Valiton v. State

• Decision Date: 01 September 1997
• Docket Number: No. 596,596
• Citation: 704 A.2d 478,119 Md.App. 139
• Parties: John William VALITON v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 139

119 Md.App. 139

704 A.2d 478

John William VALITON v. STATE of Maryland.

No. 596, Sept. Term, 1997.

Court of Special Appeals of Maryland.

Jan. 12, 1998.

Gina M. Serra, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for Appellant.

Mark D. McCurdy, Asst. Atty. Gen, Annapolis (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Lawrence V. Kelley, State's Atty. for Allegany County, Cumberland, on the brief), for Appellee.

Submitted before HARRELL and HOLLANDER, JJ., and JAMES S. GETTY, Judge (retired), Specially Assigned.

HOLLANDER, Judge.

Appellant, John William Valiton, was convicted by the Circuit Court for Allegany County, sitting without a jury, of escape. He was sentenced to two years incarceration. Appellant has noted a timely appeal ¹ and presents a single question for our review, which we have rephrased slightly Did the jury trial waiver, which was conducted after the close of the State's case, comply with the requirements of Maryland Rule 4-246?

Under the circumstances of this case, we conclude that the question is not preserved for our review.

FACTUAL SUMMARY ²

Trial commenced on October 22, 1996. It is undisputed that, prior to the start of trial, no inquiry was made of appellant regarding the waiver of his right to a jury trial. The case proceeded with the presentation of evidence.

According to the testimony, on October 3, 1994, appellant was incarcerated at the Allegany County Detention Center. At trial, Officer J.R. Crabtree, who was the director of the Detention Center's work release program, testified that appellant was involved in work release during his incarceration, and "was allowed to leave the jail in the mornings and go to his employment and return in the evenings after work." Officer Crabtree further explained that under the terms of work release, appellant was to "report directly to work and upon completion of work report directly back to the Detention Center...." On October 3, 1994, appellant was released at 3:45 a.m. to report to his job and was to return to the Detention Center at 7:15 p.m.

According to Officer Crabtree, at approximately 7:00 p.m. on October 3, 1994, appellant called the Detention Center and stated that he was having automobile problems, but that he would return by about 10:00 p.m. Appellant did not return at 10:00 p.m. and, at 1:00 a.m. on October 4, he again telephoned the Detention Center, stating that his vehicle was fixed and he was on his way back. Appellant did not return, however.

Officer Crabtree later learned that appellant was in the hospital in Johnstown, Pennsylvania. At approximately 8:30 a.m., the officer telephoned appellant at the hospital. Appellant stated that he had hurt his back and that he was in the process of being released. Officer Crabtree told appellant that he was to return directly to the Detention Center, and "that he had two hours to get back." Again, appellant failed to return to the Detention Center. On October 29, 1994, appellant was extradited from Tennessee.

Appellant was charged with an escape occurring on October 3, 1994. Based on the testimony of Officer Crabtree, however, the State sought to amend the charges to include October 4, 1994. The prosecutor said: "[T]he escape took place the 3rd and/or the 4th depending on the nature.... I think that the technical violation is on the 3rd and there may have been some issue generated as to the 4th so we've amended the dates to be inclusive." The court then permitted the State, over vigorous defense objection, to amend the dates on the escape charges to include October 3 and 4, 1994, rather than only October 3, 1994. The State then rested, and the court denied appellant's motion for judgment.

After the close of the State's case, and following the discussion of several other matters, the trial court realized that an inquiry into appellant's waiver of a jury trial had not been conducted. The following comment by the court is relevant:

[W]hile we're on this review, you've mentioned and, obviously, we are conducting a court trial. With everyone's knowledge and approval I don't see in the docket entry, though, where there was ever a waiver noted of the right to jury trial. I think at this juncture you can tell me otherwise, but if that hasn't occurred, in terms of any other business, that needs to be completed. So, [DEFENSE COUNSEL], perhaps I'm wrong, but have you filed a written waiver of the jury trial right or has there been a prior proceeding in front of me or Judge Sharer when that was taken[?]

Defense counsel thereafter confirmed that a waiver of appellant's right to a jury trial had not been conducted. Accordingly, the court asked counsel to conduct an inquiry with respect to appellant's desire to waive a jury trial. No objection was lodged to the timing of the jury trial waiver. The following colloquy is pertinent

[DEFENSE COUNSEL]: Mr. Valiton, I've talked to you at some length about the options of a court trial as opposed to a jury trial and at a jury trial I explained to you that you and I would help select the jurors who are picked from the voter rolls here in Allegany County. And I went over with you some of the strategy and options that were available in either a court trial or a jury trial and did I to the best of your knowledge explain the options available to you.

MR. VALITON: Yes.

[DEFENSE COUNSEL]: And it's my understanding, since you relied somewhat on my view of the proceedings, that in light of my statements to you that you have elected to choose, you chose to be tried by the Court, is that correct?

MR. VALITON: That's correct.

[DEFENSE COUNSEL]: And that it basically I told you what the options were and suggested that this was a decision you had to make, is that correct?

MR. VALITON: Correct.

[DEFENSE COUNSEL]: And have you made this decision voluntarily of your own free will to forego a jury trial and be tried by His Honor, Judge Leasure?

MR. VALITON: I have.

THE COURT: All right, gentlemen, thank you very much. Just to follow that up, and perhaps you noted it, but let me do it. Mr. Valiton, jury trial, of course, meaning twelve persons selected at random from Allegany County. The jury has to conclude unanimously guilty beyond a reasonable doubt before anyone can be convicted. That is the further right of jury trial. You understand that through [DEFENSE COUNSEL], is that correct, sir?

MR. VALITON: Yes.

THE COURT: All right. Thank you, you may be seated, gentlemen. Then the Clerk will note that selection at this point in time of the Court trial.

At the end of the State's case, in response to the defense claim of "unfair surprise" with respect to the amendment, and because of the possible impact of the State's amendment on appellant's strategy, the court decided to grant a continuance of the trial. The trial resumed 28 days later, on November 19, 1996, with the presentation of the defense case. During this interim period, appellant did not assert any objection to the delay in the jury waiver proceedings.

In the defense case, Constance Valiton, appellant's mother, testified that she resided in Pennsylvania and that appellant had called her from the hospital to come pick him up. According to Ms. Valiton, she gave appellant a ride to her house as "he was under sedation" and "definitely" unable to drive. Once at the house, appellant went to sleep for several hours.

Appellant testified in his own defense. He stated that the truck he was driving for the construction company that employed him had broken down and he did not get back to the company garage until midnight. He then showered, changed, and began the drive back to the Detention Center in his car. During the drive, he got a flat tire. While he was attempting to change the tire, appellant claimed that he hurt his back and was in "extreme pain." Eventually, a passer-by changed the tire for appellant and helped him into his car. He then drove to the hospital where he was treated for a back injury and given a shot of Demerol.

Appellant contacted his mother and asked her to call the Detention Center for him to report that he was in the hospital. Appellant added that he spoke with Officer Crabtree when Crabtree called the hospital. Valiton testified that he could not recall much of the conversation, as he had been awake for thirty hours and had been given injections of Demerol and Vistaril. He admitted, however, that the officer had given him a time frame in which to return to the Detention Center.

Appellant also asked his mother to pick him up at the hospital, which she did. On the drive home, appellant slept and his mother stopped to have his prescriptions filled for Flexeril and Antiprox. Appellant took those medications and, when they arrived at his mother's residence, appellant fell back to sleep. When he woke at approximately 1:00 p.m., he knew that he was late returning to the Detention Center. He called his attorney and learned that he had already been charged with escape. Appellant then decided to travel to Tennessee to visit his sister before returning to the Detention Center.

We will include additional facts in our discussion.

DISCUSSION

Appellant claims that Maryland Rule 4-246, which governs the jury trial waiver, requires an on-the-record colloquy before the commencement of trial. Thus, he asserts that the belated jury trial waiver did not satisfy the requirements of the rule, and he therefore urges that he is entitled to a new trial. Appellant further claims that the failure to conduct the inquiry before the start of trial cannot be considered harmless error.

The State counters that appellant never objected to the delay in the jury trial waiver and thus argues that the issue is not preserved. Further, the State argues that the belated jury waiver inquiry did not render appellant's waiver unreliable, involuntary, or invalid. Moreover, the State asserts that appellant "seeks refuge in a formalistic interpretation of the Maryland Rule...