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State of Maryland v. Wilbur Bell No. 3, September Term, 1998

HEADNOTE:

Under Maryland Rule 4-246, a criminal defendant may waive his or her jury trial right without being informed specifically in open court of the requirement that a jury verdict must be unanimous.

Circuit Court for Prince George's County Case # CT941753X

IN THE COURT OF APPEALS OF MARYLAND No. 3 September Term, 1998

STATE OF MARYLAND

v.

WILBUR BELL

Bell, C.J. Eldridge Rodowsky Chasanow Raker Wilner Cathell, JJ.

Opinion by Cathell, J. Bell, C.J., joins in the result only

Filed:

Wilbur Bell, respondent, was convicted in a court trial before the Circuit Court for Prince George's County of second degree rape, assault and battery, attempted rape, and assault with intent to rape. He was sentenced to twenty years imprisonment on the rape conviction, with ten years suspended. The trial court merged the remaining counts for sentencing purposes. Respondent appealed his convictions to the Court of Special Appeals. As relevant to this opinion, that court vacated his convictions and remanded the case to the circuit court, holding that respondent had been insufficiently advised of his right to a jury trial because the trial court failed to advise him specifically of the unanimity requirement that all twelve jurors must agree in order to render a verdict of guilt.1 The State petitioned this Court, presenting one issue for our consideration: Did the Court of Special Appeals incorrectly hold that Maryland Rule 4-246(b) requires an examination of a defendant on the record and in open court regarding jury unanimity as a prerequisite for a knowing and voluntary waiver of a jury trial? We granted a writ of certiorari to answer this important question. We shall reverse the Court of Special Appeals and direct it to affirm the trial court's judgment. RELEVANT PROCEDURAL FACTS On September 2, 1994, respondent was arrested pursuant to a warrant for the abovecharged offenses. The record indicates that on November 14, 1994, he filed a demand for a jury trial. When the case ultimately was called for trial, the following exchange occurred: The Court: Should we bring a jury in?

The Court of Special Appeals, although vacating the trial court's judgment for this reason, nonetheless addressed all issues presented to that court by Mr. Bell, finding no merit in Mr. Bell's other claims of error. No cross-petition was filed.

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Mr. Hale [Defense Counsel]: No, Your Honor. We are going to waive a jury trial and go with a Court trial. The Court: Okay. Have you advised Mr. Bell of the ramifications of that? Mr. Hale: We have talked it over, Your Honor. We talked it over the last time we were here, and I haven't talked it over yet this morning with him. The Court: Why don't you do that on the record[?] Mr. Hale: Mr. Bell, stand up for a second, if you would. Mr. Bell, how old are you? The Defendant: I'm thirty-four. Mr. Hale: You can read and write the English language, right? The Defendant: Yes. Mr. Hale: You know what you are charged with, second degree rape, a very serious charge that can get you thirty years in jail? The Defendant: Yes, sir. Mr. Hale: You and I talked about whether you should have a jury trial or judge trial, haven't we? The Defendant: Yes, sir. Mr. Hale: And we came to the conclusion that we would like Judge Hotten to decide the case rather than a jury? The Defendant: Yes, sir. Mr. Hale: Have I forced you to do that? The Defendant: No, sir.

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Mr. Hale: Are you giving up your right to a jury trial freely and voluntarily? The Defendant: Yes, sir. Mr. Hale: Has anyone promised you anything? The Defendant: No, sir. Mr. Hale: Or offered you any inducement? The Defendant: No, sir. Mr. Hale: Are you in good health mentally and physically? The Defendant: No. The Court: Have you taken any alcohol, medication or drugs? The Defendant: No, ma'am. 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: Have you been satisfied with the services of your attorney up to the present time? 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,

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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: Okay. DISCUSSION We said in Countess v. State, 286 Md. 444, 455, 408 A.2d 1302, 1307-08 (1979): The requirement of

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Maryland Law