Kang v. State

Dissenting Opinion by BELL, C.J., which GREENE, J., joins in part A.

A.

A Maryland defendant’s right to waive a trial by jury is personal and exercisable only by the defendant himself or herself. Smith v. State, 375 Md. 365, 379-81, 825 A.2d 1055, 1064 (2003), Howell v. State, 87 Md.App. 57, 77, 589 A.2d 90, 100 (1991). A waiver of that right is effective and valid only if made on the record, in open court, and found by the court to have been made “knowingly and voluntarily.” Maryland Rule 4-246(b); Smith, 375 Md. at 378-81, 825 A.2d at 1063-1064; State v. Bell, 351 Md. 709, 724-25, 720 A.2d 311, 319 (1998); Tibbs v. State, 323 Md. 28, 31-32, 590 A.2d 550, 551-552 (1991); Stewart v. State, 319 Md. 81, 90, 570 A.2d 1229, 1233-34 (1990); Martinez v. State, 309 Md. 124, 131-35, 522 A.2d 950, 953-56 (1987). The factual determination is fact and circumstance specific and has two components: the waiver must be both “knowing” and “voluntary,” Tibbs, 323 Md. at 31, 590 A.2d at 551, citing State v. Hall, 321 Md. 178, 182, 582 A.2d 507, 509 (1990); Stewart, 319 Md. at 90, 570 A.2d at 1233-34; Martinez, 309 Md. at 134, 522 A.2d at 955.1 Case law is clear on this point:

*124“[T]he trial court must satisfy itself that the waiver is not a product of duress or coercion, and further that the defendant has some knowledge of the jury trial right before being allowed to waive it.”

Tibbs at 31, 590 A.2d at 550, citing Hall, 321 Md. at 182-83, 582 A.2d at 509.

This Court, faced for the second time in the last year with what seems to me to be a clear cut issue, determining the requirements necessary to be met for a waiver of jury trial by a defendant to be valid,2 has again chosen to disregard the plain and unambiguous command of the Rule of Court controlling the issue, Rule 4-246, thus continuing a strained, narrow, and illogical interpretation of that Rule, and reinforcing an imprecise and incomplete waiver inquiry. The majority characterizes as “unavailing” the argument by Shin H. Kang, the petitioner, that, because there was no specific inquiry into the voluntariness of his jury trial waiver, the petitioner’s waiver of his right to jury trial was invalid. 393 Md. 97, 106, 899 A.2d 843, 848 (2006). This is so, the majority says, because “there is no uniform requirement explicitly to ask a defendant whether his or her waiver decision was induced or coerced, unless there appears some factual trigger on the record, which brings into legitimate question voluntariness.... Kang’s colloquy responses did not trigger a requirement that the trial judge inquire further as to voluntariness.” 393 Md. at 110, 899 A.2d at 851.

*125This rationale is wholly inadequate. I emphatically reject it. How, I ask, can there be any factual trigger on the record when the defendant, who may be under duress or coercion not visible to the court and which he or she may not even appreciate or understand, is never asked questions pertinent to the issue and designed to ferret out information on the subject and, thus, is not given an opportunity to reveal such information? Indeed, unless the trial court asks questions bearing on the subject of the defendant’s voluntary relinquishment of his or her right to jury trial, a defendants may not even realize that he or she may volunteer information or that the jury trial waiver colloquy is his or her only opportunity to advise the court of circumstances bearing on the voluntariness of the plea. Is it truly this Court’s expectation that defendants operating under coercion or duress, the existence and nature of which they may not even know, can somehow transcend this circumstance and, without prompting or inquiry, asseverate their inability voluntarily to waive their jury trial right?

I had thought, and so stated in dissent in Abeokuto v. State, 391 Md. 289, 370, 893 A.2d 1018, 1065 (2006) (Bell, C.J., dissenting), that Tibbs, 323 Md. at 31, 590 A.2d at 551, had laid to rest, or at least settled it going forward, the notion that the trial court’s obligation, or burden, to satisfy itself that a defendant’s waiver of jury trial is voluntary, is satisfied by the absence of evidence, when there is nothing in the record to “trigger” a further factual inquiry. The majority opinion in Abeokuto, confirmed by the opinion in this case, makes clear that the majority does not see it that way; despite the clarity of the waiver requirements, as enunciated both by Rule and case law, despite the Court’s admonition that both requirements must be satisfied before a waiver will be held to be valid and notwithstanding Tibbs, the Court seems intent on continuing to relax the waiver standards in practice, as it previously has repeatedly done.

I continue to be confounded, and am certainly far from reconciled to this approach. Accordingly, I stand by the views expressed in dissent in Abeokuto:

*126“The circumstances in Tibbs mirror this case.[3] At no time was the petitioner asked about anything that would impact the voluntariness of his waiver, except, of course, the nature of the jury trial right and the effect of waiver in the context of a death penalty proceeding. That a defendant is aware of, has some knowledge of, the jury trial right, while it may be necessary to a finding of voluntariness, it simply does not *127address directly the motivation issue and it certainly does not inform the court as to it. Whether a person has been coerced or induced to act, whether physically, mentally, by promise or otherwise, ordinarily is not readily, and may not be at all, observable. ... As in Tibbs, there is in this case nothing whatsoever on which the trial court could have relied to determine, as it must have done, that the petitioner’s jury trial waiver was not the product of duress or coercion. The majority’s reliance on the absence of facts in the record demonstrating that the court had a reason to ask questions going to the voluntariness of the waiver is, therefore, quite curious. Nor can the fact that the petitioner was represented by counsel provide the necessary basis for the voluntariness determination.”

Id. at 370-371, 893 A.2d at 1065.

What I said in that dissenting opinion applies with equal force to the case sub judice, perhaps even with greater force. If the prior experience with the criminal justice system that a defendant might have, evidenced by the criminal record he or she has amassed, can not substitute for facts from which the requisite knowledge of the nature of a jury trial can be inferred, the trial court being prohibited from relying on its own observations and conclusions for that inference, it necessarily must follow that the absence of facts concerning voluntariness can not supply the basis upon which the court can, using its own observations and knowledge, infer that a defendant’s waiver of jury trial is voluntary. While there is a certain amount logic in inferring from past experience a degree of knowledge, there is no such logic when the predicate for the inference is the absence of any evidence on the subject, when “there is ... nothing whatsoever on which the trial court could have relied to determine, as it must have done, that the petitioner’s jury trial waiver was not the product of duress or coercion.” 391 Md. at 370-371, 893 A.2d at 1065.

Nor is there an inconsistency between the fact that there is no fixed litany that must be followed in complying with Rule 4-246 and requiring that, at a minimum, there must be some inquiry into the voluntariness of the waiver, just as there must *128be with respect to the defendant’s knowledge of the jury trial right. Just as “[i]t 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,’ ” Tibbs, 323 Md. at 32, 590 A.2d at 551, it cannot be sufficient, under Tibbs, for the trial judge to “observe” that there was, during the jury trial waiver colloquy, no physical nor verbal manifestation of duress or coercion. I interpret the Tibbs admonition that the trial court must satisfy itself both that the waiver was voluntary and that it was done knowingly as being active, not passive. Thus, something more than looking for a “factual trigger” is required; the court has a duty to inquire, to direct the defendant’s attention to, and probe, at least minimally, the relevant considerations. It is worth repeating:

“We can not forget that coercion and improper inducements may have many sources. Indeed, it is not unheard of that a defendant’s attorney may be the source of an improper inducement. To be sure, we can speculate that counsel properly advised the petitioner about his jury trial right and satisfied himself that the defendant’s decision was not the result of coercion, duress or promises. Moreover, we may also surmise that counsel did not himself do anything to coerce or improperly induce the waiver. As with the knowledge prong, see Tibbs, that is not sufficient. Nor is it uncommon that disclosure of such inducements is made, if at all, only upon direct inquiry, perhaps because of the nature of the proceedings-the defendant is responding to questions and likely does not know that he should, or is expected to, volunteer information. Expecting the defendant to volunteer the information or, at least signal that there may be matters that may call into question the voluntariness of the defendant’s announced decision, without explicitly advising him of the consequences of not doing so, therefore, is, I submit, most unrealistic. In any event, it is the court’s burden to satisfy itself that the waiver is voluntary, not the defendant’s. The absence of evidence hardly seems an *129appropriate or adequate basis on which to meet that burden.”

391 Md. at 371, 893 A.2d at 1065-1066 (Bell, C.J., dissenting).

I am not persuaded by the majority’s contrasting of this case with Martinez v. State, 309 Md. 124, 522 A.2d 950 (1987). In that case, the trial court determined that the defendant’s waiver of jury trial was knowing and voluntary, despite the defendant having answered “yes” to the question whether he had been made promises or been threatened with respect to his jury trial right, and responded, “just the judge” when asked if he were certain that his decision to waive jury trial was made freely and voluntarily. Noting the defendant’s affirmative response to the coercion question, this Court concluded that it did not support the trial court’s finding that the waiver was voluntary. The majority seizes upon this fact as supporting its position: “[i]n contrast to the circumstances in Martinez, Kang’s responses did not trigger a requirement that the trial court inquire further as to voluntariness.” 393 Md. at 110, 899 A.2d at 851.4 The majority’s comparison of the petitioner’s circumstances to that of the defendant in Martinez is wholly inappropriate. In Martinez, there was an inquiry into the voluntariness of the defendant’s election; it was the answer to that inquiry that was the trigger for further inquiry and which, when further inquiry was not pursued, constituted the reason for the reversal of the conviction in that case. There was no such inquiry into the voluntariness of the election in this case. If Martinez has any contribution to make to the resolution of the issue sub judice, it is to demonstrate that questions aimed at determining whether coercion or duress played any role in the defendant’s waiver decision are necessary and crucial, as such an inquiry provides the trial judge a window into the defendant’s thought process.

*130Notwithstanding that the contrast is inapt, comparing apples to oranges, it does identify the fundamental flaw in the majority’s analysis. Ignoring an answer to a question into voluntariness, when the answer would require a result contrary to the one the trial court reached, is far different from refraining from asking a question on the subject because no “factual trigger” for such a question has been presented. Rather than being required to satisfy itself of the voluntariness of the defendant’s waiver decision, pursuant to this analysis, the trial court need only wait for the defendant to provide a basis for concern; its only obligation with respect to voluntariness is reactive, not active. Because, however, there is no requirement that the court explore issues implicating voluntariness, except, of course, to the extent that the knowledge prong does so, the likelihood that further inquiry along those lines will ever be triggered is, at best, remote. Indeed, the only occasion when the trigger will be engaged will be when the defendant volunteers information; if he or she does not volunteer any information bearing on the voluntariness of the waiver decision, ipso facto, there is no “factual trigger” for inquiry into the matter.5

The majority claims that “[wjhile the inquiry in the present case is not clothed in the finest cashmere, the colloquy conducted by the trial judge is certainly not a ‘naked’ inquiry as *131in Tibbs.” 393 Md. at 111, 899 A.2d at 851. I disagree as to both prongs.

The waiver colloquy that occurred in this case was as follows:

“[DEFENSE COUNSEL]: Your Honor, the only other issue that I had was that I just wanted to put on the record that Mr. Kang had agreed with the waiver of the jury trial.
“THE COURT: All right. Let me just briefly voir dire Mr. Kang in that regard.
“THE COURT: Mr. Kang, you have an absolute right to a trial by jury in this matter. You also have the right to choose a trial by a judge. In this case, it would be myself.
“Do you understand that if you had a trial by a jury, there would be 12 men and women chosen from the community and your attorney would be able to participate in the selection of that jury and that jury would decide your guilt or innocence of the charges?
“Do you understand that?
“A: Yes.
“THE COURT: Do you understand that if you had a trial by a jury, before you could be convicted by a jury, all 12 jurors would have to unanimously agree upon your guilt? Just for the record, you do understand that?
“A: Yes, I understand.
“THE COURT: And just by way of example, if you had a jury trial and 11 jurors wanted to convict and one juror did not, you would not be convicted. Do you understand that?
“A: Yes.
“THE COURT: And is it your decision to waive the jury trial and elect to have a trial before me today in this court?
“A: Yes.
“THE COURT: Very well. I am satisfied that Mr. Kang has knowingly and voluntarily waived his right to a trial by a jury.”

*132I am satisfied that, as to the defendant’s knowledge of the jury trial right, the colloquy was quite satisfactory. Indeed, in the parlance of the majority, that prong of the inquiry may even be characterized as being “clothed in the finest cashmere.” To the extent that inquiry was intended to do double duty, to be an inquiry into the voluntariness of the waiver, however, it is not a question of the quality of the cashmere, but one of whether the inquiry was clothed at all. Because the colloquy contained no questions with regard to whether the defendant was acting voluntarily, without coercion or duress, on that issue, it was, in fact, worse than “a naked inquiry.” Furthermore, as already explained, the inquiry was an inadequate opportunity for a “factual trigger,” as the majority has labeled it, to even emerge.

Again, the petitioner was never asked about anything regarding the voluntariness of his waiver, except, to the extent relevant, his knowledge of the jury trial right. To be sure, that knowledge may play some role in a finding of voluntariness. It cannot provide, however, the entire picture. Mental or physical coercion, by promise or other means, is not readily observable. Nothing on the record supports the majority’s conclusion that the petitioner’s waiver of jury trial was not the product of duress or coercion. There was no prior written waiver as in Dortch or Hall to further reinforce the notion that the petitioner waived his right voluntarily. The absence of facts is an insufficient predicate for a voluntariness determination.

B.

There is another reason for my disagreement with the majority. That reason involves the problem associated with the petitioner’s interpreter.

The record indicates that, before the commencement of the petitioner’s trial, a court appointed interpreter, requested by the petitioner, was present and sworn. Presumably, the ap*133pointment was pursuant to Maryland Rule 1-202(a)(2),6 which requires the appointment of an interpreter for a defendant who “cannot readily understand or communicate the English language and cannot understand a charge made against the defendant or help present the defense.” This is made necessary by the critical importance under our system that a defendant charged with a crime is able meaningfully to confront his or her accusers and to understand, and thus participate meaningfully in, the proceedings. See Biglari v. State, 156 Md.App. 657, 665, 847 A.2d 1239, 1244 (2004), citing Ko v. United States, 722 A.2d 830, 834 (D.C.1998) (noting that the ability to understand proceedings is essential to a defendant’s right to a fair trial). The appointment of an interpreter for a defendant not proficient in the English language, or readily so, recognizes, in other words, that

“In the absence of a court interpreter, many persons who come before the courts are partially or completely excluded from full participation in the proceedings because they have limited proficiency in the English language, have a speech impairment, or are deaf or hard of hearing. It is essential that the resulting communication barrier be removed, as far as possible, so that these persons are placed in the same position and enjoy equal access to justice as similarly situated persons for whom there is no such barrier.”

See Maryland Rules, Appendix: Maryland Code of Conduct for Court Interpreters, Preamble. Court appointed interpreters are officers of the court, whose function is to “help to ensure that ... persons [needing and utilizing their services] enjoy equal access to justice and that court proceedings and *134court support services function efficiently and effectively.” See Maryland Rules, Appendix: Maryland Code of Conduct for Court Interpreters, Preamble. Thus, interpreters work for the courts; they are not agents of the defendant or the defense counsel. This is confirmed by the oath that an interpreter is required to take. Maryland Rule 16—819(d)(3), which governs the oath taken by interpreters, provides:

“Oath. Upon appointment by the court and before acting as an interpreter in the proceeding, the interpreter shall solemnly swear or affirm under the penalties of perjury to interpret accurately, completely, and impartially and to refrain from knowingly disclosing confidential or privileged information obtained while serving in the proceeding.”

To be sure, as the majority accurately notes, an interpreter is under no obligation always to provide a “simultaneous, word-for-word translation.” 393 Md. at 118, 899 A.2d at 855, citing Maryland Rules, Appendix: Maryland Code of Conduct for Court Interpreters, Canon 1, Accuracy and Completeness, Commentary. What the majority fails to state is that the applicability of that statement assumes that, to do so, would “distort the meaning of the source language,” in which event, it is the opposite obligation that obtains: the interpreter shall not provide such “[vjerbatim, ‘word for word’ or literal oral interpretations.” It is clear, on the other hand, that once appointed by the court and sworn, “[interpreters shall render a complete and accurate interpretation or sight translation, without altering, omitting, or adding anything to what is stated or written and without explanation.”7 Maryland Rules, Appendix: Maryland Code of Conduct for Court Interpreters, Canon 1, Accuracy and Completeness. In short, the interpreter is not free to choose when to interpret, nor is he or she free *135to omit interpretation of certain statements or parts of the proceedings, despite representations by the party for whose benefit he or she was retained, in this case, the defendant, that full interpretation is not necessary. The interpreter’s oath makes this crystal clear, Rule 16-819(d)(3), and that was clearly our intent when we adopted the Code of Conduct for Court Interpreters. See Maryland Rules, Appendix: Maryland Code of Conduct for Court Interpreters, Canon 1, Accuracy and Completeness, Commentary (emphasis added):

“The interpreter has a twofold duty: 1) to ensure that the proceedings reflect precisely what was said, and 2) to place the person with limited English proficiency on an equal footing with those who understand English. This creates an obligation to conserve every element of information contained in a source language communication when it is rendered in the target language.
“Therefore, interpreters are obligated to apply their best skills and judgment to preserve faithfully the meaning of what is said in court, including the style or register of speech. Verbatim, ‘word for word,’ or literal oral interpretations are not appropriate if they distort the meaning of the source language, but eve'ry spoken statement, even if it appears non-responsive, obscene, rambling, or incoherent, should be interpreted. This includes apparent misstatements.
“Interpreters should never interject their own words, phrases, or expressions. If the need arises to explain an interpreting problem (e.g., a term or phrase with no direct equivalent in the target language or a misunderstanding that only the interpreter can clarify), the interpreter should ask the court’s permission to provide an explanation. Interpreters should convey the emotional emphasis of the speaker without reenacting or mimicking the speaker’s emotions or dramatic gestures.
*136“The obligation to preserve accuracy includes the interpreter’s duty to correct any error of interpretation discovered by the interpreter during the proceeding.”

In order for interpreters to perform fully under their “obligation to preserve accuracy,” nothing should, or can, be omitted, whatever the desire or insistence of the defendant. As indicated, this is clear from our Rules.

It is undisputed that the court appointed interpreter, appointed at the behest of the petitioner, at various times during the proceedings did not interpret the proceedings. Rather than insisting that the interpreter perform as the interpreter’s oath requires, the court sought and received assurances from the petitioner and his counsel that the interpretations were unnecessary and that the petitioner understood what was going on. On appeal, the petitioner argues that the trial judge neither “ma[d]e any efforts to ascertain whether [the petitioner] understood the nature of the rights he was waiving” nor “ma[d]e sure that the proceedings were translated from English to Korean.”

The majority rejects both of the petitioner’s arguments. 393 Md. at 110-11, 899 A.2d at 851. It rationalizes, as to the first, that the petitioner demonstrated adequate knowledge of his right to jury trial because he was able to answer in the affirmative to the “byte-size” pieces of questions that were being asked of him. 393 Md. at 111-12, 899 A.2d at 851-52. With respect to the second, it points to the inquiries that the trial judge made to ascertain why the proceedings were not being interpreted and the trial judge’s conclusion that the interpretation was not necessary, as the petitioner, confirmed by his counsel, acknowledged understanding the matters that were not interpreted. It also points out that both the petitioner and his counsel professed satisfaction with the interpreter. I am not convinced.

It may be that the trial court did make efforts, albeit inadequate, given the quality of the waiver inquiry, to ascertain whether the petitioner understood the rights he was waiving. It certainly made a number of inquiries after learn*137ing that the interpreter was not interpreting. It is important, however, to remember that, in addition to the inadequacy of the waiver inquiry, as I have demonstrated, if the petitioner did not fully understand what was being said to him, it is irrelevant how small the questions are broken down into.

However much the trial court may have inquired as to the reasons for the non-interpretation and no matter how satisfied the petitioner and the defense counsel professed to be with the job done by the interpreter,8 it cannot be contended seriously that the court made sure that all of the proceedings were interpreted from English to Korean. The court simply did not insist that the interpreter follow the Rules and, of course, by not interpreting all of the proceedings, albeit, we must assume, at the behest of the petitioner, the interpreter, in fact, violated the Rules. The majority does not seriously contend otherwise. Rather, it relies on the fact that the petitioner and his counsel acknowledged authorizing the non-interpretation for the reason that the petitioner understood the portions of the proceedings that were not interpreted.

This is beside the point. The petitioner sought and received appointment of an interpreter, presumably because he needed an interpreter and because the requisite showing in that regard was made. Once the interpreter was in the case, it was clearly required that the interpreter perform in conformance with the Rules and it was the trial court’s responsibility to enforce that compliance. That is true whether or not the petitioner and his counsel were willing to accept less. While it is for the defendant’s benefit that the interpreter was appointed, it can not be forgotten that the court appointment also served an important institutional purpose, one that implicates the integrity of the criminal process, to ensure that the defendant has equal access and also to ensure that “court proceedings and court support services function efficiently and effectively.”

*138Nor am I satisfied by the fact that, as the majority notes, “[the petitioner] has been an employee of the U.S. Postal Service for 17 and ]/¿ years; [the petitioner] proclaimed that he spoke English ‘[w]ell’ but ‘not very well;’ [the petitioner’s] attorney described to the court that ‘[the petitioner] understand[s] English fairly well ....;’ and, in fact, during trial, [the petitioner] answered some of the State’s questions during cross-examination using English.” 393 Md. at 117-18, 899 A.2d at 855. Length of employment is not dispositive of one’s proficiency in understanding English. The petitioner’s attorney, moreover, cannot be the standard for determining how well the petitioner understands English, even when the petitioner appears to speak English with some ability. After all, it was presumably the petitioner’s attorney who asked that the interpreter be appointed. Indeed, that the petitioner only answered “some of the State’s questions ... using English” only further highlights the fact that complete interpretation was necessary and should have been required.

Similar to coercion or duress, a non-English speaking defendant’s lack of understanding of what was being said during the jury trial waiver litany or at any other point in the trial is sometimes not readily observable by the trial court. It is possible that someone who has lived in the United States for more than 17 years has learned how to act and react to situations, even those beyond their comprehension, in order to avoid difficulty. Such behavior may not ever be admitted or discovered, even in court. Therefore, it is crucial that, when the decision has been made that an interpreter is required, all efforts be made to ensure that the interpreter does what the court appointed him or her to do—interpret all relevant proceedings so that it is clear, and objectively verifiable, in fact, that all relevant information is communicated to the defendant. The duty to ensure that this is done is the trial court’s. That duty was not discharged in this case.

I would reverse.

A. Judge GREENE joins in the views expressed herein in part

. For a waiver to be knowing and voluntary, it must have been, for the possessor of the right, “an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466 (1938). In Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747, 756 (1970), the *124Supreme Court elucidated: “Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” (Footnote omitted).

. The waiver standard is prescribed by Maryland Rule 4-246(b), which provides:

“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.”

. In Tibbs v. State, 323 Md. 28, 590 A.2d 550 (1991), the issue was whether the defendant validly had waived his right to jury trial under Maryland Rule 4-246. Although the defendant had been asked whether "anyone [had] forced you or threatened you to have you give up your right to a jury trial, " and whether he was giving up the right "freely and voluntarily,” he had only been asked whether he understood what a jury trial was. Id. at 30, 590 A.2d at 551. No other inquiry was made and no additional information on the subject was provided. Nevertheless, relying on our precedents stressing that there is no specific litany required for a valid waiver inquiry, the Court of Special Appeals in an unreported opinion concluded that the defendant had knowingly and voluntarily waived his jury trial right, id. at 31, 590 A.2d at 551, holding that the defendant’s previous experience with the criminal justice system compensated for the absence of questions regarding the defendant’s knowledge of the nature of a jury trial.

This Court, in reviewing the Court of Special Appeals' opinion, reaffirmed that a fixed litany was not required; Id. at 31, 590 A.2d at 551; however, we made clear that, from the inquiry conducted, the trial court "must satisfy itself that the waiver is not a product of duress or coercion, and further that the defendant has some knowledge of the jury trial right before being allowed to waive it.” 323 Md. at 31, 590 A.2d at 551, citing Hall, 321 Md. at 182-183, 582 A.2d at 509. Viewing the totality of the circumstances in that light, this Court concluded 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.” 323 Md. at 31, 590 A.2d at 551 (citation omitted). We elaborated:

"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.’ Accordingly, 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 32, 590 A.2d at 551-552.

. The majority made a similar comparison in Abeokuto v. State, 391 Md. 289, 324, 893 A.2d 1018, 1038 (2006). In that case, it observed, "the trial judge did not ignore an affirmative answer to a question aimed at coercion and duress.”

. I pointed out in Abeokuto, relevant to this issue,

“The Court was not unaware of the tenuousness of relying on a record that was not developed fully as to all aspects of the waiver construct. In Dortch v. State, 290 Md. 229, 428 A.2d 1220 (1981), taking note of the fact that many trial judges inquired specifically into the motivation of defendants who waived jury trials, the Court pronounced that to be the preferable practice and ‘encourage[d] trial judges to engage persons electing court trials in a dialogue as detailed as time, resources and circumstances permit so as to insulate jury trial waivers from successful direct or collateral attack.’ Id. at 236, 428 A.2d at 1224, quoting Davis v. State, 278 Md. 103, 118, 361 A.2d 113, 121 (1976). We reiterated that encouragement in Hall, in light of our recognition 'that the cold record before us does not reflect a defendant’s demeanor, tone, facial expressions, gestures, or other indicia which, to a trial judge, may be indicative of a knowing and voluntary waiver of the jury trial right.' ”

Id. at 183-84, 582 A.2d at 510.

. Md.Code (1957, 2001 Repl.Vol., 2005 Supp.), Criminal Procedure Article § 1-202 provides, as relevant:

" § 1-202. Interpreters lor criminal proceedings.
“(a) When appointment required.—The court shall appoint a qualified interpreter to help a defendant in a criminal proceeding throughout any criminal proceeding when the defendant is:
"(1) deaf; or
“(2) cannot readily understand or communicate the English language and cannot understand a charge made against the defendant or help present the defense.”

. It is curious that the majority can “presume that the Korean-English interpreter 'interpretfed] accurately, completely, and impartially' as required in the oath taken by interpreters” when the interpreter acknowledged, during the various inquiries made by the court, the incompleteness of the interpretation being given. 393 Md. at 113-14, 899 A.2d at 852-53.

. The number and frequency of the inquiries as to why there was a lack of interpretation are themselves troublesome to me.