State v. Marsh

RAKER, Judge. This case presents the question of whether a criminal defendant who pleads not guilty and not criminally responsible and elects a bench trial must be informed by the court that this election constitutes a waiver of jury rights with respect to both guilt or innocence and criminal responsibility. We answer in the negative and hold that the defendant’s waiver in this case was valid. Respondent Stephen Marsh was charged with attempted murder and related crimes.

He entered pleas of not guilty and not criminally responsible (NCR), and, after a bench trial, he was found guilty and criminally responsible. The Court of Special Appeals reversed, holding that Marsh had not been adequately informed that by waiving a jury trial on the guilt- or-innocence issue, he was also waiving his right to have a jury decide the issue of criminal responsibility. Marsh v. State, 98 Md.App. 686 , 635 A.2d 26 (1994). We reverse the Court of Special Appeals and affirm Marsh’s conviction.

I. Marsh was convicted of two counts of attempted first degree murder; two counts of the use of a handgun in the commission of a crime of violence, in violation of Maryland Code (1957, 1992 Repl.Vol., 1993 Cum.Supp.) Article 27, § 36B(d); and one count of malicious destruction of property, in violation of Article 27, § 111. Prior to trial for these offenses, Marsh entered pleas of not guilty and not criminally responsible by reason of insanity. See Maryland Code (1982, 1990 Repl-Vol., 1993 Cum.Supp.) §§ 12-108—12-109 of the Health-General Article. At no time did he move to bifurcate the proceedings.

See Maryland Rule 4-314(a). Although he originally requested a jury trial, Marsh ultimately elected to be tried by the court. Judge Mabel Houze Hubbard conducted the following colloquy with Marsh about his desire to waive his right to a jury trial: THE COURT: Now, my understanding is that Mr. Marsh prays a court trial. ⁵³¹ [DEFENSE COUNSEL]: That is correct. THE COURT: But, I presume that he has in the past sought a jury trial, is that right? [DEFENSE COUNSEL]: Originally prayed a jury trial, that is correct.

THE COURT: All right. Let me advise you, Mr. Marsh, that you do have an absolute right to a jury trial or a court trial at your request. Now, a jury trial—a court trial, of course, means that the judge listens to all the facts and evidence in the case and decides whether you’re guilty beyond a reasonable doubt. In a jury trial, you, [Defense Counsel] and [the State’s Attorney] would choose twelve persons from the now Motor Vehicle Administration registry and those twelve people could be young or old, men or women, black, white, Oriental, native American.

In other words, those twelve people could be a cross section of your community, which is Baltimore City, and those twelve people would have to decide your guilt by the same standard a judge applies and that standard again is beyond a reasonable doubt. The difference is that all twelve would have to agree that you are guilty before you could be convicted or all twelve would have to agree, agree you were not guilty before you could be acquitted. If they couldn’t agree and came back nine to three, ten to two, even eleven to one, it’s called a hung jury and if there is a hung jury the State’s Attorney has the option to dismiss the charges against you or to try you over and over and over again until a jury agrees that you’re guilty or agrees that you’re not guilty. Do you understand that, sir?

THE DEFENDANT: Yes, ma’am. THE COURT: Now, understanding that, sir, the court presumes you’ve had an opportunity to discuss your choice with your attorney, Mr. McCourt, is that right? THE DEFENDANT: Yes, ma’am. THE COURT: All right.

Having discussed it and having understood what the court has said to you, is it your wish to ⁵³² pray a jury trial or to give up, that is waive, that right to a jury trial? THE DEFENDANT: I would like to waive that right, please. THE COURT: Very well. And, you choose to have a court trial?

THE DEFENDANT: Yes, ma’am. THE COURT: All right, sir. I will hear the case. Judge Hubbard accepted Marsh’s waiver.

Following a bench trial, she found him guilty and criminally responsible. Marsh noted a timely appeal to the Court of Special Appeals, contending that the trial court should have informed him that if he elected a bench trial on the merits, then the issue of criminal responsibility would also be decided by the court. The Court of Special Appeals agreed and reversed the conviction. We granted the State’s petition for a writ of certiorari.

II

Marsh contends that his waiver of jury rights was invalid because the trial court did not specifically inform him of the statutory right to submit the question of criminal responsibility to a jury. He argues that the decision to enter a plea of NCR must be made by the defendant personally, not by counsel. Treece v. State, 313 Md. 665 , 547 A.2d 1054 (1988). Consequently, any waiver of the right to a jury trial on criminal responsibility must be made by the defendant, in accordance with the specifications of Maryland Rule 4-246.

Before this Court, Marsh also claims that the trial court misled him by telling him that the State would have to prove criminal responsibility beyond a reasonable doubt, whereas in fact Marsh bore the burden of proving lack of criminal responsibility by a preponderance of the evidence. See Maryland Code (1982, 1990 Repl.Vol., 1993 Cum.Supp.) § 12—109(b) of the Health-General Article. ⁵³³ The Court of Special Appeals accepted Marsh’s argument that Treece and Maryland Rule 4-246 require that the defendant be advised in open court of the right to a jury trial on an NCR defense and held that “for a waiver to be valid, ‘the court must be satisfied that the defendant’s election was made knowledgeably and voluntarily.’ ” Marsh v. State, 98 Md.App. 686, 694 , 635 A.2d 26, 30 (1994) (quoting Martinez v. State, 309 Md. 124, 133 , 522 A.2d 950, 955 (1987)). We disagree. We hold that a trial court may accept the waiver of jury trial in an NCR case without giving any advice to the defendant relating specifically to the NCR defense.

We further hold that the trial court did not misinform Marsh about the burden of proof.

III

At the outset, we address whether the result in this ease is governed by Maryland Rule 4-246 or our decision in Treece v. State, 313 Md. 665 , 547 A.2d 1054 (1988). We find that neither applies to the waiver of the right to a jury at the criminal responsibility stage of the proceeding. A. Giving effect to the pronouncements of the Supreme Court, we have required trial courts to observe substantial procedural requirements when accepting the waiver of the Sixth Amendment right to trial by jury. See Martinez v. State, 309 Md. 124 , 522 A.2d 950 (1987).

These requirements are embedded in Maryland Rule 4-246: 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 ⁵³⁴ 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.[ 1 ] Marsh contends that Maryland Rule 4-246(b) applies to the waiver of the right to an NCR proceeding with a jury, as well as the constitutional right to a jury trial on the merits. 2 This is incorrect. The history of Rule 4-246 indicates that it only applies to the waiver of the right to a jury trial on the merits. Rule 4-246 is substantially the same as its predecessor, Rule 735, as it appeared after a revision in 1981. Prior to the 1981 revision, Rule 735(b) required the defendant to make a written election between a jury trial and a court trial.

The form prescribed by the Rule for this written election contained the following language: I know that I have a right to be tried by a jury of 12 persons or by the court without a jury. I am aware that before a finding of guilty in a jury trial all 12 jurors must find that I am guilty beyond a reasonable doubt. I am aware that before a finding of guilty in a court trial the judge must find that I am guilty beyond a reasonable doubt. Maryland Rule 735(b) (1980).

The references to “a finding of guilty” show that the Rule only applied to the waiver of jury rights as to the merits of the case. See Harris v. State, 295 Md. 329, 341 , 455 A.2d 979, 985 (1983) (Murphy, C.J., dissenting in part and concurring in part) (noting that Rule 735(b), by its terms, relates only to the guilt-or-innocence phase of the trial). ⁵³⁵ When this portion of the Rule was revised in 1981, the Standing Committee on Rules of Practice and Procedure submitted to this Court a draft which required the trial court to inform the defendant that “a finding of guilty” in a jury trial must be unanimous. 8 Md.Reg. 1928, 1930 (1981). The fact that the Rules Committee retained some mention of “a finding of guilty” demonstrates that it did not propose the revision of Rule 735 in order to expand the Rule’s application. See Standing Committee on Rules of Practice and Procedure, 75th Report to the Court of Appeals (Oct. 26, 1981).

When the new Rule 735 was adopted, this Court deleted the portion of the Committee’s proposal which contained language referring specifically to “a finding of guilty.” 8 Md.Reg. at 1930. The purpose of this deletion was to make the Rule more flexible by eliminating the prescribed litany, not to extend the Rule’s scope. See Martinez, 309 Md. at 132 n. 7, 522 A.2d at 954 n. 7 (“The codification of [the changes in] Rule 735 eliminated the need for a written waiver and no longer required the trial court to recite to the accused a fixed litany concerning the precise contours of the jury trial right.” (citation omitted)). It is thus apparent that, when the language specifically tying Rule 735 to the merits phase of the trial was removed in 1981, neither the Rules Committee nor this Court intended to extend the application of the Rule to the waiver of jury rights in other contexts.

Our cases reinforce what the Rule’s evolution suggests. See, e.g., Martinez, 309 Md. at 133-34 , 522 A.2d at 955 (relying on