Walker v. State
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Kevin Walker v. State of Maryland, No. 75, September Term, 2007. CRIMINAL PROCEDURE WAIVER OF A JURY TRIAL PROCEDURE FOR ACCEPTANCE OF WAIVER Petitioner, Kevin Walker, was charged with various criminal law offenses and agreed, on the day of trial, to proceed on a not guilty statement of facts as to one count of possession of a forged docume nt. During a record co lloquy to establish whether W alker s waiver of a jury trial was knowing and volun tary, the trial judge as serted his personal know ledge of Walk er s prior criminal justice system experience, defense counsel referenced pre-hearing discussions with his client, and W alker respo nded aff irmatively to the trial judge s assertion tha t he fully understand[s] about jury trials and [all that]. Walker petitioned for certiorari in the Court of Appeals, arguing that the circuit court erred in failing to conduct an examination, on the record, as to whether his waiver of a jury trial was knowing and voluntary, in compliance with the requirements of Maryland Rule 4-246(b). Th e Court of Appeals affirmed, holding that the knowingly requirement of Maryland Rule 4-246(b) was satisfied under the circum stances . IN THE COURT OF APPEALS OF MARYLAND No. 75 September Term, 2007 KEVIN WALKER v. STATE OF MARYLAND Bell, C.J. Harrell Battaglia Greene Murphy Wilner, Alan M. (Retired, specially assigned) Cathell, Dale R. (Retired, specially assigned), JJ. Opinion by Murphy, J. Bell, C.J., Battaglia and Greene, JJ., Dissent. Filed: October 24, 2008 In the Circ uit C ourt for H owa rd County, Kevin Walker, Petitioner, was convicted of possession of a forged document. He now argues that he is entitled to a new trial on the ground that the Circu it Court erron eously failed to conduct a jury trial waiver inquiry required by Md. Rule 4-246(b). The Court of Special Appeals rejected this argument. For the reas ons tha t follow , so do w e. I. Petitioner was arrested by Howa rd Coun ty police office rs about 3:0 0 p.m. on Ju ly 24, 2005. Later that day he was served w ith a District Court STATEME NT OF CHA RGES that formally charged him with two violations of the Maryland Controlled Dangerous Substances Act and eight violations of ยง 8-601 o f the Crim inal Law Article. A d efendan t charged w ith any of these offenses has a right to be tried in the District Court, as well as a right to be tried in the circuit cou rt. The Distric t Court set P etitioner s bail at $ 5,000, and scheduled Petitioner s trial for October 14, 2005. On September 29, 2005, the District Court received a DEMAND FOR JURY TRIA L filed on Petitioner s b ehalf by his trial counsel. Petitioner s circuit court trial was originally scheduled for November 29, 2005, but was re scheduled to January 24, 2 006 at the re quest of P etitioner s trial cou nsel. Petitioner s trial counsel filed several pretrial motions, including what he described as more properly characterized as a motion to dismiss, based on an unlawful arrest. That motion was heard and denied on January 10, 2006. On January 24, 2006, the following transpired in o pen cour t: [THE PROSECUTOR]: Your Honor, we are proceeding by way of a not guilty agreed statement of facts as to Count 7 which is possession of a forged document. Your Honor, the State and the Defense will be recommending a flat time served disposition of this matter. *** [COUNSEL FOR WALKER]: Your Honor... that s our understanding of the agreement. *** [COUNSEL FOR WALKER]: And, Your Honor, just so it is clear to Mr. Walker, by proceeding on a not guilty statement of facts as him and I have discussed, he is essentially preserving his automatic right to appeal. [THE COURT]: Right. [COUNSEL FOR WALKER]: Certain motions that have been made previously in this case. [THE COURT]: Right, I saw the record, there was a [COUNSEL FOR WALKER]: A Motion to Dismiss that was denied. [THE COURT]: Yeah, right. But that fully preserved it for appellate purposes. [COUNSEL FOR WALKER]: Thank you. [THE COURT]: Right. Do you want to qualify Mr. Walker on the [COUNSEL FOR WALK ER]: Yes, Y our Honor. [THE CO URT]: on the not guilty agreed statement of facts. [COUNSEL FOR WALKER]: Mr. Walker, as the State has just informed the Court, it is your desire today to proceed on a not guilty statement of facts. Is that correct? [WALKER]: Yes. [COUNSEL FOR WALKER]: Okay. And you understand that when proceeding on a not guilty statement of facts you are 2 proceeding as if you in fact went to trial and you were convicted of the crime charged? In this case, that crime is possession of a forged or privileged document. Do you understand? [WALKER]: Privileged document, okay. [COUNSEL FOR WALKER]: And do you understand that the difference between proceeding on a guilty plea and a not guilty statement of facts is that in this situation you are, as I informed the Court, and your understanding is that you are preserving your automatic right to appeal. Do you understand that? [WALKER]: Correct. [COUNSEL FOR WALKER]: Okay. Can you please state your full name for the record? [WALKER]: Kevin Dwight Walker. [COUNSEL FOR WALKER]: Okay. How old are you? [WALKER]: Forty-nine. [COUNSEL FOR WALKER]: Okay. How far did you go in school? [WALKER]: Fifteen years. [COUNSEL FOR WALKER]: Okay. Do you read and [write] the English language? [WALKER]: Yes. [COUNSEL FOR WALKER]: Okay, and do you understand everything that is happening here today? [WALKER]: Yes. [COUNSEL FOR WALKER]: Okay. Have you taken any drugs, medicine or pills [WALKER]: No. 3 [COUNSEL FOR WALKER]: within the last 24 hours? [WALKER]: No. [COUNSEL FOR WALKER]: Mr. Walker will you let me finish my questions first? Are you presently under the influence of drugs or alcohol? [WALKER]: No. [COUNSEL FOR WALKER]: Okay. Have you received a written copy of the charges in this case? [WALKER]: And that would be this what I got [COUNSEL FOR WALKER]: Okay, we refer to it as the charging documents, statement of charges in this case [WALKER]: Yes. [COUNSEL FOR WALKER]: as this case originated in District Court. [WALKER]: Yes. [COUNSEL FOR WALKER]: Have you had an adequate opportunity to discuss the charges with me as your attorney? [WALKER]: Yes. [COUNSEL FOR WALKER]: Okay. Do you fully understand the charges against you? [WALKER]: Yes. [COUNSEL FOR WALKER]: Do you understand that you are charged with possession, among other things, possession of a privileged or forged document? [WALKER]: Yes. 4 [COUNSEL FOR WAL KER]: Okay. Have you had an adequate opportunity to discuss essentially the plea agreement that we have just detailed to [the judge] here today with me? Hav e you had an ad equate o pportunity? [WALK ER]: Yes. [COUNSEL FOR WAL KER]: Okay. Has anyone made any promises to you other than what has been now placed on the record to get you to enter or proce ed in this manner? [WALKER ]: No. [COUNSEL FOR WAL KER]: Okay. Do you understand that the maximum penalty for this offense is three years? [WALK ER]: Yes. [COUNSEL FOR WAL KER]: Okay. Now, do you understand that when you proceed in this way you are giving up or wa iving your righ t to trial? Do you understan d that? [WA LKER ]: No, I didn t [COU NSEL F OR W ALKE R]: Do you unde rstand that there will be no trial in this situation? [WALK ER]: Okay, yes. [COUNSEL FOR WAL KER]: Okay. And do you understan d that in proc eeding in th is way you are es sentially proceeding and then and in the end it will act as a conviction on the one count of possession of a privileged document? Do you un derstand th at? [WALK ER]: Yes. [CO UNS EL FO R WA LKE R]: Ok ay. You r Hon or. [THE COUR T]: All right, and, Mr. Walker, you understand 5 also that you are waiving a ny right to have a jury trial of this matter, as w ell as a court trial? Do you un derstand th at? [WALKER ]: I do now. I didn t at first. I didn t know it was a waiver. I knew it was an appealable right, you know [THE COUR T]: Yes, you have the [WALKER ]: saving the appeal. So [THE COUR T]: you [have] the right to appeal, but as you know because you and I have been down this road [WALK ER]: oh, yes, yes. [THE COU RT]: you and I have been down this road before and I think we have had at least one jury trial, maybe two. One time you got a hung jury and the other time, I think well, I don t know, I c an t recall eve rything. But you f ully understand about jury trials and [WALK ER]: Yes. [THE COU RT]: all that. [WALKER ]: Yeah, I [TH E CO UR T]: B y proc eedi ng as you a re do ing h ere to day, you are waiv ing your right to h ave a jury trial. [WA LKER ]: All right. The Circuit Court then determined that it was satisfied the Defendant has made a knowing, intelligent and voluntary decision to waive his right to a trial and to proceed on a not guilty statement of facts. Petitioner noted an appea l to the Cou rt of Specia l Appeals , but did not present any 6 argument on whatever issue he intended to preserve for appellate review by proceeding on a not guilty agreed statement of facts. Petitioner argued only that the circuit cou rt erred in failing to conduct an examination, on the record, as to whether P etitioner s waiver of a jury trial was made knowingly and voluntarily, in compliance with the requirements of Maryland Rule 4-246(b). In an unrep orted opinion, the Cou rt of Special Appeals concluded that the trial s court s personal knowledge of Walker s prior jury trial experien ce, comb ined with Walker s affirmation that he fully understood about jury trials, and defense co unsel s reference to pre-hearing discussions with Walker were sufficient for the court to conclude that Walker h ad some knowle dge of the jur y trial right a nd had know ingly wa ived it. Walker v. S tate, No. 25 12, Sep t. Term 2005 ( Filed: Ju ly 13, 200 7), slip op inion p .12. In his petition for writ of certiorari, Petitioner presents the following question: Where absolutely no information about the nature of a jury trial was given to Petitioner on the record, did the Court of Special Appea ls err in ruling that the waiver was nevertheless valid because of the trial judge s assertion of his personal knowledge of Petitioner s prior experience with the criminal justice system, Petitioner s affirmative response to the trial judge s assertion, you fully understand about jury trials and all that, and defense counsel s reference to off-the-record discussio ns with Petitioner? We granted Petitioner s petition for w rit of certiorari to determine whether the waiver was made knowingly under Maryland Rule 4-246 (b). Walker v. S tate, 402 Md. 37, 935 A.2d 406 (2 007). 7 II. Petitioner argues that his waiver of a jury trial was not made knowingly because the trial judge provided no information on the record in open court about the nature of a jury trial. Accord ing to Petition er, the plain language of Rule 4-246 (b) requires an examination regarding waiver of a jury trial on the record in open court, and precludes any presumption that a defend ant who is represente d by counse l was info rmed of h is constitutional rights. He also argues that th e Circuit Court s relian ce on off -the-record m atters includin g his alleged trial experience and pre-hearing discussions with his counsel were in error and that it is not sufficient that he simply responded affirmatively to the trial judge s ass ertion that he fully unders tand[s ] about jury trials an d [all tha t]. The State counters that, considering the totality of the circumstances, the Circuit Co urt was correct in its finding that Petitioner ha d made a knowin g and intellige nt waiver o f his right to a jury trial. Acco rding to the State, the Circuit Court was entitled to consider that (1) Petitioner was specifically aske d if he under stood that he was wa iving his righ t to a jury trial, (2) the circuit court had personal knowledge of Petitioner s jury trial experience, and (3) Petitioner stated on the reco rd that he disc ussed his ca se with his attorney. Additionally, the State asserts that Petitioner s representation by counsel raises the presumption that he has been info rmed of his const itutio nal rights, inc luding his rig ht to a tria l by jury. On January 24, 2005, Maryland Rule 4-246(b) provided: 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 8 waiver until it determines, after an examination of the defendant on the record in open court condu cted by the court, the State s Attorn ey, the attorney for the defen dant, or any co mbination thereof, that t he w aive r is m ade k now ingly and volu ntarily. Maryland Rule 4-24 6 (a)-(b) w as amend ed on D ecembe r 4, 2007, to take effect on Janu ary 1, 2008.1 The revised rule now provides: (a) Genera lly. In the circuit court, a def endant ha ving a right to trial by jury shall be tried by a jury unless the right is waived pursuant to section (b) of this Rule. The State does not have the right to el ect a trial b y 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, after an examination of the defendant on the record in open court conducted by the court, the State s Attorney, the attorney for the defendant, or any combination thereof , the court determines and announces on the record that the waiver is made knowin gly an d voluntarily. The knowingly requirement of the Ru le was ba sed on a 1 982 revisio n to Rule 735, the precursor of Rule 4-246, w hich had p reviously requ ired that a def endant ha ve full knowledge of his rig ht to a jur y trial. 2 The revised version of th e Rule de leted the fu ll 1 The Rule change was in response to Powell v. S tate, 394 Md. 632, 907 A.2d 242 (2006), cert. denied, U.S. , 127 S.Ct. 1283 (20 07), in which this Cou rt upheld Powe ll s jury waiver although the trial judge neglec ted to state on the record that he fo und the jury trial waiver to be knowin g and voluntary. Id. at 645, 907 A.2d at 250. Trial judges are now required to determine[] and announce[] on the record that the waiver is made knowingly and vo luntarily. 2 Maryland Rule 735(d) stated: If the defen dant elects to b e tried by the court, the trial of the (continued...) 9 knowledge requirement, replacing it with a requirement that the waive r be made know ingly and voluntarily, so th at a circuit court ju dge n eed no t recite an y fixed in cantatio n, but the court is ultima tely responsible for determining that the defendant had some knowledge of the jury trial right befor e being allo wed to waive it. Abeoku to v. State, 391 Md. 289, 31718, 893 A.2d 10 18, 1034 (2006 ), State v. Hall, 321 Md. 178, 182-83, 582 A.2d 507, 509 (1990); Martin ez v. State, 309 Md. 124, 133-34, 522 A.2d 950, 955 (1987). To waive the constitutiona lly protected right to a trial by jury the trial judge must be satisfied tha t there has been an intentional relinquishment or aban donm ent of a know n right o r privileg e. Owens v. State, 399 M d. 388, 4 18-19 n.41, 92 4 A.2d 1072, 1 089 n.4 1 (200 7), cert. denied, __ U.S. __ , 128 S.Ct. 1069 (2008); Powell v. S tate, 394 Md. 632, 639, 907 A.2d 242, 247 (2006 ), cert. den ied, __ U.S. __ , 127 S.C t. 1283 (20 07); Smith v. Sta te, 375 Md. 365, 379, 825 A.2d 1055, 10 64 (2003). See also Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023 (1938). Because only the defenda nt can valid ly waive his or he r righ t to tri al by ju ry, the defenda nt must direc tly respond to the waive r inquiry. Hall, 321 Md. at 182, 582 A.2d at 509; Martinez, 309 Md. at 133, 522 A.2d at 954. Moreover, in determining whether the 2 (...continued) case on its merits before the court may not proceed until the court determines, after inquiry of the defendant on the record, that the defendant has made his election for a court trial with full knowledge of his right to a jury trial and that he has know ingly and voluntarily waived the right. If the court determines otherwise, it shall give the defendant another election pursuant to this Rule. (emphasis added ). 10 defendant made the waiver knowingly, we will look to the totality of th e circum stances . Hall, 321 Md. at 183, 582 A.2d at 509. In State v. Bell, 351 Md. 709, 720 A.2d 311 (1998), this Court discussed the standard to be applied under the 1982 revision to then Rule 735, which subsequently became Rule 4246. We reviewed the history of the revision, which we stated, implies tha t we wish ed to move away from the rigidity of the forme r rule 735 and Countess. 3 Id. at 724, 720 A.2d at 318. We then conclude d, with resp ect to the definition of knowingly in the applicable rule: Kno wledg e, in this context means acquaintance with the principles of a jury and knowingly means acting consciou sly or intentionally in w aiving the right to a jury. Because respondent s knowledge no longer need be full, it need not be complete or entire. The rule no longer requires a specific in-court litan y of ad vice with resp ect to the unanimity requirement for the trial court to accept and permit the wa iver, by a defend ant, of his righ t to a jury trial. Id. at 730, 720 A.2d at 321 (citations omitted). We considered whether a waiver could be made knowin gly if the defendant was not told that all 12 jurors must unanimously agree on his guilt beca use, in Bell, the defendant had agreed to a court trial after the judge informed him that a jury was comprised of 12 jurors, and that the charges must be proved beyond a reasonab le doubt regardless of whether he chooses a jury trial or a court trial; th e unanim ity 3 In Countess v. State, 286 Md. 444, 455, 408 A.2d 1302, 1308 (1979), we held that the defendant must know of his right to be tried by either a jury consisting of 12 people or the court; that guilt must be determined beyond a reasonable doub t in either a jury or court trial; that all 12 jurors must agree to a g uilty verdict in order to convict in a jury trial; and that in a court trial only the judge determ ines whe ther defen dant is guilty beyon d a reason able doubt. 11 requirement was not a ddressed. W e held that this colloquy suff iciently ensured that the defendant knowingly waived his right to a jury trial, even though the judge did not specifi cally addr ess the u nanim ity requirem ent. Id. In State v. Ha ll, 321 Md. 178, 582 A.2d 507 (1990), this Court expressly rejected the proposition that a jury trial waiver ca nnot be kn owing a nd volun tary unless the de fendant is advised as to the details of the jury selection process. Id. at 183, 582 A.2d at 510. In Hall, the respondent, who had entered a guilty plea pursuant to an agreement with the State, argued that his jury trial waiver was not knowingly and voluntarily made because he was not asked any questions about (1) his mental condition at the time of the waiver, (2) his knowledge of the jury selection pro cess, or (3) w hether his w aiver was the result of c ompulsio n. While holding that the waiver at issue was knowing and voluntary, this Court stated yet again: Our cases hold that whether there has been an intelligent waiver of the jury trial right depends upon the facts and circumstances of each case. Stewart, supra, 319 Md. at 90, 570 A.2d at 1234; Martinez, supra, 309 Md. at 134, 522 A.2d [at 955]; Dortch v. State, 290 Md. 229, [235,] 428 A.2d 1220[, 1223] (1981). In determining whether the defendant has knowin gly and volun tarily waived h is right to a jury trial under Rule 4-246(b), the questioner need not recite any fixed incanta tion. Martinez, supra, 390 [309] Md. at 134, 522 A.2d [at 955]. The court must, however, 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 before being allowe d to wa ive it. Id. at 134, 522 A.2d [at 955]. [Emp hasis ad ded.] Id. at 182- 83. In Abeoku to, 391 Md. at 289, 893 A.2d at 1018, Abeokuto appealed his court trial 12 conviction for first deg ree murde r and other c riminal char ges by challenging the court s finding that he ma de a volun tary and intelligen t waiver of his right to a jury trial. During a colloquy between Abeokuto, his counsel, the prosecutor, and the judge, Abeokuto was asked seven times whether he understood the explanations given in byte-size 4 groups, concerning his rights and the nature of a jury trial. We emphasized that the trial court need not engage in a fixed litany or b oilerplate colloquy, and found the waiver valid because he was explained the jury trial process, standard of guilt, burden of proof, the necessity of a unanimous guilty verdict, and that, if co nvicted, [he ] would h ave a later op portunity to choose whether to waive his right to a sentencing by jury. Id. at 320, 8 93 A.2 d at 103 6. Petitioner argues that the case at bar is controlled b y Tibbs v. Sta te, 323 Md. 28, 590 A.2d 550 (199 1), in which this Court analyzed the efficacy of the following colloquy between Tibbs, his counsel, and the judge regarding th e waiver o f the right to trial b y jury: [DEFENSE COUN SEL]: And do you understand w hat a jury trial is? DEFENDA NT: Yes, I do. [DEFENSE COUN SEL]: And you indicated to me when I spoke with you at the detention center the other evening that you desired to have the case tried before this Court alone, is that correct? 4 We stated that courts should present such information to defendants in smaller intellectual bytes and inquire discretely after each byte or logical grouping of bytes whether a defendant understands them in order to ensure understanding of what could be a rather daunting explication to a layman. Abeoku to v. State, 391 Md. 289, 350 n.23, 893 Md. A .2d 101 8, 1054 n.23 (2 006). 13 DEFENDA NT: Yes, I do. [DEFENSE COUNSEL ]: And you do specifically waive your right to have t he m atter tried befo re a ju ry? DEFENDA NT: Yes, I do. [DEFENSE COUNSEL ]: Has anyone forced you or threatened you to have you give up your right to a jury trial? DEFE NDA NT: N o, they haven t. [DEFENSE COUNSEL ]: Have you given up your right to a jury trial f reely a nd volun tarily? DEFENDA NT: Yes, I have. *** [DEFENSE COUNSEL]: Your Honor, I would proffer to the Court that a waiv er of a jury trial is free ly and volunta rily tendered. *** THE C OUR T: All right. [DEFENSE COUNSEL]: And we re ready to proceed, Your Honor. THE COUR T: Okay. And M r. Tibbs enters a plea of not guilty to the four c ounts, is that righ t? [DEF ENSE COU NSEL ]: That s corr ect. THE C OUR T: Waiv es his right to a jury trial? 14 [DEFE NSE C OUN SEL]: Yes, Y our Honor. Id. at 30, 590 A.2d at 551 (omissions in original). This Court held that the record was woefu lly deficient to establish a knowing waiver of Tibbs right to a jury trial because he had received no information concerning the nature of a jury trial, notwithstanding that Tibbs may hav e had so me prio r unspe cified e xperien ce with the crim inal justic e system. Id. at 31-32, 590 A.2d at 551. We concluded that, [i]t is not sufficient that an accused merely resp ond affi rmativel y to a n aked inqu iry, 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 32, 59 0 A.2d at 551. In the case at bar, the record shows that Petitioner obviously had some knowledge of his right to a jury trial, because he (1) made a considered decision to pray a jury trial rather than stand tria l in the District C ourt, 5 (2) had been a crim inal defendant in at least one jury trial presided over by the very same circuit court judge who presided over the case at bar, (3) was represented by counsel, who reached an agreement with the State, pursuant to which the State would drop all but one of several charges then pending against the defendant in the circuit court, (4) elected to p roceed on a not guilty agre ed stateme nt of facts in order to 5 It is clear that Petitioner s demand for jury trial, which was filed pursuant to Maryland Rule 4-301(b)(1)(A), was not made subsequent to the denial of a request for postponement. By complying with Rule 4-301(b)(1)(A), Petitioner obtained the right to circuit court discovery governed by Maryland Rule 4-263, as well as the right to on the record appellate review of a judgment of conviction entered in the circuit court. 15 preserve for appella te review some issue that was thereafter abandoned,6 and (5) advised the circuit court that he understoo d that he w as waiv ing any right to h ave a jury trial of this matter, as well as a court trial[.] Under these circumstances, the circuit court had an adequ ate basis to determ ine that P etitioner s waiv er was know ing and volunt ary. Unlike cases in which the defendant chooses between a court trial and a jury trial in order to challenge the probative value of the State s evidence, the case at bar is one in which Petitioner was challenging the admissib ility of the State s evidence rather than the sufficiency or the probative value of that evidence.7 To preserve his right to appellate review of the issue 6 By proceeding in the circuit court on a statement of facts, Petitioner did preserve the issue of whether he w as entitled to su ppression o f the forge d docum ent seized f rom his person on July 24, 20 05. While Petitioner s case was pending in the District Court, he filed a pro se Motio n for Dismissal, complete with a certificate of service, in which he claimed that he was entitled to a dism issal on the grounds of (in the words of his m otion): I. Lack of Probable Cause [f or his arrest] II. Harassm ent III. Unlawfully Detained IV. Violatio n of civil righ ts V. Violation of Federal Constitution The right to Privacy During Petitioner s January 10, 2006 Motions Hearing, his counsel argued th at all charges against Petitioner should be dismissed on the ground that the incriminating evidence seized from Petitioner s person on July 24, 2005 was seized in violation of Petitioner s Fourth Ame ndme nt rights . 7 All of the cases in which this Court concluded that noncompliance with Maryland Rule 4-246(b) entitled the defen dant to a new trial are cases in w hich the circu it court was required to determin e the proba tive value o f testimonial evidence presented d uring a trial. (continued...) 16 of whether the State s evidence was acquired in violation of his constitutional rights, Petitioner made a stra tegic decision to have the court determine his guilt or innocence on the basis of an agreed statement of facts that was the product of plea negotiations.8 The record shows that, having prayed a jury trial in the Dis trict Court, Pe titioner wan ted to proce ed in the circuit court on a not guilty agreed statement of facts as a result of a bargained for arrangement that would allow him to (1) avoid prosecution on all but one of the charges he was then facing, and (2) obtain appellate review of the denial of some motion that he had filed. The record also shows that he agreed to the truthfulness of the facts that constituted the basis for his conviction of the one charge for which he would receive a time served 7 (...continued) In Abeoku to v. State, 391 Md. 289 , 893 A.2d 101 8 (2006), the circuit court received conflicting evidence on the issue of whether the petitioner sho uld be sentenced to d eath. In Kang v. State, 393 Md. 97, 899 A.2d 843 (2006), the circuit court received conflicting evidence on the issue of whether (1) the petitioner attempted to murder his wife by hanging her, or (2) the p etitioner s wife had atte mpted to com mit suic ide by ha nging h erself. Id. at 101. In State v. Bell, 351 Md. 709, 720 A.2d 311 (1998), the circuit court was presented with conflicting evidence of whether the respondent raped a woman with whom he had once been romantically involved. In Tibbs v. Sta te, 323 M d. 28, 590 A .2d 550 (1 991), the petitioner contested the issue of whether he had committed four violations of the Maryland Controlled Dangerous Substances Act. In Martinez v. State, 309 Md. 124, 522 A.2d 950 (1987), the circuit court wa s required to evaluate the credibility of the nine year old victim of a third degree sex offense, as well as the credibility of the detective to whom the petitioner had alleged ly confes sed. 8 While lawyers and judges oc casionally state that a not guilty agreed statement of facts is distinguisha ble from a n actual tria l, this Court ha s made it cle ar that [a] defendant s agreement to proceed on an agreed statement of facts is essentially a trial by stipulation, at which g enerally no live witnesses are called. Atkinson v . State, 331 Md. 199, 203 n.3 , 627 A .2d 101 9, 1021 n.3 (19 93). 17 dispos ition. Petitioner does not argue that his waiver was the product of duress or coercion. For reasons stated in State v. Bell, supra, and State v. H all, supr a, the circuit court was not required to ad vise the p etitio ner a s to either the unanimity requirement or the jury selection process. Because the record does show that Petitioner had been a criminal defendant in a jury trial presided over by the very same circuit court judge w ho presided over the c ase at bar, Petitioner s jury trial experience distinguishes him from defendants who may have some prior unspecified experience with the criminal justice system[.] Tibbs v. State, 323 Md. 28, 32, 590 A.2 d 550, (19 91). Petitione r s know ledge of h is jury trial right is hardly unsp ecified . He was the criminal defendant in at least one case that w as tried befor e a ju ry. While it is true that the some knowledge requirement includes an on-the-record showing that the defendant knows that (1) a criminal defendant is presumed to be innocent and cannot be convicted unless the trier of fact is persuaded beyond a reasonable doubt of the defendant s guilt, and (2) if the defendant did not waive a ju ry trial, his or her case would be tried by a jury of twelve persons, it is clear that the requirement was satisfied in the case at bar because it is unreasonable to hypothesize that Petitioner -- having elected a jury trial when facing criminal charges on at last one prior occasion -- does not know either the prosec ution s b urden o f persu asion o r the nu mber o f perso ns wh o wou ld be on the jury. JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED; PETITIONER TO PA Y THE COSTS. 18 IN THE COURT OF APPEALS OF MARYLAND No. 75 September Term, 2007 KEVIN WALKER v. STATE OF MARYLAND Bell, C.J. Harrell Battaglia Greene Murphy Wilner, Alan M. (Retired, specially assigned) Cathell, Dale R . (Retired, specially assigned), JJ. Dissen ting Op inion b y Battaglia , J., which Bell, C.J. and Greene, J., join. Filed: October 24, 2008 I respectfully diss ent. In the present c ase, Petitioner , Kevin W alker, was c harged w ith possession of a forged docume nt. He was convicted in a bench trial after proceeding on a not guilty agreed statement of facts. Walker noted an appeal to the Court of Special Appeals, arguing that the Circuit Court erred in failing to conduct a n examin ation, on the r ecord, as to w hether his waiver of a jury trial was made knowingly and voluntarily, in compliance with the requireme nts of Maryland Rule 4-246 (b), which, prior to amendments taking effect on January 1, 2008, summarized the constitutional requirements as well as the procedure a circuit court m ust follow in accepting a waiver o f a jury trial: (a) Genera lly. In the circuit cou rt a defenda nt having a right to trial by jury shall be tried by a jury unless the right is waived pursuant to section (b) of this Rule. If the waiver is accepted by the c ourt, the S tate m ay not elec t a tria l by jury. (b) Procedure fo r 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 the waiver is made knowin gly and volu ntarily. (emph asis add ed). Presently at issue is whether a record colloquy between Walker, his counsel and the court satisfied the proced ure for kn owingly waiving a jury trial un der Ru le 4-24 6 (b). The majority clearly ag rees tha t an agre ed statem ent of f acts is a tri al, see Slip Op. at 17 n.8, and 20 because a trial is involved, the judge must comply with the dictates of Rule 4-246 (b). Acc ordingly, Walker was entitled to engage in the appropriate colloquy. The only colloquy Walker engaged in concerning whether his waiver was made knowingly, was the following: [COUNSEL FOR WAL KER]: Okay. Now, do you understand that when you proceed in this way you are giving up or waiving your right to trial? D o you unde rstand that? [WA LKER ]: No, I didn t [COUNSEL FOR WALK ER]: Do you understa nd that there will be no trial in this situation? [WALK ER]: Okay, yes. [COUNSEL FOR W ALK ER]: O kay. And do you understand that in proceedin g in this way you are essentially proceeding and then and in the end it will act as a conviction on the one count of possession of a privileg ed docum ent? Do yo u understand that? [WALK ER]: Yes. [CO UNS EL FO R WA LKE R]: Ok ay. You r Hon or. [THE COU RT]: A ll right, and, Mr. Walker, you understand also that you are waiving any right to have a jury trial of this matter, as well as a c ourt trial? D o you unde rstand that? [WAL KER]: I do no w. I did n t at firs t. I didn t know it was a waiver. I knew it was an appealable right, you know [THE COUR T]: Yes, you have the [WALKER ]: saving the appeal. So [THE COUR T]: you [have] the right to appeal, but as you know because you and I have been down this road [WALK ER]: oh, yes, yes. [THE COU RT]: you and I have been down this road before and I think we have had at least one jury trial, maybe two. One time you got a hung jury and th e other ti me, I thin k we ll, I don t know, I can t recall everything. But you fully understand about jury trials and [WALK ER]: Yes. [THE COU RT]: all that. [WALKER ]: Yeah, I 2 [THE COURT]: By proceeding as you are doing here today, you are waivin g your right to h ave a jury trial. [WA LKER ]: All right. (Emphasis add ed). Asking Walker if he under stood that he is waiving his right to trial and affirming that he understands about jury trials and [all that] was not the appropriate colloquy because the language is devoid of any information concerning the nature of a jury trial; unlike the defenda nts in cases where we have found a knowing waiver, Walker was not informed of any of the characteristics of a jury trial. See Kan g v. State, 393 Md. 97, 111-12, 899 A.2d 843, 851-52 (2006); Abeoku to v. State, 391 M d. 289, 320 , 893 A.2d 1018, 10 36 (2006 ); State v. Bell, 351 Md. 709, 726-27, 720 A.2d 311, 319-20 (1998); State v. Ha ll, 321 Md. 178, 183, 582 A.2d 507, 509-10 (1990). While courts need not eng age in a fixed litany, Abeoku to, 391 Md. at 320, 893 A.2d at 1036, Walker received absolutely no information regarding the nature o f a jury trial. Walker s colloquy instead parallels the colloquy provided in Tibbs v. Sta te, 323 Md. 28, 590 A.2d 550 (1991). Walker s counsel asked him if he understood that he was waiving his right to a jury trial and he responded that he did not understand: [COUNSEL FOR WAL KER]: Okay. Now, do you understand that when you proceed in this way you are giving up or waiving your right to trial? D o you unde rstand that? [WA LKER ]: No, I didn t The judge proceeded to ask Walker if he understoo d that he w as waivin g his right to trial to which he responded, I do n ow. I didn t at first. I didn t kn ow it wa s a waive r. I knew it was an app ealable right, you k now. . . . Subsequently, the judge stated that Walker 3 understand[s] about jury trials and [all that], to which W alker then responded affirm ative ly. This encounter is similar to the nak ed inquiry to w hich Tibb s affirmativ ely responded but that we no nethele ss foun d wo efully def icient. See id. at 31-32, 590 A.2d at 551. Just like Tibbs, Walker s record reflects the lack of any information at all concerning the nature of a jury trial. Id. at 31, 590 A.2d at 551. His waiver may be more deficient because Walker at first stated on the record that he did not understand he was waiving his right to a jury trial. Therefore, under the definit ion of knowingly set forth in Bell, he cannot be said to have been acting consciously or intentionally in waiving the right to a jury. See 351 Md. at 730, 720 A.2d at 321. In the a bsen ce of mea ning ful li tany, the majority distinguishes this case from Tibbs, by stating that the trial judge s personal knowledge of Walker s experience with the criminal justice system established that Walker had the req uisite knowledge o f jury trials before waiving th e right: [THE COURT]: you [have] the right to appea l, but as you know because you and I have been down this road [WALK ER]: oh, yes, yes. [THE COURT]: you and I have been down this road before and I think we have had at least one jury trial, maybe two. One time you got a hun g jury and the other time , I think well, I don t know, I c an t recall everything. But you fully understand about jury trials and [WALK ER]: Yes. [THE COU RT]: all tha t. In Tibbs, howe ver, we discounted the fact that Tibbs was no novice to the legal system because he was on parole at the time of his arrest for the instant offenses, and stated, 4 notwithstanding that Tibbs may have had some prior unspecified experience with the criminal justice system, the trial judge c ould not fairly be satisfied on this record that Tibbs had the requisite knowledge of the nature of the jury trial right, that his waiver of the right was knowing and voluntary, and that the requirem ents of the rule were thus met. We conclude, therefore, that constitutional due process requirements were transgressed in this case. 323 Md. a t 31-32, 590 A.2d at 551-52. In Tibbs, we were clear in our holding that unspecified criminal justice experie nce is n ot enou gh to es tablish a know ing wa iver. A number of othe r jurisdic tions ag ree with this stan ce. See also State v. Baker, 170 P.3d 727, 730 (Ariz. Ct. App. 2007) (finding that a valid jury trial waiver cannot be accomplished by reliance upon a d efendan t s prior expe rience in the s ystem ); People v . Camp bell, 76 Cal. App. 4th 305, 31 0 (Cal. Ct. App. 1999) ( The Attorney General in stead conte nds we s hould infer from [de fendant s ] experienc e and fam iliarity with the criminal justice system that he intelligently and voluntarily waived his rights. W e decline to do so. If this experien ce were sufficient to constitute a voluntary and intelligent waiver of constitutional rights, courts would rarely be required to give Boykin/Tahl admo nitions. ). But see State v. Ross, 472 N.W.2d 651, 65 4 (Min n. 1991) (concluding there was support for a valid waiver based on defendant s familiarity with the criminal justice system although it was not clear whe ther his past convictions were by plea or trial).1 1 Other jurisdictions have looked to a defendant s specific experience with the criminal justice system to determine whe ther it is sufficient to support a know ing waiver. See Hill v. Beyer, 62 F.3d 4 74, 485 (3 d Cir. 1995 ) (declaring th at while past experie nce with the criminal justice system could demonstrate an awareness of constitutional rights, the facts were insu fficient to su pport a knowing waiver when defendant s criminal record consisted of only one conviction fo r which h e pled guilty); Hensley v. United States, 281 F.2d 605, (continued...) 5 The majority, nevertheless, distinguishes Tibbs by arguing that, although the trial court in that case was faced with prior unspecified experience with the criminal justice system, the trial court h ere had person al know ledge o f Walk er s pas t experie nce w ith jury trials. The trial judge s knowledge, while personal, was unspecified: I think we have had at least one jury trial, maybe tw o. One time you g ot a hun g jury and the othe r time, I think well, I don t know, I can t recall everything. To accept the m ajority s reasoning would require concluding that such unspecified knowledge can be imputed to the defen dant to sup port a knowing waive r of a jur y trial. Nothing on the record confirms Walker did have jury trial experience and, if so, when suc h trials occurred. The record is absent of any discussion specifically establishing the extent, if any, of Walker s jury trial experience. We therefore, should not assume that the judge s assertion of Walker s unspecified experience with the criminal justice system equates with W alker s actual knowled ge of the nature of jury trials. The majority also inco rrectly assumes that represen tation by coun sel and counsel s decisions to 1) elect a jury trial; 2) negotiate an agreement regarding sentence; and 3) proceed on an agreed statement of facts impute knowledge to the defendant. It canno t, however, be 1 (...continued) 608-09 & n.6 (D.C. Cir. 1960) (finding experience with two prior jury trials in which defendant was acquitted as a factor to consider in determining whether there was a knowing waiver); People v. Turner, 875 N.E.2d 175, 184 (Ill. App. Ct.) (finding that, although not necessary to the decision, defendant s two, prior criminal conviction s and six prio r traffic convictions lent additional support to the validity of defendant s waiver); Justice Lytton, concu rring op inion, id. at 185 (stating that reference to def endant s supposed knowledge of the criminal justice system sh ould be om itted becaus e [d]efe ndant s fa miliarity with the criminal justice system was a ten-year-old felony, a ten-year-old misdemeanor, and a smattering of traffic tickets handed out over a period of 23 years, which [t]aken together . . . give the defendant little basis for know ing the nature and imp ort of a jury waiver ), appeal denied, 879 N.E.2d 93 8 (Ill. 2007). 6 assumed that the significance of such decisions are adequately communicated to a defendant by counsel or that, if explained, the defendant in fact understands the significance of such decisions; in fact, the record reflects Walker did not understand. Hence, Rule 4-246 (b) explicitly requires that a waiver examination be on the record in open court. We have recently noted that th e presence of couns el will not m itigate an inac curate or incomplete court instruction when considering whether the waiver of a jury sentencing right was knowing and vo luntary. Abeoku to, 391 Md. at 348 n .21, 893 A.2d a t 1052 n .21. Therefore, neither the presence of counsel nor decisions made by counsel in the present case can overcome the requirement of Rule 4-246 (b) that Walker s waiver examination be on the record in open court. Walker was not informed on the record of the nature of a jury trial and the combination of his affirm ative resp onse to the jud ge s nak ed in quiry as to whether he fully underst[ood] about jury trials and [all that], the judge s assertion of past trial experience with Walker, and any information that counsel could have, but may not have, provided him, when considered under the totality of the circumstances, fail to amount to a knowing waiver. The prec edent set by the majority s opinio n underm ines the requ irements of Maryland Ru le 4-246 (b). I respectfully diss ent. Chief Judge Bell and Judge Greene authorize me to state that they join in this dissenting opinion. 7
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