Bell v. State

HOLLANDER, Judge. Wilbur Bell, appellant, was convicted after a non-jury trial in the Circuit Court for Prince George’s County of second degree rape, attempted rape, assault with intent to rape, and assault and battery. With respect to the rape conviction, he was sentenced to a term of twenty years of incarceration, ten of which were suspended. For sentencing purposes, the other convictions were merged into the rape conviction.

Four questions are presented on appeal: 1. Was the record sufficient to show that appellant’s waiver of a jury trial was knowing and voluntary? ⁷⁰ II. Did the trial court err in limiting cross-examination of the prosecutrix?

III

Did the trial court err in admitting “other crimes” evidence?

IV

Did the trial court err in restricting cross-examination of a State’s witness? We are of the view that the record is not sufficient to show that appellant’s waiver of his right to a jury trial was made knowingly and voluntarily. Therefore, we shall vacate appellant’s conviction and remand the matter for further proceedings. For the benefit of the trial court on remand, we shall address appellant’s other contentions.

FACTUAL SUMMARY Appellant and Pamela Collins, the victim, had been involved in a romantic but stormy relationship for several years. They have one daughter, Erica Collins, who was six years old at the time of the incident on August 29, 1994 that gave rise to the underlying charges. When the incident occurred, Ms. Collins and appellant were no longer romantically involved. On August 29,1994, Erica completed her first day of school.

Early that evening, Ms. Collins was in her apartment in Prince George’s County with Erica and Virgil Beaty, a cousin of Ms. Collins who was then approximately eleven years old. 1 At approximately 5:80 p.m., while Ms. Collins was cooking dinner for Erica and Virgil, appellant knocked on Ms. Collins’s door. Virgil opened the door, but he did not recognize appellant. He heard Erica and Ms. Collins refer to appellant as “Wilbur.” At trial, Virgil identified appellant as the individual who was at the door when he opened it. Ms. Collins told appellant to leave, but he said that he wanted to talk to Erica, and Ms. Collins allowed him to remain.

While Erica ate dinner, she spoke to appellant about ⁷¹ her first day at school. After dinner, Erica and Virgil went outside to play, and Ms. Collins went into the kitchen to light a cigarette. When she returned to the dining area, she claimed appellant “grabbed [her], started choking [her] around [her] neck and told [her] he would hurt [her].” He then pushed and dragged Ms. Collins into her bedroom. According to Ms. Collins, when the two were in the bedroom, appellant pulled her down onto the floor and tried to pull her clothes off.

Although she scratched and fought, Ms. Collins reported that appellant successfully pulled off her pants and raped her. While appellant was still on top of Ms. Collins, Erica came back inside the apartment and entered Ms. Collins’s bedroom. According to Ms. Collins, Erica “started screaming and hollering,” and she told Erica to help her, but the child did not do so. Appellant told Erica to leave, which she did.

Appellant eventually stopped and put his pants back on. Ms. Collins retrieved a steak knife from the dish drain in the kitchen and confronted appellant, who then left the apartment. After appellant left, Ms. Collins “washed up” and changed her clothes. She notified the police and was advised to come to the police station, which she did.

Thereafter, she returned with the police to her apartment and then proceeded to Prince George’s County Hospital, where she was examined by a doctor. By stipulation, Ms. Collins’s hospital records were admitted into evidence. A.t trial, Ms. Collins conceded that she had no bruises on her neck, although she claimed appellant choked her. She also acknowledged that her clothes were not torn and the apartment did not show signs of a struggle.

Although Ms. Collins promptly filed charges against appellant, in April 1995 she requested that they be put on the stet docket. She explained that, at that time, she believed that appellant “was trying to change his life,” that he had gotten married, and that he was developing a good relationship with Erica. She also stated that Erica enjoyed her relationship with appellant and his family, and she did not want to interfere with that relationship. Pursuant to her request, the ⁷² charges were stetted.

Approximately one week after the charges were stetted, appellant came to the victim’s apartment and raped her again. As a result of the second rape, Ms. Collins requested reinstatement of the charges. 2 Erica, who was 8 years old at the time of trial, also testified for the State. She stated that when she returned to the apartment, the door to her mother’s room was closed, but she entered without knocking. Erica testified: “I saw my father on top of my mother,” and added that she saw her father’s “back and his butt.” Moreover, her mother was screaming, which “upset” Erica. 3 She also claimed that her father told her to “close the door,” but her mother did not say anything.

According to Erica, after her parents came out of the room, her father was “cussing” and her mother told appellant “to get out.” In addition, the State called two police officers who investigated the case. Police officer Carolyn Baker took a statement from appellant, in which he denied committing the offense. The police officers also acknowledged that no pubic hairs or seminal fluids were found on items recovered by the police from the victim’s apartment. Nor was any DNA analysis conducted on the sperm recovered from the victim.

Appellant testified in his own defense. He told the court that he had previously lived with Ms. Collins, but he denied that he was at Ms. Collins’s apartment on August 29, 1994. On the date of the incident, he said he was living with his girlfriend, whom he married in November 1994. He also recounted his whereabouts, but conceded that he had not provided that information in his statement to the police.

Appellant also admitted that he was incarcerated in January 1994 because of Ms. Collins, and that he wrote threatening letters to Ms. Collins while he was in prison. ⁷³ Additional facts will be included in our discussion of the issues presented. DISCUSSION I. At the beginning of the trial, defense counsel indicated to the court that appellant wanted to waive his right to a jury trial. In response to the court’s inquiry about whether counsel advised appellant of “the ramifications” of the waiver, counsel stated: “We have talked it over, Your Honor. We talked it over last time we were here, and I haven’t talked it over yet this morning with him.” (Emphasis added).

Thereafter, defense counsel questioned appellant on the record. Counsel established that appellant was then 34 years old, 4 could read and write, and understood the charges and possible maximum penalties. The following colloquy then ensued: [DEFENSE COUNSEL]: You and I talked about whether you should have a jury trial or judge trial, haven’t we? THE DEFENDANT: Yes, sir. [DEFENSE COUNSEL]: And we came to the conclusion that we would like Judge Hotten to decide the case rather than a jury?

THE DEFENDANT: Yes, sir. [DEFENSE COUNSEL]: Have I forced you to do that? THE DEFENDANT: No, sir. [DEFENSE COUNSEL]: Are you giving up your right to a jury trial freely and voluntarily? THE DEFENDANT: Yes, sir. [DEFENSE COUNSEL]: Has anyone promised you anything? THE DEFENDANT: No, sir. ⁷⁴ [DEFENSE COUNSEL]: Or offered you any inducement?

THE DEFENDANT: No, sir. [DEFENSE COUNSEL]: Are you in good health mentally and physically? THE DEFENDANT: No. THE COURT: Have you taken any alcohol, medication or drugs? THE DEFENDANT: No, ma'am. THE COURT: Do you understand if you were to have a jury trial, which would consist of twelve people, or whether you choose to have this member of the bench hear the case, the State would still have the burden to prove the charges against you beyond a reasonable doubt?

THE DEFENDANT: Yes, sir [sic]. THE COURT: Have you been satisfied with the services of your attorney up to the present time? THE DEFENDANT: Yes, ma'am. THE COURT: Is there anything that’s been said or anything that’s been going on so far that you don’t understand or have a question about?

THE DEFENDANT: No, ma'am. THE COURT: At this time, knowing that you give up the right to a jury trial and that you are under the influence of no alcohol, medication or drugs, and that you are making this decision freely and voluntarily, is it your intention to give up or waive your right to a jury trial? THE DEFENDANT: Yes. THE COURT: Okay.

(Emphasis added). A. Appellant complains that the record does not establish that he knowingly and voluntarily waived his right to a jury trial, because it does not reflect that he was advised that a jury’s verdict must be unanimous in order to convict a ⁷⁵ defendant. The State counters that there is no fixed incantation necessary to establish a knowing and voluntary waiver of the right to a jury trial, and that the circumstances demonstrate that appellant’s waiver was, indeed, knowing and voluntary. The right to a jury trial is, of course, a fundamental right.

Robinson v. State, 67 Md.App. 445, 454 , 508 A.2d 159 , cert. denied, 307 Md. 261 , 513 A.2d 314 (1986). Maryland Rule 4-246, which was adopted in 1984, governs the procedure for jury trial waivers. State v. Hall, 321 Md. 178, 182 , 582 A.2d 507 (1990). It derives from the version of Rule 735 that was implemented in January 1982.

Id. An earlier version of Rule 735, which was in effect until 1982, had required that, in order for a defendant validly to waive the right to a jury trial, the defendant had to have “full knowledge” of the right. In Countess v. State, 286 Md. 444 , 408 A.2d 1302 (1979), the Court of Appeals explicated the extent of knowledge contemplated by the “full knowledge” requirement in the earlier version of Rule 735(d). Writing for the Court, Judge Orth said: What the Rule contemplates is that the defendant have a basic understanding of the nature of a jury trial.

We think that this understanding is generally satisfied when the defendant entitled to a jury trial knows that he has the right to be tried by a jury of 12 persons or by the court without a jury; that whether trial is by a jury or by the court, his guilt must be found to be beyond a reasonable doubt; that in a jury trial all 12 jurors must agree that he is so guilty but in a court trial the judge may so find. Id. at 455 , 408 A.2d 1302 (emphasis added). Although Rule 4-246 does not contain the full knowledge requirement that once appeared in Rule 735, it does require that a waiver be made “knowingly and voluntarily.” The rule states, in pertinent part: (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 ⁷⁶ 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 it determines, 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, that the waiver is made knowingly and voluntarily. (Emphasis added). We must now determine whether the knowing and voluntary standard expressed in Rule 4-246 encompasses knowledge of the unanimity requirement, which the Court of Appeals found was clearly embodied in the predecessor to Rule 4-246. As we attempt to resolve this question, we are mindful that the unanimity requirement is one of the hallmarks of our jury trial process.

Indeed, the fundamental nature of the unanimity requirement is demonstrated by its inclusion in Article 21 of the Maryland Declaration of Rights, which declares: That in all criminal prosecutions, every man hath a right ... to a speedy trial by an impartial jury, without whose unanimous consent he ought not to be found guilty. Moreover, in recognizing the fundamental importance of unanimity, the Court of Appeals has stated: Since a unanimous jury verdict is a fundamental constitutional right guaranteed the defendant in a criminal case, it can be dispensed with only when he “competently and intelligently” waives that right. State v. McKay, 280 Md. 558, 572 , 375 A.2d 228 (1977) (quoting Johnson v. Zerbst, 304 U.S. 458, 469 , 58 S.Ct. 1019, 1025 , 82 L.Ed. 1461 (1938)). Rule 4-246 ensures that a defendant who “expresses a desire to be tried by the court be afforded an opportunity to waive his right to a jury trial.

That opportunity is afforded when the nature of a jury trial is explained to him along with ⁷⁷ some explanation of the nature of a court trial and/or the distinction between the two modes of trial.” Thomas v. State, 89 Md.App. 439, 446 , 598 A.2d 789 (1991). There is, however, no “fixed litany” or script that must be followed to establish compliance with the requirements of Rule 4-246. Tibbs v. State, 323 Md. 28, 31 , 590 A.2d 550 (1991); see also Hall, 321 Md. at 182 , 582 A.2d 507 ; Martinez v. State, 309 Md. 124, 134 , 522 A.2d 950 (1987); Dortch v. State, 290 Md. 229, 235 , 428 A.2d 1220 (1981). As this Court explained in Suggs v. State, 52 Md.App. 287, 449 A.2d 424 (1982), the change in the rule was intended to “relax the requirement of the strict litany found in Countess , while, at the same time, assuring the defendant’s right to a knowing and voluntary waiver.” Id. at 291, 449 A.2d 424 .

Instead, compliance with the rule is determined based on the “facts and circumstances of each case,” Hall, 321 Md. at 182 , 582 A.2d 507 , and the “ ‘totality of the circumstances as reflected by the entire record.’ ” Robinson, 67 Md.App. at 455 , 508 A.2d 159 (quoting Davis v. State, 278 Md. 103, 109 , 361 A.2d 113 (1976), with respect to a guilty plea); see also Martinez, 309 Md. at 134 , 522 A.2d 950 (stating that a “competent waiver must depend on the unique facts and circumstances of each case”). Although no fixed litany is required, the Court of Appeals has consistently “urged trial judges ... to be thorough and detailed in conducting the waiver examination on the record .... ” Hall, 321 Md. at 184 , 582 A.2d 507 . This is because [t]o satisfy constitutional due process standards, the waiver of a jury trial, a fundamental right, must constitute “an intentional relinquishment or abandonment of a known right or privilege.” The Court of Appeals has made it clear that the “knowing and voluntary” language of former Rule 735 (and, we think, by logical implication, current Rule 4-246) was intended to incorporate the constitutional due process standard for waiver of a fundamental right but no more. Robinson, 67 Md.App. at 454 , 508 A.2d 159 (citation omitted).

Case law seems to indicate that a defendant’s knowledge of the unanimity requirement is an essential component of a ⁷⁸ knowing jury trial waiver. Suggs , for example, suggests that the unanimity requirement remains applicable in regard to whether a waiver was knowingly made. There, the petitioner claimed he did not voluntarily waive his right to a jury trial, because he was not told that the jury verdict must be unanimous. The trial court had told the defendant that if he chose a jury trial, “twelve people ... would sit in judgment of you and must find you guilty beyond a reasonable doubt and to a moral certainty in order to convict you of the charges.” 52 Md.App. at 289 , 449 A.2d 424 .

The defendant contended that because his trial was held before the effective date of revised Rule 735, the trial court was required specifically to advise him of the unanimity requirement, pursuant to Rule 735(d). We held that the revised rule was applicable and said: While it may be a close question whether the above colloquy satisfies the tenets of Md. Rule 735 b, it appears to us that the above instruction sufficiently conveyed the requirement of jury unanimity to the appellant. Id. at 291 , 449 A.2d 424 ; see also Mayes v. State, 50 Md.App. 628, 629-31 , 440 A.2d 1093 (1982) (finding advisement sufficient to convey unanimity requirement). More recently, in Tibbs , the Court of Appeals considered a defendant’s waiver of a jury trial.

The trial judge had inquired of the defendant if he knew what a jury trial was, if he specifically waived his right to a jury trial, and if he was giving up this right freely and voluntarily. To each of these questions the defendant replied in the affirmative. The trial court also inquired if the defendant had been forced or threatened to waive his jury trial right, to which the defendant responded “no.” Nevertheless, the Court of Appeals concluded that the waiver violated due process, stating: Considering the totality of the circumstances in the present case, we hold that the record is woefully deficient 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 cases.

It is not sufficient that an accused merely respond affirmatively to a naked ⁷⁹ 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.” 323 Md. at 31-32 , 590 A.2d 550 (citations omitted). The Court also noted chat the defendant’s “prior unspecified experience with the criminal justice system” was not sufficient to establish a knowing and voluntary waiver. Id. at 32 , 590 A.2d 550 ; see also Dedo v. State, 105 Md.App. 438, 451 , 660 A.2d 959 (1995) (upholding jury trial waiver when court advised defendant, inter alia, of unanimity requirement but did not inform defendant of his right to participate in jury selection), rev’d on other grounds, 343 Md. 2 , 680 A.2d 464 (1996). In resolving the issue presented here, we are logically drawn to a consideration of the degree of information that a defendant must receive in order to plead guilty freely and voluntarily.

The United States Supreme Court explained in Boykin v. Alabama, 395 U.S. 238 , 89 S.Ct. 1709 , 23 L.Ed.2d 274 (1969), that a defendant who pleads guilty waives several constitutional rights, including the right to confront one’s accusers, the privilege against compulsory self-incrimination, and the right we consider here — the right to trial by jury. Thereafter, the Court of Appeals determined in Davis that the validity of a guilty plea does not necessarily depend upon the enumeration of the rights mentioned in Boykin . The Court of Appeals held that, in accepting a guilty plea, a trial court is not required specifically to articulate, on the record, the three constitutional rights discussed in Boykin . Rather, “the record taken as a whole [must] affirmatively disclose[] that the petitioner’s plea was ... voluntary and intelligent.” 278 Md. at 118 , 361 A.2d 113 . 5 Thereafter, in Robinson , we observed that “because the entering of a guilty plea serves as a simulta ⁸⁰ neous waiver of three fundamental rights ..., Davis and other cases addressing the standard for acceptance of a guilty plea apply with even greater force where waiver is of the single right of a jury trial.” Robinson, 67 Md.App. at 455 , 508 A.2d 159 .

While we recognize that a defendant who pleads guilty waives the right to any trial, not just a jury trial, we are unable to conclude that the information needed in order to waive the right to a jury trial is necessarily coextensive with the information needed to enter an effective and valid guilty plea. The lack of a constitutional mandate that information about a jury trial be imparted to a defendant who pleads guilty does not dimmish, in our view, the quantum of information that must be conveyed to a defendant in order to find a knowing waiver of the right to a jury trial. Maryland Rule 4-242(c) governs the court’s acceptance of a guilty plea; it merely requires, in part, that the court determine, “upon an examination of the defendant on the record in open court,” that: “(1) the defendant is pleading voluntarily, with understanding of the nature of the charge and the consequences of the plea; and (2) that there is a factual basis for the plea.” Moreover, the Court of Appeals has observed that the rules governing a jury trial waiver and a guilty plea are distinct. In State v. Priet, 289 Md. 267 , 424 A.2d 349 (1981), the Court stated that the requirements governing a jury trial waiver are not “engrafted” on the rule pertaining to guilty pleas.

Id. at 289 , 424 A.2d 349 . The Court reasoned: Granted that each rule is designed to assure that the accused have a basic understanding of the respective rights there sought to be protected, nevertheless, the two rules are separate and distinct---- Id. Relying on Matthews v. State, 46 Md.App. 172 , 416 A.2d 1314 (1980), the Court explained that the requirements of Rule 735 (the predecessor to Rule 4-246) were not applicable to Rule 731 (the predecessor to Rule 4-242) because, by its terms, Rule 735 was applicable only if the defendant elected to be tried by the court and, in pleading guilty, the defendant ⁸¹ elected not to be tried at all. Priet, 289 Md. at 289 , 424 A.2d 349 .

A defendant waiving the right to a jury trial must have the knowledge contemplated by Rule 4-246(b). As noted, earlier decisional law interpreting the predecessor rule to Rule 4-246(b) required that a defendant be advised that the jury’s verdict must be unanimous. Although the language of the rule has changed, we do not believe that any less is required now with respect to unanimity than was required when the Court decided Countess . This is because, in our judgment, a defendant who is not shown on the record to know of the unanimity requirement cannot make a knowing waiver of his right to a jury trial.

Although not raised by appellant, we have also considered whether we may presume that appellant was aware of the unanimity element, because he had an attorney and they had previously “talked ... over” the jury trial waiver. The Court of Appeals has recognized a “long-standing rule that criminal defendants represented by counsel are presumed to have been informed of their constitutional rights, including the right to testify.” Thanos v. State, 330 Md. 77, 91 , 622 A.2d 727 (1993); see also Stevens v. State, 232 Md. 33, 39 , 192 A.2d 73 (attorneys “are presumed to do as the law and their duty require them”), cert. denied, 375 U.S. 886 , 84 S.Ct. 160 , 11 L.Ed.2d 115 (1963). As best we can determine, however, the Maryland cases that have articulated this principle have done so in the context of a challenge to the voluntariness of a defendant’s decision concerning the right to testify or remain silent. See, e.g., Thanos, 330 Md. at 91 ; Fowler v. State, 237 Md. 508, 515 , 206 A.2d 802 (1965); Stevens , 232 at 39.

As we have not found any case espousing this view with regard to a jury trial waiver, we decline to presume that appellant was aware of the unanimity requirement merely because he had counsel. We explain. In Gilliam v. State, 320 Md. 637 , 579 A.2d 744 (1990), cert. denied, 498 U.S. 1110 , 111 S.Ct. 1024 , 112 L.Ed.2d 1106 (1991), the defendant complained about the erroneous advisement he ⁸² received from counsel regarding the testimonial election, as well as the trial court’s failure to correct the advisement. The Court of Appeals rejected the claim; it recognized that trial judges are not required to inform represented defendants of their right to testify, unless it is “clear ... that the defendant does not understand the significance of his election not to testify or the inferences to be drawn therefrom.” Id. at 652-53, 579 A.2d 744 .

Indeed, the Court stated that counsel’s colloquy with the defendant “ ‘on the record’ explaining the right to remain silent ... was a formality not required by any decision of this Court,” and characterized the advisement as “gratuitous.” Id. at 656 , 579 A.2d 744 . Similarly, in Oken v. State, 327 Md. 628 , 612 A.2d 258 (1992), cert. denied, 507 U.S. 931 , 113 S.Ct. 1312 , 122 L.Ed.2d 700 (1993), the defendant alleged, inter alia, that he did not knowingly and voluntarily waive his right to testify at a criminal responsibility hearing, because he was misadvised by his counsel. In rejecting this contention, the Court acknowledged its prior holdings “that there is a rebuttable ‘presumption’ that a represented defendant has been fully informed regarding his right to testify____” Id. at 639, 612 A.2d 258 . Consequently, it said that in the absence of “ ‘clear’ indication in the record to the contrary, appellate courts will presume that whatever course of action the defendant ultimately takes at trial was in fact a voluntary decision made after a complete, but not necessarily on-the-record, consultation with defense counsel.” Id.

Thereafter, Thanos , to which we earlier referred, reaffirmed Oken and Gilliam. Thanos, 330 Md. at 91-92 , 622 A.2d 727 . Morales v. State, 325 Md. 330 , 800 A.2d 851 (1992), is not inconsistent with the cases we have just reviewed, even though the Court determined there that a defective advisement mandated the conclusion that the testimonial waiver was inadequate. The trial court undertook to advise an unrepresented defendant about his right to testify.

In doing so, the judge incorrectly informed the defendant about possible impeachment based on all of his prior convictions. Moreover, the defendant indisputably relied on the erroneous advisement in ⁸³ electing not to testily. On these facts, the Court concluded that the defendant did not knowingly and voluntarily waive his right to testify. The Court focused on the defendant’s reliance on the incorrect advisement, but it reiterated that the trial court was not required to advise the defendant in the first place.

Having done so, however, the judge had to do it correctly. Id. at 339 , 600 A.2d 851 . As we see it, this line of cases is inapposite. It is abundantly clear that, by rule, a defendant must be advised, on the record, about the jury trial waiver.

Moreover, a specific rule requires that the jury trial waiver must be knowing and voluntary, and the purpose of the rule