Warnken, LLC Attorneys at Law, Attorneys & Lawyers, Pikesville, MD

Boulden v. State

Petitioner was convicted on charges of child abuse and second degree assault.  At the closing of the State’s case, the Court discussed Petitioner’s ability to exercise her Sixth Amendment right to a jury trial.  In response to the Court’s assertion that a waiver of that right had not yet appeared on record, Petitioner affirmed that she wanted to waive that right.  She did so voluntarily and with full understanding of the implications of that decision.

After her conviction on both charges, Petitioner argued that she did not effectively waive her right to a jury trial.  The trial transcript, however, cites instances where Petitioner’s waiver of a jury trial is express and obvious.  At the commencement of trial, the judge specifically asked “are we going forward with a court trial?,” to which defense counsel affirmatively replied.  Defense counsel also had the option of moving for a mistrial once the error was realized by the court, but counsel did not opt for one.

Petitioner also did not object to circumstances surrounding her waiver of a jury trial when she filed a motion to a new trial based on several trial errors.  The issue of waiver was only discussed on appeal in the Court of Special Appeals, as Petitioner argued that her waiver was void because it occurred after the trial commenced, pursuant to Md. Rule 4-246.

The COA held that it was up to the trial court’s discretion to determine whether there was a voluntary and knowing waiver.  Despite the procedural violation of not declaring the waiver prior to commencement of trial, the COA held that Petitioner’s waiver was deliberate and unequivocally obvious, both during and after trial.  Also, the court brought attention to the issue prior to the defense’s case, at which point the error was corrected.  The procedural violation was therefore harmless to Petitioner’s case.  The COA further contended that Petitioner’s refusal to address this issue at the appropriate time during the trial was a strategic move.

In a similar case where consent to waiver was not addressed on record until after the closing of the State’s case, Petitioner’s express waiver to the Court was deemed sufficient to overcome the procedural violation.  Valiton v. State, 119 Md. App. 139 (1998).  The judgment of the Court of Special Appeals was affirmed, with costs to be paid by Petitioner.