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Winter 2011 - Maryland Criminal Defense Attorneys Association

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Winter 2011 - Maryland Criminal Defense Attorneys Association Powered By Docstoc
					                               Maryland Criminal
                               Defense Attorneys’
                             Association Newsletter
www.mcdaa.org                                                                     Winter 2011—2012
                                       ahead. In thinking about this              ETHICAL BINDS WHEN A
     President’s                       message, I have decided to
                                       make a wish for all of our mem-                DEFENDANT’S

      Message                          bers. My wish for you (and for
                                       me) is to get a life. Let me tell
                                                                                   COMPETENCE TO STAND
                                                                                      TRIAL IS IN DOUBT
                                       you why . . .
                                              In December, as the                 By James N. Gaither, Attorney
                                       President of the MCDAA, I was              Grievance Commission
                                       given the privilege of speaking
                                                                                       An attorney’s obligations
                                       at one of the admission ceremo-
                                                                                  while representing a client are
                                       nies for new candidates to the
                                                                                  vast. He or she has obligations
                                       Bar, held before the Court of
                                                                                  to the client, obligations to the
                                       Appeals. I was inspired looking
                                                                                  court, and obligations to oppos-
                                       at those young lawyers about to
Get a Life . . .                                                                  ing counsel. As if that role is
                                       join the ranks of our profession.
                                                                                  not complicated enough, a law-
The holiday season is upon us.         I was excited for them and
                                                                                  yer must always be actively
A time when people the world           reminiscent about the beginning
                                                                                  aware of the possibility that the
over wish each other good tid-         of my own career in law.
                                                                                  client may not be competent
ings, reflect on years past and
                                               In preparing to address            during the representation or
contemplate what may lie
                                       the candidates, I had the oppor-           that the client’s competence has
                                       tunity to reflect on the work that         diminished since the commence-
                                       we do and to contemplate the               ment of the representation.
IN THIS ISSUE                          importance of the field we have            When the client begins to ex-
PRESIDENT’S MESSAGE               1    chosen. It is a great honor to             hibit behavior that appears to be
                                       defend the accused and to seek             irrational or suggests that the
COMPETENCE TO STAND TRIAL         1
                                       justice in our daily work. In the          client is mentally unstable, the
ANNOUNCEMENTS                     2    hustle and bustle of busy court            attorney is faced with even
2011-2012 OFFICERS                2    calendars and heavy caseloads,             greater difficulties in determin-
                                       we sometimes forget that we                ing whether or not the attorney
NON-TESTIMONIAL STATEMENTS        3
                                       stand as a check on the power              should disclose the client’s con-
SUMMARIES OF MARYLAND                  of the government, and our cli-            dition to the court and to what
APPELLATE DECISIONS               4
                                       ents look to us for wisdom,                extent that condition should be
FIRST AMENDMENT                    5   guidance, comfort and advo-                disclosed. All the while, the at-
SAVE THE DATE                     10                      (Continued on page 6)
                                                                                                    (Continued on page 8)
                                                      Caeb Colravy has moved:
                                                       Colravy Law Firm, LLC
                                                         2141 P Street NW
Steven Levin and Chad Curlett are
                                                             Suite 103
happy to announce the opening of
 Levin & Curlett LLC, a litigation                     Washington, DC 20037
 boutique law firm with offices in                     caeb@colravylaw.com
  Maryland and Washington DC.
                                                      Congratulations to the
       Levin & Curlett LLC                          MCDAA members who were
        250 W. Pratt Street                          recently appointed to the
            Suite 1300                                        bench:
   Baltimore, Maryland 21201
  Phone: 410.545.5871 (direct)
        Fax: 410.685.2222                                   Anne Albright
 Email: slevin@LevinCurlett.com                              Gary Bair
Email: ccurlett@LevinCurlett.com                           David Densford
  Web: www.LevinCurlett.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: Vacancy
    6301 Ivy Lane, Suite 419,               Second Vice President: Mary Pizzo
     Greenbelt, MD 20770,                      Phone: 410-480-7777
       Tel (301) 220-2440
                                               mpizzo@opd.state.md.us
       Fax (301) 220-3547
  E-mail: debra@debrasaltz.com              Secretary: Peter Wimbrow
                                               Phone: 410-524-3440
  Statements or opinions expressed             wimbrowlaw@beachin.net
herein are those of the authors and do
  not necessarily reflect those of the
                                            Treasurer: Andrew Alpert
MCDAA, its officers, Directors, or of the      Phone: 301-262-7005
                Editor.                        alpert@dcmdlaw.com
                                                                                                                      PAGE 3
             BRUTON, CRAWFORD,                                  AND       NON-TESTIMONIAL
                                                   STATEMENTS
By Andrew Jezic                              tion Clause does not apply to state-       anced analysis of the interplay be-
                                             ments by an out-of-court declarant.”9      tween Bruton, Crawford, the Rules of
         At a joint trial, what is the im-            The vector of recent decisions    Criminal Procedure, and the Rules of
pact of Crawford on non-testimonial co       is to take such non-testimonial admis-     Evidence. The Thomas Court consid-
-defendant statements which are not          sions/confessions out of the purview of    ered many issues in a joint trial of two
admitted against the defendant? 1 Be-        Bruton. However, there have been no        defendants, Thomas and Herndon, for
fore the Crawford decision, courts           Maryland cases dealing with the im-        the mistaken-identity, pre-meditated
regularly applied Bruton/Marsh/Gray          pact of Crawford upon Bruton’s re-         murder at the Sursum Corda housing
principles to such statements.2 If the       quirements, until 2011 when the Court      complex in the District. Among those
statement facially implicated the de-        of Appeals mentioned the subject in        issues were four statements, one by
fendant, courts would require either         passing in the unusual case of Morris      defendant Herndon to his girlfriend, 17
that it not be admitted at a joint trial,    v. State.10The Fourth Circuit in 2010,     and three by defendant Thomas: one
even with a proper jury instruction, or      however,      considered one multiple-     to his brother’s girlfriend,18 a second to
that it be properly redacted.                defendant case that originated in          an acquaintance, Bell, with whom he
         After Crawford, courts have         Prince George’s County, United States      was hanging out,19 and the third, to
regularly held that the Sixth Amend-         v. Lighty.11 Among the many issues         Danny Winston, who was in a holding
ment Right of Confrontation does not         examined in Lighty, a federal death        cell with him while both were awaiting
apply to non-testimonial statements,3        penalty case involving a kidnapping        further hearings.20
and have admitted co-defendants’             and murder, was a non-testifying de-                The first two statements were
statements to wives, friends, and            clarant’s non-testimonial statement12      admitted at trial directly against both
wired jail-house cellmates, without          ruled admissible only against its          defendants, against the declarant as
applying the Bruton/Marsh/Gray re-           maker, one of the defendants.              an admission of a party opponent, and
quirements.4 A reason frequently given                The Fourth Circuit carefully      against the other defendant, as a
by courts is that since the Sixth            reviewed the adequacy of the redac-        statement made against the decla-
Amendment Right of Confrontation, as         tion of that statement, which the trial    rant’s penal interest. No limiting jury
interpreted in Crawford and Davis,           court had ordered in order to protect      instructions were given. The third
does not apply to non-testimonial            the Confrontation right of the co-         statement was admitted directly at trial
statements and since Bruton is based         defendant Flood. The Lighty Court ap-      only against the maker, Thomas; the
upon that Confrontation right, Bruton        plied the principles from Bruton,          judge gave a limiting instruction. The
does not apply to non-testimonial            Marsh, and Gray, and found that the        fourth statement to Winston was ad-
statements.5                                 redaction, which had replaced the          mitted against Thomas directly, but
         Such was the conclusion of the      names of the three suspects with neu-      not against Herndon. This statement
Tenth Circuit in 2010 in United States       tral pronouns13and had only implicated     had been proffered directly against
v. Smalls,6 in which the Court stated:       the co-defendant inferentially from        Herndon, as a statement against penal
“the Bruton rule, like the Confrontation     other evidence, did not violate the co-    interest, but because it shifted blame,
Clause upon which it is premised, does       defendant Flood’s Confrontational          the trial judge denied that motion and
not apply to nontestimonial hearsay          Right.14 There was no discussion in        allowed it only against Thomas. The
statements.”7 Similarly in 2010 in           Lighty of Crawford or Davis, decided       trial court also required that it be re-
United States v. Dale,8a joint trial in-     more than five years earlier.15 There      dacted to eliminate any directly incul-
volving the admission of a tape-             was also no discussion of whether          patory inference against Herndon, and
recording of defendant Dale’s conver-        Lighty’s statement was non -               again gave an appropriate limiting in-
sation with a wired inmate, the co-          testimonial, although as a casual com-     struction to the jury. Each defendant
defendant Johnson argued that allow-         ment to an acquaintance, that deter-       appealed the admission of the out-of-
ing the jury to hear the recording was       mination would be clear-cut. At least      court statements of the other.
a violation of Bruton. The Eighth Cir-       implicit in Lighty is the presupposition            The Court’s analysis in Thomas
cuit held that the admission of the re-      that Bruton applies to a non-testifying    is illuminating. After summarizing the
cording did not violate the co-              co-defendant's non-testimonial state-      requirements of        Bruton and Craw-
defendant Johnson’s confrontation            ment.                                      ford, the Court discussed the impact of
rights because Dale’s taped conversa-                 In 2009 in Thomas v. United       the District of Columbia Superior Court
tion was a non-testimonial statement,        States,16 the District of Columbia Court   Rule of Criminal Procedure, Rule 14,
and “it is now clear that the Confronta-     of Appeals gave a detailed and nu-                                (Continued on page 7)
PAGE 4

        SUMMARIES                  OF      MARYLAND APPELLATE DECISIONS
    By Michael R. Braudes,                 “NARCOTICS & PARAPHERNALIS”                          10.     Admissibility of a cli-
           Esquire                         and “CHARGING DOCUMENT.”                    ent’s gang affiliation is subject to the
                                                                                       multi-layered analysis of “other-crimes”
                                                     5.       The concept of a rea- evidence of Rule 5-404(b). Wimbish
     Office of the Public                  sonable expectation of privacy, central v. State, under “EVIDENCE.”
     Defender, Appellate                   to both standing to complain about an
           Division                        illegal search and seizure as well as                11.     The favorable-to-the-
                                           the Fourth Amendment merits, is thor- defense “some evidence” rule, entitling
                                           oughly discussed in McGurk v. State, the defense to jury instructions upon
    Issues of Current Interest             under “SEARCH & SEIZURE.”                   such theories as self-defense and the
         1.      The question of                                                       rule of provocation if “some evidence”
                                                     6.       A judge at a bench (however overwhelmed by contrary
whether a suspect in custody has in-       trial may not render verdicts that are evidence) supports the theory, was
voked the right to counsel with suffi-     either legally or factually inconsistent. reaffirmed by the Court of Appeals in
cient clarity to require that interroga-   A jury may not return legally inconsis- Wilson v. State, summarized under
tion cease was discussed in helpful        tent verdicts, while an influential Court “INSTRUCTIONS.”
detail in Ballard v. State, summa-         of Appeals concurrence argues that
rized under “CONFESSIONS.”                 factually inconsistent jury verdicts are             12.     Without more, ap-
         2.       A person who at-         permissible. In re Antonette H., proaching a cashier and saying “Don’t
tempts to avoid pursuit by the police      summarized under “VERDICT.” say nothing,” and then walking off with
by first failing to stop a vehicle when    Adopting that concurrence as a holding the cash register drawer handed over
directed to, and then “bailing out” and    is McNeal v. State, under the same by the cashier, does not establish the
fleeing on foot, commits only a single     category.                                   requisite force, threat, or intimidation
offense.      The important issue of                                                   necessary to sustain a conviction for
                                                     7.       The Court of Appeals robbery. Spencer v. State, summa-
whether a statute creates multiple of-     has revisited the “very important fac- rized under that topic.
fenses, or a single offense which can      tor” of unnecessary delay in taking an
be committed in multiple ways, is the      arrestee before a commissioner in ap-                13.     The contrasting rules
subject of Washington v. State,            plying the totality of the circumstances for the impeachment of a witness with
summarized under “DOUBLE JEOP-             test for the voluntariness of a state- a prior conviction on the one hand,
ARDY” and “FLEEING AND ELUD-               ment. See Moore v. State, summa- and a prior “bad act” not resulting in a
ING.” The case is also interesting for     rized under “CONFESSIONS.”                  conviction on the other, are usefully
its impact on Mr. Washington’s rela-
                                                                                       discussed in Thomas v. State, under
tionship with his father. He finished                8.       Trial lawyers are re-
                                                                                       “WITNESSES.”
his fleeing by entering his father’s       minded of the importance of accurately
house with a police officer in pursuit.    apprising non-citizens pleading guilty               14.     The (very) big news
The father pushed him back out the         o f t h e p o t e n t i a l i m m i g r a - this month is the Court of Appeals’
door, saying “Here he is.”                 tion/deportation consequences of the opinion in DeWolfe v. Richmond,
                                           plea. Denisyuk v. State, summa- which will be summarized next month
       3.       As always, the latest      r i z e d u n d e r “ C O U NS E L ” a n d under “COUNSEL.” It holds that,
nuances of post-Crawford v. Wash-          “GUILTY PLEA,” and finding the Su- effective immediately, arrestees have a
ington confrontation clause jurispru-      preme Court’s decision in Padilla v. right to OPD counsel at a first appear-
dence came before the courts. See          Kentucky applicable to all guilty pleas ance before a district court commis-
Derr v. State, Cox v. State and            from 1997 forward.                          sioner during the determination re-
Langley       v.   State, under
                                                                                       specting pretrial release and the set-
“EVIDENCE.”                                          9.       Whether a mistrial
                                                                                       ting of bail. The Court refused to stay
                                           declared over defense objection raises
        4.      When may a defen-                                                      its ruling to permit all concerned to
                                           a double jeopardy bar turns upon
dant charged with a greater inclusive                                                  deal with the fiscal and administrative
                                           whether the mistrial was justified by
offense (e.g., PWID) be convicted of a                                                 impact, but perhaps not coincidentally,
                                           “manifest necessity.” That concept,
lesser included offense (e.g., simple                                                  released its opinion around the begin-
                                           and other basic rules of double jeop-
possession) which has not been ex-                                                     ning of the legislative session. There
                                           ardy law, are discussed in Mansfield
pressly charged? See Williams v.                                                       will no doubt be important communica-
                                           v. State, under “DOUBLE JEOP-
State, summarized under                    ARDY.”                                                            (Continued on page 15)
                                                                                                                  PAGE 5
                          USING THE FIRST AMENDMENT AGAINST THE
                            CRIMINALIZATION OF FREE EXPRESSION
By Jon Katz                                Amendment law to them, both credibly 2729 (2011)), videotaping animal cru-
                                           and persuasively.                         elty (United States v. Stevens, 130
         Beware when a judge sees the                                                S.Ct. 1577 (2010)), and sending email
First Amendment’s free speech clause                 Many prosecutions strike at     spam (Jaynes v. Virginia, 276 Va. 443,
as a hindrance to judicial administra-     free expression, with the First Amend- 666 S.E.2d 303 (2008)).
tion, perhaps emphasizing that the         ment often ready at the rescue. The
First Amendment is not absolute and        best way to be armed with the First                 As the Internet continues to
does not protect the right to cry “fire”   Amendment in criminal cases is to         dominate as a communications me-
in a crowded theater. (As it turns out,    know both its civil and criminal juris-   dium, prosecutions involving Internet
a Supreme Court dissenter first intro-     prudence, as the civil side can often     use will increase, including obscenity,
duced the fire-in-a-crowded-theater        get intertwined with the criminal side, child pornography, soliciting minors for
phrase. Bridges v. State of Cal., 314      including civil and criminal libel laws3, sexual activity, online copyright in-
U.S. 252, 296 (1941).)                     both civil and criminal laws geared to    fringement, email spam, online gam-
                                           hound strip clubs4 and adult video        bling, alleged terroristic communica-
         Negative judicial reactions to    stores5 6, and criminal laws applying to tions, stalking and harassment.
the First Amendment may be imper-          demonstrators who have no demon-
fectly akin to negative judicial reac-     stration permits7or who are arrested                Recently, Maryland federal
tions to Melendez-Diaz v. Massachu-        for acting disorderly. The First Amend-   trial judge Roger Titus provided an
setts, 129 S.Ct. 2527 (2009), and Bull-    ment Lawyers Association,                 excellent overview of the First Amend-
coming v. New Mexico, 131 S.Ct. 2705       http://www.firstamendmentlawyers.or ment caselaw applying to online har-
(2011), both of which substantially        g, is the best lawyers organization for assment and stalking prosecutions in
expand criminal defendants’ Sixth          staying on top of using the First         his order dismissing such a prosecu-
Amendment Confrontation Clause pro-        Amendment as a strong weapon for          tion in U.S. v. Cassidy, ___ F.Supp.2d
tections. Both Melendez-Diaz and Su-       civil liberties.                          ___ (D.Md. Dec. 15, 2011) (see the
preme Court First Amendment juris-                                                   opinion and other key pleadings at
prudence probably strike many judges                 First Amendment defenses        http://bit.ly/swbK9w.)
as individual liberty gone too far, with   apply for defending such criminal
First Amendment jurisprudence pro-         cases as obscenity (Miller v. California,           Cassidy was prosecuted under
tecting flag burning, KKK demonstra-       413 U.S. 15 (1973)), child pornogra-      18 U.S.C. § 2261A(2)(A), which pro-
tions, and non-obscene sexually ex-        phy (Ashcroft v. Free. Speech Coali-      vides that:
plicit images.                             tion, 535 U.S. 234 (2002)), soliciting           Whoever ... (2) with the intent
                                           minors for sexual activity (see Ashcroft       … (A) to kill, injure, harass, or
         At least judges can catch up to   v. FSC, supra, for arguments on statu-
speed on the state of the Confronta-                                                      place under surveillance
                                           tory vagueness and overbreadth), dis-          with intent to kill, injure, har-
tion Clause merely by reading              orderly conduct (Chaplinsky v. New
Melendez-Diaz and Bullcoming and the                                                      ass, or intimidate, or
                                           Hampshire, 315 U.S. 572 (1942) and             cause substantial emotional
manageable number of lower court           Diehl v. Md. 294 Md. 466, 451 A.2d
appellate opinions interpreting those                                                     distress to a person in another
                                           115 (1982) (1982) (protecting the de-          State or tribal jurisdiction or
recent decisions. First Amendment free     fendant’s First Amendment right to say
expression jurisprudence, on the other                                                    within the special maritime
                                           “fuck you” to a police officer)), phone        and territorial jurisdiction of the
hand, is a morass of balancing tests       harassment (U.S. v. Cassidy, RWT 11-
that depend on a case’s factual allega-                                                   United States … uses the mail,
                                           091, ___ F.Supp. 2d ___ (D.Md. Dec.            any interactive computer ser-
tions and that arise from decades-old      15, 2011) (discussed infra) (Titus, J.),
tugs-of-war between the likes of Jus-                                                     vice, or any facility of interstate
                                           and stalking (Cassidy, id.).                   or foreign commerce to engage
tices Black and Douglas advocating for
particularly robust First Amendment                First Amendment defenses              in a course of conduct that
protection1 and Justice Scalia advocat-    also apply against prosecutions for           causes substantial emo-
ing for a much narrower reading of the     cross burning (R.A.V. v. St. Paul, 505        tional distress to that person
amendment2, with plenty of justices in     U.S. 377 (1992)), providing non-              or places that person in reason-
between. Trial judges generally do not     obscene erotic material to minors             able fear of the death of, or
have the time to be sufficiently up-to-    (Reno v. Am. Civil Liberties Union, 521       serious bodily injury to, any of
speed in advance on First Amendment        U.S. 844 (1997)), providing violent           the persons described in clauses
jurisprudence, leaving litigating attor-   video games to minors (Brown v. En-                            (Continued on page 12)
neys to synthesize the applicable First    tertainment Merchants Ass'n, 131 S.Ct.
PAGE 6

                                      PRESIDENT’S MESSAGE CONTINUED
(Continued from page 1)                resume than to craft a spirit.    is so easy to exist instead of
                                       But a resume is cold comfort      live.
cacy. These are some heavy             . . . when you are sad, or
                                                                             Consider the lilies of the
obligations. Sometimes we get          broke, or lonely, or when
                                                                         field. Look at the fuzz on a
lost in the responsibilities we        you’ve gotten back the test
                                                                         baby’s ear. Read in the
have undertaken and forget just        results and they are not
                                                                         backyard with the sun on
how amazing life can be and to         good. . . .
                                                                         your face. Learn to be
be grateful for the gifts of fam-
                                            So here is what I want to    happy. And think of life as a
ily, love and friendship.
                                       tell you today: Get a life, a     terminal illness because if
        I keep a speech in my          real life, not a manic pursuit    you do you will live it with
office given by Pulitzer Prize         of the next promotion, the        joy and passion, as it ought
winning author Anna Quindlen           bigger paycheck, the larger       to be lived.”
to the students of Villa Nova          house . . . Get a life where
                                                                              With these words in
University at commencement in          you notice the smell of salt
                                                                      mind, it is important to remem-
the year 2000. The speech is           water pushing itself on a
                                                                      ber that someday, sooner than
about perspective and I want to        breeze . . . a life in which
                                                                      we might think, and at a time
share some of it with you:             you stop to watch how a red
                                                                      we cannot predict, each of us is
                                       tailed hawk circles over the
         “There will be hundreds                                      going to breathe our last breath.
                                       water gap or the way a baby
    of people out there with your                                     Poof – gone – eternal dirt nap –
                                       scowls with concentration
    same degree; there will be                                        sound the gong it’s over – shuf-
                                       when she tries to pick up a
    thousands of people doing                                         fled off the mortal coil. You get
                                       cheerio with her thumb and
    what you want to do for a                                         the idea. What will be the leg-
                                       first finger. Get a life in
    living. But you will be the                                       acy we leave? A profession well
                                       which you are not alone.
    only person alive who has                                         served begins with a life well
    sole custody of your life . . .        Find people you love, and lived. We can represent our cli-
    Not just the life of your          who love you . . . It is so    ents best when we have per-
    minds, but the life of your        easy to take for granted the spective. This perspective
    heart. Not just your bank          color of the azaleas . . . the comes through a life of love,
    account, but your soul.            color of our kid’s eyes or the laughs, and a connection to
                                       way the melody in a sym-       other human beings. So don’t
        People don’t talk about
                                       phony rises and falls and dis- just sit there: Get a life!
    the soul much anymore. It
                                       appears and rises again. It
    is so much easier to write a




              HAPPY NEW YEAR!
                                                                                                                   PAGE 7

BRUTON CONTINUED
(Continued from page 3)                    used remedial measures which echo               by the jury against that co
                                           Bruton’s requirements, as modified by           -defendant. A defendant's
entitled Relief from Prejudicial Join-     Marsh and Gray, when explicitly deal-           non-testimonial out-of-
der.21The Thomas Court took a very         ing with non-testimonial hearsay state-         court statement therefore
aggressive stance towards the inter-       ments. The Court also echoed the                remains a candidate for
pretation of Rule 14, in effect, requir-   reasoning in Bruton by emphasizing              redaction (or other reme-
ing a judge to apply that rule almost in   that a jury cannot, in such circum-             dial measures) under
parallel with the requirements of          stances, follow limiting instructions.          Criminal Rule 14 unless it
Bruton. The Thomas Court relied on         Before addressing the particular state-         fits within a hearsay ex-
Carpenter v. United States,22 which        ments before it, the Thomas Court laid          ception rendering it ad-
had interpreted Rule 14, to arrive at      out its guiding scheme:                         missible against the non-
the following conclusion:                                                                  declarant co-defendant.24
        Rule 14 requires that the               The implications of Craw-
       trial court take appropriate             ford and Davis for the                         First, the Thomas Court had
       steps to minimize the                    Bruton doctrine are two-             little difficulty in holding that all four
       prejudice inherent in code-              fold. First, if a defendant's        statements were not testimonial.
       fendant confessions which                extrajudicial statement              None were given in situations approxi-
       are inadmissible against                 inculpating a co-                    mating those in Crawford or Davis.
       the nondeclarant defen-                  defendant is testimonial,            The Court sharply concluded: “It would
       dant even when the decla-                Bruton requires that it be           be ludicrous to characterize any of the
       rant is available for cross-             redacted for use in a joint          statements as a solemn declaration or
       exa mina ti on . Be ca use               trial to protect the co-             as having been made to establish past
       Bruton’s logic “applies with             defendant's Sixth Amend-             facts for use in a criminal prosecution
       equal force” in such situa-              ment rights even if the              or investigation or otherwise.”25As a
       tions, the remedial options              unredacted statement                 result, not Bruton, but the Rules of
       under Rule 14 when one                   would be a dmissible                 Evidence applied.
       defendant's extrajudicial                against the co-defendant                       Then the Court reviewed the
       statement directly incul-                under a hearsay excep-               hearsay exception cited as applicable:
       pates a co-defendant are                 tion. Second, if a defen-            the exception for statements made
       the same as under the                    dant's extrajudicial state-          against penal interest.        The Court
       Confro nta tion Cla use :                ment inculpating a co-               found that the first statement by Hern-
       “unless the government                   defendant is not testimo-            don to his girlfriend qualified as a
       agrees to ‘forego any use                nial, Bruton does not ap-            statement against interest.26 “I killed
       of the statement,’ it must               ply, because admission of            him; Keith’s gun jammed” was an ac-
       be redacted to eliminate all             the uncensored statement             knowledgement of criminal liability,
       incriminating references to              in evidence at a joint trial         and no indication of blame-shifting.
       the co-defendant, or the                 would not infringe the co-           The Court carefully followed William-
       co-defendant's motion for                defendant's Sixth Amend-             son27and parsed the second clause in
       severance must be                        ment rights, whether or              the statement: “Keith’s gun jammed.”
       granted—‘whether or not’                 not the statement fits               The Court found, in context, that this
       the defendant who made                   within a hearsay excep-              also qualified as an exception against
       the statement takes the                  tion. On the other hand,             penal interest. The statement in no
       stand and testifies.” A lim-             Crawford and Davis have              way minimized Herndon’s responsibil-
       iting instruction alone is               no comparable impact on              ity, and identified a witness, most
       not a sufficient prophy-                 the requirements of Car-             likely the only one, to Herndon being
       laxis.23                                 penter [interpreting Rule            the shooter. 28The statement as a
                                                14]. Whether or not it is            whole required no redaction and no
          The Thomas Court explicitly           testimonial, a defendant's           limiting instruction.
acknowledged that Crawford and Davis            extrajudicial statement                           Although the second state-
take the admission of non-testimonial           directly implicating a co-           ment, “him and Don were going to
hearsay out of constitutional consid-           defendant is equally sus-            finish that shit with Slush” seemed
eration. But most significantly, Thomas         ceptible to improper use                                   (Continued on page 11)
                                                                                                 PAGE 8
COMPETENCE                  CONTINUED
(Continued from page 1)                 incompetence to stand             keep the Court appraised should
                                        trial, the court shall de-        a competency issue arise in the
torney must be concerned with           termine, on evidence              future.’”).
disclosing privileged attorney-         presented on the re-
                                                                                  The need to determine
client information, professional        cord, whether the de-
                                                                          competency supersedes defense
obligations and potential rule          fendant is incompetent
                                                                          counsel’s role as advocate. See
violations, and implications such       to stand trial.
                                                                          Norma Schrock, Defense Coun-
a disclosure may have on the
                                    Thanos v. State, 330 Md. 77, 84       sel’s Role in Determining Com-
client’s case, the client’s deci-
                                    (1993). As it is a lawyer’s duty      petency to Stand Trial, 9 Geo. J.
sions about the representation,
                                    to provide a client with an in-       Legal Ethics 639 (1995-1996)1 .
and ultimately the client’s gen-
                                    formed understanding of the           The alternative would result in
eral well-being.
                                    client's legal rights and obliga-     the erosion of the competency
        It has long been ac-        tions and to explain their practi-    principle to a mere strategic de-
cepted that a person whose          cal implications, the lawyer must     cision. Id. Therefore, the law-
mental condition is such that he    determine the client’s level of       yer must first determine the ex-
lacks the capacity to understand    competence to ensure the client       tent of the client’s diminished
the nature and object of the        is truly informed so as to be         capacity, and its relevance to
proceedings against him, to con-    able to make decisions concern-       the representation, before he or
sult with counsel, and to assist    ing the lawyer’s representation.      she may continue to represent
in preparing his defense, may       See Md. Lawyer's R. Prof'l Con-       that client competently. Indeed,
not be subjected to a trial.        duct Preamble, Comment [2].           the failure of the defendant's
Drope v. Missouri, 420 U.S. 162,    See also Md. Lawyer's R. Prof'l       lawyer to explore the matter
171 (U.S. 1975). See also In re     Conduct Rule 1.2. By doing so,        and adduce evidence in court
Lakeshia M., 398 Md. 551, 556       the attorney may better under-        where there was reason for
(2007) quoting Medina v. Cali-      stand whether a client’s compe-       doubt as to the mental condition
fornia, 505 U.S. 437, 439 (1992)    tence, or lack thereof, is rele-      of the accused, constitutes a
(“It is well established that the   vant to the attorney’s represen-      denial of his right to effective
Due Process Clause of the Four-     tation and whether such infor-        assistance of counsel. Kibert v.
teenth Amendment prohibits the      mation needs to be disclosed in       Peyton, 383 F.2d 566, 569 (4th
criminal prosecution of a defen-    order to protect the client. The      Cir. 1967) (citing Owsley v. Pey-
dant who is not competent to        Court in Thanos placed signifi-       ton, 368 F.2d 1002 (4th Cir.
stand trial."). Pursuant to this    cant weight on defense coun-          1966).
constitutional rule, Maryland       sel’s role in ensuring the protec-
                                                                                 In determining compe-
Code (1982, 1990 Repl.Vol.,         tion of his or her client in situa-
                                                                          tency, the lawyer should con-
1992 Cum.Supp.) § 12-103(a) of      tions where that client suffers
                                                                          sider and balance such factors
the Health-General Article speci-   from some type of incapacity.
                                                                          as: the client’s ability to articu-
fies:                               See generally id. at 86
                                                                          late reasoning leading to a deci-
                                    (“Moreover, none of Thanos’s
      If, before or during a                                              sion; variability of state of mind
                                    three defense attorneys ever
      trial, the defendant in a                                           and ability to appreciate conse-
                                    subsequently alleged that he
      criminal case appears to                                            quences of a decision; the sub-
                                    was incompetent, despite their
      the court to be incom-                                              stantive fairness of a decision;
                                    representation shortly after be-
      petent to stand trial or                                            and the consistency of a deci-
                                    ing retained that ‘[t]he Defen-
      the defendant alleges                                                                  (Continued on page 9)
                                    dant now has counsel who can
PAGE 9
                                                        COMPETENCE                    CONTINUED
sion with the known long-term       the lawyer discretion in deciding     ests. For example, raising the
commitments and values of the       to disclose such information in       question of diminished capacity
client. In appropriate circum-      situations were protective action     could, in some circumstances,
stances, the lawyer may seek        is necessary, to the extent such      lead to proceedings for involun-
guidance from an appropriate        disclosure is necessary, even         tary commitment.); Rule 1.2(a),
diagnostician. See Rule 1.14,       when the client directs the law-      comment [4]. Therefore, it is
comment [6].         The lawyer     yer to the contrary.          Id.     equally important for an attor-
should heed warning, however,       (Emphasis supplied).       As the     ney to consider the possible
at the difficulty of assessing a    Rule provides, these disclosures      consequence(s) of a disclosure,
client’s true mental competency     could include consulting with         especially in cases where the
during trial, especially when the   individuals or entities that have     ultimate issue at trial is rela-
client otherwise exhibited nor-     the ability to take action to pro-    tively trivial compared to the po-
mal mental competence earlier       tect the client and, in appropri-     tential adversities that a disclo-
in the representation. See Pate     ate cases, seeking the appoint-       sure would create for the client.
v. Robinson, 383 U.S. 375, 387      ment of a guardian ad litem,
                                                                                     Ultimately, a lawyer
(1966) (noting the difficulty of    conservator, or guardian. Id.
                                                                          should err on the side of caution
determining competency retro-       Subsection (c) goes a step fur-
                                                                          when disclosing the client’s con-
spectively, stating “the jury       ther to address the obvious im-
                                                                          dition to the court. If a lawyer
would not be able to observe        plications of Rule 1.6(a)2, and
                                                                          decides that (1) the client is in-
the subject of their inquiry, and   states that the lawyer is impli-
                                                                          competent, (2) that incompe-
expert witnesses would have to      edly authorized under Rule
                                                                          tency will adversely affect the
testify solely from information     1.6(a) to reveal information
                                                                          client’s case (in making deci-
contained in the printed re-        about the client, but only to the
                                                                          sions or otherwise), and (3) the
cord.”).                            extent reasonably necessary to
                                                                          consequences of disclosure do
                                    protect the client's interests.
        When, based on his or                                             not engulf the potential liability
her professional judgment, it is           However, issues can arise      in the underlying matter, the
concluded that the client suffers   in situations where it may not        lawyer should disclose as little
from a diminished capacity, the     be in the client’s best interest to   as is necessary to further the
language provided in Rule           disclose incompetency.         See    purpose of disclosure. Assum-
1.14(a) states that the lawyer      Schrock, 9 Geo. J. Legal Ethics       ing the aforementioned precau-
should attempt to maintain a        639 (citing, e.g., U.S. v. Sahhar,    tions and steps have been
normal attorney-client relation-    56 F.3d 1026 (9th Cir. 1995)          taken, if the lawyer reveals con-
ship to the extent that the same    (Raising the issue of incompe-        fidential information with a rea-
is possible, as the Maryland        tency may result in the civil         sonable belief that the same
Rules of Professional Conduct       commitment of the defendant,          was necessary to protect the
specifically provide that unless    and institutionalization under        client, that lawyer is not in viola-
the lawyer is authorized to dis-    this guise may exceed the maxi-       tion of the general prohibition
close the client’s diminished ca-   mum sentence of the underlying        against disclosure and is not
pacity, the lawyer may not dis-     crime). See also Rule 1.14 of         subject to professional disci-
close such information pursuant     the Maryland Lawyers’ Rules of        pline. Harris v. Baltimore Sun
to Rule 1.6. See Rule 1.14,         Professional Conduct, comment         Co., 330 Md. 595, 603 (1993)
comment [8]. The rules carve        [8]. (A disclosure of the client's    (“Under the structure of MR 1.6,
out an exception, that being        diminished capacity could ad-         the lawyer who reveals confi-
found in Rule 1.14(b), that give    versely affect the client's inter-    dential information, reasonably
PAGE 10

                                                         COMPETENCE                     CONTINUED

(Continued from page 9)               sary to protect the client and/or    App. 347 (1986) (discussing
                                      how much to disclose, the law-       duty of court and counsel to
believing the revelation to be        yer may always choose to con-        identify whether a client is in-
necessary in order to comply          tinue to protect such informa-       competent to stand trial).
with other law, is not in violation   tion, as Rule 1.6(b) is permis-      1
                                                                            http://heinonline.org/HOL/Page?handl
of the general prohibition            sive. Harris, id. Failure to re-     e=hein.journals/geojlege9&div=28&g_
against disclosure and is not         veal that which may be re-           sent=1&collection=journals.
subject to professional disci-        vealed, as opposed to that           2
                                                                             Rule 1.6. Confidentiality of Informa-
pline.”).                             which must be revealed, is not a     tion. (a) A lawyer shall not reveal in-
                                      basis for disciplinary action. At-   formation relating to representation of
Alternatively, if the lawyer is un-
                                      t’y Griev. Comm’n. v. Rohrback,      a client unless the client gives in-
comfortable with the disclosure,                                           formed consent, the disclosure is impli-
                                      323 Md. 79, 96 (1991). Also,
or cannot otherwise determine                                              edly authorized in order to carry out
                                      see generally Thanos, supra;
whether the disclosure is neces-                                           the representation, or the disclosure is
                                      Johnson, Jr. v. Maryland, 67 Md.     permitted by paragraph (b).




              Save the date:
          MCDAA Dinner Meeting
             February 27, 2012
                 6:00 pm
            Scossa Restaurant
        8 North Washington Street,
          Easton, MD 21601-3126
              (410) 822-2201
       Guest speakers: Judge Daniel
     Mumford and Judge Ricardo Zwaig
                                                                                                                       PAGE 11

BRUTON CONTINUED
(Continued from page 7)                               The major significance of Tho-
                                            mas is not in the particular assessment               Maryland cases do not include
clearly to indicate declarant Thomas’       of each of these statements. Rather it      so commanding a precedent for inter-
intent to avenge the death of Slush,        is the application of the evidentiary       preting the Rules of Evidence as the
the Court held that, because the asser-     rules in a manner resonant with the         District of Columbia has in Thomas and
tion ambiguously referred to possible       concerns of Bruton. The concern in          Carpenter. But Maryland courts must
future action,29 it was not against Tho-    Bruton was with the harmful impact on       share the same concern - that a co-
mas’ penal interest at the time it was      a jury of a co-defendant’s statement        defendant’s statement can create a
uttered.30The Court agreed with the         acknowledging a role in the crime, and      great risk of a jury using inadmissible
prosecution that the non-testimonial        did not address the question of the         evidence against a defendant. What
statement was credible and had sup-         reliability of hearsay statements.35 Tho-   sort of statement would create such a
porting corroborating evidence. But         mas and Carpenter suggest that a trial      risk?      A statement which would be
the critical issue for the Thomas Court     judge has the responsibility, in decid-     difficult, if not impossible, for a jury to
was the question: “At the time it was       ing the question of joinder or sever-       ignore would be a co-defendant’s con-
uttered. . .” did the statement tend        ance, to consider those factors high-       fession, directly implicating a defen-
“to subject the declarant to ... criminal   lighted in Cruz36 when assessing the        dant, made in the context of a state-
liability.”31 The statement was admitted    harm an inadmissible statement can          ment to a friend, a relative, or even a
in error, but the Court found the error     inflict upon the co-defendant: “the         cellmate.
harmless.32                                 likelihood that the instruction will be
           The Thomas Court’s treatment     disregarded. . .the probability that        Endnotes
of the third and fourth statements is       such disregard will have a devastating      1
most distinctive. Both statements were      effect. . .and the determinability of         For an extensive collection of non-
                                                                                        testimonial co-defendant hearsay cases
admitted only against their maker, the      these factors in advance of trial.”37
                                                                                        pre- and post-Crawford, see Collin Miller,
defendant Thomas. In regard to Tho-                   No Maryland opinions have
                                                                                        Avoiding a Confrontation? How Courts
mas’ statement to an acquaintance,          considered, after Crawford, whether,        Have Erred in Finding that Nontestimonial
Bell, that “they handled that,” the         under the Maryland Rules of Evidence,       Hearsay is Beyond the Scope of the Bruton
Court used the considerations from          any particular measures are required        Doctrine (March 15, 2011), available at
Marsh and Gray, not as controlling          to prevent or mitigate the harmful in-      SSRN: http//ssrn.com/abstract=1787563.
constitutional precedents, but as per-      fluence of a co-defendant’s non-            This section has used many of the cita-
suasive guides in interpreting the re-      testimonial statement inadmissible          tions discussed in Miller’s article, hereafter
quirements of Rule 14.33 Using those        against the defendant. But Thomas           referred to as Miller, Avoiding Confronta-
                                                                                        tion?, and more simply, as Miller. Miller
guides, the Thomas Court found that         should give attorneys and judges
                                                                                        stated his major contentions as follows:
this statement did not facially incrimi-    pause. Do the Rules regarding sever-
nate Herndon; the indefinite inclusive      ance, and for exclusion of evidence on             [A] co-defendant’s non-
pronoun did not directly implicate          the grounds of prejudice, require a                testimonial confession to a
him.34                                      court to employ the same considera-                mother, brother, or lover
           Finally, in regard to Thomas’    tions as did Bruton? 38The Thomas                  should violate the Bruton doc-
statements to Danny Winston, the            Court addressed the following ques-                trine to the same extent as a
Court carefully considered the redacted     tion, echoing the concern in Bruton:               formal co-defendant confes-
version introduced into evidence only             [W]hether the co-                            sion to a governmental agent.
                                                                                               Moreover the article asserts
directly against Thomas. By the stan-             defendant’s extrajudicial
                                                                                               that even if Crawford did de-
dards of Bruton, Marsh, and Gray, but             statements so powerfully
                                                                                               constitutionalize the Bruton
not on constitutional grounds, the                incriminated other defen-                    doctrine with regard to non-
Court upheld the admission of the                 dants (with or without exci-                 testimonial statements, courts
statement with a proper instruction of            sions) as to create a sub-                   should still find the admission
the jury. The Court concluded that,               stantial risk that a reason-                 of nontestimonial statements
even if admission of the statement                able jury would be unable                    by co-defendants that used to
with the instruction were insufficient,           to follow the court’s limiting               violate the Confrontation
the error was harmless in light of the            instructions and would con-                  Clause now, as they always
                                                                                               did, violate the rules of evi-
overwhelming evidence of Herndon’s                sider those statements in
                                                                                               dence.
guilt.                                            determining the other de-
                                                  fendants’ guilt.39                                             (Continued on page 13)
PAGE 12

                                                    FIRST AMENDMENT CONTINUED
(Continued from page 5)                     matters of public concern. See Snyder        and that many of the Defen-
                                            v. Phelps, 131 S.Ct. 1207, 1219 (2011)       dant’s statements relate to
    (i) through (iii) of subparagraph       (which I defended at the trial level on      KPC’s beliefs and A.Z.’s qualifi-
    (B) shall be punished [up to five       behalf of the Westboro Baptist Church,       cations as a leader. Thus, this
    years in prison and/or by a             whose messages are abhorrent).               statute sweeps in the type of
    fine].                                  Cassidy underlines:                          expression that the Supreme
                                                                                         Court has consistently tried to
§ 2261A(2)(A) (emphasis added).                Here, A.Z. had the ability to pro-        protect. See e.g., New York
                                               tect her “own sensibilities simply        Times Co. v. Sullivan, 376 U.S.
         Defendant William Lawrence            by averting” her eyes from the
Cassidy was accused of making such                                                       254, 271 (1964) (the fundamen-
                                               Defendant’s Blog and not looking          tal importance of the free flow
disturbing online blog and Twitter             at, or blocking his Tweets.
threats to Poolesvile, Maryland, Bud-                                                    of ideas and opinions on mat-
dhist religious leader Alyce Zeoli             In United States v. Stevens, the          ters of public concern is the core
(named “A.Z.” in the indictment, and           Supreme Court affirmed the                of the First Amendment Protec-
known as Jetsunma to her followers)            Third Circuit’s decision holding          tions, even where speech in-
as the following: (1) “want it to all be       that a content-based restriction          cludes “vehement caustic and
over soon sweetie?”, (2) “Rain tomor-          of protected speech — i.e. a fed-         sometimes unpleasantly sharp
row should cover the tracks…” and (3)          eral statute that criminalized the        attacks.”); Boos v. Barry, 485
“Got a wonderful Pearl Harbor Day              intentional creation, sale or pos-        U.S. 312, 322 (1988) (refusing
surprise for KPC [the name of Zeoli’s          session of a depiction of animal          to uphold a statute that re-
organization]....wait for it.” Cassidy.        cruelty — did not serve a com-            stricted the use of displays criti-
                                               pelling state interest on the basis       cal of foreign governments in
         His criminal case affidavit al-       that these types of content-based         front of embassies or consulates
leges that Cassidy’s tweets and blog           restrictions of protected speech          in light of a
postings “caused A.Z. substantial emo-         are presumptively invalid.
tional distress. She fears for her own                                                   “longstanding refusal to [punish
                                               [Stevens,] 130 S.Ct. 1577, 1584           speech] because the speech in
safety and that of her fellow KPC              (2010). Because the Govern-
members. As a result of the alleged                                                      question might have an emo-
                                               ment’s interest in criminalizing          tional impact on its audience.” ).
harassment, A.Z. has not left her              speech that inflicts emotional
house for a year and a half, except to         distress is not a compelling one,      Cassidy.
see her psychiatrist. A.Z. was in such         the statute does not survive strict
fear for her safety that she did not go        scrutiny...                                      On a relevant defensive side
to an October 2010 retreat.” Cassidy.                                                 note, Cassidy was first identified
                                                     Assuming, however, that          through subpoenas to Twitter, Google,
         Despite the physical harm             preventing the use of the Inter-       and Hughes Network collectively to
threatened in Cassidy’s Twitter and            net and other interactive com-         learn his Internet Protocol address (“IP
blog entries, and despite the substan-         puter services to inflict emo-         address”) and his actual identity. The
tial emotional distress his online activ-      tional distress on others quali-       Maryland Court of Appeals has already
ity allegedly caused Zeoli, Judge Titus        fies as an important governmen-        recognized a limited right to online
found 18 U.S.C. § 2261A unconstitu-            tal interest, the issue here is        anonymity to fight subpoenas to dis-
tional as applied to Cassidy’s prosecu-        whether the incidental restric-        cover the identity of alleged online
tion (declining to decide whether §            tion Section 2261A(2)(A) places        libelers. Independent Newspapers,
2261A is facially unconstitutional as to       upon speech is no greater than         Inc. v. Brodie, 407 Md. 415, 966 A.2d
online activity), applying strict First        is essential to the furtherance of     432 Md. (2009). The language of Bro-
Amendment scrutiny, with the statute           that interest. The facts of this       die can be applied to fighting govern-
being a content-based limitation on            case indicate that it does not.        ment subpoenas involving allegations
free speech. Cassidy. In so ruling,            Defendant and the Amicus, the          of online criminal harassment and
Judge Titus pointed out that complain-         Electronic Frontier Foundation,        stalking.
ant A.Z. is a public figure and that           point out that A.Z. is not merely
Cassidy’s online words –- which ex-            a private individual but rather                In sum, many judges will be
tended well beyond Cassidy’s threat-           an easily identifiable public fig-     reluctant to provide sufficient First
ening words -- included opinions about         ure that leads a religious sect,                            (Continued on page 14)
                                                                                                                                 PAGE 13

BRUTON CONTINUED
(Continued from page 11)                          tions of the trial court’s failure to grant a    killed.’ Winston was allowed to relate that
                                                  severance.                                       Thomas also said that he was not the
                                                  11
Miller’s article has helped frame the struc-          U.S. v. Lighty, 616 F.3d 321 (4th Cir.       shooter, and that the ‘the wrong per-
ture of this section, and has suggested           2010).                                           son”’was killed due to ‘mistaken identity.’”
                                                  12
many considerations.                                 It was non-testimonial because the decla-     Thomas, 978 A.2d at 1221.
2                                                                                                  21
  See, e.,g , State v. Swafford, 913 P.2d         rant Lighty was speaking casually with an           District of Columbia State Rules, Superior
196, 198 (Kan. 1996) (discussed in Miller,        acquaintance describing who was standing         Court Rules of Criminal Procedure, Rule 14.
Avoiding a Confrontation? at 41-42) (The          with him on Eighth Street when the victim        Relief From Prejudicial Joinder:
transcript of a co-defendant’s statement to       was attacked. Lighty, 616 F.3d at 340.
a cellmate wearing a wire was redacted            The Fourth Circuit, however, never dis-              If it appears that a defendant or
by replacing the other defendants’                cussed the implication of Crawford in its            the government is prejudiced by
names with blank spaces with under-               analysis.                                            a joinder of offenses or of de-
                                                  13
lining. The Supreme Court of Kansas                  Lighty, 616 F.3d at 340 n.18.                     fendants in an indictment or
                                                  14
                                                     Lighty, 616 F.3d at 376-77.                       information or by such joinder
applied Bruton: “Bruton applies to any            15
                                                      The events in Lighty, however, occurred          for trial together, the court may
extrajudicial statement by a nontestify-          in 2002. Perhaps the prosecution did not             order an election or separate
ing codefendant.” 913 P.2d at 201.                wish to complicate its argument by having            trials of counts, grant a sever-
“Bruton applies to a statement made in            to discuss whether Crawford applied, and             ance of defendants or provide
a non-custodial setting as well to a              proceeded “arguendo” that Bruton and                 whatever other relief justice
statement made to other coconspirators, if,       Gray controlled the analysis, which was the          requires. In ruling on a motion
as in this case, such statement is not made       basis for the trial judge’s rulings. But see         by a defendant for severance
during the life of, and in furtherance of, the    Dale, 614 F.3d 942, discussed above, in              the court may order the prose-
conspiracy.” Swafford, 913 P.2d at 201).          which the events occurred in 2002; the               cutor to deliver to the court for
3
   See, e.g, Thomas v. U.S., 978 A.2d             Eighth Circuit did apply Crawford.                   inspection in camera any state-
                                                  16
1211(D.C. 2009), cert. denied, 131 S.Ct.             Thomas v. U.S., 978 A.2d 1211 (D.C.               ments or confessions made by
196, 178 L.Ed. 2d (2010).                         2009).                                               the defendants which the gov-
4                                                 17
  For other instances, see Miller,                    Herndon’s statement to his girl friend:          ernment intends to introduce in
http//ssrn.com/abstract=1787563. at 43-           “Herndon told her that he and Thomas left            evidence at the trial.
45.                                               her porch, ‘went up behind the guy with
5
   Although courts often refer only to Craw-      the dreadlocks,’and ‘I [Herndon] killed him,     Sup.Ct. R. 14 is modeled on Fed. R. Crim.
ford, it is the Court’s conclusion in Bock-       Keith's [Thomas's] gun jammed.’” 978 A.2d        P. 14. The Maryland Rule dealing with
ting, reviewing Crawford, that most suc-          at 1220.                                         similar issues is Rule 4-253 (b), Prejudicial
                                                  18
cinctly restricts the scope of the Confronta-        Thomas to Jimi Stover: “him and Ron           Joinder:
tion Clause: “Under Crawford, on the other        [Flood] was going to finish that shit with
hand, the Confrontation Clause has no             Slush’s killer.” Thomas, 978 A.2d at 1220            If it appears that any party will be
                                                  19
application to such [non-testimonial] state-         After the group at Barry Farms had                prejudiced by the joinder for trial
ments and therefore permits their admis-          started to discuss the killing of Slush, their       of counts, charging documents, or
sion even if they lack indicia of reliability.”   friend, and how he was missed, Thomas                defendants, the court may, on its
Whorton v. Bockting, 549 U.S. 406, 420,           stated to Bell: “We handled that.” Thomas,           own initiative or on motion of any
127 S.Ct. 1173, 1183 (2007).                      978 A.2d at 1221.                                    party, order separate trials of
6
  605 F.3d 765 (10th Cir. 2010).                  20
                                                      Thomas to Danny Winston while waiting            counts, charging documents, or
7
  Smalls, 605 F.3d at 768 n.2.                    at the courthouse: (unredacted version)              defendants, or grant any other
8
  U.S. v. Dale, 614 F.3d 942 (8th Cir. 2010).     “he [Thomas]and Herndon had approached               relief as justice requires.
9
   Dale, 614 F. 3d at 955.                        ‘a guy with dreads, sitting with his back to
10
   Morris v. State, 418 Md. 194, 13 A.3d          them.... Ron [Herndon]ran up and shot him        Three major differences appear between
1206 (2011). Because of Morris’ peculiar          a couple times in the back. When Ron did         Carpenter's interpretation of Rule 14 and
array of issues, Judge Harrell, writing for       this, Ron did not do this alone; Keith           Maryland Rule 4-253(b). First, the Superior
the Court, described the proceedings as           [Thomas] was with him. Keith did not             Court Rule explicitly envisions a judicial
glazed “with a certain degree of opaque-          have a gun’” Thomas, 978 A.2d at 1122;           review of all statements of the defendants
ness.” Morris, 418 Md. at 198. Morris in-         (redacted version) “Thomas told Winston          in order to rule knowledgeably about sev-
volved allegations of a sham trial, a plea        he was “with someone’ on ‘a friend's rela-       erance of defendants. Second, Carpenter
agreement that had the effect of allowing         tive['s] porch’ when ‘[t]hey saw the per-        presents an authoritative interpretation of
the defendant’s testimonial statement into        son they was beefing with,’ who was wear-        Rule 14 for which there is not a Maryland
evidence, but also involved complicated           ing dreadlocks and sitting with his back to      Court’s analogue, interpreting Rule 4-
issues of preservation of a defense chal-         them. Thomas ‘left the porch”’and ‘[came]        253(b). Third, Carpenter extended the
lenge to a ruling, as well as the implica-        out from behind” the person, who then ‘got                               (Continued on page 14)
PAGE 14

                                                            FIRST AMENDMENT CONTINUED
                                                2                                              5
(Continued from page 12)                             City of Erie v. Pap's A.M., 529 U.S.       City of Los Angeles v. Alameda
                                      277, 310 (2000) (Scalia, J., concur-                     Books, Inc., 535 U.S. 425 (2002), ad-
Amendment free expression protection ring).                                                    dresses the negative secondary effects
                                      3
to those charged with speech-related    New York Times v. Sullivan, 376 U.S.                   principle, which is a disingenuous legal
crimes. This article is an effort and 254 (1964) remains the key Supreme                       fiction.
                                                                                               6
“cheat sheet” towards turning them    Court case for limiting the reach of                      City of Renton v. Playtime Theatres,
around.                               libel laws. In Dring v. Sullivan, 423 F.                 Inc., 475 U.S. 41 (1986) requires a
                                      Supp. 2d 540 (D.Md. 2006), I obtained                    sufficient number of accessible loca-
___                                   the dismissal of an online libel suit                    tions for the operation of adult enter-
Jon Katz practices criminal defense   based on the limits of long arm juris-                   tainment businesses, including when
and First Amendment defense in Mary- diction.
                                      4
                                                                                               they are zoned out of their current
land, Virginia, and Washington, D.C.    City of Erie v. Pap's A.M., 529 U.S.                   locations.
                                                                                               7
He blogs daily at                     277 (2000), reconfirms that nude per-                      Thomas v. Chicago Park Dist., 545
http://katzjustice.com/Underdog.      formance falls within the ambit of the                   U.S. 316 (2002), and FW/PBS, Inc. v.
Along with the MCDAA, Jon maintains First Amendment’s free speech clause.                      Dallas, 493 U.S. 215 (1990), prohibit
the copyright over this article.      Lawyers continue, with good reason,                      government employees and officials
                                      to argue that lap dancing also is First                  from using unbridled discretion in issu-
Endnotes:                             Amendment-protected. See “Lap                            ing permits and licenses for demon-
1
                                      Dances Find Academic Champion as                         strations, adult entertainment busi-
  New York Times v. U.S., 403 U.S.    Cities Rein in Strip Clubs,” (Bloomberg,                 nesses, and other expressive activity.
713, 720 (1971) (Douglas, J., concur- Dec. 5, 2011, http://bloom.bg/
ring, joined by Black, J.)            tFTPSv).




                                                                                     BRUTON CONTINUED
                                                27
(Continued from page 13)                           Williamson v. U.S., 512 U.S. 594, 114       erts/Crawford concern for different ways of
                                                S.Ct. 2431, 129 L.Ed.2d 476 (1994).            assessing reliability is the central thesis in
                                                28
remedial actions even beyond Bruton’s              Thomas, 978 A. 2d at 1230-31.               Colin Miller, Avoiding a Confrontation?
                                                29
requirements, by applying it even when the         “[H]im and Ron was going to finish that     How Courts Have Erred in Finding that
declarant is available for cross-               shit with Slush’s killer.” Thomas, 978 A.2d    Nontestimonial Hearsay is Beyond the
examination.      Neither defendant in Tho-     at 1220 (emphasis added).                      Scope of the Bruton Doctrine (March 15,
                                                30
mas was available; neither chose to testify.        Thomas, 978 A.2d 1231-32.                  2011), available at SSRN:
22                                              31
    Carpenter v. U.S., 430 A. 2d, 496 (D.C.        Thomas, 978 A.2d at 1231 (citing            http//ssrn.com/abstract=1787563.
                                                                                               36
1981).                                          Fed.R.Evid. 804(b)(3)).                            481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d
23                                              32
    Thomas, 978 A.2d at 1223-24 (citing             Thomas, 978 A.2d at 1232 (suggesting,      162 (1987).
                                                                                               37
Carpenter, 430 U.S. at 502).                    however, that it would have allowed the           Cruz, 481 U.S.at 193, 107 S.Ct. at 1719
24
    Thomas, 978 A.2d at 1224-25 (emphasis       statement as an expression of the decla-       (citations omitted)
                                                                                               38
added).                                         rant’s state of mind, namely, his present         The panoply of Maryland Rules involved
25
   978 A.2d at 1227.                            intent to commit a future crime. The trial     would include:, Md. Rule 5-105 Limited
26
   Thomas, 978 A.2d at 1230-31. Thomas          judge did not reach that argument of the       Admissibility; Rule 5-403 Exclusion of rele-
gives a clear exposition of the require-        prosecutor at the motions hearing. Under       vant evidence on grounds of prejudice,
ments of the applicable hearsay exception       that exception, the statement would not        confusion, or waste of time; Rule 4-253
rule in the District: Rule 803(b)(4), closely   have been admissible against Herndon, and      Joint or separate trials, especially 4-253 (c)
parallel to Md. Rule 4-804(b)(3). For a         would have required a limiting instruction).   Prejudicial joinder.
                                                33                                             39
further discussion of these rules, and the         Thomas, 978 A.2d at 1231,                      Thomas, 978 A.2d at 1233 (citations
                                                34
impact of Williamson v. United States, 512          Thomas, 978 A.2d at 1238.                  omitted).
                                                35
U.S. 594, 114 S.Ct. 2431, 129 L.Ed. 2d 476         See Cruz, 481 U.S. at 192-93, 107 S.Ct.
(1994).                                         at 1719. This distinction between Bruton’s
                                                concern for harmfulness and Rob-
                                                                                                                   PAGE 15

APPELLATE DECISIONS
(Continued from page 4)                    possible gang connotations must famil- death. Flores remained in his car.
                                           iarize themselves with Gutierrez v. Castillo walked toward the field, and
tions from Administration on the rami- State, under “EVIDENCE.”                     testified inconsistently as to whether
fications of this large increase in OPD’s                                           he functioned as a lookout. At trial,
responsibilities.                                    18.    The same Court has the judge refused to instruct that Flo-
                                           reiterated that a “CSI Instruction” to res and Castillo were accomplices as a
          15.     The Court of Appeals the effect that there is no legal re- matter of law, instead instructing that
has recognized the right of the defen- quirement that the State employ any it was for the jury to decide whether
dant to delay deciding whether to tes- particular investigative technique or they were accomplices, and if so
tify until all of the other defense wit- scientific test will frequently be error. whether their testimony was corrobo-
nesses have testified. A trial judge Stabb v. State, summarized under rated. Finding no error, the Court
therefore errs in requiring the defen- “INSTRUCTIONS.” Such instructions wrote:
dant to testify or waive the right to should always be objected to, as im-
testify prior to the testimony of all proper comments on the evidence un- 1. In order to be an accomplice, one
other defense witnesses. Stoddard v. dermining the State’s burden.                      must “participate in the commis-
State, summarized under                                                                 sion of a crime knowingly, volun-
                                                     19.    The relatively new          tarily, and with common criminal
“WITNESSES.” On a different issue,
                                           remedy known as a “petition for writ of      intent with the principal offender,
the same opinion holds that evidence
                                           actual innocence” has received its first     or must in some way advocate or
of a defendant’s prior “bad acts” di-
                                           detailed analysis from the Court of Ap-      encourage the commission of the
rected toward a State’s witness is ad-
                                           peals. Douglas & Curtis v. State,            crime.” Slip op. at 10, quoting
missible to show why that witness has
                                           under “POST-CONVICTION.”                     Raines v. State, 326 Md. 582,
changed his or her testimony or state-
ment to police without the need to ACCOMPLICE LIABILITY                                 597 (1992). The “test” is “whether
satisfy the evidentiary hurdles applica-                                                the witness could be indicted
ble to “other crimes” evidence under Silva v. State, 422 Md. 17, 28 A.3d                and/or punished for the crime
Rule 5-404(b). This latter issue is 1226 (2011)                                         charged against the defendant.”
summarized under “EVIDENCE.”                                                            Slip op. at 11.
                                           A group of MS-13 gang members, in-
          16.     The doctrine of collat- cluding Silva, plus Flores and Castillo, 2. If the evidence is so clear that a
eral estoppel may be invoked by the went together to a nightclub. There,                witness either is or is not an ac-
defense to preclude the State from         they encountered two members of a            complice that reasonable minds
seeking to prove a material “fact”         rival gang known as “18th Street.” MS-       cannot differ, the determination
where the factfinder necessarily found     13 rules required that members of 18th       should be made by the judge as a
the opposite in an earlier trial. In       Street be attacked.      At issue was        matter of law. If on the other
State v. Allen, summarized under           whether Flores and Castillo were ac-         hand the evidence permits either
“DOUBLE JEOPARDY,” the Court of            complices as a matter of law in the          conclusion, then the determination
Appeals held that collateral estoppel      ensuing homicides, and whose testi-          is for the jury, under proper in-
may not be used offensively by the         mony therefore required corroboration.       structions.
State. Thus if the factfinder at an        The entire group, including the two
                                              th                                    3. Castillo’s inconsistent statements
earlier trial necessarily found a fact in 18 Street soon-to-be victims, left the
                                                                                        as to foreknowledge of the mur-
the State’s favor, and a retrial is neces- club in two cars. The MS-13 members
                                                                                        ders and role as lookout preclude a
sitated by appellate reversal or post- had already decided to stab to death
                                                   th                                   finding that he was an accomplice
conviction relief, the judge at the re- the 18 Street members, but Castillo
                                                                                        as a matter of law. The trial court
trial may not simply instruct the jury and Flores claimed not to have been
                                                                                        correctly left it to the jury to de-
that the issue has been resolved in the aware of the plan, and they did not
                                                                                        cide.
State’s favor. Instead, the State must actually stab the victims. A car driven
– if it can – prove it again.              by Flores, carrying inter alia both vic- 4. While Flores drove the principals
                                           tims, and a second car driven by a           from the scene after becoming
          17.     The Court of Appeals conceded accomplice, drove to a
                                                                                        aware of at least one of the mur-
has developed a new analytic frame- school athletic field. Upon arrival, the
                                                                                        ders, the record is inconsistent as
work for the admissibility of evidence victims were removed from Flores’ car,
                                                                                        to whether he did so voluntarily, or
that an offense was gang-related. taken into the field, and stabbed to
Lawyers preparing to try a case with                                                                       (Continued on page 16)
PAGE 16

                                                                            APPELLATE DECISIONS
(Continued from page 15)                     ing on the question of whether the         medical records. Disputes arose as to
                                             State could prove such a DNA-based         whether those records were privileged
    in fear for his life. It was for the     link. The trial judge refused to con-      and the extent to which the State
    jury to decide whether his partici-      duct the hearing, and the defense          would have access to them, and the
    pation was voluntary, thus estab-        noted an immediate interlocutory ap-       trial judge ultimately ruled that there
    lishing his role as accomplice. The      peal. Dismissing that appeal, the          was no unwaived privilege, that treat-
    ambiguity precluded the judge            Court wrote:                               ment records were inextricably inter-
    from finding he was an accomplice        1. An appeal generally lies only from      twined with evaluation records, and
    as a matter of law.                            a final judgment. In a criminal      that everything would be made avail-
                                                   case, a final judgment is brought    able to both sides. Further, his treat-
5. That MS-13 would not allow a non-               about by the imposition of sen-      ing physician would be permitted to
   member to participate with mem-                 tence.                               testify. The defendant appealed to the
   bers in a murder operation, or that       2. A narrow exception to the final         Court of Special Appeals, which dis-
   the gang is known to use recruits               judgment rule is the collateral      missed the appeal because there was
   as lookouts and getaway drivers,                order doctrine, which applies to a   no final judgment and it found the col-
   permits an inference that Castillo              ruling that: “(1) conclusively de-   lateral order doctrine to be inapplica-
   and Flores were accomplices, but                termines the disputed question,      ble. Affirming the dismissal, the Court
   does not establish that conclusion              (2) resolves an important issue,     wrote:
   as a matter of law.                             (3) resolves an issue that is com-   1. A final judgment in a criminal case
APPELLATE PROCEDURE                                pletely separate from the merits            comes into being with the imposi-
                                                   of the action, and (4) would be             tion of sentence.
Stoddard v. State, #105             COA            effectively unreviewable if the      2. A discovery order is generally
2010, 31 A.3d 603 (2011)                           appeal had to await the entry of a          viewed as a non-appealable inter-
                                                   final judgment.” Slip op. at 6.             locutory ruling; appellate chal-
In a lengthy footnote (slip op. at 17, n.    3. Here, the doctrine did not apply.              lenge must await final judgment.
3) the Court compared “trial error,”               The question of whether DNA evi-     3. The order here is not appealable
which is subject to harmless error                 dence ties Stephens to the crime            under the collateral order doc-
analysis, with “structural error,” which           is not separate from the merits,            trine, which is described similarly
is not. Trial error arises from a specific         and the matter is reviewable on             to the description in Stephens v.
ruling during trial, and its impact can            appeal from a conviction and                State, summarized herein. The
be measured against the events of the              death sentence.                             doctrine is narrow, rarely applied,
remainder of the trial to assess harm-       4. Denial of a motion to dismiss on               and requires that all four of its
lessness. Structural error affects the             double jeopardy grounds is imme-            components (see Stephens sum-
framework within which the trial pro-              diately appealable under the col-           mary) be satisfied. Except where
ceeds and therefore taints the trial               lateral order doctrine. Denial of           depositions of high-level govern-
from start to finish; its impact cannot            such a motion on speedy trial               ment officials are involved, Mary-
be measured against other factors and              grounds is not. Other grounds for           land caselaw has consistently
a harmless error analysis therefore                pretrial motions that are not sub-          found that discovery orders are
cannot be made.                                    ject to immediate appeal are re-            not appealable under the collat-
Stephens v. State, 420 Md. 495,                    moval, violations of the detainer           eral order doctrine. Both here,
24 A.3d 105 (2011)                                 statute, prosecutorial vindictive-          and generally, discovery orders
                                                   ness, and sovereign immunity.               are too intertwined with the mer-
As a result of 2009 amendments to                                                              its, and too subject to review after
Maryland’s death penalty statute, a          Harris v. State, 420 Md. 300, 22                  a final judgment, to come within
death sentence is available only if one      A.3d 886 (2011)                                   the doctrine.
of a limited number of highly reliable       In this murder case, the defendant’s       4. Cases construing 28 U.S.C. §1291,
forms of evidence links the defendant        competency to stand trial was a seri-             the federal final judgment rule,
to the murder. In this case, the State       ously contested issue. Lengthy stays              are persuasive in construing Mary-
placed the defendant on notice that it       at Perkins resulted in findings by Per-           land’s cognate rule. Federal cases
would be relying upon DNA evidence.          kins staff that the defendant was not             have held that improper violations
The defense requested a pretrial hear-       competent, and generated numerous                                 (Continued on page 17)
                                                                                                                  PAGE 17

APPELLATE DECISIONS
(Continued from page 16)                   sons or property), and is probative of a In re Chaden M., #56 COA 2010,
                                           lack of credibility of one who commits 30 A.3d 935 (2011)
    of privileges at the discovery         it.                                       Chaden was adjudicated a CINA. DSS
    stage may be remedied by rever-                                                  subsequently filed a guardianship peti-
    sal after entry of a final judgment.                                             tion which included the allegation that
5. The Supreme Court arguably              BURGLARY                                  the mother, April C., may suffer from a
    carved out an exception to the                                                   statutory disability (in this case, mental
    non-appealability of discovery         Molter v. State, 201 Md. App. 155, illness) rendering her incapable of con-
    orders involving privilege in          28 A.3d 797 (2011)                        senting to guardianship or participating
    Perlman v. United States, 247          1. The unexplained possession of          in the litigation. DSS also requested
    U.S. 7 (1918), where the party              recently stolen goods permits an     that the Court appoint a lawyer for
    holding the privileged information          inference of guilt of theft suffi-   April, and named her CINA attorney on
    has no motive to attempt to pro-            cient to sustain a conviction. If    that request under “attorney informa-
    tect the privilege. The Harris              the theft occurred during a bur-     tion.” The CINA attorney was so in-
    majority rejected the “Perlman              glary, the inference also suffices   formed, and entered her appearance
    Doctrine,” finding it non-binding           to sustain a burglary conviction.    in the guardianship case. April was
    on state courts, arguably no           2. Where a burglary occurred be-          personally served with the usual show
    longer good law even in the fed-            tween 4/18 and 4/20, and six sto- cause order requiring her to object to
    eral system, and inconsistent with          len items were found in Molter’s     the guardianship within 30 days or
    Maryland precedent. Further,                car on 4/27, the possession was      waive her right to object to the termi-
    Perlman has been limited to a               sufficiently recent to establish the nation of her parental rights. Neither
    circumstance in which a grand               inference. The Court cited cases lawyer nor client filed a timely objec-
    jury subpoenas documents incon-             holding that, depending upon the tion. A preliminary TPR hearing was
    sistent with its target’s privilege         circumstances, a lapse of several held, at which DSS withdrew its allega-
    where the holder of the docu-               months may not destroy the infer- tion that April was disabled. Counsel
    ments is disinterested and the              ence. It is the province of the      then filed an untimely objection, which
    target may never be indicted and            trier of fact to decide whether the DSS moved to strike. At a subsequent
    in a position to oppose the sub-            possession is sufficiently close in  hearing, the trial court a) determined
    poena. Here, by contrast, Harris            time to the stealing, in conjunc-    that April was not disabled, and b)
    is a party, and if found competent          tion with other circumstances, to rejected counsel’s argument that the
    and convicted can raise on appeal           draw the inference.                  mother could rely upon DSS’s assertion
    the propriety of disclosing his re-    3. That the inference arises from         of disability and counsel’s entry of ap-
    cords. There is no need to inter-           unexplained possession of sto-       pearance as the equivalent of an ob-
    rupt the proceedings and create             len goods does not unconstitu-       jection, and struck the belated objec-
    “piecemeal” litigation.                     tionally compel a defendant to       tion, thereby effectively terminating
                                                testify, or punish him for remain- her parental rights. The Court of Spe-
ARSON                                           ing silent.                          cial Appeals reversed, finding that April
                                                                                     had been deprived of the effective as-
Cure v. State, 421 Md. 300, 26             CHARGING DOCUMENT                         sistance of counsel. Affirming that
A.3d 899 (2011)                                                                      judgment, the Court of Appeals wrote:
In the course of holding that a judge      Williams v. State, 200 Md. App.           1. DSS’s allegation that April was
did not abuse his discretion in permit-    73, 24 A.3d 210 (2011)                          disabled conferred upon her a
ting a defendant on trial for drug         This opinion, summarized under                  right to counsel under §5-307(a)
crimes to be impeached with a prior        “NARCOTICS & PARAPHERNALIA,”                    of the Fam. Law Art. and Rule 9-
conviction for first-degree arson (see     includes a discussion of when a charge          105(b). A right to counsel carries
summary under “WITNESSES”), the            of a greater inclusive offense permits          with it a right to effective assis-
Court traced the history of the modern     conviction of an uncharged lesser in-           tance of counsel. Even an allega-
crime of arson and listed its elements,    cluded offense.                                 tion that a parent might be dis-
past and present. The thrust of the                                                        abled entitles the parent to coun-
opinion is that arson is a serious crime   CINA/TPR CASES                                  sel, at least through and including
against habitation (and not merely per-                                                                     (Continued on page 18)
PAGE 18

                                                                          APPELLATE DECISIONS
(Continued from page 17)                     delayed taking the suspect before a       Wimbish v. State, 201 Md. App.
                                             commissioner for the purpose of ob-       239, 29 A.3d 635 (2011)
     a pre-guardianship hearing on the       taining a confession. Such a delay is     1. If a suspect in custody, having
     disability question. Thus when          judged by the detectives’ purpose. It         received Miranda warnings, re-
     counsel entered her appearance          may be legitimate (e.g., to obtain in-        quests counsel, interrogation
     two days after the petition was         formation necessary to locate a dan-          must cease until counsel has been
     filed, she took on the obligation to    gerous weapon or obtain a search war-         made available, or the suspect
     represent April effectively.            rant) or for the forbidden purpose of         himself reinitiates the conversa-
2.   Failure to timely respond to the        extracting a confession. See the de-          tion. However, the request must
     show cause order irrevocably con-       tailed categorization in Odum v.              be unambiguous – sufficiently
     sents to termination of parental        State, 156 Md. App. 184, 202-204              clear that a reasonable police offi-
     rights. This fully applies to a par-    (2010), applying the Williams/                cer would understand that the
     ent who is alleged to be disabled,      Facon/Highligh “prompt present-               defendant desires to have a law-
     but subsequently found by the           ment trilogy.” Held: Moore’s state-           yer present. If the “request” is
     court not to be. It is the disability   ment was involuntary where five of the        ambiguous, the police are not
     that establishes lack of capacity to    hours of his lengthy interrogation            required to ask clarifying ques-
     participate in the litigation and to    qualified as intentional and unneces-         tions, although it would be “good
     consent (and entitles the parent        sary delay in taking him before a com-        police practice” to do so.
     to counsel throughout the litiga-       missioner, a factor entitled to “heavy    2. The same standard applies to a
     tion); the lack of capacity does        weight,” where the police already had         post-Miranda-waiver invocation
     not survive a finding that the par-     sufficient probable cause to obtain a         of the right to remain silent.
     ent is not disabled. Here, counsel      search warrant and did not need a             Berghuis v. Thompkins, 130
     was ineffective in assuming that        statement for that purpose; he was 16         S.Ct. 2250 (2010). However, de-
     April would be found to be dis-         and repeated requests to call his             spite Maryland precedent to the
     abled, and therefore not filing an      mother were ignored; he had no adult          contrary, Berghuis indicates that
     objection, when in fact an objec-       record, although he had been arrested         even prior to Miranda warnings
     tion would be required if either        previously and Mirandized as a juve-          and waiver thereof, an unambigu-
     DSS withdrew its suggestion of          nile; and multiple detectives were in-        ous invocation of either Miranda
     disability, or the Court found April    volved in the interrogation. Despite          right (counsel or silence) is re-
     not to be disabled. The lesson is       having already obtained an arrest war-        quired before the police must
     clear: Once an attorney’s appear-       rant, the lead detective admitted that        cease questioning.
     ance is entered in a guardianship       he questioned Moore rather than tak-      3. Here, defendant said “What about
     case – and the Court found it un-       ing him before a commissioner be-             my lawyer?” prior to Miranda
     necessary to reach whether an           cause he wanted to “speak to him”             warnings, and “Can I get a law-
     attorney’s responsibility arises by     and obtain “his side of the story.” The       yer?” immediately after the rights
     virtue of his or her status as          Court characterized the unnecessary           were read. Reviewing Supreme
     counsel in the earlier CINA pro-        delay in taking him to a commissioner         Court and Maryland caselaw, the
     ceedings – that attorney must file      as entitled to “heavy weight,” Moore’s        Court found that these were not
     a notice of objection, regardless       youth as a “crucial factor,” and the          the required unambiguous expres-
     of the client’s possible disability,    denial of access to a parent as “very         sions of a desire to have a lawyer
     unless the client clearly and com-      important.” Slip op. at 15. While lack        present. A statement to the ef-
     petently expresses a desire to          of access to a parent is not alone dis-       fect that the suspect might want
     consent to termination.                 positive, admissions by juveniles re-         a lawyer is insufficient. As an
                                             quire “special caution,” so the re-           alternative holding, the Court
CONFESSIONS                                  peated refusal to allow Moore to call         wrote that even if the pre-
                                             his mother carries significant weight.        Berghuis Maryland caselaw that
Moore v. State, #113 COA 2010,               Finally, the Court noted that he denied       an ambiguous pre-Miranda invo-
30 A.3d 945 (2011)                           culpability until hours after he should       cation is good enough remains
In assessing the voluntariness of a          have been taken to a commissioner,            good law, the officers in fact did
confession under the totality of the         indicating that the inculpatory version       ask clarifying questions which did
circumstances, an important factor is        was coerced.                                  not evoke an unequivocal invoca-
whether the interrogating detectives                                                                        (Continued on page 19)
                                                                                                                    PAGE 19

APPELLATE DECISIONS
(Continued from page 18)                        statement could be used against              one: would a reasonable police
                                                the suspect.                                 officer under the circumstances
      tion.                                5.   Waiver of Miranda rights permits             understand that the suspect has
4.    Three hours later, Wimbush did            the State to use the suspect’s               requested a lawyer? If the
      unequivocally invoke when he              words in any format, including a             “request” is equivocal under this
      said, “I’m not gonna talk no more.        recording which captures an ar-              test, the police are not required to
      Where my lawyer at? Can I get a           guably offensive demeanor.                   ask clarifying questions.
      lawyer? Can I call my lawyer? … 6.        Admissibility of the recordings    4.        While various courts have held
      You all can’t talk to me no more          themselves is governed by the                “Where’s my lawyer?,” “Maybe I
      because I’ve asked for my law-            usual rules of relevancy and                 should talk to a lawyer,” and
      yer.” At this point the officers          weighing of prejudice against pro-           “Should I get a lawyer?” as too
      were required to – and did – ter-         bative value.                                equivocal to serve as an invoca-
      minate the discussion.                                                                 tion, Ballard’s “You mind if I not
                                           Ballard v. State, 420 Md. 480, 24                 say no more and just talk to an
Donaldson v. State, #2799 COSA             A.3d 96 (2011)                                    attorney about this” expresses an
2009, 9/6/11 (Alpert)                      In custody during a murder investiga-             actual desire for counsel, and
Donaldson was interviewed three times tion, Ballard was read and properly                    therefore falls on the other side of
by police investigating a murder; over waived Miranda rights. During the                     the line.
the course of the three, his status pro- ensuing interrogation, he stated: “You         5.   Also falling on the clear invocation
gressed from witness to suspect to         mind if I not say no more and just talk           side of the line is a statement that
arrestee. Without his knowledge or         to an attorney about this.” The detec-            the suspect would “rather” have a
consent, all three sessions were video- tive responded, “What benefit is that                lawyer.
taped. Over objection that the tapes       going to have?” Ballard rejoined, “I’d       6.   Even if Ballard’s initial statement
depicted his combative demeanor in a feel more comfortable with one.” The                    had been ambiguous (which the
prejudicial way, the tapes were played detective then launched into a lengthy                Court emphasized it was not find-
for the jury at his trial. Defense coun- argument on the importance of Bal-                  ing), the follow-up that he would
sel expressly disavowed any Miranda lard’s right to tell his side of the story.              be “more comfortable” with an
or voluntariness argument, asserting       Ballard agreed to continue the interro-           attorney provided the necessary
only that Donaldson should have been gation session without a lawyer pre-                    clarity.
told that the sessions were being re-      sent. The detective again Mirandized
corded. Finding no error, the Court        him, and he made inculpatory state-          COUNSEL
wrote:                                     ments. Reversing the denial of a mo-
1. A properly-Mirandized suspect           tion to suppress, the Court wrote:           Denisyuk v. State, 422 Md. 462,
      need not be informed that an au- 1. Miranda rights pertain through-               30 A.3d 914 (2011)
      dio or video recording is being            out the interrogation. An invoca-      1. In Padilla v. Kentucky, 130
      made of the interrogation.                 tion of either the right to remain         S.Ct. 1473 (2010), the Court held
2. Under §10-402(c)(2)(ii) of the                silent, or the right to counsel, re-       that the requirement of effective
      Courts Art., a police officer in the       quires that the questioning cease.         assistance of counsel compels an
      course of investigating a murder     2. Where counsel is invoked, the                 attorney advising a defendant
      may intercept an oral communica-           police may not repeat the warn-            whether to enter a guilty plea to
      tion.                                      ings and continue the interroga-           advise the client of the potential
3. Recording a station-house inter-              tion. Questioning may resume               immigration/deportation conse-
      view without the suspect’s knowl-          only if either (1) counsel has been        quences of the plea.
      edge or consent does not render            provided, or (2) the suspect reini-    2. In general, ineffective assistance
      the statement involuntary or oth-          tiates the colloquy.                       is established by 1) deficient per-
      erwise offend due process.           3. An “ambiguous” or “equivocal”                 formance (that which falls below
4. Falsely telling a suspect that the            mention of an attorney by the              reasonable representation under
      session is not being recorded may          suspect does not require that              prevailing norms) which 2) preju-
      bring the case within the rule that        questioning cease. Davis v.                dices the defense by generating a
      an interrogator may not utilize a          United States, 512 U.S. 452                reasonable probability that but for
      promise of confidentiality which           (1994). The test for a sufficiently        counsel’s errors, the outcome
      negates the warning that any               clear invocation is an objective                             (Continued on page 20)
PAGE 20

                                                                            APPELLATE DECISIONS
(Continued from page 19)                     5. Both failure to advise, and the pro-      fendant must be warned that he could
                                                vision of erroneous advice, consti-       be required to represent himself that
      would have been different.                tute deficient performance.               day; if there is a meritorious reason,
3.   In the guilty plea context, preju-      6. Rule 4-242 requires that the judge,       the warning applies to the next sched-
     dice is established by a showing           prosecutor, and/or defense counsel        uled trial date. But if the request to
     that but for counsel’s errors, the         advise the non-citizen pleading           discharge is simply denied, there is no
     client would not have entered the          guilty of possible immigration con-       requirement that the option of self-
     plea.                                      sequences. And while the Rule             representation be mentioned. Rather,
4.   Where an appellate decision an-            goes on to state that the validity of     a request to discharge triggers the
     nounces a new rule, that rule ap-          the plea cannot be challenged             judge’s obligation to afford the defen-
     plies to all cases then pending in         based on the omission of advice           dant an opportunity to explain his rea-
     the trial courts, or on direct appeal      relating to a “collateral” (as op-        sons, give careful consideration to
     where the issue has been pre-              posed to direct) consequence of           those reasons, and make a finding as
     served. Here, however, Denisyuk            the plea, Padilla expressly re-           to whether those reasons are meritori-
     was advised by counsel, and                jected the collateral/direct reason-      ous. If the reasons are non-
     pleaded guilty, before Padilla was         ing in this context, and Rule 4-242       meritorious, the judge, among other
     decided, and no application for            and its “legislative” history allow       options, may simply deny the request.
     leave to appeal was filed. There-          for a post-conviction claim of inef-      The Court further noted that while
     fore, the question arose of                fective assistance.                       there is a Sixth Amendment right to
     whether Padilla would apply ret-        7. The Strickland prejudice prong is         self-representation, the defendant
     roactively at Denisyuk’s post-             satisfied if the defendant testifies      must assert that right.
     conviction hearing. As a general           that he would not have entered
     rule, an opinion which applies set-        the plea had he been properly ad-         DEADLY WEAPON OFFENSES
     tled precedent to a new situation          vised, and, critically, the post-
     does not change the law, and               conviction judge finds this testi-        Wimbish v. State, 201 Md. App.
     therefore always applies retroac-          mony to be credible. The Court            239, 29 A.3d 635 (2011)
     tively. On the other hand a genu-          commented that some defendants            1. Where a defendant is charged
     ine “new rule,” breaking with the          will genuinely prefer the risk of             with possession of a regulated
     past, raises the question of               greater jail time to the certainty of         firearm by a person previously
     whether it applies retroactively.          deportation.                                  convicted of a crime of violence,
     Held: The rule of Padilla applies                                                        he is entitled to have jury instruc-
     retroactively to all guilty pleas oc-   Pinkney v. State, 200 Md. App.                   tions or a stipulation worded to
     curring after 4/1/97, the date that     563, 28 A.3d 118 (2011)                          convey that he has a disqualifying
     federal legislation amended the         Prior to trial, defendant moved to dis-          conviction but without the preju-
     immigration law to make it far          charge his attorney, asserting that the          dicial phrase “crime of violence.”
     more likely that a conviction would     latter had performed inadequate inves-           Carter v. State, 374 Md. 693
     result in deportation and to se-        tigation and insufficient discussion with        (2003). Here, the jury was im-
     verely limit the discretion of          himself. The judge observed that the             properly instructed that the par-
     judges to waive the immigration         case was a straightforward one requir-           ties had stipulated that Wimbish
     consequences. The Court rea-            ing little investigation, ascertained that       had previously been convicted of
     soned that there is no “new rule,”      the defendant had not hired another              a crime of violence. Held: De-
     because Strickland v. Washing-          attorney, and denied the motion with-            fense counsel failed to preserve
     ton established the general test        out mention of the possibility of self-          the issue by not objecting, and
     for ineffectiveness claims and          representation. Held: Under these                had invited the error by submit-
     Padilla merely applied that test        circumstances, Rule 4-215(e) does not            ting a proposed jury instruction
     to the guilty-plea-with-immigration     require that defendant be informed of            which included the phrase “crime
     -consequences situation. Since          the option of proceeding pro se. It is           of violence.” Further, the argu-
     the 1996 federal statutory change,      where the judge permits a discharge              ment that counsel was ineffective
     professional norms require coun-        of counsel that the issue of pro se              in doing so must be litigated in a
     sel to advise clients of the immi-      “representation” arises: if the judge            post-conviction proceeding, and
     gration consequences of a guilty        finds no meritorious reason but never-           not on direct appeal.
     plea.                                   theless allows the discharge, the de-                             (Continued on page 21)
                                                                                                                      PAGE 21

APPELLATE DECISIONS
(Continued from page 20)                     Parker v. State, 402 Md. 372, 407         justify a mistrial even in the absence of
                                             (2007).                                   bad faith. However, the judge should
2.   The unit of prosecution for pos-                                                  provide the least severe sanction con-
     session of a regulated firearm is       DEATH PENALTY                             sistent with the trial preparation pur-
     the weapon. Thus, possession of                                                   poses of discovery. Further, a defen-
     a single firearm cannot result in       Miles v. State, 421 Md. 596, 28           dant who claims a discovery violation
     multiple convictions for posses-        A.3d 667 (2011)                           must report it to the court as promptly
     sion by a convicted felon, posses-      Refighting a battle from 10 years ago, as possible (here, defense counsel de-
     sion by a person under 21, pos-         the Court of Appeals has again ruled,     layed in doing so), request a continu-
     session by certain misdemean-           by a vote of 4-to-3, that it is constitu- ance if that will ameliorate the prob-
     ants, etc. A single act of posses-      tionally permissible for Maryland’s       lem, and accept remedial offers from
     sion can only yield a single con-       death penalty law to permit a death       the trial court instead of insisting upon
     viction for possessing a regulated      sentence on the basis of a sentencer’s the “windfall” of a mistrial. Further,
     firearm. Where two or more such         conclusion that aggravating circum-       the Court wrote that the defense is
     convictions are erroneously en-         stances only outweigh mitigating by a obligated to diligently investigate
     tered, only the one with the            preponderance of the evidence, so         whether additional information has not
     greater penalty survives.               long as the aggravating factors must      been disclosed, and if further informa-
3.   Possession of a short-barreled          be proved beyond a reasonable doubt. tion arises after a ruling on a discovery
     shotgun under §5-203 of the Pub-        It is worth pointing out that one re-     motion, the argument must be reas-
     lic Safety Art. does not merge into     tired judge voted for the majority, a     serted. Finally, the Court found no
     possession of a regulated firearm.      second retired judge wrote the dissent, Brady violation. Such a violation re-
     In so holding, the Court briefly        and a very soon-to-be retired judge       quires that the State withheld or sup-
     explained, and applied, both the        wrote the opinion of the Court. If        pressed evidence that is favorable to
     required evidence test and rule of      death sentences continue to be im-        the defense (i.e., exculpatory or miti-
     lenity/legislative intent merger        posed in Maryland, this issue will re-    gating), and is material to guilt or pun-
     doctrines. In the latter context,       cur.                                      ishment. Materiality requires a
     the Court found that separate                                                     “substantial possibility” that timely dis-
     policy concerns underlie the two        DISCOVERY                                 closure would have changed the out-
     statutes. The possession of a                                                     come. Since Raynor’s DNA matched
     regulated firearm prohibition is        Raynor v. State, 201 Md. App.             three different evidentiary sources with
     aimed at keeping guns out of the        209, 29 A.3d 617 (2011)                   varying degrees of statistical certainty,
     hands of predictably dangerous          In a rape prosecution, the State belat- it is not substantially possible that the
     individuals, while the short-           edly (but the trial judge found not in-   outcome would have been changed by
     barreled shotgun statute is one of      tentionally so) disclosed e-mails sent    e-mails which may have considered
     several designed to proscribe eas-      by the victim to the investigating de-    him as a possible suspect early in the
     ily-concealable weapons.                tective. Defense counsel had four         investigation.
                                             days to work with the e-mails, and the
McNeal v. State, 200 Md. App.                judge offered to permit counsel to re- Morton v. State, 200 Md. App.
510, 28 A.3d 88 (2011)                       open cross of the victim to permit the 529, 28 A.3d 98 (2011)
In a prosecution for possession of a         e-mails to be used. A motion for mis- The name of a forensic nurse was dis-
regulated firearm by a disqualified per-     trial was denied. Finding no error, the closed as a witness well in advance of
son, the defendant testified that he         Court emphasized the broad discretion trial, but the State did not disclose its
picked up a gun he found with the in-        of the trial judge to fashion a remedy    intention to call her as an expert until
tent to get it away from children and        or decline to provide any remedy. In      a week before trial. Prior to trial, Mor-
turn it over to the police, and re-          that exercise of discretion, the court    ton moved in limine to exclude her
quested a jury instruction that the          should take into account 1) the rea-      testimony on discovery grounds.
State must prove “wrongful intent” as        sons for nondisclosure; 2) prejudice to When she was called as a witness at
the mens rea element of the crime.           the opposing party; 3) feasibility of a   trial, counsel argued only that she was
Held: Wrongful intent is not an ele-         continuance; and 4) “any other rele-      not qualified as an expert in the ex-
ment. Instead, “a ‘possession convic-        vant circumstances,” including bad        amination of children. Finding no error
tion normally requires knowledge of          faith vel non of the prosecutor. Slip     in permitting her to testify, the Court
the illicit item.” Slip op. at 13, quoting   op. at 18. Irreparable prejudice may                              (Continued on page 22)
PAGE 22

                                                                           APPELLATE DECISIONS
(Continued from page 21)                         children as well as adults in sex-      grounded in the double jeopardy pro-
                                                 ual abuse prosecutions.                 hibition, which precludes the State in a
wrote:                                                                                   criminal prosecution from seeking to
1. The discovery issue is waived un-        DNA EVIDENCE                                 prove the opposite of a fact that was
    der the rule that denial of a mo-                                                    necessarily established in the defen-
    tion in limine to exclude evidence      Arey v. State, 422 Md. 328, 29               dant’s favor in an earlier trial between
    does not in itself preserve the         A.3d 986 (2011)                              the same parties. See Ashe v.
    issue – there must still be a           Arey filed a petition for post-conviction    Swenson, 397 U.S. 436 (1970).
    “contemporaneous objection”             DNA testing under §8-201 of the Crim.        Held: Collateral estoppel may not be
    when the evidence is actually of-       Proc. Art., challenging a conviction         used offensively by the State. Here,
    fered. In any event, the choice of      which, by the time the litigation            Allen at trial I was convicted of felony-
    sanction for a discovery violation      reached this point, was 35 years old.        murder, second-degree murder, and
    is discretionary with the trial         The State asserted that tangible evi-        robbery. The felony murder conviction
    judge. Factors relevant to the          dence bearing relevant DNA no longer         was reversed for an improper jury in-
    exercise of discretion include the      existed. It tracked down the techni-         struction, and the remaining convic-
    timing of disclosure, prejudice to      cian who had performed serological           tions were affirmed. At trial II, limited
    the respective parties, and             analysis upon a disputed blood stain         to the felony murder count, the trial
    whether such prejudice is curable       on a shirt worn by Arey. The techni-         judge informed the jury during both
    by a continuance, if such continu-      cian testified in an affidavit that he had   voir dire and instructions that Allen
    ance is generally desirable.            no recollection of the shirt, but that in    had previously been convicted of rob-
2. Exclusion of evidence for a discov-      general evidence he tested was re-           bery and second-degree murder in the
    ery violation is a drastic, non-        turned to the ECU, the sample he             incident for which he was currently on
    favored sanction. The purpose of        worked with was consumed in the              trial. Finding error, the Court wrote:
    discovery is to prevent surprise,       testing, and the lab did not retain any-     1. “Defensive” collateral estoppel ex-
    not grant a windfall in the form of     thing. In the course of earlier litigation        ists as part of Maryland’s common
    exclusion of evidence. Here, the        of Arey’s motion, the ECU (and other              law of double jeopardy as well as
    Court in finding the defense not        places) had already been searched.                the Fifth Amendment prohibition.
    entitled to a remedy emphasized         The affidavit was filed on 4/19/10. On            Its critical component is whether
    that the defense knew for a week        4/21/10, the trial court dismissed the            an issue of ultimate fact has been
    that the State would be calling an      petition. Held: This ruling was pre-              resolved in favor of the defen-
    expert and took no steps to se-         mature. A petitioner has a due proc-              dant.
    cure its own expert to examine          ess right to notice of and an opportu-       2. Although collateral estoppel may
    the State’s witness’s report or to      nity to respond to two interrelated               be used both offensively and de-
    testify.                                matters: the State’s position that DNA            fensively in civil cases, the Court
3. Turning to the nurse’s qualifica-        -related evidence does not exist, and             joined the “overwhelming majority”
    tion as an expert, the Court em-        the trial court’s intent to make a ruling         of Courts finding that the doctrine
    phasized that a witness need only       upon the petition. Here, Arey was en-             may not be used offensively by the
    possess sufficient knowledge,           titled to an opportunity to respond to            State in a criminal case. Such use
    training, or experience to make         the technician’s affidavit before dis-            deprives the defendant of a jury
    his or her opinion of aid to the        missal of the petition. Thus, for exam-           free to carry out its role as sole
    trier of fact in order to confer dis-   ple, he was entitled to try to interview          factfinder, which determines
    cretion upon the trial judge to         the technician, and/or to investigate             whether the government has car-
    recognize the witness as an ex-         the protocols for maintaining or de-              ried its constitutionally-imposed
    pert. Here, the nurse was a RN          stroying microscope slides prepared               burden of proving all of the re-
    with substantial training and ex-       with blood samples.                               quired elements of the offense.
    perience in forensic exams of both                                                        Further, the defendant is entitled
    adults and children, and had ob-        DOUBLE JEOPARDY                                   to a single jury which passes
    tained licensing certification from                                                       upon all of the elements of the
    the State. There was no abuse of        State v. Allen, #76 COA 2010, 31                  offense, based solely upon the evi-
    discretion in recognizing her as an             A.3d 476 (2011)                           dence introduced at trial. There-
    expert in forensic examination of       Collateral estoppel is a doctrine,                                 (Continued on page 23)
                                                                                                                     PAGE 23

APPELLATE DECISIONS
(Continued from page 22)                         objection does not bar retrial if        before the DWI court, defendant was
                                                 the mistrial was justified by            told that the second case would be
    fore, the offensive use of collateral        “manifest necessity.” This rule          prosecuted outside of the DWI court in
    estoppel to establish a fact against         applies to both bench and jury           a normal circuit court trial. As a sanc-
    a defendant violates that defen-             trials. Manifest necessity contem-       tion for violating the terms of the DWI
    dant’s Sixth Amendment right to              plates “urgent” or “extraordinary”       court agreement, however, the judge
    trial by jury. (Interestingly, the           circumstances compelling the             revoked the defendant’s personal re-
    Court twice observed that a defen-           abortion of the trial-in-progress.       cognizance and ordered him incarcer-
    dant’s fundamental constitutional            Slip op. at 15. The result turns         ated for a weekend. Defendant was
    rights outweigh the State’s interest         upon the unique circumstances of         then convicted in district court of the
    in judicial economy.)                        each case.                               earlier offense, noted an appeal to
                                            5.   Manifest necessity exists where          circuit court, and then moved to dis-
Mansfield v. State, 422 Md. 269,                 events during trial compromise           miss the second (not yet tried) case
29 A.3d 569 (2011)                               the impartiality of the trier of fact,   on double jeopardy grounds. The ba-
1. Where a circuit court denies a                whether judge or jury. However,          sis of the argument was that he had
    motion to dismiss on double jeop-            facts which bring into question a        already been punished for the second
    ardy grounds, an immediate ap-               juror’s impartiality do not neces-       offense by being required by the DWI
    peal lies to the Court of Special            sarily do so where a judge is in-        court to serve a weekend in jail, which
    Appeals.                                     volved.                                  he had completed, and that the factual
2. Mansfield was on trial before a          6.   A defendant has a “valued right”         basis for that punishment was the
    judge without a jury for sexual              to completion of the trial by a par-     same drinking that resulted in the
    offenses. The trial judge had pre-           ticular tribunal. Thus, manifest         criminal charge. The State responded
    viously presided over another sex-           necessity does not exist if there        that in essence, defendant was being
    ual offense trial at which Mans-             are reasonable alternatives to a         punished for the first case, by partial
    field had been convicted (and in             mistrial which could cure the            revocation of his pretrial release. The
    which the current prosecutor and             problem that has arisen.                 trial court denied the motion, reason-
    defense counsel were also in-           7.   Here, it is critical that the judge      ing that defendant was being sanc-
    volved), and was aware of a third            was aware of the problem (her            tioned for his admission to drinking in
    case. During the current trial, the          knowledge of Mansfield’s other           violation of his agreement, and not for
    judge brought up the two prior               cases) prior to trial, allowing her      a second conviction which had not yet
    cases in questioning State’s wit-            to recuse herself before jeopardy        occurred. The motions judge added
    nesses and discussing Mansfield’s            attached. She also knew in ad-           that it is common for the same con-
    potential impeachable prior con-             vance that credibility determina-        duct to result in multiple sanctions
    victions. At the close of the evi-           tions would form an important            without violation of double jeopardy
    dence the judge, sua sponte and              part of the case. Therefore, pre-        principles. Here, it violated the condi-
    over defense objection, declared a           attachment recusal was a                 tions of defendant’s release in the ear-
    mistrial, stating that her knowl-            “reasonable alternative” to a mis-       lier case, justifying a sanction in that
    edge of the two priors made it               trial, precluding a finding of mani-     case, and formed part of the basis for
    impossible for her to fairly make            fest necessity.                          the second prosecution. Finding no
    the credibility determination of                                                      error in the denial of the motion to
    whether Mansfield or the alleged        DiMeglio v. State, 201 Md. App.               dismiss, the Court wrote:
    victim was telling the truth.           287, 29 A.3d 663 (2011)                       1. A double jeopardy violation can
    Mansfield moved to preclude re-         In 2008, defendant entered a guilty                 only occur where the charges
    trial on double jeopardy grounds,       plea to DWI in “DWI/DUI Treatment                   arose out of the same act or
    and the motion was denied.              Court” and signed an agreement con-                 transaction, and the charged
    Held: The denial of the motion          senting to obtaining treatment, under-              crimes constitute the “same of-
    was error.                              going drug and alcohol testing, and                 fense.” Among the concerns of
3. In a bench trial, jeopardy attaches      acknowledging the possibility of incar-             the double jeopardy prohibition is
    when the judge begins to hear or        ceration or other sanctions if he was               the imposition of multiple punish-
    receive evidence.                       not compliant. In 2009, he was                      ments for the “same offense.”
4. A mistrial declared over defense         charged with a second DWI. Brought                                 (Continued on page 24)
PAGE 24

                                                                           APPELLATE DECISIONS
(Continued from page 23)                   6.   The hearing in the DWI court was          license that has previously and
                                                not an adjudication with respect          separately been both revoked and
2.   Jeopardy “attaches” in a jury trial        to alleged facts; therefore, no           suspended has engaged in a single
     when the jury is selected and              jeopardy attached. The                    “act or transaction” not supportive
     sworn, and in a bench trial when           “punishment” handed down in               of multiple sentences. Held:
     the judge begins to hear and re-           that hearing was a sanction for           Washington engaged in a single
     ceive evidence. Jeopardy requires          violation of pretrial release in the      act of eluding.
     a risk of determination of guilt.          earlier case, not a trial of the later 3. Whether the two offenses consti-
     Held: When defendant received              case. Such a trial is therefore not       tute the “same offense” is deter-
     his weekend in jail from the DWI           barred by double jeopardy princi-         mined by application of the re-
     court, jeopardy had not yet at-            ples.                                     quired evidence test. The two
     tached in the second case. No                                                        forms of fleeing are not the same
     prosecutor or defense counsel         Washington v. State, 200 Md. App.              offense, as each requires proof of
     was present, and no evidence was      641, 28 A.3d 164 (2011)                        an element the other does not.
     received. No determination of         Section 21-904 of the Transportation        4. A theory of merger of offenses for
     guilt or innocence was being              Article proscribes both failing to         sentencing purposes independent
     made.                                     stop a vehicle and fleeing on foot         of the required evidence test is
3.   A sanction imposed by a specialty         after a uniformed officer, or an           legislative intent – absent a show-
     court for violation of an agree-          officer in a marked police vehicle,        ing that the legislature intended
     ment is akin to revocation of pro-        has signaled the person to stop.           multiple punishment arising out of
     bation: it is civil in nature, and        Here, an officer who knew that             a single continuous transaction,
     does not implicate double jeop-           Washington had no valid license            the defendant is entitled to
     ardy concerns. The facts used to          observed him driving and activated         merger. Held: The legislature
     revoke probation or impose the            his lights and siren. Washington           intended to create a single offense
     specialty court sanction may later        first took evasive action in his car,      of eluding a police officer, which
     form the basis for a new prosecu-         and then “bailed out” and ran.             can be committed in different
     tion without violating double jeop-       (Interestingly, the incident ended         ways. It did not intend to create
     ardy principles.                          when Washington ran into his fa-           separately punishable crimes of
4.   Grady v. Corbin, 495 U.S. 508             ther’s house; the father pushed            eluding by failure to stop and elud-
     (1990), predicating double jeop-          him back outside toward the offi-          ing by fleeing on foot. What the
     ardy analysis upon whether the            cer, saying “Here he is.”) Wash-           legislature did intend to separate
     defendant has twice been placed           ington was convicted of both forms         were the modes of signaling a per-
     in jeopardy for the “same con-            of the offense, and received sepa-         son to stop which trigger the statu-
     duct” (as opposed to the required         rate sentences. Finding only a             tory prohibition. Thus the statute
     evidence test) has been both              single conviction and sentence             includes a) a uniformed officer’s
     overruled by the Supreme Court            supportable, the Court wrote:              signal, whether or not he is in a
     and rejected as part of Maryland      1. To determine whether the multiple           vehicle, and b) the signal of an
     common law by the Court of Ap-            sentences violated the double              officer in a marked police vehicle,
     peals. Thus, no double jeopardy           jeopardy prohibition, “we deter-           whether or not he is in uniform.
     bar exists to preclude the use of         mine first whether the charges             Relevant to the conclusion that
     the same conduct to 1) modify             arose out of the same act or trans-        only a single offense was created,
     the conditions of release on crime        action, and second, whether the            fleeing on foot and failing to stop
     I, and then 2) serve as the basis         crimes charged are the same of-            a) carry the same penalty, b) are
     for prosecuting crime II.                 fense.” Slip op. at 6.                     prohibited to carry out the same
5.   Quoting a Justice Souter concur-      2. In the context of resisting arrest, it      policy, and c) involve in essence
     rence, the Court noted that at            has been held that a single con-           the same conduct.
     times two offenses may be suffi-          tinuous act of resisting multiple       5. The statute covers only a driver.
     ciently similar to preclude succes-       officers constitutes a single act of       Fleeing on foot by a person who
     sive prosecutions for them even if        resisting. Similarly, a single act of      did not begin the incident in a ve-
     they are sufficiently distinct to         theft of property belonging to mul-        hicle is not covered.
     allow for separate sentences aris-        tiple owners is one crime, not sev-
     ing from a single trial.                  eral. And one who drives on a                                 (Continued on page 25)
                                                                                                                 PAGE 25

APPELLATE DECISIONS
(Continued from page 24)                          an otherwise-inexplicable murder.    day he allegedly inflicted fatal inju-
                                             3.   Because gang-related evidence is     ries upon a child. On cross, the
EVIDENCE                                          highly prejudicial, and will poten-  witness was impeached on the
                                                  tially be used by a jury as charac-  basis that he had spoken to police,
Gutierrez v. State, #98 COA 2009,                 ter evidence, “…the threshold re-    but had not mentioned this detail.
11/29/11 (Adkins; Bell dissent-                   quirement for the admissibility of   Over objection, the State on redi-
ing; 4-2 decision)                                gang expert testimony is fact        rect was permitted to elicit that the
It was the State’s theory that defen-             evidence showing that the crime      witness had not done so because
dant was in a car that approached a               was gang-related.” Slip op. at 17.   he feared Stoddard as a result of
group of people at a party. Defendant             The necessary link is between        having been assaulted by him on
announced that he was a member of                 gang and crime; the defendant’s      several occasions in the past.
the gang MS-13. A person in the other             membership in a gang, standing       Held: This evidence was admissi-
group responded with an insult. De-               alone, is insufficient. Neverthe-    ble to rehabilitate the witness’s
fendant then fired shots into the                 less, that necessary link may be     credibility under Rule 5-616(c),
group, killing a man. A police officer,           established by expert testimony,     and is not governed by the “other-
qualified as an expert in MS-13 and               e.g., of the provocative nature of   crimes” evidence rule, Rule 5-404
gangs in general, testified in detail             a gang member’s presence in ter-     (b), or the “other-crimes” caselaw
about MS-13’s culture, structure, hier-           ritory controlled by a rival gang.   of State v. Faulkner, 314 Md.
archy, practice of responding violently      4.   Once the threshold link is estab-    630 (1989). While the evidence
to insults, and the geographical distri-          lished, admissibility turns upon a   would not have been admissible on
bution of the strongholds of MS-13 and            discretionary weighing of preju-     direct to demonstrate that the de-
its rivals. Based on photos from de-              dice against probative value.        fendant is a violent and dangerous
fendant’s MySpace page, the officer          5.   The expert must testify to socio-    person, it is admissible on redirect
opined that he was in fact a member               logical matters beyond the Ken of    where it is responsive to the im-
of MS-13. Virtually all of the gang-              a lay juror, and not to facts (e.g., peachment.
related evidence not directly connected           number of guns, number of drug 2. A second witness implicated
to the confrontation itself came in over          arrests, etc.) which can be proved   Stoddard in a pretrial statement to
objection. The appeal focused on five             less prejudicially through ordinary  police. At trial, she recanted the
of the expert’s assertions, involving MS          non-expert testimony and docu-       accusation, and denied that she
-13’s high level of violence, its alliance        mentation.                           was in fear of him. Over objec-
with the Mexican mafia, the subjection       6.   In the present case, all of the ex-  tion, the State was permitted to
of those who feign membership to                  pert’s challenged opinions except    introduce portions of the extrajudi-
punishment up to death, the subjec-               one properly explained why           cial statement in which the witness
tion of gang critics to violence up to            Gutierrez’ statements during the     stated that she did fear Stoddard,
death, and the violent initiation proc-           confrontation expressed loyalty to   and that he had punched and
ess for new members. Held:                        MS-13 or what motivated him to       choked her in the past. Held:
1. Expert testimony on gang culture               commit the crime. The trial court    This evidence was admissible un-
      and practices is generally relevant         erred only in admitting the opin-    der Rule 5-616(b) as extrinsic im-
      when the crime is shown by inde-            ion that MS-13 is the most vio-      peaching evidence designed to
      pendent evidence to be gang-                lent gang in the region, which       show that she recanted out of fear
      related, e.g., drug-dealing in an           does not shed light on whether       of Stoddard. Along the same lines,
      area where a particular gang                Gutierrez was himself the perpe-     an implication by the State that the
      dominates the narcotics trade.              trator. In light of the strength of  witness feared harm to her son if
      Similarly, gang membership may              the State’s case and other evi-      Stoddard were free also went to
      be relevant to intent to kill where         dence of the gang’s violent pro-     her motive for recanting – fear of
      gang practices call for handling a          clivities, however, that error was   Stoddard – and was therefore ad-
      particular situation by killing             harmless.                            missible.
      someone.
2. Several courts, including the Court       Stoddard v. State, #105 COA             Wimbish v. State, 201 Md. App.
      of Special Appeals, have admitted      2010, 31 A.3d 603 (2011)                239, 29 A.3d 625 (2011)
      gang-related evidence where            1. A witness testified that Stoddard    1. Evidence of a defendant’s gang
      gang rivalry suggests a motive for        was angry on the morning of the                            (Continued on page 26)
PAGE 26

                                                                         APPELLATE DECISIONS
(Continued from page 25)                   Rejecting arguments that these state-          arrest and search aspect, the
                                           ments either violated Cox’s confronta-         Court wrote that a defendant
   affiliation constitutes “other          tion rights or were fruit of the illegal       bears the burden of proving two
   crimes” evidence subject to Rule 5-     arrest, the Court wrote:                       things: that the police engaged in
   404(b). Here, such evidence was         1. A casual statement by one inmate            conduct violating the Fourth
   admissible where defendant was a             to a second inmate who is not at          Amendment, and that this primary
   member of the Bloods and the                 that point a state agent is not           illegality was causally responsible,
   State’s theory was that he and               “testimonial” for Confrontation           in more than a “but-for” way, for
   other members were motivated to              Clause purposes, and therefore            the seizure of the evidence the
   attack the intended victim because           under the Crawford v. Wash-               defendant wants suppressed.
   he had snitched on another mem-              ington analysis its admissibility is      Three doctrines identify circum-
   ber of the Bloods who also had a             determined by state-law rules of          stances in which the defendant
   family relationship with a high-             evidence only. The Court noted            cannot bear this burden: a) it
   ranking member of the gang. Mo-              that some courts have found such          was inevitable that the police
   tive is among the enumerated ex-             statements non-testimonial even           would have discovered the evi-
   ceptions to the exclusionary rule            if the second inmate is an infor-         dence; b) the evidence has a
   for such “bad acts” evidence.                mant, because the statement               source independent of the pri-
2. Where the same evidence is of-               does not have as its primary pur-         mary illegality; and c) the taint
   fered repeatedly, a party opposing           pose establishing facts relevant to       has been attenuated by the time
   it must object every time or per-            future prosecution, and is infor-         the derivative “fruit” is obtained.
   suade the trial judge to grant a             mal.                                 5.   Relevant here is the attenuation
   continuing objection in order to        2. Recent Supreme Court jurispru-              doctrine, which requires a balanc-
   preserve the issue for appeal. This          dence suggests that “most, if not         ing of a) proximity in time be-
   is true even if the party moved in           all, statements that are not made         tween illegality and obtention of
   limine to exclude the evidence               to state actors are non-                  challenged derivative evidence; b)
   and the motion was denied. A                 testimonial.” Slip op. at 16.             any intervening factors; and c)
   contemporaneous objection (or           3. In ascertaining the “primary pur-           the flagrancy of the police mis-
   continuing objection that is recog-          pose” in making and eliciting             conduct. Here, there was a 20-
   nized) is still necessary to preserve        statements during a particular            hour delay between illegality and
   the issue.                                   encounter, the test is not the sub-       conversation, the statements
                                                jective intent of the participants,       were voluntary (which the Court
Cox v. State, 421 Md. 630, 28 A.3d              but rather, objectively, what the         deemed an intervening factor)
687 (2011)                                      purpose of a reasonable person            and not a product of police inter-
Cox was stopped for a traffic violation         would be under the specified cir-         rogation, and there was no pur-
in an area where a murder had been              cumstances. If the primary pur-           poseful police conduct designed
committed. Johnson was a passenger.             pose of a reasonable person               to exploit the primary illegality,
Concededly, police detained them at             would be to create a substitute           such as planting an informant to
the scene for an unconstitutionally ex-         for trial testimony, then the asser-      elicit a confession. Under these
tended period, illegally arrested them,         tion is testimonial. In the present       circumstances, the taint was at-
and took them to Central Booking.               case, the casual conversation be-         tenuated.
The following day, a conversation took          tween inmate/acquaintances           6.   Standing alone, an extrajudicial
place at that facility between Cox,             could not reasonably have oc-             confession does not provide le-
Johnson, and another inmate, West.              curred with the expectation that          gally sufficient evidence to sustain
Johnson did most of the talking, telling        what was said would later be              a conviction. Corroborating evi-
West that he did the shooting because           used prosecutorially in court. Nor        dence of the corpus delicti is
Cox offered him $15,000 to do so.               did the conversation have the for-        required to show that a crime in
Cox added a few details and never               mality associated with testimonial        fact occurred; criminal agency
controverted what Johnson was say-              substitutes like affidavits, deposi-      need not be corroborated. In a
ing. At Cox’s trial, West was permitted         tions, formal statements to police,       homicide prosecution, it is enough
to testify to his conversation with Cox         and the like. Therefore, the Con-         that a medical examiner testifies
and Johnson on a theory that Cox tac-           frontation Clause did not apply.          that the victim is dead and the
itly adopted Johnson’s statements.         4. Turning to the fruits of an illegal                          (Continued on page 27)
                                                                                                                      PAGE 27

APPELLATE DECISIONS
(Continued from page 26)                          gency” category was expanded,          son who performed the analysis, and
                                                  and the reach of the Confronta-        not a “surrogate” who did not, must
     manner of death is homicide.                 tion Clause thereby narrowed, in       testify as a precondition to the admis-
                                                  Michigan v. Bryant, 131 S.Ct.          sion of a report of the results of the
Langley v. State, 421 Md. 560, 28                 1143 (2011). If, given the nature      forensic testing. In the present case, a
A.3d 646 (2011)                                   of the crime and weapon in-            report of a rape resulted in serology
In the immediate aftermath of a shoot-            volved, a threat to the police or      testing which resulted in a 1985 re-
ing at a carry-out store, a woman who             public remains after the perpetra-     port, DNA testing of the samples origi-
did not subsequently testify at trial             tor has departed the initial crime     nally taken from the alleged victim
called 911. Over objection, the 911               scene, then the emergency re-          which was performed in 2002, and
tape was played for the jury; it con-             mains ongoing and statements           after a CODIS hit with Derr’s DNA pro-
tained a description of a vehicle, in-            made during the pendency of that       file, fresh DNA testing of Derr in 2004.
cluding license number, which the                 danger are non-testimonial. Simi-      Although in one instance a supervisor
State theorized was the “getaway car,”            larly here, a gunman had just          who had interpreted results memorial-
and a very general description of a               finished a shooting and was still      ized in a report testified, none of the
man entering that vehicle. At the time            at large when the declarant pro-       bench scientists who had performed
the call was made, the crime had been             vided identifying information.         the actual testing was called as a wit-
completed and the caller knew that                Therefore, the emergency was           ness. Finding error in the admission of
police officers were already respond-             ongoing when the statements            the various reports and “surrogate”
ing. Held: The statements were non-               were made, and the statements          testimony sponsoring those reports,
testimonial, and therefore were not               non-testimonial.                       the Court wrote:
admitted in violation of the Confronta-      5.   The formality of the setting is also   1. Basic purposes of the confronta-
tion Clause as construed by Crawford              germane to the determination of               tion right are to afford the defen-
v. Washington, 541 U.S. 36 (2004).                testimonial versus non-testimonial            dant an opportunity to cross-
In so holding, the Court wrote:                   categorization. A structured sta-             examine, and to allow the trier of
1. Extrajudicial statements, if                   tion-house interview is more likely           fact to observe the demeanor of
     “testimonial,” are admissible                testimonial than a “harried” call to          the witness.
     against Confrontation Clause ob-             a 911 operator.                        2. The hearsay rule (not involved
     jection only if the “witness” is un-    6.   Facts specific to a violent crime             here) and right of confrontation
     available and the defendant had a            (e.g., a purely private dispute in            present separate obstacles to the
     prior opportunity to cross-                  the nature of domestic violence)              admission of extrajudicial state-
     examine the witness.                         may bear upon whether an emer-                ments. Both must be satisfied for
2. The definition of “testimonial” has            gency is continuing at the time a             such evidence to be admissible.
     been extensively discussed in the            statement is made.                     3. A “testimonial” statement includes
     caselaw. At its core is the idea        7.   Whether an emergency is ongoing               one which a reasonable declarant
     that the declarant would reasona-            is assessed objectively, as of the            or objective observer would rea-
     bly expect that the statement                time the statement is made, and               sonably expect to be available for
     would be used “prosecutorially,”             not with the benefit of hindsight.            use at a subsequent trial. A
     or “at a later trial.” Slip op. at 9-                                                      statement the primary purpose of
     10.                                     Derr v. State, 422 Md. 211, 29                     which is to resolve an ongoing
3. A call to police to request assis-         A.3d 533 (2011)                                   emergency, on the other hand, is
     tance with an ongoing emergency         Crawford v. Washington, 541 U.S.                   not testimonial. The Supreme
     is not testimonial, while a state-      36 (2004), established that a                      Court has twice held that analyti-
     ment whose primary purpose is to        “testimonial” extrajudicial statement is           cal reports of forensic testing pre-
     establish “past events,” potentially    inadmissible under the Confrontation               pared by government agents
     relevant to future prosecution, is.     Clause unless the declarant is unavail-            qualify as testimonial. Therefore,
     The idea is that a primary pur-         able and the defendant had a prior                 such reports require the testi-
     pose of resolving an ongoing            opportunity to cross-examine the de-               mony (or prior cross) of the per-
     emergency is inconsistent with a        clarant. Bullcoming v. New Mex-                    son who actually performed the
     purpose of developing a record          ico, 131 S.Ct. 2705 (2011), extended               test. The supposed neutrality or
     for a possible trial.                   Crawford to the context of reports of              reliability of forensic analysts does
4. The scope of the “ongoing emer-           forensic testing, requiring that the per-                          (Continued on page 28)
PAGE 28

                                                                           APPELLATE DECISIONS
(Continued from page 27)                       DNA profile generated by another          641, 28 A.3d 164 (2011)
                                               scientist, Rule 5-703 yields to the       Section 21-904 of the Transportation
    not immunize their reports from            Confrontation Clause and the testi-       Article proscribes both failing to stop a
    the requirements of the Confron-           mony is inadmissible. The Rule            vehicle and fleeing on foot after a ve-
    tation Clause.                             only permits reliance upon “raw           hicle and fleeing on foot after a uni-
4. The Court cited cases applying              data” which has not yet been sub-         formed officer, or an officer in a
    the confrontation guarantee to             jected to scientific testing. Here,       marked police vehicle, has signaled the
    autopsy reports, an area upon              reports of scientists who had gen-        person to stop. Here, an officer who
    which Maryland law is not clear.           erated DNA and serological profiles       knew that Washington had no valid
    Counsel should object to autopsy           were admitted in the absence of           license observed him driving and acti-
    reports unless the specific doctor         testimony of their authors, thus          vated his lights and siren. Washington
    who performed the autopsy is               violating the Confrontation Clause.       first took evasive action in his car, and
    testifying. The Court expressly            That a supervisor who had not             then “bailed out” and ran.
    recognized that the holding of             observed or participated in that          (Interestingly, the incident ended
    Rollins v. State, 392 Md. 455              work was cross-examined on her            when Washington ran into his father’s
    (2006), that an autopsy report is          analysis of those profiles does not       house; the father pushed him back
    admissible under the business              render them admissible.                   outside toward the officer, saying
    records hearsay exception, is no       7. The State may avoid confrontation          “Here he is.”) Washington was con-
    longer valid in light of the more          issues by having the sample re-           victed of both forms of the offense,
    recent Confrontation Clause                tested, and having the person who         and received separate sentences.
    cases. It is reasonable to antici-         performed the retest testify.             Finding only a single conviction and
    pate that such reports will be         8. If a statement meets the definition        sentence supportable, the Court wrote:
    available for use at a later trial, so     of “testimonial,” it is irrelevant that   1. To determine whether the multi-
    they are testimonial under Craw-           it was not made under oath.                     ple sentences violated the double
    ford.                                                                                      jeopardy prohibition, “we deter-
5. “In light of Bullcoming and                                                                 mine first whether the charges
    Melendez, it is inescapable that FLEEING AND ELUDING                                       arose out of the same act or
    the testing procedures and meth-                                                           transaction, and second, whether
    ods employed, the DNA profile          Williams v. State, 200 Md. App.                     the crimes charged are the same
    created, and the conclusion that       73, (2011)                                          offense.” Slip op. at 6.
    there is a match are testimonial in Fleeing or eluding under §21-904 of              2. In the context of resisting arrest,
    nature, and therefore the analyst the Transportation Art. requires that                    it has been held that a single con-
    who performed the DNA testing          the defendant driver ignore a signal to             tinuous act of resisting multiple
    or the supervisor who observed         stop from either a uniformed police                 officers constitutes a single act of
    the analyst perform the DNA test- officer on foot, or an officer in an ap-                 resisting. Similarly, a single act of
    ing must testify in order to satisfy propriately marked police vehicle,                    theft of property belonging to
    the Confrontation Clause, unless       whether or not the officer is in uni-               multiple owners is one crime, not
    the witness is unavailable and the form. If the officer is in a vehicle, that              several. And one who drives on a
    defense had a prior opportunity to vehicle must display “the official mark-                license that has previously and
    cross-examine the witness.” All of ings or designations of a police vehi-                  separately been both revoked and
    these aspects of the DNA process cle.” Slip op. at 40. Held: Lights and                    suspended has engaged in a sin-
    are designed to establish facts        sirens alone, even if activated, are in-            gle “act or transaction” not sup-
    foreseeably relevant in a future       sufficient to show that the car is ap-              portive of multiple sentences.
    trial. They are therefore testimo- propriately marked as a police vehicle.                 Held: Washington engaged in a
    nial for purposes of the Craw-         Official departmental insignia is re-               single act of eluding.
    ford analysis.                         quired. Even if the pursued driver has        3. Whether the two offenses consti-
6. Md. Rule 5-703 allows experts to        actual subjective knowledge that he is              tute the “same offense” is deter-
   base opinions, in some instances,       being pursued by the police, the                    mined by application of the re-
   upon inadmissible evidence gener- State’s case is insufficient absent such                  quired evidence test. The two
   ally relied upon by such experts.       markings.                                           forms of fleeing are not the same
   Held: If the expert relies upon                                                             offense, as each requires proof of
   testimonial materials such as a         Washington v. State, 200 Md. App.                                    (Continued on page 29)
                                                                                                                PAGE 29

APPELLATE DECISIONS
(Continued from page 28)                      immigration/deportation conse-             Padilla merely applied that test
                                              quences of the plea.                       to the guilty-plea-with-
     an element the other does not.      2.   In general, ineffective assistance         immigration-consequences situa-
4.   A theory of merger of offenses for       is established by 1) deficient per-        tion. Since the 1996 federal
     sentencing purposes independent          formance (that which falls below           statutory change, professional
     of the required evidence test is         reasonable representation under            norms require counsel to advise
     legislative intent – absent a show-      prevailing norms) which 2) preju-          clients of the immigration conse-
     ing that the legislature intended        dices the defense by generating a          quences of a guilty plea.
     multiple punishment arising out of       reasonable probability that but for   5.   Both failure to advise, and the
     a single continuous transaction,         counsel’s errors, the outcome              provision of erroneous advice,
     the defendant is entitled to             would have been different.                 constitute deficient performance.
     merger. Held: The legislature       3.   In the guilty plea context, preju-    6.   Rule 4-242 requires that the
     intended to create a single of-          dice is established by a showing           judge, prosecutor, and/or defense
     fense of eluding a police officer,       that but for counsel’s errors, the         counsel advise the non-citizen
     which can be committed in differ-        client would not have entered the          pleading guilty of possible immi-
     ent ways. It did not intend to           plea.                                      gration consequences. And while
     create separately punishable        4.   Where an appellate decision an-            the Rule goes on to state that the
     crimes of eluding by failure to          nounces a new rule, that rule ap-          validity of the plea cannot be
     stop and eluding by fleeing on           plies to all cases then pending in         challenged based on the omission
     foot. What the legislature did           the trial courts, or on direct ap-         of advice relating to a
     intend to separate were the              peal where the issue has been              “collateral” (as opposed to direct)
     modes of signaling a person to           preserved. Here, however, Deni-            consequence of the plea, Padilla
     stop which trigger the statutory         syuk was advised by counsel, and           expressly rejected the collateral/
     prohibition. Thus, the statute           pleaded guilty, before Padilla             direct reasoning in this context,
     includes a) a uniformed officer’s        was decided, and no application            and Rule 4-242 and its
     signal, whether or not he is in a        for leave to appeal was filed.             “legislative” history allow for a
     vehicle, and b) the signal of an         Therefore, the question arose of           post-conviction claim of ineffec-
     officer in a marked police vehicle,      whether Padilla would apply ret-           tive assistance.
     whether or not he is in uniform.         roactively at Denisyuk’s post-        7.   The Strickland prejudice prong
     Relevant to the conclusion that          conviction hearing. As a general           is satisfied if the defendant testi-
     only a single offense was created,       rule, an opinion which applies             fies that he would not have en-
     fleeing on foot and failing to stop      settled precedent to a new situa-          tered the plea had he been prop-
     a) carry the same penalty, b) are        tion does not change the law, and          erly advised, and, critically, the
     prohibited to carry out the same         therefore always applies retroac-          post-conviction judge finds this
     policy, and c) involve in essence        tively. On the other hand a genu-          testimony to be credible. The
     the same conduct.                        ine “new rule,” breaking with the          Court commented that some de-
5.   The statute covers only a driver.        past, raises the question of               fendants will genuinely prefer the
     Fleeing on foot by a person who          whether it applies retroactively.          risk of greater jail time to the cer-
     did not begin the incident in a          Held: The rule of Padilla applies          tainty of deportation.
     vehicle is not covered.                  retroactively to all guilty pleas
                                              occurring after 4/1/97, the date      HOMICIDE
GUILTY PLEA                                   that federal legislation amended
                                              the immigration law to make it far    In re Antonette H., 200 Md. App.
Denisyuk v. State, 422 Md. 462,               more likely that a conviction         341, 27 A.3d 616 (2011)
30 A.3d 914 (2011)                            would result in deportation and to    “One cannot be guilty of felony-murder
1. In Padilla v. Kentucky, 130                severely limit the discretion of             if acquitted of the underlying
    S.Ct. 1473 (2010), the Court held         judges to waive the immigration              felony.” Slip op. at 15.
    that the requirement of effective         consequences. The Court rea-
    assistance of counsel compels an          soned that there is no “new rule,”    INSTRUCTIONS
    attorney advising a defendant             because Strickland v. Wash-
    whether to enter a guilty plea to         ington established the general        Stabb v. State, #2 COA 2011,
    advise the client of the potential        test for ineffectiveness claims and                         (Continued on page 30)
PAGE 30

                                                                          APPELLATE DECISIONS
(Continued from page 29)                       per se, but may constitute an               tive action. (The Court hinted that
                                               abuse of discretion based upon the          a “robust and vehement” defense
11/22/11 (Harrell)                             specific facts of a case.                   argument that the State had failed
Stabb was charged with touching, but      2.   Trial judges may not comment on             to adduce scientific evidence might
not penetrating, a child’s vagina. Po-         the evidence in a manner that may           justify the instruction, which does
lice and personnel of a child advocacy         influence the jury in carrying out          not seem to comport with the
center chose not to send her for any           its role as exclusive factfinder.           usual rules governing closing argu-
medical procedure, including a SAFE       3.   Instructional errors are preserved          ment.)
exam. Defense counsel cross-                   by objecting after the instructions      8. Where the defense does not go
examined a child advocacy center so-           are given, stating the grounds for          overboard in pressing a lack of
cial worker on the reasons for this de-        objection and affording the trial           scientific evidence argument, it is
cision. A detective subsequently testi-        court an opportunity to correct the         better to allow the State to re-
fied that he lied to Stabb about his           error.                                      spond with argument explaining
DNA being recovered from the victim,      4.   An instruction should be pro-               why the evidence would not have
but claimed that DNA can be found in           pounded if it 1) correctly states the       been probative than for the judge
skin-to-skin contact. Over objection,          law, 2) is applicable under the             to propound an instruction which
the judge propounded the following             facts of the case, and 3) is not            reduces the State’s burden and
instruction to the jury:                       fairly covered by other instructions        invades the jury’s province of
          During this trial, you               given.                                      weighing the evidence. Pending
          have heard testimony of         5.   Under Atkins, the instruction               further scientific conclusions, an
          witnesses and may hear               quoted above is improper if it un-          anti-CSI effect instruction should
          argument of counsel that             dermines the State’s burden, and            only be propounded curatively,
          the State did not use a              is not necessary to cure an impres-         after the defense has been guilty
          specific investigative               sion that the State is required to          of “overreaching” in arguing the
          technique or scientific              undertake a particular technique.           State’s failure to prove its case
          test. You may consider               If the defense has done no more             scientifically.
          these facts in deciding              than point out the State’s failure to
          whether the State has                pursue an established technique          Perez v. State, 201 Md. App. 276,
          met its burden of proof.             (e.g., fingerprinting), as it is enti-   29 A.3d 656 (2011)
          You should consider all              tled to do, the instruction improp-      1. Where the jury asks a central le-
          the evidence or lack of              erly comments upon the weight of             gal question, the judge must re-
          evidence in deciding                 the evidence.                                spond in a manner that clarifies
          whether a defendant is          6.   The large amount of scientific in-           any confusion evidenced by the
          guilty. However, I in-               quiry into the existence vel non of          inquiry. Thus, where a deliberat-
          struct you that there is             a CSI effect has yielded inconsis-           ing jury in a forcible sexual of-
          no legal requirement that            tent and inconclusive results. It is         fense prosecution asked for clarifi-
          the State utilize any spe-           not established that jurors insist           cation of the concept of consent,
          cific investigative tech-            upon scientific evidence in order to         and its question had not been
          nique or scientific test to          convict.                                     covered by previous instructions,
          prove its case. Your re-        7.   Here, although the defense                   the judge was obligated to an-
          sponsibility as jurors is to         pressed a number of theories                 swer the question.
          determine whether the                (alibi, improper motives of state’s      2. Ordinarily Maryland Pattern In-
          State has proven based               witnesses, etc.), a lack of scientific       structions are correct, and are
          upon all the evidence the            evidence was among those theo-               favored. At times, however, the
          defendant’s guilty be-               ries. The Court also found the in-           facts of a particular case will de-
          yond a reasonable                    struction problematic because it             mand a non-pattern instruction,
          doubt. [Emphasis                     was given “preemptively” (prior to           or render a pattern instruction
          added.]                              any forceful defense argument on             erroneous. See Arthur v. State,
Finding error, the Court wrote:                the subject), and because in fact            420 Md. 512 (2011).
1. Under Atkins v. State, 421 Md.              defense counsel did not overly
     434 (2011), an “anti-CSI-effect”          “harp” on the topic in her closing.      Wilson v. State, #136 COA 2010,
     jury instruction is not erroneous         There was thus no need for cura-                              (Continued on page 31)
                                                                                                                    PAGE 31

APPELLATE DECISIONS
(Continued from page 30)                    ness inference arises where “(1) there   out that the jury had disobeyed the
                                                                                     admonition to refrain from making its
                                            is a witness, (2) who is peculiarly avail-
30 A.3d 955 (2011)                          able to one side and not the other, (3)  own investigation and thereby learned
Where a defendant produces “some            whose testimony is important and non-    information it should not have. The
evidence” supportive of a theory of         cumulative and will elucidate the trans- judge brought the jury in, admonished
mitigation (here, imperfect self-           action, and (4) who is not called to     the jurors to disregard the new infor-
defense), the trial court upon request      testify.” Slip op. at 16, quoting        mation, and asked if any juror would
must instruct on that theory, even if       Woodland v. State, 62 Md. App.           be unable to comply. No juror re-
the claim is “overwhelmed by evidence       503, 510 (1985). The Court empha-        sponded. The judge directed them to
to the contrary.” Slip op. at 8. Where      sized that the State had disclosed the   resume deliberations and denied the
the requisite “some evidence” is gener-     name of the individual (the alleged      motion for mistrial. Four and a half
ated, it is error for the trial judge to    victim) to the defense in discovery,     hours later the jury returned a verdict,
reject the instruction on the basis of      and that the defense had taken no        convicting of several of the charges.
drawing inferences contrary to the de-      steps to locate her and bring her to     Finding error, the Court wrote:
fense theory. Doing so invades the          court. (Interestingly, the Court did     1. The Sixth Amendment and Art. 21
province of the jury. Here, there was       not say that under the Patterson line        right to an impartial jury includes
a lot of evidence that Wilson was look-     of cases, missing witness and other          the right to have guilt determined
ing for a fight when he approached the      evidentiary inference instructions are       solely on the basis of evidence and
victim and his companions, the victim       now generally disfavored as matters          argument heard in open court.
produced a gun, and Wilson pulled the       appropriate for counsel’s arguments      2. There is a range of juror miscon-
gun away from him and shot him four         but not jury instructions.)                  duct; in some instances a mistrial
times. But Wilson also told the police                                                   is mandated, while in others a
that his intention was to “squash” the      JURY TRIAL                                   lesser remedy such as a curative
preexisting dispute and that it was “kill                                                instruction or substitution of an
or be killed” when the victim produced      Johnson v. State, #137 COA 2010,             alternate will suffice. Where the
the weapon, and this was sufficient to      31 A.3d 239 (2011)                           possibility of prejudice is great,
require an instruction on imperfect self    The State theorized that Johnson was         prejudice will be presumed, shift-
-defense. On the other hand, Wilson         the first-degree principal in the rob-       ing the burden to the State to re-
was not entitled to an instruction on       bery of a McDonald’s manager, and            but it. Here, the Court found that
hot-blooded response to legally ade-        introduced evidence that he answered         although the juror misconduct was
quate provocation, because he re-           a cell phone call during the robbery.        intentional and serious, there was
sponded in the negative when asked if       Reid testified that he was Johnson’s         no need to decide whether preju-
he fired the shots because he “got          accomplice. When Reid was arrested           dice was presumed because the
mad.”                                       in an alley outside of the McDonald’s        trial judge failed to take sufficient
                                            he had in his possession, inter alia,        curative action in response.
Molter v. State, 201 Md. App. 155,          two cell phones. He testified that he        Where juror misconduct is re-
28 A.3d 797 (2011)                          called Johnson during the robbery and        ported and a motion for mistrial
If a curative instruction is incorrect or   told him that a woman had observed           made, the judge is obligated to
insufficient, it must be objected to at     the beginnings of the robbery and was        perform a full investigation prior to
trial in order to make that argument        calling the police. Later Johnson called     ruling upon the motion. Here, the
on appeal. Rule 4-325(e), requiring         him, directing him where to pick up          single inquiry to the jury as a
that errors in jury instructions in gen-    the proceeds of the robbery. The two         whole was insufficient. The court
eral must be objected to, applies to        cell phones, without batteries and           should have questioned the jurors
curative instructions.                      powerless, were introduced into evi-         individually concerning the identity
                                            dence and given to the jury during           of the offending juror, what each
Pinkney v. State, 200 Md. App.              deliberations. The jury sent the judge       juror learned from the activation of
563, 28 A.3d 118 (2011)                     a note that a juror had activated one        the phone, and the degree of
In holding that the defense was not         of the phones using his own battery,         prejudice with respect to each ju-
entitled to a missing witness instruc-      and determined that a call had been          ror. Without this additional infor-
tion because the witness at issue was       made to Johnson at 3:08 a.m., shortly        mation, the judge had an insuffi-
not peculiarly available to the State,      after the robbery began. Defense             cient basis for a proper exercise of
the Court wrote that the missing wit-       counsel moved for a mistrial, pointing                           (Continued on page 32)
PAGE 32

                                                                            APPELLATE DECISIONS
(Continued from page 31)                          appellate review because of de-              his photographic analysis skills to
                                                  fense counsel’s failure to object.           influence the jury, the Court
    discretion resulting in the denial of 2.      While Rule 4-326(d) requires the             wrote that there is no impropriety
    the motion for mistrial. Finally, the         trial judge to promptly inform the           in jurors bringing to bear their
    fact that the jury made prompt                parties of a communication from a            preexisting knowledge and experi-
    report of the incident does not dis-          juror, any error here was harm-              ence (e.g., in a field such as
    pel the possibility that they were            less. There was no response                  medicine) to evaluate the evi-
    influenced by the new information,            given in the absence of input by             dence.
    which bolstered the credibility of            counsel. There was only a single
    the accomplice by corroborating               brief recess during which the mat-      JUVENILE PROCEEDINGS
    his account of the phone call dur-            ter could have been discussed by
    ing the robbery.                              the jury, and the jurors were ad-       Gaines v. State, 201 Md. App. 1,
                                                  monished not to discuss the case.       28 A.3d 706 (2011)
Wimbish v. State, 201 Md. App.                    And by the time deliberations           1. Where the State seeks to waive
239, 29 A.3d 635 (2011)                           commenced, the alternate was                juvenile jurisdiction and transfer a
It is improper to propound a voir dire            gone.                                       case to “adult” circuit court, it
question which asks if a prospective                                                          bears the burden of proving, by a
juror has had a particular experience        Charleau v. State, 200 Md. App.                  preponderance, that the respon-
(e.g., was a victim of crime), whether       549, 28 A.3d 110 (2011)                          dent is an unfit subject for juve-
that experience would affect the ju-         A jury convicted defendant of robbery            nile rehabilitative measures.
ror’s ability to be impartial, and directs   and related offenses. Shortly thereaf-           Relevant to that determination are
the juror to respond only if the answer      ter, two jurors informed defense coun-           the five enumerated statutory
to both sub-questions is in the affirma-     sel and the prosecutor that a third ju-          factors: age, mental and physical
tive. However, it is permissible to ask      ror had informed the jury that he was            condition, amenability to treat-
if the jurors have a particular opinion      a photography analyst, produced a                ment as a juvenile, nature of of-
or state of mind (e.g., an attitude to-      magnifying device, used the device to            fense and respondent’s role, and
ward the crime on trial), and if so          view evidence photographs, and had               the public safety.
whether it affects their ability to render   some influence upon the remaining            2. If the child is 14 or older and the
a fair verdict. See Dingle v. State,         jurors. Denying a motion for new trial,          crime one for which an adult
361 Md. 1 (2000), and compare Tho-           the trial judge found that the device            would face death or life imprison-
mas v. State, 369 Md. 202 (2002).            was used to examine a photo in evi-              ment, original jurisdiction lies with
The former type of question, but not         dence, and that no extrinsic evidence            the adult court. Similarly, a child
the latter, withholds from the trial         was considered by the jurors. Affirm-            16 or older who commits one of a
judge information necessary to deter-        ing that denial, the Court wrote:                range of somewhat less serious
mine whether the juror can be impar-         1. Rule 4-326(b) lists the items that            enumerated offenses is initially
tial.                                              may go to a deliberating jury, and         tried as an adult. In these in-
                                                   the magnifying device here is not          stances the adult court may
Morton v. State, 200 Md. App.                      listed. However, cases reversing           “reverse-waive” the case to juve-
529, 28 A.3d 98 (2011)                             convictions because a deliberating         nile court, but in this instance the
Early in trial, an alternate juror sent a          jury had something it ought not to         defendant bears the burden of
note to the judge stating that he knew             have had have done so because              persuasion.
a person who accompanied a witness                 the defendant was prejudiced.          3. In the reverse-waiver context, five
into the courtroom. The judge at that              Here, there was no such preju-             similar factors are determined and
point took no action. Later, after the             dice.                                      weighed; factor (4) is simply the
alternate had been excused, the judge        2. The improper introduction of a                nature of the crime and unlike the
revealed the note to counsel, explain-             magnifying device becomes preju-           waiver context does not mention
ing that he had taken no action be-                dicial if its use results in the de-       the child’s participation.
cause he anticipated a quick trial at              velopment of new evidence, as          4. In the waiver context, but not
which the alternate’s services would               opposed to a “more critical” ex-           that of reverse-waiver, it is pre-
not be required. Defense counsel did               amination of an item already               sumed that the child committed
not object or even comment. Held:                  properly in evidence.                      the charged offense.
1. The issue was not preserved for           3. With respect to the juror’s use of                              (Continued on page 33)
                                                                                                                       PAGE 33

APPELLATE DECISIONS
(Continued from page 32)                        amenable to rehabilitation in the             viding a copy of the report 10
                                                juvenile system.                              days prior to the introduction of
5.   The “nature of the offense” factor 9. The hearing judge did not err in                   the report at trial.
     in both the waiver and reverse-            considering a series of prior           2. Because the State is the benefici-
     waiver contexts permits the judge          charges which ended in dismissals             ary of the notice requirement – it
     to consider surrounding circum-            for the proposition that had                  relieves it of the need to call a
     stances, such as injury to a rob-          prosecution followed through,                 witness – it bears the burden of
     bery victim beyond the facts of            Gaines might have received reha-              establishing compliance with the
     the robbery itself. And even in            bilitative services and avoided the           notice provision, even if the de-
     the reverse-waiver context, the            serious offense giving rise to this           fense did not file a demand for
     judge may consider the specific            appeal.                                       the chemist’s appearance.
     conduct of the various perpetra-                                                   3. The State’s failure to provide no-
     tors; this could help the defen-     NARCOTICS & PARAPHERNALIA                           tice precludes it from introducing
     dant if his role was limited and co                                                      the report without the chemist’s
     -perpetrators took a more central Harrod v. State, #69 COA 2010,                         testimony. It is no defense to the
     role.                                31 A.3d 173 (2011)                                  State’s failure to comply with the
6.   The trial court did not err in ad-   Under §§10-1001 and 10-1003 of the                  notice requirement that the de-
     mitting a DJS waiver study which Courts Art., a chemist’s report identify-               fense did not request the pres-
     included a statement of the re-      ing a substance as being or containing              ence of the chemist, or that the
     spondent to the DJS investigator     CDS is prima facie correct if notice is             chemist had testified at the earlier
     in the absence of Miranda warn- provided and certain facts are certified,                trial. In so holding, the Court
     ings. The Court made a number        but upon demand by the defendant,                   cited cases from other states re-
     of points in so holding:             the chemist and others in the chain of              quiring strict compliance with the
     a) Such reports are statutorily      custody must be produced as State’s                 requirements of similar statutes.
     admissible at waiver and disposi- witnesses. Here, Harrod was tried
     tion hearings, although not at       twice on the same CDS charge. At              Williams v. State, 200 Md. App.
     adjudicatory hearings.               trial I, the chemist appeared, testified, 73, 24 A.3d 210 (2011)
     b) At both waiver and reverse-       and was cross-examined. The jury              Defendant was charged with distribu-
     waiver hearings, the judge may       hung. At trial II, because of the unex- tion of cocaine. The evidence gener-
     decline to apply the strict rules of pected denial of a motion for continu- ated the possibility that he had distrib-
     evidence.                            ance, the State was unable to produce uted the substance, and also that he
     c) Even if Miranda applied to        the chemist. Over objection, the trial        was in simple possession, and the
     the DJS worker’s interview, waiver court admitted both the chemist’s tes- judge instructed the jury on both. The
     and reverse-waiver hearings are      timony from trial I, and her report.          defense on appeal argued that posses-
     not adjudicatory of guilt or inno-   Finding error, the Court wrote:               sion was not a lesser included offense
     cence. “Thus, constitutional limi- 1. The granting of a mistrial or new of distribution, because the facts es-
     tations on admissibility of evi-           trial, in general, restores the par- tablished that defendant was either a
     dence that govern criminal trials          ties to their original circum-          seller, or a buyer who ended up back-
     and adjudicatory hearings do not           stances, “wiping the slate              ing out and never actually controlling
     automatically apply to reverse             clean.” (Note: But see the Tu/ the drugs, and that a note from the
     waiver hearings.” Slip op. at 15-          Logne line of cases, not men-           jury indicated that it rejected the con-
     16.                                        tioned by the Court: if the defen- clusion that he was the seller. Finding
7.   That Gaines was 17 years, three            dant lost on a pre-trial-I suppres- no error, the Court wrote:
     months old at the time of the of-          sion issue, it would be discretion- 1. “It is well settled that a defendant
     fense weighed against reverse-             ary with the trial judge whether to           charged with a greater offense
     waiver, as age 18 is the cutoff            permit relitigation prior to trial II.)       can be convicted of an uncharged
     that precludes juvenile jurisdiction       Because a “tabula rasa” was                   lesser included offense.” Slip op.
     altogether.                                created by the mistrial, the State’s          at 11. For this rule to apply, a)
8.   It is error to base a waiver deci-         obligation revived under §10-1003             the lesser crime must be a “lesser
     sion solely upon public safety,            to place the defense on notice of             included offense” under the
     particularly where there are miti-         its intention to introduce the re-            “required evidence [elements]
     gating factors and the accused is          port without the chemist by pro-                                (Continued on page 34)
PAGE 34

                                                                            APPELLATE DECISIONS
(Continued from page 33)                   limit if the pleading requirements set            establishes a requirement of plead-
                                           forth in the statute are complied with.           ing for purposes of entitlement to
     test; b) its maximum penalty can-     Subsection (e) provides that the circuit          a hearing, not a requirement of
     not exceed that for the greater       court “shall” hold a hearing if the tech-         proof. For this purpose, the peti-
     offense; c) the statute of limita-    nical requirements of subsection (b)              tion is construed generously in fa-
     tions on the lesser cannot have       (including a request for a hearing) are           vor of granting a hearing. Slip op.
     run; and d) the two offenses must     complied with. The newly discovered               at 20. Further, the Court’s practice
     be of the same general charac-        evidence alleged must not have been               is to liberally construe pro se fil-
     ter.”                                 discoverable in time to file a “regular”          ings by inmates.
2.   Possession of CDS is a lesser in-     motion based upon such evidence un-            5. Because of the generous construc-
     cluded offense of distribution.       der Rule 4-331. Held:                             tion afforded an unrepresented
     One cannot distribute without         1. Denial of a petition for writ of ac-           inmate’s pleading, he need not
     exercising dominion and control,           tual innocence is a “final judg-             come out and say “I want a hear-
     which is the essence of posses-            ment” under §12-301 of the Courts            ing” if that request is otherwise
     sion.                                      Art., and therefore appealable. In           implied.
3.   Defendant was put on notice by             this respect, the new remedy is           6. In holding that Douglas was erro-
     the colloquy over the possession           similar to the established motion            neously deprived of a hearing, the
     instruction that a possible verdict        for new trial based on newly dis-            Court noted that the discovery of
     option was guilty of possession.           covered evidence, denial of which            Joseph Kopera’s perjured creden-
     And the evidence was sufficient            is also reviewable. Slip op. at 11.          tials could qualify as “newly discov-
     on that count based either upon       2. The petitioner is limited to one               ered evidence.” Pleading that
     the State’s evidence that he was           petition respecting any particular           Kopera’s perjury denied a defen-
     the seller, or the defense evi-            item of newly discovered evidence,           dant a fair trial surmounts the re-
     dence that he held the drugs,              and must in the petition distinguish         quirement that the petition state a
     deemed then unsatisfactory, and            that evidence from evidence relied           cause of action.
     rejected them. Defense counsel             upon in any prior petition.               7. Evidence that is “known” at trial or
     was on notice prior to closing ar-    3. Actual innocence is not a basis for            in time to file an ordinary post-trial
     guments that conviction on this            relief under the Uniform Post Con-           motion, even if not then
     count was possible, and therefore          viction Procedure Act, and that Act          “available,” is not “newly discov-
     had a fair opportunity to argue            does not substitute for a motion             ered,” either for purposes of a Rule
     the matter to the jury.                    for new trial. Therefore, the Act’s          4-331 motion, or an actual inno-
4.   Where both parties object to in-           restrictions upon appeals, see               cence petition.
     structing the jury on an un-               Crim. Proc. §7-107(b)(1), do not
     charged lesser included, the judge         apply to claims of innocence be-          RAPE
     should not instruct on it. It is           cause the Act does not provide a
     acceptable for the judge to raise          remedy in the context in which a          Perez v. State, 201 Md. App. 276,
     the issue, so long as at least one         writ of actual innocence does pro-                 29 A.3d 656 (2011)
     of the parties “affirmatively              vide a remedy. The General As-            In rape cases, lack of consent can be
     agrees” that the jury be given the         sembly intended that the writ pro-        established by resistance, or by failure
     option of convicting of the lesser         cedure be broader than, and not           to resist as a result of fear. Extreme
     included.                                  restricted by, the provisions of the      fear may establish lack of consent
                                                Post-Conviction Act.                      even when unaccompanied by actual
POST-CONVICTION                            4. A failure of the petition to state          resistance. However, in the presence
                                                grounds upon which relief can be          of force or threat of force rape may be
Douglas & Curtis v. State, #146-                granted entitles the trial court to       committed even in the absence of
47 COA 2010, 31 A.3d 250 (2011)                 dismiss it without a hearing.             proof of extreme fear. By contrast,
Section 8-301 of the Crim. Proc. Art.           “Grounds,” by statutory definition,       fourth degree sexual offense requires
establishes a “Petition For Writ Of Ac-         is newly discovered evidence, not         lack of consent, but is a misdemeanor
tual Innocence.” This is a pleading             findable in time to file a 4-331 mo-      which does not require proof of force
which in effect is equivalent to a mo-          tion, which creates a substantial or      or threat of force. Held: There was
tion for new trial based upon newly             significant possibility that the result   ample evidence of lack of consent sus-
discovered evidence, but with no time           may have been different. This                                   (Continued on page 35)
                                                                                                                      PAGE 35

APPELLATE DECISIONS
(Continued from page 34)                           presence of force, there must be        Md. 585 (1989).
                                                   more force involved than merely
taining a fourth degree sex offense                that necessary to take possession.      SEARCH & SEIZURE
conviction where the defendant digi-          3. Where the State relies upon intimi-
tally penetrated the victim by stating             dation or putting in fear, the test     Briscoe v. State, 422 Md. 384, 30
that if she did not go along he would              is whether on the basis of an ob-       A.3d 870 (2011)
tell her mother she had failed a drug              jective view of the perpetrator’s       1. Following Davis v. United
test, and by ignoring her requests that            actions, the involved conduct rea-          States, 131 S.Ct. 2419 (2011),
he “stop” after the act had begun.                 sonably tended to create the ap-            the Court held that where a
                                                   prehension in the victim that the           search is valid under binding
RESISTING ARREST                                   perpetrator was about to apply              precedent at the time the search
                                                   force. This standard takes into             is conducted, but as a result of a
McNeal v. State, 200 Md. App.                      account “if the means employed              change in the law is invalid when
          510, 28 A.3d 88 (2011)                   are calculated to instill fear in the       the matter is litigated, the good
Section 9-408 of the Crim. Law Art. did            heart or mind of a reasonable               faith exception to the exclusionary
not abrogate the common-law crime of               man.” Slip op. at 10. Relevant,             rule renders the seized evidence
resisting arrest; in Maryland there is             for example, is whether the de-             admissible. Thus, under New
“constitutional underpinning” to the               fendant’s clothing (or in one case,         York v. Belton, 453 U.S. 454
common law which establishes a pre-                a folded newspaper) could con-              (1981), the search incident to
sumption that statutes do not abrogate             ceal a weapon. It need not be               arrest exception permitted an offi-
the common law unless their intent to              shown that the victim was actu-             cer who lawfully arrested the op-
do so is clear. However, the statutory             ally put in fear, but rather                erator of a vehicle to search the
maximum three-year sentence does                   whether the means employed                  passenger compartment of the
replace the common-law sentence of                 were calculated to instill fear in a        vehicle, including locked opaque
any punishment that is not cruel and/              reasonable person. Held: Merely             containers within the vehicle,
or unusual.                                        saying “Don’t say nothing” is in-           without a warrant, even if the
                                                   sufficient to intimidate a reason-          driver is under police control and
ROBBERY                                            able person by conveying a threat           cannot access the vehicle to seize
                                                   of harm. There was no demand                a weapon or destroy evidence.
Spencer v. State, 422 Md. 422, 30                  for money, express or implied               Arizona v. Gant, 556 U.S. 332
A.3d 891 (2011)                                    threat, or indication of a con-             (2009), overruled Belton, and
Spencer approached a Jiffy Lube cash-              cealed weapon. That the lawful              held, with retroactive application,
ier and said, “Don’t say nothing.”                 custodian is aware that property            that the search incident exception
Asked it he believed Spencer had a                 is passing into the possession of           does not apply under these cir-
weapon, and how he felt when                       an unauthorized custodian is not            cumstances. The Court of Ap-
Spencer approached, the cashier an-                sufficient to bridge the gap be-            peals found that while Belton
swered both questions with, “I wasn’t              tween larceny and robbery.                  was controlling, Maryland courts
taking no chances.” Apparently with-               (Note: The majority also reversed           construed it “broadly” to mean
out further prompting, he handed over              an assault conviction, leaving only         that a search incident was permis-
the drawer from the cash register.                 a theft conviction standing.)               sible even if it was impossible for
Finding the evidence insufficient to                                                           the arrestee to reach a weapon or
sustain a conviction for robbery, the         Charleau v. State, 200 Md. App.                  evidence in the vehicle. Held: A
Court wrote:                                  549, 28 A.3d 110 (2011)                          pre-Gant search that violated the
1. Robbery is distinguished from lar- That a “real gun” was used in a rob-                     Gant rule but was valid under the
      ceny by the presence of force,          bery, thus elevating the offense to rob-         Belton rule was executed in good
      threat of force, or putting in fear. bery with a deadly weapon, may be                   -faith reliance upon binding prece-
      Coles v. State, 374 Md. 114             proved by circumstantial evidence. If,           dent, rendering the exclusionary
      (2003). Thus, a sudden, unre-           however, the actual “weapon” is recov-           rule inapplicable.
      sisted purse snatch, which does         ered and turns out to be a harmless          2. Warrantless searches are pre-
      not instill fear in the victim, is lar- toy (presumably not used as a bludg-             sumptively unreasonable. The
      ceny and not robbery.                   eon), the deadly weapon element is               State, therefore, bears the burden
2. Where the State relies upon the            absent. See Brooks v. State, 314                                  (Continued on page 36)
PAGE 36

                                                                          APPELLATE DECISIONS
(Continued from page 35)                        of the officer are generally irrele-       beyond the point at which its traf-
                                                vant. Here, the question is                fic-enforcement purpose has been
    of justification. Among the recog-          whether an “objectively reason-            completed if articulable suspicion
    nized exceptions to the warrant             able officer” would believe that he        has arisen as to another offense.
    requirement is an inventory                 was conducting a proper search.            If that purpose has been com-
    search. In general, this exception          If so, the deterrent purpose of the        pleted without articulable suspi-
    validates “a search of a vehicle for        exclusionary rule has no place.            cion arising or consent to a
    the purpose of itemizing the prop-                                                     “second stop,” the driver must be
    erty therein … so long as the ve-      Partlow v. State, 199 Md. App.                  permitted to leave.
    hicle is in lawful police custody at   624, 24 A.3d 122 (2011)                    4.   Here, the police had two justifica-
    the time of the search and the         Police received a tip that the driver of        tions. The traffic stop had not
    search is carried out pursuant to      a Cadillac with a specified tag number          been completed or unreasonably
    ‘standardized criteria or [an] es-     had just conducted a drug sale. An              prolonged when the dog arrived
    tablished routine’ established by      officer located the car nearby and ob-          and alerted – it was less than 20
    the law enforcement agency.”           served it run a stop sign and proceed           minutes from stop to alert, and
    Slip op. at 10. Such a search may      with a defective brake light. Stopping          the officer was still writing the
    not be investigatory, but instead      the car, the officer recognized the             warnings at that point. And sec-
    must further the recognized pur-       driver as a person with a CDS and               ondly, the totality of the circum-
    poses of protecting police, pro-       gang affiliation background, and noted          stances recited above conferred
    tecting property, and preventing       a large quantity of cash and air fresh-         articulable suspicion that the
    claims of loss or theft.               eners in the car. A drug dog was                driver was engaged in drug activ-
3. Here, finding a purported inven-        called to the scene 12 minutes after            ity even before the dog alert con-
    tory search not justified on that      the stop and alerted while the officer          ferred probable cause to arrest.
    basis, the Court wrote that where      was still writing a warning for the traf-       Therefore, even if the police con-
    the search invades a closed or         fic violations. A pat-down of the driver        ducted a “second stop” after the
    locked container within the vehi-      resulted in feeling a hard object be-           traffic enforcement phase had
    cle, the State must establish the      neath his buttocks which would not              ended and before the dog alert
    existence of “standardized crite-      yield to an attempt to pull it loose. As        conferred probable cause, that
    ria” governing the search of such      the driver was wearing extremely low-           second stop was legitimized by
    containers. Even if the police de-     riding trousers, the officer pulled his         articulable suspicion of drug activ-
    partment has a written policy on       underpants away from his body and,              ity.
    inventory searches, silence on the     using a knife, cut a baseball-sized hole 5.     Factors innocuous in themselves
    subject of opening closed or           which exposed that much of his but-             (notoriously, the use of air fresh-
    locked containers means that           tocks while allowing recovery of what           eners) may, within the training
    such a search cannot be distin-        turned out to be cocaine. Finding no            and experience of a police officer,
    guished from a general investiga-      error in the denial of a motion to sup-         contribute to the arising of articu-
    tory search. The Court then re-        press, the Court wrote:                         lable suspicion during the traffic-
    jected the State’s inevitable dis-     1. In order to justify a vehicle stop,          enforcement phase of the en-
    covery backup argument predi-                the police must have articulable          counter. Here, the officer also
    cated upon the lawful towing of              suspicion either that the driver          had the report of the deal involv-
    the vehicle – the State must, but            committed a criminal offense, or          ing the car, his knowledge con-
    did not, actually prove that once            committed a traffic violation. To         cerning the driver, and the large
    the vehicle was in police custody,           proceed to a frisk of the driver,         amount of visible currency.
    1) a lawful inventory search would           the officer must also have reason- 6.     Turning to the asserted “strip
    have occurred under the criteria             able grounds to believe that he is        search,” the Court first noted that
    listed above, which 2) would in-             armed and dangerous.                      a canine alert to a vehicle for
    evitably have resulted in seizure      2. A traffic violation supports a car           drugs confers probable cause to
    of the evidence.                             stop even if the officer’s actual         arrest the driver and search him
4. The good faith doctrine, like much            intent is to perform a drug investi-      incident to that arrest. Such an
    Fourth Amendment jurisprudence,              gation. Whren v. United                   arrest does not automatically per-
    analyzes objectively – the actual            States, 517 U.S. 806 (1996).              mit a strip search. The reason-
    subjective thoughts and intentions     3. A traffic stop may be extended                                (Continued on page 37)
                                                                                                                    PAGE 37

APPELLATE DECISIONS
(Continued from page 36)                    1.   The officers had a right to swab   Johnson did most of the talking, telling
                                                 the chair – their own property –   West that he did the shooting because
     ableness of a strip search is deter-        without a warrant.                 Cox offered him $15,000 to do so.
     mined by balancing the factors         2.   A defendant pressing a Fourth      Cox added a few details and never
     identified in Bell v. Wolfish, 441          Amendment claim bears the bur-     controverted what Johnson was say-
     U.S. 520 (1979): scope of search,           den of establishing a legitimate   ing. At Cox’s trial, West was permitted
     manner of search, justification for         expectation of privacy in the placeto testify to his conversation with Cox
     search, and location. Assuming              searched or item seized. This re-  and Johnson on a theory that Cox tac-
     that the search here was a strip            quires an actual, subjective ex-   itly adopted Johnson’s statements.
     search and not merely a “reach-             pectation, as well as one that is  Rejecting arguments that these state-
     in” search, it was reasonable.              objectively reasonable in the      ments either violated Cox’s confronta-
     The informant’s tip and K-9 alert           sense that society is prepared to  tion rights or were fruit of the illegal
     provided reason to believe the              recognize it. Maryland’s DNA Col-  arrest, the Court wrote:
     driver was dealing drugs, and               lection Act, §2-502-506 of the     1. A casual statement by one inmate
     dealers frequently hide their               Public Safety Art. (not implicated      to a second inmate who is not at
     wares in body cavities. No cloth-           here) does not offend privacy in-       that point a state agent is not
     ing was removed, and the cutting            terests because it permits collec-      “testimonial” for Confrontation
     was done because the object dis-            tion and storage of DNA solely for      Clause purposes, and therefore
     covered could not be pulled loose           identification purposes, and does       under the Crawford v. Washing-
     by ordinary means. The search               not permit testing for other ge-        ton analysis its admissibility is de-
     was conducted on the passenger              netic characteristics. Because          termined by state-law rules of evi-
     side of a police car, out of the            personal traits are not deter-          dence only. The Court noted that
     view of traffic. The suspect wore           mined, the statute and collections      some courts have found such
     a long coat or shirt that covered           pursuant to it are constitutional.      statements non-testimonial even if
     the buttocks area. There was no             Held: Where DNA is collected for        the second inmate is an informant,
     showing that any civilian observed          identification purposes only, there     because the statement does not
     the incident, and the officer testi-        is no objectively reasonable ex-        have as its primary purpose estab-
     fied that moving to a more private          pectation of privacy. So long as        lishing facts relevant to future
     location presented a risk that the          the DNA lawfully comes into the         prosecution, and is informal.
     evidence would be discarded. At             possession of the police, there is 2. Recent Supreme Court jurispru-
     least some effort was made to               no Fourth Amendment search; the         dence suggests that “most, if not
     protect the suspect’s privacy.              analysis is essentially the same as     all, statements that are not made
     There was no manipulation of                that governing lawfully collected       to state actors are nontestimonial.”
     intimate body parts. Under these            fingerprints, despite some scien-       Slip op. at 16.
     circumstances, the search did not           tific evidence that “junk” DNA     3. In ascertaining the “primary pur-
     violate the Fourth Amendment.               presently usable only for identifi-     pose” in making and eliciting state-
                                                 cation purposes may with techno-        ments during a particular encoun-
Raynor v. State, 201 Md. App.                    logical advances reveal personal        ter, the test is not the subjective
         209, 29 A.3d 617 (2011)                 characteristics.                        intent of the participants, but
Raynor, suspected in a rape but not                                                      rather, objectively, what the pur-
charged, was interviewed at a police        Cox v. State, 421 Md. 630, 28 A.3d           pose of a reasonable person would
station. He refused to give a DNA           687 (2011)                                   be under the specified circum-
sample, but one of the officers noticed     Cox was stopped for a traffic violation      stances. If the primary purpose of
that he was rubbing his bare arms           in an area where a murder had been           a reasonable person would be to
against the armrests of the chair in        committed. Johnson was a passenger.          create a substitute for trial testi-
which he was sitting. The officer           Concededly, police detained them at          mony, then the assertion is testi-
swabbed the chair, and DNA extracted        the scene for an unconstitutionally ex-      monial. In the present case, the
from the swabs matched that ex-             tended period, illegally arrested them,      casual conversation between in-
tracted from blood recovered from the       and took them to Central Booking.            mate/acquaintances could not rea-
crime scene. The trial court denied a       The following day, a conversation took       sonably have occurred with the
motion to suppress. Affirming, the          place at that facility between Cox,          expectation that what was said
Court wrote:                                Johnson, and another inmate, West.                              (Continued on page 38)
PAGE 38
                                                                            APPELLATE DECISIONS
(Continued from page 37)                          dence of the corpus delicti is          duction and proof lies with the
                                                  required to show that a crime in        State at the suppression hearing.
   would later be used prosecutorially            fact occurred; criminal agency          This applies to the issue of stand-
   in court. Nor did the conversation             need not be corroborated. In a          ing.
   have the formality associated with             homicide prosecution, it is enough 3. McGurk possessed a constitution-
   testimonial substitutes like affida-           that a medical examiner testifies       ally-protected reasonable expec-
   vits, depositions, formal state-               that the victim is dead and the         tation of privacy in the balcony.
   ments to police, and the like.                 manner of death is homicide.            There is a two-part test for the
   Therefore, the Confrontation                                                           existence of such an expectation:
   Clause did not apply.                    McGurk v. State, 201 Md. App. 23,             an actual subjective expectation,
4. Turning to the fruits of an illegal                28 A.3d 720 (2011)                  and society’s willingness to recog-
   arrest and search aspect, the Court      At 3:15 a.m., McGurk was sitting on a         nize it as reasonable. For pur-
   wrote that a defendant bears the         second-floor balcony of an Ocean City         poses of the subjective expecta-
   burden of proving two things: that       apartment where she was an overnight          tion, that is presumed to exist in
   the police engaged in conduct vio-       guest. Also present on the balcony            the home and its “curtilage” – the
   lating the Fourth Amendment, and         was Villagra. A police officer on bicy-       area immediately surrounding the
   that this primary illegality was         cle patrol smelled burnt marijuana in         home in which the “intimate activ-
   causally responsible, in more than       the area, and noticed the two people          ity” of life, slip op. at 11, is car-
   a “but-for” way, for the seizure of      on the balcony. Uninvited, he as-             ried out. Whether an area quali-
   the evidence the defendant wants         cended stairs which provided access to        fies as curtilage is tested by four
   suppressed. Three doctrines iden-        the balcony, and began to question            factors: proximity to the home,
   tify circumstances in which the          McGurk and Villagra. As he ap-                inclusion within an enclosure sur-
   defendant cannot bear this bur-          proached Villagra, he again smelled           rounding the home, the uses to
   den: a) it was inevitable that the       burnt marijuana. After initial denials        which the area is put, and the
   police would have discovered the         Villagra admitted to having smoked a          steps taken to prevent observa-
   evidence; b) the evidence has a          “roach” just as two backup officers           tion. From this balcony’s height,
   source independent of the primary        arrived. The initial officer then found a     railing, and furnishings, the Court
   illegality; and c) the taint has been    still-warm roach on the ground be-            found it to come within the curti-
   attenuated by the time the deriva-       neath the balcony and arrested Vil-           lage, and therefore to have full
   tive “fruit” is obtained.                lagra. A backup officer then ques-            Fourth Amendment protection.
5. Relevant here is the attenuation         tioned McGurk, and smelled burnt          4. An area where one may expect
   doctrine, which requires a balanc-       marijuana upon her person also. He            ordinary citizens such as postmen,
   ing of a) proximity in time between      asked her for identification, and when        salespersons, friends, etc., to
   illegality and obtention of chal-        she opened her purse he observed              come upon, such as a front porch,
   lenged derivative evidence; b) any       marijuana within it. When she at-             may be occupied by police with-
   intervening factors; and c) the fla-     tempted to conceal items in the purse         out Fourth Amendment conse-
   grancy of the police misconduct.         she was arrested and searched, result-        quences. Thus no law prevents
   Here, there was a 20-hour delay          ing in the seizure of cash and cocaine.       anyone, police or otherwise, in
   between illegality and conversa-         Finding the entry onto the balcony ille-      the absence of posted orders to
   tion, the statements were volun-         gal and the ensuing seizures the fruits       the contrary, from knocking on a
   tary (which the Court deemed an          of that illegal entry, the Court wrote:       front door to a house with the
   intervening factor) and not a prod-      1. By failing to raise the issue of           intent to question the occupant.
   uct of police interrogation, and               standing in the trial court, the        There is simply no reasonable
   there was no purposeful police                 State waived it for purposes of         expectation of privacy. In the
   conduct designed to exploit the                appeal. In any event, McGurk            present case, however, the sec-
   primary illegality, such as planting           testified that she was an over-         ond-story balcony was not equiva-
   an informant to elicit a confession.           night guest of the lessor, and that     lent to a front door or basic entry
   Under these circumstances, the                 status does confer standing to          threshold to the residence.
   taint was attenuated.                          object to an unlawful police entry 5. A warrantless approach to a house
6. Standing alone, an extrajudicial               into a residence. Minnesota v.          is permissible if done in an ordi-
     confession does not provide le-              Olson, 495 U.S. 91 (1990).              nary, non-secretive, non-
     gally sufficient evidence to sustain   2. Where a search is conducted with-          surreptitious way, as any normal
     a conviction. Corroborating evi-             out a warrant, the burden of pro-                           (Continued on page 39)
                                                                                                                   PAGE 39
APPELLATE DECISIONS
(Continued from page 38)                 Wilson v. State, #136 COA 2010,                 plain and unambiguous, it is en-
                                                  30 A.3d 955 (2011)                     forced as written with no need to
    visitor would. The hour of the       While an “initial aggressor” may forfeit        resort to extrinsic sources. This
    day is a relevant consideration.     the right to claim self-defense, one            rule is informed by applying the
    Here, the officers walked up stairs who initiates a fight by employing non-          “ordinary, popular understanding
    to a second-floor balcony in the     deadly force “is entitled to assert the         of the English language.” Slip op.
    middle of the night, rather than     defense of (perfect or imperfect) self-         at 37, quoting Tribbitt v. State,
    approaching and knocking on the defense against a combatant who has                  403 Md. 638, 645-46 (2008).
    front door. This is not a normal,    responded by employing deadly force.” 2. If the language is ambiguous,
    expectable manner of approach-       Slip op. at 9, n.1.                             legislative intent is sought such
    ing a house, and therefore in-                                                       sources as legislative history, case
    truded upon a reasonable expec- SENTENCING                                           law, and the statute’s apparent
    tation of privacy.                                                                   purpose.
6. Warrantless entry into a residence Tolson v. State, 201 Md. App. 512, 3. A statute should be construed so
    violates the Fourth Amendment        29 A.3d 1059 (2011)                             that no portion of it is rendered
    absent exigent circumstances or      1. Where a defendant requests                   surplusage or nugatory.
    consent. The State bears a                modification of his sentence pur-
    “heavy burden,” slip op. at 24, of        suant to Rule 4-345(e), by the       THEFT
    justifying such an entry. An exi-         terms of the Rule the sentence
    gency is an emergency requiring           may not be increased. Held:          In re Antonette H., 200 Md. App.
    an immediate response. It is              Where defendant was initially                  341, 27 A.3d 616 (2011)
    tested as follows: “Certain factors       sentenced to 10 years with 5 sus- A car was stolen in Maryland. Thirty-
    must be considered in the deter-          pended and 5 probation, a modifi- four hours later, Antonette was caught
    mination of whether exigent cir-          cation to 20 years with all but one driving it in the District of Columbia.
    cumstances are present: ‘the              suspended and 5 probation con-       She testified that, knowing the car had
    gravity of the underlying offense,        stitutes an illegal increase in sen- been stolen, she asked a friend to al-
    the risk of danger to police and          tence. Therefore, when Tolson        low her to drive it (in D.C.), and he
    the community, the ready de-              later violated probation, a flat 10- complied. The juvenile judge found
    structibility of the evidence, and        year sentence was illegal because her guilty of theft on the basis of pos-
    the reasonable belief that contra-        there was only 5 years of unexe- session of recently stolen goods with-
    band is about to be removed.’             cuted time that could lawfully be    out a plausible explanation. Revers-
    Also ‘relevant to the determina-          reimposed.                           ing, the Court wrote:
    tion … is the opportunity of the     2. Where a trial judge denies a mo- 1. An inference of guilt may be
    police to have obtained a war-            tion for modification, and more            drawn from possession of recently
    rant.’” Slip op. at 24.                   than 90 days from sentencing               stolen goods in the absence of an
7. An exigency is assessed on the             then elapses, the judge has no             explanation found satisfactory by
    basis of the facts as they ap-            authority to reopen the motion             the trier of fact. While larceny
    peared to the police at the time of       and grant it. If on the other hand         and receiving stolen goods were
    entry. That McGurk’s companion            the initial motion is granted, a           formerly district crimes, Mary-
    disposed of a roach is irrelevant         new 90-day period comes into               land’s consolidated theft statute,
    here because the police did not           being for moving to modify the             §§7-101-110 of the Crim. Law
    learn about it prior to entering the      new sentence.                              Art., brought both, as well as
    balcony. Further, there was no       3. Upon revoking probation, a judge             other forms of theft, under a sin-
    showing that the occupants of the         may order execution of only that           gle umbrella crime of “theft.”
    balcony were about to destroy             portion of the original sentence           See §7-104(a) (obtaining unau-
    evidence – they did not even              which was (lawfully) suspended.            thorized control) and §7-104(c)
    know the police were present                                                         (criminal possession of know-
    prior to the unlawful warrantless    STATUTES                                        ingly stolen goods).
    entry onto the balcony. Thus, no                                               2. Unexplained possession of re-
    exigency justified that entry.       Williams v. State, 200 Md. App.                 cently stolen goods may give rise
                                              73, 24 A.3d 210 (2011)                     to either the inference that the
SELF-DEFENSE                                                                             possessor is the actual thief, or
                                         1. If the language of a statute is                                (Continued on page 40)
PAGE 40
                                                                         APPELLATE DECISIONS
(Continued from page 39)                  person with a disqualifying conviction,     only that Donaldson should have been
                                          but acquitted of wearing, carrying, or      told that the sessions were being re-
      that he or she is the receiver.     transporting a handgun. Defense             corded. Finding no error, the Court
      The problem in the present case     counsel immediately argued that the         wrote:
      is that while the taking took place verdicts were inconsistent and could        1.       A properly-Mirandized sus-
      in Maryland, conferring jurisdic-   not stand. The prosecutor conceded                   pect need not be informed
      tion upon Maryland courts, the      that these verdicts were factually in-               that an audio or video re-
      locus of the purely possessory      consistent, but successfully argued                  cording is being made of the
      crime was D.C., which does not.     that they were not legally inconsistent.             interrogation.
      Decisively, Antonette was acquit- In Price v. State, 405 Md. 10 (2008),         2.       Under §10-402(c)(2)(ii) of the
      ted of “punching out” the car’s     the Court of Appeals held that incon-                Courts Art., a police officer in
      ignition, thereby defeating the     sistent jury verdicts would no longer                the course of investigating a
      inference that she was the actual be tolerated in Maryland. Concurring,                  murder may intercept an oral
      taker of the car and leaving only   Judge Harrell wrote that this holding                communication.
      the knowing possessor modality,     applied only to legal inconsistency         3.       Recording a station-house in-
      over which Maryland courts had      (e.g., the jury acquitted of a lesser                terview without the suspect’s
      no territorial jurisdiction. Thus,  included offense while convicting of a               knowledge or consent does
      acquittals of tampering and mali- greater inclusive), and not to factual                 not render the statement in-
      cious destruction, while consistent inconsistency (where the verdict is                  voluntary or otherwise offend
      with criminal possession, were      illogical, but does not necessarily dem-             due process.
      inconsistent with Antonette being onstrate that the jury found a required       4.       Falsely telling a suspect that
      the actual thief. While the Court legal element to be both present and                   the session is not being re-
      found these acquittals question-    absent.) Here, the Court adopted as a                corded may bring the case
      able, as the ignition must have     holding the reasoning of the concur-                 within the rule that an interro-
      been tampered with in Maryland      rence: factual inconsistency alone                   gator may not utilize a promise
      in order to get the car moving,     does not entitle a defendant to relief.              of confidentiality which ne-
      they precluded a finding that she Applying this rule to the facts, the                   gates the warning that any
      took the vehicle in the first in-   Court found that felon in possession of              statement could be used
      stance. While the inference from a regulated firearm and wearing/                        against the suspect.
      possession would have sustained carrying/transporting each has at least         5.       Waiver of Miranda rights per-
      convictions for tampering and       one element the other lacks. There-                  mits the State to use the sus-
      malicious destruction, the juvenile fore, conviction of one and acquittal of             pect’s words in any format,
      judge rejected that inference.      the other does not establish legal in-               including a recording which
                                          consistency. However illogical the ver-              captures an arguably offensive
VERDICT                                   dict under the facts, this factual incon-            demeanor.
                                          sistency is tolerated.                      6.       Admissibility of the recordings
In re Antonette H., 200 Md. App.                                                               themselves is governed by the
          341, 27 A.3d 616 (2011)         WIRETAPPING                                          usual rules of relevancy and
In Price v. State, 405 Md. 10 (2008),                                                          weighing of prejudice against
the Court held that jury verdicts may     Donaldson v. State, #2799 COSA                       probative value.
not be inconsistent. Judge Harrell,                 2009, 9/6/11 (Alpert)
concurring, wrote that this holding       Donaldson was interviewed three             WITNESSES
barred legally inconsistent jury ver-     times by police investigating a murder;
dicts, not factually inconsistent ones.   over the course of the three, his status    Stoddard v. State, #105 COA
Held: Price has no bearing upon           progressed from witness to suspect to                 2010, 31 A.3d 603 (2011)
bench trials. A judge’s verdict may not arrestee. Without his knowledge or            Under Brooks v. Tennessee, 406
be either legally or factually inconsis-  consent, all three sessions were video-     U.S. 605 (1972), defendant and de-
tent.                                     taped. Over objection that the tapes        fense counsel are entitled to wait until
                                          depicted his combative demeanor in a        the defense has been completed be-
McNeal v. State, #1992 COSA               prejudicial way, the tapes were played      fore deciding whether the defendant
2009, 28 A.3d 88 (2011)                   for the jury at his trial. Defense coun-    will testify. It is error for the trial court
McNeal was convicted by a jury of pos- sel expressly disavowed any Miranda            to force the defendant to make the
session of a regulated firearm by a       or voluntariness argument, asserting                                (Continued on page 41)
                                                                                                                    PAGE 41
APPELLATE DECISIONS
(Continued from page 40)                        of credibility, regardless of                the respective parties, and
                                                whether there is a conviction.               whether such prejudice is curable
election, over objection, before the            The proponent must proffer a                 by a continuance, if such continu-
defense has exhausted its remaining             “reasonable factual basis” for the           ance is generally desirable.
witnesses. Such a ruling violates the           misconduct, and may not prove it 2.          Exclusion of evidence for a discov-
privilege against self-incrimination by         by extrinsic evidence. Impor-                ery violation is a drastic, non-
forcing the defendant to testify or risk        tantly, the Court wrote that “If a           favored sanction. The purpose of
losing the right to do so by refusing to        conviction of a crime is ‘relevant           discovery is to prevent surprise,
make a premature election. Further,             to the witness’s credibility’ under          not grant a windfall in the form of
the defendant’s motive in refusing to           Rule 5-609(a), then the conduct              exclusion of evidence. Here, the
decide until all other witnesses have           underlying the conviction is like-           Court in finding the defense not
testified is irrelevant – he is entitled to     wise ‘probative of a character trait         entitled to a remedy emphasized
exploit the Brooks rule in the hope of          of untruthfulness’ for purposes of           that the defense knew for a week
tactical advantage. However, the                Rule 5-608(b).” Slip op. at 8-9.             that the State would be calling an
harmless error rule applies. Here,          3.  “Mere accusations” of misconduct             expert and took no steps to se-
Brooks error was harmless because               are not admissible to impeach.               cure its own expert to examine
this was the third trial of the same            Rather, a “reasonable factual ba-            the State’s witness’s report or to
case, and while defendant was errone-           sis” is required. Here, the wit-             testify.
ously forced to testify as the next-to-         ness’s guilty plea to the conduct, 3.        Turning to the nurse’s qualifica-
last witness, as he had heard the final         although unconstitutional for pur-           tion as an expert, the Court em-
witness’s testimony twice before, hear-         poses of establishing a conviction,          phasized that a witness need only
ing it again would not have altered his         provided a sufficient factual basis          possess sufficient knowledge,
election to testify. That the defendant         to entitle the defense to inquire            training, or experience to make
has already decided to testify is a “key        into the underlying conduct.                 his or her opinion of aid to the
factor.”                                                                                     trier of fact in order to confer dis-
                                            Morton v. State, 200 Md. App.                    cretion upon the trial judge to
Thomas v. State, 422 Md. 67, 29             529, 28 A.3d 98 (2011)                           recognize the witness as an ex-
A.3d 286 (2011)                             The name of a forensic nurse was dis-            pert. Here, the nurse was a RN
A State’s witness against Thomas had closed as a witness well in advance of                  with substantial training and ex-
incurred a theft conviction which was       trial, but the State did not disclose its        perience in forensic exams of both
invalid because she had been unrepre- intention to call her as an expert until               adults and children, and had ob-
sented and had not waived counsel.          a week before trial. Prior to trial, Mor-        tained licensing certification from
The trial court precluded the defense       ton moved in limine to exclude her               the State. There was no abuse of
from impeaching the witness with ei-        testimony on discovery grounds.                  discretion in recognizing her as an
ther a) the conviction or b) the con-       When she was called as a witness at              expert in forensic examination of
duct underlying the conviction. Find-       trial, counsel argued only that she was          children as well as adults in sex-
ing ruling (a) correct but ruling (b)       not qualified as an expert in the ex-            ual abuse prosecutions.
erroneous, the Court wrote:                 amination of children. Finding no error
1. Theft falls within the eligible uni- in permitting her to testify, the Court         McNeal v. State, 200 Md. App.
      verse of offenses conviction for      wrote:                                                510, 28 A.3d 88 (2011)
      which is impeachable under Rule 1. The discovery issue is waived un-              Whether extrinsic evidence of a prior
      5-609. However, a conviction                 der the rule that denial of a mo-    inconsistent statement is admissible to
      arising from a constitutionally in-          tion in limine to exclude evidence   impeach a witness depends upon the
      firm guilty plea “cannot be used             does not in itself preserve the      fulfillment of four conditions: 1) The
      for impeachment purposes.” Slip              issue – there must still be a        content and surrounding circum-
      op. at 7. It is so lacking in reli-          “contemporaneous objection”          stances are disclosed to the witness at
      ability as to be inadmissible to             when the evidence is actually of-    trial; 2) the witness is permitted to
      impeach anyone, defendant or                 fered. In any event, the choice of   explain or deny it; 3) the witness fails
      third-party witness.                         sanction for a discovery violation   to admit having made the statement;
2. However, Rule 5-608(b) permits,                 is discretionary with the trial      and 4) the statement must concern a
      within the trial court’s discretion,         judge. Factors relevant to the       non-collateral matter. See Rules 5-
      impeachment on the basis of wit-             exercise of discretion include the   613 and 5-616. Focusing on the third
      ness misconduct probative of lack            timing of disclosure, prejudice to                         (Continued on page 42)
PAGE 42
                                                                         APPELLATE DECISIONS
(Continued from page 41)                   2. Handwriting comparison is a             against Ebling, resulting in a district
                                              proper subject of expert opinion        court charge against Ebling. During its
requirement, the Court held that the          testimony.                              pendency Tracy, who was Ebling’s in-
witness must unequivocally admit to        3. An expert opinion need not rise to      carcerated half-brother, wrote a letter
making the statement to preclude               any particular level of certainty in   to Sheryl. Not very subtly invoking his
proof by extrinsic evidence. The wit-          order to be admissible. The fact       membership in a gang, members of
ness’s testimony that “I could have            that the conclusion is                 which were not incarcerated, Tracy,
said it” or the like is insufficiently un-     “inconclusive” goes to weight, not     after mentioning his “soldiers on the
equivocal to preclude extrinsic proof.         admissibility. The defense is free     street,” advised, “Everything will be
                                               on cross to explore the level of       fine as long as you and your man
Miller v. State, 421 Md. 609, 28               certainty of the opinion. Even         leaves my little brother alone.” Par-
A.3d 675 (2011)                                scientific possibility may be of       tially affirming and partially reversing
In a murder prosecution, a matter of           aid to the trier of fact, and there-   Tracy’s resulting convictions, the Court
dispute was whether a financial docu-          fore admissible.                       wrote:
ment purportedly signed by the victim 4. The defense cross on the non-                1. The evidence was sufficient for
the day before the murder had actually         comparison between victim and                the factfinder to infer an intent to
been forged by the defendant. The              questioned signature opened the              prevent Cheryl from testifying.
State called as a witness a person             door to elicitation of the compari-          Whether this evidence was insuffi-
stipulated to be an expert in handwrit-        son on redirect.                             cient to sustain a conviction under
ing analysis and identification. On the                                                     Crim. Law §9-305, proscribing
stand, the witness was asked to com- Molter v. State, 201 Md. App. 155,                     inter alia forceful intimidation of
pare the signature on the financial                28 A.3d 797 (2011)                       a juror or witness in the perform-
document to known samples of the           1. A PBJ is not a “conviction” for               ance of that person’s duties
defendant’s handwriting. Over objec-           purposes of impeaching a witness             where there was no showing that
tion, he was permitted to testify that         with a prior conviction under Rule           the witness (Sheryl) had been
due to “unexplained variations” in the         5-609.                                       subpoenaed, was not argued to
writing on the questioned document         2. Rule 5-608(b) permits impeach-                the trial court. Accordingly, the
there was no basis for identifying the         ment with misconduct not result-             Court found the issue not pre-
defendant as the writer, but that there        ing in a conviction, within the dis-         served for review.
were characteristics of his writing            cretion of the trial judge. In-        2. Threats to retaliate for completed
which prevent his elimination as the           volved is a weighing of the proba-           conduct (reporting a crime, testi-
writer. The witness went on to testify         tive value of the evidence on the            fying, etc.) are proscribed by
that there is a “possibility” the defen-       question of credibility against un-          Crim. Law §9-303. Attempts to
dant wrote the victim’s signature, and         fair prejudice. Here, the proba-             prevent reporting or testifying by
that, to a reasonable degree of scien-         tive value was reduced because               threatening harm if that conduct
tific certainty, he can’t say it’s him or      the witness testified to corpus              occurs in the future are pro-
it’s not him. On cross, defense coun-          delicti, which was not contested,            scribed by §9-302.
sel elicited the fact that the expert had      and not agency, which was. And         3. Section 9-303 covers actual re-
not directly compared the victim’s             as the judge actually performed              taliation and threats uttered in
known writing to “his” signature on the        the weighing and found the pro-              retaliation for completed testi-
questioned document. Over further              bative value outweighed by the               mony or reporting of a crime, but
objection, the State on redirect was           potential for prejudice, there was           does not cover threats designed
permitted to have the witness perform          no abuse of discretion in preclud-           to induce a person not to testify
the latter comparison in the court-            ing the defense from impeaching              or report in the future. In the
room, and to opine that there were             a burglary victim with a PBJ for             present case, §9-303 was an
significant differences between the            possession with intent to distrib-           “inapplicable statute,” conviction
questioned signature and the victim’s          ute.                                         under which resulted in an “illegal
known writing. Finding no error, the                                                        sentence,” which may be chal-
Court wrote:                               WITNESS RETALIATION                              lenged at any time. Slip op. at
1. Under Rule 5-901(b)(3), the State                                                        23.
      was entitled to have the jury per-   Tracy v. State, #32 COA 2010, 31
      form a handwriting comparison,       A.3d 160 (2011)
      and/or to have an expert do so.      Sheryl had a domestic violence case
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