Kang v. State

899 A.2d 843, 393 Md. 97, 2006 Md. LEXIS 334
CourtCourt of Appeals of Maryland
DecidedJune 2, 2006
Docket59, September Term, 2005
StatusPublished
Cited by30 cases

This text of 899 A.2d 843 (Kang v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kang v. State, 899 A.2d 843, 393 Md. 97, 2006 Md. LEXIS 334 (Md. 2006).

Opinions

HARRELL, J.

We consider here whether it is fatal to a defendant knowingly and voluntarily waiving his right to a jury trial in a criminal proceeding, in the context of this record, for the trial judge not to include questions in the colloquy addressed specifically to the voluntariness of the defendant’s waiver. Also, we ponder whether the waiver was valid where there was no special, heightened inquiry on the record regarding the defendant’s understanding of the purported waiver where he used the services of a language interpreter. We consider also whether the defendant’s objection to the admissibility of testimonial evidence of prior consistent statements effectively was preserved for appellate review where the trial judge never granted explicitly the defendant’s “offer” of a continuing objection interposed' only as to the initial of three witnesses.

I.

In a bench trial in the Circuit Court for Montgomery County, at which he was represented by counsel, Shin H. [101]*101Kang was convicted of assaulting his wife by hanging her by the neck with a rope until she passed out. During trial, neither party disputed the occurrence of the hanging incident; however, Kang asserted that his wife had attempted to commit suicide out of shame for allegedly being involved in an extramarital affair, as Kang accused her of. The trial judge found Kang not guilty of attempted murder in the first or second degree, but convicted him of first-degree assault for the hanging of his wife and second-degree assault for physical contact that occurred a number of days after the hanging incident. Kang was sentenced by the court to fifteen years of incarceration for the first-degree assault conviction and five years of incarceration, to be served consecutively, for the second-degree assault conviction.

The Court of Special Appeals, in a reported opinion, Kang v. State, 163 Md.App. 22, 877 A.2d 173 (2005), affirmed the judgments of conviction. In that appeal, Kang argued that his jury trial waiver in the Circuit Court was defective for two reasons. First, Kang lacked an understanding of the English language and therefore the trial court’s failure to translate the waiver colloquy into Korean caused the resultant waiver to be invalid. Second, the trial judge’s colloquy failed to inquire specifically into the voluntariness of the defendant’s waiver. Kang argued also that testimony regarding prior consistent statements Mrs. Kang made to her pastor, her doctor, and two police officers were improperly admitted into evidence.1

As to the jury waiver, the Court of Special Appeals concluded that it was satisfied that “Mr. Kang’s waiver of a trial by jury was not the product of any language difficulty.” Kang, 163 Md.App. at 32, 877 A.2d at 179. Moreover, “Mr. Kang [102]*102never gave a response to any of the court’s questions that would indicate that he was under duress or coerced into waiving his jury trial right,” and therefore an explicit inquiry specifically into voluntariness of the waiver was not required. Kang, 163 Md.App. at 37, 877 A.2d at 182. Consequently, the Court of Special Appeals affirmed the trial court’s conclusion that Kang knowingly and voluntarily waived his right to a trial by a jury. Kang, 163 Md.App. at 38, 877 A.2d at 182. With regard to the admission of the prior consistent statements, the intermediate appellate court, agreeing with the State, concluded that the issue was not preserved effectively for appellate review because the trial judge never granted Kang a continuing objection and the witnesses later testified to the relevant facts without contemporaneous objection. Kang, 163 Md.App. at 38, 45, 877 A.2d at 182, 186.

Kang filed a Petition for Writ of Certiorari. In addition to answering Kang’s petition, the State filed a Conditional Cross-Petition. We granted both petitions to determine whether the Court of Special Appeals correctly concluded that: (1) the defendant “knowingly and voluntarily” waived his right to a jury trial as required under Maryland Rule 4-246(b) and (2) the defendant’s objection to the admissibility of testimonial evidence of prior consistent statements was not preserved effectively for appellate review. Kang v. State, 388 Md. 673, 882 A.2d 286 (2005).2

[103]*103II.

The Court of Special Appeals detailed the events underlying the present case:

At the trial, Mrs. Kang told of a long history of physical abuse during her fifteen years of marriage to Mr. Kang. She related that in January of 2003, she traveled to Korea to be with her dying father. After her father’s death, Mrs. Kang returned to her home in Montgomery County in early February. Upon her return, Mr. Kang began to accuse her of having an affair.
According to Mrs. Kang, in the early hours of February 8, 2003, after an evening of arguing about the suspected infidelity, Mr. Kang ordered his wife to write out a suicide note as he dictated it. He then escorted her to the basement of their home, where he compelled her to stand on a stool as he tied a nylon rope around her neck. She testified that she was compliant because she thought her husband was trying to humiliate and frighten her, and she knew from experience that resistance could lead to additional physical abuse. She saw her husband kick the stool out from under her feet. As her body dropped and the rope tightened around her neck, she saw her husband walking away before she passed out.
Mrs. Kang testified that when she regained consciousness, she found her husband hovering over her, begging her forgiveness. He carried her upstairs to a bedroom and rubbed Vaseline on her neck. He did not call for medical or other assistance on the morning of the hanging.
Two days later, Mr. Kang took his wife to see Dr. Daniel Kim. Mr. Kang did virtually all of the talking to the doctor. Mrs. Kang wore a scarf around her neck to conceal her wounds that were caused by the rope. The hanging was not mentioned. Instead, Mr. Kang told Dr. Kim that Mrs. Kang had fallen and sustained an injury to her body. Mr. [104]*104Kang also told Dr. Kim that Mrs. Kang had been depressed over the recent death of her father. Dr. Kim prescribed an analgesic and an anti-depressant, and scheduled a follow-up appointment nine days later.
When the Kangs returned to Dr. Kim on February 19, 2003, they drove in separate cars because Mr. Kang intended to go straight to work after the visit. Mr. Kang again assumed the role of principal spokesperson. During this second visit, Mr. Kang told Dr. Kim that Mrs. Kang had sustained serious injuries to her neck while she was visiting her family in Korea. Mrs. Kang did not initially contradict her husband’s statement to Dr. Kim. After the Kangs departed, however, Mrs. Kang waited until she was certain that Mr. Kang had driven away, and she then returned to Dr. Kim’s office. She told Dr. Kim her version of what actually happened to her neck. Dr. Kim advised her to seek outside help.
After she left Dr. Kim’s office on February 19, she went to meet with Samuel Lee, a pastor at her church. She showed him her neck, and told him about the incident that caused her injury. Pastor Lee advised her to call the police if she had additional problems with her husband.

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Bluebook (online)
899 A.2d 843, 393 Md. 97, 2006 Md. LEXIS 334, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kang-v-state-md-2006.