Banks v. State

KEHOE, J. Kelvin Banks was indicted in the Circuit Court for Montgomery County, Maryland, and charged with child sexual abuse, and two counts of third degree sexual offense. After waiving his right to a jury trial, Banks was convicted by the court of child sexual abuse and two counts of fourth degree sexual offense. In accepting Banks’s jury trial waiver, the trial court did not expressly state on the record that it found ¹⁹⁷ Banks’s decision to be knowing and voluntary. Banks asserts that the court’s failure to do so requires us to vacate his convictions and remand this case for a new trial.

He is correct; the Court of Appeals’ recent decision in Valonis and Tyler v. State, 431 Md. 551, 570 , 66 A.3d 661 (2013), is very clear as to this issue. What makes this case of wider interest is the second issue raised by Banks. He contends that the trial court erred in not permitting his lawyer to impeach the credibility of a prosecution witness by introducing evidence that she had been convicted of resisting arrest. This appears to be a question of first impression in Maryland.

We conclude that the trial court’s evidentiary ruling was correct. BACKGROUND Banks does not challenge the sufficiency of the evidence. In view of the issues presented, we need not include a detailed summary of all the evidence adduced at trial. Instead, we shall include “only the portions of the trial evidence necessary to provide a context for our discussion.... ” Washington v. State, 180 Md.App. 458 , 461 n. 2, 951 A.2d 885 (2008); accord Dorsey v. State, 185 Md.App. 82 , 88 n. 2, 968 A.2d 654 (2009).

Banks was convicted of child sexual abuse and of fourth degree sexual offense. At the time the abuse occurred, the victim, along with her mother, B., 1 resided with Banks. The victim testified that the abuse occurred on two separate occasions and further testified that she informed B. after each incident. B. was called as a witness by the State.

She confirmed that the victim reported both incidents to her. B. also testified, without objection, as to details of each assault as described by the victim. ¹⁹⁸ Banks testified on his own behalf and denied any wrongdoing. He stated that he had stopped having contact with former members of his household because of “the accusation [B.] kept making about the kids and stuff. And I got tired of it.” Banks claimed he had no “issue” with the victim, but that he did with B. Banks also testified that B. generally believed that he was “out on the streets ... messing around with other women and stuff.” He also testified that when B. “gets angry she does things----” DISCUSSION I. Banks’s Waiver of His Right to be Tried by a Jury Banks’s first claim on appeal is that the trial court erred in not announcing, on the record in open court, that his waiver of the right to a jury trial was made knowingly and voluntarily, as required by Maryland Rule 4-246(b).

The State makes several points in response, including that the issue was not preserved, that the court did not err because it substantially complied with the rule, and that, even so, any error was harmless beyond a reasonable doubt. Banks replies that the trial court did not substantially comply with the rule and that the preservation rules and harmless error do not apply to a violation of Maryland Rule 4-246(b). The issue presented concerns two separate exchanges between Banks and the court prior to trial. First, after the court suggested that it should send for the prospective jurors, the following transpired (emphasis added): [DEFENSE COUNSEL]: Actually, Your Honor, in discussions with my client this morning, he has informed me that he would be willing to waive the jury and try the case before Your Honor.

THE COURT: Sir, you understand that if you do that, the State will have to prove to my satisfaction beyond a reasonable doubt that you’re guilty; whereas if you elected a jury trial, the State would have to prove your guilt to the satisfaction of all 12 jurors? Do you understand that? MR. BANKS: Yes, sir. ¹⁹⁹ THE COURT: And, otherwise, unless I’m missing something, [Prosecutor], the two trials would be essentially the same.

You sure you want to leave your fate in my hands alone? MR. BANKS: I’ll take my chances, Your Honor. THE COURT: Very well.

Then, after argument on some unrelated preliminary matters, the following ensued: [DEFENSE COUNSEL]: And, Your Honor, I would ask that the Court read the charges to Mr. Banks. And the reason I suggest that is that in the indictment— THE COURT: Well, I think he has a right to that, doesn’t he, [Prosecutor]? [PROSECUTOR]: Your Honor, I have no problem with that. I was just also going to suggest that Your Honor just make sure that he’s aware of his rights for the jury trial, and just basically partially voir dire him on his— THE COURT: Well, I just asked him if he— [PROSECUTOR]: Right. THE COURT:—knew that the only difference I could think of between the two trials would be that all 12 jurors who were picked—Well, they have to be picked from either the voter registration rolls or the motor vehicle driving records.

You understand, sir? MR. BANKS: Yes, sir. THE COURT: And that they all have to be residents of Montgomery County and citizens of the United States.

And you and [Defense Counsel] could exercise challenges if you thought any one prospective juror was biased, and you have some peremptory challenge you could exercise without any reason at all to try to get people off there who might be unfavorable to you. Do you understand that? MR. BANKS: Exactly.

THE COURT: And if we have a Court trial, you’re not going to do any of that. You understand. MR. BANKS: Yes, sir. ²⁰⁰ THE COURT: Okay.

Thank you. An accused’s right to a trial by jury is guaranteed by the Sixth Amendment to the United States Constitution. Duncan v. Louisiana, 391 U.S. 145, 149 , 88 S.Ct. 1444 , 20 L.Ed.2d 491 (1968); Boulden v. State, 414 Md. 284, 293 , 995 A.2d 268 (2010). Similar protection is given to criminal defendants under Articles 5(a)(1) and 21 of the Maryland Declaration of Rights.

Boulden, 414 Md. at 293-94 , 995 A.2d 268 ; Owens v. State, 399 Md. 388, 405-06 , 924 A.2d 1072 (2007), cert. denied, 552 U.S. 1144 , 128 S.Ct. 1064 , 169 L.Ed.2d 813 (2008). Because the right to a jury trial is “absolute,” Robinson v. State, 410 Md. 91, 107 , 976 A.2d 1072 (2009), the right can only be waived if the trial court is “satisfied that there has been an intentional relinquishment or abandonment” of that right. Powell v. State, 394 Md. 632, 639 , 907 A.2d 242 (2006) (quotation marks and citation omitted), cert. denied, 549 U.S. 1222 , 127 S.Ct. 1283 , 167 L.Ed.2d 103 (2007). Whether an accused has made an intelligent and knowing waiver of the right to a jury trial depends on the facts and circumstance of each case.

Walker v. State, 406 Md. 369, 380 , 958 A.2d 915 (2008). Maryland Rule 4-246 sets out the procedure by which a defendant may waive his or her right to a jury trial (emphasis added): (a) Generally. In the circuit court a defendant 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 court, the State may not elect a trial 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, after an examination of the defendant on the record in open court conducted by the court, the State’s Attorney, the attorney for the defendant, or any combination thereof, the court determines and announces on the record that the waiver is made knowingly and voluntarily. ²⁰¹ Banks does not assert that his waiver of his right to a jury trial was not knowing or voluntary. Instead, his entire argument on this issue is premised on the fact that the trial court did not follow the requirement in Rule 4-246(b) by announcing, on the record in open court, that his waiver was made knowingly and voluntarily.

Any doubt as to how Rule 4-246(b) should be interpreted and applied in this context has been resolved by the Court of Appeals’ decision in Valonis and Tyler v. State, 431 Md. 551, 570 , 66 A.3d 661 (2013), and this Court’s opinion in Costen v. State, 213 Md.App. 361 , 73 A.3d 1225 , 2013 WL 4719085 (2013). In Valonis, the Court held that the requirements of Rule 2-246(b) were mandatory and that the rule required strict compliance by the trial court (emphasis added): Rule 4-246(b) ... requires the circuit court judge to make an express determination on the record that the defendant acted knowingly and voluntarily. In other words, the judge is required to announce his or her finding as to the knowing and voluntary waiver on the record. 431 Md. at 563 , 66 A.3d 661 (internal citations omitted). The Court continued: After the court determines that the waiver is knowing and voluntary, the court is required to announce that determination on the record.

It is the responsibility of the trial judge to make a determination and to announce it on the record. We conclude ... that in the two criminal cases before this Court the trial judges committed reversible error in failing to comply with the determine and announce requirement of Rule 4-246(b) and thereby failed to demonstrate a valid waiver of Yalonis’s and Tyler’s right to a trial by jury. Id. at 568-70 , 66 A.3d 661 . In the present case, the trial court did not expressly announce on the record that Banks had knowingly and voluntarily waived his right to a jury trial.

Clearly, the colloquy between the trial court and Banks in this case did not satisfy ²⁰² Rule 2-246(b)’s requirement that, as a prerequisite to accepting a waiver of the right to a jury trial, the court must “determine! ] and announce! ] on the record that the waiver is made knowingly and voluntarily.” The State contends that Banks failed to preserve this contention by not objecting to the court’s determination. In Valonis, the Court addressed a similar argument and held that a defendant’s failure to object to a trial court’s noncompliance with Rule 4-246(b) did not foreclose the right to raise the matter on appeal. 431 Md. at 569 , 66 A.3d 661 . The State also asserts that any error by the trial court was harmless. The State cites Boulden, 414 Md. at 307-08 , 995 A.2d 268 , in which the Court held that a contention that the court’s compliance with Rule 4-246 was untimely is subject to harmless error review.

However, the question in the present case is not whether the trial court complied with the rule, albeit in an untimely fashion, but whether the court complied with the rule at all. In Valonis, the Court held that “[T]he trial judge’s failure to announce its determination on the record is not a mere technicality and is not subject to harmless error analysis.” 431 Md. at 569 , 66 A.3d