Martinez v. State, No. 68

CourtCourt of Appeals of Maryland
Writing for the CourtArgued before MURPHY, C.J., ELDRIDGE, COLE, RODOWSKY, COUCH and McAULIFFE, JJ. and MARVIN H. SMITH; COUCH
Citation309 Md. 124,522 A.2d 950
PartiesNelson MARTINEZ v. STATE of Maryland. ,
Decision Date01 September 1986
Docket NumberNo. 68

Page 124

309 Md. 124
522 A.2d 950
Nelson MARTINEZ
v.
STATE of Maryland.
No. 68, Sept. Term, 1986.
Court of Appeals of Maryland.
March 27, 1987.

[522 A.2d 951]

Page 126

Laurie I. Mikva, Asst. Public Defender (Alan H. Murrell, Public Defender on the brief), Baltimore, for appellant.

Jullyn K. Schulze, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., on the brief), Baltimore, for appellee.

Argued before MURPHY, C.J., ELDRIDGE, COLE, RODOWSKY, COUCH and McAULIFFE, JJ. and MARVIN H. SMITH, Associate Judge of The Court of Appeals of Maryland (retired), Specially Assigned.

COUCH, Judge.

Nelson Martinez, the appellant, appeals his conviction in the Circuit Court for Montgomery County for third degree sexual offense and false imprisonment. We shall reverse his conviction and order a new trial for the reasons set forth below.

THE FACTS 1

On August 21, 1984, the victim, a nine year old girl, was walking with her cousin, also age nine, in a park near the latter's home when they were approached by a man later identified as the appellant. According to the victim, the

Page 127

appellant engaged them in conversation and put her on his knee. The victim testified further that appellant rubbed her shoulder, pulled down the strap of her shirt, did something that "felt like" a kiss on the back of her neck, and put his hand under her shorts. During this time, the victim tried unsuccessfully to escape.

Appellant was arrested and charged with third degree sexual offense, battery, and false imprisonment. Before the trial, the court ordered that a Spanish interpreter be provided for the appellant. On May 14, 1985, a hearing was held to determine if the appellant wished to waive his right to a jury trial. During the hearing, the following discussion took place (emphasis added):

THE COURT: Do you understand English?

MR. MARTINEZ: My understand a little bit.

THE COURT: I did not hear the last word.

MR. DALE [Counsel for the appellant]: A little bit, Your Honor.

THE COURT: And you do understand Spanish?

MR. MARTINEZ: Yes.

THE COURT: And you are being assisted by an interpreter?

MR. MARTINEZ: Yes.

THE COURT: Have you been using any narcotics or alcoholic drug within the past 48 hours?

MR. MARTINEZ: No.

THE COURT: Are you presently taking any form of medicine?

[522 A.2d 952] MR. MARTINEZ: Yes, I do. Psychology.

THE COURT: What kind of medicine are you taking?

MR. MARTINEZ: Lithium.

THE COURT: For what condition are you taking that medicine?

MR. MARTINEZ: Schizophrenia, paranoia, religion power--

THE COURT: All right. Are you presently suffering from any physical illness?

Page 128

MR. MARTINEZ: No. Absolutely not.

THE COURT: Do you fully understand what we are dealing in here today?

MR. MARTINEZ: Yes, sir.

THE COURT: Do you understand you are entitled to be tried before a jury?

MR. MARTINEZ: Yes sir.

THE COURT: Are you voluntarily waiving that right?

MR. MARTINEZ: I am a little bit nervous.

THE COURT: Do you understand that if you wish to be tried before a jury, that a jury will consist of 12 people?

MR. MARTINEZ: Yes.

THE COURT: Do you know that all jurors called in here to serve are chosen by a computer, and their selection has nothing to do with their sex, race, religion, job, wealth or poverty?

MR. MARTINEZ: Okay. Yes, I understand it.

THE COURT: Do you know that if you elect to be tried before a jury, that you and your lawyer would be given a chance to have every juror questioned, to see whether or not the juror might have some prejudice against you?

MR. MARTINEZ: Okay. Yes.

THE COURT: Do you know that if you elected to be tried before a jury, that every person on that jury would have to find you guilty beyond a reasonable doubt before you could be convicted?

MR. MARTINEZ: Yes, I understand it.

THE COURT: Do you know that if you waive your right to a jury trial and elect to be tried before a Judge, that you could be convicted if the Judge alone finds you guilty beyond a reasonable doubt?

MR. MARTINEZ: Yes.

THE COURT: Do you understand that the decision to waive your right to a jury trial, is your decision to make and it cannot be made by your lawyer, the State's attorney, or me?

Page 129

MR. MARTINEZ: Uh-huh. Yes.

THE COURT: Has any person, either inside or outside of this courthouse, made you any promise, or has anyone threatened you in any way in order to have you give up your right to a jury trial?

MR. MARTINEZ: Yes.

THE COURT: You stated that you wished to waive your right to a jury trial. Are you certain and are you stating on the record of this Court that you have made that decision freely and voluntarily?

MR. MARTINEZ: Just the Judge.

The court then concluded:

Please make a docket entry, I am satisfied after voir dire, that the defendant has freely, intelligently, and voluntarily waived his right to a trial by jury.

Later that day, the circuit court (Mitchell, J.) found the appellant guilty of third degree sexual offense and false imprisonment. 2 He was sentenced to concurrent five year terms of incarceration, with all but eighteen months suspended, and to a period of five years probation to commence upon release.

On appeal to the Court of Special Appeals, the appellant raised four issues, one of which was the following:

Did the appellant voluntarily waive his right to a jury trial?

In an unreported per curiam opinion (No. 1091, September Term, 1985, filed April 7, 1986), the intermediate appellate court ordered a limited remand to determine the [522 A.2d 953] voluntariness of the appellant's jury trial waiver. 3 The court stated:

"We shall remand for the trial court to hold a hearing limited to the issue of what appellant meant by his affirmative response to the one question concerning coercion of the waiver of jury trial. If on remand, the trial

Page 130

court finds that no coercion existed and therefore appellant voluntarily waived his right to a jury trial, the convictions shall stand and appellant may appeal that ruling. If the court finds that coercion did exist, and, as a result, appellant did not voluntarily waive his right to a jury trial, the convictions shall be reversed and the trial judge shall direct that appellant be granted a new trial."

On July 29, 1986, we granted the appellant's petition for writ of certiorari, and the State's cross-petition. The petitions raised the following questions for our consideration:

1. a. Is a limited remand a suitable procedure to determine whether a defendant has voluntarily waived his right to a jury trial?

b. Does the existing record adequately demonstrate that appellant's waiver of a jury trial was voluntary?

2. a. Is a criminal defendant entitled, without showing particularized need, to inspect the grand jury testimony of a State's witness for purposes of cross-examination after the witness has testified for the State at a suppression hearing?

b. Does a defendant waive a claim for production of grand jury testimony by failing to renew the motion prior to the time determined by the court to be the appropriate time for production?

c. Was any error from the failure to produce grand jury testimony during the suppression hearing harmless beyond a reasonable doubt?

d. Does Jones v. State, 297 Md. 7, 464 A.2d 977 (1983) apply to the production of a cassette tape of testimony when the tape was never transcribed in writing?

3. a. Does the right to the effective assistance of counsel require that defendants be afforded an opportunity to present closing argument before the court rules at a suppression hearing?

Page 131

b. Did the appellant preserve any objection to the delayed opportunity for argument on the motion to suppress?

WAIVER OF JURY TRIAL
I

A defendant may waive his right to a jury trial, 4 and elect instead to be tried by the court. 5 Md.Rule 4-246, which authorizes the waiver of a jury trial, states in part:

"(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 [522 A.2d 954] 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 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

Page 132

defendant, or any combination thereof, that the waiver is made knowingly and voluntarily." 6

Although we have had occasion to consider in some detail the effect of its predecessor, 7 see, e.g., Countess v. State, 286 Md. 444, 408 A.2d 1302 (1979); Dortch v. State, 290 Md. 229, 428 A.2d 1220 (1981); State v. Ricketts, 290 Md. 287, 429 A.2d 1025 (1981), this is our first encounter with Md.Rule 4-246. As the text of the Rule makes clear, an

Page 133

accused will be tried by a jury, unless he waives that right. Once he does so, the State may not elect a jury trial. "[T]he prosecution has no say as to the mode of trial; whether the accused is to be tried by court or jury is his prerogative." Countess, 286 Md. at 451, 408 A.2d at 1305.

The election to waive a jury trial may be made at any time before commencement of the trial. If the accused chooses such a course, a waiver inquiry must be conducted on the record in open court. 8 The questioner 9 must examine the defendant, for only he can waive his right to a jury trial. As we said in Countess:

"[T]he responses must come from the defendant himself. The Rule does not envision that counsel simply repeat to the court that he has inquired of the [522 A.2d 955] defendant and given him the information necessary for an effective election."

Id. at 454, 408 A.2d at 1307.

For a waiver to be valid, the court must be satisfied that the defendant's election was made knowledgeably and voluntarily. In the words of the Supreme Court, the trial judge must be satisfied that...

To continue reading

Request your trial
66 practice notes
  • Boulden v. State, No. 49, September Term, 2009 (Md. App. 5/14/2010), No. 49, September Term, 2009.
    • United States
    • Court of Special Appeals of Maryland
    • May 14, 2010
    ...394 Page 8 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 Maryland Rule 4-246 governs the procedure for the wa......
  • Robinson v. State, No. 89
    • United States
    • Court of Appeals of Maryland
    • May 25, 1999
    ...to have access to privileged communications"); State v. Parnes, 134 N.J.Super. 61, 338 A.2d 223, 224 (1975). In Martinez v. State, 309 Md. 124, 140, 522 A.2d 950, 960 (1987) and Jones v. State, 297 Md. 7, 14-15, 464 A.2d 977, 982 (1983), we noted that a defendant may not be entitled to pre-......
  • Holmes v. State, No. 140, Sept. Term, 2006.
    • United States
    • Court of Special Appeals of Maryland
    • September 21, 2007
    ...(2006) (remarking that heightened "intelligent and knowing" standard for waiver requires a colloquy with defendant); Martinez v. State, 309 Md. 124, 133, 522 A.2d 950, 954 (1987) (iterating that an intelligent and knowing waiver colloquy with the defendant must be conducted on the record in......
  • Criminal Investigation No. 437 in Circuit Court for Baltimore City, In re, No. 82
    • United States
    • Court of Appeals of Maryland
    • September 1, 1988
    ...on the 'particularized need' requirement," id. at 12, 464 A.2d 977, and we applied it, id. at 15, 464 A.2d 977. Martinez v. State, 309 Md. 124, 522 A.2d 950 (1987), referred to Jones as authority that "a 'particularized need' exists for disclosure of grand jury testimony...." Id. at 142, 52......
  • Request a trial to view additional results
65 cases
  • Boulden v. State, No. 49, September Term, 2009 (Md. App. 5/14/2010), No. 49, September Term, 2009.
    • United States
    • Court of Special Appeals of Maryland
    • May 14, 2010
    ...394 Page 8 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 Maryland Rule 4-246 governs the procedure for the wa......
  • Robinson v. State, No. 89
    • United States
    • Court of Appeals of Maryland
    • May 25, 1999
    ...to have access to privileged communications"); State v. Parnes, 134 N.J.Super. 61, 338 A.2d 223, 224 (1975). In Martinez v. State, 309 Md. 124, 140, 522 A.2d 950, 960 (1987) and Jones v. State, 297 Md. 7, 14-15, 464 A.2d 977, 982 (1983), we noted that a defendant may not be entitled to pre-......
  • Holmes v. State, No. 140, Sept. Term, 2006.
    • United States
    • Court of Special Appeals of Maryland
    • September 21, 2007
    ...(2006) (remarking that heightened "intelligent and knowing" standard for waiver requires a colloquy with defendant); Martinez v. State, 309 Md. 124, 133, 522 A.2d 950, 954 (1987) (iterating that an intelligent and knowing waiver colloquy with the defendant must be conducted on the record in......
  • Criminal Investigation No. 437 in Circuit Court for Baltimore City, In re, No. 82
    • United States
    • Court of Appeals of Maryland
    • September 1, 1988
    ...on the 'particularized need' requirement," id. at 12, 464 A.2d 977, and we applied it, id. at 15, 464 A.2d 977. Martinez v. State, 309 Md. 124, 522 A.2d 950 (1987), referred to Jones as authority that "a 'particularized need' exists for disclosure of grand jury testimony...." Id. at 142, 52......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT