Valonis v. State

Dissenting Opinion by

McDONALD, J.

which ADKINS, J., joins.

Trial by jury is an important right of defendants charged with serious crimes — a right that must be safeguarded by the courts. But there are often sound reasons that a defendant might prefer that his or her culpability be assessed by a judge rather than a lay jury. The rules of criminal procedure appropriately require a thorough inquiry by the trial court to ensure that a defendant who makes that choice waives the right to a jury trial knowingly and voluntarily. It is, of *571course, helpful that a trial judge verbally document his or her finding, as Rule 4 — 246(b) requires. But it is the inquiry and the trial court’s determination, not its documentation, that is key.

The Pre-Trial Inquiries

In each of the cases before us, the defendant stated on the record that he wanted a bench trial instead of a jury trial and, prior to trial, responded to a series of questions from his counsel, indicating on the record that he was aware of the difference between a jury trial and a bench trial.

In Mr. Tyler’s case, defense counsel not only reviewed with him the nature of a jury and the requirement that the jurors all agree that the State had proven its case beyond a reasonable doubt in order to convict, but also emphasized that Mr. Tyler himself had to make the decision whether to proceed with a jury or bench trial. At one point, the trial judge intervened in the colloquy between Mr. Tyler and his counsel to make sure that Mr. Tyler was in fact fully aware of the choice he was making and had an understanding of his rights in a criminal trial. It is true that, at the conclusion of the relatively lengthy colloquy, the judge responded to Mr. Tyler’s expressed desire to proceed with a bench trial with an “Okay,” rather than a more explicit statement that the judge found the waiver to be knowing and voluntary. But no one reading the transcript could have any doubt that the trial judge was fully engaged in ensuring that Mr. Tyler was acting with full knowledge of what he was waiving and that the decision was Mr. Tyler’s own.

In Mr. Valonis’ case, the trial judge left the inquiry entirely to defense counsel, as Rule 4-246 permits. Mr. Valonis’ counsel reviewed with him on the record the difference between a jury trial and bench trial and asked whether he wished to waive his right to a jury trial. After Mr. Valonis answered in the affirmative, the trial judge “note[d] the waiver” and the not guilty plea previously stated by Mr. Valonis’ counsel and asked whether either side had any preliminary matters. Neither Mr. Valonis nor his counsel suggested any addition to the jury waiver inquiry.

*572In each case, defense counsel did not suggest that his client lacked the requisite knowledge and intent to elect a bench trial. In each case, neither the defendant nor his counsel raised any objection as to the adequacy of the inquiry into the jury waiver. Nor did either defendant or his counsel object when the trial judge proceeded with the bench trial that each had requested.

We cannot know, of course, whether either defendant’s demeanor contradicted his statements that he understood the nature of a jury trial and wanted instead to be tried by a judge. But, as the majority opinion notes, the respective trial judges were in the “best position” to assess demeanor and decline to accept a waiver for that reason. Majority Op. at 563-64, 66 A.3d at 668.

The Trials and Appeals

Following Mr. Tyler’s bench trial, he was convicted of burglary and malicious destruction of property. Following Mr. Valonis’ bench trial, he was convicted of robbery, second degree assault, and theft.

Both of these defendants appealed their respective convictions on a single ground. To place the basis of their appeals in perspective, it is also worth noting what they do not argue.

Neither defendant contends that he did not knowingly and voluntarily ask for a bench trial in lieu of a jury trial. Neither defendant now contends that the substance of the inquiry as to his intention to waive a jury trial was inadequate.1 Neither contends that the trial judge did not, in fact, find his waiver to be knowing and voluntary. Neither defendant argues that the ensuing trial was unfair. Neither defendant complains that his counsel was ineffective. Neither defendant complains of over-reaching by the police or prosecution.

*573Each defendant asks for his conviction to be overturned only because the trial judge failed to document explicitly the judge’s conclusion that the defendant had waived a jury knowingly and voluntarily.

The Decision in this Court

The Court’s decision today reverses the results of two bench trials for faulty documentation despite the absence of any objection by defense counsel that the trial court had inadequately documented its determination that the defendant acted knowingly and voluntarily.

Even if one believes that the judges in these two cases failed to comply strictly with the direction in Rule 4 — 246(b) to state a finding as to the defendant’s state of mind on the record, that does not necessarily mean that the convictions should be reversed. It may be, as the Court states, that the Maryland Rules are a “precise rubric.” Majority Op. at pp. 564-65, 566-67, 66 A.3d at 668-69, 669-70. But, as with many precision instruments, multiple parts work together to make a finely crafted whole. Another part of the “precise rubric” states:

.... When a rule, by the word “shall” or otherwise, mandates or prohibits conduct, the consequences of noncompliance are those prescribed by these rules or statute. If no consequences are prescribed, the court may compel compliance with the rule or may determine the consequences of the noncompliance in light of the totality of the circumstances and the purpose of the rule.

Maryland Rule l-201(a). The verb phrase “may not” in Rule 4 — 246(b) is the negative equivalent of “shall.”2 Accordingly, the consequences of a failure to comply with the rule — if such occurred — are to be determined by the principle stated in Rule l-201(a) — with consideration of the totality of the circumstances and the purpose of the rule.3 See also Boulden v. State, 414 Md. 284, 305, 995 A.2d 268 (2010).

*574There can be little question here that the purpose of the rule — to ensure that each defendant’s decision to elect a bench trial was made knowingly and purposefully — was fully served. The defendants do not appear to argue otherwise in this Court.

The majority opinion holds that we must overlook the failure of the defense counsel to raise any objection to the adequacy of the trial court’s documentation of its finding as to the defendant’s intent with respect to the waiver. The majority draws an analogy to our cases interpreting Rule 4-215, which concerns the inquiry that a trial court must undertake when a defendant seeks to discharge his attorney or to waive counsel altogether. Majority Op. at pp. 566-67, 66 A.8d at 669-70. However, the situation in a Rule 4-215 inquiry is quite different. For example, in the context of a request to discharge counsel under Rule 4-215(e), the inquiry concerns the defendant’s displeasure with his counsel’s services — the very situation in which a defendant is least bound to representations made by counsel on his behalf. By contrast, there is no inherent reason to discount defense counsel’s objections— or decisions not to object — when the issue concerns a defendant’s decision to have a bench trial. In the cases before us, no question as to the competence and effectiveness of defense counsel has been raised. No claim has been made that either defense counsel forced his client to waive a jury for some reason.

The requirement of Rule 4-246(b) that the trial judge state a finding on the record as to the defendant’s state of mind as to the jury waiver provides useful documentation. It is always good to document compliance with a rule. It makes things much easier, as the majority opinion notes,4 for those who, like us, must later assess compliance with the rule. But excessive *575emphasis on documentation at the expense of attention to the underlying purpose can lead to perverse results.5 In this case, there are two concerns.

What the Court’s opinion tells trial judges

It is true that neither judge stated precisely “I find that the defendant is waiving a jury trial knowingly and voluntarily” or whatever particular formulation we ultimately will hold suffices. But, in one case, the trial judge not only undertook the inquiry required by Rule 4-246, but personally intervened to ensure that the defendant understood the right that he was giving up. Nevertheless, our opinion faults that judge for not reciting more explicitly what the judge obviously found.

Perhaps this decision will make an appellate court’s job simpler. We will just look for the magic words — whatever ultimately gains acceptance as the formulation that satisfies the last sentence of Rule 4 — 246(b)—but our real focus should be on the adequacy of the colloquy required by the rule.

My concern is that our decision in these cases will inevitably encourage trial judges to focus on reciting a rote formulation more than it will enhance the inquiry made by the trial judge into the defendant’s knowledge and intention.

What the Court’s opinion tells defense counsel

The Court holds that these defendants are each entitled to a new trial as a result of the trial court’s failure to document its finding during the pre-trial inquiry. As noted above, neither of these defendants nor their respective counsel raised any objection at or before trial as to the adequacy of the waiver inquiry when the trial judge could have remedied the situation. As a result of the Court’s decision, it seems unlikely that any competent defense counsel ever will and give up the *576option of an assured “do-over” — if the outcome of the bench trial is not to the defendant’s satisfaction, the trial court’s failure to document allows the defendant to obtain a do-over, even for an error-free trial.

Conclusion

For the reasons explained above, we should affirm the decisions of the Court of Special Appeals in these cases. If the Court has any doubt as to whether either of these judges actually found that the defendant’s waiver was knowing and voluntary, the case should be remanded for the judge to supplement the record. On remand, the trial court could either (1) confirm that it had found the defendant’s waiver to be knowing and voluntary at the time of the inquiry or (2) state that it is unable to provide such confirmation. Only in the latter case would the defendant be entitled to a new trial.

Judge ADKINS joins this opinion.

. In the Court of Special Appeals, Mr. Valonis argued that the pre-trial inquiry in his case should have included additional advisements, including the fact that he would be tried before a jury if he did not waive a jury trial. The Court of Special Appeals rejected his argument concerning the adequacy of the inquiry and he has not reiterated it in this Court.

. Cf. Maryland Code, Article 1, § 26 (meaning of “may not”).

. The same principle applies with respect to guilty pleas in federal courts, where the court is required to inquire in somewhat greater *574detail to determine whether the defendant is waiving the right to a jury trial, as well as other constitutional rights, knowingly and voluntarily. See Federal Rule of Criminal Procedure 11(h) ("A variance from the requirements of this rule is harmless error if it does not affect substantial rights'')-

. Majority Op. at 565-66, 568, 66 A.3d at 669, 670-71.

. A common temptation of lawyers may be to focus on documentation at the expense of comprehension, which may serve lawyers well, but not the people they serve. In other contexts, excessive attention to documentation at the expense of understanding can lead to a person affixing his or her signature to attest, acknowledge, or agree without any comprehension as to what he or she is attesting, acknowledging or agreeing to.