Bell v. State

ROBERT M. BELL, Judge. On April 4, 1985, Ronald L. Bell, Jr., a/k/a Kevin Q. Bell, appellant, was convicted in a court trial in the Circuit Court for Baltimore City, of possession of cocaine with intent to distribute and possession of cocaine. On May 9, 1985, he was committed to the custody of the Division of Correction for ten years and fined $10,000.00. On appeal, appellant contends that the court erred: 1. in accepting the election of a court trial, without any inquiry of him on the record in open court; ²⁹⁶ 2. in ruling that the State made an adequate showing of the chain of custody of the suspected cocaine; and 3. in imposing a $10,000.00 fine upon him without determining that he had the ability to pay.

We agree that the court erred in proceeding to try appellant without having first determined that he knowingly and intelligently waived his right to a jury trial. We will therefore reverse and remand for a new trial. Nevertheless, for the guidance of the trial court on remand, we will address the remaining issues. 1. Md.Rule 4-246, in pertinent part, provides: “Rule 4-246.

Waiver of Jury Trial — Circuit Court. (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 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 supplied) In Biddle v. State, 40 Md.App. 399 , 392 A.2d 100 (1978), this Court, referring to then Maryland Rule 735 d., 1 the ²⁹⁷ predecessor of Maryland Rule 4-246(b), and finding it to be “expressly mandatory,” observed that “[t]he Rule now spells out the ritual the trial judge must follow in accepting the election of a non-jury trial.” Id. at 403, 405 , 392 A.2d 100 . We reversed the judgment of the trial court rendered after a trial on the merits because the record “unequivocally show[ed] a non-compliance with Md.Rule 735 d.” Id. at 407 , 392 A.2d 100 . The non-compliance was the trial judge’s failure to make inquiry of the defendant on the record to determine if his election of a court trial was done with full knowledge of his right to a jury trial and if his waiver of such trial was knowingly and voluntarily made. ²⁹⁸ We rejected the State’s argument that the issue had not been preserved: Although the State asserts now that the issue of non-compliance with Rule 735 was not preserved for appeal, we believe the rule requires that the record affirmatively show compliance with its tenets, and that the failure to object does not preclude appellate review. This is so because Rule 735 d has a constitutional aspect similar to that of a guilty plea.

The rule specifically forbids the trial court to proceed with the trial on the merits until there has been compliance with Rule 735 d, i.e., a determination on the record of a knowing and intelligent waiver of the right to trial by jury. Cf. Davis v. State, 278 Md. 103 , 361 A.2d 113 (1976). A waiver of a constitutional right must appear affirmatively in the record, Boykin v. Alabama, 395 U.S. 238 , 89 S.Ct. 1709 , 23 L.Ed.2d 274 (1969), and a failure of it to so appear is not grounds for dismissal of the appeal.

Indeed, it is the very basis of the appeal. Id. at 407. The interpretation of Maryland Rule 735 was before The Court of Appeals in Dortch v. State, 290 Md. 229 , 428 A.2d 1220 (1981) and Countess v. State, 286 Md. 444 , 408 A.2d 1302 (1979). In Countess , the primary focus of the Court was Rule 735 d, as to which it found that the procedure it prescribed had three aspects: (1) election; (2) inquiry; and (3) knowledge necessary for an effective waiver of a jury trial.

Id. at 452 , 408 A.2d 1302 . The Court then considered each aspect separately. It found that the election was that of the defendant, although his election may be communicated by his counsel in open court and recorded, and that, although the judge need not conduct the inquiry [t]he Rule does not envision that counsel simply report to the court that he has inquired of the defendant and given him the information necessary for an effective election. In order to assess properly the validity of an election under Rule 735 the court must not only know what was told the defendant but be in a position to evaluate the ²⁹⁹ responses of the defendant to the information imparted.

The information given, the questions asked of the defendant and by the defendant and the answers and comments made must be on the record so as to be available for appellate review if the election is questioned. Id. at 454 , 408 A.2d 1302 . Finally, it addressed the knowledge necessary for an effective jury trial waiver thusly: 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.

These are the matters which the defendant acknowledges he is aware of in the written form of election set out in § b of the Rule in designating his election of court trial or jury trial, and normally they should suffice. We saw no need to go further when we adopted the Rule, and we see no need to add other matters now. Ordinarily if the court duly determines that the defendant understands those aspects of a jury trial, he has, under the Rule, “full knowledge of his right to a jury trial.” Id. at 455, 408 A.2d 1302 . The issue in Dortch was “whether, for an election of a court trial to be ‘voluntary’ within the contemplation of Maryland Rule 735, the trial judge must make a specific inquiry of the accused on the record to determine if his decision to waive trial by jury was improperly induced by promises or by physical or mental coercion.” Id. 290 Md. at 230 , 428 A.2d 1220 .

Answering the issue in the negative, the Court concluded “that no specific ritual or fixed litany need be followed by the trial judge in determining the voluntariness of the accused’s election to waive his right to a jury trial.” Id. at 235 , 428 A.2d 1220 . ³⁰⁰ In neither Countess nor Dortch did the Court address the preservation issue or even comment on whether the defendants raised the effectiveness of the jury trial waiver issue. From the context, however, it appears that no objection was voiced by the defendants in any of the cases. Maryland Rule 4-246 has not yet been interpreted. It is, however, quite similar to Maryland Rule 735 from which it is derived.

Like Rule 735, 4-246 contemplates an election by the defendant, an inquiry of the defendant, and knowledge necessary for an effective waiver. Therefore, the precedents developed under Rule 735 are equally applicable to cases arising under Rule 4-246. Prior to the start of trial, the following colloquy occurred: THE COURT: Is this a jury trial; isn’t it? MR.

CHOMA (Assistant State’s Attorney): It is, Your Honor. MR. LAVENSTEIN: (Defense Counsel): Court trial, Your Honor. THE COURT: One says Court.

THE CLERK: For the record, you are familiar with the charge and wish to waive the formal reading thereof? MR. LAVENSTEIN: Yes. THE CLERK: You do wish a Court trial, sir?

MR. LAVENSTEIN: Yes. Thank you. Appellant was present, albeit silent, during this colloquy.

The trial not having proceeded, following a recess, a similar colloquy occurred: MR. CHOMA: These are the matters previously called. This matter was called this morning, State of Maryland vs. Ronald Leroy Bell also known as Kevin Quentin Bell 28428318. •THE CLERK: For the record, what is the gentleman’s correct name? MR.

CHOMA: Ronald Bell. MR. LAVENSTEIN: Ronald Bell. THE COURT: What is he charged with? ³⁰¹ MR.

CHOMA: Charged with possession of controlled dangerous