Boulden v. State

• Decision Date: 14 May 2010
• Docket Number: No. 49 Sept.Term,2009.,49 Sept.Term
• Citation: 414 Md. 284,995 A.2d 268
• Parties: Sheila BOULDEN v. STATE of Maryland.
• Court: Maryland Court of Appeals

995 A.2d 268

414 Md. 284

Sheila BOULDEN v.STATE of Maryland.

No. 49 Sept.Term, 2009.

Court of Appeals of Maryland.

May 14, 2010.

COPYRIGHT MATERIAL OMITTED

Piedad Gomez, Asst. Public Defender(Elizabeth Julian, Acting Public Defender, Baltimore, MD), on brief for Petitioner.

Carrie J. Williams, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief for Respondent.

ARGUED BEFORE BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.

HARRELL, Judge.

We consider here whether a defendant in a criminal case may waive effectively his or her right to a trial by jury after the commencement of the trial, in this case, at the close of the State's case-in-chief.Petitioner, Sheila Boulden, was charged in the Circuit Court for Cecil County with Second Degree Child Abuse and Second Degree Assault.A court trial, at which Boulden was represented by counsel, commenced on 5 July 2006.The State rested at the end of the day's proceedings.The next morning, the prosecutor observed to the trial court that Petitioner's waiver of her right to a jury trial had not been placed on the record as yet.This revelation elicited no objection or motion for mistrial from the defense.The trial court conducted a waiver colloquy in which Petitioner stated that she understood the nature of a jury trial, knew she had a constitutional right to a jury trial, and that she wished to waive that right.After the colloquy and acceptance of the jury waiver, the defense presented its case.The court found Petitioner guilty of both counts.She appealed to the Court of Special Appeals challenging, for the first time, the efficacy of her jury trial waiver.Our intermediate appellate court colleagues affirmed in an unreported opinion.We granted Boulden's petition for writ of certiorari, 409 Md. 44, 972 A.2d 859(2009).We shall affirm.

I.PROCEDURAL BACKGROUND

A Cecil County grand jury indicted Boulden on 20 September 2005 on single counts of child abuse and second degree assault.On 4 November 2005, Boulden made her initial appearance in the Circuit Court where she received an "Initial Appearance and Not Guilty Form."The form stated, in pertinent part, as follows:

Jury or court trial—YOUR CASE WILL BE TRIED BY A JURY unless you are charged with a violation of probation, or you request a court trial, or you are advised otherwise.

— A jury is composed of 12 citizens of this county chosen at random from the voters' and licensed drivers' lists.A jury's verdict must be unanimous.In other words all 12 must agree on finding you guilty by proof beyond a reasonable doubt or finding you not guilty.

— A court trial, also called a judge trial, is a trial by a judge of the circuit court.The judge cannot find you guilty unless your guilt is proven beyond a reasonable doubt.You may request a court trial at any time before your jury trial actually begins and the first juror is sworn in.

Boulden signed the form, acknowledging that she received a copy of the document and that she understood the advisement of rights given by the judge.¹

On 5 July 2006, a court trial commenced.Boulden was represented by counsel.Although Petitioner's waiver of her right to trial by jury was not placed on the record at the outset, the following colloquy between the court and counsel occurred:

THE COURT: Okay.Is the State ready to proceed?

STATE: State's ready, Your Honor.

THE COURT: Defense counsel, are we going forward with a court trial?

DEFENSE COUNSEL: Yes, sir.We are.

The State rested its case-in-chief at the end of the day.At the start of the second day of trial, the following colloquy ensued between the participants:

STATE: Before we get to motions, Your Honor, it struck me last night that I don't believe we put the defendant's waiver of jury trial on the record yesterday.

THE COURT: I think you're absolutely right.Now that you mention it, I had assumed that was already done since we were proceeding by court trial.If it has not already been done, we need to do that.

DEFENSE COUNSEL: That's correct, Your Honor.

THE COURT: Okay.Ms. Boulden, would you stand, please?I have to explain something to you.Ms. Boulden, you have a constitutional right to a jury trial in this case because of the nature of the charges against you.A jury is twelve citizens chosen through a process in which you and your lawyer have the right to participate actively.That is, you and your lawyer participate in the selection of twelve citizens.They are chosen, again, with the participation of you and your lawyer from a larger group, sometimes called an array or panel.The larger group from which those twelve are chosen at random are from the voter registration list and the motor vehicle records of Cecil County.Because they are chosen at random, those groups, the array, will over time include all of the different kinds of people who live in Cecil County.

In a jury trial the State has the burden of proving its case beyond a reasonable doubt, just as in a court trial.In a jury trial they have to prove the case to the jury.That is, the twelve citizens have to be convinced beyond a reasonable doubt and they have to be convinced unanimously.That means all twelve of them must vote guilty in order for you to be found guilty.If any one of them refuses to vote guilty, then you cannot be convicted in a jury trial.Do you understand what a jury is?

THE DEFENDANT: Yes.

THE COURT: Do you understand what a jury trial is?

THE DEFENDANT: Yes.

THE COURT: Do you understand that you have a constitutional right to a jury trial?

THE DEFENDANT: Yes.

THE COURT: Do you wish to waive your constitutional right to a jury trial and proceed in a court trial?

THE DEFENDANT: Yes.

THE COURT: Okay.Do you have any questions about the rights that I've explained to you, the right to a jury trial?

THE DEFENDANT: No.

THE COURT: Has anybody threatened you in any way or made you afraid to get you to waive your right to a jury trial?

THE DEFENDANT: No.

THE COURT: Has anybody offered you anything or promised you anything to get you to waive your right to a jury trial?

THE DEFENDANT: No.

THE COURT: You're doing this voluntarily, freely, of your own free will?

THE DEFENDANT: Yes.

THE COURT: All right.Then I'm satisfied that the defendant has waived her right to a jury trial.

Defense counsel then moved for a judgment of acquittal, arguing that the State had not proven all elements of the child abuse charge.The delayed jury trial waiver inquiry was not mentioned.The court denied the motion and found Boulden guilty of both counts.

On 14 July 2006, defense counsel filed a motion for a new trial alleging multiple errors.She did not object, however, to the timing of the jury trial waiver colloquy or validity of the waiver and its acceptance.Before the court ruled on the new trial motion, on 6 September 2006, Boulden filed an "amendment" to her motion, alleging that an essential witness to her case, the victim's mother, did not testify.Again, she did not object to the timing or validity of the jury trial waiver.After holding a hearing on 12 September 2006, the court denied the motion and sentenced Petitioner to six years imprisonment, with all but three years suspended.²

Boulden filed an appeal to the Court of Special Appeals, arguing, for the first time, that her waiver of her right to trial by jury was defective because the inquiry, waiver, and acceptance were conducted after the commencement of trial.The court affirmed in an unreported opinion.Relying on its opinion in Valiton v. State,119 Md.App. 139, 704 A.2d 478(1998), the intermediate appellate court concluded that Boulden waived her right to complain about the delayed waiver inquiry because she failed to challenge before the trial court at any time the timing or validity of the jury trial waiver, despite ample opportunity to do so.We issued a writ of certiorari upon Boulden's petition.409 Md. 44, 972 A.2d 859(2009).Her petition presented the following questions:

1.May a criminal defendant effectively waive his or her right to a trial by jury after the commencement of trial?

2.If not, did the Court of Special Appeals err in concluding that Petitioner waived her right to complain about the validity of her jury trial waiver because she did not voice a complaint to the trial court?

For the reasons that follow, we affirm the judgment of the Court of Special Appeals.

II.ANALYSIS

A.The Right to a Jury Trial

The right to a jury trial in Maryland in qualifying criminal cases is guaranteed by the Sixth Amendment to the United States Constitution³ and by Articles 5("The inhabitants of Maryland are entitled to . . . trial by jury. . . ."), 21 ("In all criminal prosecutions, every man hath a right to . . . a speedy trial by an impartial jury, without whose unanimous consent he ought not to be found guilty."), and 24 (due process) of the Maryland Declaration of Rights.The Sixth Amendment's guarantee of a jury trial is applicable to the States through the Fourteenth Amendment.Duncan v. Louisiana,391 U.S. 145, 149-50, 88 S.Ct. 1444, 20 L.Ed.2d 491(1968).A defendant may elect to waive this right and instead be tried by the court.Powell v. State,394 Md. 632, 638, 907 A.2d 242, 246(2006);Abeokuto v. State,391 Md. 289, 316, 893 A.2d 1018, 1033(2006);Martinez v. State,309 Md. 124, 132-33, 522 A.2d 950, 954(1987);Countess v. State,286 Md. 444, 449, 408 A.2d 1302, 1304(1979).

Maryland Rule 4-246 governs the procedure for the waiver of a jury trial in a criminal case.In 2006, at the time of Boulden's trial, Maryland Rule 4-246 provided:⁴

(a) Generally.In the circuit court, a defendant having a right to trial by jury shall be tried by a jury unless the right is waived pursuant to section (b) of this Rule.If the waiver is accepted by the court, the State may not elect a trial by jury.

(b) Procedure for acceptance of waiver.A defendant may waive the right to a trial by jury at any time before the

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