Martinez v. State

COUCH, Judge. Nelson Martinez, the appellant, appeals his conviction in the Circuit Court for Montgomery County for third degree sexual offense and false imprisonment. We shall reverse his conviction and order a new trial for the reasons set forth below. THE FACTS 1 On August 21, 1984, the victim, a nine year old girl, was walking with her cousin, also age nine, in a park near the latter’s home when they were approached by a man later identified as the appellant.

According to the victim, the ¹²⁷ appellant engaged them in conversation and put her on his knee. The victim testified further that appellant rubbed her shoulder, pulled down the strap of her shirt, did something that “felt like” a kiss on the back of her neck, and put his hand under her shorts. During this time, the victim tried unsuccessfully to escape. Appellant was arrested and charged with third degree sexual offense, battery, and false imprisonment.

Before the trial, the court ordered that a Spanish interpreter be provided for the appellant. On May 14, 1985, a hearing was held to determine if the appellant wished to waive his right to a jury trial. During the hearing, the following discussion took place (emphasis added): THE COURT: Do you understand English? MR.

MARTINEZ: My understand a little bit. THE COURT: I did not hear the last word. MR. DALE [Counsel for the appellant]: A little bit, Your Honor.

THE COURT: And you do understand Spanish? MR. MARTINEZ: Yes. THE COURT: And you are being assisted by an interpreter?

MR. MARTINEZ: Yes. THE COURT: Have you been using any narcotics or alcoholic drug within the past 48 hours? MR.

MARTINEZ: No. THE COURT: Are you presently taking any form of medicine? MR. MARTINEZ: Yes, I do. Psychology.

THE COURT: What kind of medicine are you taking? MR. MARTINEZ: Lithium. THE COURT: For what condition are you taking that medicine?

MR. MARTINEZ: Schizophrenia, paranoia, religion power— THE COURT: All right. Are you presently suffering from any physical illness? ¹²⁸ MR. MARTINEZ: No. Absolutely not.

THE COURT: Do you fully understand what we are dealing in here today? MR. MARTINEZ: Yes, sir. THE COURT: Do you understand you are entitled to be tried before a jury?

MR. MARTINEZ: Yes sir. THE COURT: Are you voluntarily waiving that right? MR.

MARTINEZ: I am a little bit nervous. THE COURT: Do you understand that if you wish to be tried before a jury, that a jury will consist of 12 people? MR. MARTINEZ: Yes.

THE COURT: Do you know that all jurors called in here to serve are chosen by a computer, and their selection has nothing to do with their sex, race, religion, job, wealth or poverty? MR. MARTINEZ: Okay. Yes, I understand it.

THE COURT: Do you know that if you elect to be tried before a jury, that you and your lawyer would be given a chance to have every juror questioned, to see whether or not the juror might have some prejudice against you? MR. MARTINEZ: Okay. Yes.

THE COURT: Do you know that if you elected to be tried before a jury, that every person on that jury would have to find you guilty beyond a reasonable doubt before you could be convicted? MR. MARTINEZ: Yes, I understand it. THE COURT: Do you know that if you waive your right to a jury trial and elect to be tried before a Judge, that you could be convicted if the Judge alone finds you guilty beyond a reasonable doubt?

MR. MARTINEZ: Yes. THE COURT: Do you understand that the decision to waive your right to a jury trial, is your decision to make and it cannot be made by your lawyer, the State’s attorney, or me? ¹²⁹ MR. MARTINEZ: Uh-huh.

Yes. THE COURT: 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 qive up your riqht to a jury trial? MR. MARTINEZ: Yes.

THE COURT: You stated that you wished to waive your right to a jury trial. Are you certain and are you stating on the record of this Court that you have made that decision freely and voluntarily? MR. MARTINEZ: Just the Judge.

The court then concluded: Please make a docket entry, I am satisfied after voir dire, that the defendant has freely, intelligently, and voluntarily waived his right to a trial by jury. Later that day, the circuit court (Mitchell, J.) found the appellant guilty of third degree sexual offense and false imprisonment. 2 He was sentenced to concurrent five year terms of incarceration, with all but eighteen months suspended, and to a period of five years probation to commence upon release. On appeal to the Court of Special Appeals, the appellant raised four issues, one of which was the following: Did the appellant voluntarily waive his right to a jury trial? In an unreported per curiam opinion (No. 1091, September Term, 1985, filed April 7, 1986), the intermediate appellate court ordered a limited remand to determine the voluntariness of the appellant’s jury trial waiver. 3 The court stated: “We shall remand for the trial court to hold a hearing limited to the issue of what appellant meant by his affirmative response to the one question concerning coercion of the waiver of jury trial.

If on remand, the trial ¹³⁰ court finds that no coercion existed and therefore appellant voluntarily waived his right to a jury trial, the convictions shall stand and appellant may appeal that ruling. If the court finds that coercion did exist, and, as a result, appellant did not voluntarily waive his right to a jury trial, the convictions shall be reversed and the trial judge shall direct that appellant be granted a new trial.” On July 29, 1986, we granted the appellant’s petition for writ of certiorari, and the State’s cross-petition. The petitions raised the following questions for our consideration: 1. a. Is a limited remand a suitable procedure to determine whether a defendant has voluntarily waived his right to a jury trial? b.

Does the existing record adequately demonstrate that appellant’s waiver of a jury trial was voluntary? 2. a. Is a criminal defendant entitled, without showing particularized need, to inspect the grand jury testimony of a State’s witness for purposes of cross-examination after the witness has testified for the State at a suppression hearing? b. Does a defendant waive a claim for production of grand jury testimony by failing to renew the motion prior to the time determined by the court to be the appropriate time for production? c. Was any error from the failure to produce grand jury testimony during the suppression hearing harmless beyond a reasonable doubt? d.

Does Jones v. State, 297 Md. 7 , 464 A.2d 977 (1983) apply to the production of a cassette tape of testimony when the tape was never transcribed in writing? 3. a. Does the right to the effective assistance of counsel require that defendants be afforded an opportunity to present closing argument before the court rules at a suppression hearing? ¹³¹ b. Did the appellant preserve any objection to the delayed opportunity for argument on the motion to suppress? WAIVER OF JURY TRIAL I A defendant may waive his right to a jury trial, 4 and elect instead to be tried by the court. 5 Md.Rule 4-246, which authorizes the waiver of a jury trial, states in 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 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 ¹³² defendant, or any combination thereof, that the waiver is made knowingly and voluntarily.” 6 Although we have had occasion to consider in some detail the effect of its predecessor, 7 see, e.g., Countess v. State, 286 Md. 444 , 408 A.2d 1302 (1979); Dortch v. State, 290 Md. 229 , 428 A.2d 1220 (1981); State v. Ricketts, 290 Md. 287 , 429 A.2d 1025 (1981), this is our first encounter with Md. Rule 4-246. As the text of the Rule makes clear, an ¹³³ accused will be tried by a jury, unless he waives that right.

Once he does so, the State may not elect a jury trial. “[T]he prosecution has no say as to the mode of trial; whether the accused is to be tried by court or jury is his prerogative.” Countess, 286 Md. at 451 , 408 A.2d at 1305 . The election to waive a jury trial may be made at any time before commencement of the trial. If the accused chooses such a course, a waiver inquiry must be conducted on the record in open court. 8 The questioner 9 must examine the defendant, for only he can waive his right to a jury trial. As we said in Countess : “[T]he responses must come from the defendant himself.

The Rule does not envision that counsel simply repeat to the court that he has inquired of the defendant and given him the information necessary for an effective election.” Id. at 454 , 408 A.2d at 1307 . For a waiver to be valid, the court must be satisfied that the defendant’s election was made knowledgeably and voluntarily. In the words of the Supreme Court, the trial judge must be satisfied that there has been “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464 , 58 S.Ct. 1019, 1023 , 82 L.Ed. 1461 (1938). See Brady v. United States, 397 U.S. 742, 748 , 90 S.Ct. 1463, 1469 , 25 L.Ed.2d 747 (1970) ¹³⁴ (“Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.”). 10 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. Adams v. United States ex rel. McCann, 317 U.S. 269, 278 , 63 S.Ct. 236, 241 , 87 L.Ed. 268 (1942). See Dortch, 290 Md. at 235 , 428 A.2d at 1223 (1981); Countess, 286 Md. at 450 , 408 A.2d at 1305 .

However, the court must be concerned that the waiver is not a product of duress or coercion. See Adams, 317 U.S. at 275, 280 , 63 S.Ct. at 240, 242 , 87 L.Ed. 268 . 11 Furthermore, a defendant must have some knowledge of the jury trial right before he is allowed to waive it. See Dortch, 290 Md. at 232 , 428 A.2d at 1222 ; Harris v. State, 295 Md. 329 , 339 n. 1, 455 A.2d 979 , 984 n. 1 (1983); Adams, 317 U.S. at 280 , 63 S.Ct. at 242 , 87 L.Ed. 268 . 12 II In the instant case, the appellant argues that his waiver was not voluntary. 13 Based on a review of the facts and circumstances in this case, we conclude that the tran ¹³⁵ script of the waiver hearing simply does not support the trial court’s conclusion that the appellant voluntarily waived his right to a jury trial. The following colloquy is particularly relevant: “THE COURT: 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 give up your right to a jury trial?

MR. MARTINEZ: Yes.” Apparently, the Court of Special Appeals reached a similar conclusion: “Upon reviewing the record, we are not satisfied that the waiver was voluntary.” As to the portion quoted above, the court stated: “Appellant replied ‘yes’ when asked whether someone had coerced him into waiving the jury trial. While this response could perhaps be explained by the language problem, we cannot conclude that the waiver was made voluntarily.” Nevertheless, a limited remand was ordered so that the appellant’s responses could be clarified. This action was improper.

Rule 4-246 requires that the defendant’s waiver be on the record before the trial commences. See United States v. Saadya, 750 F.2d 1419, 1422 (9th Cir.1985). In Saadya , the United States Court of Appeals for the Ninth Circuit concluded that “the absence of a waiver on the record of the right to trial by jury cannot be remedied by subsequent proceedings on remand.” Id. In a footnote, the court elaborated: “In [United States v.] Reyes, [ 603 F.2d 69 (9th Cir.1979) ] we said that a post-trial waiver was not sufficiently reliable and might be based on ‘subtle coercion [that] is difficult to detect in the appellate record.’ 603 F.2d at 72 .

We also said that it was necessary for the waiver to occur on the record at the time the right was surrendered for two related reasons: one, so that the defendant would understand that his waiver was ‘an important step in the trial,’ id. at 71 , and, two, so that the judge might question the defendant and evaluate his responses at the time the decision was made. Id. at 72 .” ¹³⁶ Id. at 1422 n. 2. See United States v. David, 511 F.2d 355, 362 (D.C.Cir.1975) (noting “the inherent ambiguities and difficulties in retrospectively determining the validity” of a waiver of the right to a jury trial). The State argues: “If courts are not required to ask whether jury trial waivers are the result of threats, promises or inducements, then an affirmative response to this question cannot, alone, invalidate an otherwise voluntary waiver.” The State’s argument is disingenuous.

In its best light, the State wishes for us to blind our eyes to the appellant’s clear affirmative response quoted above. 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 answer. If the record does not disclose a knowledgeable and voluntary waiver of a jury trial, a new trial is required.

See Countess, 286 Md. at 462-63 , 408 A.2d at 1311 ; Noble v. State, 293 Md. 549, 558 , 446 A.2d 844, 848 (1982). See also Saadya, 750 F.2d at 1421-22 ; Jackson v. United States, 498 A.2d 185, 189-90 (D.C.1985). Accordingly, the appellant is entitled to a new trial. ACCESS TO GRAND JURY TESTIMONY AT A SUPPRESSION HEARING I We next address appellant’s contention that he was improperly denied access to the grand jury testimony of a prosecution witness at the suppression hearing.

On May 14, 1985, a pre-trial hearing was held to determine the validity of the appellant’s motion to suppress his confession and in-court identification evidence. Before the State called its initial witness, Detective Catherine Stavely, 14 on the first feature of the motion (the confession), appellant ¹³⁷ requested production of the grand jury minutes, which included the Detective’s testimony. The following colloquy occurred: MR. DALE [Counsel for the appellant]: Anyway, we have moved for production of the Grand Jury minutes under the Jones decision.

It is my understanding that they have no objection to producing those. They are available as a tape cassette, which is a for [sic] that is agreeable to the defendants. I suppose the only question is when they want it to be produced to the defendants. It would be our position that they are producible immediately upon the Court’s granting of the motion, and there is nothing that I have read in Jones or any other decision that indicates that they are not producible at that time.

I think the State’s attorney basically has a policy that they should not be produced until the testifying witness has testified on direct; but I see nothing in the law that mandates that. In addition, it would be our position that, and our understanding that the detective will testify in the Motion to Suppress. Since the Motion to Suppress is basically a bringing forward of a part of the trial, it would be our position that we would be entitled to listen to the tape at this point on the assumption that Your Honor will order that the Grand Jury minutes be produced. THE COURT: All right.

Ms. Toolan. MS. TOOLAN [State’s Attorney]: Your Honor, firstly, certainly if Your Honor orders it, we have no problem with producing a transcript, a cassette recording of those Grand Jury minutes. Defense does have full discovery.

He does know who testified. The children did not testify, it was merely the detective. Your Honor, according to the Maryland case law, as I have been able to find it, the defendant must show a ¹³⁸ particularlized need for that discovery. I do not think the defense has made that showing.

Your Honor, there is a subsequent case to Jones and that is Myers, and according to Myers, it says, “Myers advised that the trial Judge violated the rule in establishing Jones, and when he did, he failed to grant Myers pretrial motion to inspect for potential cross-examination purposes the Grand Jury testimony.” It also indicates that Jones did not stand for that proposition. The Court’s indulgence for one moment. Myers’ motion to inspect the Grand Jury testimony was made prior to the trial and was grounded on the theory of potential impeachment of a witness, always amounts to a showing of particularized need. Jones does not stand for that proposition.

Again, Your Honor, if Your Honor was to order such a transcript, the State’s position is that it is not available to the defense until after' Detective Stavely has testified. THE COURT: All right. Anything further. MR.

DALE: Nothing further, Your Honor. THE COURT: I think the State properly stated the law, as I understand it. Therefore, we will hold under advisement your motion. The hearing on the motion to suppress commenced with the testimony of Detective Stavely.

During the defense’s cross-examination of this witness, the issue of the grand jury testimony recurred in the following manner: MR. DALE: Detective Stavely, did you testify before the Grand Jury concerning this case? MS. TOOLAN: Objection, Your Honor.

THE COURT: I will permit it. You may answer yes or no. THE WITNESS: Yes, I did. MR.

DALE: Did you testify before the Grand Jury regarding any events surrounding the arrest of Mr. Martinez? MS. TOOLAN: Objection, Your Honor. I believe— ¹³⁹ MR.

DALE: Your Honor, I am trying to make my particularized need in view of the Court’s prior ruling on the Grand Jury minutes. MS. TOOLAN: Your Honor, any answer from the detective is going to be a revelation of her Grand Jury testimony- THE COURT: I will agree with that. Sustained.

Subsequently, the motion to suppress appellant’s confession was denied. Detective Stavely also testified for the State on the second feature of the motion to suppress (in-court identification evidence). At no time during her testimony on this issue did appellant’s counsel request access to the grand jury testimony. The motion to suppress the in-court identification evidence was denied.

Shortly thereafter, the trial began and continued into the following day. Detective Stavely was the State’s last witness. At the conclusion of her direct testimony, appellant’s counsel requested and finally obtained permission to listen to the tape of her grand jury testimony: THE COURT: You may cross-examine, sir. MR.

DALE: Thank you, sir. At this time I would renew my request for the Grand Jury minutes. THE COURT: On what basis, sir? MR.

DALE: That, as it is my understanding, the detective testified before the Grand Jury, and I could not effectively cross-examine her without knowing what prior statements she may have made. I realize there is some language about particularized need. THE COURT: Yes. MR.

DALE: But I think you go around in a circle if you do not know what she testified to. THE COURT: Do you have some reason to believe that she committed perjury before the Grand Jury? MR. DALE: Grand Jury proceedings are closed to the defense, Your Honor.

I have no specific reason, but I believe certainly