James Szwed v. State, No. 61, September Term 2013, Opinion by Greene, J.

CRIMINAL LAW – WAIVER OF RIGHT TO JURY TRIAL – COMPLIANCE WITH
MARYLAND RULE 4-246

Pursuant to Maryland Rule 4-246(b)’s determination and announcement requirement,
following a jury trial waiver colloquy, a trial judge must explicitly state on the record his or
her finding that a criminal defendant’s waiver was made both knowingly and voluntarily.
Although a fixed litany is not required, both concepts must be addressed in the trial judge’s
announcement, either by using that precise language or using synonyms that represent the
same concepts.
Circuit Court for Prince George’s County
Criminal Case No. CT110375X
Argued: February 6, 2014




                                               IN THE COURT OF APPEALS
                                                    OF MARYLAND

                                                            No. 61

                                                    September Term, 2013


                                                       JAMES SZWED

                                                              v.

                                                  STATE OF MARYLAND


                                             Barbera, C.J.
                                             Harrell
                                             Battaglia
                                             Greene
                                             Adkins
                                             McDonald
                                             Raker, Irma S. (Retired, Specially
                                                    Assigned),

                                                              JJ.


                                                    Opinion by Greene, J.
                                                    Battaglia, J., concurs.
                                           Adkins, McDonald and Raker, JJ., dissent.




                                             Filed: April 23, 2014
       This case involves issues of law similar to our recently consolidated cases in Nalls v.

State and Melvin v. State, __ Md. __, __ A.2d __ (2014). For the reasons explained in the

majority opinion in Nalls & Melvin, and as summarized here, the judgment of the Court of

Special Appeals shall be reversed. In this opinion, as we did in Nalls & Melvin, we address

a challenge that has arisen since our decision in Valonis & Tyler v. State, 431 Md. 551, 66

A.3d 661 (2013). We reaffirm our holding in Valonis that a trial judge must comply fully

with Md. Rule 4-246(b), and that failure to comply is reversible error. We further address

what constitutes a trial judge’s valid determination and announcement on the record under

Rule 4-246(b), whether a defendant’s failure to object precludes appellate review, and the

appropriate sanction when a trial judge fails to comply with the waiver requirements.

                                         I. FACTS

       The charges against Petitioner James Szwed (“Szwed”) stemmed from a burglary of

a house in Accokeek, Maryland. Szwed was indicted in the Circuit Court for Prince

George’s County, and charged with first, third, and fourth degree burglary, theft over $1000,

and malicious destruction of property. At the conclusion of a bench trial, the court found

Szwed guilty of all three burglary counts, theft under $1000, and malicious destruction of

property having a value of less than $500. Szwed was sentenced to a term of incarceration

of 15 years. Prior to the commencement of the bench trial, the following exchange occurred:

       [Defense Counsel]: Mr. Szwed and I have discussed the possibility of a court
       trial. That is a non-jury trial. Have we not, Mr. Szwed?

       [Szwed]: Yes.

       [Defense Counsel]: What do you want to do? Do you want the judge to decide
      your case or a jury?

      [Szwed]: The judge.

      [The trial judge inquires about Szwed’s age, education, and health.]

      [Trial Judge]: Your attorney has indicated that you want to elect to be tried by
      the [c]ourt as opposed to a jury; is that correct?

      [Szwed]: Yes, ma’am.

      [Trial Judge]: If you elected a jury trial, a jury would consist of 12 people from
      the community whom you would help choose. Their verdict would have to be
      unanimous. In other words, all 12 jurors would have to believe you were
      guilty beyond a reasonable doubt or you couldn’t be convicted. If even one
      felt that you were not guilty or that the State did not prove you were guilty, you
      could not be convicted. It would be a hung jury, a mistrial would be declared,
      and you would not be convicted of that offense. You could be retried, but you
      would not be convicted. A judge has to be convinced beyond a reasonable
      doubt, as well, but the difference is it’s one person versus twelve jurors. Do
      you understand the difference between a court and a jury trial?

      [Szwed]: Yes, ma’am.

      [Trial Judge]: What is your election?

      [Szwed]: For a judge trial.

      [Trial Judge]: I’m going to find he made – has anyone threatened you or
      promised you anything in order to get you to make that election?

      [Szwed]: No.

      [Trial Judge]: All right. I’m going to find that he made a free and
      voluntary election of a court trial versus a jury trial. (Emphasis added.)

      Following Szwed’s conviction, he noted an appeal the same day challenging the trial

judge’s acceptance of the defendant’s jury trial waiver. The Court of Special Appeals



                                              2
affirmed the judgment in an unreported opinion prior to the publication of this Court’s

opinion in Valonis, 431 Md. 551, 66 A.3d 661. The intermediate appellate court held that

because defense counsel failed to object at the time of the defendant’s jury trial waiver, the

issue was not preserved for review. Nonetheless, the Court of Special Appeals stated that

had the issue been preserved, the court would have held that the trial judge sufficiently

satisfied the announcement requirement under Md. Rule 4-246(b).              We then granted

certiorari, Szwed v. State, 432 Md. 467, 69 A.3d 474 (2013).

       In his petition for certiorari, Szwed asks:

       Did the trial court err in accepting Szwed’s purported waiver of jury trial and
       in proceeding with a bench trial without fully complying with Maryland Rule
       4-246?

                                      II. DISCUSSION

                                       A. Preservation

       Petitioner argues that this Court can reach the merits of this case because, he contends,

Valonis created an exception to the general contemporaneous objection requirement to

preserve an issue for appeal. On the other hand, the State argues that we relied solely on our

discretionary review power pursuant to Rule 8-131(a) to reach the merits in Valonis, and

therefore Petitioner’s claims in this case are not preserved for review in this Court. As we

clarified in Nalls & Melvin, in Valonis we elected to exercise our discretion 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.



                                               3
For the same reasons stated in Nalls & Melvin, we reach the merits in the instant appeal,

notwithstanding the lack of a contemporaneous objection at trial.

                         B. Compliance with Md. Rule 4-246(b)

       In Valonis, we held that a trial judge must comply with Md. Rule 4-246(b), and that

failure to comply is reversible error. The Rule requires an in-court inquiry into the criminal

defendant’s waiver of his or her right to a jury trial. Although the inquiry may be conducted

by the prosecutor, defense counsel, the court, or any combination of the three, the Rule also

requires that the trial judge engage in the process and announce on the record a finding as to

whether the defendant’s waiver was made knowingly and voluntarily. In this Court’s opinion

in Nalls & Melvin, we emphasized that a trial judge’s determination and announcement on

the record must explicitly state the trial judge’s findings that the criminal defendant’s waiver

of his right to a jury trial was made both knowingly and voluntarily. Although the trial judge

need not recite any “magic words,” the Rule requires the trial judge to address both concepts

in making an explicit announcement on the record. Synonyms for or words other than

“knowingly” and “voluntarily” that capture the concepts of the words used in the Rule can

achieve compliance, so long as both concepts are represented.

       In the instant case, the trial judge stated that: “I’m going to find that he made a free

and voluntary election of a court trial versus a jury trial.” “Free” and “voluntary” have the

same meaning for purposes of compliance with this Rule. Nowhere did the trial judge

acknowledge that Szwed’s waiver was made “knowingly,” and therefore, the trial court did



                                               4
not comply fully with Rule 4-246(b). As we held in Nalls & Melvin, addressing one half of

the required announcement neither suffices as a valid announcement that the criminal

defendant’s jury trial waiver was both knowing and voluntary, nor confirms for the appellate

courts that the trial judge was fully engaged in the process. We therefore conclude that the

trial judge’s announcement that Szwed “made a free and voluntary election of a court trial”

did not comply with Rule 4-246(b).

                                         C. Sanction

       As we held in Valonis and reaffirmed in Nalls & Melvin, the only appropriate sanction

for noncompliance with Rule 4-246 is a reversal. Valonis, 431 Md. at 570, 66 A.3d at 672;

Nalls & Melvin, __ Md. at __, __ A.3d at __. Given the significance of the constitutional

right protected by the Rule, a violation of the Rule is not a mere technicality. Failure to

comply with Rule 4-246(b) constitutes reversible error and is not subject to harmless error

analysis. Valonis, 431 Md. at 569, 66 A.3d at 671 (“[T]he trial judge’s failure to announce

its determination on the record is not a mere technicality and is not subject to harmless error

analysis.”). In addition, a limited remand would be impractical because the trial judge would

be required to review a waiver colloquy that took place several months, if not years, prior,

which would undermine the purpose of the Rule. As we repeated in Nalls & Melvin, “the

underlying purpose of Rule 4-246(b) is to ensure, both for the trial judge and for the appellate

courts, that the defendant makes a knowing and voluntary waiver, at the time the waiver is

made.” __ Md. at __, __ A.3d at __ (emphasis in original). Accordingly, we reject the State’s



                                               5
argument that the trial court’s failure to comply with Rule 4-246 constitutes harmless error.

The appropriate sanction in this case is reversal and remand for a new trial.




                                                  JUDGMENT OF THE COURT OF
                                                  SPECIAL APPEALS REVERSED.
                                                  C A SE R E M A NDED TO TH AT
                                                  COURT WITH DIRECTIONS TO
                                                  REMAND TO THE CIRCUIT COURT
                                                  FOR A NEW TRIAL WITH COSTS.




                                              6
Circuit Court for Prince George’s County,
Case No. CT110375X
Argued: February 6, 2014
                                            IN THE COURT OF APPEALS OF

                                                      MARYLAND

                                                          No. 61

                                                  September Term, 2013


                                                     JAMES SZWED

                                                            v.

                                                STATE OF MARYLAND




                                                     Barbera, C.J.
                                                     Harrell
                                                     Battaglia
                                                     Greene
                                                     Adkins
                                                     McDonald
                                                     Raker, Irma S. (Retired,
                                                     Specially Assigned),

                                                            JJ.




                                            Concurring Opinion by Battaglia, J.




                                                   Filed: April 23, 2014
      I concur for the reasons set forth in Nalls v. State and Melvin v. State, __ Md. __, __

A.2d __ (2014).
Circuit Court for Prince George’s County
Case No. CT110375X
Argued: February 6, 2014




                                                IN THE COURT OF APPEALS
                                                     OF MARYLAND

                                                             No. 61

                                                     September Term, 2013


                                                        JAMES SZWED

                                                               v.

                                                   STATE OF MARYLAND


                                              Barbera, C.J.
                                              Harrell
                                              Battaglia
                                              Greene
                                              Adkins
                                              McDonald
                                              Raker, Irma S. (Retired, Specially
                                                     Assigned),

                                                               JJ.


                                           Dissenting Opinion by McDonald, J., which
                                                   Adkins and Raker, JJ., join.


                                              Filed: April 23, 2014
       In this case, the Court reverses Mr. Szwed’s convictions because the trial judge, at the

conclusion of a lengthy pre-trial colloquy with him concerning his knowledge of his right to

a jury trial and his desire for a bench trial, stated, in what was no doubt a slip of the tongue,

that she found his decision to be “free and voluntary” instead of “knowing and voluntary.”

The Court bases that decision largely on the precedent of Valonis v. State, 431 Md. 551, 66

A.3d 661 (2013).

       I dissent, for the same reasons set forth in my dissent in Valonis, 431 Md. at 570 -76.1

There is no need to repeat all of the points made in that opinion.

       It bears mention, however, what is not at stake in this appeal – and in the related

appeals in Nalls, Melvin, and Morgan.2 There is no dispute that each of these defendants

desired to have a bench trial rather than a jury trial. There is no dispute that each of these

defendants made that decision voluntarily and with knowledge of its consequences. There

is no complaint about the adequacy of the colloquies that the various trial judges conducted

to confirm each defendant’s knowing and voluntary waiver.

       Unless we presume that the trial judges were not aware of the requirement that the

waiver be knowing and voluntary – i.e., that the judges did not know why they were engaging


       1
        In Valonis, in a sharp break from precedent (see, e.g., Boulden v. State, 414 Md. 284,
295-96, 995 A.2d 268 (2010); Abeokuto v. State, 391 Md. 289, 322-24, 893 A.2d 1018
(2006)) and from the rules of construction set forth in Maryland Rule 1-201, the Court
indicated that it would no longer consider the “totality of the circumstances” in determining
the consequences of a failure to comply with a provision of a rule that does not itself state
the consequences of non-compliance.
       2
       Nalls & Melvin v. State, ___ Md. ___, ___ A.3d ___ (2014); Morgan v. State, ___
Md. ___, ___ A.3d ___ (2014).
in the colloquy with the defendants to confirm that fact – it is evident that each of the judges

determined that the waivers were knowing and voluntary because, however each articulated

that determination, each judge proceeded to conduct a bench trial without a jury. The only

issue in these cases concerns the trial judge’s verbal documentation of the judge’s

determination. In this case, the issue is whether the judge’s failure to include the word

“knowing” in her finding at the end of the colloquy negates her considerable effort, on the

record, to ensure that Mr. Szwed knew the consequences of his waiver and his affirmation,

on the record, that he did.3

       In the course of reversing Mr. Szwed’s conviction, as well as those of Mr. Nalls and

Mr. Melvin, the Court modifies the Valonis holding to declare that, henceforth, a defendant

must register a contemporaneous objection in the trial court to preserve any complaint

concerning the trial court’s finding.4 While I applaud the Court’s decision, it does render


       3
         It is notable that the oral colloquy and finding required by Maryland Rule 4-246(b),
while useful to ensure that a defendant’s waiver of a jury trial is in fact knowing and
voluntary, is not itself constitutionally required; it is simply in aid of the constitutional
requirement that, to be effective, a waiver of a constitutional right must be knowing and
voluntary. Compare Federal Rule of Criminal Procedure 23(a) (waiver of trial by jury to be
in writing by defendant with consent of prosecution and approval of trial court); Adams v.
United States ex rel. McCann, 317 U.S. 269 (1942).
       4
         As outlined in my dissent in Valonis, I believed, as did at least some members of the
Majority in that case and as the text of the decision certainly indicates, that the Court was
dispensing with the contemporary objection requirement for alleged violations of Rule 4-
246(b). See Valonis, 431 Md. at 568-69 (explaining at some length why the Majority
believed that it would be “perverse” to penalize a defendant for not objecting); State v.
Szwed, ___ Md. at ___ (Battaglia, J., concurring). Whether the Court’s decision in these
cases is simply an interpretation of Valonis, or a retrenchment from it, it is more consistent
with the usual requirement that issues be preserved.

                                               2
Valonis a brief interlude in which the Court dropped the contemporaneous objection rule and

then reinstated it, with the beneficiaries being certain random defendants, some of whom

were convicted of very serious offenses, who happened to note an appeal during that period.

I agree with Judge Watts, in her concurring and dissenting opinion in the companion cases

of Nalls & Melvin v. State, that the Court need not reverse those convictions. ___ Md. ___,

___ A.3d ___ (2014).

       Presumably, under this new approach, the proliferation of Valonis appeals in this

Court and in the Court of Special Appeals will abate.            If a defendant must make a

contemporaneous objection to an imperfect finding by the trial court to preserve the issue and

does so, the trial court will inevitably correct any slip of the tongue and the desire for perfect

documentation of the waiver will be satisfied.

       Of course, even if the judge documents a waiver in whatever language we find

acceptable, that is not necessarily the end of the story. For the same reason that a slip of the

tongue in documenting a waiver should not result in reversal of a conviction, neither should

a perfect rendition of the magic words render the substance of the colloquy immune from

challenge. See Winters v. State, 434 Md. 527, 76 A.3d 986 (2013) (even though trial judge

found that defendant “knowingly and voluntarily” waived jury trial, erroneous explanation

by judge of burden of proof undermined that finding).

       Finally, it is worth noting that the colloquy in this case covered the points suggested

in the committee note to Rule 4-246, even though they are not required by the rule itself, to



                                                3
ensure that the waiver was Mr. Szwed’s own decision and that he was aware of the

consequences of his decision. Compare Transcript (September 26, 2011) at pp. 3-5 with

Maryland Rule 4-246, committee note. Substitute the word “knowing” for “free” at the end

and we would have to score this colloquy a perfect “10.” We can only hope to do as well

ourselves.5

       Judge Adkins and Judge Raker advise that they join this opinion.




       5
         An appellate court can also sometimes have a slip of the tongue in this area. See
Robinson v. State, 410 Md. 91, 107-8 & n. 5, 976 A.2d 1072 (2009) (stating that the right to
a jury trial – and other constitutional rights – “can only be foregone by the defendant’s
affirmative ‘intelligent and knowing’ waiver,” without mentioning that the waiver must be
voluntary).

                                             4
