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Banks v. State

Court of Special Appeals of Maryland

August 30, 2013

KELVIN BANKS
v.
STATE OF MARYLAND

Eyler, Deborah S., Kehoe, Davis, Arrie W., (Retired, Specially Assigned) JJ.

OPINION

Kehoe, J.

Kelvin Banks was indicted in the Circuit Court for Montgomery County, Maryland, and charged with child sexual abuse, and two counts of third degree sexual offense. After waiving his right to a jury trial, Banks was convicted by the court of child sexual abuse and two counts of fourth degree sexual offense. In accepting Banks's jury trial waiver, the trial court did not expressly state on the record that it found Banks's decision to be knowing and voluntary. Banks asserts that the court's failure to do so requires us to vacate his convictions and remand this case for a new trial. He is correct; the Court of Appeals' recent decision in Valonis and Tyler v. State, 431 Md. 551, 570 (2013), is very clear as to this issue.

What makes this case of wider interest is the second issue raised by Banks. He contends that the trial court erred in not permitting his lawyer to impeach the credibility of a prosecution witness by introducing evidence that she had been convicted of resisting arrest. This appears to be a question of first impression in Maryland. We conclude that the trial court's evidentiary ruling was correct.

BACKGROUND

Banks does not challenge the sufficiency of the evidence. In view of the issues presented, we need not include a detailed summary of all the evidence adduced at trial. Instead, we shall include "only the portions of the trial evidence necessary to provide a context for our discussion . . . ." Washington v. State, 180 Md.App. 458, 461 n.2 (2008); accord Dorsey v. State, 185 Md.App. 82, 88 n. 2 (2009). Banks was convicted of child sexual abuse and of fourth degree sexual offense. At the time the abuse occurred, the victim, along with her mother, B., [1] resided with Banks. The victim testified that the abuse occurred on two separate occasions and further testified that she informed B. after each incident.

B. was called as a witness by the State. She confirmed that the victim reported both incidents to her. B. also testified, without objection, as to details of each assault as described by the victim.

Banks testified on his own behalf and denied any wrongdoing. He stated that he had stopped having contact with former members of his household because of "the accusation [B.] kept making about the kids and stuff. And I got tired of it." Banks claimed he had no "issue" with the victim, but that he did with B. Banks also testified that B. generally believed that he was "out on the streets . . . messing around with other women and stuff." He also testified that when B. "gets angry she does things . . . . "

DISCUSSION

I. Banks's Waiver of His Right to be Tried by a Jury

Banks's first claim on appeal is that the trial court erred in not announcing, on the record in open court, that his waiver of the right to a jury trial was made knowingly and voluntarily, as required by Maryland Rule 4-246(b). The State makes several points in response, including that the issue was not preserved, that the court did not err because it substantially complied with the rule, and that, even so, any error was harmless beyond a reasonable doubt. Banks replies that the trial court did not substantially comply with the rule and that the preservation rules and harmless error do not apply to a violation of Maryland Rule 4-246(b).

The issue presented concerns two separate exchanges between Banks and the court prior to trial. First, after the court suggested that it should send for the prospective jurors, the following transpired (emphasis added):

[DEFENSE COUNSEL]: Actually, Your Honor, in discussions with my client this morning, he has informed me that he would be willing to waive the jury and try the case before Your Honor.
THE COURT: Sir, you understand that if you do that, the State will have to prove to my satisfaction beyond a reasonable doubt that you're guilty; whereas if you elected a jury trial, the State would have to prove your guilt to the satisfaction of all 12 jurors? Do you understand that?
MR. BANKS: Yes, sir.
THE COURT: And, otherwise, unless I'm missing something, [Prosecutor], the two trials would be essentially the same.
You sure you want to leave your fate in my hands alone?
MR. BANKS: I'll take my chances, Your Honor.
THE COURT: Very well.
Then, after argument on some unrelated preliminary matters, the following ensued:
[DEFENSE COUNSEL]: And, Your Honor, I would ask that the Court read the charges to Mr. Banks. And the reason I suggest that is that in the indictment –
THE COURT: Well, I think he has a right to that, doesn't he, [Prosecutor]?
[PROSECUTOR]: Your Honor, I have no problem with that. I was just also going to suggest that Your Honor just make sure that he's aware of his rights for the jury trial, and just ...

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