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Maryland Criminal Defense Attorneys Association Newsletter

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Maryland Criminal Defense Attorneys Association Newsletter Powered By Docstoc
					                                   Maryland Criminal
                                   Defense Attorneys’
                                 Association Newsletter
www.mcdaa.org                                                                                                   Fall 2011
                                                   So how does this relate to the
                                                                                                Lego v. Twomey:
     President‘s                              MCDAA? Simple, our ancient Roman
                                              brethren (men in skirts and dresses
                                              mind you) put us on the path to one of
                                                                                                  THE IMPROBABLE
                                                                                              RELATIONSHIP BETWEEN AN
      Message                                 the greatest concepts of a just and
                                              free society – the presumption of inno-         OBSCURE SUPREME COURT
                                              cence. The following excerpt from               DECISION AND WRONGFUL
                        When In               Coffin v. United States, describing the
                        Rome . . .            trial of a Roman governor under the                   CONVICTIONS
                                              Emperor Julian, illustrates the point:1
                        I find it fascinat-
                                                                                            By Michael D. Pepson and John
                        ing how much of               Numerius, the governor of             N. Sharifi.
                        modern legal             Narbonensis, was on trial before                    We‘ve all been there before.
                        thought is rooted        the Emperor, and contrary to               You‘re in court, waiting to begin a sup-
                        in the Roman Em-         most criminal cases, the trial             pression hearing. Your client has de-
                        pire. We owe so          was public. Numerius contented             tailed for you how he was coerced into
much to this ancient civilization for its        himself with denying his guilt,            confessing, and you believe him—not
innovation and achievement in the                and there was not sufficient               because you‘re naïve, but rather, be-
fields of law, politics and science. This        proof against him. His adver-              cause you know it happens. Regard-
is not to say that Rome was without              sary, Delphidius, a passionate             less, you have a good set of facts, and
flaws or injustices, but only that it pro-       man, seeing that the failure of            you have confidence in your case. And
duced a solid foundation from which to           the accusation was inevitable,             now you‘re in the courtroom, ready to
grow and progress.                               could not restrain himself, and            be heard. The stakes are high. If you
                                                 exclaimed: Oh, illustrious Cae-            lose here, a conviction will be immi-
IN THIS ISSUE                                    sar, if it is sufficient to deny,
                                                 what hereafter will become of
                                                                                            nent. But if you win, the case may
                                                                                            disappear. You‘ve drawn Judge X,
PRESIDENT’S MESSAGE                      1       the guilty? Emporer Julian re-             who could go either way. The officers
                                                 plied, ―If it suffices to accuse,          are there, and just as you know the
LEGO V. TWOMEY                           1       what will become of the inno-              truth, so do they. It will come down,
                                                 cent?‖                                     of course, to their testimony. You are
ANNOUNCEMENTS                            2
                                                                                            concerned that they may testify in
20011-2012 OFFICERS                      2      As criminal defense lawyers, we             such a way as to minimize, to the ex-
                                           are the guardians of this noble con-             tent possible, your chance of winning
DUI UPDATE                               3 cept. As members of the MCDAA we
                                                                                            this motion. And as the hearing be-
SUMMARIES OF MARYLAND
                                           can carry the obligations of this guardi-        gins, and you listen to the evidence,
APPELLATE DECISIONS                      4 anship to the next level by our com-             your concerns come to fruition: the
                                           bined efforts to promote the just and            cops are testifying—and they‘re lying.
OVER-INCARCERATION                       5 fair administration of the law.
                                                                                            Your client can barely stand it. Try as
MEET YOUR PRESIDENT                       7                                                 you might with a compelling cross-
                                                  During the course of this year the        examination, the Court determines
OPENING STATEMENT                        8    MCDAA will be implementing a project          that the State has met its burden by
                                              to reach out to students in our local
HEENEY AWARD                            22                                                                       (Continued on page 21)
                                                                    (Continued on page 6)
                    Louis M. Leibowitz announces the opening of

                      Law Offices of Louis M. Leibowitz, LLC
                             401 East Jefferson Street
                                     Suite 201
                               Rockville, MD 20850

                                      P: (301) 279-0224
                                      F: (301) 279-0225
                                      C: (301) 503-5305
                                  Louis@Leibowitz-Law.com
                                   www.Leibowitz-Law.com

                                            2011-2012 Officers
   Maryland Criminal Defense
Attorneys’ Association Newsletter           President: Laura Robinson
                                               Phone: 410-760-5000
   Published quarterly by the                  jhresq2322@aol.com
Maryland Criminal Defense Attor-            President-Elect: Debra Saltz
neys’ Association and emailed to
 MCDAA members at no cost as                   Phone: 301-220-2440
    part of the annual dues.                   debra@debrasaltz.com
      Editor: Debra A. Saltz                First Vice President: Gary Bair
    6301 Ivy Lane, Suite 419,                  Phone: 301-220-1570
     Greenbelt, MD 20770,                      gebair@bennettbair.com
       Tel (301) 220-2440
                                            Second Vice President: Mary Pizzo
       Fax (301) 220-3547
  E-mail: debra@debrasaltz.com                 Phone: 410-480-7777
                                               mpizzo@opd.state.md.us
  Statements or opinions expressed          Secretary: Peter Wimbrow
herein are those of the authors and do
  not necessarily reflect those of the
                                               Phone: 410-524-3440
MCDAA, its officers, Directors, or of the      wimbrowlaw@beachin.net
                Editor.                     Treasurer: Andrew Alpert
                                               Phone: 301-262-7005
                                               alpert@dcmdlaw.com
                                                                                                                      PAGE 3

                                               DUI UPDATE
By Leonard R. Stamm                         ment approved by the toxicologist,         was substantial evidence to support
                                            because approval by the toxicologist       the finding of reasonable grounds,
      In the past year there have           was not listed as an issue that could      namely that the ALJ could have in-
been a number of developments in the        be considered at the hearing under §       ferred on this record that Shea failed
area of DUI law in Maryland, and most       16-205.1(f)(7) of the Transportation       the standardized field sobriety tests.
of them favor the State.                    Article. In Headen v. Motor Vehicle
                                            Admin., 418 Md. 559, 16 A.3d 196                Effective October 4, 2010, the
        The Court of Appeals has issued                                              Toxicologist's Regulations were re-
                                            (2011), the Court of Appeals held that
a number of decisions favoring the                                                   placed with new regulations codified at
                                            under § 12-111(b)(2) of the Transpor-
MVA. In Hill v. Motor Vehicle Admin.,                                                COMAR 10.35.02. Included among the
                                            tation Article the MVA could designate
the Court of Appeals rejected an argu-                                               changes are these: the regulations
                                            drunk driving offenses as confidential
ment that the DR-15 was misleading to                                                tightened the accepted level of uncer-
                                            after five years and deny expungement
drivers holding a commercial drivers                                                 tainty to .005 of the reported result or
                                            as to those convictions. The Court
license (CDL) because the form was                                                   10% of the average measurements,
                                            also held that a driver who is refused a
claimed to not advise CDL holders that                                               whichever is greater - COMAR
                                            drivers license due to an out-of-state
if they refused a breath test the inter-                                             10.35.02.03C; and, the regulations
                                            suspension or revocation is not entitled
lock option would not available in lieu                                              provided that the breath test operator
                                            to an administrative hearing to contest
of the disqualification of the CDL. In                                               need not solely conduct the 20 minute
                                            the refusal.
Najafi v. Motor Vehicle Admin., 418                                                  observation period if a different officer
Md. 164, 12 A.3d 1255 (2011), al-                  In Motor Vehicle Admin. v. Shea, conducted part of the observation -
though the Court of Appeals held that       415 Md. 1, 6, 997 A.2d 768, 771 COMAR 10.35.02.08G.
Najafi‘s right to counsel was not vio-      (2010), the Court of Appeals reviewed
lated, it said in dicta that a claim of a   the question of what constitutes rea-           The legislature enacted two sig-
violation of the right to call a lawyer     sonable grounds to support the deten-    nificant bills effective on October 1,
before deciding whether to submit to a      tion at an MVA hearing. The facts in- 2011. In Chapter 334, the legislature
breath or blood alcohol test cannot be      cluded the officer‘s statement concern- created the new crime of criminally
litigated at an MVA hearing. In Motor       ing a moderate odor of an alcohol bev- negligent manslaughter. This 3 year
Vehicle Admin. v. Loane, 420 Md. 211,       erage on the driver‘s breath and that misdemeanor requires that the defen-
22 A.3d 833 (2011), the Court of Ap-        the driver submitted to standardized dant‘s criminally negligent driving
peals construed the plain language of       field sobriety tests. An administrative caused the death of another. Crimi-
Transportation Article, § 16-               law judge took action against Shea's nally negligent driving requires more
205.1(a)(2), that the implied consent       license. On appeal, in response to than simple negligence but less than
law does not apply on purely private        Shea's argument that the DR-15 Form gross negligence. The driver‘s failure
property. The Court held that despite       provided insufficient reasonable to perceive the risk of death must be a
this plain language that the implied        grounds, the circuit court ruled for ―gross deviation from the standard of
consent law does apply on purely pri-       Shea but held that moderate odor of care that would be exercised by a rea-
vate property and that the issue can-       an alcohol beverage combined with a sonable person.‖
not be raised in defense at an MVA          seatbelt violation was an insufficient          In Chapter 556, the legislature
implied consent hearing. In Thomas v.       basis to conduct field sobriety tests. expanded the use of the ignition inter-
Motor Vehicle Admin., 418 Md. 280, 13       The circuit court ruled for Shea but lock and made it mandatory in the
A.3d 1256 (2011), the Court of Ap-          held that moderate odor of an alcohol case of a driver who: is required to
peals held that the ―detention‖ re-         beverage combined with a seatbelt participate by a court order; is con-
ferred to in § 16-205.1 is not required     violation was an insufficient basis to victed of driving while under the influ-
to be an arrest. In Motor Vehicle           conduct field sobriety tests. The Court ence of alcohol or under the influence
Admin. v. Aiken, 418 Md. 11, 12 A.3d        of Appeals reversed, relying on Motor of alcohol per se and had a blood alco-
656 (2011), the court held that the         Vehicle Admin. v. Richards, since the hol concentration (BAC) at the time of
MVA need not produce the test strip or      Fourth Amendment exclusionary rule testing of 0.15 or greater; is convicted
form Notification of Test Result, if the    does not apply in MVA hearings. The of driving while under the influence of
breath operator noted the test results      Court also avoided deciding whether a alcohol, under the influence of alcohol
under oath on the DR-15A Form. The          moderate odor of an alcohol beverage per se, or while impaired by alcohol
court held that the MVA did not need        alone could constitute reasonable and within the preceding five years
to show in its prima facie case that the    grounds to support a detention to take
test had been administered with equip-      a test, since the Court found that there                        (Continued on page 23)
PAGE 4

        SUMMARIES                   OF      MARYLAND APPELLATE DECISIONS
    By Michael R. Braudes,                       3. A hot issue currently is the use    merits; and 4) the order would effec-
           Esquire                          by police of a ―two-step‖ or ―question      tively be unreviewable if appeal had to
                                            first‖ interrogation technique in which     await a final judgment. Held: Denial
     Office of the Public                   a suspect in custody is questioned          of a motion to dismiss a prosecution
                                            without Miranda warnings, gives a           alleged to be barred by an earlier plea
     Defender, Appellate
                                            statement, is then Mirandized, and          agreement is immediately appealable
           Division                         the police elicit a similar statement.      under the collateral order doctrine.
                                            The admissibility of the second state-
     Issues of Current Interest             ment turns upon a series of complex         Moore v. State, 198 Md. App. 655
                                            substantive and procedural inquiries        (2011)
     1. A major issue has been the link     (intent of the officer, allocation of the            1.       Ordinarily, an appeal-
between the various weapons offenses        burden of proof, etc.) which are dis-       able final judgment in a criminal case
listed in Title 5 of the Public Safety      cussed in detail in Wilkerson v.            requires conviction and imposition of
Article and the various sentencing pro-     State, under “CONFESSIONS.”                 sentence. Where, however, the record
visions in that Article. In some in-             4. The strong Maryland tradition       reflects that the judge intentionally did
stances, doubt has arisen as to             of excluding evidence of a defendant‘s      not impose sentence upon a particular
whether certain crimes carry any po-        silence under a host of different cir-      count, that conviction is appealable.
tential sentence at all, and in others,     cumstances continues. See Lupfer v.                  2.       In a jury trial, it is nec-
whether the sentence is a mandatory         State, under “EVIDENCE.”                    essary to move for judgment of acquit-
five years without parole, or instead a                                                 tal both at the close of the State‘s case
parolable term not to exceed five           APPELLATE PROCEDURE                         and at the close of all of the evidence,
years. The Court of Appeals has pro-                                                    stating grounds with particularity, in
vided extensive and definitive guidance     Arthur v. State, #90 COA 2010,              order to preserve for appeal the insuf-
in Jones v. State and Evans v.              7/13/11                                     ficiency of the evidence to sustain a
State, both summarized under                In order to preserve the insufficiency      conviction on that ground. If the de-
“DEADLY WEAPON OFFENSES.”                   of the evidence to sustain a conviction     fense moves for acquittal at the close
Although the General Assembly is likely     by a jury, Rule 4-324(a) requires the       of the State‘s case and puts on evi-
to react to those aspects of these          defense at both MJOA stages to argue        dence, thus withdrawing the motion
cases favorable to our clients, there is    with particularity why the evidence         pursuant to Rule 4-324, the motion
nothing it can do about the past. Trial     was insufficient. While counsel on ap-      must be renewed at the close of all the
lawyers are urged to consider whether       peal may provide ―a more detailed ver-      evidence, or the sufficiency challenge
past clients‘ sentences run afoul of        sion of the argument advanced at            is waived. If such renewal is limited to
Jones or Evans, and if so to file mo-       trial,‖ slip op. at 10, a different argu-   or states grounds for only specified
tions to correct illegal sentences.         ment than that advanced below is not        counts, the motion is waived as to
     2.    The Confrontation Clause         preserved. Held: An argument at             other counts. Finally, a belated motion
analysis of Crawford v. Washington          MJOA that a police officer‘s order was      ―works‖ if the State does not object
made a major comeback in a very             unlawful is too conclusory to preserve      and the court rules on it.
practical setting in Bullcoming v.          the argument that it was unlawful be-
New Mexico, summarized under                cause it infringed upon protected ARREST
“EVIDENCE.” It is now clear that            speech.
reports of forensic testing such as tests                                             Arthur v. State, #90 COA 2010,
for identification of a controlled sub-     Buzbee v. State, #170 COSA 2010, 7/13/11
stance or blood alcohol level cannot        7/7/11                                    According to State‘s witnesses, an offi-
come in without the testimony of the        As a general rule, only a final judg- cer driving a patrol car believed that
analyst if the defense wants to cross-      ment is appealable. Among the excep- Arthur threw a newspaper at the vehi-
examine that person. It will be inter-      tions is an order satisfying the com- cle. He got out of the car and ap-
esting to see if this rule is extended to   mon-law ―collateral order doctrine.‖ proached Arthur, who yelled ―get the
autopsy reports; at present, Maryland       To qualify, such an interlocutory order fuck away from me,‖ ―leave me the
law does not require that the doctor        must meet all of four criteria: 1) it fuck alone,‖ and the like. The officer
who actually performed the autopsy          conclusively determines the issue; 2) it told him to lower his voice and settle
testify, and that is arguably contrary to   resolves an important question; 3) the down, but he continued to yell. The
Bullcoming.                                 issue is completely separate from the                          (Continued on page 10)
                                                                                                                     PAGE 5
            ASSESS            THE      COSTS OF OVER-INCARCERATION,
                                      OVER-CRIMINALIZATON
By Paul B. DeWolfe                            It is also true that courts all across   wrong with this; it is simply democracy
Public Defender for                      the country are clogged with victimless       in action. By the end of the process in
                                         misdemeanor crimes that represent no          mid-April, dozens of bills survive and
Maryland                                 threat to public safety. As reported          land on the desk of the governor for
                                         recently in the Baltimore Sun, 23,000         his signature. The stated purpose of
     Who are we afraid of? Who are people were arrested for marijuana                  any crime bill is to make us a safer
we just mad at? These questions --       possession in Maryland last year. Thir-       society. The cumulative effect of this
posed at a recent symposium on jus-      teen thousand people were arrested            process can be visualized by observing
tice reform by a representative of a     for trespassing. While many states are        the expansion of the criminal code
conservative think tank—call for a       implementing diversion programs for           over the years. Likewise look at the
broader discussion of the costs of       driving on a suspended license, for           expansion of the budgets for courts,
over-incarceration of our citizens and   example, Maryland‘s legislature re-           prosecutors and the construction and
over-criminalization of minor trans-     cently made it a jailable offense for         operating costs of prisons and jails.
gressions. In my view, in these times    driving without a license. The law was        These expansions aren‘t easily ex-
of shrinking resources, all stakeholders passed to address a different problem         plained away by the demographics of
in the criminal justice system need to   than the traffic offense. Some legisla-       population growth or crime statistics.
assess the increasing costs of incarcer- tors were concerned with the growing          Remember, our government (Bureau
ating so many people and prosecuting problem of undocumented immigrants,               of Justice Statistics) and our politicians
so many minor crimes. They should        unable to obtain identification and           tell us that crime is down.
measure those spiraling costs against    driver‘s licenses, driving on our roads
                                                                                           In April 2009, NACDL issued a
the minimal, at best, benefit to public and highways. But what is the cost to          report entitled Minor Crimes, Mas-
safety, and focus on initiatives to re-  implement this new law? And does it
                                         really solve the problem it was sup-          sive Waste, the Terrible Toll of
serve incarceration for the truly dan-                                                 America’s Broken Misdemeanor
gerous, and decriminalize minor trans- pose to address? There is, unfortu-             Courts. From this report, we learn
gressions in the interest of saving dol- nately, no Department of Cost-Benefit         that courts all across the country are
lars and salvaging our human re-         Analysis in the criminal justice system.
                                         Our political system doesn‘t work that        clogged with victimless misdemeanor
sources.                                                                               crimes that represent no threat to pub-
                                         way.
     The US represents 5% of the                                                       lic safety. It proposes a 5 step ap-
world‘s people and accounts for nearly        Consider the effect on the system        proach to reform America‘s misde-
a quarter of the imprisoned population. of this one new law. Instead of issuing        meanor courts. Exposing problems and
One in every hundred Americans today a payable ticket, the offense is now a            highlighting best practices, the report
is behind bars. In Maryland, the state‘s “must appear” “jailable offense.              recommends:
prison population has tripled since      This necessarily impacts the work by
                                                                                           1. Divert misdemeanors that
1970 to 22,000, at a cost of $783 mil- court commissioners, clerks, pretrial                  do not impact public safety
lion a year. The huge sums do not,       workers, public defenders, prosecu-
                                                                                              to penalties that are less
however, translate into increased pub- tors, bailiffs, judges, correctional offi-             costly to taxpayers. Driving
lic safety. In fact, in countries where  cers, probation officers, the list goes
                                                                                              without a License, Trespass-
prison populations have decreased, the on and on…you get the message. I                       ing, Possession of Alcohol,
crime rate has also decreased. The       can‘t begin to tally the cost to the pub-
                                         lic as each individual charged with this             Possession of Marijuana and
data points away from increased                                                               other crimes that have little or
spending on prisons making us any        offense works his/her way through the
                                                                                              no impact on public safety
safer. This is perhaps why we are see- criminal justice system. When the state                have a huge impact on state
ing unlikely alliances forming between legislature convenes every January,                    and local budgets.
conservative groups concerned with       each delegate and senator is armed
the economic costs and traditionally     with pet projects in order to be re-              2. Reduce pressure on defen-
liberal groups concerned with the dev- sponsive to his/her constituents. When                 dants to plead guilty, par-
astating social costs associated with    it comes to public safety, these pro-                ticularly at first appear-
America‘s over reliance on incarcera-    jects are often driven by public opinion             ance. In New York City, for
tion as a cure to social problems.       polls, the high profile crime-of-the-day             example, almost 70% of mis-
                                         and the desire to enhance the legisla-
                                         tor‘s ―re-electability‖. There is nothing                            (Continued on page 6)
PAGE 6

                          PRESIDENT‘S MESSAGE CONTINUED
(Continued from page 1)                        DeWolfe, Maureen Essex, Rick               learned from our membership. I have
                                               Finci, Meagan Green, Bruce Mar-            made a lot of professional contacts
schools and enlighten them about the           cus, Peter O’Neill, Mary Pizzo and         along the way and many new friends
rights of the accused and the proper           Jason Shapiro. I would like to ex-         as well. I look forward to a year of
administration of justice. A committee         press my sincere appreciation to all of    laughing and learning with both new
has been formed and is currently               the members of the committee for           members and old. Keep up the good
working hard on behalf of our organi-          their efforts on behalf of the MCDAA. I    fight and the good work. Hail Caesar!
zation to develop a uniform curriculum         am truly in awe of both their individual
                                                                                          1
for presentation. Outreach is also be-         and collective experience and wisdom.       This excerpt is paraphrased from Coffin v.
                                                                                          United States, 156 U.S. 432, 455 (1895). The
ing made to local schools for place-
                                                                                          idea for the above came from an article in the
ment and the scheduling of presenta-    It is an honor to be the president                Champion (National Association of Criminal De-
tions. This committee is chaired by of this organization. I am a much bet-                fense Lawyers), March 2011, page 18.
Gary Bair and the members are Paul ter lawyer because of what I have



                          OVER-INCARCERATION CONTINUED
(Continued from page 5)                                meanor adjudications.                       Maryland and going to jail,
                                                       Prosecutors talk directly with              without counsel.
         demeanor cases were dis-                      unrepresented defendants and
         posed of at first appearance,                 convince them to waive consti-         5. Provide public defenders
         mostly through a guilty plea.                 tutional rights. (This is more            with the resources neces-
         Pressured by the threat of pre-               often than not the case with              sary to effectively repre-
         trial incarceration or a less                 immigrant defendants who                  sent their clients. Across
         generous plea offer later on,                 appear without a lawyer and               the country defenders report
         defendants often plead guilty                 don‘t speak English). Judges              caseloads six to seven times
         without any discovery or un-                  encourage defendants to pro-              greater than the national stan-
         derstanding whether there is                  ceed without counsel and                  dards. Maryland, despite being
         sufficient evidence to convict.               plead guilty quickly in order to          one of a minority of states
         The collateral consequences of                move dockets.                             with statewide defender of-
         a conviction with respect to                                                            fices, is not immune to this
         immigration, housing, and job             4. Provide counsel for any                    problem. Caseloads in the ru-
         eligibility are rarely if ever dis-          indigent defendant facing                  ral and suburban districts are
         cussed. (A more recent report                the possibility of incarcera-              upwards of three times the
         by NACDL issued July 2011                    tion. This issue is squarely               ABA standards for effective
         called Three-Minute Justice,                 before courts in Maryland as a             representation in misdemeanor
         Haste and Waste in Florida‘s                 result of the civil litigation in          cases.
         Misdemeanor Courts chronicles                the Richmond case, dealing
                                                      with ―right to counsel‖ at the           So, we can join our conservative
         Florida‘s broken misdemeanor                                                     brethren in agreeing that the enor-
         court system in which two out                commissioner‘s hearing and
                                                      the recent Court of Appeals         mously expensive sentence of incar-
         of three defendants plead                                                        ceration should be reserved for the
         guilty in the first appearance,              decisions in OPD v. State and
                                                      Workman v. State, which deals       truly dangerous (those who we are
         eight out of ten occur in less                                                   afraid of), while finding less expen-
         than three minutes and two                   with the eligibility require-
                                                      ments for public defender rep-      sive alternatives like diversion pro-
         out of three do not have a                                                       grams pre-trial release and treatment
         lawyer at their side during this             resentation. While the impact
                                                      of these cases is beyond the        for the others (those we are merely
         crucial first appearance).                                                       mad at).
                                                      scope of this article, needless
    3. Enforce ethical obligations                    to say, too many people are
       of all participants in misde-                  appearing before courts in
                                                                                                                 PAGE 7

           MEET YOUR PRESIDENT: LAURA ROBINSON
I was born in Baltimore, Maryland and     cases against each other. Court trials,     network and learn from other member
have lived here my entire life.           jury trials, motions hearings – you         s of the defense bar. I can honestly
                                          name it we argued about it. He won          say that I would not be where I am
My childhood was enchanted and I          more cases then I did, but I won the        today in my legal practice without the
miss it very much. What is significant    last case (it was a jury that was back      benefit of this organization. Byron
is how blessed I was to have amazing      in only 20 minutes). Not that we have       Warnken‘s advice helped me win Cer-
parents and a family who provided me      kept track or anything.                     tiorari to the Court of Appeals on an
with a great sense of self-esteem and                                                 important case. Rick Finci is responsi-
security. Growing up, my dad was a         I have been married for 22 years and       ble for my being invited to join the
mechanic on Air Force One and I often     John has been married for 10 – figure       MSBA criminal law section council. Paul
got to go to the hanger. He even ar-      it out, we have.                            DeWolfe was instrumental in my ap-
ranged for me to meet the Blue Angels                                                 pointment to the OPD Board of Trus-
once and climb on their planes – awe-     It is a joy to practice together, it is a
                                          joy to spend every day together and it      tees. These are just a few examples.
some day.                                                                             Countless other attorneys have as-
                                          is a joy to be married to John. We
After being rejected from Ms. Sheila‘s    click in a way that makes our practice      sisted me with out of county cases and
school of massage, I went to Anne         (and our life) together seamless. We        have referred me business. An attor-
Arundel Community College and then        also share the same dark sense of hu-       ney from this organization recom-
University of Maryland undergraduate      mor that makes time fly (and everyone       mended me to become local counsel
and law school. I may have had the        else cringe) when we are together.          for a large DC firm that represented a
worst SAT scores of any law student to                                                budding NFL player. I got the gig and
pass the bar.                            We do not have any children. We              it wouldn‘t have happened if I had not
                                         talked about it for a while when I was       been a member of this amazing or-
I don‘t have a very good answer for      younger, and John was less old. In           ganization. Another member of this
why I went to law school, but I can tell the end, we could not imagine giving         organization recommended me to be
you how I got there. In high school I up our time as a couple to raise a fam-         local counsel on a federal case with an
went to vo-tech because I needed         ily. We both love kids, but I don‘t          attorney from Arizona. The opportuni-
money for college. My parents were       think we were meant to be parents. I         ties would never have come my way,
civil servants (no money there) and my am happy with nieces and God-                  but for the connections I have built by
grades were not even good enough to children.                                         participating in the MCDAA. I have
waste the postage necessary to apply                                                  been professionally and personally en-
for a scholarship. My guidance coun-     Hobbies: beekeeping (I like the hats);       riched by my relationships with the
selor told me to get my LPN at the vo- Lithuanian folk dancing and playing the        members of this group and their cama-
cational school because I could make     zither.                                      raderie and support.
enough money to pay for college. Sin- My favorite vacation spot: Botswana,
gle best advice I ever got. As I         but a close second is Moorea, French
worked my way through college, I         Polynesia.
learned that I didn‘t want to be a
nurse. I also wanted a career that       I only practice criminal law. I have a
would give me the opportunity to         short attention span and a limited in-
make good money and still do some-       tellect so I try not to push it too much.
thing I valued. For many reasons I       Also, it is the only kind of law I find
won‘t list here (mainly because they     interesting and I can‘t work without
are boring) I settled on criminal law.   being entertained.

We met over gay porn . . . It had to do
with a case (nothing to do with John –
that I know of – there is an article      We have no pets. We both adore
about it in The Daily Record). I was      dogs, but we don‘t have a good life-
an Assistant State‘s Attorney and he      style for a dog – we are never at
was defending a man charged in a          home.
sting operation at the 20/20 adult        The most important thing I get out of
bookstore. After that, we had many        my membership is the opportunity to
PAGE 8
            ARE YOU PROMISING TOO MUCH                                               IN    OPENING
                       STATEMENT?
By Elliott Wilcox                  cancelled. They'd given him two         where every plane seemed
                                   options: wait until the next day        scheduled to leave on time.
"Your closest exit may not be
                                   to fly home, or fly to an airport
the one in front of you."                                              I turned to a woman seated to
                                   140 miles away from home and
"Your seat is a flotation device."                                     my left and commented, "What
                                   drive back. Collectively, our fly-
"If we start hurtling to our                                           airline are they flying on? Lots
                                   ing experiences had been miser-
deaths, oxygen masks will de-                                          of legroom, plenty of overhead
                                    able.
scend from the ceiling..."                                             space, and the planes leave on
                                    This final flight was no excep-    time... Can I switch to that air-
If you've flown more than once,
                                    tion.                              line?!?" (In all fairness, I won't
you've probably ignored this ex-
                                                                       mention the name of the airline
act same message, haven't           We'd boarded the plane like cat-
                                                                       that I was traveling with, but if
you? It's the standard safety       tle, squeezing ourselves into
                                                                       you've flown anywhere in the
video they play before your         seats designed to comfortably
                                                                       past year, regardless of the air-
plane taxies down the runway.       accommodate underfed chil-
                                                                       line, you've probably had a simi-
All of these videos sound pretty    dren. Our flight was booked
                                                                       lar experience).
much the same, and I'd heard        solid, so the overhead bins were
the instructions hundreds of        jammed to overflowing. Al-         The problem wasn't just that my
times. But, much to my sur-         though I was seated in row 11, experience was bad. The prob-
prise, this time I was actually     my bag was halfway to the back lem was compounded by the
paying attention to the video.      of the plane. We'd been sched- fact that I felt they were lying to
                                    uled to leave at 9:35 PM, but      me, because my experience was
I wasn't paying attention be-
                                    here we were, over an hour         so far removed from the experi-
cause I needed a refresher in
                                    later, still sitting on the tarmac ence they were advertising.
safety instruction. With as
                                    and waiting to depart.             (Which isn't uncommon...When
many miles as I've flown, I can
                                                                       was the last time you had a fast
probably recite those safety in-    Which brings me to the reason
                                                                       food burger that looked like the
structions word-for-word. No, I     why I was paying attention to
                                                                       one in the advertisement?)
was watching it for a different     their safety video.
reason. But before I tell you                                          Don't make the same mis-
                                    In addition to telling us the
why I was paying attention to                                          take with your jury.
                                    safety instructions, the video
the video, let me give you a lit-
                                    was basically serving as a pro-    In your opening statement,
tle background history...
                                    motional piece to tell us how      you're presenting them an im-
This was my fourth flight in less   wonderful the airline was. The age of what they should expect
than three days. Out of my four     video was filled with smiling      to experience during your trial.
flights, every single plane had     faces, and every passenger de- But many lawyers seem
been late. The couple sitting in    picted in the video seemed to      tempted to oversell their cases
front of me hadn't had a single     have plenty of legroom. They       during opening statements.
plane depart or arrive on time,     showed a plane with enough         They talk about evidence that
either. The guy sitting next to     space in the overhead bins to      will "probably" get admitted,
me had been on four planes in       place all of your carryon luggage about statements they're "pretty
two days, every one of his          and a spare briefcase or two.      sure" will be admissible, and de-
flights had been late, and his      Finally, they showed a quick
last flight had been completely     view of their departure board,                          (Continued on page 9)
                                                                                               PAGE 9

                          OPENING STATEMENT CONTINUED
(Continued from page 8)              doesn't need to prove the guy's    tual experience didn't live up to
                                     innocent, he just needs to show    the hype, you can't afford to
velop theories of their cases that   why the government is unable       present an image you can't live
will "likely" come to fruition.      to prove their case beyond a       up to or make promises that you
                                     reasonable doubt. When he as-      can't keep during trial. Present
Don't fall into the trap of over-
                                     sumes the extra burden of prov-    a strong opening statement, but
selling your case during opening
                                     ing that his client is innocent,   then over deliver on your prom-
statement. What happens when
                                     the jury will hold him and his     ises during your case in chief.
your case doesn't live up to the
                                     case to that higher standard. If   When your jurors discover that
image you created? Even
                                     he can't prove the defendant is    your case has exceeded their
though you present a legally
                                     innocent (even if he proves that   expectations, they'll return with
sufficient and persuasive case,
                                     there's a reasonable doubt in      the only possible verdict -- the
when you hold yourself up to a
                                     the case) his jury may vote        verdict that favors your client.
higher standard, that's what the
                                     "guilty" because they think he's
jury will expect. If you don't                                    Elliott Wilcox publishes Trial
                                     failed to prove his case.
attain that standard, they won't                                  Tips Newsletter. Sign up to-
come back with a verdict in your Don't make it harder to prove    day for your free subscription
favor, even if that standard is  your case than it needs to be.   and a copy of his special re-
higher than what the law re-     You're better off underselling   ports: ―How to Successfully
quires.                          your opening statement and let- Make & Meet Objections‖ and
                                 ting the jury discover your case ―The Ten Critical Mistakes Trial
For example, imagine a criminal
                                 is actually stronger than they   Lawyers Make (and how to
trial where the defense attorney
                                 thought it would be during       avoid them)‖ at
promises to prove his client is
                                 opening statement. Unlike the www.TrialTheater.com
"innocent." Why do that? He
                                 airline message, where the ac-



    You are cordially invited to join the Maryland Criminal Defense Attorneys'
   Association for a dinner featuring guest Michael J. O'Connell, Ph.D. who will
   discuss false confessions. Dr. Connell is a board certified forensic psycholo-
   gist (ABPP-F) who specializes in the assessment of forensic matters or mental
                       health issues as they relate to the law.

                                         September 27, 2011
                                       6:00 p.m. - CASH BAR
                                     7:00 p.m. - Meeting/Dinner
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              Contact MCDAA for more information and to register:
    410-752-3318 mcdaa@assnhqtrs.com or register online at www.mcdaa.org
PAGE 10

                                                                           APPELLATE DECISIONS
(Continued from page 4)                     And second, the jury was never told         not charged with assault with in-
                                            that a right to resist exists: ―A reason-   tent.
officer told Arthur he was under arrest     able juror, without the benefit of an          3. Held: Despite the lack of a
and put a hand on his shirt. Arthur         instruction on this point, might believe    charge, the circuit court possessed
tried to pull away, and continued           that, when a police officer tells him he    fundamental or subject-matter juris-
―kicking and pulling‖ as three officers     is under arrest, he must succumb, re-       diction over the charge of assault
took him to the ground. Defense wit-        gardless of the circumstances, and          with intent, at most erring only in
nesses testified that when approached       wait for relief (and release) until he is   the exercise of that jurisdiction.
by the officer, Arthur merely asked         taken before a judicial officer.‖ Slip      Subject-matter jurisdiction is lacking
why he was being arrested, and was          op. at 16. (Note: The majority implic-      ―only if the case does not fall within
thrown to the ground for no reason.         itly rejected the dissent‘s view that if    a class of cases in which that court
Arthur himself denied yelling obsceni-      the defendant is convicted of both the      was authorized to act upon.‖ Slip
ties, adding that he threw the newspa-      crime for which the officer arrested        op. at 12. The Maryland Constitu-
per to a friend, not at the police car.     him and resisting, it becomes irrele-       tion confers broad, general jurisdic-
The trial judge instructed the jury on      vant whether the jury was instructed        tion upon the circuit courts, which
the elements of resisting arrest, but       on the right to resist because guilt of     possess the basic authority to try
refused to instruct concerning the right    the underlying crime extinguishes that      offenses not specifically delegated
to resist an unlawful arrest. Arthur        right.)                                     to another forum.
was convicted of resisting and of fail-                                                    4. While a lack of fundamental
ure to obey a lawful order. Reversing,      CHARGING DOCUMENT                           jurisdiction renders a judgment void
the Court wrote:                                                                        and may be raised at any time, im-
      1. An argument that an officer‘s      Johnson v. State, 199 Md.App.               proper exercise of jurisdiction only
conduct infringed a defendant‘s pro-        331 (2011)                                  renders a judgment voidable and
tected speech goes to the sufficiency       In this 1992 case, an initial statement     must be raised on direct appeal.
of the evidence, and therefore must be      of charges alleged that Johnson had            5. Here, the jury instructions and
made to the trial court in order to pre-    committed, inter alia, the then-            verdict sheet ―constructively
serve it for appellate review. Here,        existing crime of assault with intent to    amended‖ the indictment to add a
that was not done.                          murder. He was then indicted for at-        charge of assault with intent to
      2. However, the court erred in        tempted murder and other offenses           murder. While constructive amend-
refusing to instruct the jury on the        which did not expressly include assault     ments are generally held to be er-
right to resist an unlawful arrest. The     with intent. At trial, the jury was in-     ror, they do not deprive the court of
defendant‘s burden in requesting a          structed upon both attempted murder         jurisdiction and must be objected to
jury instruction upon a particular the-     and assault with intent. It acquitted of    at trial and raised on direct appeal.
ory is a ―fairly low‖ one, slip op. at 13   the former and convicted of the latter.     Here there was no objection, which
– there need only be ―some evidence‖        Trial counsel never argued that John-       the Court noted was probably stra-
supportive of the theory, it does not       son was not charged with assault with       tegic, as assault with intent carried
matter where that evidence comes            intent, and that issue was not raised       a lesser penalty than attempted
from, and contrary evidence however         on direct appeal. Dismissing the ap-        murder. Slip op. at 16, n. 7.
strong does not defeat the right to an      peal, the Court wrote:                         6. Rule 4-252(d) permits jurisdic-
instruction. Here, if the defense wit-            1. A conviction upon a charge not     tional issues arising from a charging
nesses were believed, there was no             made violates due process. Here,         document to be raised at any time.
reason for the officer to arrest Arthur.       the indictment did not charge as-        That, however, applies only to mat-
      3. Here, the majority appears to         sault with intent to murder.             ters of fundamental jurisdiction.
have found two distinct errors in the             2. Implicitly recognizing that a      Where the question is whether ju-
instructions. It should not have in-           lesser-included offense of a charged     risdiction should be exercised
structed that the officer needed only          offense is itself charged, the Court     (―whether the court has the author-
―reasonable grounds‖ to justify the            wrote that ―Assault with intent to       ity to decide a particular case within
arrest when in fact probable cause was         murder is not a lesser included of-      the class of cases for which the
required; for this reason the instruction      fense of attempted murder.‖ Slip         court has subject matter jurisdic-
defining resisting arrest did not ―fairly      op. at 11, discussing in some detail     tion,‖ slip op. at 18), the matter
cover‖ the matter of the right of a de-        the required elements of both            must be raised below.
fendant to resist an unlawful arrest.          crimes. Therefore, Johnson was                              (Continued on page 11)
                                                                                                                  PAGE 11

APPELLATE DECISIONS
(Continued from page 10)                      2. While the TPR judge did hear        pre-warning statements but admitted
                                         evidence concerning placement with          those made after the Miranda waiver.
        7.         Fundamental jurisdic- the paternal grandmother, the Court         Remanding without affirmance or re-
    tion is lacking where a) the crime   wrote that consideration of placement       versal for further findings by the trial
    does not exist, e.g., it was abro-   with a relative is more appropriate in a    court, the Court wrote:
    gated by the legislature, or b)      CINA proceeding than a TPR, where                1. Under Oregon v. Elstad, 470
    prosecution for it has been placed   the focus is more properly upon the         U.S. 298 (1985), a voluntary statement
    within the exclusive jurisdiction of fitness of the parents.                     obtained through a ―mere Miranda‖
    another court.                            3. In determining whether to ter-      violation is suppressed, but does not
                                         minate parental rights, the test is the     carry the fruit of the poisonous tree
CINA/TPR CASES                           best interest of the child, as explicated   effect of an involuntary statement.
                                         by the factors listed in § 5-323 of the     Only where the police engage in
In re Cross H., #1987 COSA 2010, Family Law Article.                                 ―deliberately coercive or improper tac-
7/1/11                                        4. Under the gloss placed on the       tics,‖ slip op. at 15, will there by a pre-
      1. The respondent child was        statute by In re Rashawn H., 402            sumption that a subsequent, Miran-
found CINA and the permanency plan Md. 477 (2007), the judge must factor             dized statement was coerced. Absent
ultimately changed to non-relative       in the constitutional presumption fa-       such tactics, a subsequent voluntary
adoption. The parents appealed. Dur- voring a continuation of the parental           waiver of Miranda rights will permit
ing the pendency of that appeal, DSS     relationship, and determine whether         the taking of an admissible second
filed a petition for guardianship. The   the statutory factors establish parental    statement.
parents moved to stay the guardian-      unfitness or an ―exceptional circum-             2. Under Seibert, where the po-
ship petition pending the outcome of     stance.‖ To that end, the judge must        lice question without warnings and
the appeal. The judge denied the mo- carefully make and apply findings of            obtain a confession, and then in a con-
tion to stay, conducted the TPR hear- fact relating to those factors as estab-       tinuous manner give warnings and re-
ing, and terminated the parents‘ rights. lished by the evidence.                     ask the same questions, the warnings
The Court of Special Appeals then af-                                                are deemed ineffective in communicat-
firmed the CINA disposition, and the     CONFESSIONS                                 ing that the suspect has a genuine
Court of Appeals denied a petition for                                               choice as to whether to continue talk-
certiorari. Held: Given the final affir- Wilkerson v. State, #107 COA                ing or to remain silent.
mance of the CINA case, the issue of     2010, 7/14/11                                    3. The Seibert plurality identi-
whether the guardianship case should A detective engaged in custodial inter-         fied factors distinguishing a permissible
have been stayed is now moot. Were rogation of Wilkerson, a rape suspect,            renewal of interrogation under Elstad
it not moot, there still would have      without propounding Miranda warn-           with the impermissible ―question first,
been no error. Neither a CINA finding ings. He denied any knowledge of the           warn later‖ technique:
nor an adverse change in permanency event, which proved inculpatory be-                        The contrast between
plan is a prerequisite to a TPR. Never- cause his DNA was recovered from the               Elstad and this case reveals
theless, ―…the CINA determinations       victim. In the same session, the de-              a series of relevant facts
and the TPR adjudication are inexora- tectives then read the warnings and                  that bear on whether
bly linked.‖ Slip op. at 8. The parents repeated the questions; Wilkerson                  Miranda warnings delivered
are entitled to final resolution of the  again denied knowledge.          Defense          midstream could be effec-
CINA appeal (which they received         counsel argued very briefly that the              tive enough to accomplish
here), and the juvenile court may not    initial Miranda violation tainted the             their object: the complete-
take action to thwart the CINA appeal post-Miranda questioning. However,                   ness and detail of the ques-
under the rule that ―…a trial court‘s    neither counsel nor the judge focused             tions and answers in the
post-appeal orders which affect the      upon Missouri v. Seibert, 542 U.S.                first round of interrogation,
subject-matter of the appeal are pro-    600 (2004), which prohibits the police            the overlapping content of
hibited.‖ Slip op. at 8, n. 8. That does technique of obtaining a statement by             the two statements, the
not, however, bar the commencement questioning without warnings, and                       timing and setting of the
of TPR proceedings while the CINA        then providing the warnings and cov-              first and the second, the
appeal is pending, as CINA and TPR       ering the same ground with a suspect              continuity of police person-
proceedings are separate actions, gov- who has already incriminated himself.               nel, and the degree to
erned by different statutory schemes. The suppression judge suppressed the                                  (Continued on page 12)
PAGE 12

                                                                         APPELLATE DECISIONS
(Continued from page 11)                   found it a very close question whether      is so inherently coercive that it
                                           a Seibert challenge had been raised,        frequently causes adults to con-
      which the interrogator‘s             and ordered a limited remand to per-        fess to crimes they did not com-
      questions treated the sec-           mit more detailed presentation and          mit. Slip op. at 5.
      ond round as continuous              litigation of the parties‘ positions.           2.        Where the State offers
      with the first. In Elstad, it             6. Whether the police used the         a confession, it bears the burden
      was not unreasonable to              improper technique deliberately turns       of establishing a knowing and
      see the occasion for ques-           upon the totality of the evidence, and      voluntary waiver of Miranda
      tioning at the station house         not merely their testimony.                 rights.
      as presenting a markedly                  7. A facially ―exculpatory‖ state-         3.        Custody occurs where
      different experience from            ment is just as suppressible as a con-      a reasonable person in the sus-
      the short conversation at            fession if there has been a Miranda         pect‘s circumstances would not
      home; since a reasonable             violation.                                  feel free to terminate the interro-
      person in the suspect‘s                   8. The two-step or question-first      gation and leave; the reviewing
      shoes could have seen the            technique implicates Miranda compli-        court must determine, by an ob-
      station house questioning            ance, not voluntariness in the tradi-       jective standard, restraint on free-
      as a new and distinct ex-            tional sense. Therefore, the issue is       dom to the degree associated
      perience, the Miranda warn-          litigated only once, at a pretrial sup-     with a formal arrest. The subjec-
      ings could have made sense           pression hearing, and not both pretrial     tive intent of interrogator and
      as presenting a genuine              and to the jury, as a voluntariness is-     suspect is irrelevant.
      choice whether to follow up          sue is.                                         4.        In applying this objec-
      on the earlier admission.                                                        tive analysis, it is important that a
           Slip op. at 19, quoting         J.D.B. v. North Carolina, 564 U.S.          person in the position of a rea-
      Seibert.                             ___, 131 S.Ct. 2394, 180 L.Ed.2d            sonable child may well have a
     4. In determining on which side       (2011)                                      different perception of his free-
of the line a particular interrogation     The youthful age of a suspect is rele-      dom to leave than that of a rea-
falls, it is important to determine        vant to whether he is in ―custody‖ for      sonable adult.
whether the suspect likely believed        Miranda purposes at the time of an              5.        While other individual
that the earlier, unwarned statement       interrogation, so long as it is known to    characteristics of the suspect such
was admissible against him when he         the interrogator or reasonably appar-       as prior experience with police
made the post-warning statement.           ent. Here, 13-year-old J.D.B. was sus-      interrogations do not enter the
     5. Complicating matters, Justice      pected of committing burglaries. A          custody equation because they
Kennedy in providing the fifth vote for    uniformed ―school resource officer‖         would introduce unwelcome sub-
reversal in Seibert found improper         removed him from class and took him         jectivity, youth and its attendant
only a situation in which the police       to a conference room, where the door        immaturity and vulnerability to
deliberately employed the two-step         was closed. Present were the uni-           influence will always be apparent
technique; possible ineffectiveness of     formed officer, a police department         to the interrogator and a matter
the warnings standing alone would not      juvenile investigator, an assistant prin-   of common knowledge.
suffice to render the statement inad-      cipal, and an administrative intern.            6.        Factors relevant to
missible. As this is the ―narrowest        Interrogated without Miranda warn-          custody are viewed in the aggre-
ground‖ upon which five members of         ings, J.D.B. confessed; at that point he    gate to determine whether they
the Court agreed, it represents the        was told he could refuse to answer          ―add up‖ to custody, slip op. at 15
operative holding of the Court. Lower      questions and was free to leave, but        -16, rather than being evaluated
courts have held that once the defen-      provided additional details. The juve-      one by one.
dant clearly raises a Seibert claim, the   nile court found that he was not in             7.        That a suspect‘s age is
burden lies with the State to prove        custody. The North Carolina Supreme         a factor in the traditional due
that the police did not deliberately use   Court affirmed, explicitly holding that     process totality of the circum-
the two-step technique. Slip op. at 23,    the suspect‘s age is not relevant to the    stances test for voluntariness
n. 10. It is incumbent on the defen-       custody determination. Remanding for        does not confer sufficient protec-
dant in the first instance, however, to    reconsideration in light of its new rule,   tion – it is also necessary that
clearly allege use of the two-step or      the Court wrote:                            warnings be given if the interro-
question first tactic. Here, the Court              1.      Custodial interrogation                     (Continued on page 13)
                                                                                                                   PAGE 13

APPELLATE DECISIONS
(Continued from page 12)                          1.       Direct criminal con-            proceedings. Here, the civil case
                                             tempt justifying summary action               continued to conclusion without
     gation is custodial.                    requires 1) that the judge person-            disruption.
                                             ally perceived the misconduct, and                 4.       Constructive contempt
CONTEMPT                                     2) that the misconduct ―has inter-            (that committed outside of the
                                             rupted the order of the court and             court‘s presence or not immedi-
Espinosa v. State, 198 Md. App.              interfered with the dignified con-            ately disruptive of the proceed-
354 (2011)                                   duct of the court‘s business.‖ Md.            ings), or direct contempt which the
A commercial lessor filed a civil suit for   Rule 15-203(a). Such a ―scaling               judge decides not to punish sum-
non-payment of rent against Espinosa         back‖ of the defendant‘s ordinary             marily, implicate the procedures of
and a company of which he was ex-            due process rights requires that              Rule 15-205, which preserves the
ecutive director and guarantor on the        this be the rare and exceptional              protections of due process and
lease. The defendants counter-               case, requiring ―an open, serious             counsel. If the judge must sub-
claimed, asserting that the lessor had       threat to orderly procedure.‖ Slip            stantially rely upon extrinsic evi-
failed to make necessary repairs re-         op. at 37. There must be an im-               dence beyond his or her personal
sulting in constructive eviction. In the     mediate need for vindication of the           knowledge, the contempt cannot
context of the lessor‘s pretrial motions     dignity of the court. Holding that            be direct. Put another way, con-
for summary judgment, Espinosa pro-          Espinosa‘s actions did not rise to            tempt is direct only if the judge
vided two affidavits and deposition          that level, the Court reviewed in-            has personal knowledge of all of
testimony. He testified at trial after       stances in which the alleged con-             the relevant facts. This is the rare
those motions were denied. His trial         temnor‘s conduct was sufficiently             case in which the judge was pre-
testimony was both internally inconsis-      disruptive – a lawyer walking out             sented with enough admission of
tent, and inconsistent with his affida-      of the courtroom after being told             falsehoods and irreconcilable testi-
vits and deposition testimony. On sev-       that he was not excused and that              mony to have personal knowledge
eral occasions, he admitted to prior         the judge had not yet ruled on the            of lying; normally, that will be the
false or inaccurate statements, under        issue being argued where the law-             domain of the trier of fact.
oath, on material issues. On its own         yer obstreperously insisted that                   5.       Direct criminal con-
motion, the trial court announced that       the judge had no authority to rule            tempt requires either behavior
Espinosa was attempting to perpetrate        against him; a party directing ex-            contemptuous on its face, or a
a fraud on court and jury, and held          pletives to the judge after being             showing of contumacious intent.
him in direct criminal contempt. When        warned to stop; and verbal and                Here, the latter was established by
counsel stated that he was not compe-        physical disruption of an ongoing             Espinosa‘s ―pervasive‖ lying.
tent to handle a criminal matter, the        hearing, again after a warning.
judge insisted that Espinosa allocute,       Here, the necessary disruption of         COUNSEL
and he claimed lack of recall over the       the proceedings was lacking.
two-year course of the litigation and             2.       If substantial time         Lopez v. State, 420 Md. 18 (2011)
denied intentional falsehood. The            elapses between contemptuous              Prior to trial, Lopez was informed only
judge imposed a determinate 10-day           conduct and contempt finding,             of the penalties applicable to a first
jail sentence. After the judge struck        particularly if the accused is af-        offender for the drug charges that he
Espinosa‘s testimony in the civil case       forded notice and a right to be           was facing, despite the fact that his
and the jury not surprisingly ruled          heard by counsel, the matter is           record qualified him for an enhanced
against him, the judge issued written        more akin to constructive con-            repeat-offender sentence. After direct
findings in support of the contempt          tempt than direct.                        examination of the State‘s first witness
order, specifying some of what the                3.       Held: Criminal con-         at trial, he discharged counsel, never
court viewed as lies under oath. The         tempt requires more than simply           having been told of the repeat-
trial court proceeded to find that the       lying during the course of adver-         offender maximum sentences. He was
lies were made for the purpose of bol-       sarial proceedings, because the           convicted, and in fact sentenced as a
stering his position in the civil case,      entire point of litigation is to ascer-   subsequent offender. Finding error,
and had succeeded in prolonging the          tain where the truth lies. And the        the Court wrote:
case beyond the summary judgment             summary procedure for direct con-                   1.       After trial has begun,
stage. Reversing the finding of con-         tempt is only appropriate if there is           Rule 4-215, which requires inter
tempt, the Court wrote:                      an immediate obstruction of the                                 (Continued on page 14)
PAGE 14

                                                                        APPELLATE DECISIONS
(Continued from page 13)                 7/6/11                                          Held: Where a defendant in the
                                                  1.       Sec. 5-133(b) of the          latter category was erroneously
    alia that a defendant must be           Public Safety Art., proscribing pos-         sentenced to five without parole,
    told the allowable penalties, in-       session of a regulated firearm by a          he is entitled to a full resentenc-
    cluding mandatory ones, prior to        person previously convicted of a             ing, and not merely the vacating of
    a valid waiver of counsel, does         disqualifying crime, has as its pen-         the no-parole provision.
    not apply. However, the waiver          alty provision § 5-143. That sec-
    must nevertheless satisfy the re-       tion provides for a non-                 Evans v. State, #72 COA 2010,
    quirements of the Sixth Amend-          mandatory sentence of up to five         6/30/11
    ment and Art. 21 of the Declara-        years, with the possibility of pa-       Section 5-142 of the Public Safety Art.
    tion of Rights.                         role.                                    proscribes the obliteration or alteration
        2.       Where it applies, Rule           2.       In Evans v. State,        of an identifying mark or number on a
    4-215 is mandatory, requires            ___ Md. ___ (2011), the Court            firearm. Held: As there is no penalty
    strict compliance, and a violation      held that § 5-143(b)‘s penalty pro-      provision attached to that proscription,
    is not subject to harmless error        vision did not apply to obliteration     it is not capable of sustaining a convic-
    analysis.                               of an identification mark under § 5      tion. In so holding, the Court wrote:
        3.       Here, error occurred       -142.                                               1.       In order for an act to
    regardless of whether Rule 4-215              3.       § 5-133(b) applies to           constitute a crime, it must be both
    applied. A defendant facing in-         possessions of regulated firearms              forbidden and penalized by the
    carceration has fundamental con-        by convicted felons, while § 5-143             law. (An exception to this rule,
    stitutional rights to both counsel      (a) applies to anyone illegally in             not applicable here, is a common-
    and self-representation, but must       possession of such a weapon for                law offense; for the members of
    be represented absent a knowing,        any reason. Historically, § 5-143              that vanishing breed, the maxi-
    intelligent and voluntary waiver.       has functioned as a ―catch-all‖                mum penalty is set by the prohibi-
    Courts apply every reasonable           penalty provision, applicable to               tion upon cruel and unusual pun-
    presumption against such a              several crimes contained within its            ishment.)
    waiver. A proper waiver requires        subtitle. Held: The legislature                     2.       The penalty provision
    that the defendant be aware of,         clearly designed § 5-143 to penal-             need not be included in the same
    inter alia, ―the range of allow-        ize possession by a convicted felon            statute that proscribes the con-
    able punishments.‖ Slip op. at          under § 5-133(b).                              duct, but the two must neverthe-
    16, quoting Supreme Court au-                 4.       An out-of-state convic-         less be linked. Thus, for example,
    thority. Held: ―The range of            tion counts as a ―felony‖ for pur-             a crime exists where the proscrib-
    allowable punishments‖ includes         poses of Maryland‘s felon in pos-              ing statute declares the conduct a
    ―applicable enhanced penalties,‖        session prohibition if it would be a           felony, and a separate catchall
    slip op. at 22, as a matter of con-     felony under Maryland‘s classifica-            statute provides a general range of
    stitutional law.                        tion of offenses, regardless of how            punishment for felonies.
        4.       With respect to            it is classified in the other state.                3.       §5-142 has no internal
    charges within the exclusive juris-           5.       Where a person is               penalty provision, and applies to
    diction of the circuit court, advice    convicted of possession of a regu-             ―firearms.‖ §5-143 imposes penal-
    by a district court judge does not      lated firearm by one previously                ties, but only for acts involving
    ―count‖ in assessing whether the        convicted of a crime of violence or            regulated firearms. The latter
    right to counsel has been know-         serious enumerated drug offense                category is more narrow and spe-
    ingly waived. In any event, a           under § 5-133(c), he faces that                cific than ―firearms‖ generally, and
    district judge in the present case      section‘s mandatory penalty of five            expressly includes handguns and
    inaccurately informed Lopez that        years which is not subject to sus-             specified assault weapons. (Note:
    on the most serious charges he          pension or parole. If on the other             The opinion contains definitions of
    was facing less time than he actu-      hand he was convicted of posses-               ―handgun,‖ ―firearm,‖ and
    ally was facing.                        sion of a regulated firearm after              ―regulated firearm.‖) Further, the
                                            having been convicted of a felony,             two sections refer to different acts:
DEADLY WEAPON OFFENSES                      the sentencing provision is § 5-               obliteration or alteration in §5-142,
                                            143, which does not require a                  sale, transfer, receipt or the like in
Jones v. State, #87 COA 2010,               mandatory, no-parole sentence.                                  (Continued on page 15)
                                                                                                                   PAGE 15

APPELLATE DECISIONS
(Continued from page 14)                    nied a continuance to the following          less of the possible penalty. [citations]
                                            day. Held: There was no error, be-           The greater offense for lenity and fun-
    §5-143. Nor is linkage established      cause there was no Brady violation.          damental fairness is the one carrying
    by §5-143‘s punishment for              Such a violation requires that 1) the        the greatest possible penalty.
    ―possession‖ and §5-142‘s               prosecutor suppressed evidence, 2)           [citations].‖ Slip op. at 35, n. 10.
    (constitutionally suspect) presump-     favorable to the defense because ex-              4. The ―actual evidence‖ test,
    tion that the possessor of a            culpatory, mitigating, or impeaching of      requiring merger if the actual evidence
    weapon with an obliterated serial       a State‘s witness, 3) which is material.     offered at trial is the same for two of-
    number is the obliterator.              While an actual failure to disclose a        fenses, has been discarded and re-
         4.       Examining in detail the   State‘s witness‘s immunity agreement         placed by the required evidence test,
    legislative history of Maryland‘s       does violate Brady, that failure must        which looks to the lists of necessary
    gun laws, the Court wrote that at       continue through the close of trial.         elements of the two crimes.
    some point most weapons prohibi-        Evidence that becomes known to the                5. Where a defendant is con-
    tions came to apply to ―regulated       defense, even as late as mid-trial, is       victed of numerous counts and a sen-
    firearms,‖ for which a penalty pro-     not ―suppressed‖ for Brady purposes.         tence fashioned, and several convic-
    vision exists. The prohibition upon     And while intentional delay in disclos-      tions and/or sentences vacated on
    obliteration became ―orphaned‖ or       ing exculpatory material raises ethical      merger or unit of prosecution grounds,
    ―separated‖ from the remaining          issues and would be ―risky‖ for the          the defendant is not entitled to an
    proscriptions in that it applies to     State, slip op. at 23, here the informa-     overall resentencing merely because
    ―firearms,‖ for which no penalty        tion was disclosed as soon as the            the reversals affected only concurrent
    provision exists.                       prosecutor became aware of it.               or suspended sentences and did not
                                                                                         affect the period of active incarcera-
DISCOVERY                                   DOUBLE JEOPARDY                              tion.

In re Matthew S., #1184 COSA                Moore v. State, 198 Md. App. 655             EVIDENCE
2009, 7/1/11                                (2011)
In a distribution of marijuana case, the         1. There are three forms of             Lupfer v. State, 420 Md. 111
State announced on the morning of           merger law in Maryland: the required         (2011)
trial that the previous day, it had         evidence test comparing the lists of         On trial for murder, Lupfer testified
granted use and transactional immu-         necessary elements of the offenses at        that he and the decedent simultane-
nity to the alleged buyer in return for     issue; the legislative intent/rule of len-   ously reached for a gun on the floor,
his testimony. The defense moved to         ity version, focusing upon whether the       and during the ensuing struggle for
preclude the testimony, arguing that        legislature intended double punish-          possession of the gun it discharged
while the buyer‘s identity and alleged      ment and affording the defendant the         accidentally, killing the decedent. He
role had previously been disclosed, the     benefit of the doubt; and fundamental        added that while he had thrown the
deal and negotiations leading up to it      fairness, focusing inter alia upon           gun in the woods and solicited a ride
had not. The trial judge denied the         whether the victim suffered one or           to New Jersey, his intent was to pre-
motion to exclude, commented that if        multiple harms. All three are de-            pare himself to speak to the police and
a remedy existed it was a postpone-         scribed in detail in the slip opinion at     then to turn himself in. On cross, over
ment, and referred the parties to the       25-28, providing a good primer on this       objection and on a theory that Lupfer
administrative judge. That judge de-        important topic.                             had ―opened the door,‖ the State was
nied the postponement, finding an ab-            2. A successful merger argument         permitted to ask him whether the po-
sence of extraordinary cause on the         results in the sentence for the lesser       lice had afforded him an opportunity to
basis that the defense knew about the       offense being vacated, not the convic-       tell his side of the story. When Lupfer
witness. (Confusingly, the Court of         tion. If no such sentence was im-            answered in the negative, the State on
Special Appeals in footnote 9 refer-        posed, there is nothing to reverse.          rebuttal was permitted to call the in-
ences Hicks and the 180-day adult           The purpose of the merger doctrine is        terrogating detective, who testified
Circuit Court deadline of § 6-103 of        to avoid unfair multiple punishments         that after the administration of
the Crim. Proc. Art., which require only    arising from the same transaction.           Miranda warnings, Lupfer ―…elected
good cause for a postponement and                3. ―The greater offense under the       not to answer any questions. He said
have no applicability to this juvenile      required evidence test is the one con-       he would have to talk to a lawyer be-
matter). The hearing judge then de-         taining the additional element, regard-                            (Continued on page 16)
PAGE 16
                                                                          APPELLATE DECISIONS

(Continued from page 15)                        rights than its Fifth Amendment             available and there has been an
                                                federal counterpart.                        opportunity to cross-examine.
cause those charges were very seri-                 6. Various cases have found                  2.      Part of the role of a
ous… .‖ Finding error, the Court                that a defendant opened the door            forensic nurse-examiner is to col-
wrote:                                          to evidence of post-Miranda si-             lect evidence for use at a criminal
        1. Evidence of a defendant‘s            lence as a ―fair response‖ where            trial. See COMAR 10.27.21.04A.
    post-arrest, post-Miranda silence           he or his counsel claimed full co-               3.      Unlike autopsy re-
    is inadmissible for any purpose,            operation with the police, or in            ports, which do not necessarily
    including impeachment. It is im-            some instances even created an              arise from a criminal investigation
    plicit in the Miranda warnings              ―impression‖ of ―general coopera-           and are not always fully testimo-
    that there will be no adverse con-          tion,‖ when in fact he had re-              nial, see Rollins v. State, 392
    sequence from electing not to               mained silent. Held: This ap-               Md. 433 (2006), the report of a
    speak to the police.                        plies only to a claim of com-               forensic nurse examiner is gener-
        2. Even where Miranda                   pleted cooperation. Lupfer‘s tes-           ally solicited by a police officer
    warnings have not been pro-                 timony that he intended at some             investigating a crime. The poten-
    pounded, removing the constitu-             unspecified future time to cooper-          tial for use at a later criminal trial
    tional basis for exclusion, Mary-           ate does not open the door to               is therefore apparent.
    land law generally precludes evi-           evidence of post-Miranda si-                     4.      Documents generated
    dence of a defendant‘s silence.             lence. The Court also implied,              for purposes of litigation do not
    Thus, post-arrest, pre-Miranda              without holding, that the door              qualify as ―business records‖ for
    silence is inadmissible. Kosh v.            cannot be opened by responses               purposes of the hearsay rule.
    State, 382 Md. 218 (2004). Even             to the prosecutor‘s cross – the             And even if a declaration falls
    in a pre-arrest, pre-Miranda set-           impression of cooperation must              within the business records ex-
    ting, silence is often viewed as            arise from a deliberate defense             ception, that does not necessarily
    carrying too little probative value         strategy.                                   satisfy the Confrontation Clause.
    to outweigh the potential for                                                           Slip op. at 21.
    prejudice. Weitzel v. State, 384       Green v. State, 199 Md.App. 386                       5.      That the forensic
    Md. 451 (2004). Admission there-                 (2011)                                 nurse provided a minor amount of
    fore violates non-constitutional       A woman claiming to have just been               medical care does not negate her
    principles of evidence law.            physically and sexually assaulted, and           reasonable anticipation that her
        3. Where the defendant re-         then stabbed, was treated for injuries           report of gathered evidence
    mained silent, the fact that           and then taken to a hospital‘s sexual            would likely be used in a criminal
    Miranda warnings were read is          assault center for the express purpose           trial.
    itself inadmissible. Dupree v.         of gathering forensic evidence. While                 6.      That a report contains
    State, 352 Md. 314 (1998).             portions of the forensic nurse‘s report          routine description as opposed to
        4. Exceptions to the inadmis-      were redacted, other portions, includ-           analysis or conclusion, see
    sibility of silence have been rec-     ing her observation of anal tears, were          Rollins, does not take it beyond
    ognized where a) the defendant         admitted, and relied upon by the State           Confrontation Clause scrutiny.
    testifies that he told the police an   in closing. The nurse was not avail-             Purely factual statements may
    exculpatory version and the            able to testify. Held: The statement             qualify as testimonial.
    prosecution disputes this claim; or    was ―testimonial,‖ and thus subject to
    b) where the prosecution provides      the Confrontation Clause under the          In re Matthew S., #1184 COSA
    a ―fair response‖ to a defense         Crawford v. Washington test. In so          2009, 7/1/11
    claim that the accused was de-         holding, the Court wrote:                   A police officer testified that he ob-
    nied an opportunity to tell his side              1.      One class of testimo-    served a sale of marijuana through
    of the story.                                nial statements encompasses           binoculars, obtaining a very clear view
        5. The privilege against self-           those made under circumstances        of the seller. The buyers were ar-
    incrimination provided by Art. 22            that would lead a reasonable de-      rested, and one told the officer that
    of the Maryland Declaration of               clarant to believe that the state-    the seller was ―Matt S.,‖ a student at a
    Rights has at times been viewed              ment will be available for use at a   particular high school. The officer
    as providing more comprehensive              subsequent trial. They are admis-     went to the high school, obtained a
    protection of the defendant‘s                sible only if the declarant is un-                           (Continued on page 17)
                                                                                                                        PAGE 17
APPELLATE DECISIONS

(Continued from page 16)                          the witness‘ prior description of     ond analyst, who was familiar with the
                                                  the criminal; (iv) the level of cer-  lab‘s procedures but had had no par-
yearbook, turned to a photo labeled               tainty demonstrated by the wit-       ticipation in Bullcoming‘s case, did tes-
―Matthew S.,‖ and identified the photo            ness at the confrontation; [and]      tify. Held: Testimony from a
as possibly depicting the seller. De-             the length of time between the        ―surrogate witness‖ who neither per-
fense counsel moved to suppress the               crime and the confrontation.‖ Slip    formed nor observed the actual testing
identification of the photo as unduly             op. at 14. In applying these fac-     does not prevent the admission of the
suggestive. The motion was denied.                tors, police officers are presumed    report from violating the Confrontation
Finding no error, the Court wrote:                to pay particular attention to mat-   Clause. In so holding, the Court
         1. ID suppression invokes a              ters of identification of offenders.  wrote:
     two-step process. The initial bur-                4.        Turning to a separate            1. Blood alcohol testing (in
     den is on the defendant to estab-            evidentiary issue, the admission of        this case using a gas chromato-
     lish that the procedure used was             hearsay evidence, the Court noted          graph process) is subject to hu-
     unduly suggestive. If that burden            that while the admission of evi-           man error.
     is carried, the burden shifts to the         dence is generally reviewed as a                2. ―As a rule, if an out-of-
     State to establish, by clear and             matter of trial court discretion, the      court statement is testimonial in
     convincing evidence, that indicia            admissibility of hearsay is a legal        nature, it may not be introduced
     of reliability outweigh the                  issue, reviewed de novo.                   against the accused at trial unless
     ―corrupting effect‖ of the sugges-                5.        ―Hearsay is defined as      the witness who made the state-
     tive procedure.                              ‗a statement, other than one made          ment is unavailable and the ac-
         2. Where a lay witness al-               by the declarant while testifying at       cused has had a prior opportunity
     ready knows a suspect‘s name,                the trial or hearing, offered in evi-      to confront that witness.‖ Slip op.
     and is shown a yearbook photo                dence to prove the truth of the            at 8. The Confrontation Clause
     captioned with that name, the                matter asserted.‘ Md. Rule 5-801           focus is not upon the reliability of
     procedure may well be unduly                 (c). Hearsay is generally inadmis-         the statement, but upon the de-
     suggestive. However, courts in               sible. Md. Rule 5-802. An out-of-          fendant‘s opportunity to cross-
     this context have drawn a distinc-           court-statement is admissible              examine the declarant.
     tion between a lay witness and a             [spellings of ―admissible‖ are                  3. A forensic report prepared
     police investigator. Where the               quoted correctly], however, ‗if it is      by a State agent in connection
     investigator views such a photo,             not being offered for the truth of         with a criminal prosecution is
     he is legitimately furthering the            the matter asserted or if it falls         ―testimonial‖ for this purpose. ―To
     investigation by confirming his              within one of the recognized ex-           rank as ‗testimonial,‘ a statement
     own identification. Joining those            ceptions to the hearsay rule.‘‖ Slip       must have a ‗primary purpose‘ of
     courts, the Court of Special Ap-             op. at 26-27. Held: No hearsay             ‗establish[ing] or prov[ing] past
     peals found that the officer was             issue arises in a bench trial when         events potentially relevant to later
     merely furthering his investiga-             the judge announces that he or             criminal prosecution.‖ Slip op. at 9
     tion, not violating due process              she is not considering the asser-          n. 6, quoting Davis v. Washing-
     rights. Nevertheless, the Court              tion for its truth. And where the          ton, 547 U.S. 813, 822 (2006).
     added, slip op. at 13, n. 7, that            defense asserts a delay between            That the technician reported a ma-
     police identifications are not per           incident and arrest, the State may         chine‘s result does not make his
     se admissible and immune from                admit extrajudicial statements             certification non-testimonial, par-
     scrutiny for suggestiveness.                 which explain this delay.                  ticularly where he further certified
         3.         In any event, the iden-                                                  that he received a sealed and in-
    tification here was reliable. Under       Bullcoming v. New Mexico, 564                  tact blood sample, that tracking
    the familiar Neil v. Biggers test,        U.S. ____, 131 S.Ct. 2705, 180                 numbers for chain of custody
    reliability is tested by the totality     L.Ed.2d 610 (2011)                             matched, that he performed a spe-
    of the circumstances, with five           Bullcoming was tried for DWI. At trial,        cific test adhering to a specific pro-
    factors receiving specific attention:     the State introduced a forensic labora-        tocol; further, he left blank a space
    ―(i) the opportunity of the witness       tory report certifying that his blood          for recording anything that af-
    to view the criminal at the time of       alcohol content was well in excess of          fected the validity of the test. All
    the crime; (ii) the witness‘ degree       the legal limit. The analyst who signed        of this was properly subject to
    of attention; (iii) the accuracy of       the certification did not testify. A sec-                         (Continued on page 18)
PAGE 18

                                                                            APPELLATE DECISIONS
(Continued from page 17)                         plea, precluding the need for any            sible for the State, in lieu of con-
                                                 live testimony.                              fronting the defendant with 10
    cross-examination, regardless of                                                          instances of prejudicial and non-
    its apparent reliability.                Hannah v. State, #151 COA 2009,                  probative lyrics, to ask in general
         4. The Confrontation Clause         6/29/11                                          terms whether he had drawn the
    entitles the accused to probe the        On trial for attempted murder by                 gun depicted in his notebook and
    possible ―lapses or lies,‖ slip op. at   shooting, defendant testified on direct          written lyrics about guns.
    12, of the author of the admitted        that he had never possessed a gun or                 5. Dealing in a single sen-
    report; cross-examination of an-         had access to one. On cross, the State           tence with an unrelated issue
    other scientist familiar with the        elicited from defendant that he has no           which was not otherwise reached,
    procedure is constitutionally inade-     ―interest‖ in guns. Over objection, the          the Court wrote that ―…when de-
    quate.                                   State was then permitted to elicit that          termining the admissibility of evi-
         5. The fact that the values         defendant had written rap lyrics involv-         dence that is directed at proving
    underlying a Sixth Amendment             ing the firing of guns in a school note-         that a State‘s witness has a mo-
    right have been honored does not         book, and in the same notebook had               tive to testify falsely, the Circuit
    excuse a violation. In addition to       drawn a handgun. The prosecutor                  Court shall apply Calloway v.
    confrontation, the Court noted that      then quoted specific lyrics describing           State, 414 Md. 616, 996 A.2d
    in the counsel-of-choice context, it     guns, ammunition, shootings, and re-             869 (2010) and Martinez v.
    is error to deprive a defendant of       lated subjects, and elicited defendant‘s         State, 416 Md. 418, 7 A.3d 56
    his chosen counsel even if substi-       admission that he had written them.              (2010).‖ Slip op. at 21.
    tute counsel does a good job and         Finding error, the Court wrote:
    the trial is generally fair.                       1. The abuse of discretion         INSTRUCTIONS
         6. It is not necessary that a             standard does not always apply to
    statement be under oath for it to              cross-examination issues, because      Arthur v. State, #90 COA 2010,
    come within the Confrontation                  ―…the trial court does not have        7/13/11
    Clause. A forensic report concern-             discretion to permit cross-            According to State‘s witnesses, an offi-
    ing seized evidence, prepared at               examination that is harassing,         cer driving a patrol car believed that
    the request of the police, is likely           unfairly prejudicial, confusing, or    Arthur threw a newspaper at the vehi-
    to be testimonial whether or not it            unduly repetitive.‖ Slip op. at 9.     cle. He got out of the car and ap-
    was made under oath.                           The risk of unfair prejudice is par-   proached Arthur, who yelled ―get the
         7. ―[T]he Confrontation                   ticularly acute where the accused      fuck away from me,‖ ―leave me the
    Clause imposes a burden on the                 is made to appear as a person          fuck alone,‖ and the like. The officer
    prosecution to present its wit-                who generally merits punishment.       told him to lower his voice and settle
    nesses, not on the defendant to                    2. Evidence of the defendant‘s     down, but he continued to yell. The
    bring those adverse witnesses into             written words is likely to be ad-      officer told Arthur he was under arrest
    court.‖ Slip op. at 17, quoting                missible where it reflects actual      and put a hand on his shirt. Arthur
    prior Supreme Court authority.                 facts (e.g., references to putting a   tried to pull away, and continued
    Therefore, if the solution to the              body in the trunk of a car in a        ―kicking and pulling‖ as three officers
    problem is to have a second ana-               murder case where the victim‘s         took him to the ground. Defense wit-
    lyst repeat the test, the onus is on           body was recovered from a car          nesses testified that when approached
    the prosecution to get that accom-             trunk), but not where the words        by the officer, Arthur merely asked
    plished.                                       are fictional. Here, there was no      why he was being arrested, and was
         8. The burden imposed by                  showing that the lyrics were           thrown to the ground for no reason.
    requiring the analyst to testify is            statements of autobiographical         Arthur himself denied yelling obsceni-
    reduced by ―notice and demand‖                 fact.                                  ties, adding that he threw the newspa-
    statutes pursuant to which defen-                  3. Defendant‘s direct testi-       per to a friend, not at the police car.
    dants will frequently prefer that              mony that he did not possess or        The trial judge instructed the jury on
    the analyst not testify and acqui-             have access to guns did not open       the elements of resisting arrest, but
    esce in the admission of documen-              the door to evidence of rap lyrics     refused to instruct concerning the right
    tary evidence instead. The Court               probative of no issue other than a     to resist an unlawful arrest. Arthur
    further noted that some 95% of                 propensity for violence.               was convicted of resisting and of fail-
    convictions are obtained by guilty                 4. It would have been permis-                           (Continued on page 19)
                                                                                                                 PAGE 19

APPELLATE DECISIONS
(Continued from page 18)                         the dissent‘s view that if the de-        thority of the appellate courts to
                                                 fendant is convicted of both the          recognize them as plain error.
ure to obey a lawful order. Reversing,           crime for which the officer ar-           Such error must be ―compelling,‖
the Court wrote:                                 rested him and resisting, it be-          ―extraordinary,‖ ―exceptional,‖
         1. An argument that an offi-            comes irrelevant whether the jury         ―fundamental,‖ or the like. Slip
     cer‘s conduct infringed a defen-            was instructed on the right to re-        op. at 9. Relevant factors include
     dant‘s protected speech goes to             sist because guilt of the underly-        materiality and lawyerly diligence:
     the sufficiency of the evidence,            ing crime extinguishes that right.)       was the failure to object based on
     and therefore must be made to                                                         trial tactics or ―inattention?‖
     the trial court in order to preserve    Savoy v. State, 420 Md. 232                       3. Prospectively from 2006,
     it for appellate review. Here, that     (2011)                                        trial judges have been required
     was not done.                           The trial court (at a 1994 trial) pro-        to propound MPJI-CR 2:02. That,
         2. However, the court erred in      pounded a ―reasonable doubt‖ instruc-         however, does not affect the pro-
     refusing to instruct the jury on        tion which couched the State‘s burden         priety of an instruction given in
     the right to resist an unlawful ar-     in terms of proof to a ―moral cer-            1994.
     rest. The defendant‘s burden in         tainty,‖ meaning not to a mathematical            4. Here, the instruction was
     requesting a jury instruction upon      certainty, but rather ―a certainty based      constitutionally deficient. It in-
     a particular theory is a ―fairly low‖   upon convincing grounds of probabil-          cluded the words ―convincing
     one, slip op. at 13 – there need        ity.‖ Additionally, the instruction failed    grounds of probability‖ without
     only be ―some evidence‖ suppor-         to inform the jurors that their level of      language assuring that the jury
     tive of the theory, it does not         conviction must be ―without reserva-          would not convict if guilt were
     matter where that evidence              tion‖ in order to return a guilty verdict.    merely ―probable.‖ That alone
     comes from, and contrary evi-           Trial counsel did not object, and the         was sufficient to disapprove the
     dence however strong does not           issue was not raised on direct appeal.        instruction. It also included the
     defeat the right to an instruction.     A post-conviction court found ineffec-        discredited concept of ―moral cer-
     Here, if the defense witnesses          tive assistance of both trial and appel-      tainty.‖ While omission of the
     were believed, there was no rea-        late counsel. The Court of Special Ap-        ―without reservation‖ language
     son for the officer to arrest Ar-       peals found ineffective assistance only       alone is not reversible error, the
     thur.                                   of appellate counsel for not raising the      jury should be told that in order
         3. Here, the majority appears       issue, but in the resulting belated ap-       to convict, it must be as certain
     to have found two distinct errors       peal affirmed the conviction. Revers-         as it would need to be to act
     in the instructions. It should not      ing, the Court of Appeals wrote:              without reservation in its im-
     have instructed that the officer                  1. While a ―constitutionally-       portant affairs. In sum, the pro-
     needed only ―reasonable grounds‖              deficient‖ reasonable doubt in-         pounding of the instruction was
     to justify the arrest when in fact            struction constitutes ―structural       constitutional and thus structural
     probable cause was required; for              error,‖ that fact only immunizes it     error, plain and material to the
     this reason the instruction defin-            from harmless error review –            right to a fair trial.
     ing resisting arrest did not ―fairly          prejudice is presumed. It does              5. This is an appropriate case
     cover‖ the matter of the right of a           not render inapplicable the gen-        for the discretionary exercise of
     defendant to resist an unlawful               eral rule that an error must be         plain error review. The error was
     arrest. And second, the jury was              objected to in the trial court in       serious and presumptively preju-
     never told that a right to resist             order to preserve it for appellate      dicial, and the failure to object
     exists: ―A reasonable juror, with-            review. Further, forfeiture             likely not strategic. Finally, the
     out the benefit of an instruction             through non-objection does not          Maryland cases establishing that
     on this point, might believe that,            require that the defendant pro-         the instruction was erroneous had
     when a police officer tells him he            vide a personal, knowing and vol-       not yet been decided at the time
     is under arrest, he must succumb,             untary, Johnson v. Zerbst               of the initial direct appeal.
     regardless of the circumstances,              waiver of the issue.
     and wait for relief (and release)                 2. Even ―constitutional‖ and     STATUTES
     until he is taken before a judicial           ―fundamental‖ errors must be
     officer.‖ Slip op. at 16. (Note:              objected to. If not, they are gen- Evans v. State, #72 COA 2010,
     The majority implicitly rejected              erally waived, subject to the au-                    (Continued on page 20)
PAGE 20
                                                                       APPELLATE DECISIONS
(Continued from page 19)                     ute is part of a larger statu-         victim, etc.), and statutes which
                                             tory scheme, it is axiomatic           create multiple discrete offenses.
          6/30/11                            that the language of a pro-                3. Where a defendant pos-
     1. A court may not add language         vision is not interpreted in           sesses or issues multiple counter-
to a statute, even if the omission was       isolation; rather, we analyze          feit bills simultaneously, the issue
clearly the result of inadvertence.          the statutory scheme as a              arises as to the proper unit of
     2. Quoting from Ray v. State,           whole considering the pur-             prosecution. Determination of
410 Md. 384, 404-05 (2009), the Court        pose, aim, or policy of the            unit of prosecution is a matter of
reiterated basic principles governing        enacting body, and attempt             legislative intent. If such intent
statutory construction:                      to harmonize provisions                cannot be ascertained, the rule of
          In statutory interpreta-           dealing with the same sub-             lenity requires an outcome favor-
      tion, our primary goal is              ject so that each may be               able to the defendant. Thus, the
      always to discern the legis-           given effect.                          unit of prosecution for theft is the
      lative purpose, the ends to            Slip op. at 8.                         episode, not the number of dis-
      be accomplished, or the                                                       crete items taken during the epi-
      evils to be remedied by a          THEFT                                      sode. Held: The unit of prose-
      particular provision, be it                                                   cution for counterfeiting is the
      statutory, constitutional or       Moore v. State, 198 Md. App. 655           transaction, not the number of
      part of the Rules. We begin        (2011)                                     bills or false serial numbers in-
      our analysis by first looking      Using counterfeit money, Moore made        volved in the transaction. The
      to the normal, plain mean-         purchases or attempted to make pur-        possession of five counterfeit bills
      ing of the language of the         chases at several retail stores. For       is one crime, not five.
      statute, reading the statute       several of the transactions she was            4. Possessing and issuing
      as a whole to ensure that          convicted of a cluster of offenses, in-    counterfeit currency in a single
      no word, clause, sentence          cluding 1) theft or attempted theft, 2)    transaction comprise the ―same
      or phrase is rendered sur-         possessing counterfeit currency, and       offense‖ under the required evi-
      plusage, superfluous, mean-        3) issuing counterfeit currency. For a     dence test. The possession
      ingless or nugatory. If the        separate scheme involving the attempt      counts merge into the issuance
      language of the statute is         to deposit checks allegedly issued to      counts for sentencing purposes.
      clear and unambiguous, we          her by an insurer to cover medical ex-         5. Discussing these offenses
      need not look beyond the           penses, she was also convicted of for-     in detail in this lengthy opinion,
      statute‘s provisions and our       gery and uttering. Reversing a few of      the Court found that theft and
      analysis ends. Occasionally        Moore‘s convictions and sentences, but     issuing counterfeit currency are
      we see fit to examine ex-          affirming most, the Court wrote:           not the ―same offense‖ under the
      trinsic sources of legislative               1. Multiplicity consists in      required evidence test, and utter-
      intent merely as a check of              charging the same offense in         ing and attempted theft are simi-
      our reading of a statute‘s               more than one count. Multiplicity    larly not the ―same offense.‖
      plain language. In such                  in charging must be objected to      However, uttering merges into
      instances, we may find use-              prior to trial under Rule 4-252.     attempted theft under the rule of
      ful the context of a statute,            Multiplicity in convictions may      lenity when both are based upon
      the overall statutory                    be challenged at trial.              the same transaction.
      scheme, and archival legis-                  2. Possessing counterfeit cur-       6. The current penalty for
      lative history of relevant               rency, and ―issuing‖ the same        theft of between $100 and $1,000
      enactments. If, however,                 currency, comprise two separate      is incarceration up to 18 months.
      the language is subject to               offenses under §8-604.1 of the           7. Evidence was sufficient to
      more than one interpreta-                Crim. Law Art. In so holding, the    convict of theft and counterfeiting
      tion, it is ambiguous, and               Court discussed in some detail the   where a counterfeit bill was used
      we endeavor to resolve that              distinction between statutes         at a store on a particular day,
      ambiguity by looking to the              which proscribe a single offense     Moore was not identified as the
      statute‘s legislative history,           which may be committed in differ-    person passing the bill, but the
      case law, statutory purpose,             ent ways (e.g., a sexual offense     following day she passed an iden-
      as well as the structure of              which may be committed by            tical bill with the same serial num-
      the statute. When the stat-              force, age difference, unconscious   ber.
                                                                                                                PAGE 21
LEGO V. TWOMEY CONTINUED
(Continued from page 1)                  Court declined to delineate the applica-    cerns about the reliability of evidence
                                         ble burden of proof, which contributed      (i.e., confessions, as opposed to 4th
proving, by a preponderance of the       to a divergence of authority on that        Amendment searches), raising the
evidence, that the confession was vol-   issue. Eight years later, enter Lego,       constitutional minimum standard of
untary. Motion denied, and the con-      where the majority (over a vigorous         proof to beyond a reasonable doubt at
fession comes in.                        dissent) held that, consistent with the     suppression hearings may be the most
                                         Constitution, the prosecution need only     effective means of not only minimizing
         Who among us has not felt the   establish the voluntariness of a confes-    wrongful convictions, but also counter-
pain and frustration of this scenario?   sion by a preponderance of the evi-         ing the imbalance at suppression hear-
And to imagine that it has happened to   dence. And, eighteen years later, in        ings.    This proposed solution may
actually innocent defendants who were    Colorado v. Connelly, 479 U.S. 157          seem hopelessly simplistic, but it‘s not
later convicted and imprisoned. What     (1986), the Supreme Court both reaf-        one arbitrarily created.     In fact, I
an injustice.                            firmed Lego‘s basic holding and ex-         would submit that Lego was errone-
         A fundamental reason behind     tended it to alleged Miranda violations.    ously decided, and as a result, height-
the ease with which confessions are      The Connelly Court reasoned that a          ening the burden of proof may be con-
deemed admissible is the low standard    hearing on a Miranda violation should       stitutionally warranted.
of proof that is in place in making      require no higher burden of proof than
                                         the preponderance standard an-                      First, a focused reading of
these determinations: the preponder-                                                 Lego (and by extension, Connelly) re-
ance of evidence standard. But why is    nounced in Lego. And there it was.
                                                                                     veals that it rests in large measure on
that the applicable standard? Where                But wait—not so fast. As an       the flawed, unsupported factual as-
does that authority originate and is it a initial matter, the Lego decision is un-   sumption that a lower standard of
closed issue?                             usual in that the Court qualified its      proof does not adversely affect the
         The application of the prepon- holding with language suggesting that        reliability of jury verdicts. But the ad-
derance standard at suppression hear- it may be provisional in nature and            mission of a false or coerced confes-
ings related to confessions originates thus open to reconsideration if good          sion, more likely to occur with a low-
from an oft-overlooked and largely cause could be shown for doing so.                ered standard of proof, necessarily
unnoticed Supreme Court decision: Specifically, the Lego Court implicitly            affects the reliability of a jury verdict
Lego v. Twomey, 404 U.S. 477 (1972). invited reconsideration of its holding at       because the jury will be considering
It was in Lego that the Court held 4-3 a future time if substantial evidence         unreliable evidence in reaching that
that the preponderance standard was accumulated demonstrating that fed-              verdict. Second, the majority in Lego
adequate to safeguard defendants‘ eral constitutional rights have indeed             incorrectly conflated the principles un-
due-process rights during voluntari- been adversely affected as a result of          dergirding exclusionary rules related to
ness hearings. Upon discovering the determining admissibility by prepon-             confessions and those related to illegal
source of what has manifested into a derant evidence. And since Lego, sub-           searches, thereby failing to accord ap-
problematic area for criminal defense stantial empirical evidence has accu-          propriate deference to the innocence
lawyers, a colleague and I decided to mulated demonstrating a but-for                values served by the exclusion of in-
delve further into the Lego decision causal connection between use of the            voluntary confessions. And third, both
and noted some interesting observa- preponderance standard at suppres-               the practical realities in the courtroom
tions.                                    sion hearings in which the voluntari-      (of which we are all aware), including
                                          ness of confessions are litigated, and     the prevalence of police perjury and
         Lego, in large measure, was wrongful convictions; indeed, the low           judicial bias at suppression hearings,
borne out of the Court‘s decision in standard increases the probability of a         and subsequent technological develop-
Jackson v. Denno, 378 U.S. 368 false confession being admitted into                  ments—most notably the advent of
(1964), which held that a criminal de- evidence. As a result, it can be said         DNA testing, which has provided com-
fendant challenging the admissibility of that the Lego decision can be directly      pelling evidence that federal rights
a confession on the ground that it was linked to the convictions of numerous         have indeed suffered from determining
coerced is constitutionally entitled to actually innocent persons—thereby            admissibility by a preponderance of
―an adequate evidentiary hearing pro- adversely affecting federal constitu-          the evidence—have provided precisely
ductive of reliable results concerning tional rights and satisfying Lego‘s pre-      the ―good cause‖ that the Lego Court
the voluntariness of his confession.‖ requisite for reconsidering.                   envisioned as necessary to reconsider
Although it addressed, in general                                                    its holding. Therefore, at this time,
terms, the constitutional requirements             With that said, and as it re-
                                          lates to challenges that implicate con-                          (Continued on page 22)
of a voluntariness hearing, the Jackson
PAGE 22
                   2011 ROBERT C. HEENEY AWARD RECIPIENT:
                                      MICHELE NETHERCOTT
         On June 16, 2011, friends and               In August of 1973, the Oglala     City, SD to defend the Indians when
family gathered at the Intercontinental     Sioux Nation occupied the trading post     no one else would.
Hotel in Baltimore, Maryland, to honor      at Wounded Knee, South Dakota, the
Michele Nethercott, the 2011 recipient      sacred site of the 1890 battle in which         Locally, he was known as a
of the Robert C. Heeney Award. The          hundreds of men, women and children   ―lawyer‘s lawyer‖. At his 1981 memo-
Section of Criminal Law and Practice of     were killed by the government forces  rial service, his son Tom Heeney (a
the Maryland State Bar Association          in what history has recorded as the   renowned trial lawyer in his own right)
bestows the award annually on an in-        ―Battle of Wounded Knee‖. In the en-  had this to say about his dad: ―He be-
dividual exemplifying the highest pro-      suing standoff between the FBI and    lieved that the defense of an accused
fessional standards and achievement in      BIA police and the members of the     was the highest calling of our profes-
the field of criminal law and practice.                                           sion. He believed throughout his career
                                            Oglala Sioux Nation, the following tele-
Known nationally for her work with          gram was sent to NACDL, ―WE NEED      in the nobility of the championing and
forensics as well as the exoneration of     HELP FROM NACDL>MASSIVE PROB-         protecting of people‘s rights. In a most
Bernard Webster & Tyrone Jones, As-         LEMS OF REPRESENTING NEARLY 400       profound way, he believed, that any-
sistant Public Defender Michele Neth-       CRIMINAL DEFENDANTS CHARGED IN        time a constitutional right is ignored,
ercott is a deserving recipient of this     FEDERAL TRIBAL AND STATE COURTS       liberty dies a little…He was never
award. Past recipients of the award         IN CONNECTION WITH WOUNDED            afraid of taking on an unpopular
include Alan H. Murrell, the first Public   KNEE>STRONG LOCAL PREJUDICE           cause. That never bothered him. To
Defender for the state of Maryland.         AGAINST INDIANS.                      him the practice of law was a proud
The award is named for the late                                                   calling. He practiced it like a religion.
Robert C. Heeney, a true champion of                 Bob Heeney went to Wounded He practiced it with skill, integrity and
justice, who practiced in Rockville,        Knee and subsequently rallied dozens humor‖.
Maryland for many years.                    of lawyers from across the nation who
                                            at their own expense went to Rapid    Bob Heeney was one of a kind. So is
                                                                                  Michele Nethercott. Congratulations,
                                                                                  Michele!




                           LEGO V. TWOMEY CONTINUED
(Continued from page 21)                    trenches. Something must be done to        membership may, perhaps, make a
                                            ebb the tide of suppression hearings       difference. Naturally, it is an uphill
perhaps Lego is no longer legally im-       becoming nothing short of a rubber         battle. But that‘s why we love doing
mobile.                                     stamp. One way to strike back is to        what we do.
                                            advocate for a heightened burden of
         As the law stands now, it is far   proof at confession-related suppres-       This piece contains excerpts
too easy for the prosecution to estab-      sion hearings, based on a challenge of     from a law review article written
lish the admissibility of confessions.      Lego. It is a crucial opinion that pro-
We know, as practitioners, that sup-
                                                                                       by Michael D. Pepson and John
                                            vides the prosecution with a major,
pression hearings can morph into dis-                                                  N. Sharifi. The article is Lego v.
                                            unjust advantage in pre-trial criminal
ingenuous charades where police per-        litigation. However, its holding is not    Twomey: THE IMPROBABLE RELA-
jury is prevalent. Motions that should      written in stone, and, fortunately, is     TIONSHIP BETWEEN AN OBSCURE
be granted are often denied. And so         open to reconsideration. Furthermore,      SUPREME COURT DECISION AND
often, it can make or break a case.         the article cited below can provide le-
But this does not have to be a continu-
                                                                                       WRONGFUL CONVICTIONS, 47 Am.
                                            gal authority in support of that argu-
ing fact of life in the criminal defense                                               Crim. L. Rev. 1185 (2010).
                                            ment, and a united front of the MCDAA
                                                                                                                   PAGE 23
DUI UPDATE CONTINUED
(Continued from page 3)                    fied alcohol-related driving offense. If     the required time period (without
                                           the driver violates the interlock restric-   credit for time served). The legislature
was convicted of any specified alcohol     tion they will be terminated from the        left unmentioned what will happen to
and/or drug-related driving offense; or    program and have to serve a new sus-         out-of-state drivers who are not eligi-
was younger than age 21 and violated       pension, which is a minimum of 45            ble to participate in the Ignition Inter-
the alcohol restriction imposed on the     days, before again being required to         lock System Program.
driver‘s license or committed the speci-   successfully complete the program for




             THE WORCESTER COUNTY BAR ASSOCIATION
   And THE MARYLAND CRIMINAL DEFENSE ATTORNEYS' ASSOCIATION
    CORDIALLY INVITES YOU TO ITS THIRTEENTH ANNUAL AUTUMN AF-
            TERNOON OF CONTINUING LEGAL EDUCATION
                                                       Presenting
     THE RIGHT TO CONFRONTATION, NOW, AND IN THE FUTURE
            Enjoy lunch, continuing legal education, cocktails and the sunset.
                      Friday, November 11, 2011, Beginning at Noon
                                  LUNCH: 12:00 to 1:00 PM
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                           COCKTAILS & SUNSET: 4:00 to 5:00 PM
                                    AT FAGER'S ISLAND
                              IN THE BAY AT OCEAN CITY, MD
                         Program: $130.00 Before October 31, 2011
                              (Lunch and Cocktails Included)
                           $150.00 Thereafter if space available.
                                To Register, please contact:
                             Worcester County Bar Association
                                       410-524-3440

                   Moderator: HON. MARY ELLEN BARBERA, Court of Appeals
                                        Speakers:
                                    GARY E. BAIR, ESQ.
                                 BYRON L. WARNKEN, ESQ.
                                HON. JOSEPH F. MURPHY, JR.
                                  NANCY S. FORSTER, ESQ.
                                SCOTT SHELLENBERGER, ESQ.
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                                  Help spread the word by encouraging your colleagues in criminal defense to join.
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