Powell v. State

Dissenting Opinion by GREENE, Judge, which BELL, C.J., joins. Respectfully, I dissent. A criminal defendant’s right to a jury trial is a fundamental right under both the United States and Maryland Constitutions. See U.S. Const.

Amend. VI, XIV § 1; Md. Const. Dec. of Rights, Art. 5, 21, 24; see also Duncan v. Louisiana, 391 U.S. 145, 154 , 88 S.Ct. 1444, 1450 , 20 L.Ed.2d 491 (1968). In Maryland, a defendant’s right to waive a trial by jury may be exercised only by the defendant.

Smith v. State, 875 Md. 365 , 379-81, 825 A.2d 1055, 1064 (2003). Such a waiver is valid and effective only if made on the record in open court and if the trial judge determines, after an examination of the defendant on the record and in open court, that it was made “knowingly and voluntarily.” 1 Maryland Rule 4-246(b); ⁶⁴⁷ Smith, 375 Md. at 378-81 , 825 A.2d at 1063-64 ; State v. Bell, 351 Md. 709, 724-24 , 720 A.2d 311, 319 (1998); Tibbs v. State, 323 Md. 28, 31-32 , 590 A.2d 550, 551-52 (1991); Stewart v. State, 319 Md. 81, 90 , 570 A.2d 1229, 1233-34 (1990); Martinez v. State, 309 Md. 124, 131-35 , 522 A.2d 950, 953-56 (1987). This factual determination is circumstance-specific and has two equally important components: the waiver must be both “knowing” and “voluntary.” 2 Tibbs, 323 Md. at 31 , 590 A.2d at 551 , citing State v. Hall, 321 Md. 178, 182 , 582 A.2d 507, 509 (1990); Stewart, 319 Md. at 90 , 570 A.2d at 1233-34 ; Martinez, 309 Md. at 134 , 522 A.2d at 955 . “[Cjourts indulge every reasonable presumption against waiver of fundamental constitutional rights ... and do not presume acquiescence in the loss of fundamental rights.” Zerbst, 304 U.S. at 465, 58 S.Ct. at 1024, 82 L.Ed. 1461 (citing Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 394 , 57 S.Ct. 809, 811-12 , 81 L.Ed. 1177 (1937)); Hodges v. Easton, 106 U.S. 408, 412 , 1 S.Ct. 307, 311 , 27 L.Ed. 169 (1882); Ohio Bell Tel.

Co. v. Pub. Util. Comm’n, 301 U.S. 292, 307 , 57 S.Ct. 724, 731 , 81 L.Ed. 1093 (1937). The majority holds that “unless there appears a factual trigger on the record, which brings into legitimate question voluntariness, the trial judge is not required presently to ask explicitly a defendant whether his or her waiver decision was induced or coerced,” and accepts the trial court’s “implicit determination of voluntariness” when nothing in the record affirmatively indicates otherwise.

In addition, relying on the fact that Rule 4-246(b) does not explicitly contain the phrase “on the record” modifying the word “determination,” the majority holds that the Rule does not require a finding by the trial court on the record that a defendant has waived his fundamental right to a jury trial knowingly and voluntarily. ⁶⁴⁸ The majority’s interpretation of Rule 4-246(b) is inconsistent with this Court’s treatment of Rule 4-242© 3 , a strikingly similar rule that also governs a criminal defendant’s waiver of a fundamental right: the right to contest the charges against him or her. Indeed, this Court has recognized the similarity between waiver of a jury trial and a guilty plea, noting “that a defendant who pleads guilty to a criminal charge waives his constitutional right to a jury trial, and ... for the waiver to be valid under the due process clause it must constitute an intentional relinquishment or abandonment of a known right or privilege.” State v. Priet, 289 Md. 267, 289-90 , 424 A.2d 349, 361 (1981). The Court of Special Appeals has held that under Rule 4-242©, “[i]t is beyond dispute that, regardless of whether a criminal defendant is represented by counsel, an inquiry must be conducted of him to ensure that his guilty plea is voluntary.” In re Montrail, 87 Md.App. 420, 427 , 589 A.2d 1318, 1322 (1991), aff';d, 325 Md. 527 , 601 A.2d 1102 (1992). In Sutton v. State, 289 Md. 359, 368 , 424 A.2d 755, 760 (1981), this Court held that the predecessor 4 to Rule 4-242© required that “the record affirmatively show that the trial court determined that ‘the plea was made voluntarily, with understanding of the nature of the charge and the consequences of the plea.’ ” There is no substantive difference between Rule 4-242(c)’s requirement that a determination be made “upon” an examination of the defendant on the record ⁶⁴⁹ and Rule 4-246(b)’s call for a determination “after” such an examination on the record; both clearly indicate that a determination by the trial court must follow, and be influenced by, an examination of the defendant on the record.

Maryland Rule 4 — 215(b) governs the waiver of yet another fundamental right of a criminal defendant, the right to counsel, and also contains language similar to Rule 4 — 246(b). 5 As with a waiver of a jury trial, in determining the propriety of a waiver of counsel, this Court has noted that “courts indulge every reasonable presumption against waiver of fundamental constitutional rights and ... we do not presume acquiescence in the loss of fundamental rights,” and that “a waiver is ... an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. State, 355 Md. 420, 440 , 735 A.2d 1003, 1014 (1999), quoting in part Johnson, 304 U.S. at 464 , 58 S.Ct. at 1023 , 82 L.Ed. 1461 . Because of the fundamental nature of the right involved, this Court has held repeatedly that Rule 4-215 must be construed as “a precise rubric that mandates strict compliance,” and has rejected merely “substantial compliance” with its requirements as insufficient. Johnson, 355 Md. at 448-49 , 735 A.2d at 1018-19 ; see also Parren v. State, 309 Md. 260 , 523 A.2d 597 (1987); Moten v. State, 339 Md. 407 , 663 A.2d 593 (1995); Okon v. State, 346 Md. 249 , 696 A.2d 441 (1997). Rule 4-246(b), like Rule 4-215, is a rule of criminal procedure governing the waiver of a fundamental constitutional right.

Therefore, its provisions specifying that the defendant be questioned on the record regarding the voluntariness of his or her waiver, and that the trial court make a determination that the waiver was made knowingly and voluntarily, must require nothing short of strict compliance. ⁶⁵⁰ A. The majority continues the practice, most recently stated in Abeokuto v. State, 391 Md. 289 , 893 A.2d 1018 (2006) and Kang v. State, 393 Md. 97 , 899 A.2d 843 (2006), of arbitrarily subjecting the knowledge prong of Rule 4-246(b) to a higher level of scrutiny than the voluntariness prong, and thus elevating the former as more important than the latter. This is contrary to the plain language of the Rule and reinforces an imprecise and incomplete waiver inquiry. Kang, 393 Md. at 125 , 899 A.2d at 859 (C.J. Bell, dissenting). The majority’s reasoning that “[ujnless there appears a factual trigger on the record, which brings into legitimate question voluntariness, the trial judge is not required ... to ask explicitly a defendant whether his or her waiver decision was induced or coerced,” is flawed on three counts.

First, this Court has repeatedly required a specific inquiry into a defendant’s knowledge of a jury trial, regardless of any “factual trigger” indicating that such an inquiry is necessary. If the knowledge and voluntariness prongs are equally important, as the plain language of the Rule clearly indicates, then the latter is entitled to just as rigorous an inquiry as the former. Secondly, the majority’s declaration of a finding of voluntariness, based solely on the lack of affirmative evidence to the contrary, amounts to a presumption in favor of the waiver of a fundamental constitutional right. Chief Judge Bell in Kang aptly described the third flaw in this reasoning: How, I ask, can there be any factual trigger on the record when the defendant, who may be under duress or coercion not visible to the court and which he or she may not even appreciate or understand, is never asked questions pertinent to the issue and designed to ferret out information on the subject and, thus, is not given an opportunity to reveal such information?

Indeed, unless the trial court asks questions bearing on the subject of defendant’s voluntary relinquishment of his or her right to a jury trial, a defendant may not even realize that he or she may volunteer information or that the jury trial waiver colloquy is his or her only ⁶⁵¹ opportunity to advise the court of circumstances bearing on the voluntariness of the plea. Kang, 393 Md. at 126 , 899 A.2d at 860 (C.J. Bell, dissenting). Several other jurisdictions also reject the majority’s approach of presuming that a waiver is voluntary despite the lack of supporting evidence. See Boyd v. United States, 586 A.2d 670, 675-76 (D.C.1991) (“The general rule is that a personal and fundamental right will be deemed waived only if there is [a] record [of] evidence demonstrating intentional relinquishment or abandonment of a known right or privilege”); State v. Anderson, 249 Wis.2d 586 , 638 N.W.2d 301, 306 (2002) (“The waiver cannot be based on circumstantial evidence or reasonable inferences”); Walker v. State, 578 P.2d 1388, 1391 (Alaska 1978) (“The duty of the trial court to address the defendant personally on waiver of a jury of twelve extends to a duty to inquire whether the waiver is voluntary and knowing.

Without such an inquiry, this court cannot determine from the record whether the waiver was properly accepted. Failure to do so is error per se.”); Short v. Commonwealth, 519 S.W.2d 828, 832 (Ky.1975) (“In determining whether a waiver of a jury trial is made understandingly, intelligently, competently, and voluntarily, the court must apply the same standards that are required on the acceptance of a guilty plea. The record made at the hearing preceding the acceptance of a waiver by the court must affirmatively set out facts which will permit an independent determination of its validity.”). B. Maryland Rule 4-246(b) also contemplates that “[t]he Court may not accept the waiver until it determines ... that the waiver is made knowingly and voluntarily.” (Emphasis added).

Black’s Law Dictionary defines a “determination” as “[a] final decision by a court or administrative agency.” 480 (8th ed. 2004). Webster’s New College Dictionary defines a “determination” as “[t]he act of settling a dispute, suit, or other question by an authoritative decision or pronouncement, espe ⁶⁵² dally by a judidal body.” 315 (3rd ed. 2005). In light of the plain meaning of the term “determine,” the Rule therefore requires the trial judge to make a dear finding as to the knowledge and voluntariness of the defendant’s election. Surely, when this Court adopted the Rule, it did not intend such a finding to be immune from appellate review, although this will be the result of the majority’s decision to simply assume that the trial judge has correctly made a determination.

Indeed, by allowing the determination to be implicit, the majority ensures that such a decision will always be affirmed on appeal through the circular reasoning that if a bench trial occurred, then the trial judge must have correctly arrived at his determination. A clear determination made on the record, on the other hand, would remove all reasonable doubt as to the trial judge’s finding. Furthermore, such a requirement would hardly constitute a significant burden on the trial court, as it could be fulfilled by a simple oral statement of one or two sentences. The Michigan Supreme Court has also rejected the majority’s approach when applying that state’s rule regarding jury trial waivers, and held “that the trial judge must ... find on the record, from evidence sufficient to warrant such finding, that the defendant, in open court, voluntarily and understandingly gave up his right to trial by jury.” 6 People v. Pasley, 419 Mich. 297 , 353 N.W.2d 440, 444 (1984).

Although Michi ⁶⁵³ gan’s jury trial waiver rule does not state explicitly that the trial court make a determination on the record regarding the knowledge and voluntariness of a waiver, the Michigan Supreme Court reasoned that, in light of the explicit requirement that the defendant’s voluntary and knowing waiver be on the record, “the statute ... will not permit less” than such a finding on the record. Jd. The Vermont Supreme Court came to a similar conclusion when applying a state rule requiring court approval for a jury trial waiver, holding that “[w]e may, of course, infer that the court did not object to trial by court, but the rule requiring court approval demands more than mere acquiescence.” 7 State v. Coita, 153 Vt. 18 , 568 A.2d 424, 426 (1989). The Vermont Supreme Court went on to reason that “[sjilent acquiescence to a waiver does not assure us that the court thought about the decision.” Id.

Chief Judge BELL has authorized me to state that he joins in this dissenting opinion. . The waiver standard is prescribed by Maryland Rule 4-246(b), which provides: 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. .

The United States Supreme Court has held that for a waiver to be knowing and voluntary, it must be “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). Moreover, "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.” Brady v. United States, 397 U.S. 742, 748 , 90 S.Ct. 1463, 1469 , 25 L.Ed.2d 747 (1970). . Rule 4-242(c) provides, in relevant part: Plea of Guilty. The court may accept a plea of guilty only after it determines, upon 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 (1) the defendant is pleading voluntarily, with understanding of the nature of the charge and the consequences of the plea; and (2) there is a factual basis for the plea. .

The predecessor to Rule 4-242(c) was Rule 731(c), which provided, in relevant part: Plea of Guilty. The court may not accept a plea of guilty without first questioning the defendant on the record to determine that the plea is made voluntarily, with understanding of the nature of the charge and the consequences of the plea. Rule 731(c) is thus equivalent to Rule 4 — 242(c) on this point. . Rule 4-215(b) provides, in relevant part: Express waiver of counsel.

If a defendant who is not represented by counsel indicates a desire to waive counsel, the court may not accept the waiver until it determines, after an examination of the defendant on the record conducted by the court, the State’s Attorney, or both, that the defendant is knowingly and voluntarily waiving the right to counsel. . Michigan’s jury trial waiver rule, M.C.L.A. 763.3, provides: (1) In all criminal cases arising in the courts of this state the defendant may, with the consent of the prosecutor and approval by the court, waive a determination of the facts by a jury and elect to be tried before the court without a jury. Except in cases of minor offenses, the waiver and election by a defendant shall be in writing signed by the defendant and filed in the case and made a part of the record. The waiver and election shall be entitled in the court and case, and in substance as follows: "I,_, defendant in the above case, hereby voluntarily waive and relinquish my right to a trial by jury and elect to be tried by a judge of the court in which the case may be pending.

I fully understand that under the laws of this state I have a constitutional right to a trial by juiy." (2) Except in cases of minor offenses, the waiver of trial by jury shall be made in open court after the defendant has been arraigned and has had opportunity to consult with legal counsel. . Vermont's jury trial waiver rule, V.R.Cr.P 23(a), provides: (a) Trial by Jury; Waiver. The defendant may in a signed writing or in open court, with the consent of the prosecuting attorney and the court entered of record, waive a jury trial in offenses not punishable by death. The court shall not accept the defendant’s waiver of the right to trial by jury without first, by addressing the defendant personally in open court, informing that person of, and determining that the person understands, the following: (1) That the jury consists of 12 members of the community, and that the defendant may participate in their selection; (2) That before the defendant can be convicted, all 12 members of the jury must agree on the defendant’s guilt; (3) That where a jury is waived, the court alone decides guilt or innocence in accordance with the facts and the law.

HARRELL, Judge. In this consolidated opinion, 1 we consider whether the respective trial judges, in the criminal cases of Tavony Wayne Zylanz and Steven Anthony Powell, erred by not making explicit findings on the record regarding the knowing and voluntary waivers of the Petitioners’ rights to trial by jury, in accordance with Maryland Rule 4-246(b). In the case of Powell, we consider also, in the context of the record in his case, whether on-the-record questions addressed to him specif ⁶³⁶ ically as to the voluntariness of his jury trial waiver were required. I. A. Tavony Wayne Zylanz On 21 June 2004, in a bench trial in the Circuit Court for Baltimore County, at which he was represented by counsel, Tavony Wayne Zylanz was convicted of fourth-degree burglary, felony theft, and resisting arrest, along with other related lesser offenses.

The trial court sentenced Zylanz to ten years of incarceration, suspending five years in favor of probation, for the felony theft conviction and twenty-three months of incarceration, to be served consecutively, for the fourth-degree burglary conviction. 2 The Court of Special Appeals, in a reported opinion, Zylanz v. State, 164 Md.App. 340 , 883 A.2d 257 (2005), affirmed. On appeal, Zylanz argued that because the trial judge , failed to make an explicit finding on the record regarding his waiver of a jury trial being knowing and voluntary, the waiver was not valid. 3 Zylanz, 164 Md.App. at 342-43 , 883 A.2d at 258 . The intermediate appellate court concluded that Zylanz knowingly and voluntarily waived his right to a jury trial in accordance with Maryland Rule 4-246. Zylanz, 164 Md.App. at 343 , 883 A.2d at 258 .

The court determined that “the rule does not require the court to make a specific finding by the use of certain words or phrases.” Zylanz, 164 Md.App. at 352 , 883 A.2d at 263 . Although the Court of Special Appeals remarked ⁶³⁷ that the record may have been more decisive had the trial court made an explicit statement regarding its finding of the knowing and voluntary nature of the defendant’s waiver, the court stated that “while the court’s acceptance of the waiver was implicit, it [wa]s nonetheless apparent.” Zylanz, 164 Md. App. at 352 , 883 A.2d at 263 . We granted Zylanz’s Petition for Writ of Certiorari to determine whether the Court of Special Appeals correctly