Meredith v. State

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1603
September Term, 2013
DUSTIN MEREDITH
v.
STATE OF MARYLAND
Krauser, C.J.,
Zarnoch,
Raker, Irma S.
(Retired, Specially Assigned),
JJ.
Opinion by Raker, J.
Filed: June 26, 2014
Dustin Meredith, appellant, was convicted in the Circuit Court for Caroline County
of theft scheme between $1,000 and $10,000 and six counts of theft. Before this Court, he
presents one issue for our review: whether the trial court erred by failing to make a finding
on the record that appellant voluntarily waived his right to a jury trial as required by Rule 4-
246(b).
We shall hold that the issue has not been preserved for our review and shall affirm.
I.
Appellant was charged by criminal information in the Circuit Court for Caroline
County with the offenses of first degree burglary, third degree burglary, fourth degree
burglary, theft scheme between $1,000 and $10,000 and eleven counts of theft. He
proceeded to trial before the Circuit Court for Caroline County, after purportedly waiving a
jury trial. Pursuant to Maryland Code (2002, Repl. Vol. 2012) § 7-104 of the Criminal Law
Article, the court convicted appellant of theft scheme and six counts of theft. The court
acquitted appellant of all the other charges. The court sentenced appellant to a term of
incarceration of ten years for theft scheme with all but seven years suspended and five years
probation.1
Inasmuch as the sole issue on appeal relates to whether the trial judge complied with
Rule 4-246 and the adequacy of a waiver of the right to a jury trial, we will dispense with the
1
The court merged the theft charges for sentencing purposes.
underlying facts of the crimes and consider only the facts related to the jury trial waiver.
Appellant’s purported waiver of his right to a jury trial occurred on July 23, 2013, as follows:
“THE COURT: All right. [Appellant], um, [Defense Counsel]
just told me that you wish to waive your right to a jury trial.
What’s your date of birth?
[APPELLANT]: 6/29/89
THE COURT: How old are you today?
[APPELLANT]: 24.
THE COURT: How much education have you had?
[APPELLANT]: I have a high school diploma.
THE COURT: Can you read and write?
[APPELLANT]: Yes.
THE COURT: Can you speak and understand English?
[APPELLANT]: Yes.
THE COURT: Are you under the influence of any substance that
might affect your judgment?
[APPELLANT]: No.
THE COURT: Do you have any disability that might affect your
judgment?
[APPELLANT]: No.
THE COURT: You have a right to be tried either by a judge or
a jury in this case. If you, if you were to be tried by a judge, that
would be one person who would have to be satisfied beyond a
reasonable doubt that you were guilty in order to find you guilty.
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If you chose a jury you and your lawyer and the State’s Attorney
would pick 12 people from the voter rolls and the driver rolls of
Caroline County. They would represent a cross-section of the
community and each of the 12 would have to be satisfied beyond
a reasonable doubt that you were guilty in order to find you
guilty. All 12 would have to agree you were not guilty in order
to find you not guilty. And if they cannot agree, that would be
a hung jury and the State could try you over until, until you were
found not guilty, not guilty or guilty. You’ve indicated that you
wish to waive your right to a jury trial, which means you are
selecting a judge trial if you go to trial. Is that correct?
[APPELLANT]: Yes, it is.
THE COURT: And is that, is that decision being freely and
voluntarily made by you?
[APPELLANT]: Yes it is.
THE COURT: All right, I’m going to rule that you have
knowingly and intelligently waived your right to a jury trial.
Thank you very much.”
Appellant did not object to the court’s ruling and proceeded to trial before the court.
As indicated, the court convicted appellant of theft scheme and six counts of theft and
he was sentenced for the theft scheme charge.
This timely appeal followed.
II.
Appellant argues that the court erred by failing to announce on the record that he
voluntarily waived his right to a jury trial. He argues that the court’s ruling that he
“knowingly and intelligently” waived his right is insufficient to satisfy Maryland Rule 4-
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246(b) without an explicit finding of voluntariness. He contends that his failure to object to
the court’s ruling does not preclude appellate review.
The State maintains that the court complied with Rule 4-246(b). The State concedes
that the Rule requires strict compliance, but argues that, in the instant matter, the court did
find that appellant made a voluntary waiver. The State notes that the court, before making
its final ruling, asked appellant whether his decision to elect a bench trial was “freely and
voluntarily” made to which appellant responded in the affirmative. As such, the State
concludes, it would be perverse to give appellant a “windfall benefit of a new trial” when the
record clearly indicates that the court ensured that appellant knowingly and voluntarily
waived his right to a jury trial.
III.
We turn to appellant’s argument that the trial court erred by failing to announce on the
record a determination that he voluntarily waived his right to a jury trial. Maryland Rule 4-
246(b) provides, in pertinent part, as follows:
“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, 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, the court
determines and announces on the record that the waiver is made
knowingly and voluntarily.” (Emphasis added).
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The waiver of a jury trial is a two-step process. The trial judge must determine that the
waiver is knowing and voluntary. And the trial judge must make that finding on the record.
In Valonis & Tyler v. State, 431 Md. 551, 567, 66 A.3d 661, 670 (2013), the Court of
Appeals left no doubt that the trial judge must make a determination, on the record, that the
defendant’s waiver is both knowing and voluntary. In order to guide the trial courts, the
Court of Appeals in that consolidated case exercised its discretion under Rule 8-131 and
addressed appellants’ argument even though there was no contemporaneous objection lodged
in the trial court. The Court did so “to review the merits . . . due to our perception of a
recurring problem—namely, the failure of trial judges to follow Rule 4-246(b)—and to
further encourage trial judges to adhere to the letter of the Rule.” Nalls & Melvin v. State,
_ Md. _, slip op. at 15, (2014). Post Valonis, there can be no doubt that, even though no
specific litany is required, the record must reflect that the trial judge explicitly found that the
defendant waived a jury both knowingly and voluntarily.
What was less clear following Valonis was whether an appellate court would review
a jury trial waiver absent a contemporaneous objection in the trial court. In Nalls & Melvin
v. State, the Court of Appeals spoke loud and clear that a contemporaneous objection in the
trial court is a necessary predicate for appellate review. After exercising its discretion under
Rule 8-131 to review the trial court’s compliance with Rule 4-246(b), the Court stated as
follows:
“Going forward, however, the appellate courts will continue to
review the issue of a trial judge’s compliance with Rule 4-
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246(b) provided a contemporaneous objection is raised in the
trial court to preserve the issue for appellate review.”
Id. (Emphasis added).
In the case sub judice, appellant made no objection below to the waiver procedure, to
its content, or to the trial court’s announcement as to the “knowingly and intelligently” made
waiver of his right to a jury trial. His challenge to the effectiveness of his waiver is not
preserved for our review and is not properly before this Court. We shall not exercise our
discretion under Rule 8-131 to consider the issue.
JUDGMENTS OF THE CIRCUIT
COURT FOR CAROLINE COUNTY
AFFIRMED. COSTS TO BE PAID BY
APPELLANT.
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