# Boulden v. State > Court of Appeals of Maryland · May 14, 2010 · 414 Md. 284 URL: https://www.frixlaw.com/law-library/cases/9711999 ## Case - **Full name:** Sheila BOULDEN v. STATE of Maryland - **Court:** Court of Appeals of Maryland - **Decided:** May 14, 2010 - **Citations:** 414 Md. 284; 995 A.2d 268; 2010 Md. LEXIS 194 - **Precedential status:** Published - **Opinion:** Dissent - **Judges:** Harrell - **Cited by:** 26 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9711999 ## How later opinions describe it (automated extraction) - declining to conduct plain error review of efficacy of jury trial waiver ## Opinion text Dissenting Opinion by BELL, Chief Judge, which GREENE, J. joins. I. Maryland Rule 4-246 1 sets out the requirements that must be met in order for a defendant to forego, i.e., waive, his or her constitutional right to a jury trial. It provides, in relevant 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 defendant, or any combination thereof, that the waiver is made knowingly and voluntarily.” The question presented in this case is whether a defendant, who, without objecting, waives her right to jury trial after the trial has commenced, indeed after the State has rested, also waives her right thereafter to challenge the validity of the waiver of jury trial. The majority’s answer is, “yes”: “[the petitioner] waived her right to complain about the timing and *315 effectiveness of the jury trial waiver colloquy.” Boulden v. State, 414 Md. 284, 296-97 , 995 A.2d 268, 275 (2010). I disagree. As we have seen, Rule 4-246(b) permits a waiver of jury trial “at any time before the commencement of trial,” and conditions the court’s acceptance of the waiver on an examination of the defendant sufficient to support a finding that the waiver is made freely and voluntarily. Thus, the Rule contemplates, because it requires, that both the waiver and the justifying examination be completed prior to the commencement of the trial. If that Rule is to have meaning as something more than a guide, a suggestion, as to the proper and best practice, as, in fact, one of the “precise rubrics,” Isen v. Phoenix Assurance Co., 259 Md. 564, 570 , 270 A.2d 476, 479 (1970), “‘established to promote the orderly and efficient administration of justice and [which] are to be read and followed,’ ” id., (citing Brown v. Fraley, 222 Md. 480, 483 , 161 A.2d 128, 130 (1960)), as we have often characterized our Rules, see e.g., Broadwater v. State, 401 Md. 175, 182 , 931 A.2d 1098, 1102 (2007), King v. State, 400 Md. 419, 445, n. 10 , 929 A.2d 169, 184, n. 10 (2007), In re Kaela C., 394 Md. 432, 471 , 906 A.2d 915, 938 (2006); GMC v. Seay, 388 Md. 341, 344 , 879 A.2d 1049, 1051 (2005), Johnson v. State, 355 Md. 420, 446 , 735 A.2d 1003, 1017 (1999); Goins v. State, 293 Md. 97, 109, 442 A.2d 550, 556 (1982), then we must construe it strictly, notwithstanding that so doing requires reversal of the defendant’s convictions and a new trial, and hold that Rule 4-246 “means what it says.” Countess v. State, 286 Md. 444, 463 , 408 A.2d 1302, 1311 (1979). This is particularly the case, when, as here, the examination for voluntariness was conducted as if the waiver were being made pre-trial; there was absolutely no reference to the fact that Rule 4-246 had been violated or the consequences of that violation, that the defendant could have, on that account, started afresh. The facts of this case are as follows. On July 5, 2006, a bench trial commenced. The criminal defendant, the petitioner, Sheila Boulden, however, had not waived her right to a jury trial: *316 “[THE STATE]: ... Your Honor, this is State versus Sheila Boulden.... “THE COURT: Okay. Is the State ready to proceed? “[THE STATE]: State’s ready, Your Honor. “THE COURT: Mr. Davis, are we going forward with a court trial? “[DEFENSE COUNSEL]: Yes, sir. We are.” The following day, at the conclusion of the State’s case-in-chief, the State brought the issue of the defendant’s failure to waive a jury trial to the trial judge’s attention. In an attempt to correct this error, the following colloquy between the trial judge and Boulden took place: “THE COURT: Are we ready to continue? “[DEFENSE COUNSEL]: Yes, Your Honor. I believe so. I think the State rested on— “THE COURT: The State rested as we adjourned yesterday. “[THE STATE]: Before we get to motions, Your Honor, it struck me last night that I don’t believe we put the defendant’s waiver of jury trial on the record yesterday. “THE COURT: I think you’re absolutely right. Now that you mention it, I had assumed that that was already done since we were proceeding by court trial. If it has not already been done, we need to do that. “[DEFENSE COUNSEL]: That’s correct, Your Honor. “THE COURT: Okay. Ms. Boulden, would you stand, please? I have to explain something to you. Ms. Boulden, you have a constitutional right to a jury trial in this case because of the nature of the charges against you. A jury is twelve citizens chosen through a process in which you and your lawyer have the right to participate actively. That is, you and your lawyer participate in the selection of twelve citizens. They are chosen, again, with the participation of you and your lawyer from a larger group, sometimes called an array or panel. The larger group from which those twelve are chosen at random are from the voter registration *317 list and the motor vehicle records of Cecil County. Because they are chosen at random, those groups, the array, will over time include all of the different kinds of people who live in Cecil County. “In a jury trial the State has the burden of proving its case beyond a reasonable doubt, just as in a court trial. In a jury trial they have to prove the case to the jury. That is, the twelve citizens have to be convinced beyond a reasonable doubt and they have to be convinced unanimously. That means all twelve of them must vote guilty in order for you to be found guilty. If any one of them refuses to vote guilty, then you cannot be convicted in a jury trial. Do you understand what a jury is? “THE DEFENDANT: Yes. “THE COURT: Do you understand what a jury trial is? “THE DEFENDANT: Yes. “THE COURT: Do you understand that you have a constitutional right to a jury trial? “THE DEFENDANT: Yes. “THE COURT: Do you wish to waive your constitutional right to a jury trial and proceed in a court trial? “THE DEFENDANT: Yes. “THE COURT: Okay. Do you have any questions about the rights that I’ve explained to you, the right to a jury trial. “THE DEFENDANT: No. “THE COURT: Has anybody threatened you in any way or made you afraid to get you to waive your right to a jury trial? “THE DEFENDANT: No. “THE COURT: You’re doing this voluntarily, freely, of your own will? “THE DEFENDANT: Yes. “THE COURT: All right. Then I’m satisfied that the defendant has waived her right to a jury trial.” *318 Significantly, the trial court did not advise Boulden that the failure to conduct a waiver examination before commencing the trial was a procedural default, a consequence of which could have been the aborting of the trial. To be sure, that the examination was not done was brought to the court’s attention in the presence of the petitioner and her counsel and, therefore, it must be conceded that she knew that it had not been done when required. It cannot be said, however, that she was aware of its significance. The State matter-of-factly brought it to the court’s attention and the court and the petitioner’s counsel, equally matter-of-factly, treated it as a mere oversight, as if it was not a big deal. Neither Boulden nor, not surprisingly, her counsel objected to proceeding by way of a non-jury trial. After she was convicted of child abuse and assault in the second degree, she appealed, raising the waiver issue for the first time. The Court of Special Appeals, in an unreported opinion, affirmed the trial’s court holding that Boulden “waived her right to complain,” explaining: “[Boulden] never voiced any complaint regarding the delayed waiver inquiry to the trial court. When the State informed the court after the conclusion of the State’s case that no waiver inquiry had occurred, defense counsel did not object. The record is devoid of any suggestion of the slightest coercion or pressure upon [Boulden] or her counsel to avoid ‘rocking the boat’ at that time.” II. When a defendant has failed to object below, the issue may still be reviewable “under the plain error doctrine, or alternatively, ... as a violation of the fundamental right of a criminal defendant ... secured by Article [5] of the Maryland Declaration of Rights.” Rice v. State, 124 Md.App. 218, 222 , 720 A.2d 1287, 1289-90 (1998) (footnote omitted). “Plain error is ‘error which vitally affects a defendant’s right to a fair and impartial trial.’ State v. Daughton, 321 Md. 206, 211 , 582 A.2d 521, 523 (1990), citing State v. *319 Hutchinson, 287 Md. 198, 202 , 411 A.2d 1035, 1037-38 (1980). We have recognized the boundaries of that error to which we apply our review as that which is ‘compelling, extraordinary, exceptional or fundamental to assure the defendant a fair trial.’ Abeokuto v. State, 391 Md. 289, 327 , 893 A.2d 1018, 1040 (2006), quoting Richmond v. State, 330 Md. 223, 236 , 623 A.2d 630, 636 (1993) (citations omitted). See also Rubin v. State, 325 Md. 552, 588 , 602 A.2d 677, 694 (1992); Hutchinson, 287 Md. at 203 , 411 A.2d at 1038 . We will ‘intervene in those circumstances only when the error complained of was so material to the rights of the accused as to amount to the kind of prejudice which precluded an impartial trial.’ Trimble v. State, 300 Md. 387, 397 , 478 A.2d 1143, 1148 (1984), cert. denied, 469 U.S. 1230 , 105 S.Ct. 1231 , 84 L.Ed.2d 368 (1985). In each case, we will ‘review the materiality of the error in the context in which it arose, giving due regard to whether the error was purely technical, the product of conscious design or trial tactics or the result of bald inattention.’ Hutchinson, 287 Md. at 203 , 411 A.2d [at] 1038.” Diggs v. State, 409 Md. 260, 286-87 , 973 A.2d 796, 811 (2009). Article 5 of this State’s Declaration of Rights and the Sixth Amendment of the United States Constitution guarantee the right of an accused to a jury trial: “A defendant may elect to waive his or her right to a trial by jury and instead be tried by the court. The right to trial by jury is guaranteed by the Sixth Amendment to the United States Constitution and by Articles 5 (entitled to trial by jury), 21 (in all criminal prosecutions, every man has a right to trial by an impartial jury and may only be found guilty by unanimous consent of the jury), and 24 (due process) of the Maryland Declaration of Rights. To waive properly the constitutionally protected right to trial by jury, the defendant must elect to do so by a knowing and voluntary waiver election. Smith v. State, 375 Md. 365, 377-80 , 825 A.2d 1055, 1063 (2003).” Abeokuto v. State, 391 Md. 289, 316 , 893 A.2d 1018, 1033-34 (2006)(footnote omitted); see also Martinez v. State, 309 Md. *320 124, 183 , 522 A.2d 950, 954 (1987) (“The election to waive a jury trial may be made at any time before commencement of the trial.”). The majority concludes that this Court cannot inquire into the instant matter because the issue was not preserved, Boulden, 414 Md. at 304-05 , 995 A.2d at 280 , but then conducts a harmless error analysis, holding that “[w]here, under the facts and circumstances of this case, it is clear that otherwise the waiver was made knowingly and voluntarily, ... it is a valid waiver, even if conducted mid-trial.” Id. at 312 , 995 A.2d at 285 . To justify that conclusion, it characterizes the Rule violation in this case as a purely procedural violation, rather than a constitutional one. Id. at 305 , 995 A.2d at 280 . Rejecting, on that basis, the applicability of Martinez v. State, supra; Mitchell v. State, 337 Md. 509 , 654 A.2d 1309 (1995), and United States v. Saadya, 750 F.2d 1419 (9th Cir.1985), on which Boulden relies, 414 Md. at 299-300 , 995 A.2d at 277 , it states: “[This case] is distinguishable] from Martinez because the post-trial inquiry process proposed in Martinez implicated the voluntariness of the defendant’s waiver, not simply a technical rule violation. In other words, the waiver in the present case violated the rule of procedure, but the waiver in Martinez violated the defendant’s core constitutional right to a jury trial. There is no indication in this record that Boulden’s [jury] trial waiver was anything but knowing and voluntary.” Id. at 305, 995 A.2d at 280 . I do not agree. Indeed, I believe that the majority’s reasoning exalts form over substance and, in any event, the inquiry conducted into voluntariness was deficient. The majority is correct, of course, the “ultimate inquiry-regarding the validity of a waiver is whether ‘there has been an intentional relinquishment or abandonment of a known right or privilege.’ ” Id. at 295 , 995 A.2d at 274 (citing Powell v. State, 394 Md. 632, 639 , 907 A.2d 242, 246 (2006)). Rule 4-246 prescribes how this determination -will be made and, as *321 important, when it is to be made. The latter, the timing of the determination, as the Rule expressly provides, occupies equal status in the Rule as does the examination on which the determination depends. Thus, the timing also must be considered when making the determination whether, indeed, “there has been an intentional relinquishment.” Consequently, the timing of the determination is not purely technical; instead, it goes to the very heart of the fundamental right to a jury trial. Contrary to what the majority concludes, I believe that Martinez, Mitchell, and Saadya , are very much on point. Indeed, what the court in Saadya said on a related point has applicability here: “While a constitutional guarantee may ordinarily be waived, to argue as the government does here that a ‘failure to waive constitutes a technicality’ is to denigrate the very existence of the constitutional right at issue. If the failure to waive is only a technicality, the constitutional right can be denied without the defendant’s consent. In such case, the right no longer has any meaning.” Saadya, 750 F.2d at 1420-21 . The failure timely to waive, when required by Rule, is no less substantive. In Saadya , the court considered the requirements of Rule 23(a) of the Federal Rules of Criminal Procedure with regard to the conditions that must be met in order for a defendant to waive his right to a trial by jury. It provided that “[cjases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government.” 750 F.2d at 1420 . The federal rule expressly prescribed the prerequisites for a defendant to waive his or her right to a jury trial: (1) the defendant’s waiver must be in writing; 2 (2) the court must *322 approve the waiver; and (3) the government must consent to the waiver. Id. In Saadya , the record contained neither an oral nor written waiver of jury trial by the defendants, id., and there was no “approval of any waiver by the district judge.” Id. at 1421 . Although the rule did not expressly so provide, the United States Court of Appeals for the Ninth Circuit held that “[a] defendant’s waiver of his right to jury trial must appear on the record prior to the time the trial commences. The absence of a waiver on the record of the right to trial by jury cannot be remedied by subsequent proceedings on remand.” Id. at 1422 (footnote omitted). The court concluded that requiring a defendant, in a criminal case, to waive his right to a jury trial before trial commences serves a vital purpose. 750 F.2d at 1422 . It explained: “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.’ 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,’ and, two, so that the judge might question the defendant and evaluate his responses at the time the decision was made.” 750 F.2d at 1422 n. 2. (citations omitted). Martinez dealt with whether the defendant’s waiver of jury trial was voluntary. 3 Martinez argued successfully to this *323 Court that his waiver was not voluntary. 309 Md. at 134 , 522 A.2d at 955 . In concluding that the examination of the defendant did not support the trial court’s ruling that Martinez “voluntarily waived his right to a jury trial,” we explained that while, “[i]n determining whether the defendant has knowingly and voluntarily waived his right to a jury trial, the questioner need not recite any fixed ineantation[, wjhether there is an intelligent, competent waiver must depend on the unique facts and circumstances of each case.” Id. Our decision in Parren v. State, discussing waiver of counsel, also is instructive: “ ‘The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused-whose life or liberty is at stake-is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused.’ [ ] To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right does not automatically end the judge’s responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused’s professed waiver of counsel is understanding^ and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.” (emphasis added). *324 309 Md. 260, 272-73 , 523 A.2d 597, 603 (1987) (quoting Von Moltke v. Gillies, 332 U.S. 708, 723-24 , 68 S.Ct. 316, 323 , 92 L.Ed. 309, 320-21 ) (plurality opinion) quoting Johnson v. Zerbst, 304 U.S. 458, 465 , 58 S.Ct. 1019, 1023 , 82 L.Ed. 1461, 1467 (1938); Glasser v. United States, 315 U.S. 60, 70 , 62 S.Ct. 457, 465 , 86 L.Ed. 680, 699 (1942) and citing Adams v. United States ex rel. McCann, 317 U.S. 269, 270 , 63 S.Ct. 236, 237 , 87 L.Ed. 268, 270 (1942); see also Leonard v. State, 302 Md. 111, 120 , 486 A.2d 163, 167 (1985). The trial judge’s inquiry, in the instant case, does not deal with the context in which it occurred. “Although the examiner may be the court, the prosecutor, and/or the defense counsel, it is the trial court that ‘bears the ultimate responsibility for ensuring that the accused has tendered a valid waiver.’ ” Abeokuto, 391 Md. at 317 , 893 A.2d at 1034 quoting Martinez, 309 Md. at 133, n. 9 , 522 A.2d at 954, n. 9 . Rule 4-246 was amended in 2007, with the amendments taking effect in 2008. There were no substantive changes made, but the Committee did add a Committee Note which provided examples of inquires and questions that a judge may use to determine whether a criminal defendant’s waiver is, indeed, voluntary and knowing: “Although the law does not require the court to use a specific form of inquiry in determining whether a defendant’s waiver of a jury trial is knowing and voluntary, the record must demonstrate an intentional relinquishment of a known right. What questions must be asked will depend upon the facts and circumstances of the particular case. “In determining whether a waiver is knowing, the court should seek to ensure that the defendant understands that: (1) the defendant has the right to a trial by a jury; (2) unless the defendant waives a trial by jury, the case will be tried by a jury; (3) a jury consists of 12 individuals who reside in the county where the court is sitting, selected at random from a list that includes registered voters, licensed drivers, and holders of identification cards issued by the Motor Vehicle Administration, seated as jurors at the con *325 elusion of a selection process in which the defendant, the defendant’s attorney, and the State participate; (4) all 12 jurors must agree on whether the defendant is guilty or not guilty and may only convict upon proof beyond a reasonable doubt; (5) if the jury is unable to reach a unanimous decision, a mistrial will be declared and the State will then have the option of retrying the defendant; and (6) if the defendant waives a jury trial, the court will not permit the defendant to change the election unless the court finds good cause to permit the change. “In determining whether a waiver is voluntary, the court should consider the defendant’s responses to questions such as: (1) Are you making this decision of your own free will?; (2) Has anyone offered or promised you anything in exchange for giving up your right to a jury trial; (3) Has anyone threatened or coerced you in any way regarding your decision?; and (4) Are you presently under the influence of any medications, drugs, or alcohol?.” These questions are largely derived from cases in which this Court has addressed the kinds of inquiries it has deemed to be appropriate and required under Rule 4-246. See e.g., Martinez, 309 Md. at 133 , 522 A.2d at 955 (quoting Johnson, 304 U.S. at 464 , 58 S.Ct. at 1023 , 82 L.Ed. at 1466 ) (“the trial judge must be satisfied that there has been ‘an intentional relinquishment or abandonment of a known right or privilege.’ ”); Martinez, 309 Md. at 134 , 522 A.2d at 955 (“court must be concerned that the waiver is not a product of duress or coercion”); Dortch v. State, 290 Md. 229, 232 , 428 A.2d 1220, 1223 (1981) (the criminal defendant’s “ ‘guilt must be found to be beyond a reasonable doubt.’ ”); Countess, 286 Md. at 455 , 408 A.2d at 1308 (the criminal defendant must be informed that she “has the right to be tried by a jury of 12 persons or by the court without a jury____”). The list is, however, by no means exhaustive and the proper inquiry is dependent upon the “unique facts and circumstances of each case.” Martinez, 309 Md. at 133 , 522 A.2d at 955 . The questions hypothesized in the Committee Note relate to, and apply, when the waiver examination is conducted prior to the *326 start of trial. That is significant, as “[w]hat questions must be asked ... depend upon the facts and circumstances of the particular case.” Where one of the circumstances is, as is the case sub judice, that trial has already begun, something more than a generic or standard litany, as suggested by the Committee Note, must be required. The questions that are routinely asked by a trial judge prior to the start of a criminal trial should not be the same questions asked once trial has begun and is half complete. A defendant who does not know that the fact that the trial has commenced is relevant to determining her options cannot be said to have freely and voluntarily waived a known right, because she will not have known, and could not have known, so far as the record reveals, the full nature and extent of the default on the right. For example, had she known that the defect in procedure rendered what was done to date voidable, it could have aborted the trial, she could have conditioned her waiver of jury trial on starting anew. Boulden was never informed that, although mid-trial, she would be entitled to a new trial because the trial judge failed to conduct a waiver inquiry prior to commencement of trial. The cases on which the majority relies, Robinson v. State, 410 Md. 91 , 976 A.2d 1072 (2009) and Taylor v. State, 381 Md. 602 , 851 A.2d 551 (2004), are inapposite. Neither addressed the timing issue that is at issue in this case. In Robinson , in fact, the Court distinguished between those fundamental rights that are “absolute” and cannot be waived unknowingly or unintelligently and those that can. 410 Md. at 102 , 976 A.2d at 1079 . In holding that the “claimed violation of the right to a public trial must be preserved for appellate review by a timely objection at trial,” 410 Md. at 110 , 976 A.2d at 1083 , we explained: “The right to a public trial, though ‘fundamental,’ is not within the ‘narrow band of rights that courts have traditionally required an individual knowingly and intelligently [to] relinquish or abandon in order to waive the right or claim.’ Hunt v. State, 345 Md. 122, 138 , 691 A.2d 1255, 1262 (1997). Unlike, say, the rights to a jury trial, to counsel, and to *327 require the State to prove its case, which are absolute and can only be foregone by the defendant’s affirmative ‘intelligent and knowing’ waiver, the right to a public trial is subject to the balance of competing concerns.” 410 Md. at 107-08 , 976 A.2d at 1082 (footnote omitted). Thus, we affirmed that jury trial can only be waived if done voluntarily and knowingly. As to Taylor , we held “that petitioner failed to preserve the double jeopardy issue for review because no objections or motion to dismiss based on double jeopardy were raised in the trial court in this case (or in the original case). The double jeopardy [defense] was first presented on appellate review.” 381 Md. at 604 , 851 A.2d at 552 . The test for waiver is not the same for double jeopardy and jury trial. Unlike a right to jury trial, the defense of double jeopardy is required to be raised by the defense; only if timely raised will the court conduct an inquiry to determine its viability. On the other hand, in the case of jury trial waiver, the onus is on the trial court to ensure that the defendant has elected a court or jury trial and, if the former, whether he or she has done so voluntarily and knowingly. See Md. Rule 4-246. III. It is the trial judge’s burden to ensure that, when appropriate, there is in the record a waiver pursuant to, and in compliance with, Rule 4-246. The majority, by its holding that “Boulden waived her right to complain about the timing and effectiveness of the jury trial waiver colloquy,” Boulden, 414 Md. at 296-97 , 995 A.2d at 275 , overlooks, if not disregards, this duty of the trial judge. The Court reasons: “We determine ... that Boulden waived her right to complain about the tardy jury trial waiver colloquy. At the beginning of the trial, Petitioner did not object when asked by the trial judge ‘are we going forward with a court trial?’ Instead, defense counsel answered affirmatively. Moreover, defense counsel could have objected to the failure to place on the record Boulden’s waiver of her right to a trial by jury *328 when the State brought the error to everyone’s attention at the close of the State’s case-in-chief and before the defense was to put on its case. The defense could have moved for a mistrial____ [Approximately two months passed after the conclusion of Boulden’s trial until the hearing on her motion for new trial and sentencing. She filed a motion for a new trial and an amendment to that motion one month after trial ended, in neither of which was the timing of the jury trial waiver raised. Petitioner, who was represented by counsel throughout the trial and post-verdict proceedings, had ample opportunity to object to the tardy jury trial waiver.” Id. at 304-05 , 995 A.2d at 280 . Rule 4-246, I repeat, places the onus on the trial judge to determine whether the right to a jury trial has been knowingly and voluntarily waived. 4 The major actor, in that regard, is the trial judge and not the criminal defendant. The defendant is the recipient of the benefit that the Rule is intended to confer. There is no burden on the defendant in that regard. To require a defendant to assert an objection to the trial judge’s default or inaction is impermissibly to shift the burden from the trial judge to the defendant. As the New Jersey Supreme Court explained, “[t]he obligation of the judge ... is not satisfied by lip service. He is not at liberty to shift to the shoulders of the jury his own responsibility. Such action undermines the integrity of the administration of justice.” *329 New Jersey v. Driver, 88 N.J. 255 , 183 A.2d 655, 669 (1962). The same reasoning applies when the attempt is to shift the burden to a criminal defendant. To permit the trial judge “to shift ... his own responsibility,” id., onto Boulden would undermine the very purpose of Rule 4-246. We should encourage, if not insist, that trial judges know and follow the Rules promulgated by this Court to ensure the efficient and orderly processing of cases. We should be vigilant to see that they follow through on their assigned responsibility to ensure the integrity of the administration of justice. The trial judge is the responsible person under our Rules for the conduct of trials and for ensuring their integrity. Pursuant to Rule 4-246, the trial judge is responsible to see that a defendant’s election of mode of trial is timely and, when it is a court trial, to ensure that the qualifying examination of the defendant also is timely and sufficient to assess the voluntariness of that election. The trial court abdicated that responsibility in this case. Rather than address that abdication, we insist on accusing the defendant, for whose benefit we promulgated the Rules. The result is to give the trial court no incentive to “get it right.” The message we send to trial judges is, “don’t worry, the Rule really does not mean what it says and it will not be strictly enforced. If the defendant does not object to your having failed to do what you were required by the Rule to do, he or she will have waived the violation.” This message, sadly, in related contexts, has been and is being sent with increasing frequency. See Walker v. State, 406 Md. 369 , 958 A.2d 915 (2008), Broadwater v. State, 401 Md. 175 , 931 A.2d 1098 (2007), Abeokuto v. State, 391 Md. 289 , 893 A.2d 1018 (2006). This is no way to run a justice system. I dissent. Judge GREENE joins in the views expressed in this dissenting opinion. . Maryland Rule 4-246 was amended subsequent to Petitioner's trial. And so this dissent will cite to the version which was in effect at the time of Petitioner's trial. . Some federal courts have held that there is an exception to the writing requirement of Rule 23(a), “where the record clearly reflects ‘that the defendant “personally gave express consent in open court, intelligently and knowingly.” See United States v. Reyes, 603 F.2d 69, 71 (9th Cir.1979) (quoting United States v. Guerrero-Peralta, 446 F.2d 876, 877 (9th Cir.1971)) (both cases addressing the requirements of Rule 23(b) under which a defendant may proceed with a jury of less *322 than twelve.’).” United States v. Saadya, 750 F.2d 1419, 1420 (1985). This Court has not, before today, recognized any exception to Rule 4-246. . During the hearing the following colloquy between the court and Martinez took place: "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.” *323 Martinez v. State, 309 Md. 124, 135 , 522 A.2d 950, 955 . . It is important to note that we have recognized a number of responsibilities given to a trial judge that can never be shifted. See White v. State, 374 Md. 232, 242 , 821 A.2d 459, 464 (2003) ("It is the responsibility of the trial judge, not the juror, to make the final determination as to whether the juror can be impartial.”); Tharp v. State, 362 Md. 77, 101 , 763 A.2d 151, 163 (2000) ("[I]n those situations when a trial judge reasonably should recognize that an apparent or obvious misuse of sequestration may be afoot, the judge has the right and responsibility, even absent an objection by a party, to inquire and make any required findings or take action as may be appropriate to the circumstances.”) (emphasis added); State v. Brown, 342 Md. 404, 431 , 676 A.2d 513, 526 (1996) ("The onus ... [was] not on Respondent to interrupt a discussion between the court and his attorney to offer an explanation, but rather the responsibility is on the trial judge to ensure that the reason for requesting dismissal of counsel is explained.”). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9711999. Public record. Not legal advice.