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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1830 SEPTEMBER TERM, 1996 ______________________________

WILBUR BELL v. STATE OF MARYLAND _____________________________ Davis, Harrell, Hollander, JJ. ______________________________ Opinion by Hollander, J. ______________________________ Filed: October 31, 1997

Wilbur Bell, appellant, was convicted after a non-jury trial in the Circuit Court for Prince George's County of second degree rape, attempted rape, assault with intent to rape, and assault and battery. a term With respect to the rape conviction, he was sentenced to of twenty years of incarceration, ten of which were

suspended.

For sentencing purposes, the other convictions were Four questions are presented on

merged into the rape conviction. appeal: I.

Was the record sufficient to show that appellant's waiver of a jury trial was knowing and voluntary? Did the trial court err in limiting cross-examination of the prosecutrix? Did the trial court err in admitting "other crimes" evidence? Did the trial court err in restricting cross-examination of a State's witness?

II. III. IV.

We are of the view that the record is not sufficient to show that appellant's waiver of his right to a jury trial was made knowingly and voluntarily. Therefore, we shall vacate appellant's For the

conviction and remand the matter for further proceedings.

benefit of the trial court on remand, we shall address appellant's other contentions.

FACTUAL SUMMARY Appellant and Pamela Collins, the victim, had been involved in a romantic but stormy relationship for several years. They have

one daughter, Erica Collins, who was six years old at the time of

the incident on August 29, 1994 that gave rise to the underlying charges. When the incident occurred, Ms. Collins and appellant

were no longer romantically involved. On August 29, 1994, Erica completed her first day of school. Early that evening, Ms. Collins was in her apartment in Prince George's County with Erica and Virgil Beaty, a cousin of Ms. Collins who was then approximately eleven years old.1 At

approximately 5:30 p.m., while Ms. Collins was cooking dinner for Erica and Virgil, appellant knocked on Ms. Collins's door. opened the door, but he did not recognize appellant. Erica and Ms. Collins refer to appellant as "Wilbur." Virgil

He heard At trial,

Virgil identified appellant as the individual who was at the door when he opened it. Ms. Collins told appellant to leave, but he said that he wanted to talk to Erica, and Ms. Collins allowed him to remain. While Erica ate dinner, she spoke to appellant about her first day at school. After dinner, Erica and Virgil went outside to play, When

and Ms. Collins went into the kitchen to light a cigarette.

she returned to the dining area, she claimed appellant "grabbed [her], started choking [her] around [her] neck and told [her] he would hurt [her]." bedroom. He then pushed and dragged Ms. Collins into her

According to Ms. Collins, when the two were in the

bedroom, appellant pulled her down onto the floor and tried to pull Virgil was thirteen years old at the time of trial; the trial occurred twenty-six months after the incident. 2
1

her clothes off.

Although she scratched and fought, Ms. Collins

reported that appellant successfully pulled off her pants and raped her. While appellant was still on top of Ms. Collins, Erica came back inside the apartment and entered Ms. Collins's bedroom.

According to Ms. Collins, Erica "started screaming and hollering," and she told Erica to help her, but the child did not do so. Appellant told Erica to leave, which she did. stopped and put his pants back on. Appellant eventually

Ms. Collins retrieved a steak

knife from the dish drain in the kitchen and confronted appellant, who then left the apartment. After appellant left, Ms. Collins "washed up" and changed her clothes. She notified the police and was advised to come to the Thereafter, she returned with the

police station, which she did.

police to her apartment and then proceeded to Prince George's County Hospital, where she was examined by a doctor. By

stipulation, Ms. Collins' hospital records were admitted into evidence. At trial, Ms. Collins conceded that she had no bruises on her neck, although she claimed appellant choked her. She also

acknowledged that her clothes were not torn and the apartment did not show signs of a struggle. Although Ms. Collins promptly filed charges against appellant, in April 1995 she requested that they be put on the stet docket. She explained that, at that time, she believed that appellant "was 3

trying to change his life," that he had gotten married, and that he was developing a good relationship with Erica. She also stated

that Erica enjoyed her relationship with appellant and his family, and she did not want to interfere with that relationship. to her request, the charges were stetted. Pursuant

Approximately one week

after the charges were stetted, appellant came to the victim's apartment and raped her again. As a result of the second rape, Ms.

Collins requested reinstatement of the charges.2 Erica, who was 8 years old at the time of trial, also She stated that when she returned to the

testified for the State.

apartment, the door to her mother's room was closed, but she entered without knocking. Erica testified: "I saw my father on

top of my mother," and added that she saw her father's "back and his butt." Erica.3 Moreover, her mother was screaming, which "upset"

She also claimed that her father told her to "close the According to Erica,

door," but her mother did not say anything.

after her parents came out of the room, her father was "cussing" and her mother told appellant "to get out." In addition, the the case. State called two police Carolyn denied officers Baker who a

investigated statement

Police in

officer he

took

from

appellant,

which

committing

the

Ms. Collins testified that she did not know why charges resulting from the second rape were not prosecuted. When Virgil returned to the apartment, he said that he found Erica in the living room, crying. 4
3

2

offense.

The police officers also acknowledged that no pubic hairs

or seminal fluids were found on items recovered by the police from the victim's apartment. Nor was any DNA analysis conducted on the

sperm recovered from the victim. Appellant testified in his own defense. He told the court

that he had previously lived with Ms. Collins, but he denied that he was at Ms. Collins's apartment on August 29, 1994. On the date

of the incident, he said he was living with his girlfriend, whom he married in November 1994. He also recounted his whereabouts, but

conceded that he had not provided that information in his statement to the police. Appellant also admitted that he was incarcerated in

January 1994 because of Ms. Collins, and that he wrote threatening letters to Ms. Collins while he was in prison. Additional facts will be included in our discussion of the issues presented. DISCUSSION I. At the beginning of the trial, defense counsel indicated to the court that appellant wanted to waive his right to a jury trial. In response to the court's inquiry about whether counsel advised appellant of "the ramifications" of the waiver, counsel stated: "We have talked it over, Your Honor. We talked it over last time

we were here, and I haven't talked it over yet this morning with him." (Emphasis added).

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Thereafter, record.

defense

counsel

questioned

appellant

on

the

Counsel established that appellant was then 34 years old,4

could read and write, and understood the charges and possible maximum penalties. The following colloquy then ensued:

[DEFENSE COUNSEL]: You and I talked about whether you should have a jury trial or judge trial, haven't we? THE DEFENDANT: Yes, sir. [DEFENSE COUNSEL]: And we came to the conclusion that we would like Judge Hotten to decide the case rather than a jury? THE DEFENDANT: Yes, sir. [DEFENSE COUNSEL]: that? Have I forced you to do

THE DEFENDANT: No, sir. [DEFENSE COUNSEL]: Are you giving up your right to a jury trial freely and voluntarily? THE DEFENDANT: Yes, sir. [DEFENSE COUNSEL]: anything? Has anyone promised you

THE DEFENDANT: No, sir. [DEFENSE COUNSEL]: inducement? Or offered you any

THE DEFENDANT: No, sir. [DEFENSE COUNSEL]: Are you mentally and physically? THE DEFENDANT: No. Defendant was actually 33 years old. When defendant testified at trial, he stated that he would be 34 on November the 13th; the trial occurred on October 22, 1996. 6
4

in

good

health

THE COURT: Have you medication or drugs? THE DEFENDANT: No, ma'am.

taken

any

alcohol,

THE COURT: Do you understand if you were to have a jury trial, which would consist of twelve people, or whether you choose to have this member of the bench hear the case, the State would still have the burden to prove the charges against you beyond a reasonable doubt? THE DEFENDANT: Yes, sir [sic]. THE COURT: the services present time? Have you been satisfied with of your attorney up to the

THE DEFENDANT: Yes, ma'am. THE COURT: Is there anything that's been said or anything that's been going on so far that you don't understand or have a question about? THE DEFENDANT: No, ma'am. THE COURT: At this time, knowing that you give up the right to a jury trial and that you are under the influence of no alcohol, medication or drugs, and that you are making this decision freely and voluntarily, is it your intention to give up or waive your right to a jury trial? THE DEFENDANT: Yes. THE COURT: (Emphasis added). Okay.

A. Appellant complains that the record does not establish that he knowingly and voluntarily waived his right to a jury trial, because 7

it does not reflect that he was advised that a jury's verdict must be unanimous in order to convict a defendant. The State counters

that there is no fixed incantation necessary to establish a knowing and voluntary waiver of the right to a jury trial, and that the circumstances demonstrate that appellant's waiver was, indeed, knowing and voluntary. The right to a jury trial is, of course, a fundamental right. Robinson v. State, 67 Md. App. 445, 454, cert. denied, 307 Md. 261 (1986). Maryland Rule 4-246, which was adopted in 1984, governs State v. Hall, 321 Md. 178,

the procedure for jury trial waivers. 182 (1990).

It derives from the version of Rule 735 that was Id. An earlier version of Rule 735,

implemented in January 1982.

which was in effect until 1982, had required that, in order for a defendant validly to waive the right to a jury trial, the defendant had to have "full knowledge" of the right. In Countess v. State,

286 Md. 444 (1979), the Court of Appeals explicated the extent of knowledge contemplated by the "full knowledge" requirement in the earlier version of Rule 735(d). said: What the Rule contemplates is that the defendant have a basic understanding of the nature of a jury trial. We think that this understanding is generally satisfied when the defendant entitled to a jury trial knows that he has the right to be tried by a jury of 12 persons or by the court without a jury; that whether trial is by a jury or by the court, his guilt must be found to be beyond a reasonable doubt; that in a jury trial all 12 8 Writing for the Court, Judge Orth

jurors must agree that he is so guilty but in a court trial the judge may so find. Id. at 455 (emphasis added). Although Rule 4-246 does not contain the full knowledge requirement that once appeared in Rule 735, it does require that The rule states, in

a waiver be made "knowingly and voluntarily." pertinent 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. (Emphasis added). We must now determine whether the knowing and voluntary standard expressed in Rule 4-246 encompasses knowledge of the unanimity requirement, which the Court of Appeals found was clearly embodied in the predecessor to Rule 4-246. resolve this question, we are mindful As we attempt to the unanimity

that

requirement is one of the hallmarks of our jury trial process. Indeed, the fundamental nature of the unanimity requirement is demonstrated by its inclusion in 9 Article 21 of the Maryland

Declaration of Rights, which declares: That in all criminal prosecutions, every man hath a right . . . to a speedy trial by an impartial jury, without whose unanimous consent he ought not to be found guilty. Moreover, in recognizing the fundamental importance of unanimity, the Court of Appeals has stated: Since a unanimous jury verdict is a fundamental constitutional right guaranteed the defendant in a criminal case, it can be dispensed with only when he "competently and intelligently" waives that right. State v. McKay, 280 Md. 558, 572 (1977) (quoting Johnson v. Zerbst, 304 U.S. 458, 469 (1938)). Rule 4-246 assures that a defendant who "expresses a desire to be tried by the court be afforded an opportunity to waive his right to a jury trial. That opportunity is afforded when the nature of

a jury trial is explained to him along with some explanation of the nature of a court trial and/or the distinction between the two modes of trial." Thomas v. State, 89 Md. App. 439, 446 (1991).

There is, however, no "fixed litany" or script that must be followed to establish compliance with the requirements of Rule 4246. Tibbs v. State, 323 Md. 28, 31 (1991); see also Hall, 321 Md.

at 182; Martinez v. State, 309 Md. 124, 134 (1987); Dortch v. State, 290 Md. 229, 235 (1981). As this Court explained in Suggs

v. State, 52 Md. App. 287 (1982), the change in the rule was intended to "relax the requirement of the strict litany found in Countess, while, at the same time, assuring the defendant's right 10

to

a knowing and voluntary waiver."

Id. at 291.

Instead,

compliance with the rule is determined based on the "facts and circumstances "`totality of of each case," Hall, as 321 Md. at 182, by the and the

the

circumstances

reflected

entire

record.'" Robinson, 67 Md. App. at 455 (quoting Davis v. State, 278 Md. 103, 109 (1976), with respect to a guilty plea); see also Martinez, 309 Md. at 134 (stating that a "competent waiver must depend on the unique facts and circumstances of each case"). Although no fixed litany is required, the Court of Appeals has consistently "urged trial judges . . . to be thorough and detailed in conducting the waiver examination on the record . . . ." 321 Md. at 184. This is because Hall,

[t]o satisfy constitutional due process standards, the waiver of a jury trial, a fundamental right, must constitute "an intentional relinquishment or abandonment of a known right or privilege." The Court of Appeals has made it clear that the "knowing and voluntary" language of former Rule 735 (and, we think, by logical implication, current Rule 4-246) was intended to incorporate the constitutional due process standard for waiver of a fundamental right but no more. Robinson, 67 Md. App. at 454 (citation omitted). Case law seems to indicate that a defendant's knowledge of the unanimity requirement is an essential component of a knowing jury trial waiver. Suggs, for example, suggests that the unanimity

requirement remains applicable in regard to whether a waiver was knowingly made. There, the petitioner claimed he did not

voluntarily waive his right to a jury trial, because he was not 11

told that the jury verdict must be unanimous.

The trial court had

told the defendant that if he chose a jury trial, "twelve people . . . would sit in judgment of you and must find you guilty beyond a reasonable doubt and to a moral certainty in order to convict you of the charges." 52 Md. App. at 289. The defendant contended that

because his trial was held before the effective date of revised Rule 735, the trial court was required specifically to advise him of the unanimity requirement, pursuant to Rule 735(d). that the revised rule was applicable and said: While it may be a close question whether the above colloquy satisfies the tenets of Md. Rule 735 b, it appears to us that the above instruction sufficiently conveyed the requirement of jury unanimity to the appellant. Id. at 291; see also Mayes v. State, 50 Md. App. 628, 629-31 (1982) (finding advisement sufficient to convey unanimity requirement). More recently, in Tibbs, the Court of Appeals considered a defendant's waiver of a jury trial. of the defendant if he knew what The trial judge had inquired a jury trial was, if he We held

specifically waived his right to a jury trial, and if he was giving up this right freely and voluntarily. To each of these questions The trial court also

the defendant replied in the affirmative.

inquired if the defendant had been forced or threatened to waive his jury trial right, to which the defendant responded "no." Nevertheless, the Court of Appeals concluded that the waiver violated due process, stating: 12

Considering the totality of the circumstances in the present case, we hold that the record is woefully deficient to establish that Tibbs knowingly and voluntarily relinquished his right to a jury trial. The record fails to disclose that Tibbs received any information at all concerning the nature of a jury trial, as required by our cases. It is not sufficient that an accused merely respond affirmatively to a naked inquiry, either from his lawyer or the court, that he understood that he has a right to a jury trial, that he knows "what a jury trial is," and waives that right "freely and voluntarily." 323 Md. at 31-32 (citations omitted). The Court also noted that

the defendant's "prior unspecified experience with the criminal justice system" was not sufficient to establish a knowing and voluntary waiver. Id. at 32; see also Dedo v. State, 105 Md. App.

438, 451 (1995) (upholding jury trial waiver when court advised defendant, inter alia, of unanimity requirement but did not inform defendant of his right to participate in jury selection), rev'd on other grounds, 343 Md. 2 (1996). In resolving the issue presented here, we are logically drawn to a consideration of the degree of information that a defendant must receive in order to plead guilty freely and voluntarily. The

United States Supreme Court explained in Boykin v. Alabama, 395 U.S. 238 (1969), that a defendant who pleads guilty waives several constitutional rights, including the right to confront one's and

accusers, the privilege against compulsory self-incrimination, the right we consider here--the right to trial by

jury.

Thereafter, the Court of Appeals determined in Davis that the validity of a guilty plea does not necessarily depend upon the 13

enumeration of the rights mentioned in Boykin.

The Court of

Appeals held that, in accepting a guilty plea, a trial court is not required specifically to articulate, on the record, the three constitutional rights discussed in Boykin. taken as a whole [must] affirmatively Rather, "the record disclose[] that the

petitioner's plea was . . . voluntary and intelligent." 118.5

278 Md. at

Thereafter, in Robinson, we observed that "because the

entering of a guilty plea serves as a simultaneous waiver of three fundamental rights . . ., Davis and other cases addressing the standard for acceptance of a guilty plea apply with even greater force where waiver is of the single right of a jury trial." Robinson, 67 Md. App. at 455. While we recognize that a defendant who pleads guilty waives the right to any trial, not just a jury trial, we are unable to conclude that the information needed in order to waive the right to a jury trial is necessarily coextensive with the information needed to enter an effective and valid guilty plea. The lack of a

constitutional mandate that information about a jury trial be imparted to a defendant who pleads guilty does not diminish, in our view, the quantum of information that must be conveyed to a

In his concurring opinion, Chief Judge Robert C. Murphy disagreed with the majority's determination that the record need not reflect the enumeration of the three constitutional rights. He noted, however, that the trial judge in Davis did disclose these rights to the accused. Davis, 278 Md. at 119-20 (Murphy, C.J., concurring in the judgment). 14

5

defendant in order to find a knowing waiver of the right to a jury trial. Maryland Rule 4-242(c) governs the court's acceptance of a guilty plea; it merely requires, in part, that the court determine, "upon an examination of the defendant on the record in open court," that: "(1) the defendant is pleading voluntarily, with

understanding of the nature of the charge and the consequences of the plea; and (2) that there is a factual basis for the plea." Moreover, the Court of Appeals has observed that the rules In

governing a jury trial waiver and a guilty plea are distinct.

State v. Priet, 289 Md. 267 (1981), the Court stated that the requirements governing a jury trial waiver are not "engrafted" on the rule pertaining to guilty pleas. reasoned: Granted that each rule is designed to assure that the accused have a basic understanding of the respective rights there sought to be protected, nevertheless, the two rules are separate and distinct . . . . Id. Relying on Matthews v. State, 46 Md. App. 172 (1980), the Id. at 289. The Court

Court explained that the requirements of Rule 735 (the predecessor to Rule 4-246) were not applicable to Rule 731 (the predecessor to Rule 4-242) because, by its terms, Rule 735 was applicable only if the defendant elected to be tried by the court and, in pleading guilty, the defendant elected not to be tried at all. Md. at 289. Priet, 289

15

A defendant waiving the right to a jury trial must have the knowledge contemplated by Rule 4-246(b). As noted, earlier

decisional law interpreting the predecessor rule to Rule 4-246(b) required that a defendant be advised that the jury's verdict must be unanimous. not believe Although the language of the rule has changed, we do that any less is required now with respect to

unaniminity than was required when the Court decided Countess. This is because, in our judgment, a defendant who is not shown on the record to know of the unanimity requirement cannot make a knowing waiver of his right to a jury trial. Although not raised by appellant, we have also considered whether we may presume that appellant was aware of the unanimity element, because he had an attorney and they had previously "talked . . . over" the jury trial waiver. recognized a "long-standing rule The Court of Appeals has that criminal defendants

represented by counsel are presumed to have been informed of their constitutional rights, including the right to testify." Thanos v.

State, 330 Md. 77, 91 (1993); see also Stevens v. State, 232 Md. 33, 39, cert. denied, 375 U.S. 886 (1963) (attorneys "are presumed to do as the law and their duty require them"). As best we can

determine, however, the Maryland cases that have articulated this principle have done so in the context of a challenge to the voluntariness of a defendant's decision concerning the right to testify or remain silent. See, e.g., Thanos, supra; Fowler v.

16

State, 237 Md. 508, 515 (1965); Stevens, supra.

As we have not

found any case espousing this view with regard to a jury trial waiver, we decline to presume that appellant was aware of the unanimity requirement merely because he had counsel. We explain.

In Gilliam v. State, 320 Md. 637 (1990), cert. denied, 498 U.S. 1110 (1991), the defendant complained about the erroneous advisement he received from counsel regarding the testimonial election, as well as the trial court's failure to correct the advisement. The Court of Appeals rejected the claim; it recognized

that trial judges are not required to inform represented defendants of their right to testify, unless it is "clear . . . that the defendant does not understand the significance of his election not to testify or the inferences to be drawn therefrom." 53. Id. at 652-

Indeed, the Court stated that counsel's colloquy with the

defendant "`on the record' explaining the right to remain silent . . . was a formality not required by any decision of this Court," and characterized the advisement as "gratuitous." Id. at 656.

Similarly, in Oken v. State, 327 Md. 628 (1992), cert. denied, 507 U.S. 931 (1993), the defendant alleged, inter alia, that he did not knowingly and voluntarily waive his right to testify at a criminal responsibility hearing, because he was misadvised by his counsel. In rejecting this contention, the Court acknowledged its

prior holdings "that there is a rebuttable `presumption' that a represented defendant has been fully informed regarding his right

17

to testify . . . ."

Id. at 639.

Consequently, it said that in the

absence of "`clear' indication in the record to the contrary, appellate courts will presume that whatever course of action the defendant ultimately takes at trial was in fact a voluntary

decision made after a complete, but not necessarily on-the-record, consultation with defense counsel." Id. Thereafter, Thanos, to Thanos,

which we earlier referred, reaffirmed Oken and Gilliam. 330 Md. at 91-92.

Morales v. State, 325 Md. 330 (1992), is not inconsistent with the cases we have just reviewed, even though the Court determined there that a defective advisement mandated the conclusion that the testimonial waiver was inadequate. The trial court undertook to In

advise an unrepresented defendant about his right to testify. doing

so, the judge incorrectly informed the defendant about impeachment the based on all of his relied prior on convictions. the erroneous

possible Moreover,

defendant

indisputably

advisement in electing not to testify.

On these facts, the Court

concluded that the defendant did not knowingly and voluntarily waive his right to testify. The Court focused on the defendant's

reliance on the incorrect advisement, but it reiterated that the trial court was not required to advise the defendant in the first place. Having done so, however, the judge had to do it correctly.

Id. at 339. As we see it, this line of cases is inapposite. It is

18

abundantly clear that, by rule, a defendant must be advised, on the record, about the jury trial waiver. Moreover, a specific rule

requires that the jury trial waiver must be knowing and voluntary, and the purpose of the rule would be thwarted if it could be so readily subverted. In contrast, there is no Maryland rule that

governs a defendant's testimonial election. The recent case of Moten v. State, 339 Md. 407 (1995), also

persuades us that the Court of Appeals would not rely upon a presumption that Bell's counsel advised him of the unanimity requirement. In Moten, the trial court accepted the defendant's

waiver of counsel, governed by Rule 4-215, after failing to advise the defendant of the penalties he faced; this failure violated Md. Rule 4-215. Nevertheless, because the record amply supported a

finding that the defendant was acutely aware of the penalties, we found the error harmless and affirmed the conviction. State, 100 Md. App. 115, 123 (1994). Moten v.

The Court of Appeals

reversed.

Writing for five members of the Court,6 Judge Raker held

"that strict compliance with Rule 4-215 is required and that the judge's advice . . . did not satisfy this standard." Id. at 411. It is particularly noteworthy that the Court rejected the State's argument that, when a defendant is represented by counsel, the

Judges Rodowsky and McAuliffe dissented. They agreed with the Court of Special Appeals, concluding that the purpose of Rule 4-215(a)(2) was satisfied because Moten had actual knowledge of the possible penalty. 19

6

defendant is "presumed to have been informed of the pending charges and the allowable penalties." Id. at 409.

We also focus on the Court's recognition in Moten of the important rights that Rule 4-215 is intended to protect. Relying

on Parren v. State, 309 Md. 260 (1987), the Court in Moten said: "[T]he purpose of Rule 4-215 is to protect that most important fundamental right to the effective assistance of counsel, which is basic to our adversary system of criminal justice, and which is guaranteed by the federal and Maryland constitutions to every defendant in all criminal prosecutions." We then emphasized that compliance with this Rule was strictly mandatory. The defendants' convictions were accordingly reversed, because "the noncompliance with that part of subsection (3) of

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