Walker v. State

BATTAGLIA, J.,

which BELL, C.J. and GREENE, J., join.

I respectfully dissent.

In the present case, Petitioner, Kevin Walker, was charged with possession of a forged document. He was convicted in a bench trial after proceeding on a not guilty agreed statement of facts. Walker noted an appeal to the Court of Special Appeals, arguing that the Circuit Court erred in failing to conduct an examination, on the record, as to whether his waiver of a jury trial was made knowingly and voluntarily, in compliance with the requirements of Maryland Rule 4-246(b), *386 which, prior to amendments taking effect on January 1, 2008, summarized the constitutional requirements as well as the procedure a circuit court must follow in accepting a waiver of a jury trial:

(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 no t 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 added).

Presently at issue is whether a record colloquy between Walker, his counsel and' the court satisfied the procedure for knowingly waiving a jury trial under Rule 4-246(b). The majority clearly agrees that an agreed statement of facts is a trial, see Slip Op. at 17 n. 8, and because a trial is involved, the judge must comply with the dictates of Rule 4-246(b). Accordingly, Walker was entitled to engage in the appropriate colloquy. The only colloquy Walker engaged in concerning whether his waiver was made knowingly, was the following:

[COUNSEL FOR WALKER]: Okay. Now, do you understand that when you proceed in this way you are giving up or waiving your right to trial? Do you understand that?

[WALKER]: No, I didn’t—

[COUNSEL FOR WALKER]: Do you understand that there will be no trial in this situation?

[WALKER]: Okay, yes.

[COUNSEL FOR WALKER]: Okay. And do you understand that in proceeding in this way you are essentially proceeding and then and in the end it will act as a conviction *387 on the one count of possession of a privileged document? Do you understand that?

[WALKER]: Yes.

[COUNSEL FOR WALKER]: Okay. Your Honor.

[THE COURT]: All right, and, Mr. Walker, you understand also that you are waiving any right to have a jury trial of this matter, as well as a court trial? Do you understand that?

[WALKER]: I do now. I didn’t at first. I didn’t know it was a waiver. I knew it was an appealable right, you know—

[THE COURT]: Yes, you have the—

[WALKER]: — saving the appeal. So—

[THE COURT]: — you [have] the right to appeal, but as you know because you and I have been down this road—

[WALKER]: — oh, yes, yes.

[THE COURT]: — you and I have been down this road before and I think we have had at least one jury trial, maybe two. One time you got a hung jury and the other time, I think — well, I don’t know, I can’t recall everything. But you fully understand about jury trials and—

[WALKER]: Yes.

[THE COURT]: — all that.

[WALKER]: Yeah, I—

[THE COURT]: By proceeding as you are doing here today, you are waiving your right to have a jury trial.

[WALKER]: All right. (Emphasis added).

Asking Walker if he understood that he is waiving his right to trial and affirming that he “understands about jury trials and [all that]” was not the appropriate colloquy because the language is devoid of any information concerning the nature of a jury trial; unlike the defendants in cases where we have found a knowing waiver, Walker was not informed of any of the characteristics of a jury trial. See Kang v. State, 393 Md. 97, 111-12 , 899 A.2d 843, 851-52 (2006); Abeokuto v. State, 391 Md. 289, 320 , 893 A.2d 1018, 1036 (2006); State v. Bell, 351 *388 Md. 709, 726-27 , 720 A.2d 311, 319-20 (1998); State v. Hall, 321 Md. 178, 183 , 582 A.2d 507, 509-10 (1990). While courts need not engage in a “fixed litany,” Abeokuto, 391 Md. at 320 , 893 A.2d at 1036 , Walker received absolutely no information regarding the nature of a jury trial.

Walker’s colloquy instead parallels the colloquy provided in Tibbs v. State, 323 Md. 28 , 590 A.2d 550 (1991). Walker’s counsel asked him if he understood that he was waiving his right to a jury trial' and he responded that he did not understand:

[COUNSEL FOR WALKER]: Okay. Now, do you understand that when you proceed in this way you are giving up or waiving your right to trial? Do you understand that?

[WALKER]: No, I didn’t—

The judge proceeded to ask Walker if he understood that he was waiving his right to trial to which he responded, “I do now. I didn’t at first. I didn’t know it was a waiver. I knew it was an appealable right, you know____” Subsequently, the judge stated that Walker “understands about jury trials and [all that],” to which Walker then responded affirmatively. This encounter is similar to the “naked inquiry” to which Tibbs affirmatively responded but that we nonetheless found “woefully deficient.” See id. at 31-32 , 590 A.2d at 551 . Just like Tibbs, Walker’s record reflects the lack of “any information at all concerning the nature of a jury trial.” Id. at 31 , 590 A.2d at 551 . His waiver may be more deficient because Walker at first stated on the record that he did not understand he was waiving his right to a jury trial. Therefore, under the definition of “knowingly” set forth in Bell , he cannot be said to have been “acting consciously or intentionally in waiving the right to a jury.” See 351 Md. at 730 , 720 A.2d at 321 .

In the absence of meaningful litany, the majority distinguishes this case from Tibbs , by stating that the trial judge’s personal knowledge of Walker’s experience with the criminal justice system established that Walker had the requisite knowledge of jury trials before waiving the right:

*389 [THE COURT]: — you [have] the right to appeal, but as you know because you and I have been down this road—

[WALKER]: — oh, yes, yes.

[THE COURT]: — you and I have been down this road before and I think we have had at least one jury trial, maybe two. One time you got a hung jury and the other time, I think — well, I don’t know, I can’t recall everything. But you fully understand about jury trials and—

[WALKER]: Yes.

[THE COURT]: — all that.

In Tibbs , however, we discounted the fact that Tibbs was “no novice to the legal system because he was on parole at the time of his arrest for the instant offenses,” and stated,

notwithstanding that Tibbs may have had some prior unspecified experience with the criminal justice system, the trial judge could not fairly be satisfied on this record that Tibbs had the requisite knowledge of the nature of the jury trial right, that his waiver of the right was knowing and voluntary, and that the requirements of the rule were thus met. We conclude, therefore, that constitutional due process requirements were transgressed in this case.

323 Md. at 31-32 , 590 A.2d at 551-52 . In Tibbs , we were clear in our holding that unspecified criminal justice experience is not enough to establish a knowing waiver. A number of other jurisdictions agree with this stance. See also State v. Baker, 217 Ariz. 118 , 170 P.3d 727, 730 (2007) (finding that a valid jury trial waiver cannot be “accomplished by reliance upon a defendant’s prior experience in the system”); People v. Campbell, 76 Cal.App.4th 305, 310 , 90 Cal.Rptr.2d 315 (Cal.Ct.App. 1999) (“The Attorney General instead contends we should infer from [defendant’s] experience and familiarity with the criminal justice system that he intelligently and voluntarily waived his rights. We decline to do so. If this experience were sufficient to constitute a voluntary and intelligent waiver of constitutional rights, courts would rarely be required to give Boykin/Tahl admonitions.”). But see State v. Ross, 472 N.W.2d 651, 654 (Minn.1991) (concluding there was support *390 for a valid waiver based on defendant’s familiarity with the criminal justice system although it was not clear whether his past convictions were by plea or trial). 1

The majority, nevertheless, distinguishes Tibbs by arguing that, although the trial court in that case was faced with prior unspecified experience with the criminal justice system, the trial court here had personal knowledge of Walker’s past experience with jury trials. The trial judge’s knowledge, while personal, was unspecified: “I think we have had at least one jury trial, maybe two. One time you got a hung jury and the other time, I think — well, I don!t know, I can’t recall everything.” To accept the majority’s reasoning would require concluding that such unspecified knowledge can be imputed to the defendant to support a knowing waiver of a jury trial. Nothing on the record confirms Walker did have jury trial experience and, if so, when such trials occurred. The record is absent of any discussion specifically establishing the extent, if any, of. Walker’s jury trial experience. We therefore, should not assume that the judge’s assertion of Walker’s unspecified experience with the criminal justice sys *391 tem equates with Walker’s actual knowledge of the nature of jury trials.

The majority also incorrectly assumes that representation by counsel and counsel’s decisions to 1) elect a jury trial; 2) negotiate an agreement regarding sentence; and 3) proceed on an agreed statement of facts impute knowledge to the defendant. It cannot, however, be assumed that the significance of such decisions are adequately communicated to a defendant by counsel or that, if explained, the defendant in fact understands the significance of such decisions; in fact, the record reflects Walker did not understand. Hence, Rule 4-246(b) explicitly requires that a waiver examination be “on the record in open court.” We have recently noted that the presence of counsel “will not mitigate an inaccurate or incomplete court instruction” when considering whether the waiver of a jury sentencing right was knowing and voluntary. Abeokuto, 391 Md. at 348 n. 21, 893 A.2d at 1052 n. 21. Therefore, neither the presence of counsel nor decisions made by counsel in the present case can overcome the requirement of Rule 4-246(b) that Walker’s waiver examination be “on the record in open court.”

Walker was not informed on the record of the nature of a jury trial and the combination of his affirmative response to the judge’s “naked inquiry” as to whether he “fully understood] about jury trials and [all that],” the judge’s assertion of past trial experience with Walker, and any information that counsel could have, but may not have, provided him, when considered under the totality of the circumstances, fail to amount to a knowing waiver. The precedent set by the majority’s opinion undermines the requirements of Maryland Rule 4-246(b).

I respectfully dissent.

Chief Judge BELL and Judge GREENE authorize me to state that they join in this dissenting opinion.

. Other jurisdictions have looked to a defendant’s specific experience with the criminal justice system to determine whether it is sufficient to support a knowing waiver. See Hill v. Beyer, 62 F.3d 474, 485 (3d Cir.1995) (declaring that while past experience with the criminal justice system could demonstrate an awareness of constitutional rights, the facts were insufficient to support a knowing waiver when defendant’s criminal record consisted of only one conviction for which he pled guilly); Hensley v. United States, 281 F.2d 605 , 608-09 & n. 6 (D.C.Cir. 1960) (finding experience with two prior jury trials in which defendant was acquitted as a factor to consider in determining whether there was a knowing waiver); People v. Turner, 375 Ill.App.3d 1101, 1110 , 314 Ill.Dec. 665, 674 , 875 N.E.2d 175, 184 (2007) (finding that, although not necessary to the decision, defendant’s two, prior criminal convictions and six prior traffic convictions lent additional support to the validity of defendant’s waiver); Justice Lytton, concurring opinion, id. at 1111 , 314 Ill.Dec. at 675 , 875 N.E.2d at 185 (stating that "reference to defendant’s supposed knowledge of the criminal justice system” should be omitted because "[djefendant’s 'familiarity' with the criminal justice system was a ten-year-old felony, a ten-year-old misdemeanor, and a smattering of traffic tickets handed out over a period of 23 years,” which “[tjaken together ... give the defendant little basis for knowing the nature and import of a jury waiver”), appeal denied, 226 Ill.2d 606 , 316 Ill.Dec. 550 , 879 N.E.2d 938 (2007).