Bell v. State
| Decision Date | 01 September 1996 |
| Docket Number | No. 1830,1830 |
| Citation | 701 A.2d 1183,118 Md.App. 64 |
| Parties | Wilbur BELL v. STATE of Maryland. , |
| Court | Court of Special Appeals of Maryland |
Mary Ann Ince, Asst. Atty. Gen. (J. Joseph Curran, Jr. Atty. Gen, Baltimore and Jack B. Johnson, State's Atty. for Prince George's County, Upper Marlboro, on the brief), for Appellee.
Argued before DAVIS, HARRELL and HOLLANDER, JJ.
Wilbur Bell, appellant, was convicted after a non-jury trial in the Circuit Court for Prince George's County of second degree rape, attempted rape, assault with intent to rape, and assault and battery. With respect to the rape conviction, he was sentenced to a term of twenty years of incarceration, ten of which were suspended. For sentencing purposes, the other convictions were merged into the rape conviction. Four questions are presented on appeal:
I. Was the record sufficient to show that appellant's waiver of a jury trial was knowing and voluntary?
II. Did the trial court err in limiting cross-examination of the prosecutrix?
III. Did the trial court err in admitting "other crimes" evidence?
IV. Did the trial court err in restricting cross-examination of a State's witness?
We are of the view that the record is not sufficient to show that appellant's waiver of his right to a jury trial was made knowingly and voluntarily. Therefore, we shall vacate appellant's conviction and remand the matter for further proceedings. For the benefit of the trial court on remand, we shall address appellant's other contentions.
Appellant and Pamela Collins, the victim, had been involved in a romantic but stormy relationship for several years. They have one daughter, Erica Collins, who was six years old at the time of the incident on August 29, 1994 that gave rise to the underlying charges. When the incident occurred, Ms. Collins and appellant were no longer romantically involved.
On August 29, 1994, Erica completed her first day of school. Early that evening, Ms. Collins was in her apartment in Prince George's County with Erica and Virgil Beaty, a cousin of Ms. Collins who was then approximately eleven years old. 1 At approximately 5:30 p.m., while Ms. Collins was cooking dinner for Erica and Virgil, appellant knocked on Ms. Collins's door. Virgil opened the door, but he did not recognize appellant. He heard Erica and Ms. Collins refer to appellant as "Wilbur." At trial, Virgil identified appellant as the individual who was at the door when he opened it.
Ms. Collins told appellant to leave, but he said that he wanted to talk to Erica, and Ms. Collins allowed him to remain. While Erica ate dinner, she spoke to appellant about While appellant was still on top of Ms. Collins, Erica came back inside the apartment and entered Ms. Collins's bedroom. According to Ms. Collins, Erica "started screaming and hollering," and she told Erica to help her, but the child did not do so. Appellant told Erica to leave, which she did. Appellant eventually stopped and put his pants back on. Ms. Collins retrieved a steak knife from the dish drain in the kitchen and confronted appellant, who then left the apartment.
her first day at school. After dinner, Erica and Virgil went outside to play, and Ms. Collins went into the kitchen to light a cigarette. When she returned to the dining area, she claimed appellant "grabbed [her], started choking [her] around [her] neck and told [her] he would hurt [her]." He then pushed and dragged Ms. Collins into her bedroom. According to Ms. Collins, when the two were in the bedroom, appellant pulled her down onto the floor and tried to pull her clothes off. Although she scratched and fought, Ms. Collins reported that appellant successfully pulled off her pants and raped her.
After appellant left, Ms. Collins "washed up" and changed her clothes. She notified the police and was advised to come to the police station, which she did. Thereafter, she returned with the police to her apartment and then proceeded to Prince George's County Hospital, where she was examined by a doctor. By stipulation, Ms. Collins's hospital records were admitted into evidence.
At trial, Ms. Collins conceded that she had no bruises on her neck, although she claimed appellant choked her. She also acknowledged that her clothes were not torn and the apartment did not show signs of a struggle.
Although Ms. Collins promptly filed charges against appellant, in April 1995 she requested that they be put on the stet docket. She explained that, at that time, she believed that appellant "was trying to change his life," that he had gotten married, and that he was developing a good relationship with Erica. She also stated that Erica enjoyed her relationship with appellant and his family, and she did not want to interfere with that relationship. Pursuant to her request, the Erica, who was 8 years old at the time of trial, also testified for the State. She stated that when she returned to the apartment, the door to her mother's room was closed, but she entered without knocking. Erica testified: "I saw my father on top of my mother," and added that she saw her father's "back and his butt." Moreover, her mother was screaming, which "upset" Erica. 3 She also claimed that her father told her to "close the door," but her mother did not say anything. According to Erica, after her parents came out of the room, her father was "cussing" and her mother told appellant "to get out."
charges were stetted. Approximately one week after the charges were stetted, appellant came to the victim's apartment and raped her again. As a result of the second rape, Ms. Collins requested reinstatement of the charges. 2
In addition, the State called two police officers who investigated the case. Police officer Carolyn Baker took a statement from appellant, in which he denied committing the offense. The police officers also acknowledged that no pubic hairs or seminal fluids were found on items recovered by the police from the victim's apartment. Nor was any DNA analysis conducted on the sperm recovered from the victim.
Appellant testified in his own defense. He told the court that he had previously lived with Ms. Collins, but he denied that he was at Ms. Collins's apartment on August 29, 1994. On the date of the incident, he said he was living with his girlfriend, whom he married in November 1994. He also recounted his whereabouts, but conceded that he had not provided that information in his statement to the police. Appellant also admitted that he was incarcerated in January 1994 because of Ms. Collins, and that he wrote threatening letters to Ms. Collins while he was in prison.
Additional facts will be included in our discussion of the issues presented.
At the beginning of the trial, defense counsel indicated to the court that appellant wanted to waive his right to a jury trial. In response to the court's inquiry about whether counsel advised appellant of "the ramifications" of the waiver, counsel stated: (Emphasis added).
Thereafter, defense counsel questioned appellant on the record. Counsel established that appellant was then 34 years old, 4 could read and write, and understood the charges and possible maximum penalties. The following colloquy then ensued:
(Emphasis added).
Appellant complains that the record does not establish that he knowingly and voluntarily waived his right to a jury trial, because it does not reflect that he was advised that a jury's verdict must be unanimous in order to convict a defendant. The State counters that there is no fixed incantation necessary to establish a knowing and voluntary waiver of the right to a jury trial, and that the circumstances demonstrate that appellant's waiver was, indeed, knowing and voluntary.
The right to a jury trial is, of course, a fundamental right. Robinson v. State, 67 Md.App. 445, 454, 508 A.2d 159, cert. denied, 307 Md. 261, 513 A.2d 314 (1986). Maryland Rule 4-246, which was adopted in 1984, governs the procedure for jury trial waivers. State v. Hall, 321...
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