to police between 3:42 a.m. and 5:10 a.m. on 4 December 2002, which were obtained by the police before giving Appellant any Miranda warning, contending that the statements were made during the course of a custodial interrogation. The statement sought to be suppressed was admitted as evidence at trial. Appellant gave two subsequent statements at the Homicide Unit, which were obtained after giving A ppellant Miranda warnings. The State did not offer these two statements as evidence at trial, nor does the record reveal the contents of those statements. 4 received a report that Marciana was missing. When he arrived at the apartment, he found Marciana s parents, M ilagro Wh ite and M arc Ringo , Sr., present. 3 Officer Petryszak called Appellan t, who, at the time was attending class at a commercial truck driving school, and requested that he come to the apartment. Appellant agreed to the request and drove him self there. When he arrived, Officer Petryszak and two other officers questioned Appellant for about five minutes in the stairwell in front of the apartment. In response to Officer Petryszak s questions, Appellant told him that Marciana had walked to school around 7:30 a.m., came back around 7:35 a.m., and said that she needed her homework signed. While signing her homew ork he no ticed a note about a field trip. Appellant then said that he drove her back to school, which, Officer Petryszak noted, was just across the street from the apartmen t. Appellant further explained that he dropped her off by the school s front doors, noticed a yellow school bus parked there with teachers and students around it, and then, without waiting to see whether Marciana went inside the school, drove through the alley at the 520 0 block of Lo ch Ra ven B ouleva rd on h is way to w ork. After this initial questioning, Officer Petryszak and Appellan t entered the a partment. Twenty minutes later, a sergeant at the scene asked Appellant to come back out to the hallway outside of the apartment to speak with him and Officer Petryszak because of the noise in the apartment. Appellant obliged and was again cooperative. Appellant repeated 3 Marciana and her younger brother, Marc Ringo, Jr. lived with Ms. White in an apartment in Baltimore City. Ms. White was separated from the children s father, Mr. Ringo. At the time of the m urder, M s. White was invo lved in a rom antic relationsh ip with A ppellant. 5 his earlier statements . Meanwhile, the sergeant and officers coordinated a search for Marciana and canv assed the ap artment complex. No Miranda warning s were giv en to Appe llant at tha t time. Detective Timothy Rabbit of the Missing Persons Unit of the Baltimore City Police Department asked Officer P etryszak to transport Appellant, M s. White, and M r. Ringo to his unit. Officer Petryszak advised Appellant that the detectives at the Missin g Persons Unit wanted to talk with him to gather m ore inform ation. App ellant said ok ay and was again cooperative. At about 8:00 p.m., Appellant, Ms. White and Mr. Ringo were transported separately to the Missing Persons Unit (about 15 minutes away) in marked police cars. Appellant fell asleep on the way. Ms. Constance Greene, a neighbor, also came to the Missing Persons Unit to be interviewed. When they arrived, Officer Petryszak escorted Appellant to Detective Rabbit, who interviewed him in a small interview room. The door was shut and no officers waited outside. Appellant repeated w hat he had told Of ficer Petryszak , and also stated that he arrived at work that morning at 8:00 a.m. Detective Rabbit described Appellant as without emotion, not upset, very low key, and cooperative. After the interview, Appellant was escorted to one of the unit s other interview rooms to wait while Detective Rabb it interviewed Ms. White, Mr. Ringo, and Ms. Greene.4 These interviews took place in 4 Ms. Greene told police that she saw Marciana get into Appellant s car at 8:05 a.m. that morning. 6 Detective Rab bit s office cubic le. M r. Rin go to ld Detec tive R abbit tha t he u sually saw Marciana in the 7:30 to 7:45 a.m. time frame, but he did not that morning when he came to pick up Marc, Jr. The door to the interview room where Appellant waited alone following his interview was closed and locked. Detective Rabbit explained that Appellant was secured in the ro om fo r his ow n safety. Appellant then was transported by a marked police car to the Homicide Unit of the Baltimore City Police Department between 10:30 and 11:00 p.m. on 3 December 2002. Detective Rabbit called the Homicide Unit to become involved because he was alarmed that Marciana may have been kidnapped or abducted. The detective also became suspicious of Appellant because of his demeanor, statements, criminal record, and factual discrepancies between his and Ms. Greene s statements. Ms. White and Mr. Ringo were driven to the Homicide U nit by Ms. White s father. The officers an d Appe llant arrived at the Homicide Unit at about 11:20 p.m. Appellant was escorted to an interview room where he remained for the evening, except when he was interviewed elsewhe re in the offices or went to the bathroom; on those latter occasions, he was escorted according to normal police practices. The door to the interview room remained open. After first interviewing Ms. White and Ms. Greene, Detectives Keith Hagan and Robert Patton interviewed Appellant in a sergeant s office. The interview began at 3:42 a.m. and ended at 5:10 a.m. on 4 December 2002. The interview was tape recorded and a transcript created. Appellant was not given Miranda warnings prior to making these 7 statements. Appellant recounted his previous statements that Marciana went to school at 7:30 a.m. o n 3 Dec ember 20 02, Mar c, Jr. walked to Mr. Rin go s car at 7 :40 a.m., and that, as Appellan t was leavin g the apartm ent to go to work, Marciana came back and said that she needed her hom ework sig ned. He s aid that he signe d her hom ework, told her that he w ould drive her to school, and then did so within a span of two minutes. Appellant stated that he carried . . . [Marciana s] bookbag out to th e car an d she ju st came with m e. 5 Then Appellant told the detectives that he drove to work via Interstate-95 to Aberdeen, Maryland, from Ms. White s apartment in northern Baltimore City, and clocked into work a little after 8:00 a.m. Like D etective Ra bbit, the homicide detectives doubted that Appellant could have driven so quickly to w ork on tha t route, espec ially at that time of m orning. A ppellant said that he left wo rk at approx imately 1:00 p.m. and drove back to Ms. White s ap artment, before proceeding to the truck d riving scho ol, to pick up a book that he had left there. While there, he locked his car and apartment keys inside, so h e used a n eighbor s p hone to ca ll Ms. W hite who agreed to m eet him at her place of work, Goucher College. He called a cab at about 1:30 p.m. to take him there. It was just after 3:00 p.m., Appellant told the detectives, when he arrived at the truck driving school, after borrowing Ms. White s keys and ATM card, taking the cab ba ck to the ap artment, and then driving to his schoo l. 5 At the motion for judgment of acquittal and in its closing argum ent, the State reference d this stateme nt. 8 At this point in the interview , the detectives alerted Ap pellant to a time discrepancy with his time card at work, which indicated that the card had been punched out at 1:35 p.m. on December 3, and compared it to the caller identification feature of the telephone that Appellant used to call M s. White at w ork, which indicated tha t the call to her had been placed at 1:28 p.m. The detectives explained to him that: [i]t looks like there s something going on here and you better let us know abo ut that shit, because we find out anything further, then you re going to be lookin g like a prim e suspect in this stuff[.] A ppellant eventu ally admitted that a co-w orker nam ed Dw ayne had pu nched his card for him at work that afternoon, but that Ap pellant had clocked himself in that morning at 8:00 a.m. The detectives were sus picious. D etective Patto n, when asked at the suppressio n hearing to describe A ppellant s de meanor d uring the inte rviews, rep lied: At first, he was sort of cooperative, trying to help us, you with it, and then as we started talking, he became defensive, becam e his responses w ere sort of weren t to the p oint. He wa s sort of beating around the bush. He w asn t responding with direct responses to the questions we were asking him. A second interview of Appellant occurred a t 2:00 p.m. o n 4 Dec ember 20 02. This was preceded by Appellant being give n his first Miranda warning. He was asked to take a polygraph test in conjunction with this interview. He agreed and the interview took place. His interview occurred after detectives had administered a polygraph examination of Ms. White.6 6 The record does not reveal the contents of this polygraph interview. 9 On the prior evening, 3 December 2002, Detective Rabbit applied for and was issued a search warrant for A ppellant s car. The first search was conducted around 7:25 a.m. on 4 December 2005. A second search was conducted around 7:15 p.m. that same day. A lab technician and the homicide detectives participated in the searches. During the first search, they found a nine millimeter handgun and a clip with fifteen rounds in a compartment in the trunk of the car. The second search produced a receipt fo r the purchase from a Wal-mart store, dated 3 December 2002, of a pair of Backwoods Blues jean pants, waist 40/inseam 32. The re ceipt w as fou nd lying o n the ba ck seat b ehind th e driver s seat. An earlier sweep search of the grounds and improvements of Ms. White s apartment complex by police department trainees recovered a blue Wal-mart bag (located at an area behind a dumpster) that contained a pair of previou sly worn blue jeans and a pair of w hite gloves, both of which appeared to be stained with blood. Paper labels for Backwoods Blues jean pants, waist 40/inseam 32, were also contained in the bag. The detectives brought Ms. White to the processing bay to see if she could identify the bloody clothing. She identified the clothing as Appella nt s. The detectives then recalled that the jeans Appellant was wearin g at the p olice sta tion loo ked ne w, m ore or le ss right o ff the h anger. In response to these discoveries, the detectives returned to Appellant s interview room in the Hom icide Unit at about 8:55 p.m. on 4 December 2002 and asked him to show them the label on his jeans. According to Detectiv e Patton, A ppellant d id not react at all, stood up, and unbuckled his pants, revealing a sewed-in label that was consistent with the paper 10 labels contained in the Wal-m art bag recovered from the dumpster near M s. White s apartmen t. Detective Patton asked Appellant to give the police the jean pants he was wearing. The two detectives and a crime lab technician were present and the interview room door was open. Without a word, Appellant complied. After taking off his pants, Detective Patton noticed what appeared to be a smear of blood on one of Appellant s socks, and so asked Appellant for the rest of his clothing. In response, Appellant took off his clothes and laid them on the table. He was given a jum psuit and shoe cov ers to wear. At 9:15 p.m. o n 4 Dec ember 20 02, App ellant was a gain given a Miranda warning and he agreed to answ er ques tions. Thirty minutes into that questioning , Appellan t invoked h is right to remain silent and the interview ended.7 Appellant was not placed under arrest at that time. Instead, he was driven to his mother s house around 12:00 a.m. on 5 December by Detec tive Patt on and his partn er. The State s evidence at trial revealed the following additional facts: Appellant began dating Ms . White in ea rly 2001. The ir relationship in itially concluded approxim ately a year later beca use Ms . White felt that Appellant was not pulling his weight . . . financially. Ms. White dated other men after she and Appellant separated, including a Mr. Julian Brow n. In Novemb er of 2002, Appellant and Ms. White rekindled their relationship. A t that time, Ap pellant wo rked part-tim e at C & S Wholesalers, located in Aberd een, M aryland, and attended a vocational school part-time in an effort to earn a 7 Here again, the contents of this interview are not revealed in this record. 11 commercial truck-driving license. Ms. White planned to move into Appellant s house in mid-December of 200 2. Ove r the pre ceding Than ksgivin g wee kend, after borrowing Ms. White s cell phone, Appellant confronted Ms. White about telephone calls that she had made to Mr. Brown earlier that November. They discussed the matter, and, according to Ms. White , mov ed on. Appellant was close with M s. White s children, Ma rciana and M arc Ringo, Jr. Marciana and Marc, Jr. called Appellan t Daddy-m all and w ould run to greet him when they heard him at their front door. Appellant wo uld often stay overnight at M s. White s apartmen t, sometimes bringing his daughter, Brianna, with him. With Ms. White s permission, Appellant would take her children to doctors appointm ents, help Marcian a with her home work , attend P TA m eetings , and tran sport M arc, Jr. to f ootball p ractice. He continued to help with the parenting of Marciana and Marc, Jr. during the period of time when he and Ms. Ringo were not dating . Ms. Ringo listed Appellant as an emergency contact for Ma rciana at sch ool and did not remove his name from the list during the period when they wer e not da ting. Ms. White was sep arated from the children s father, Mr. Ring o, who w ould com e to Ms. White s apa rtment to take Marc , Jr. to daycare and take the children fo r visits with his fam ily. When Appellant would try to speak with Mr. Ringo, Mr. Ringo would not respond. On the night be fore the m urder of M arciana, A ppellant visite d Ms. White at her apartment. He was upset and told her that he had just learned that a good friend of his had 12 been murdered . Ms. Wh ite comforted him. Appellant stayed over that night and slept in Ms. White s bedroom while Marciana and Marc, Jr. slept beside them on a mattress on the floor. On 3 December 2 002, M s. White left f or work a t around 7 :10 a.m. A ppellant was still in bed at tha t time and the children were getting read y for school. W hen M s. White called home from work at approximately 7:35 a.m., Appellant told her that Marciana had left for school an d that he w as waiting for Mr. R ingo to pick up Ma rc, Jr. and take him to daycare. At 7:40 a.m., Mr. Ringo called to say that he was waiting outside for Marc, Jr. Appe llant sen t Marc , Jr. outsid e. At 11:00 a.m., when Appellant was supposedly at his place of work, he called Ms. White at her work to remind her to look into changing M arc, Jr. s daycare f acility in anticipation of their upcoming move to Appellant s house. According to bank records and a surveillance tape, at around 12:30 p.m., Appellant used his debit card to purchase the jeans that he was w earing w hen ques tioned at the H omicide U nit at a Wal-Mart store in Aberdeen, Maryland near his workplace. Appellant called Ms. White again at 12:43 p.m. to tell her that he had gon e to her apa rtment and mistakenly locked his keys inside. They agreed that he would meet her at her place of employment, Goucher College, to borrow her keys. He arrived a little after 2:00 p.m., wearing his work clo thes. After b orrowing her AT M card to get some money to pay for the cab, Appellant left with her keys. He returned within the hour to restore to Ms. White her keys. 13 Marciana, in fact, did not attend school that day. When Ms. White returned home from work around 4:45 p.m ., she found a message on her answering machine from Marciana s teacher to that effect. A neighbor called the police while Ms. White searched for her daughter. Ms. White then telephoned Appellant at school and told him that Marciana was missing. He replied, No way, no. Ms. White spoke to another neighbor, Constance Greene, who said that she had seen Marciana getting into Appellant s car that morning. Ms. White asked A ppellant ab out this and h e told her tha t Marciana had come home to get her homewo rk signed and that he dropped her off at school. At Ms. W hite s urging, Appellant agreed to leave the truck driving school and come to her apartment. Appellant, Ms. White, and Mr. Ringo spent that evening, as well as the following day, at the Missing Person s and Homicide Units of the Baltimore City Police Department, as outlined supra. DNA samples taken from the worn jeans in the Wal-mart bag recovered at Ms. White s apartment complex were found to match Appellant s DNA profile. Samples taken from blood stains on one of the gloves and the blood stains on the worn blue jeans f ound in the Wal-mart bag matched Marciana s DNA profile. Samples taken from stains on Appellant s hat and sock, which he had worn at the police station, matched Appellant s DNA profile, but not Marciana s profile. In addition, evidence confirmed that a co-worker of Appellant s caused A ppellant s work time card to be punched in around 8:00 a.m. on 3 December 2002. 14 On 5 December 2002, Ms. White received a letter in the mail postmarked the previous day, which sta ted: Tell Sta rks I wan t $5000. P ut in bag and put in men s bathroom at Druid Hill Park by 8 p.m. tomorrow or the girl dies. If she die, let just say we even. An eye for an eye. 8 Ms. White gave the letter to the police, who found Appellant s fingerprint on the letter and D NA m atching his prof ile in a sa liva sam ple take n from the env elope f lap. Marciana s bod y was discovered o n 12 Dec emb er 20 02 by two children walking home from school in a wooded area near the intersection of Joppa Farm Road and Haverhill Road in Harford County. Her frozen body was partially covered by snow. Forensic evidence indicated that she did not suffer instantaneous death. One of her han ds gripped leaf debris that was similar to the kind of debris surrounding her body. Cuts on her hands indicated defensive wounds. Marciana died from multiple cutting wounds, including a gaping wound to the neck, and a blunt force injury to the head that occurred after the infliction of the cutting wounds. Agents of the Federal Bureau of Investigation (FB I) arrested A ppellant in Birmingham, Alabama, on 24 December 2002 after tracking him to a hotel where he had registered under an assumed name. Additional facts, particula rly as relevant to the proceedings in the trial court implicated b y the issues raised in this appeal, will be supplied in our analysis of the issues. 8 Starks was a nickname for Mr. Ringo. 15 II. Section 2-401 of the Crimin al Law A rticle outlines the scope of our required review in capital case s. It provides, in p ertinent part: (a) In general. (1) After a death sentence is imposed and th e judgment becomes final, the Court of Appeals shall review the sentence on the record. (2) The C ourt of A ppeals sha ll consolidate an appeal from the verdict with the sentence review. *** (d) Conside ration by C ourt of Ap peals. (1) In addition to any error properly before the Cou rt on appea l, the Court o f Appe als shall consider the imposition of the death sentence. (2) With regard to the death sentence, the Court of Appea ls shall determine whe ther: (i) the imposition of the death sentence was influenced by passion, prejudice, or any other arbitrary factor; (ii) the eviden ce suppo rts the finding by the court or jury of a statutory aggravating circumstance under § 2-303(g) of this title; and (iii) the eviden ce suppo rts a finding by the court or jury that the aggravating circumstances outweigh the mitigating circumstances under § 2-303(h) and (i)(1) of this title. (3) In addition to its review und er any direct app eal, with regard to the death sente nce, the Co urt of Ap peals shall: (i) affirm the death sentence; (ii) set the death sentence aside and remand the case for a new sentencing proceeding und er § 2-303 of this title; or (iii) set the death sentence aside and remand the case for modification of the sentence to imprisonment for life. Md. Code (2002, 2005 Supp.), Criminal Law Article, § 2-401. III. A clear majority of the Court affirms Abeokuto s convictions. As required to be considered by § 2-401 o f the Crim inal Law Article in every death p enalty appeal, the Court, 16 by a majority conc urring, conc ludes, on this record, that the imposition o f the death penalty was not influenced by passion, prejudice, or other arbitrary factor. Because of an unusual divergence of views among the members of the Court regarding the sentencing issues, however, there is no ma jority view on all of those issues. That notwithstanding, the sentences shall be vacated and the case remanded to the trial court for a new sentencing proceeding. The divergence that gives rise to this result is as follo ws: (1) Ch ief Judge B ell, Judge Greene, a nd I wou ld vacate the sentences b ased on th e failed w aiver of the right to have a jury impose sentence, a view not shared by the other members of the Court; and (2) Chief Judge Bell, Judge Raker, and Judge Greene, for different reasons expressed in Judge Raker s concu rring an d dissen ting op inion, w ould reverse th e senten ce of d eath. Th us, a combined four members of the Court find some reversible error or another affecting the sentencing proceeding and a new one is required.9 As to the considered dicta expressed in this opinion, for the benefit of the trial court on remand, regarding certain of the other sentencing issues raised by Abeok uto, a major ity 9 The new sentencing proceeding, whether before a judge alone or a jury, may include consideratio n of the sen tence of d eath in accordance with the weighing of aggravating and mitigating circumstances by a preponderance of the evidence standard, see Evan s v. State, 389 Md. 45 6, 482-83 , 886 A.2d 562, 577 (2005); Oken v. S tate, 378 Md. 179, 253, 835 A.2d 1105, 1148 ( 2003) , cert. denied, 541 U.S. 1017, 124 S.Ct. 2084, 158 L.Ed.2d 632 (2004), and irrespective of Appellant s argu ment under Ring v. Arizona, 536 U.S. 584, 122 S.C t. 2428, 153 L.Ed.2d 556 (2002), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (200 0), as to the valid ity of the in dictme nt, see Evans, 389 Md. at 472-80, 886 A.2d at 571-76. 17 of the Court agrees with the analyses as to the increase in the sentence for the extortion conviction and the need to merge for sentencing purposes the convictions for kidnapping and child kidnapping. A. Guilt/Innocence Phase Issues 1. Waiver of Trial by Jury Appellant alleges that the record contains no support for the trial court s determination that he voluntarily or knowingly waived his right to trial by jury. This argument is based upon the trial court s failure to inquire expressly whether: Appellant had been coerced or threatened into waiving his right to a jury trial; anyone, including defense counsel or the prosecutor, had promised Appellant anything in exchange for his waiver; Appellant was under the influence of alcohol, drugs, or prescription medications that might imp act his ability to make a voluntary waiver; and, the state of Appellant s mental health at the time could h ave af fected his ability to make a know ing vol untary the waive r. Appellant elected on 1 6 Augu st 2004 to waive his right to a jury trial. The following preliminary co lloquy occurre d betwee n Appe llant, defense counsel, pro secutor, and court: DEFENSE COUN SEL: Stand u p, Mr. Abeok uto. Mr. Abeokuto, we have spoken about this on a number of occasions, that is, that you have the right to have this matter tried either before Judge B ollinger or a ju ry on the issue o f guilt or innocence. If you decide to pursue a jury trial, you would be faced with the selection an d you wou ld be invo lved in fact, I think you were involved to a certain extent earlier in the selection of twelve individuals selected from the voter and 18 motor rolls of Baltimore County. They would listen to the evidence that [the] Sta te presented , listen to any evidence that we might pres ent, and they would have to decide whether or not if you were gu ilty on any of these counts that you have been charged with. In making that decision, before they could convict you, find you guilty or not guilty, all twelve of th ose jurors w ould have to agree on th e verdict, othe rwise a hu ng jury wou ld result. A mistrial would be declared and the State would be free to prosecute you all over again before a different jury next time or the second time around. You want it in front of the Judge alone, a Court trial. Do you understand your right to have your matt er tried by a jury on the issue of guilty or innocence? DEFEND ANT: Yes. DEFENSE COUNSEL: All right. You can waive the right to be tried in front of a jury and have the Court listen to the evidence and decide whether the State had proven you guilty beyond a reasonab le doubt. If the Judge harbors any doubt based upon reason, then the Judge would be duty bound to find you not guilty. Do you un derstand th at? DEFEND ANT: Yes. DEFENSE COU NSEL : All right. Tell us what is your decision as to whether or not you want a Court trial or a jury trial on the issue of guilt or innocence? DEFE NDA NT: Co urt. DEFENSE COUN SEL: All right. Now, let me also add this, that it should be made clea r that regardless of whether you choose a Court trial or a jury trial on the issue of guilt or innocence, if, if you are fou nd not gu ilty you don t have to 19 worry about any further proceedings. If you are fou nd guilty, then the next stage quite possibly will involve another choice of jury or Judge. Do you un derstand th at? DEFEND ANT: Yes. DEFENSE COUN SEL: But no matter what you choo se here toda y, Court trial or jury trial, it does no t impact, if w e get to the next stage, on whether you want a Court trial or jury trial for that stage of these proceedings. You un derstand th at, correct? DEFE NDA NT: Co rrect. DEFENSE COUNSEL: So it is my understanding at this point you would w ant a Court trial and you would waive your right to a jury trial, is that correc t? DEFEND ANT: Yes. DEFENSE COUNSEL : Very good. Judge, should we also speak about the since it is a bifurcated proceeding so that the Jury Commissioner would have some sense as to [the] g uilt stage as well if we get to that, or do you want to wait until after COURT: Prepared to waive that now I think we have to wait until after, don t you? PROSEC UTOR: Y es. DEFENSE C OUNSEL: That s fine. COURT: Let me just say this to him so we dot our I s and cross our T s. You realize if you elected a jury trial the burden of proof would be that the State would have to show that jury unanimousl y, that means all together, all of them must agree 20 together, beyond a rea sona ble d oubt and to a m oral certa inty, that s the burd en of pro of they have , do you und erstand that? DEF END ANT : Yes. COURT: That s the same burden of proof that myself or some other Judge w ould have , but in the cas e of a jury that is the burden o f proof. D o you unde rstand that. DEFEN DAN T: Yes, sir. COURT: Do you have anything else open as to the election. PROSECUTOR: I just would like to clarify that the next stage, just so it is clear on the record, that in the event the Defendant is found guilty of a first degree murder count, the fact that the State is seeking the death penalty, that the next stage would be the sentencing stage, and the Defendant would not by electing a Court trial at this time, he still has an election to make as to a Judge or a jury to make the, to make the decision on whether the sentencing could be d eath, life with out parole or life sentence, and that by electing to go forward today, you are not impacting or you are not prejudicing your right to make that election at a later time. DEFENSE COUNSEL : Judge, I think we have covered that but that is fine. We all understand. Don t you, Mr. Abeokuto? DEFEND ANT: Yes. COURT: Do you have a ny questions o f [Defe nse Cou nsel] about that or me? DEFEN DAN T: No, sir. The court concluded on the record that Defendant has knowingly and voluntarily and intelligen tly waive d his righ t to a jury tria l on the is sue of guilt or in nocen ce. 21 A defenda nt may elect to w aive his or her right to a trial by jury and instead be tried by the court. 10 The right to trial by jury is guaranteed by the Sixth Amendment to the United States Constitution 11 and by Articles 5 (entitled to trial by jury), 21 (in all criminal prosecutions, every man has a right to trial by an impartial jury and may only be foun d guilty by unanimous consent of the jury), and 24 (due process) of the Maryland Declaration of Rights. To waive properly the constitutiona lly protected right to trial by jury, the defendant must elect to do so by a knowing and volunt ary waiv er electio n. Smith v. Sta te, 375 Md. 365, 377-80, 825 A.2d 1055, 1063 (2003). Md. Rule 4-246 effectively summarizes the protocol 10 We have stated before that there exist many, many instances where trial before the court is in the b est intere st of the accuse d. Martinez v. State, 309 Md. 124, 131 n.5, 522 A.2d 950, 953 n.5 (1987) (quoting State v. Zimmerman, 261 Md. 11, 19, 273 A.2d 156, 160 (1971 )). The defendant may want to waive a jury trial when he feels that a jury panel composed of members of the community will be prejudiced against his case. This may be especially true when the defen dant s allege d crime ha s received w ide publicity or is particularly gruesome. The defendant may also feel that a judge would be less apt than a jury to draw negative conclusions from the defendant s appearance or manner of speech. Or, he may merely prefer that th e arbiter of h is fate be one person trained in the law rather than twelve laymen. Id. (quotin g C. W hitebrea d, Criminal Procedure § 27.03, at 607 (19 86)). Being charged w ith the brutal murder of a small child might present a basis to make that election. 11 The Sixth Amendment provides, in relevant part, that [i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall ha ve bee n previ ously asc ertained by law . . . . 22 regarding jury trial waiver at the guilt/innocence phase of a criminal proceeding and provides, in p ertinent part: (a) Gener ally. In the circuit co urt a defendant having a right to trial by jury shall be tried by a jury unless the right is waived pursuant to sectio n (b) of this Ru le. If the waiver is accepted by the c ourt, the S tate m ay not elec t a tria l by jury. (b) Procedure for acceptance of waiver. 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 it determines, after an examination of the defendant on the record in open court conducted by the court, the State s Atto rney, the attorney for the defendant, or any combination thereof, that t he w aive r is m ade k now ingly and volu ntarily. Md. Rule 4-246(a)-(b) (20 04). 12 The trial court therefore is required to conduct an examination of the def endant, in o pen cour t, to determine whether the defen dant waiv ed voluntarily (with intention and witho ut duress or coercion) a nd know ingly his or her right to be tried by a jury. Md . Rule 4-24 6(b); State v. Hall, 321 Md. 178, 182-83, 582 A.2d 507, 509-10 (1990); Martinez v. State, 309 Md. 124, 133-34, 522 A.2d 950, 955 (1987) (citing Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970) and Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed . 1461, (193 8)); see also State v. Bell, 351 Md. 709, 720 A.2d 311 (1998) (holding that, for the waiver to be made knowin gly, the defendant must have some knowledge of the jury trial; full knowledge is not required). The defendant must directly respond to the court s examination because the 12 Section (c), regarding w ithdrawal of the defe ndant s waiver, is not at issue in this case. We apply Rule 4-246 as adopted at the time of the jury waiver election in 2004. 23 waiver must co me fro m the d efend ant. Martinez, 309 Md. at 133, 522 A.2d at 954 (Citation omitted). Although the examiner may be the court, the prosecutor, and/or the defense counsel, it is the trial court that bears the ultimate responsibility for ensuring that the accused has tendered a valid waiver. Martinez, 309 Md. at 133 n.9, 522 A.2d at 954 n.9. The questioner need not recite any fixed incantation. Hall, 321 Md. at 182, 582 A.2d at 509; Martinez, 309 Md. at 134, 522 A.2d at 955. The trial court must, however, satisfy itself that the waiver is not a product of duress or coercion and further that the defendant has some knowledge o f the jury trial right before being allowed to waive it. Hall, 321 Md. at 182-83, 582 A.2d at 509; Martinez, 309 Md. at 134, 522 A.2d at 955. Whether the waiver is valid depends upon the f acts and tota lity of the c ircums tances o f each case. Hall, 321 Md. at 182, 5 82 A.2 d at 509 . In Hall, supra, we concluded that, where no facts in the particular case suggested a propensity for an involuntary or unknowing waiver by the defendant, a trial court is not required to ask the defendant w hether he o r she unde rstood wh at he or she h ad been to ld about the jury trial process, or whether the election of a court trial was the result of any physical or mental dures s or coe rcion. Hall, 321 Md. at 183, 582 A.2d at 509-10.13 The 13 We stated in Hall: Considering the totality of the circumstances in the present case, see Dortch v. State [290 Md. 229, 325, 428 A.2d 1220 (1981)], we think that the trial judge could fairly find that Hall (contin ued...) 24 circumstances that we considered in that case included the following pertinent facts: (1) the defendant had signed a written waiver form prior to the in-court election to waive jury trial, which acknowledged that the defendant had a right to a jury, that unanimity of all 12 jurors was required for a guilty verdict, and that the app licable standard of guilt for both a jury trial and bench trial was gu ilty beyond a reaso nable dou bt; (2) the trial judg e, in open c ourt, (...continued) intentionally relinquished his know n right to a jury trial by his volunt ary act in w aiving th at right. *** While the court did not specifically ask Hall whether he understood what he had been told, or whether his election of a court trial was the result of any physical or mental duress or coercion, we think that the record before us demonstrates that the court could fairly be satisfied th at Hall had the req uisite knowledge of the jury trial right, that the waiver was volu ntary, and that the requirements of the rule were satisfied. Mo reover, the court was not required to advise Hall, as he conten ds, as to the details of the jury selection process. Hall, 321 M d. at 183 , 582 A .2d at 50 9-10. In Tibbs v. Sta te, 323 Md. 28, 32, 590 A.2d 550, 551 (1991), we concluded, however, that it was not sufficient that an accused merely respond affirmatively to a naked inquiry, either from his lawyer or the court, that he understood that he has a right to a jury trial, that he knows what a jury trial is, and w aives that right fre ely an d voluntarily [without more inquiry,] [n]otwithstanding that Tibbs may have had some prior unspecified experience with the criminal justice system . . . . The trial court in Tibbs should have inqu ired further. 25 engaged in a short colloquy stating the same and asked the defendant whether he wanted a jury trial or court trial; (3) the defen dant had w aived his right to jury trial on a prior occasion (during in-court plea negotiations); and (4) the defendant had been represented by counsel each time he had elected to waive his right to a jury trial. Hall, 321 Md. at 179-83, 590 A.2d at 509-10. Thus, the colloquy in Hall was sufficient and the waiver valid. In Dortch v. State, 290 Md. 229 , 428 A.2d 122 0 (1981), we he ld that the trial court did not commit error when it failed to inquire specifically whether the jury trial waivers by two defendants in separate cases were induced by promises or by physical or mental coercion. While noting that no facts existed supporting a finding of involuntariness as to the waivers election, we highlighted, in support of the trial court s finding of voluntariness, that one defendant, when prompted, explained to the court what he thought a jury trial to be and told the judge on three separate occasions that he did not w ant a jury trial. Dortch, 290 Md. at 233, 428 A.2d at 12 23. Even so, we ad vised judg es that it was a p referable p ractice to inquire about the volunt ariness o f the de fenda nt s wa iver elec tion. Dortch, 290 Md. at 236, 428 A.2d at 1224. In Martinez, supra, we found that the transcript of the waiver h earing did not suppo rt the court s finding that the defen dant waiv ed volunta rily his right to a jury trial. Martinez, 309 Md. at 134-35, 522 A.2d at 955. The relevant portion of the waiver hearing transcript revealed that the defendant was taking Lithium, a medicine prescribed to treat schizophrenia, paranoia, and possibly other psychiatric or psychological conditions; th e defend ant did not 26 feel that he was presently suffering from any physical illness; and stated that he understood that he was e ntitled to a jury trial. Martinez, 309 Md. at 127-28, 522 A.2d at 951-52. When asked by the court, Are you voluntarily waiving that right [to a jury trial]?, the defendant replied, I am a little bit ne rvous. Martinez, 309 Md. at 128, 522 A.2d at 952. After further questions about w hether the defendant understood the jury selection process and guilt beyond a reasonable doubt standard, the trial judge asked, Has any person, either inside or outside of this courthouse, made you any promise, or has anyone threatened you in any way in order to have you giv e up your righ t to a jury trial? . Martinez, 309 Md. at 129, 522 A.2d at 952. The defendant answ ered, Y es. Id. The trial cou rt accepted th e jury waiver. W e found th is last question particularly relevant, concluding that the record did not disclose a knowle dgeable and voluntary waiver o f a jury trial, and ord ered a n ew trial. Martinez, 309 Md. at 135-36, 522 A.2d at 955-56 ( It is one thing to say that a trial court need not recite a specific litany relating to the voluntariness of an election. But it is quite another thing to say that, if the court decides to ask such a question, it is free to ignore the answ er. ). We conclude, after considering the totality of the circumstances, that the record in the present case demonstrates a knowing and voluntary waiver of Appellant s right to a jury trial. Defense counsel and the trial court asked Appellant a total of seven times whether he understood the vario us byte-s ize, if you will, explanations given of his rights and jury trial process. They and the prosecutor also discussed with Appellant the jury trial process, standard of guilt, burden of proof, the neces sity of a unanim ous guilty verd ict, and that, if 27 convicted, Appellan t would h ave a later op portunity to cho ose whe ther to waiv e his right to a senten cing by ju ry. Appe llant wa s repres ented b y counse l, who, prior to the 16 August 2004 hearing, ha d discussed with Ap pellant the de cision wh ether to elect a court or jury trial. Finally, Appe llant affirme d that he w anted a co urt trial. As we stated in Hall, the trial court is not required to engage in a fixed litany or boilerplate colloquy with a defendant. No facts from the record demonstrate that the court had reason to ask Appellant whether he had been coerced o r threatened to waive h is right to a jury trial or wheth er anyone, including defense counsel or the prosecutor, promised Appellant anything in exchange fo r his waiver. Therefore, questions directed to those areas were not required in this case. The court, after viewing the behavior of Appellant and defense counsel (who clearly advised Appellant to waive his right to a jury trial), did not believe, we assume, that defense counsel was forcing Appellant, by coercion or otherwise, to elect a bench trial. While the trial court w as aware that Appellant may have been taking a prescription medication and that A ppellant s m ental health h ad been a n issue earlier in the proceedings, the court s failure to ask anew about these particular facts during the colloquy was not error at that point in the proceedings when the jury trial waiver was given. We look at the record in its entirety. On 22 June 2004, the trial court commenced a competency inquiry as to Appellant s ability to stand trial. The court heard testimony from several medical experts, including a psychiatrist, Dr. Dean A. Inouye, a State s witness, who conducted a psychiatric- 28 forensic evalua tion to d etermin e App ellant s c ompe tency to sta nd trial. On cross- examination by defense counsel, Dr. Ino uye stated that he le arned th at Dr. C olema n, a clinical psychiatrist at the Baltimore County Detention Center where Appellant resided, had prescribed for Appellan t the anti-psycho tic medicatio n Geod on some time after 20 April 2004 ( the date Dr. Ino uye exam ined A ppellan t). The following cross-examination of Dr. Inouye by defense counsel occurred regarding the Geodon prescription: DEFENSE COUNSEL: Okay. Now, can you inform the Court what Geodon is? DR. INOUY E: Geodon is a medic ation that w as originally marketed as medication to treat psychotic symptoms. DEFEN SE C OU NSE L: O kay. DR. INOUY E: It has also be en found helpful to treat symptoms of bi-polar disorder. DEFENSE COU NSEL : In your discus sions with Dr. Colman, the Geodon was prescribed for psychotic symptoms? DR. IN OUY E: For this d iagnosis of Psychotic Disorder, N[ot] O[the rwise] S [pecif ied]. DEFEN SE C OU NSE L: O kay. DR . INO UY E: N ot otherw ise sp ecif ied. I m so rry. DEFENSE COUNSEL : Okay. Does Geodon have possible side effects? DR. INOU YE: It does have possible side effects. 29 DEFENSE COUNSEL : Okay. So, a doctor prescribing that would have to be, take some care in terms of prescribing it? You do n t do it like you w ould say, take tw o Tylenol? DR. IN OUY E: Abso lutely not. DEFENSE COUNSEL : Okay. Were you aware of any other prescriptions, any other medications that were prescribed? DR. INOUYE: I don t recall. Not at that time. DEFENSE COUNSEL : Okay. Did Dr. Coleman say anything about starting him on Prozac? DR. INOU YE: I do n t recall that h e was taking Prozac at the time. DEFENSE COUNSEL : Okay. Did Dr. Coleman speak to you about attempting to try Heladol with Mr. Abeokuto? DR. INOUYE: No. Heladol would have been a medication with far m ore s ide e ffec ts. Po tenti al sid e eff ects. I m sorry. *** DEFENSE COUNSE L: Okay. Did you follow up with Dr. Coleman with regard to Mr. Abeokuto s progress while taking the Geodon? DR. IN OUY E: No, I did not. DEFEN SE C OU NSE L: O kay. DR. INOUYE: evaluation? You mean, after the completion of our DEFENSE COUNSEL : Like a week later? Or how long would it take for Goedon to make a difference? 30 DR. INOUYE: It s a m edication tha t doesn t w ork overn ight. If its effective it works very gradually. It is not a high potency anti-psychotic medication. And the response to the drug probably wouldn t be seen for a few days. Depending on whether or not you know, there were true symptom s that wou ld respond to the medication. Whether he could keep Mr. Abeok uto on the m edicatio n. That is [sic] did not have side effects that would have caused him to stop the medication presuming the medication dose was sufficiently high . It would ordinarily take several days. I mean, again, the medication works very gradually as I said. If a person were truly psych otic a clinician and the patient himself might see improvement over time. Even over weeks. *** Whether its an anti-psychotic medicine or a [sic] anti-high blood pressure medicine . You ha ve to prescribe it and then mon itor it to see if there is a beneficial response. And to make sure the benefit outweighs what other risks may be potential for that medicine. Dr. Colema n was no t called to testify by eithe r side. On 16 Augu st 2004, the court concluded the competency hearing after a brief examina tion by defen se counse l of Dr. D avid Waltos, a psychiatrist associated with the Circuit Court s staff. He testified that after a 15 or 20 minu te screening interview o f Appe llant, that he got a sense that there was an issue concerning a possible dissociative disorder, but could not reach a conclusion in the brief time that he spent with Appellant. A t the conclusion of this testimon y, the court found Appellant competent to stand trial based upon the testimony presented on 22 June 2004 and 16 August 2004 and reports submitted regarding Appellant s medical diagnoses, screening, and 31 medication prescribed. Appellant does not here question directly the outcome of the competency proceeding. Literally a minute after finding A ppellant competent to stand trial, the trial court conducted the jury trial election/waiver inquiry. The short time period between when the trial court finished hearing and considering testimony and other evidence regard ing Appellant s mental health and medication treatment and Appellant s election to waive a jury trial suggests that the c ourt rem ained a ware, f or the ju ry trial waiv er proc eeding s, of what it learned of Appellant s mental status and medication and that the two de cisions we re virtually contemp oraneou sly considered. The ground plowed at the competency hearing, therefore, need not be replowed at the jury trial waiver proceeding. These same circumstances, however, serve also to differentiate Appellant s valid jury trial waiver f rom wh at we sha ll later determine to be his invalid jury sentencing waiver, discussed infra at Section III(B)(1) of this opinion . We also d istinguish the p resent case f rom the fa cts in Martinez because here the trial judge did not ignore an af firmative answer to a question aimed at coercion and duress. Nor does the record reveal evidence of outward symptoms or reluctance on Appellant s part when waiving his jury trial right. Therefore, we hold that the trial court did not err in determining that Appellant s waiver of his right to trial by jury for the guilt/inn ocen ce ph ase w as kn owing and volun tary. 2. Evidence of Post-Miranda Silence Admitted at Trial 32 Appellant argues that the trial court committed reversible error in admitting testimony at trial by a Special Agent of the FBI who informed the court that Appellant was read Miranda warnings and chose to remain silent when arrested in Alabama on 24 December 2002.14 This testimony also was incorporated by reference into the sentencing proceeding. The testimony consisted of the following: Q: After the Defendant was placed in custody, then what happened to him? A: He w as it was ear ly in the morning of the 24th, he was transported to the Jefferson County jail and the next morning he was transported to the District C ourt to go b efore the m agistrate on his initial appearance. Q: And w ho transpo rted him to g o before th e magistrate for his initial appearance? A: Transporting agents were myself, Special Agent Ralph Phillips and we were joined at the courthouse by supervisory Special Agent Jimmy Brown. Q: All right. And did there come a time that the Defendant was advised of his rights? A: Yes, he was advised of his rights by supervisory Special Agent Jimmy Brown. After explaining the rights to the Defendant, the Defendant did not wish to speak. Q: Where did the advice of rights take place? 14 As we recently stated in Weitzel v. Sta te, 384 Md. 451, 456, 863 A.2d 999, 1001-02 (2004) and Kosh v. S tate, 382 Md. 218, 227, 854 A.2d 1259, 1264 (2004), evidence of a defen dant s p ost-arre st silence is inadm issible as substan tive evid ence o f his gu ilt. 33 A: Took place inside of a government vehicle. Q: Oka y. Subsequently did the Defendant make an y statements without b eing asked questions b y you all? A: Correct. Shortly after being advised of his rights and indicating that he did n ot wish to waive those rights, a few momen ts passed, maybe a minute, before the Defendant asked the question of us, what, what this was all about, in his words. Q: Did anyone respond to his question? A: Yes. Supervisory Special Agent Brown indicated to the Defendant that he was unde r arrest for mailing threatening extortion communications and that there was also wanted posters from the State regarding his alleged involveme nt in kidnapping and murder. Q: And did he eve r have a res ponse to b eing advise d of that? A: His respo nse was th at, yes, he d heard something about a kidnapping but not murder. Mr. Brown, Supervisory Special Agent Brown then again asked the Defe ndant if he wanted to waive his rights regarding speaking to the agents and again the Defendant said no, he did not wish to waive those rights. Supervisory Special A gent Brown informed him that on ly questions we would be asking of him from that point on w ere just personal identifiers, name, date of birth and such. The State argues that this claim is not preserved because no objection was made to any of the Special Agent s testimony. Appellant requests that we review this claim, despite the 34 lack of objection at either trial or sentencing,15 under the plain error standard. We decline to do so. Our review of this eviden tiary issue is a discretionary decision. Ordinarily, the appellate court will no t decide any [iss ue not pres ented to the trial court] unle ss it plainly appears by the record to have been raised in or de cided b y the trial co urt . . . . Md. Rule 8131(a) (2004); see also Conyer s v. State, 354 Md. 132, 149-51, 729 A.2d 910, 918-19 (1999); Walker v. S tate, 338 Md. 253 , 262, 658 A.2d 2 39, 243 (1995); State v. Bell, 334 Md. 178, 187, 638 A.2d 107, 112 (1994); Md. Rule 4-323(a) (2004) ( An objection to the admission of evidence shall be made at the time the e vidence is offered or as soon thereafter as the grounds for objection become apparent. Otherwise, the objection is waived. ); Leuschner v. State, 41 Md.App. 423, 436, 397 A.2d 622, 630 (1979) (holding that [i]t is axiomatic that to preserve an issue for appeal some objection must be made or a party will be deemed to have waived an objection ). Although some of our pre vious dea th penalty cases may have suggested that we will be less strict about the failure to properly preserve issues for review, we reiterated in Conyer s v. State that despite the special character of a capital case, the tried and tested rules of evidence and procedure still apply. 354 Md. at 150, 729 A.2d at 919 (quoting Bruce v. S tate, 328 Md. 59 4, 611, 616 A.2d 392, 400 (1992 )). In 15 This sam e defect af flicts several o f Appe llant s other ap pellate issues, to wit questions presented nu mbers (9), (10), and (11). 35 Conyers, we explained the rea sons wh y we ordina rily do not exerc ise the discretio n to address and decide unpreserved issues: The rules for pre servation o f issues hav e a salutary purpose of preventing unfairnes s and requ iring that all issues be raised in and decided by the trial court, and these rules must be followed in all cases including capital cases. The few cases where we have exercised o ur discretion to review unpreserved issues are cases where prejudicial error was found and the fa ilure to preserv e the issu e was n ot a ma tter of tria l tactics. *** Counsel should not rely on this Court, or any reviewing court, to do their thinking for them after the fact. Furthermore, we have stated that even in a d eath pena lty case, with the potential finality of its outcome, litigation cannot continue ad infinitum through counsel withholding issues or framing the questions differe ntly each t ime. Conyers, 354 M d. at 150 -51, 72 9 A.2d at 919- 20 (Inte rnal citati on om itted). We will review the unpreserved claim only where the unobjected to error can be characterized as compelling, extraordinary, exceptional, or fundamental to assure the defendant a fair trial by applying the plain err or stand ard. Richm ond v. State, 330 Md. 223, 236, 623 A.2d 630, 636 (199 3) (Citations omitted); Rubin v. S tate, 325 Md. 552, 588-89, 602 A.2d 677, 694 (1992). We decline to apply the plain error standard in the present case because the claim is neither compelling nor extraor dinary. The trial ju dge prop erly sat as the trier of fact. The testimony of the Special Agent at issue likely did not effect the court s finding of guilt in light of the overwh elming evidence e stablishing Appellant s guilt, thus the unobjected-to error was not fundamental to assur e App ellant a f air trial. Defense counsel 36 may have elected not to object as a tactica l decisio n. It would n ot be wise for this Co urt to review the unpres erved claim in the conte xt of the record of the direct appeal where that possibility goes unexplored. Thus, Appellant s failure to object to the agent s testimony preclud es our re view o f this co ntention . 3. Denial of Requests for Continuance Appellant argues for reversible error in that the lower court den ied requests for a continuance of the trial and sentencing by his then defense counse l, Warren Brow n, Esq. Mr. Brown asserted that he would not be prepared for the trial or sentencing without the continuance. Initially, an assistant public defender represented App ellant with regard to the charges. In Marc h 2004, the public defender and Appellant s mother informed the trial court that Appellant planned to engage Mr. Brown as privately-retained counsel to r epresent him at trial and that Mr. Brown required a continuance of trial, which was then scheduled to begin on 6 April 2004. A t a hearing on 5 A pril 2004, the court noted that M r. Brown had not entered his appearance yet, but, nonetheless he had been made aware of the scheduled hearing and trial dates . Upon in quiry, Appell ant stated that he w anted to pro ceed with his assigned public defender as counsel. The trial date was re-set to 23 A ugust 200 4 to accom moda te the co nduct o f the co mpete ncy proc eeding . On 16 July 2004, Mr. Brown entered his appearance in the case and the Pu blic Defender s Office filed a motion to strike that office s appearance. 37 The matter was considered by the trial judge at a hearing on 6 August 2004. Mr. Brown requested a postponement of the trial because he now expressed the desire to retain his own defense experts to exam ine the b lood an d soil sam ples. In response, the State told th e court that it had supplied the releva nt discover y to the Public D efender s Office p reviously and that it initiated no challen ge to the forensics at the su ppression h earings. In ad dition, the State noted that Mr. Brown had represented Appellant in related matters before the federal district court for months prior to enterin g his appearance in the present case. The trial judge referred the matter to the Circuit Administrative Judge, who denied the request stating, I am not satisfied that the r easons at this po int in time two w eeks pr ior to trial a re satisfa ctory. The decision whether to grant a request for continuance is committed to the sound discretion of the c ourt. Ware v. S tate, 360 Md. 650, 706, 759 A.2d 764, 794 (2000). We conclude that the cou rt s decision to deny Appellant s request for continuance was not an abuse of discretion. Over f ive months elapsed betwe en the announc ement of Brow n s involvement in Appellant s defense (although he did not enter his appearance formally until 16 July) and the commencement of trial on 23 August 2004. During that time, whether formally represented by the Public Defender s Office or Mr. Brown, Appellant did not take issue with the State s potential forensic evidenc e, for which full discovery had been provided, until two weeks prior to the scheduled commencement of trial. Moreover, Appellant (and Mr. Brown) received the benefit for trial preparation purposes of the continuance of the trial date from 6 April to 23 Aug ust to accommodate the competency 38 inqu iry. We therefore find a reasonable basis for the lower court s decision to deny the reques t. We likewise find no abuse of discretion in the trial court s denial of Ap pellant s request for continu ance of se ntencing. T he trial court se t the date of sentencing with the assistance of the prosecutor and defense counsel, Mr. Brown. Mr. Brown filed a Motion for Continuance with the court around 4 November (nine days before the sentencing hearing) because he found it difficult to focus the necessary attention on the case with its troubling facts and because the witnesses who had worked with the public defender to develop evidence of mitigating circumstances were not prepared for the hearing as a result of a miscommunication by Mr. Brown. The trial court, in its order denying the request, stated: This case has a long and troubled history. The indictment was brought fourth by the Grand Jury of H arford County and the case was transferred to Baltimore County and assigned to the Honora ble J. Norris Byrnes. Months went in to the preparation for trial, and Judge Byrnes was struck with an illness prior to trial, necessitating a transfer of the case to th is Court. This Court has had numerous hearings and an attempted trial through jury selection; there have be en hearings on the competency of the D efend ant. Finally, in August, 2004 a court trial w as co nclu ded and the D efen dant fou nd guilty. The dates that were set aside for the sentencing hearing, November 15, 16 and 17, 2004, have been cleared by this C ourt, the various witnesses and the Assignment Office and will not be postponed. We conclude that the court did not abuse its discretion because sound reasons existed for the decisio n. 39 The reasons offered by Appellant for the continuance of trial and sentencing, as he concedes, boil dow n to absen ce of prep aration. W e reiterate wh at we stated in Ware, [i]f Appellant is raising an ineffective assistance of counsel claim, it is more pro perly raised in post-co nviction procee dings. See Perr y v. State, 344 Md. 204, 227-28, 686 A.2d 274, 285 (1996 ). Ware, 360 Md. at 706, 759 A.2d at 793-94 . The prim ary reason fo r this rule is that, ordinarily, the trial record d oes not illum inate the basis for the challenged acts or omissions of couns el. In re Parris W., 363 Md. 717, 726, 770 A.2d 202, 207 (2001) (citing Johnson v. State, 292 Md. 405, 434-35, 439 A.2d 542, 559 (1982)). We shall not disturb the exercise of the trial cou rt s discretion o n this record in the direct ap peal. 4. Admissio n of Appe llant s Statem ents at the H omicide U nit Appellant contends that the trial court committed error when it denied his motion to suppress all of the statements that he gave to police at the Homicide Unit between 3:42 a.m. and 5:10 a.m. on 4 December 2002, which were obtained without giving Appellant a Miranda warning, in violation of his Fifth Amendment right against self-incrimination. Appellant cites the following circumstances as evidence that Appellant was in custody at the time of his questioning by police and so should have been issued a Miranda warning: it was the fourth time that he had been questioned in connection with Marciana s disappearance; he was isolated from M arciana s family and neighbor who were also questioned by the detectives; he was questioned in a station house; he had been in a small locked room at the 40 Missing Persons Unit for two and one-half hours before being transported by police car to the Homicid e Unit; polic e made h im wait thre e hours at th e Hom icide Unit until they questioned him; the record is unclear whether he offered to go to the Homicide Unit; and that, because the detectives told Appellant that there were inconsistencies in his statements, that he was being questioned as a suspec t and, as a result, a reasonable person in A ppellant s posi tion wou ld ha ve co nsid ered himself to be in cu stod y. The law presu mes that, ab sent an app ropriate rights warning, statements made during a custodial interrogation are made involuntarily and so are in violation of a defendant s right against self-incrimin ation. There fore, whe n a person is held in custody, police are required to issue the so-called Miranda warning preceding the interrog ation. Miranda v. Arizona, 384 U.S. 436, 478 , 86 S.Ct. 16 02, 1630 , 16 L.Ed.2 d 694, 72 6 (1966) ( Any stateme nt given fre ely and voluntarily without any compelling influence is, of course , admissible in evidence. The fundamental import of th e privilege w hile an indiv idual is in custo dy is not whe ther he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrog ated. ). To determine whether Appellant was in custody when he was questioned by detectives at the Homicide Unit between 3:42 and 5:10 a.m. on 4 December 2002, the applicable standard is whether there was a formal arrest or restraint on freedom of movement of the deg ree asso ciated w ith a for mal arre st. State v. Rucker, 374 M d. 199, 209-210, 821 A.2d 439, 445 (2003) (cit ing California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275, 1279 (1983)). We apply this standard by considering the 41 circumstances surrounding the interrog ation. Beheler, 463 U.S. at 1125, 103 S.Ct. at 3520, 77 L.Ed.2d at 1279. As we said in Whitfield v. State, some actual indication of custody must exist, such that a reasonab le person w ould feel h e was no t free to leave and break off police questio ning. 287 Md. 124, 141, 411 A.2d 415, 425 (1 980) (Citatio n omitted); see also Rucker, 374 Md. at 209; 821 A.2d at 445.16 After considering the circumstances surrounding Appellant s interrogation at the Homicide Unit, we hold that, while some circumstances hint at restraint or coercive elements, we are not prepared to conclude that they rise to the level that a reasonable person would feel that he or she were under arrest or his or her freedom of movement restrained to the degree associated with a formal arrest. That the questioning occurred in a police station is not determinative of whe ther a custod ial interrogation occurred. In Oregon v. Mathiason, the U.S. Supreme Court held there was no custody and no deprivation of freedom when the defendant, a burglary suspect, came voluntarily to the police station at the request of the police, was told that he was not under arrest, although a suspect, and was permitted to leave at the end of the half-hour interview because the defendant was not deprived of his freedom 16 In Whitfield, we conc luded that th e defend ant was in custody at the tim e of the interrogations at issue in that case. We considered there the following circumstances not found in the presen t case: defendant was interrogated in the isolation wing of the police station so as to be alone with his interrogators; he was the only inmate questioned; he was immedia tely confron ted with law enforcem ent s know ledge of h is guilt in order to shock the needed information from him; he w as only perm itted to leave th e police station so that he could assist in retrieving the weapon; and, he was detained once he com plied. Whitfield, 287 Md. 124, 141 -42, 411 A.2d 4 15, 426 (1980). 42 of action in any signif icant w ay. 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714, 719 (1977) (per curiam). The Court stated that a non-custodial interrogation is not converted merely because the questioning took place in a coercive environment. Id. Any interview of one suspected of a crime by a police officer will have coercive aspects to it, sim ply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned pe rson is one whom the polic e suspe ct. Miranda warnings are required only where there has been such a restriction on a person s freedom as to render him in custody. Id. In the present case, at no time during the questioning was Appellant arrested, nor do we believe that a reasonable person would be led to believe to the contrary. He was told that he may become a suspect. Although detectives m ade him aware of the inconsis tencies in his statements and, in fact, obtained an admission from him to a lie about the time he left his workplace on the afternoon of 3 December, the record of the questioning reveals no coercion of the type the federal or Maryland constitutions prohibit. Nor does the record show that Appellant was coerced into being interviewed four times prior to his first interview at the Homicide Unit. Nor was he coerced into staying at the Missing Persons and Homicide Units 43 for a total of 11 hours before the questioning at issue took place.17 We find no indication from the circumstances of the interrogation that a reasonable person would not think that he or she cou ld break off the police q uestion ing and leave f reely. Appellant agreed to go to the Missing Persons Unit. He agreed to answer police questions, and did so, as detectives testified, cooperatively. When answering questions at the first interview at the Homicide Unit, he did so cooperatively. He agreed to wait in the interview room, the door of which stood open throughout Appellant s time there. Appellant was taken to his mother s home the evening of 4 Decem ber 2002 after h e terminated further questioning. We conclude that Appellant was not in custody or otherwise deprived of his freedom of action in any significant way during the relevant questioning by police bef ore his arrest. We hold that the trial court committed no error in admitting Appellant s statements given without a prior Miranda warning. 5. Admission of Appellant s Clothing Appellant argues that the trial court erred when it denied his motion to suppress the clothes obtained from him at the Homicide Unit, contending that he did not consent to the 17 Detectives offered Appellant pizza and soda (the record indicates he ate one slice and drank a soda), and, as police safety procedure provide, escorted him to the restroom when he wished to use it. The record does not d isclose that the statements w ere elicited involuntarily from A ppellant by use of physical ac tions emplo yed by the police o r their metho ds of in terroga tion. 44 seizure. The State responds that Appellant voluntarily gave police the clothes, and, even if it were found that he did not, that the detectives properly effected a warrantless seizure due to the risk that any evidence of blood or other matter could be destroyed or removed. We conclude that Appellant consented to the search and seizure. It is well settled that a warrantless search is pe r se unreaso nable, subje ct only to a few specifically established a nd well-d elineated ex ceptions, on e of wh ich is a search conducted pursuant to cons ent. Schneck loth v. Busta monte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-44, 36 L.Ed.2d 854, 858 (1973) (Citations omitted). When the State argues that a search was conducted pursuant to consent, it has the burden of proving that the consent, in fact, was given freely an d volun tarily. Schneck loth, 412 U.S. at 222, 93 S.Ct. at 2045, 36 L.Ed.2d at 859. To determine whether the State met that burden, we consider the totality of the circumstances. Schneck loth, 412 U.S. at 227, 93 S.Ct. at 2048, 36 L.Ed.2d at 862-63; Brown v. State, 378 Md. 355 , 362, 835 A.2d 1 208, 1211 (200 3). Based upon our review of the totality of the circumstances surrounding the search and seizure of the clothes at the Homicide Unit, we conclude that the State satisfied its burden to prove that Ap pellant c onsen ted to the detectiv es requ est for th e clothe s. For the reasons stated in Sectio n III(A )(4), supra, we determ ine that Ap pellant wa s not in custody at the time police obtained the clothing. In addition, the record exposes no evidence of coercion or force on the d etective s part in obtainin g the clo thing. 45 The detectives present in the interview room testified at the suppression hearing that Appellant allowed them to view the sewed-on label on his jeans and gave them the clothing by placin g it on th e table. Detective Patton stated that, after reviewing the blue jean paper labels recovered from the blue Wal-mart bag, he visited Appellant in the interview room to examine his jeans to determin e their brand and size an d observe whether other foren sic evidence was on the jeans. Detective Patton, Detective Jones, and a crime lab technician went to the room where Appellant was waiting and asked [Appellant] could we see his labels on his pants. When asked what Appellant s reaction was to this question, Detective Patton replied, Sir, he didn t react at all. He stood up and unb uckled a nd lowe red his pants. The police took photographs of the tags. Observing that the brand and size of the jean pants matched the labels found in the Wal-Mart bag, Detective Patton then asked [Appe llant] to give us his clothing. As Appellant took off the jeans, Detective Patton noticed what appeared to be a smeared blood stain on a sock, and then asked for the remaining clothing. In response, Appellant took off his clothing and laid them on the table in front of him. Detective Jones testimony was consistent with Detective Patton s testimony regarding the seizu re of the clothing . The clothing requests occurred after Appellant s initial questioning (3:42 a.m. to 5:10 a.m .) and the subsequent polygraph test, when Appellant first was given a Miranda warnin g. After the clothing recovery, the detectives asked Appellant if he wou ld talk to them again and, after issuing Appellant an other Miranda warning, spoke 46 with him for an other thirty minutes before Appellan t terminated th e interview . Appellan t, by his conduct, consented to the search and seizure of his clothing. 6. Admission of Fruits of the Car Search Appellant perceives reversible error in the trial court s admission of the fruits of the search of Appellant s car because the warrant for the search was not supported by probable cause. Police sought the warrant to search Appellant s car after Detective Rabbit, of the Missing Person s Unit, q uestioned Appellant. Detective Rabbit offered the following avermen ts in the affid avit in suppo rt of the searc h warran t: On December 3, 2002 your affiant received a call for a missing person from O fficer Petryseak [sic], 4C21. The missing child is identified as Marciano [sic] Mon ia [sic] Ringo (F/B/8 date of birth 5/2/1994). Yo ur affiant s investigation under Baltimore Police Department Central Complain Number 024L01748, revealed that Marciano Monia Ringo was last seen in front of her school, which is located at 5201 Loch Raven Boulevard at 0735 hours (07:35 a.m.) this date. The missing child s mother, Milagro W ight [sic] (F/B/5/1977) advised that Jamal [sic] Abeaku to [sic] (M/B/12/1979) last saw the child, who left her apartment building to walk to school, Northwood Elementary School 5201 L och Raven B oulevard. Milagro Wight advised that she contacted the school principal, who advised that Marciano Monia Ringo did not attend school on this date. Your affiant was advised by Officer Petryseak that he spoke with the missing child s father, Marc Ringo. He advised Officer Petryseak that he went to 5300 Leith Road Apartm ent C to pick his son up and while at the location he asked Jamal Abeaku to about the location of Marciano Monia Ringo. Marc 47 Ringo advised tha t Jamal Ab eakuto told him tha t she walk ed to school. Jamal Abeaku to advised Officer Petryseak that the child walked to school at 0735 hours and returned home at 0740 hours to get her hom ework signed . Jamal Ab eakuto stated that he signed the homework and noticed that there was a note on the page concern ing a filed trip to Port Disc overy. Jamal Abeaku to stated that he drove Marciano Monia Ringo in his car back to Northwoo d Elementary School and dropped her off in front of the s chool b y the fron t doors. Jamal Ab eakuto advised that there was a yellow school bus with children and teachers around them. Jamal Ab eakuto advised tha t he did not see Marciano Monia Ringo enter the school because he drove through the alley in the odd side of the 5200 block of Loch Raven Boulevard. Milagro Wight advised that when she spoke to the school principal, she was a dvised that Marciano Monia Ringo was not scheduled to go on a field trip today but rather on December 4, 2002. The apartment building and surrounding areas were canvassed for Marciano Monia Ringo; however, she could not be located. Marciano Monia Ringo was last seen wearing a pink Barbie fur coat, a white shirt, blue jeans and white and blue tennis shoes. Police thereafter executed the warrant and searched the car, recovering several items that were later introduced in evidence at trial and sentencing, including the gun, which was introduced in the sentencing phase and the Wal-mart receipt, which was introduced in the State s c ase-in-c hief at tri al. 48 Appellant argues that the only support for the issuance of the search warrant was the fact that Appellant was the last person to have seen Marciana and that the situation presented by the averments in the affidavits an ordinary, everyday scenario -- not suspicious circumstances that would constitute probable cause to search Appellant s vehicle. Although Appellant did not attack the warrant at the suppression hea ring, the suppre ssion co urt, sua sponte, found that the judge who issued the warrant had plenty of probable cause to issue this warrant. The State argues the issue was not preserved, contending that the validity of the search warrant was not presented to the suppression cou rt by Appellant. Even if the issue w ere preserved, the State argues that the affidavit supported the issuing court s finding of proba ble cause. We conclude that the issue was preserve d for appellant review , despite Appellant s failure to object at the suppression hearing, because the trial court m ade a find ing, albeit gratuitously so, that the judge who issued the warrant had plenty of probable cause. Based upon the averments submitted by Detective Rabbit in the affidavit, we determine that the issuing judge had probable cause to issue the warrant to search Appellant s car. The applicable standard o f review o f a probab le cause determination is: so long a s the magis trate had a substantial basis for [] concluding that a search would uncover evidence of wrongdoing, the Fourth Amendment [of the U.S. Constitution] requires no more. Potts v. State, 300 Md. 567, 571, 479 A.2d 1335, 1337-38 (1984) (Internal quotations and citations 49 omitted). The find ing of pro bable cau se must ord inarily be shown w ithin the four corners of the aff idavit su pportin g it. Valdez v. S tate, 300 Md. 160, 168, 476 A.2d 1162, 1166 (1984). The affidavit supporting the warrant to search Appellant s car indicated that the last place Marciana had been seen was in Appellant s car and that Appellant had dropped Marciana off at school. The affidavit also indicated that Marciana did not attend school that day. The affidavit notes another inconsistency in Appellant s statements that raised suspicion: Appellant had told the detective tha t he had see n a note fo r a field trip scheduled to take place that day (3 December 2002), but Ms. White told the detective that the school principal had told her that the field trip was scheduled for 4 D ecember. We therefore conclude that the suppression court committed no error by admitting the fruits of the car search. B. Sentencing Phase Issues 1. Waiver of Jury at Sentencing Appellant contends that the recor d fails to establish a knowing and voluntary waiver of jury sentencing. The circumstances pointed to by Appellant in support of his argument are: the lack of questioning for the purpose of assuring the court of the absence of threats, promises, or inducements; the lack of questioning as to Appellant s mental health; defense counsel s urging of a court trial, rather than a jury trial; and Appellant s poor mental state at 50 the time of the sentencing waiver colloquy because it occurred immediately after the court s finding of Appellant s guilt. Appellant also argues that the court s description o f jury deliberation in a sentencing proceeding as incomplete, confusing, and inaccurate to a point where it could have induced Appellant to reject the option of a jury sentencing. In response, the State argues tha t the record of the trial court s inq uiry supports its acceptance of the waiver as vo luntary and knowing. T he State contends that the inq uiry conducted here was comparable to the inquiry and jury sentencing waiver in Baker v. S tate, 367 Md. 648, 790 A.2d 629 (2002) and Thanos v. State, 330 Md. 77, 622 A.2d 72 7 (1993), and shows that Abeokuto, an educated man, possessed sufficient kn owledge of h is jury sentencing right an d unde rstood w hat he w as doin g in wa iving th at right. More over, the State urges that, Appellant s waiver of jury sentencing should be viewed in light of this previous waiver of jury trial. In addition, the State asserts that the trial court bestowed upon Appellant comprehensive and accu rate advice o n his right to jury sentencing. The State notes that Appellant s election of a court sentencing arose from his discussions with his defense couns el. Immedia tely after the guilt findings by the trial judge, the prosecutor, with the consent of defense counsel, offered a written version of an advisement of rights litany to be used by the trial judge.18 The trial court accepted the proposal, read aloud the litany, and, at the end 18 The prosecutor offered the written version of the litany, stating: (contin ued...) 51 of the relatively lengthy recitation, asked a few questions of Appellant, which questions also were part of the o ffered litany. The colloquy between the court and Appellant was as follows: COURT: Mr. Abeokuto, we have now concluded the guilt phase of your trial and you hav e been co nvicted of murder in the first degree. The next phase of your trial is the sentencing phase at which it will decided whether the sentence to be imposed on the murder conviction shall be death, life without parole, or life imprisonm ent. Your trial was conducted before the Judge sitting without a jury. You are not obliged to maintain that same election for sentencing, howe ver, bec ause you were tr ied by the Judge , if you elect to be sentenced by a jury, you will be sente nced by a jury that is selected for the purpose of sentencing you. A jury is comprised of twelve citizens selected from the (...continued) Your Honor, prior to getting to putting the Defendant s election on sentencing, I have an I hav e a request, a nd I wou ld file this pleading, that there is a litany that I would ask the Cou rt to read to the D efendan t. The state would file this at this time, to go over to make sure that the election of sentencing is based on solely the Defendant s decision without being influenced by anything the Court may have done or said that may espec ially under the [sic] what happened in the Tichnell case and Defendant s election of a specific sentencer one way or the other. I would ask the Court . . . [to] go over this litany with the Defendant and that the, just to make this clear for th e record in terms of Defendant s election. 52 voter rolls and m otor vehicle rolls of this jurisd iction. You , with our attor ney, would h ave an op portunity to examine all potential jurors as part of the process of selecting twelve jurors. If a potential juror holds a belief either for or against capital punishment which would prevent or substantially impair him or her from bein g impartial, that juror wou ld not be allo wed to serve as a juror in this case. In order to sec ure a death sentence, it is the obligation of the State of Maryland to prove beyond a reasonable doubt that you were a principal in the first degree to the murder, that is, the murder was com mitted by your ow n hand an d that one o r both of the aggravating circumstances listed in the notice of intent to seek a death penalty exists. The same burden of proof and standard of proof beyond a reasonable doubt exists regardless of whether you elect to be sentenced by the Court or by a jury. If you elect to be sentenced by a jury, each of these threshold determinations must be unanimous, that is, all o f the jur ors mu st agree upon. If the sentencer, whether Court or ju ry, finds that the S tate has satisfied its burden, the sentencer will go on to consider whether any mitig ating cir cumsta nces ex ist. Mitigating circumstances are any circumstances relating either to yourself or this crime that would tend to make a sentence of death less appropriate. The statute lists seven circumstances that are considered to be mitigating. To be considered there must be proof of the existence of any of these circumstances by a preponderance of the evid ence. This burden exists wh ethe r the sentence r is th e Co urt or the jury. The statutory mitigating circumstances that the jury must consider are these: One, the Defe ndant has not previou sly been found g uilty of a crime of violence, entere d a plea of guilty or nolo contendere to a charge of a crime of violence, or have a judgment of probation or a stay of entry of judgment entered on 53 a charge of crime of violence. Crime of violence as used in the statute means abduction, arson, escape, kidnapping, manslaughter, except involuntary manslaughter, mayhem, murder, robbery, or rape or sexual offense in the first or seco nd degre e, or any attemp t to commit any of these offenses or the use of handguns in the commission of a felony or other crime of violence. Number two, the victim was a participant in the Defendant s conduct or consented to the act which caused the victim s death. Number three, the Defendant acted under substantial duress, domination or provocation of another person, but not so substantial as to constitute a complete defense to the prosecution. Number 4, the murd er was co mmitted w hile the capacity of the Defe ndant to ap preciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired a s a result of m ental incapa city, mental disorder, or emotional disturbance. Number 5, the youthful age of the Defendant at the time of the crime. Number 6, the act of the De fendant w as not the so le proxim ate cau se of th e victim s death . And, number 7, it is unlikely that the D efendan t will engage in further criminal activity that would constitute a continuing threa t to so ciety. In addition to the seven listed mitigating circumstances, the sentencer may write down a ny other fact o r circumstan ce it finds to be mitigating. That is anything about you or the trial that would make a sentence of death less approp riate. This includes anything relating to your background as well as your 54 relevant and material conduc t up to and in cluding this sentencing proceeding, as well as any factor causing one to feel sympathy or mercy toward you. Mercy in and of itself may be considered a mitigating circumstance. Again, mitigating circumstances must exist by a preponderance of the evidence. Further, with respect to nonstatutory mitigating factors, it is necessary, too, that the sentencer be convinced both of the fact or circumstance exists and th at it is mitigating. As with the listed mitigating circumstances, this is the same whether the sentence r is th e Co urt or a jury. Unlike the matters on which the State bears the burden of proof, if you elect to be sentenced by a jury, the jury need not be unanimous with respect to whether a particular mitigating circumstance exists other than mitigating circumstance number one, which they must unanimously find. This is true as to both the listed mitigating circumstances and the other mitigating circumstances. If after a period of deliberation the sentencing jury cannot unanimo usly agree on the existence of a particular mitigating circumstance, those jurors finding the mitigating circumstance will be instructed to consider it in determining the appro priate sentence. Those jurors finding that the mitigating circumstance does not exist will not consider it. If all of the jurors agree that no mitigating circumstance has been proven, they will be instructed to enter a sentence of death. Similarly, if the Court, sitting without a jury, would find that no mitigating circumstance exists, the Court would also enter a sentence of death. If the Court or any juror finds that one or more mitigating circumstances has been proven, the Court or jury will balance 55 those mitigating circumstances, if found to exist, against the aggravating circumstance that has been proven beyond a reasonable doubt to determine whether the sentence should be death or not death. The same balancing process is undertaken by a jury or the Co urt. In the event o f a jury sentenc ing, all jurors will balance the mitigating circumstances unanimously found to exist and each individual juror will balance as well mitigating circumstan ces foun d by that juror to e xist. Whether the sentencer is the Cou rt or a jury, the State bears the ultimate b urden to es tablish the propriety of a d eath sentence. If the sentenc er, is the court o r jury, the State bears the ultimate burden to establish the propriety of a death sentence. If the sentence r, wh ethe r cou rt or jury, concludes that the mitigating circumstances outwe igh the agg ravatin g circumstances, the sentence may not be death. If the mitigating circumstances and aggravating circumstances are in even balance, the sentence may not be death. Only if the aggravating circumstances outweigh the mitigating circumstan ces is a senten ce of dea th to be imposed. Where the sentence r is a jury, the outcome of the balance must be a u nanimous co nclu sion of th e jury. The need for jury unanimity has been noted on several occasions. If after a reasonable period of d eliberation the jury is unable to reach agreement unanimously on any matter for which unanimity is required, including whether a sentence of death should be imposed, then the Court shall not impose a sentence of death. If the sentencer determines that the sentence shall not be death, then the sam e sentencer shall proceed to determine whether the sentence should be life or life without parole. 56 If the sentencer is a jury and they a ren t able to reach a verdict on the issue of death w ithin a reasonable period of time, then the sentence of death shall not be imposed and the same jury shall neverth eless proce ed to cons ider the question of life or life without parole. If the sentencer is a jury, a sentence of life without parole must be a unanimous decision. If the jury cannot achieve unanimity on the issue of life without the possibility of parole after a reasonable period of deliberation, the sentence of life must be imposed. If you choose the Court as the sentencer, then I must consider whether life or life without parole is appropriate if I determine that death is not the proper sentence. Do you have any questions concerning what I have described and read to you in these instructions? DEFENDA NT: No. COURT: Have you had an opportunity to discuss your election with your attorney, [defense coun sel]? DEFEND ANT: Yes. COURT. Do you understand the various distinctions that I have outlined for you? DEFEND ANT: Yes. COURT: What is your age? DEFENDA NT: 24 COURT: What is your educational background? DEFENDA NT: Some college. COURT: What is your election for sentencing, to be sentenced 57 by the Cou rt or to be sentence d by th e jury? DEFE NDA NT: Co urt. COURT: Any [prosecutor]? other questions, [defense counsel] or DEFENSE C OUNSEL: No, not from the defense. No. COUR T: [Prosecutors]? PROSE CUTO R: No, You r Honor. COURT: Mr. Clerk, would you file th e election rea d and file this as Motions Exhibit Number 1 Court s Exhibit Number 1. According to the election, the court proceeded to sentence Appellant. It conferred, among other sentences, the sentence of death for the murder conviction. The right to a jury at a capital sentencing is a creatur e of stat ute. Bruce v. S tate, 328 Md. 5 94, 602 , 616 A .2d 392 , 396 (1 992). A capital sentencing hearing shall be conducted before a jury unless the defendant waives the ju ry. Md. Code (2002, 2003 Repl. Vol., 2004 Supp .) Criminal L aw Artic le, § 2-303(c )(3); Baker, 367 Md. at 690, 790 A.2d at 654 (citing the predecessor statu te to § 2-30 3). A defe ndant s w aive r must be knowing and voluntary. Baker, 367 Md. at 690, 790 A.2d at 654 (Cita tion omitted) ; Trimble v. State, 321 Md. 248, 262, 582 A.2d 79 4, 801 (1990). 19 When examining whether a defendant made a knowing and 19 In Ware v. S tate, we stated that [w]hether a defendant is to be sentenced by the court or the ju ry is a decis ion for the def endan t. 360 M d. 650, 704, 759 A.2d 764, 792 (2000) (citing Md. Rule 4-2 46 (waiver of jury trial); Gilliam v. State, 331 Md. 651, 670, 629 (contin ued...) 58 voluntary waiver, the court cons iders the totality of the circumstances, includ ing the court s colloquy with the defenda nt. Baker, 367 Md. at 690-91, 790 A.2d at 654. We determine whether the court s ex planation o f the jury senten cing right is proper . Id.; Trimble , 321 Md. at 262-63, 5 82 A.2d at 801; Harris v. S tate, 295 Md. 329, 339-40, 455 A.2d 979, 984 (1983). We also determine whether the court made an effort to ensure that the defendant s waiver was knowin g and vo luntary by conside ring the ade quacy of the court s inquiry into voluntariness based upon the facts and issues presented to the court. We base our conclusion on the r ecord p rovide d. Baker, 367 M d. at 691 , 790 A .2d at 65 4. When determining whether a trial court pro perly instructed a defendant, we consider the accuracy and clarity of the court s statement of the law and whether the defendant had sufficient time to discuss the election w ith defense counsel p rior to the court s inquiry. In Baker, Baker argued that his waiver of jury sentencing was not k nowing and intelligen t. Baker, 367 Md. at 690-91, 790 A.2d at 654-55. He contended that the court failed to mention the standard o f proof ap plicable to the balancing of aggrav ating and m itigating circumstances and erred in stating that the jury s finding at trial that Baker was a principal in the first degree (...continued) A.2d 685, 694 (1993); and Bruce, 328 Md. at 602 -07, 616 A.2d at 396-98 ). We held , in Ware, that a defendant s decision to proceed with jury sentencing in light of defense counsel s recomm endation to the contrary is insu fficient in an d of itself to trigger a competency examination. Ware, 360 Md. at 706, 759 A.2d at 793. 59 was binding at sentencing.20 Baker, 367 Md. at 690, 790 A.2d at 654. We examined the waiver colloquy between the trial court and Baker, considered the totality of the circumstances, and concluded the waiver knowing an d voluntary because the rec ord reflect[ed] that the trial court made a thoroug h and reas onable ef fort to expla in the sentencing proceeding to Baker and [made] su re that his waiver was knowing and voluntary. Baker, 367 Md. at 691, 790 A.2d. at 654. We stated: The trial court asked Baker and his counsel several times if they had been able to adequa tely discuss the question o f whethe r to be sentenced by the court or a jury. Baker s attorneys were also asked if the court had adequately covered the advisements and they responded that the court had. Baker also stated [several times] that he did not have any questions, that he had a sufficient opportun ity to discuss the election w ith his attorneys, and that he did not have any questions that his a ttorneys were unable to answer. Baker also responde d that he w as satisfied m aking his election at that time, that he understood that he could not change his mind, and that he did not n eed to hav e further tim e to discuss the elec tion wi th his atto rneys. Baker, 367 Md. at 691, 790 A.2d at 654-55. Although we found no facts in Baker that would call into question the defendant s mental or medication status at the time that would suggest that the trial judge should ask about them in the inquiry, the court asked Baker whether he was under the influence of any medication, or drugs, or alcohol th at would a ffect his ab ility 20 Baker also argued that the trial court did not properly advise him of the balancing of aggravating circumstances and mitigating circumstances, relying on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We held, in Baker, that Apprendi is not applicable to Maryland s death penalty statute. Baker, 367 Md. at 691, 790 A.2d at 654. 60 to understand the cou rt s instructions, hear the court s questions, or answer the cou rt s questions. Baker, 367 Md. at 662, 790 A.2d at 637-38. Baker replied that he d id not. Id. The court also asked about his age and level of educa tion. Id. The court characterized the standard of proof applicable to the balancing of aggravating and mitigating circumstances as outweighing, rather than characterizing it as the preponderance standard. Baker, 367 Md. at 660, 790 A.2d at 636. We concluded that this instruction, although somewhat ambiguous, did not rise to the level tha t it would dra matically increase the chance that Baker would choose to be sentenc ed by the cou rt, rather th an a jury. Baker, 367 Md. at 693, 790 A.2d. at 656. Thus, because the court s inquiry into the voluntariness of the election and the adequate instructions given by the court supplied the requisite knowledge concerning the election, we concluded the jury sentencing waiver to be valid. We engaged in the same analysis in Trimble, supra. In that case, we vacated a sentence of death because, during the colloquy by the court at the time of the jury sentencing waiver, the trial judge told Trimble that he h ad th e aut hority to dismiss the jury (if it could not decide on a sentence within a reasonable time) and impose a life sentence, a statement which may have caused Trimble to believe that he had nothing to lose by electing to be sentenced by the co urt. Trimble , 321 Md. at 262-63, 582 A.2d at 801 (citing as controlling Harris v. State, 295 Md. 329 , 455 A.2d 979 (1983) (holding that the de fendant s waiver of jury sentencing was not knowing and voluntary because the court failed to instruct Harris that the jury would have to be unanimous before imposing death)). Because of the inaccuracy of 61 the court s instruction, we vaca ted Trimb le s death sentence even though he was represented by counsel at the time of the election.21 In Thanos v. State, 330 Md. 77, 622 A.2d 727 (1993), we considered evidence of the voluntariness of the jury sentencing waiver, which we found to be knowing and voluntary. Rejecting Thanos claim that the trial court erred in explainin g his right to be tried and sentenced by a jury, we determined that his arguments were merely extensions o f his [actual] claim that he was incompetent to stand trial. Thanos, 330 Md. at 94, 622 A.2d at 735. We found the incompetency claim to be devoid of merit because: None of Thanos s four expert witnesses at the sentencing proceeding ever suggested that he was incompetent to stand trial. While T hanos did make some peculiar remarks to the trial judge, his words on the w hole were ver y lucid. He ap peared to grasp all of his rights as they arose throughout the proceedings. He explaine d very clea rly wh y he preferred conditions in the Super Max facility in Baltimore to those of the St. Mary s County Detention Center[, the reason he offered for preferring a court trial to a jury trial]. And he understood and insigh tfully articulated his tendency to become disruptive under stress, which reasonab ly justified his initial de sire to absen t himself from the proceedings. Thanos, 330 Md. at 86, 622 A.2d at 731. T he reco rd indic ated tha t Than os wa s lucid , 21 While the presence o f an attorne y to discuss the w aiver election tends to show that a defendant has made a knowing w aiver, see Baker, that fact will n ot mitigate an inaccurate or incomplete court instruction on the jury sentencing right, see Trimb le and Harris. Therefore, evidence that a defen dant discus sed the elec tion with an attorney prior to th e waiver is only one circu mstance f or us to con sider whe n determin ing whe ther a waiv er is voluntary and knowing. 62 insightf ully articulate[], an d appea red to grasp all of his rights as demo nstrated by his statements during the proceedings and his responses to the court s questions. Thus, the record supported the trial cou rt s finding of a voluntary waiv er. After an examination of the totality of the circumstances on the record of the present case, we are un able to con clude with requisite con fidence th at Appellant made a knowing and voluntary waiver of a jury sentencing. Our confidence in the waiver is undermined because the trial court knew (or should have recalled) from testimony given at the competency hearing on 22 Jun e 2004 tha t Appellan t had been prescribed Geodo n (an antipsychotic medication) while in custody at the County Detention Center. The court failed at the sentencing waiver h earing to asc ertain whether Appellant had been taking the medication since the competency determination; whether he currently was taking the medication; and, if so, whether Appellant was experiencing any side effects as alluded to by Dr. Inouye, at least insofar as they might impact adversely his ability to make a knowing an d voluntary waiver some nine weeks after the competency determination. This line of inquiry, under the facts of the case, was important because Geodon ingestion may give rise to the side effects, among others, of sedation, nausea, dizziness, and co nfusio n. P HYSICIANS D ESK R EFERENCE 2517-20 (60 ed. 2006); see also Facts About Geodon, available at http://www.geodon.com/GeoPat_FactGeo_side_effects.asp (providing product information by the manufacturer, Pfizer Inc.); Geodon, Physicians Desk Reference, 2005 WL 1158531 (2005) (providing informatio n on com mon side effects by the Physicians Desk Reference, 63 current through the printing of the 2005 edition). The effect of the failur e to make a specific inquiry on this point in the jury sentencing waiver is distinguishable from the absence of a similar inquiry during the jury trial waiver process because, in the latter, the court heard contemporaneous expert medical testimony regard ing Appellant s compete ncy to stand trial, which included learning of the p rescriptio n of G eodon , see supra Section III(A)(1 ). Thus, the information was f resh in the court s mind as it evaluated the waive r proceedings befo re it then. The jury sentencing waiver election, however, took place on 27 Augus t 2004, nea rly nine weeks after the court last heard testimony regarding Appellant s medication status. As Dr. Inouye stated at the competency hearing on 22 June 2004, the positive effects, if any, of Geodon may take weeks to display themselves. Whether the potential adverse side effects, if any, take as long to materialize is unexplored on this record, particularly so at the jury sentencing waiver proceeding. We do not hold, by finding this jury sentencing w aiver colloquy insufficient to suppo rt a knowing and voluntary waiver, that every jury sentencin g waiver colloquy mu st inquire into mental health and medication. As stated before, we do not require a specific or standard litany or colloquy in every case.22 The necessary inquiry by the court to determine whether a jury sentencing waiver is k nowing and volun tary is bound by the facts and circumstances of the particular case. Here, the trial court knew from the competency hearing that Appellant 22 Appellant also argue s that the court erred because it did not make an explicit finding of a voluntary and knowing waiver. It is unnecessary for us to reach this question. 64 had been prescribed Geodon, an anti-psychotic drug that, not surpris ingly, carries with it relevant potential side effects information that easily could be found in the Physician s Desk Reference.23 Because we vacate the sentences due to a finding of fault with the sentencing proceeding by four mem bers of the Court, it is not-strictly necessary that we reach and decide the other preserved issues regarding sentencing. We nonetheless choose to offer som e dicta guidance, however, on a few of them in order that, on remand, the trial cou rt may consider that guidance should the circumstances recur at a new sentencing proceeding, as it seems to us they like ly will. 2. Sentence for Extortion Had we not vacated the entire sentencing proceed ing for the failure of the jury waiv er, we would have concluded that the Circuit Court illegally increased the sentence for the extortion conviction by changing the sentence that it first imposed at the sentencing hearing 23 For guidance to the trial court on remand, we choose to comment on a collateral point regarding the wa iver litan y employe d by the c ourt. The court read aloud a five page description of Appellant s rights and sentencing standards before asking Appellant whether he understood them. This could be a rather daunting explication to a layman, even one not possibly on an anti-psychotic medication. In contrast, the court, prosecutor, and defense counsel inquired about Appellant s understanding of his various rights seven times at the jury trial waiver ele ction. Altho ugh the co urt s explan ation of jury sen tencing righ ts was acc urate and clear, it might be a better approach to present such information to defendants in smaller intellectual bytes and inquire discretely after each byte or logical grouping of bytes wheth er a def endan t under stands th em. 65 to an increased one in an Amended Commitment Order. At the sentencing hearing on 15 November 2004, the sentence for extortion was imposed as follows: COURT: As to the extortio n count, the sentence o f the Cou rt is ten years in the De partment o f Correctio n, and that se ntence w ill date from the initial date of his arrest, wh ich was th at? PROSECUT OR: 12-24 of actually it was yes, 12-24 of 02. CO UR T: 12 -24- 02. O kay. The Amen ded Co mmitme nt Report p repared the reafter prov ided that the sentence for the extortion conviction was ten years to be served consecutive to the sentence of death for the first-degree murder conviction. In the post-se ntencing R eport of T rial Judge, pre pared in capital cases pursuant to Md. Rule 4-343, the court re-affirmed its intent that the sentence for extortion be ten years to be served consecutively with the sen tence of d eath for the firstdegree murde r convi ction. Md. R ule 4-345 (2004) pro vides, in pertin ent part: (a) Illegal sentence. The court may correct an illegal sentence at any time. (b) Modif ication or reduction Time for. The court has revisory power and co ntrol over a sentence upon a motion filed within 90 days after its imposition . . . (2) in a circuit cou rt, whether or not an appeal has been filed. Thereafter, the court has revisory power and control over the sentence in case of fraud, mistake , or irregularity, or as provided in section (e) of this Rule. The court may not increase a sentence after the sentence has been imposed, except that it may correct an evident mistake in the anno unceme nt of a sente nce if the co rrection is made on the record before the defendant leaves the courtroom following the sentencing proceeding. 66 *** (d) Open court hearing. The court may modify, reduce, correct, or vacate a sentence only on the record in op en court, after hearing from the defendant, the State, and from each victim or victim s representative who requests an opportunity to be heard . . . . ( Emph asis add ed). In the present case, the trial co urt initially imposed the sentenc e for extortio n to begin on 24 December 2002 and then purported in subsequent papers to change it to consecutive with the death se ntence, w hich effe cted an incr ease (albeit potentially a metaphysical one) in the sentence. This was not permitted. 3. Separate Sentences for Kidnapping and Child Kidnapping The doctrine of merger of offenses for senten cing purp oses is prem ised in part on the Double Jeopardy C lause of the Fifth Am endmen t of the U.S . Constitution , applicable to state court procee dings v ia the Fo urteenth Ame ndme nt. Dixon v. S tate, 364 Md. 209, 236, 772 A.2d 283, 299 (2001) (C itations omitted ). The app licable standard for determining whether one offen se merg es into a nother is wha t is often called th e requ ired evid ence te st, McG rath v. State, 356 Md. 20, 23, 736 A.2 d 1067, 1 068-69 (1 999) (Citatio ns omitted); b ut, it is also known as the same evidence test, Blockburger test, or elements test. Dixon, 364 Md. at 2 37, 772 A.2d at 299-300. In McG rath, supra, we summarized the required evidence test as follows: The required evidence test focuses upon the elements of 67 each offense; if all of the elements of on e offense are included in the other offense, so that on ly the latter offense contains a distinct element or distinct elements, the former merges into the latter. Stated another way, the required evidence is that which is minimally necessary to secure a conviction for each [] offense. If each offense requires proof of a fact which the other does not, or in other words, if each offense contains an element which the other do es not, there is no merger under the required evidence test even though both offenses are based upon the same act or acts. But, where only one offense requires proof of an additional fact, so that all elements of one offense are present in the other, and where both offenses are based on the same act or acts, [ ] merge r follow s []. *** When applying the required evidence test to multipurpose offen ses, i.e., offenses having alternative e lemen ts, a court must exam ine the alterativ e elements relevant to the case at issue. (Internal quotations and citations om itted). McG rath, 356 Md. at 23-24, 736 A.2d at 1068-69 (quoting State v. Lancaster, 332 Md. 385, 391-392, 631 A.2d 453, 456-57 (1993)). When a merger is required, separate sentences are normally precluded; instead, a sentence may be imposed only for the offense having the additional elemen t or elem ents. See, e.g., Dixon, 364 Md. at 237, 772 A.2d at 299 (citing Nightinga le v. State, 312 Md. 699, 702, 542 A.2d 373, 374 (1988)); McG rath, 356 Md. at 24, 736 A.2d at 1069 (Internal quotations omitted). [W]here there is a merger of a lesser included offense in to a greater offense, we are not concerned with penalties the lesser included offense generally merges into and is subsumed by the greater offense regardless of penalties. Dixon, 364 Md. At 238, 772 A.2d at 300 (citing Spitzinger v . State, 340 Md. 114, 125, 665 A.2d 685, 690 (1995) and Simms v. State, 288 Md. 712, 722-23, 421 A.2d 957, 68 963 (1980)) (E mphasis in original); see also Lancaste r v. State, 332 Md. at 404-07, 631 A.2d at 463-64. We have not before determined whether kidnapping merges with child kidnapping. We would examine first the elemen ts of each offense, regardless of the penalties imposed. Section 3-502 of the Crim inal Law Article rega rding kidn apping pr ovides, in pertinent pa rt: (a) Prohibited. A pers on m ay not, by fo rce o r fraud, c arry o r cause a person to be carried in or outside the State with the intent to have the person carried or concealed in or outside the State. Md. Code (2 002), Crim inal Law Article, § 3-5 02(a). Sectio n 3-503 o f the Crim inal Law Article rega rding child k idnapping , as it stood in 20 02, provid ed, in pertinen t part: (a) Prohibited. (1) A person m ay not, withou t color of righ t: (i) forcibly abduct, take, or carry away a child under the age of 12 years from: 1. the home or usual place of abode of the child; or 2. the custody and control of the child s parent or legal guardian; (ii) without the consent o f the child s p arent or legal guardian, persuade or entice a child under the age o f 12 years from: 1. the child s home or usual place of abode; or 2. The cus tody a nd control of the child s parent or legal guardian; or (iii) with the intent of depriving the child s parent or legal guardian, or any person lawfully possessing the child, of the custody, care, and control of the child, knowingly secrete or harbor a child under the age of 12 years. Md. Cod e (2002), Criminal La w Article, § 3-503(a). Appellant was convicted of one count of statutory kidnapping (according to the 69 Indictmen t: unlawf ully did forcibly and fraudulently carry and cause to be carried Marciana Monyai Ringo, with intent to have [her] carried and concealed in or outside this State . . . ) and one count of statutory child kidnapping (according to the Indictment: unlawfully did, without color of right, without the consent of Marciana Monyai Ringo s parent or legal guardian, persuade and entice [her], a child under the age of 12, from [her] home and the custod y and con trol of [ her] pa rent or le gal gua rdian . . . ) . Because both kidnapping and child kidnapping are multi-element offenses, we look to the altera tive elem ents rele vant to th e prese nt case. See, e.g., Dixon, 364 Md. at 243, 772 A.2d at 303. The elements of kidnapping relevant here are: (1) forcibly or fraudulently (2) carry or cause to b e carried (3) a person (4) w ith the intent to have the person carried or conce aled in o r outside the State . The elem ents of child kidnappin g relevant h ere are: (1) without the consen t of the child s parent or leg al guardian , (2) persuad e or entice (3 ) a child under the age of 12 years (4) from the child s hom e custody or control of the child s parent or legal guardian. A relevant element of kidnapping not present in the relevant elements of child kidnapping is force or fraud. To commit child kidnapping, one need only persuade or entice the ch ild; force or f raud is not required. A relevant element of child kidnapping not present in the relevant elements of kidnapping is the age of the victim as tw elve or younger. To commit kidnapping, the victim may be any age. Therefore, the trial court here was not required to merge the two convictions for sentencing purposes under the re quired elem ents test. 70 The required evidence test is not, as we pointed out in McG rath, 356 Md. at 25, 736 A.2d at 1069 and Mono ker v. State, 321 Md. 214, 222, 582 A.2d 52 5, 529 (19 90), the only standard under Maryland law for determining questions of merg er, even when two sentences are not required to be merged u nder the req uired evide nce test. Tho se sentence s might still require merger under either the rule of lenity and/or principles of fundamental fairness. The rule of le nity, which is o nly applicable to statutory offenses, provides that where there is no indication that the [L]egislature intended multiple punishments for the same act, a court w ill not impose multiple punishments but will, for sentencing purposes, merge one offense in to the other. McG rath, 356 Md. at 25, 736 A.2d at 1069 (citing Miles v. Sta te, 349 Md. 215, 227, 707 A.2d 84 1, 847 (1998), Williams v. State, 323 Md. 312, 321-22, 593 A.2d 671, 675 (1991), Monoker, 321 Md. at 220, 582 A.2d at 527-28, and White v. Sta te, 318 Md. 740, 74546, 569 A.2d 1271, 1274 (1990)). We explained the purpose of the rule of lenity in Monoker: The rule of lenity was originally formulated by the United States Supreme Court as a principle of statutory construction. The policy behind th e rule is that the Court w ill not inte rpret a . . . criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no m ore than a guess as to what [the legislature] intended. White v. State, 318 Md. at 744, 569 A.2d 1271, quoting Simpson v. U.S., 435 U.S. 6, 15, 98 S.C t. 909, 914, 55 L.Ed.2d 70 (1978), which in turn quotes Ladner v. U.S., 358 U.S. 169, 178, 79 S.Ct. 209, 214, 3 L.Ed.2d 1 99 (1958). Monoker, 321 Md. at 222-23, 582 A.2d at 529. Where there is a merger under the rule of lenit y, the offense carrying the lesser maximum penalty ordinarily merges into the offense 71 carrying the greater maximum penalty. McG rath, 356 Md. at 25, 736 A.2d at 1069 (quoting Miles, 349 M d. at 229, 70 7 A.2d a t 848). We conclude that the rule of lenity would be applicable to the operative considerations in the present case. In reaching this view, we consider the Legislature s chosen statutory language and evidence, if any, of legislative intent regarding m ultiple senten ces for the s ame crim inal condu ct.24 The history of the kid napping a nd child kid napping s tatutes has been summarized aptly in Moore v. State, 23 Md. App. 540, 329 A.2d 48 (1974 ), cert. denied, 274 Md. 730 (1975). The common law of kidnapping prohibited the forcible abduction or stealing away of a man, woman, or child from their own country to another, a capital crime under Jewish law. Moore, 23 Md. App. at 543, 329 A.2d at 50 (citing W. B LACKSTONE, C OMMENTARIES, 219). The first alternation to the common law definition of kidnapping occurred as a result of a law ena cted in 1809, which required as an element the carrying of any free person, or causing him or her be carried, out of this state. Chapter cxxxviii, § 4 of the Acts of 1809.25 24 According to the Indictment, the State charged Appellant for violation of two statutory offenses under §§ 3 -502 and 3-503 (a)(1)(ii). 25 The first enacted version of the common law crime of kidnapping provided: Every person , his or her counsellors, aiders or abettors, who shall be duly convicted of the crim e of kidna pping, and forcibly or fraudulently carrying, or causing to be carried out of this state, any free person, or any person entitled to freedom at or of after a certain age, period or contingency, or of arresting and imprisoning any free person, or any person entitled to freedom at or after a certain age, period or contingency, knowing such (contin ued...) 72 In 1819, the Legislature enacted a statute entitled, An Act to punish the offence of Kidnapping White Children. Chapter cxxxii of the Acts of 1819. The statute provided: Be it enacted, by the General Assembly of Maryland, That every person, his or her counsellors, aiders or abettors, who shall be duly convicted o f kidnapp ing, and fo rcibly or fraudu lently stealing, taking or carrying away, any white child or children under the age of sixteen years, shall be sentenced to undergo a confinement in the penitentiary for a period of time not less than five years, nor more than twelve years, th ere to be treated as the law directs. Chapter cxxxii of the Acts of 1819. The pen alty under this statute provided for a sentence between five and tw elve years. The kidnappin g statute in effect in 1819 provided a sentence between two and five years. The rac ial aspect of th e child kidn apping law was dele ted in 1888. Md. Code (1888), Article 27, § 155. The Court of Special Appeals determined that the legislative inten t behind the enactmen t of the first ch ild kidnapp ing statute was to c reate a special statute for the protection of children and to proscribe the forcible or fraudulent taking or carrying away of a child from his or her parent, custodian, or guardian regardless of whether the child was asported beyond the territorial confines of Maryland, a m easure (...continued) person to be free, or e ntitled to their fre edom, as a foresaid, w ith intent to have su ch person carried out o f this state, shall be sentenced to underg o a confin ement in the penitentiary house for a period of time not less than two nor more than ten years to be treated as the law directs. Chapter cxxxviii, § 4 of the Acts of 1809. 73 taken by the Legisla ture becau se the kidna pping statute at the time req uired that the v ictim be carried outside of the S tate. Moore, 23 Md. App. at 546-47, 329 A.2d at 52. In 1949, the Legislature amended the kidnapping statute to include asportation both outsid e and w ithin the State . Chap ter iv, § 3 85 of th e Acts o f 1949 . Now that neither the kidnapping statute nor the child kidnapping statute require that a victim be as ported beyon d the territorial co nfines of M aryland, the original legislative intent to create a special statute to protect children from being kidnapped and carried away to a place within the State is appeased. The current version of the child kidnapping law differs from the kidnapping law in other respec ts. As w e noted , supra, under § 3- 503, child kidnapping may be committed by circumstances that are not covered by the current general kidnapping statute, § 3-502, and vice versa.26 Thus, it appears that the Legislature intended to create two separate of fenses, each with its ow n penalty. Nonetheless the statutory language and legislative history are silent as to the legislative intent to punish the two offenses as distinct offenses, or a single merged crime, when a defendant violates both § 3503 and § 3-502 by the same conduct. Therefore, the rule of lenity applies. As a result of the 26 Indeed, the child kidnapping law presented a broader definition of criminal conduct than kidnapping, even after the kidnapping law was first amended to no longer require asportation out of th e State. Compare Chapter 589, § 317 of the Acts of 1933 (providing that child kidnapping requires forcibly or fraudulently stealing, taking or carrying away any child under the age of sixteen years . . . ) (Emphasis added) with Chapter 589, § 316 of the Acts of 1933 (providing that kidnap ping requ ires forcibly or f raudulently carrying or causing to be carried ou t of or within this State any person . . . ). 74 amb iguity, we, in effect, will give the defendant the benefit of the doubt and [would] hold that the crimes do merge. Monoker, 321 Md. at 222, 582 A.2d at 52 9 (Citations omitted). The trial court erred when it failed to me rge the kidn apping an d child kidn apping co unts into one sentence of thirty years. 4. Unpreserved Sentencing Issues: Adm ission o f Med ical Ex pert s T estimo ny, Vict im Im pact Te stimon y, and the Prosecutorial Closing Statement at the Sentencing Hearing Appellant raises three unpreserved issues regarding his senten cing. See supra questions presented numb ers (9), (10), and (11). In light of the effect of our holding as to the invalid jury sentencing waive r, it is unnecessary for us to ad dress these iss ues in any eve nt, but we cho ose to note that, if the questions were before us, we would not review these claims because the unpreserv ed appellate argumen ts of error cannot be characterized as compelling, exception al, or fundamental to assure the defendant a fair senten cing, after ap plying the plain error do ctrine. See supra Section III(A)(2). 5. Constitution ality of the M aryland D eath Pen alty Statute Appellant argues that the Maryland death penalty statute is unconstitutional because it requires that aggravating circumstances outweigh mitigating circum stances o nly by a preponderance of the evidence. Appellant s argument fails. We have consistently found no due process violation in the provision directing that the weighing process be based on a 75 preponderance of the evidence. Oken v. S tate, 378 Md. 179, 253, 835 A.2d 1105, 1148 (2003), cert. denied, 541 U.S . 1017, 124 S.Ct. 2084, 158 L.Ed.2d 632 (2004) (quoting Borcha rdt v. State, 367 Md. 91, 12 1, 786 A.2d 63 1, 648-49 (2001 )). JUDGMENTS OF THE C IRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED AS TO ALL CONV ICTION S; SENT ENCIN G VACATED; CASE REMANDED FOR A NEW SENTENCING PROCEEDING; COSTS TO BE PAID BY BALTIMORE COUNTY. 76 /In the Circu it Court for B altimore C ounty Case No. 03-CR-2127 IN THE COURT OF APPEALS OF MARYLAND No. 129 September Term, 2004 ______________________________________ JAMAAL KENNETH ABEOKU TO v. STATE OF MARYLAND ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Concurring and Dissenting Opinion by Wilner, J., which Cathell and Battaglia, JJ., join ______________________________________ Filed: February 13, 2006 I concur in that part of the judgment that affirms the convictions and vacates the sentence imposed on the exto rtion conviction but, with respect, I dissent from the Court s vacatio n of the death s entenc e. Here is a case in which defense counsel and the State agreed on the appropriate advice to be given to the defendant, to make certain that, if he chose to waive se ntencing by a jury and allow the court to determine the sentence, his waiver and election would be knowing and volu ntary. The court agreed with the written statement presented by the prosecutor, with the consent of defense counsel, and read that statement as approved by them. After reading the statement, the court asked the defendant if he had any questions, to which the defendant responded that he did not. The court inquired whether the defendant had discussed his election with his attorney, and the defendant replied that he had. The court inquired whether the defendant understood what the court had recited, and, again, the defendant replied in the affirmative. The court inquired whether defense counsel, who was presumably aware that his client had been prescribed anti-psychotic medication, had any questions, and the answer was n o. Notwithstanding the careful, fully adequate, and agreed upon, recitation, this Court declares Abeokuto s w aiver of jury sen tencing inv alid becaus e the trial court f ailed to determine whether the defendant, who had been prescribed Geodon while incarcerated at the County Detention Center, was in fact, taking that medication at the time of the w aiver. I find this strained excuse to vacate a death sentence lawfully imposed more than troubling. In his brief, Abeokuto acknowledges that, in June, 2004, two months before the waiver at issue, he had been found competent to stand trial, a ruling that he has not challenged (yet). His argument on this point is that the court was on notice that his mental health was an issue and that he had been prescribed an anti-p sychotic m edicatio n, and that [a]ccordingly, the court was required to ask questions designe d to reveal whether M r. Abeokuto s mental illness and the drugs that he had been prescribed for that illness might have adversely affected his ability to both vo luntarily and knowingly waive his right to be tried by a jury. This Court see mingly rejects that argument, as presented, but from its own presumed pharmacological expertise dra wn from an Internet w eb site, the Co urt finds that Geodon may give rise to the sid e effec ts, among others, of sedation, nausea, dizziness, and confu sion, and on that basis declares the waiver/election invalid. There is, of course, nothing absolutely nothing in the record to indicate that Abeokuto was experiencing any sedation, nausea, dizziness, or confusion when he made his election. Abeokuto made no such complaint, nor did his attorney. Nor does the transcript reveal any colloquy from which any possible sedation, nausea, dizziness, or confusion may be inferred. Simply from the fact that a drug that was prescribed for Abeokuto may, according to the Internet, have those effects, the Court re quires no t in every case, bu t just in this one that the judge make some inqu iry. -2- What kind of inq uiry? It does not a ppear that the trial judge had the same pharmacological expertise regarding Geodon that the Majority of this Court has assumed for itself. Was he required to c onsult the Internet to determine the possible side effects of every drug that Abeokuto had taken in the recent or distant past? In the absence of any suggestion by Abeokuto or his attorne y that there was a problem in this regard, was the judge obliged to summon into court a pharmacist, or psychiatrist, or Court of App eals judge to testify as to the possible side effects of any such drugs? Was he obliged to deny the election in the absence of such expert testimony and require Abeokuto to proceed before a jury even though he chose not to do so? What if the judge had made an inquiry and learned tha t Abeok uto was a ctually taking Geodon what then? In the absence of any suggestion that Abeokuto was, in fact, sedated, nauseous, dizzy, or confused which, to this day Abeokuto has not contended would he have been obliged to deny the waiver? Would he have been required to conduct an evidentiary hearing, with experts opining as to the alternative effects of taking or not taking the medication in various dosages? If, as argued, the medication is designed to counteract the effects of a psychosis, of hallucination s, would the judge have nonetheless been obliged to insist that Abeokuto stop taking the medic ation so that h e could m ake his election w hile not sedated, dizzy, confused, or nauseous but simply hallucinating? The Court s decision in this case is inconsistent with the approach taken in Thanos v. State, 330 Md. 77, 622 A.2d 727 (1993) and Baker v. S tate, 367 Md. 648, 790 A.2d 629 -3- (1990) and, despite the Court s attempt to cabin it, will make routine sentencing proceedings exponen tially more complex. We can take judicial notice of our own statistics that fewer than 5% of the criminal c ases in the C ircuit Courts of this S tate are re solved by jury trial. In more than 95 % of the case s, the de fenda nt waiv es a jury tria l, and, in most of those cases, accepts a plea agreement and waives trial altogether. We know th at many, prob ably most, of those defendants have some kind of drug history illegal or prescription drugs. Are we now going to requ ire, as a cond ition to findin g a waive r to be valid, an inquiry into the defendant s past and current drug u se, to determine whe ther there are any current side effects that might affect the knowingness or voluntariness of the waiver? Such an inquiry is certainly appropriate, and judges often do inquire whether a defendant is on any medication, but is it required w hen there is no indication that the defendant is suffering from any effect of a drug? If not, why not? What is different about this case? I would c ertainly agree tha t, if there was anything in the record even to suggest that Abeok uto was suffering from any drug-related (or non-drug-related) inability to make a knowing and intelligent decision, t he judge w ould have been requ ired to cond uct a reasonab le inquiry into the matter. There is nothing in this record to suggest such a problem, however, and this Court sho uld not inva lidate a perfe ctly good waiver by conjuring such a hypothesis out of thin air or its own imaginings. Judges Cathell and Battaglia authorize me to state that he joins in this concurring and dissenting opinion. -4- IN THE COURT OF APPEALS OF MARYLAND No. 129 September Term, 2004 JAMAAL KENNETH ABEOKU TO v. STATE OF MARYLAND Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Conc urring a nd Dis senting Opinio n by Bell, C .J., which Greene, J. joins File: February 13, 2006 It is well settled that a defen dant may w aive the righ t, personal to, an d exercisab le only by, him or her, Smith v. S tate, 375 M d. 365, 3 79-81 , 825 A .2d 105 5, 1064 (2003 ), Howell v. State, 87 Md. App. 57, 77, 589 A.2d 90, 100 (1991), to trial by jury, but that any such waiver is effective and valid only if made on the record in open court and found by the court to have been made knowingly and voluntarily. Maryland Rule 4-24 6 (b); 1 Smith, 375 Md. at 37881, 825 A.2 d at 1063- 1064; State v. Be ll, 351 Md. 709, 724-25, 720 A.2d 311, 319 (1998); Stewart v. State, 319 Md. 81, 90, 570 A.2d 1229, 1233-34 (1990); Martinez v. State, 309 Md. 124, 131-35, 5 22 A.2d 950, 953 -56 (1987 ); Tibbs v. S tate, 323 Md. 28, 31-32, 590 A.2d 550, 551-552 (1991 ). This d etermin ation is f act and circum stance s pecific , Tibbs, 323 Md. at 31, 590 A.2d a t 551, citing State v. Ha ll, 321 Md. 178, 182, 582 A.2d 507, 509 (1990); Stewart, 319 Md. at 90, 570 A .2d at 1233 -34; Martinez, 309 Md. at 134, 522 A.2d at 955, and dualfaceted , requirin g that the waive r be bot h kno wing and v oluntar y. For a waiver to be knowing and voluntary, it must have been, for the possessor of the right, an intentional relinquishment or abandonment of a known right or privile ge. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461, 1466 (1938 ). In Brady v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 1469, 25 L. Ed. 2d 747, 756 (1970), the 1 Maryland Rule 4-246 (b) provides: Procedure for Acceptance of Waiver. 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 it determines, after an examination of the defe ndant on the recor d in o pen court conducted by the court, the State's Attorney, the attorney for the defendant, or any combination thereof, that the wa iver is m ade kn owing ly and vo luntarily. Supreme C ourt elucidated: Waive rs of constitutional rights not only must be voluntary but must be know ing, intelligent ac ts done w ith sufficien t awareness of the relevant circumstances and likely consequ ences. (Fo otnote om itted). Thus, w hile it is true that no fixed litany need be followed in complying with M aryland Rule 4-246, [i]t is n ot sufficien t that an accused merely respond affirmative ly to a naked inquiry, either from his lawyer or the court, that he understood that he has a right to a jury trial, that he knows what a jury trial is, and waives that right freely and voluntarily. Tibbs, 323 Md at 32 , 590 A.2d at 5 51. O n the contrary, our case law is clear: [T]he trial court must satisfy itself that the waiver is not a product of duress or coercion, and further that the defendant has some knowledge of the jury trial right be fore be ing allow ed to w aive it. Id. at 31, 590 A.2d a t 550, citing Hall, 321 M d. at 182 -83, 58 2 A.2d at 509. See Martinez, 309 Md. at 134, 522 A.2d at 955, in which this Court instructed: In determining whether the defendant has knowingly and voluntarily waived his right to a jury trial, the questioner need not recite any fixed incantation. Whether there is an intelligent, 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 produ ct of du ress or c oercion . ... Adams [v. United States ex rel. McCann], 317 U .S. [269 ,] 275, 280, 63 S. Ct. [236,] 240, 242, 87 L. Ed. 268[, 272, 27 5, (1942)]. ... Furthermore, a defendant must have some knowledge of the jury trial right before he is allowed to waive it. See Dortch [v. State], 290 Md. [2 29,] 232, 428 A .2d [1220,] 1222 [ (1981)]; Harris v. State, 295 Md. 32 9, 339 n. 1, 4 55 A.2d 979, 984 n. 1 (1983 ); Adams, 317 U.S. at 280, 63 S. C t. at 242, 8 7 L. Ed . 268. (Footn otes an d some citations omitted ). See Bell, 351 M d. at 725 , 720 A .2d at 31 9. Although questioned concernin g his right to a ju ry trial, the nature of that right, including the composition of the jury and the burden of proof, and the effect of a waiver of -2- a jury trial for the gu ilt or innocen ce stage of the trial on the rig ht to ju ry sentencing, the petitioner was not questioned with respect to the voluntariness of the election; he was not asked if the decision was free ly and voluntarily made or was the p roduct of promises, intimidation or coercion. Nevertheless, the majority concludes that, considering the totality of the circumstances, __ Md. __, __, __ A.2d __, __ [slip. op. at 27] (2006), from that record, the trial cou rt could have f ound, a s it did, that the petitioner s waiver of trial by jury was knowing and vo luntary. Id. In addition to emphasizing the number of times that the petitioner was asked about h is jury trial rig ht and th e jury trial p rocess, id. at __, __ A.2d at __ [slip op. at 27], it relies on Dortch v. State, 290 Md. 229, 428 A.2d 1220 (1981), and State v. Hall, 321 Md. 178, 582 A.2d 507, in both of which the Court repeated that there is no fixed litany for jury trial waivers and, on a totality of the circumstances review, excused the trial court s failure to inquire as to whether the defendants in those cases had been subjecte d to physical or men tal dures s or coe rcion, Dortch, 290 M d. at 235, 42 8 A.2d a t 1224; Hall, 321 Md. at 183, 590 A.2d at 510, or been m ade pro mises, w hich ind uced th e waiv er, Dortch, 290 Md. at 235, 428 A.2d a t 1224. Id. at __, __ A.2d a t __ [slip op at 24 -25]. The majority is also persuaded by the facts that Appellant was represent b y counsel, wh o, prior to the 16 August 2004 hearing, ha d discussed with appe llant the decisio n wheth er to elect a court or a jury trial, id. at __, __ A.2d at __ [slip op. at 27], that Appellant affirmed that he wanted a court trial, id., and that [n]o facts from the record demonstrate that the court had reason to ask Appellant whether he had been coerced or threatened to waive his right to a jury trial or whether anyone, including defense counsel or the prosecutor, promised Appellant anything in exchange for his waiver. Id. -3- In both Hall and Dortch, the defendant was undeniably informed of the nature of the jury trial right and, so, there was no issue as to his having met the knowledge prong of the test. Hall, 321 M d. at 183 , 582 A .2d at 50 9, Dortch, 209 Md. at 235, 428 A.2d at 1224. Neither defendant was questioned concerning whether he had been coerced or whether he had been made promise s whic h prom pted his waive r. Hall, 321 M d. at 183, 58 2 A.2d a t 509, Dortch, 209 Md. at 235, 428 A.2d at 1224. To be sure, the argument was made in each of those cases, as I am doing here, that the failure of the court or counsel to inquire spe cifically with respect to the voluntariness of the defendant s waiver of jury trial prevented it from being able to determin e, as the rule requires, that the waiver was not o nly kn owing, b ut vo luntary, as well . In rejecting the a rgumen t, the Dortch Court appears to have conflated the two prongs of the wa iver test. After noting that the predecessor to Rule 4-246 (b), Rule 735 d, did not require a specific inq uiry into volunta riness and d id not conte mplate a fixed litany or sp ecific ritual, it concluded that the failure of the trial judge to specifically inquire as to whether the jury trial waivers were induced by promises or by physical or mental coercion did not constitute error. 290 Md. at 235, 428 A.2d at 1224. The Court explained: The record in the Dortch case[2] indicates that the defendant made a written election witnessed by counsel, stating that his election for a court rather than a jury trial was know ingly and volunt arily mad e. The voluntary character of the election was fortified by the colloquy between the trial judge and Dortch at the commencement of th e tria l. We think the trial j udge fai rly determined that Dortch, having been fully advised with respect to the nature of a jury trial, volunt arily relinq uished that righ t when he elec ted a co urt trial. 2 There were tw o cases addres sed in th e one o pinion . In the o ther cas e, Cohen v. State, the Court stated, simply, the trial judge specifically determined on the record from his dialo gue w ith Coh en prio r to trial tha t he volu ntarily wa ived his right to a jury trial. Dortch v . State, 290 Md. 229, 235, 428 A. 2d 1220, 1224 (1981). This explanation can only b e des cribed as conclusory. -4- Id. at 235, 428 A.2d at 12 24. It is far from clear how full advise with respect to the n ature of a jury trial, which satisfies the knowledge prong, permits a court to infer that the right also was voluntarily relinquished, but that is precisely what, and all that, the Court said. Hall is to like effect. There, the Court opined: Considering the totalit y of the cir cumsta nces in the pres ent case , see Dortch v. State, supra, 290 Md. at 23 5, 428 A.2d 12 20, we think that the trial judge could fairly find that H all intentionally relinquished his know n right to a jury trial by his voluntar y act in waivin g that right. W hen Ha ll appeared for trial before the court, in the presence of his attorney and the prosecutor, the court advised him of his right to a jury trial where twelve people would hear the eviden ce, all of whom would have to be convinced beyond a reasonable doubt before he could be found guilty. The court advised Hall that if he waived his right to a jury trial, the court wo uld hear the evidence and have to be convinced beyond a reasonab le doubt be fore he co uld be found guilty. At the end of this collo quy, the trial judge asked Hall whether he wanted to be tried by jury or by the cou rt, to wh ich Ha ll answ ered: T ried by the Court. While th e court did not specific ally ask Hall whether he understood what he had been told, or whether his election of a court trial was the result of any physical or mental duress or coercion, we think that the record before us demonstrates that the court could fairly be satisfied that H all had the req uisite knowledge of the jury trial right, th at the waiv er was vo luntary, and that the requireme nts of the rule were satisfied. Moreover, the court was not required to advise Hall, as he contends, as to the details of the jury selection process. We conclude, therefore, that constitutional due process requirements were not transgressed in this case. Fortifying this determination is the fact that on two prior occasions, the first in writing, and the second during in-court plea negotiations, Hall also waived his right to a jury trial; on each occasion, he was also rep resente d by cou nsel. Hall, 321 Md. at 183, 582 A.2d at 509-510. These cases stand in stark con trast to a later ca se, Tibbs, 323 Md. 28, 590 A.2d 550, penned by the author of both Hall and Dortch. In that case, the defendant s proffered waiver of jury trial was accepted by the trial court as knowingly and voluntarily made, on the basis of a colloquy be tween the defenda nt and his co unsel, occurring after the defendant responded, -5- Yes, I do, to c ounsel s inqu iry concer ning his k now ledg e of h is rig ht to have a tri al by a jury: MR. STILLRICH [Defense Couns el]: And do you und erstand what a jury trial is? DE FEN DAN T: Ye s, I do. MR. STILLRICH: And you indicated to me when I spoke with you at the detention center the other evening that you desired to h ave the case tried before this Court alone, is that correct? DE FEN DAN T: Ye s, I do. MR. STILLRICH : An d you do specifically waive your right to have the matter tried before a jury? DE FEN DAN T: Ye s, I do. MR. STILLRICH: Has anyone forced you or threatened you to have you give up your right to a jury trial? DE FEN DAN T: No , they hav en't. MR. STILLRICH: Have you given up your right to a jury trial freely and voluntarily? DEFENDAN T: Yes, I have. ****** MR. STILLRICH: Your Honor, I would proffer to the Court that a waiver of a jury trial is freely and voluntarily tendered. ****** TH E CO URT : All righ t. MR . STIL LRIC H: An d we're ready to p roceed , Your Hono r. THE COURT: Oka y. And Mr. Tibbs enters a plea of not guilty to the four counts, is that right? MR . STIL LRIC H: Th at's corre ct. THE COURT: Waives his right to a jury trial? MR. STILLRICH: Yes, Your Honor. Id. at 30, 590 A.2d 551. In reversing the Court of Special Appeals affirmance of the defendant s conviction, on a totality of the circumstances review, acknowledging that the validity of a jury trial waiver does n ot depe nd on a fixed lita ny, id. at 31, 590 A.2d at 551, the Court held: [T]he record is w oefully deficie nt to establish that Tibbs knowingly and voluntarily relinquished his right to a jury trial. The record fails to disclose that Tibbs received any information at all concerning the nature of a jury trial, as required by our cas es. See Hall, supra, 321 M d. at 183, 58 2 A.2d 5 07; Martinez v. State, 309 Md. 12 4, 522 A.2d 95 0 (1987). It is not sufficient that an accused -6- merely respond affirmatively to a naked inquiry, either from his lawyer or the court, that he understood that he has a right to a jury trial, that he knows what a jury trial is, and waives that right freely and voluntarily. Id. at 31-32, 590 A.2d at 551. We added that speculation, based on past criminal justice system involvem ent, could not supply the knowledge requirement: [a]ccordingly, notwithstanding that Tibbs may have had some prior unspecified experience with the criminal justice system, the trial j udge cou ld no t fair ly be satisfied on this reco rd that Tibb s had the req uisite knowledge of the nature of the jury trial right, that his waiver of the right was knowing and volu ntary, and that the requ iremen ts of the rule we re thus m et. Id. at 32, 590 A. 2d at 551-52. The majority, in responding to the contrary result reached by the Tibbs court, mere ly states that the trial court in that case shou ld have inquire d furth er. __ Md. at __, __ A.2d at __, n.12 [slip op . at 24]. I agree, it sh ould have and the fa ct that it did not w as fatal. Moreover, that is exactly what I believe should have happened here. If Tibbs stands for the proposition that knowledge o f the right to jury trial cannot be inferred when the litany focuses exclusively on voluntariness factors, how, I ask, can the majority infer no coercion or inducements when the litany focuses exclusively on knowledge factors? The circumstances in Tibbs mirror this case. At no time was the petitioner asked about anything that would impact the voluntariness of his waiver, except, of course, the nature of the jury trial right and the effect of w aiver in the co ntext of a d eath pena lty proceeding . That a defendant is aw are of, has some kn owledge of, the jury trial right, while it may be necessary to a finding of voluntariness, it simply do es not add ress directly the m otivation issue and it certainly does not inform the court as to it. Whether a person has been coerced or induced to act, whether physically, mentally, by promise or otherwise, ordinarily is not readily, and may -7- not be at all, observable.3 As in Tibbs, there is in this case nothing whatsoever on which the trial court could have relied to determine, as it must have done, that the petitioner s jury trial waive r was n ot the pr oduct o f dures s or coe rcion. The majority s reliance on the absence of facts in the record demonstrating that the court had a reason to ask questions going to the voluntariness of the w aiver is, th erefore , quite cu rious. Nor can the fact that the petitioner was represe nted by c ounse l provid e the ne cessary b asis for the volu ntarines s determ ination. We can not forget that coercion and improper inducements may have many sources. Indeed, it is not unheard of that a defendant s attorney may be the source of an improper inducem ent. To be sure, we can speculate that counsel properly advised the petitioner about his jury trial right and sa tisfied himse lf that the def endant s d ecision w as not the res ult of coercion, duress or prom ises. Moreover, we may also surmise that counsel did not himself do anything to coerc e or imp roperly in duce th e waiv er. As with th e know ledge p rong, see Tibbs, that is not sufficient. Nor is it uncommon that disclosure of such inducements is made, if at all, only upon direct inquiry, perhaps because of the nature of the proceedings - the defendant is responding to questions and likely does not know that he should, or is expected to, volunteer information. Expecting the defendant to volunteer the information or, at least signal that there may be matters that may call into question the voluntariness of the defendant s announced 3 The Court was not unaware of the tenuousness of relying on a record that was not developed fully as to all aspects of the waiver construct. In Dortch v . State, 290 Md. 229, 428 A.2d 1220 (1981), taking note of the fact that many trial judges inquired specifically into the motivation of defe ndants who w aived jury trials, the Court pronounced that to be the preferable practice and encourage[d] trial judges to engage persons electing court trials in a dialogue as detailed as time, resources and circumstances permit so as to insulate jury trial waivers from successful direct or collateral attack. Id. at 236, 4 28 A.2 d at 122 4, quoting Davis v. S tate, 278 Md. 103, 118, 361 A.2d 113, 121 (1976). We reiterated that encouragement in Hall, in light of our recognition that the cold record before us does not reflect a defendant's demeanor, tone, facial expressions, gestures, or other indicia which, to a trial judge, may be indicative of a knowing and voluntary waiver of the jury trial right. Id. at 183-84, 582 A.2d at 510. -8- decision, without explicitly advising him of the consequences of not d oing so , therefo re, is, I submit, most unrealistic. In any event, it is the court s burden to satisfy itself that the waiver is volunt ary, not the defen dant s. The absence of evidence hardly seems an appropriate or adequate basis on which to meet that burden. I join the majority opinion insofar as it holds that the record is insufficient to establish that the petitioner knowingly and voluntarily waived his right to jury sentencing. I dissent, however, from the conclusion that he kno wingly and v oluntarily waived his right to jury trial at the guilt or inn ocence sta ge. I wou ld remand and orde r a new trial. Nevertheless, I feel compelled to mention one curiosity regarding the basis for the majority s holding that the petitioner did not know ingly and voluntarily waive his right to jury sentencing - the failure of the trial judge to make an inquiry concerning the voluntariness of the petition er s jury se ntencin g decis ion. Noting that the trial court knew that the petitioner had been prescribed psychiatric medication while in custody, the majority is troubled, and rightly so, by the trial judge s failure to ascertain whether, when he was required to decide whether to waive jury sentencing, he was still taking the medication and, if so, whether any side effects of such medication might have affected the petitioner s ability to make a knowing and voluntary waive r. Not having made this inquiry, directly implicating the voluntariness of the petitioner s waiver decision, the trial judge erred, the majority concludes, in finding the waiver to have been k nowin g and v oluntar y. Interestingly, the petitioner did not volunteer any information on the subject of his medication, or the effect of not taking it, at the sentencing waiver hearing. It is interesting that the petitioner was not questioned on this subject, just a s he did not volunteer such information, during the initial jury trial waiver either. The majority states that -9- such an inquiry was un necessary at that earlier stage, reasoning [t]he effect of the failure to make a specific inq uiry on this point in the jury sentencing waiver is distinguishable from the absence of a similar inquiry during the jury trial waiver process because, in the latter, the cou rt heard contemporaneous expert medical testimony regard ing Appellant s competency to stand trial, which included the prescription of [psychiatric medication]... __ Md. at __, __ A.2d __ [slip op . at 60]. This difference is curious. The issue of whether the petitioner s voluntariness was compromised by the petitioner s fa ilure to take his prescribed medication was as much an issue at the jury trial waiver at the guilt or innocence stage as it was at the jury sentencing stage. I do not agree that whether an inquiry on that subject is appropriate depends on the timing of a competency hearing. U nless the issue of the timing of the last taking of the medication literally had been explicitly addressed immediately before the waiver proceedin g, there really is little difference between the two scenarios. In any event, the focus of a hearing on a defendant s competency to stand trial is on whether that defendant has the capacity to make a volunta ry waiver, whether he or she understands the proceedings, appreciates their significance, and is able to assist counsel in mounting a defense . What is en compas sed in the co ncept of v oluntariness as it relates to waiver is much m ore; it involve s determinin g wheth er, in fact, that de fendant v oluntarily waived his or her right to a jury trial or sentencing, as appropriate. That determination, in turn, may be informed, and often is , by more than a defendant s capacity to waive due to lack of medication and its effect; also relevant to the determination is the presence or absence of coercion, inducements or promises affecting the waive r decision. T he tempo ral proximity -10- between a competency hearing and the waiver of jury trial hearing, accordingly, is not dispos itive, eve n if relev ant. Judge Greene joins in the views expressed herein. -11- In the Circu it Court for B altimore C ounty Case No. 03-CR-2127 IN THE COURT OF APPEALS OF MARYLAND No. 129 September Term, 2004 JAMAAL KENNETH ABEOKU TO v. STATE OF MARYLAND Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Concurring and Dissenting Opinion by Rake r, J., which Bell, C .J., and G reene, J ., join in d issent. Filed: February 13, 2006 Raker, J., concurring and dissenti ng, in w hich B ell, C.J., an d Gree ne, J., join in dissen t: I. I would reverse the sentence and the imposition of the death penalty on the grounds that the Maryland death penalty statute violates due process and is therefore unconstitutional because the statute requires that aggravating circumstances outweigh mitigating circumstances only by a preponderance of the evidence rather than the standard o f beyond a re asonable doubt. I adhere to my views expressed more fully in the dissenting opinions of Evans v. State, 389 Md. 4 56, 886 A.2d 5 62 (20 05), Miller v. State, 380 Md. 1, 84 3 A.2d 803 (2 004), Oken v. State, 378 Md. 179, 835 A.2d 1105 (2003), and Borchardt v. State, 367 Md. 91, 786 A.2d 631 (2001). I would sever the preponderance of the evidence standard from Md. Code (2002, 2005 Cum. Supp.), § 2-303(i) of the Criminal Law Article, vacate appellant s death sentence, and remand the case for a new capital sentencing proceeding at which a reasona ble doubt standard would apply to the weighing proc ess under § 2-303(i). Although I find that the preponderance of the evidence stand ard in § 2-3 03(i) is invalid, th at standard c learly is severable from the remainder of the Maryland death penalty statute. The Maryland death penalty statute is complete and capable of being enforced with the preponderance of the evidence stand ard severed from § 2-3 03(i). T hat stan dard w ould, un der the r equirem ents of due pro cess, be replace d by the sta ndard o f beyond a reaso nable d oubt. Chief Judge Bell and Ju dge Gre ene have authorized me to state th at they join in this dissent. II. I would affirm the judgments of conviction on the guilt/innocence phase. -2-

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