Marti v. State

GREGG MARTI v. STATE OF MARYLAND

No. 0468

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2013

October 5, 2015

UNREPORTED

Meredith, Kehoe, Thieme, Raymond G., Jr. (Retired, Specially Assigned), JJ.

Opinion by Thieme, J.

Dissenting Opinion by Kehoe, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Convicted, following a bench trial in the Circuit Court for Prince George's County, of fourth-degree burglary and malicious destruction of property with a value of less than $500, Gregg Marti,¹ appellant, noted this appeal, contending that the circuit court erred in accepting his waiver of jury trial. Specifically, appellant claims that, prior to accepting that waiver, the circuit court neither adequately examined him nor "determine[d] and announce[d] on the record" that his waiver was made "knowingly and voluntarily," thereby violating Maryland Rule 4-246(b).

At the time the initial briefs in this appeal were filed, the prevailing law was set forth in Valonis and Tyler v. State, 431 Md. 551 (2013), which appeared to hold that no contemporaneous objection was required to preserve for appellate review a claim that the trial court, in accepting a defendant's waiver of jury trial, had failed to comply with the "determine and announce" requirement of Rule 4-246(b). During the pendency of this appeal, however, the Court of Appeals, in three contemporaneously filed decisions, Nalls and Melvin v. State, 437 Md. 674 (2014), Szwed v. State, 438 Md. 1 (2014), and Morgan v. State, 438 Md. 11 (2014), clarified its holdings in Valonis and Tyler. Most relevant to this appeal, the Court of Appeals explained that Valonis and Tyler had not jettisoned the contemporaneous objection rule, in the context of "determine and announce" violations, but had merely been an appellate exercise of discretion, under Maryland Rule 8-131(a), to consider an unpreserved issue. Nalls and Melvin, 437 Md. at 693-94 (opinion of Greene, J.);id. at 699 (McDonald, J., concurring and dissenting); id. at 699-701 (Watts, J., concurring and dissenting).

In light of those intervening decisions, appellant moved to submit a supplemental brief, requesting that we reach the merits of his appeal, notwithstanding the intervening clarification in the law. We granted that motion and ordered that the State file a response to appellant's supplemental brief, which it has.

We now hold that, under the preservation rule as stated in Nalls and Melvin, neither of appellant's claims, alleging violations of Rule 4-246(b), was preserved because appellant failed to object below at any time. We shall nonetheless take the unusual step of exercising our discretion, under Maryland Rule 8-131(a), to notice plain error and address one of these unpreserved claims, regarding the adequacy of the examination, and, in light of the patently inadequate examination which preceded appellant's purported waiver of jury trial, we reverse appellant's convictions and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND²

On March 8, 2012, appellant and his sister, Stephanie Marti, broke into the Laurel home of his ex-girlfriend, Tonika Watkins,³ and proceeded to destroy much of what was inside.⁴ Thereafter, both appellant and his sister were charged, in separate eight-count indictments, with first-degree burglary, theft, and malicious destruction of property, as well as lesser included offenses. Several weeks later, the State moved to consolidate the two cases, since they arose "out of the same time and incident"; at both trials, the State "intend[ed] to offer the testimony of the same witnesses"; a single trial would "avoid unnecessary time, expense and inconvenience to the parties, witnesses and the Court"; andboth cases were scheduled for trial on the same day. Noting that no opposition had been filed, the circuit court granted that motion, and a trial date was set for the consolidated cases.

On the morning of trial, both defendants elected a bench trial. The ensuing colloquy, during which, among other things, appellant purportedly waived his right to a jury trial, is the subject matter of this appeal:

THE COURT: Good morning. There is a rumor that the Defendants will be electing a Bench Trial.

[APPELLANT'S COUNSEL]: That rumor is correct, Your Honor.

[STEPHANIE MARTI'S COUNSEL]: That is correct.

THE COURT: We're all set? Do you have enough chairs there? We will be breaking for a long lunch around 10:25. I've got a dedication ceremony I have to go to and make some short remarks. So, we'll take a little early lunch. Having said that, I guess we're ready for opening statements.

[APPELLANT'S COUNSEL]: Shall we put the waiver on the record?

THE COURT: Lets put the waiver on, yes.

[STEPHANIE MARTI'S COUNSEL]: You wish us to voir dire our clients?

THE COURT: Yes.

[STEPHANIE MARTI'S COUNSEL]: Please state your full name for the record.

STEPHANIE MARTI: Stephanie Marti.

[STEPHANIE MARTI'S COUNSEL]: How old are you?

STEPHANIE MARTI: Thirty-one.

[STEPHANIE MARTI'S COUNSEL]: How far did you go in school?

STEPHANIE MARTI: College.

[STEPHANIE MARTI'S COUNSEL]: So you read, write, and understand the English language?

STEPHANIE MARTI: Yes.

[STEPHANIE MARTI'S COUNSEL]: Today are you under the influence of any drugs, alcohol, medication or anything else that would affect your decision-making?

STEPHANIE MARTI: No.

[STEPHANIE MARTI'S COUNSEL]: Have you and I had the opportunity to discuss whether you wished to have a trial by a Judge or trial by jury in this case?

STEPHANIE MARTI: We had a conversation.

[STEPHANIE MARTI'S COUNSEL]: And is it your decision to waive your right to a trial by jury and elect a trial by Judge?

STEPHANIE MARTI: Yes.

[STEPHANIE MARTI'S COUNSEL]: Do you understand that if you wanted to, we could have a jury trial. Twelve people would be impaneled from the voter and motor registration list of Prince George's County to sit in this case, and that before you could be convicted, all 12, each one of them, would have to be convinced of your guilt beyond a reasonable doubt before you could be convicted. Do you understand that?

STEPHANIE MARTI: Yes.

[STEPHANIE MARTI'S COUNSEL]: If any one of them wasn't so convinced, they couldn't convict you. All 12 would have to have a reasonable doubt as to your guilt before you could be found not guilty. At the jury trial, you would have a right to testify. If you elected not to testify, the Judge would instruct the jury that your decision not to testify could not be held as evidence of your guilt and they would have to decide your guilt or innocence based strictly upon their review of the other evidence. Do you understand that?

STEPHANIE MARTI: Yes.

[STEPHANIE MARTI'S COUNSEL]: When you elect a court trial, the Judge will be the sole person deciding your guilt or innocence, and [the judge] would have to be convinced of your guilt beyond a reasonable doubt before you could be convicted. Do you understand that?

STEPHANIE MARTI: Yes.

[STEPHANIE MARTI'S COUNSEL]: Do you have any question about what it means to have a jury trial or about your decision to give up a jury trial?

STEPHANIE MARTI: No.

[STEPHANIE MARTI'S COUNSEL]: Is that a decision that you made freely and voluntarily?

STEPHANIE MARTI: Yes.

[STEPHANIE MARTI'S COUNSEL]: Thank you, Your Honor.

THE COURT: Thank you. Let's do it this way. Mr. Marti, did you listen to all of that?

GREGG MARTI: Yes, Your Honor, I did.

THE COURT: Did you discuss this with [your counsel] as well?

GREGG MARTI: Yes, I have.

THE COURT: And do you have any questions about that?

GREGG MARTI: Not at all, Your Honor.

THE COURT: Is it your desire to freely and voluntarily give up your right to a trial by jury in this case and have me try the case?

GREGG MARTI: Yes, Your Honor.

THE COURT: Okay. Thank you both.

(Emphasis added.)

Immediately after accepting both defendants' waivers of jury trial, the court conducted a one-day bench trial. At the conclusion of that trial, the court found appellant guilty of burglary in the fourth degree, in violation of Criminal Law Article, § 6-205, and malicious destruction of property with a value of less than $500, in violation of Criminal Law Article, § 6-301, and it acquitted him of all other charges.⁵ The court thereafter sentenced appellant to consecutive terms of three years' imprisonment for fourth-degree burglary and sixty days'imprisonment for malicious destruction of property, as well as $500 restitution,⁶ with credit for two days' time served. Appellant then noted this timely appeal.

DISCUSSION

The Parties' Contentions

Appellant complains that, in accepting his purported waiver of jury trial, the circuit court committed two distinct violations of Maryland Rule 4-246(b), each of which requires that his convictions be reversed. First, he contends, the court's "perfunctory exchange" with him failed to satisfy the requirement, in Maryland Rule 4-246(b), that a trial court "may not accept" a jury trial waiver without first ensuring that there be "an examination of the defendant on the record in open court." Therefore, he maintains, the court had no factual basis for determining whether appellant's purported jury trial waiver was knowing and voluntary. Second, according to appellant, the circuit court failed to comply with the "determine and announce" requirement of that same rule, a failure which, according to Valonis and Tyler v. State, 431 Md. 551 (2013), mandates reversal and a new trial.

The State counters with three arguments, two of which are pertinent here: First, according to the State, appellant waived his claims of Rule 4-246(b) error because he failed to object at the conclusion of the waiver colloquy. Second, maintains the State, the trialcourt's examination of appellant was sufficient to ensure that his waiver of jury trial was knowing and voluntary.⁷

In his supplemental brief, filed after the decisions of the Court of...