Martin V. State (Ct. of Special Appeals)

Filed May 3, 2007--Opinion by Judge Arrie Davis.

Martin was convicted by a jury of robbery and sentenced to eight years imprisonment, all but eighteen months suspended, accompanied by three years of supervised probation. His appeal presented the following questions for review:

1. Was the evidence legally sufficient to sustain a conviction for robbery where the prosecution failed to show that [Martin] used threat of force to obtain property?
2. Did the trial court err when it refused to clarify and supplement a jury instruction upon a critical issue?
3. Did the trial court err in its jury instructions that excluded a defense at issue?
4. Did the trial court err when it substituted an erroneous statement of the law in the jury instructions?

The alleged victim ("Turner") testified that he stopped to speak with a neighbor while walking his dog when Martin accosted him with a baseball bat demanding that Turner return $150 to him from a botched drug buy. Demanding more than the $100 in Turner's pocket, Martin followed Turner home where he recovered the remaining $50. The encounter at Martin's home was accompanied by a 911 call for police assistance by Turner's wife. Conversely, Martin testified that Turner had stolen $150 from him in a sham drug transaction. He encountered Turner walking his pit bull and, afraid of the dog, broke off a branch from a nearby tree, approached Martin, and requested his money back. Turner gave him $100 from his pocket, and Martin accompanied him home to recover the remaining $50.

Martin's counsel contemplated raising as a defense that Martin lacked the intent to steal from Turner because he was recovering his own money, i.e., the claim of right defense. Defense counsel's proposed jury instructions to support this claim were summarily rejected by the court.

During deliberations, one of the notes sent by the jury asked, "Does it matter whether the victim felt threatened for there to be a threat of force?" Upon declining to answer the question, the court instructed the jury to rely on prior instructions.

Martin contends that the State failed to prove beyond a reasonable doubt that he intended to intimidate or intimidated Turner, which is a prerequisite of a robbery conviction. Further, in his brief, he attempted to rationalize the jury verdict and any implications arising therefrom by commenting on what testimony the jury found more credible. This Court disagreed.

Robbery has been defined as "the felonious taking and carrying away of the personal property of another, from his person or in his presence, by violence or putting in fear . . . or, more succinctly, as larceny from the person, accompanied by violence or putting in fear . . .." The "putting in fear" aspect of that definition is of particular relevance to the instant case. The requisite level of fear, utilizing the objective standard, is "any attempt to apply the least force to the person of another constitutes an assault. The attempt is made whenever there is any action or conduct reasonably tending to create the apprehension in another that the person engaged therein is about to apply such force to him. It is sufficient that there is an apparent intention to inflict a battery and an apparent ability to carry out such intention." Martin admitted possessing an object -- whether a bat or a tree branch -- and also admitted that he threatened to hit Turner with the object if he did not produce the money. In the instant case, context is given to the incident in light of Turner's testimony, which indicated he was "scared."

The Court found no need to address Martin's position that the jury rejected Turner's testimony and only Martin's testimony informed the jury what had transpired. In performing a fact-finding role, the jury has authority to decide which evidence to accept and which to reject. Because the trial record demonstrated the applicable objective standard of fear was met, there was sufficient evidence to convince the jury of Martin's guilt beyond a reasonable doubt.

Next, Martin contended that the trial court erred by failing to answer the jury's question. Subsequent to the trial court's response to the jury note, the State filed a motion to reconsider. Martin's counsel did not object to the instruction. Maryland Rule 4-325(e), which sets forth:

No party may assign as error the giving or the failure to give an instruction unless the party objects on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection. Upon request of any party, the court shall receive objections out of the hearing of the jury. An appellate court, on its own initiative, may however take cognizance of any plain error in the instructions, material to the rights of the defendant, despite a failure to object.

Pursuant to this rule, the Court has consistently held that a party waives his rights when he fails to request an instruction or object to an instruction. Here, Martin did not object to the instruction given nor did he request that an amended instruction be given when the note was sent to the court. The State objected; however, the appellant must object himself to preserve the issue for appellate review. Accordingly, Martin is precluded from raising this issue.

Martin next argues that the claim of right defense has not been abrogated in Maryland and, accordingly, his request to propound a jury instruction should have been granted and that the instruction regarding possession versus title to the property misled the jury. The Court's analysis required determination of whether the requested instruction constituted a correct statement of the law: whether it was applicable under the facts and circumstances of the particular case; and whether it was fairly covered in the instructions given. In general, a party is entitled to have his theory of the case presented to the jury through a requested instruction provided that theory is a correct exposition of the law and it is supported by the evidence. Regardless of any testimony to the contrary, if the Court were to find merit in Martin's contentions and overturn his conviction, the decision would have the practical effect of condoning an otherwise illicit activity. Consequently, the trial court did not err by denying Martin's request for a claim of right jury instruction.

Finally, Martin argues that the final portion of the instruction misled the jury into believing that [Turner's] theft was immaterial and to ascribe it no weight, contending that such instruction was not a proper statement of the law in light of the circumstances. The Court held the disputed portion of the instruction is a correct statement of the law, is applicable based on the facts of the instant case, and was not covered by other instructions.

The full opinion is available in PDF.

Evans v. State (Ct. of Special Appeals)

Filed May 3, 2007--Opinion by Judge Arrie Davis.

Subsequent to the sale of heroin to an undercover detective, Evans was arrested by another detective and approximately five members of a Baltimore City arrest team. A search conducted by the arresting detective produced one clear gel capsule containing suspected heroin in Evans' back pocket. In a pre-trial suppression hearing, defense counsel moved to suppress the evidence based on lack of probable cause. Both the undercover detective to whom the drugs were sold and the arresting detective testified at the suppression hearing. Subsequent to his jury conviction, Evans presented the following issues for review:

(1) Whether the trial court erred in failing to suppress evidence illegally obtained from [Evans] in a search incident to an arrest made without probable cause.

(2) Whether the trial court erred in instructing the jury on the State's failure to use certain investigative and scientific techniques, where the instruction hampered [Evans'] ability to present his legal defense and was not part of the Maryland Pattern Criminal Instructions.

Evans argued that, during the suppression hearing, the testimony of either detective failed to establish probable cause to arrest or subsequently search him. He based his contention on the fact that the only eyewitness to the buy-bust was the undercover detective who then relayed the information to the arresting detective, and the information provided to the arresting detective was too general to establish probable cause.

The State contended that because Evans failed to raise the issue at trial that the information relayed between the detectives was too general to establish probable cause, he was precluded, by Maryland Rule 8-131, from raising the issue on appeal.

The threshold issue, then, before the Court was whether Evans raised the lack of sufficient description to establish probable cause at trial as he did in his appellate brief. The Court found that defense counsel's argument at trial questioned the detectives about the description [of Evans] given to the arrest team. However, his counsel's argument was premised upon the claim that Evans was not acting in concert with the other arrestee. Thus, the issue of vagueness did not appear to have been raised, much less decided by the trial court, and Evans was precluded from raising it on appeal.

Evans further contended that the trial court went too far in charting a corrective course for the jury as to the significance to attribute to the alleged void in the State's evidence. The net effect of the court advising the jury that the State had no obligation to produce evidence, which was indisputably available to it, either explicitly or implicitly relieved the State, in the minds of the jurors, of the burden to establish guilt beyond a reasonable doubt. Evans contends this diminution of the State's burden unfairly prejudiced him.

The trial judge was prompted to give the questioned instruction by the cross-examination of one of the detectives, which inquired as to specific investigative techniques that were not used in this case. At the close of the State's case in chief and outside the presence of the jury, the court reviewed the instructions with all parties. Objections by defense counsel for the co-defendant were duly noted and overruled, but Evan's counsel did not note an objection at that point. Following the reading of the instruction to the jury, co-defendant's counsel noted another objection to the same instruction, but Evan's counsel, again, did not object.

The Court held that, pursuant to Rule 4-325, failure to request an instruction or object to an instruction constitutes a waiver. The trial record clearly demonstrates that Evan's counsel failed to object to the instructions at issue during the proceedings. In his brief, he relies solely on the objection raised by co-defendant's counsel. However, a bedrock principle of Maryland law is that a defendant may not rely on an objection made by a co-defendant for the purpose of raising an appeal as to that issue. Accordingly, Evans' failure to raise such issue in the trial court precluded the Court from such consideration on appeal.

The full Order is available in PDF.

Lowery, et ux. v. Smithsburg Emergency Medical Service, et al. (Ct. of Special Appeals)

Filed April 5, 2007--Opinion by Judge Arrie Davis.

This case involves allegations of defamation and intentional interference with economic relations claims. At the close of the Lowery's case, Smithsburg moved for judgment on all counts and the trial court granted the motion pursuant to Rule 2-519 on the defamation and intentional interference with economic relations claims. The Lowery's posit the following issues for review:

1) Did the trial court err in granting [Smithsburg's] Motion in Limine and precluding any testimony whatsoever pertaining to lost wages and benefits for supposed discovery violations?

2) Did the trial court apply the wrong standard of proof with regard to [Smithsburg's] motion for judgment pertaining to forfeiture of the conditional privilege afforded employers for statements made about a former employee's job performance?

3) Did the trial court err in finding there was not sufficient evidence to prove that the conditional privilege afforded statements made about an individual's employment had been forfeited in this case for the matter to be submitted to the jury?

4) Did the trial court err in finding that there was not sufficient evidence to prove that Mr. Myerly acted intentionally and wilfully for Mr. Lowery's intentional interference with economic relations claim to be submitted to the jury?

This Court affirmed the judgment of the Circuit Court for Washington County.

(synopsis to follow)

The full opinion is available in PDF.

White v. The Pines Community Improvement (Ct. of Special Appeals)

Filed March 6, 2007. Opinion by Judge Arrie W. Davis.

In this case, the Court was asked to determine the rights of individual property owners as compared with the rights of a Community Improvement Association (Pines Community Improvement Association, Inc. ("PCIA")). PCIA does NOT qualify as a homeowners' association under Real Property 11B-101, et seq. Specifically at issue were piers and certain community property. The individual lot owners claimed an easement over the piers and claimed adverse possession over certain of the community property.

"'The Pines on the Severn' (hereinafter 'The Pines') is a residential community of approximately 250 single family lots located in Arnold, Maryland that binds on two branches of Chase
Creek, a tributary of the Severn River." The specific language of the relevant deeds is set forth in great detail in the Court's opinion. In 2003, the PCIA instituted a pier management system that imposed a fee on members, and a "wet storage fee" of $15.00 per day on boats belonging to non-members in slips. Certain individual owners sued the PCIA claiming that they had easements which permitted them to use the piers. They also claimed adverse possession over certain community land. Finally, they claimed that the PCIA was equitably estopped from preventing them from using the piers. The PCIA, in turn, counterclaimed for the wet storage fees.

Held:

The Court first reviewed the relevant standard of review. Factual determinations are reviewed under a clearly erroneous standard while legal conclusions are reviewed de novo.

The Court then looked at the issues in this case. After reviewing the elements for a covenant running with the land, the Court determined that there was a covenant running with the land with respect to PCIA. There was also an express easement over community land in the PCIA's deed. Any attempts to change the individual property owners' rights vis-a-vis the PCIA were unenforceable because those deeds were recorded after the original plat. "...after the delivery of the mortgage, it is beyond the mortgagor to impair or modify the estate."

Prescriptive Easements Over the Piers: The constuction of a deed is ordinarily a question of law, and thus reviewed de novo. The Court gives effect to the intention of the parties as that intention can be gleaned from the four corners of the document. Extrinisic evidence is generally not considered. In addition, common schemes are permissible in Maryland, and the recordation of an appropriate deed affords "constructive notice to all persons dealing with the property..." In this case, the grants in the individual property owners' deeds did not restrict the community property; they granted access to the realty and riparian rights. Accordingly, they were easements that ran with the land. The individual lot owners have an express (not prescriptive) easement over the piers. The Court reviewed the elements for prescriptive easements and found that, because the easements in this case were express, they could not have been prescriptive.

Those who have riparian realty can build piers, wharves, etc. that extend out into the water. However, riparian rights does not equate to ownership of riparian land. The individual property owners had riparian rights based on their easements, but the riparian land was OWNED by the PCIA. Accordingly, the PCIA owned the piers at issue, and the individual lot owners had a contractual right to use them.

Adverse Possession of Certain Community Land The Court then faced the issue of whether the individual owners had acquired some of the community land by adverse possession. To constitute adverse possession, the "possession must be actual, open, notorious, exclusive, hostile, under claim of ownership, and continuous or uninterrupted" (citations omitted) for the statutory period of 20 years. Successive owners can "tack" their possession to meet the statutory period, but generally, the deed from the first owner to the successor must include the property at issue. One exception to this rule is when the original owner actually turns over possession to the successor owner. The Court then applied this rule to the specifics of each individual owner's claim, noting along the way that trial judges are presumed to know the law and apply it properly.

Equitable Estoppel Equitable estoppel arises when a party is precluded from exercising his rights because another "has in good faith relied upon [his] conduct, and has been led thereby to change his position for the worse and who on his part acquires some corresponding right..." Because the individual land owners and the PCIA had equal access to the land records, any reliance on any conduct that was no in accord with the land records was insufficient to establish equitable estoppel.

Wet Storage Fees The scope of an easement is determined by the conveyance. Where the conveyance is silent as to the duty to repair, the expenses are proportionately those of the easement holder. Thus, each easement holder and the land owner should all pay, as nearly as possible, their share of the use of the easement. Because the $15.00 per day wet storage fee was not reasonably anticipated to be a proportionate share of the maintenance costs, it was not an appropriate fee.

This opinion is available in PDF format.

Baby v. State (Ct. of Special Appeals)

Filed February 9, 2007–Opinion by Judge Arrie Davis

Baby was convicted of first-degree rape, first-degree sexual offense and two counts of third-degree sexual offense, and sentenced to a term of fifteen years imprisonment with all but five years suspended and five years probation upon his release.

Baby's appeal presented the following three issues:

I. Whether the circuit court erred by refusing appellant's request to instruct the jury that it should return a verdict of not guilty of rape if it was persuaded by the evidence that the complaining witness consented to sexual intercourse but withdrew her consent after penetration;

II. Whether the circuit court erred by denying appellant's request to remove a juror who indicated that he had read a newspaper article about the case; and

III. Whether the circuit court erred in denying appellant's motion in limine to exclude expert testimony in reference to "rape trauma syndrome."

At the conclusion of the evidence, the trial judge instructed the jury as follows regarding evidence of "consent" to negate a charge of sexual assault and the force required to sustain a conviction of rape:

The amount of force necessary depends upon the circumstances, and no particular amount of force is required but it must be sufficient to overcome the resistance of the victim. You must be satisfied that the victim either resisted and that this resistance was overcome by force or treat of force or that the victim was prevented from resisting by force or threat of force. The victim must have resisted to the extent of her ability at the time unless her resistence or will to resist was overcome by force or fear that was reasonable under the circumstances. Finally, "consent" means actually agreeing to the sexual act rather than merely submitting as a result of force or threat of force.

After the jury began its deliberations, it submitted several notes, one of which read, "If a female consents to sex initially and, during the course of the sex act to which she consented, for whatever reason, she changes her mind . . . and the man continues until climax, does the result constitute rape?" The trial judge responded to that note as a factual question as opposed to a legal question and responded that "[he] was unable to answer this question as posed. Please reread the instructions as to each element and apply the law to the facts as you find them." The next morning, another note was submitted by the jury which read, "If at any time the woman says stop, is that rape?" The judge responded, "This is a question that you as a jury must decide. I have given you the legal definition of rape which includes the definition of consent."

This Court reasoned that the plain meaning of the jury’s words, "during the sex act," leads one to conclude that the reference was to the act of intercourse. By contrast, a much broader connotation is conveyed by "during the course of the action." Any initial confusion by the trial court as to whether the question was legal or factual should have been cleared up when the jury submitted the second note the following morning. Stripped of any hypertechnical interpretation, the jury simply wanted to know if consent could be withdrawn after commencement of the sex act, i.e., penetration. The fact that there was testimony that appellant had ceased his attempt to penetrate the prosecutrix within seconds after she told him to stop leaves little doubt that the jury sought to determine when, in point in time, a withdrawal of consent would sustain a conviction for rape. The jury, in the discharge of its responsibilities to apply the law to the facts as it found them to be, was entitled to a proper response to its inquiries.

Secondly, appellant contends the circuit court erred by refusing to remove a juror at the point when the juror admitted that he had read a newspaper article about appellant’s case. The article in question appeared on the third day of appellant’s trial and was found in the Weekly Gazette, a copy of which was in the courthouse lobby. In addition to the facts that appellant had previously been tried on the same charges and was facing life imprisonment, the article disclosed that his co-defendant had entered a plea of guilty. Upon inquisition by the trial court, and outside the presence of the jury, juror No. 100 indicated his reading the article would not affect his ability to be fair and impartial and that, although he had mentioned the article to two fellow members of the jury, he did not tell them what was in the article and, to his knowledge, they did not read it. The court then ruled that it would grant the appellant’s motion to strike the juror. In consideration of the State’s assurances that it had not decided whether to call appellant’s co-defendant, the trial judge reversed herself and decided not to excuse the juror but, rather, wait until the end of the trial to see whether the co-defendant testified and how many jurors were left, indicating that juror No. 100 may end up as an alternate that would be excused.

The decision to remove a juror is discretionary and will not be reversed on appeal absent a clear abuse of discretion or a showing of prejudice to the defendant. The burden is on the party alleging prejudice to prove (1) that the publicity is prejudicial, (2) that a juror has been exposed to the prejudicial material, and (3) that the juror’s decision was influenced by the prejudicial material. The injured party’s remedy is a mistrial or a reversal on appeal. In the instant case, only one juror was found to have read the article. Except where prejudice is manifest, a trial court is entitled to rely on the assurances of jurors that they would be able to reach a verdict based only on the evidence at trial even in cases where jurors possessed knowledge of extraneous extrajudicial information about the case being tried. It logically follows that a trial judge may rely on assurances where, as here, such assurances relate to whether juror No. 100 told the other jurors about the contents of the article and his assurance that the other jurors did not read the article. The Court held that appellant’s claim of prejudice failed because there was no evidence that information contained in the article was ever imparted to the members of the jury who ultimately deliberated and found appellant guilty, and in light of the fact that the court did ultimately excuse juror No. 100.

Finally, the appellant argues that testimony offered by a professor of psychiatric nursing as an expert witness to explain how aberrant behavior of victims of sexual assault can be attributed to the "rape trauma syndrome" - asserted to be a subset of post-traumatic stress disorder - was reversible error because she had not interviewed or examined the prosecutrix and that a "general explanation of PTSD, and how the psychological symptoms are manifested in their reactions, were not specific to the case." The State’s expert testified prior to trial that she had reviewed the police statement, the indictment, the forensic nurse examiner report and an audio cassette. When presented with a hypothetical based on testimony in this case, she attributed the victim’s failure to resist, her failure to immediately report the incident and her voluntarily giving her home telephone number to the assailant to the rape trauma syndrome. This Court held that the facts presented are quintessentially the circumstances contemplated by Maryland authorities which have considered the rape trauma syndrome. The evidence [expert testimony] was neither employed to establish the happening of the criminal event or the victim’s credibility, nor did it invade the province of the jury. The expert properly relied on material supplied by the court and statements as part of the hypothetical foundation upon which she based her opinion. As such, the court properly denied appellant’s motion in limine to exclude the testimony of the State’s expert.

The full opinion is available in PDF.

In Re: Shawn P. (Court of Special Appeals)

Filed February 5, 2007–Opinion by Judge Arrie Davis.

The Circuit Court for Washington County, sitting as a juvenile court, adjudicated Shawn a delinquent as a result of his involvement in an assault, placing him on probation for an indefinite period of time. Shawn appealed the court’s adjudication and disposition, raising the following issues:

1) Did the juvenile court err in finding that Appellant waived his right to counsel when the court failed to comply with Maryland’s juvenile right to counsel statute and Maryland Rule 11-106?

2) Was Appellant deprived of his right to the effective assistance of counsel at his adjudication and disposition hearing?

Issue 1 was answered in the affirmative. When Shawn appeared for his hearing without counsel, the court inquired as to why he did not attain counsel. Shawn’s response was that he did not think he would need one. Over objection from the public defender, the court accepted Shawn’s answer as his waiver of counsel.

The right to counsel in juvenile proceedings is guaranteed by statute and rule. Maryland Rule 11-106 provides in pertinent part that "[t]he respondent is entitled to be represented in all proceedings under this Title by counsel retained by him, his parent, or appointed pursuant to the provisions of subsection (b) (2) and (3) of this Rule." In regard to waiver of counsel, Rule 11-106(b)(1) provides:

1. Waiver Procedure. If, after the filing of a juvenile petition, a respondent or his parent indicates a desire or inclination to waive representation for himself, before permitting the waiver the court shall determine, after appropriate questioning in open court and on the record, that the party fully comprehends:

(i) the nature of the allegations and the proceedings, and the range of allowable dispositions; (ii) that counsel may be of assistance in determining and presenting any defenses to the allegations of the juvenile petition, or other mitigating circumstances; (iii) that the right to counsel in a delinquency case, a child in need of supervision case, or a case in which an adult is charged with a violation of Section 3-831 of the Courts Article includes the right to the prompt assignment of an attorney, without charge to the party if he is financially unable to obtain private counsel; (iv) that even if the party intends not to contest the charge or proceeding, counsel may be of substantial assistance in developing and presenting material which could affect the disposition; and (v) that among the party’s rights at any hearing are the right to call witnesses in his behalf, the right to confront and cross-examine witnesses, the right to obtain witnesses by compulsory process, and the right to require proof of any charges.

Md. Code Ann., Cts. & Jud. Proc. §3-8A-20 provides in pertinent part:

(a) Except as provided in subsection (d) of this section, a party is entitled to the assistance of counsel at every stage of any proceeding in this subtitle.

(b)(1) Except as provided in paragraph (3) of this subsection, a child may not waive the right to the assistance of counsel in a proceeding under this subtitle.

(2) A parent, guardian, or custodian of a child may not waive the child’s right to the assistance of counsel.

(3) After a petition or citation has been filed with the court under this subtitle, if a child indicates a desire to waive the right to the assistance of counsel, the court may not accept the waiver unless:

(i) the child is in the presence of counsel and has consulted with counsel; and (ii) the court determines that the waiver is knowing and voluntary; and

(4) In determining whether the waiver is knowing and voluntary, the court shall consider, after appropriate questioning in open court and on the records, whether the child fully comprehends:

(i) the nature of the allegations and the proceedings, and the range of allowable dispositions; (ii) that counsel may be of assistance in determining and presenting any defenses to the allegations of the petition or other mitigating circumstances; (iii) that the right to the assistance of counsel in a delinquency case, or a child in need of supervision case, includes the right to the prompt assignment of an attorney, without charge to the child if the child is financially unable to obtain private counsel; (iv) that even if the child intends not to contest the charge or proceeding, counsel may be of substantial assistance in developing and presenting material that could affect the disposition; and (v) that among the child’s rights at any hearing are the right to call witnesses on the child’s behalf, the right to confront and cross-examine witnesses, the right to obtain witnesses by compulsory process, and the right to require proof of any charges.

The State responded to Shawn’s appeal by stating that the public defender entered an appearance immediately and represented Shawn at the adjudicatory hearing, so any error in connection with the waiver of counsel proceedings became moot. The State further pointed out that the summons warned in all capitals, "A POSTPONEMENT WILL NOT BE GRANTED BECAUSE YOU FAIL TO CONTACT A LAWYER," and that Shawn had known about the hearing for approximately six weeks. The Court found, however, that Shawn was not provided the mandatory conference in open court and on the record and, consequently, was denied his rights.

The Court found that under the totality of the circumstances, the trial judge having found Shawn, appearing before the court for the first time, had waived his right to counsel by inaction and then, having permitted the public defender to enter his appearance at Shawn’s adjudicatory hearing, abused his discretion by denying counsel’s request for a continuance or, in the alternative and at the very least, by refusing to afford counsel an opportunity to confer with Shawn.

The opinion is available in PDF.

Fields v. State and Colkley v. State (Ct. of Special Appeals)

Filed February 2, 2007. Opinion by Judge Arrie W. Davis.

From the official headnote of the case:

MARYLAND RULE 4-326(D); DENICOLIS v. STATE, 378 MD. 646 (2003); MORA v. STATE, 355 MD. 639 (1999); COMMUNICATIONS BY COURT WITH JURY; THE STATE FAILED TO SHOULDER ITS BURDEN TO SHOW THAT COURT PROPERLY INFORMED APPELLANTS THAT THE JURY HAD SUBMITTED A NOTE MARKED AS EXHIBIT #4 MAKING INQUIRY ABOUT EXPERT BALLISTICS TESTIMONY PROBATIVE OF THE CENTRAL ISSUE OF CRIMINAL AGENCY OR THAT THE HANDLING OF THE NOTE, WHICH NEITHER THE COURT NOR COUNSEL RECALLED, COMPORTED WITH THE REQUIREMENTS OF MD. RULE 4-326; THE INEXPLICABLE CIRCUMSTANCES CONSTITUTE REVERSIBLE ERROR; ASSUMING, ARGUENDO, THAT THE COURT NEVER TOOK ACTION WITH RESPECT TO THE NOTE, APPELLANTS WERE NEVERTHELESS DENIED THE RIGHT TO BE PRESENT AT A CRITICAL STAGE OF THE PROCEEDINGS AND, MOREOVER, THE JURY WAS NOT PROVIDED WITH AN ANSWER TO ITS INQUIRY TO WHICH IT WAS ENTITLED; SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION; RIGHT TO SPEEDY TRIAL; IN LIGHT OF PRECEDENT REGARDING WEIGHING OF FACTORS IN DETERMINATION OF RIGHT TO SPEEDY TRIAL, THE CIRCUIT COURT DID NOT ERR IN DENYING APPELLANTS’ MOTIONS TO DISMISS.

The opinion is available in PDF format.

Daniels v. State (Ct. of Special Appeals)

Decided December 26, 2006 -- Opinion by Judge Arrie W. Davis

Police in Frederick County, Maryland informed the police of Martinsburg, West Virginia:

1) That a van driven by Appellant at the time of a stop in West Virginia fit the description of a vehicle at the scene of a double homicide on a Maryland street;

2) That Appellant's former boyfriend had advised Maryland authorities that Appellant had said that he (the former boyfriend) would never again see one of the victims, a five year-old; and

3) That Appellant's father in Martinsburg owned a vehicle fitting the approximate description of homicide scene van.

The Martinsburg police located a vehicle in Martinsburg fitting the description of the van at the homicide scene and confirmed as belonging to Appellant's father. When they observed the vehicle driving away, the Martinsburg police executed a stop of the vehicle, detained the vehicle on the street to obtain a search warrant for the contents of the vehicle pursuant to West Virginia law and procedure, and advised Appellant – the driver – after conducting a search of her person that she was free to leave during its detention.

The Court of Special Appeals upheld the lower court ruling that the Martinsburg police had ample probable cause to execute a stop of the van pending a search warrant application for its contents, based on the information provided by Maryland law enforcement.

Maryland law enforcement agents provided very substantial material assistance to the Martinsburg police in executing the search warrant in West Virginia. The lower court noted local direct supervision of the Maryland officers and the officers' role as the source of the information giving rise to probable cause to obtain the warrant itself. Rejecting Appellant's argument that the Maryland officers lacked territorial jurisdiction in West Virginia or probable cause as private citizens to participate in the execution of the search warrant, the Court of Special Appeals upheld the validity of the Maryland officers' participation in the search within the "color of [their] office."

Appellant claimed that the failure of West Virginia authorities to make a presentment of her to a magistrate for approximately eight hours constituted unnecessary delay and therefore an unlawful detention, invalidating as coerced a written statement that she made after being advised of her Miranda rights. The Court of Special Appeals held that the delay was not the result of deliberate collusion between Maryland and West Virginia to defeat Appellant's access to a magistrate and that within 9 hours of her arrest, Appellant did appear before a magistrate. Accordingly, the applicable Maryland statutes and rules governing deadlines for prompt presentment did not apply to Appellant's out-of-state arrest and the Court of Special Appeals accordingly upheld as not clearly erroneous the lower court's finding that Appellant's statement was not coerced and therefore was admissible.

The full opinion is available in WPD and in PDF.

Purnell v. State (Ct. of Special Appeals)

Filed December 4, 2006--Opinion by Judge Arrie W.Davis.

The Fourth Amendment to the United States Constitution; New York v. Belton, 453 U.S. 454, 455–56, 101 S. Ct. 2860, 2861–62 (1981); Thornton v. U.S., 541 U.S. 615, 617-18, 124 S. Ct. 2127, 2129 (2004); Wyoming v. Houghton, 526 U.S. 295, 305-06, 119 S. Ct. 1297, 143 L. ed. 2d 408 (1999); Although Maryland has yet to extend the Belton/Thornton bright–line specifically to the search of items belonging to a passenger situated several feet from the vehicle arguably outside of the Chimel [v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969)] reach, who is neither under arrest or suspected of criminal activity at the time of the search and who neither poses a threat to the officer's safety or is capable of destroying evidence, in light of the holding in Thornton, that "Belton allows police to search the passenger compartment of a vehicle incident to a lawful custodial arrest of both 'occupants' and 'recent occupants,'" and "In any event, while an arrestee's status as a "recent occupant" may turn on his temporal or spatial relationship to the car at the time of the arrest and search, it certainly does not turn on whether he was inside or outside the car at the moment that the officer first initiated contact with him," the motions court properly denied appellant's motion to dismiss evidence of cocaine retrieved from twelve individualized baggies within small recyclable grocery bag located in appellant's coat that was on the rear passenger side seat of vehicle.

The full opinion is available in WordPerfect and PDF.