State v. Rush (Ct. of Special Appeals)

Filed April 27, 2007--Opinion by Judge Deborah S. Eyler.

In its murder prosecution against Rush, the State has appealed a pre-trial ruling suppressing from evidence inculpatory statements Rush gave to the police.

The issues before the court at the suppression hearing were whether Rush's statements were obtained in violation of Miranda and whether her statements had been obtained voluntarily. The circuit court ruled that Rush's statements had been obtained in violation of Miranda and would be suppressed on that ground. Further, the court made plain that it was granting the suppression motion on the Miranda violation ground only and was not granting it on the alternative involuntariness ground.

The issue stems from a murder investigation for which Rush was brought in to the police station and questioned. Subsequent to some light background conversation on the investigation, the detective proceeded to advise Rush of her rights using a standard Advice of Rights Form ("Form"), to which he made a handwritten alteration. The form with the alteration stated, in relevant part:

If you want a lawyer, but cannot afford one, a lawyer will be provided to you @ some time at no cost.

The bolded portion is the handwritten addition made by the detective. Rush read the form and, when the detective asked Rush whether it all made sense, she replied in the affirmative. He then asked several questions to verify that she understood the stated advisements and had her initial next to the four answers on the form, confirming:

1. that she understood the rights that had been read to her;
2. that she wanted to make a statement at that time without a lawyer;
3. that she had not been offered any kind of reward or benefit nor had she been threatened in any way in order to get her to make a statement; and
4. that she was not under the influence of alcohol or drugs.

Prior to Rush signing the form, she asked " . . . do I need a lawyer or somethin' or is it, am I just in here for . . . questioning?" The detective responded, ". . . if you decide at that, any point in time during our questioning that you feel that that'd be the best for you, then you let me know that. Okay?" Ultimately, Rush signed and noted her level of education below her signature.

At the suppression hearing, the detective explained that handwriting the words "@ some time" is his usual practice because "[a lawyer] is not going to magically appear. It's going to take a little time for a lawyer to be provided to her for a representation. . ." Rush testified that she did not remember being advised of her rights but did remember being told that a lawyer would be appointed for her "after [she] would go to jail." She then acknowledged, however, that that was said to her only after the interrogation had concluded.

On review, the Court assessed the advisements given to Rush in their totality. By means of Advisement 2, "You have the right to talk to a lawyer before you are asked any questions and to have a lawyer with you while you are being questioned," Rush was told orally and in writing that she had the right to talk to a lawyer. She was then informed, by means of Advisement 3, also orally and in writing, that if she could not afford a lawyer, one would be provided for her at some time, at no cost. Under Eagan and Prysock, the added language did not violate Miranda because the warnings, as given, told Rush in straightforward language that she had a right to talk to a lawyer before being questioned and to have a lawyer present during questioning. Advisement 3, as altered by the words "at some time," was not inconsistent with the rights communicated in Advisement 2. Its message, stated separately from Advisement 2 because its topic was not the same, was that, if Rush decided that she wanted a lawyer, i.e., to exercise the right to a lawyer communicated in Advisement 2, but she did not have the resources to pay for a lawyer, she would be given a lawyer at no cost and at some time. Read objectively, this message did not tell Rush that, if she indeed asked for a lawyer right then, she nevertheless would have to undergo questioning without a lawyer until her lawyer arrived "at some time."

Rush argues that the detective actually asked her a few questions before advising her of her rights and, by doing so, created the impression that the interrogation had begun and the advice-of-rights had no bearing on Rush's ability to stop the interrogation. The Court reasoned that the questions posed prior to advising Rush of her rights were meant to orient her and to determine whether she had any first-hand familiarity with the Miranda warnings before he gave them to her. Further, the remarks made by Rush while the Miranda warnings were being given, and subsequently during the interview, evidence no confusion about her right to counsel and show that she was willing to speak to the police at the outset of the interview and as it progressed. Rush affirmatively stated she was willing to speak with police without a lawyer; and in doing so, she said nothing to suggest that she thought she had no choice in the matter. Rush even inquired whether she "needed" a lawyer, which prompted the detective to advise her that it was her decision and that she could make that decision at any time and questioning would cease.

Based on the stated reasoning, this Court held the circuit court erred in holding that Rush was not advised of her rights in accordance with Miranda and in granting her motion to suppress her statements from evidence on that ground.

With this holding, ordinarily the Court's inquiry would end. However, Rush asked they address the alternative voluntariness and argues that her statements were induced by improper promises and threats and, therefore, were involuntary and subject to suppression even if Miranda were complied with. As opposed to the State, a criminal defendant has no right to immediately appeal a circuit court's decision not to suppress evidence and has no right to pursue a cross-appeal in a State's appeal under CJ section 12-302(c)(3). The criminal defendant, unlike the State, is not without remedy if inculpatory evidence is erroneously admitted at trial, as he may raise the error on appeal after a final judgment of conviction. The legislature created the right of immediate appeal for the State in order to equalize the opportunities the parties have in criminal cases for meaningful correction of erroneous pretrial evidentiary rulings, made on constitutional grounds. The objective was to provide a vehicle to challenge a pre-trial ruling excluding critical evidence so that, if the ruling were erroneous, the error could be corrected before jeopardy would attach. Without such a right of immediate appeal, the State has no meaningful opportunity for error correction, because under double jeopardy principles and the developed case law on verdicts of acquittal, the State cannot appeal from a final judgment in favor of the defendant. The Court reasoned, however, that as the fields have been leveled, it would amount to an enourmous waste of judicial time and resources, and contrary to policies favoring judicial economy, to delay fully ruling on the correctness of a pre-trial suppression ruling when an immediate appeal has been taken.

To be voluntary, a confession must be "freely and voluntarily made at a time when [the defendant] knew and understood what he was saying." Similarly, in order to pass federal and Maryland constitutional muster, a confession must be voluntary, knowing and intelligent. The burden falls on the State to show "affirmatively that the inculpatory statement was freely and voluntarily made." Ordinarily, voluntariness is determined based on a totality of the circumstances test. When a confession is preceded or accompanied by threats or a promise of advantage, however, those factors are transcendant and decisive, and the confession will be deemed involuntary unless the State can establish that such threats or promises in no way induced the statement (the "Hillard" test). The first prong of Hillard is objective -- whether the police or State agent made a threat, promise or inducement, i.e., that is not, as a matter of routine, done for all suspects. Mere exhortations to tell the truth and appeals to a suspect's inner conscience has been held not to be improper. Further, the suspect's subjective belief that he will be advantaged in some way by confessing is irrelevant. The second prong of Hillard triggers a causation analysis to determine whether there was a nexus between the promise or inducement and the accused's confession.

Rush maintains the detective made improper promises during her interrogation that caused her will to be overborne, resulting in her making incriminating statements -- he promised "to help her if she told him the truth." The essential questions to answer are: (1) whether, to a reasonable person in Rush's circumstances, any of the detective's statements urging her to tell the truth were coupled with a promise, express or implied, that there would be a special benefit in doing so; and (2) if so, whether any such improper promise caused her to make an incriminating statement. The Court found that, because the interrogation was recorded, there was no factual dispute about what was said.

The Court agreed with Rush that several of the detective's comments were implied inducements in which he suggested that it would be advantageous to Rush, in terms of the charges she was facing, to speak out and reveal all she knew about the events leading up to the murder. He made two references that strongly implied a special benefit from speaking: 1) that there could be "salvation" for Rush if she told the truth, but, if not, she would remain in "major trouble"; and 2) that if Rush were to tell him "exactly what happened and why it happened," "we can resolve this and get it over with. . . ." These comments went beyond mere pleas to honesty and good conscience. Rather, they conveyed the message that a full statement would get the detective's assistance in making the first degree murder warrant go away so she would not have to "take the ride, take the charge," because the charge would be "resolved." A reasonable person in Rush's circumstances -- age 20 and having a 9th grade education - was an improper inducement. Accordingly, the Court affirms the order of the circuit court suppressing Rush's statements from evidence, in part, and vacates in part.

The full opinion is available in PDF.

Thomas v. Giant Food, LLC (Ct. of Special Appeals)

Filed April 9, 2007. Opinion by Judge Deborah S. Eyler.

On appeal from the grant of summary judgment in favor of the employer ("Giant") against a former worker ("Thomas"), affirming the denial of Thomas' claim by the Workers' Compensation Commission (the "Commission"), the Court AFFIRMED the decision below.

Thomas was injured while at work at Giant, during a period in which he was employed both by Giant and in a second job. The injury was severe enough to preclude Thomas from continuing to work at Giant, but he was able to continue the more sedentary second job. Thomas filed with the Commission for temporary partial disability, which was opposed by Giant because his weekly earnings from his second job exceeded his average weekly wage from Giant. The Commission agreed, and Thomas' appeal to the Circuit Court for Prince George's County was equally unavailing.

On appeal, Thomas advanced what the Court characterized as an "equity" argument: that the wages from the second job should not be considered in calculating his "wage earning capacity", or in the alternative the second job should be included as well in the "average weekly wage". Otherwise, since the wages from the second job exceeded the average weekly wage received from Giant, there would be no compensation, and that was contrary to the social purpose of the workers' compensation laws.

The Court noted that Worker's Compensation is purely a statutory remedy, and therefore any remedy is limited to that provided by the terms of the statute. Here, the statute clearly provides that "wage earning capacity" includes not only income from the injury-producing job but also other jobs, and "average weekly wage" only includes wages from the injury-producing job. Since Thomas' "wage earning capacity" exceeded his "average weekly wage", no compensation for temporary partial disability was due per the relevant provisions in the statute.

The Court noted other provisions in which the legislature had explicitly included or excluded other income in calculating eligibility for or the amount of benefits, but had not done so there. Unless and until the legislature sees fit to change the statute, the Court found that the result arrived at by the Commission and the court below was correct.

The opinion is available in PDF format.

Jones v. State (Ct. of Special Appeals)

Filed January 30, 2007. Opinion by Judge Deborah S. Eyler.

Defendant/appellant Jones appealed his conviction in Baltimore County of first-degree sexual offense, second-degree sexual offense, sodomy, and second-degree assault. On appeal, Jones challenged his conviction on the grounds that the trial court erred in rejecting his territorial jurisdiction argument as a matter of law, instead of submitting the issue to the jury, and in ruling the evidence was legally sufficient to establish a proper chain of custody for the DNA evidence.

Somewhere around midnight in early December, 1998, the victim went to a bar on Liberty Road in Baltimore County. After drinking heavily and passing out after falling outside, she was abducted from the bar's parking lot into the back seat of a car. Although she couldn't describe her assailant, she recalled being beaten and sodomized in the back seat, while a driver in the front seat drove the car, sometimes at high speed. When she began to throw up, the assailant dragged her out of the car. She then passed out again or fell asleep, and woke up some time later to find herself in Leakin Park in Baltimore City, dressed only in shirt and socks, some four or five hours after her abduction. She was taken to Mercy Medical Center, where a SAFE (Sexual Assault Forensics Examination) nurse performed an examination, and took an anal swab sample from the victim.

When after two months no viable suspect had been found, the case was closed by the Baltimore County police. Then, in 2004, DNA evidence from the swabs was sent to an independent lab for analysis. The results matched Jones' records in the State's DNA database, and he was indicted in early 2006.

At trial, the victim had not been able to testify as to her location during the period of her abduction, other than the beginning point in Baltimore County and the end point in Baltimore City, and couldn't rule out the possibility that she had been in the District of Columbia or Virginia when the assaults had actually taken place. At the end of the trial, the defense moved to dismiss for lack of territorial jurisdiction. The judge denied the motion, finding that the jury could make a reasonable inference from the testimony that the assault had in fact taken place in Maryland. Counsel for defense failed to request a jury instruction on territorial jurisdiction, but did mention in closing argument the lack of certainty of location as one element leading to reasonable doubt.

The Court noted that in Maryland, territorial jurisdiction is not an element of the offense, but must be raised as an affirmative defense based on evidence presented at trial. The Court distinguished the case at hand from the earlier cases of West v. State, Painter v. State, State v. Butler and McDonald v. State, finding that unlike the earlier cases, the issue of territorial jurisdiction had not been preserved for appellate review by the failure to request a jury instruction, and in any event the evidence here did not generate a genuine dispute of fact, at most raising a mere possibility or speculation that the crime might not have been committed on Maryland.

The Court then considered the evidence at trial on the issue of chain of custody of the DNA material, and found that it was sufficient to show by a reasonable probability that the DNA sample had not been tampered with, notwithstanding some missing details that did not indicate tampering or contamination. Accordingly, the Court affirmed the judgments against Jones.

This opinion is available in PDF format.

Jones v. Jones (Ct. of Special Appeals)

Decided January 26, 2007--Opinion by Judge Deborah S. Eyler.

On September 1, 2000, Corporal Carlton Jones was conducting an undercover surveillance operation. That night, Cpl. Jones followed a vehicle owned and operated by decedent, Prince Carmen Jones, Jr. (no relation), a Maryland resident, from the District of Columbia, into Maryland, and finally into Virginia. In Virginia, decedent, who was not the suspect sought by the police, confronted Cpl. Jones and attempted to ram the officer's unmarked vehicle with his own. Cpl. Jones fired sixteen shots at decedent, striking him six times and killing him.

Wrongful death claims were brought against Cpl. Jones in Maryland on behalf of decedent's father, mother, and minor child alleging excessive force, negligence and battery based on conduct that occurred in both Maryland and Virginia. An earlier appeal dealt with the mother's standing to bring a wrongful death claim. There, the Court of Appeals applied the principle that the law of the forum state controls procedural matters such as standing and allowed the mother's claim to go forward. (Jones I)

At trial, the defense moved for judgment as to all counts at the close of plaintiffs' case. One of the issues raised was whether wrongful acts occurred in Maryland, in Virginia, or in both. During argument on that motion, counsel for one of the plaintiffs advised the court if wrongful acts occurred only in Virginia, neither parent could recover under the Virginia Wrongful Death Act The court reserved ruling on that issue, and the jury returned a verdict in favor of both parents and the minor child, but only on the excessive force count. A JNOV followed, and the court, ruling that the only wrongful acts occurred in Virginia, applied the Virginia Wrongful Death Act and struck the verdicts in favor of the parents.

On appeal, the mother argued that the defense had waived the argument that she was not a permissible beneficiary under the Virginia Wrongful Death Act by not raising it in its motion for judgment.

The court disagreed, finding that the permissible beneficiary issue, albeit initially raised by one of the plaintiffs, was before the trial court, which reserved ruling on the issue. Therefore, the issue could properly be raised in a JNOV. As to the overall applicability of the Virginia Act, the court noted that whereas the proper procedural law was that of the forum state, the proper substantive law was that of the state where the wrongful acts occurred, in this case, Virginia. Questions of access to the courts, such as standing to sue, are procedural in nature. Questions of who has the legal right to recover damages, however, are substantive. Accordingly, it was proper for the Maryland courts to apply Virginia law. Because it was clear under the facts of this case that the mother had no right to recover under the Virginia Wrongful Death Act, the verdict in her favor was properly stricken.

The opinion is available in PDF.

Dougherty v. Rubenstein (Ct. of Special Appeals)

Filed January 4, 2007 — Opinion by Judge Deborah Eyler.

The "insane delusion rule" was created in Britain nearly two centuries ago, in 1826, devised to cover a gap between "idiots and persons of non-sane memory", who are without testamentary capacity, and a person "who knew the natural objects of his or her bounty, the nature and extent of his or her property, and could make a 'rational' plan for disposition, but who nonetheless was as crazy as a March hare", who could enter into a valid will.

In the seminal British case, Dew v. Clark, a father became unalterably convinced that his very young daughter was gross, wicked, depraved, vile, deceitful, and violent, a "child of the devil". He subsequently entered into a will disinheriting his daughter, then died three years later, after having been declared in chancery as being of unsound mind. In the caveat proceeding, the evidence showed that the daughter was known by all for her good disposition, and that the father had boasted about his good treatment of the daughter when the opposite was actually true. The father's behavior was otherwise usual, except for his warped thinking about the daughter, which "did and could only proceed from, and be founded in, insanity." The Dew court found that the father's "partial insanity" or "monomania" (insanity about a particular subject) had caused him to disinherit his daughter, and thus held the father to have been without testamentary capacity when he made his will, and set it aside. The "insane delusion rule" created in Dew was subsequently adopted in Maryland in the 1848 case of Townsend v. Townsend, but applied only rarely, in seven subsequent cases, the latest in 1973.

In this case, the insane delusion rule was invoked in an effort to set aside the 1998 will of James J. Dougherty, III ("James") by his son, James J. Dougherty, IV ("Jay"). The will had disinherited Jay, and, he claimed, was a product of an insane delusion that Jay had stolen his father's money. After his father's death in 2004, Jay sought to be appointed PR of the estate, and to not have the will admitted into probate. The Orphan's Court held evidenciary hearings in 2005. The testimony revealed a rocky relationship between James and Jay, beginning with James' divorce from Jay's mother. They reconciled four years later, and were close for seven more years. In 1990, James executed a will, leaving his estate to Jay.

In the 1990's, James' health deteriorated, due largely to alcohol abuse and prescription narcotics. In 1997, James suffered a minor stroke, and was diagnosed with congestive heart failure and an enlarged heart due to the alcohol abuse. During the hospitalization, James was often disoriented and confused, and had trouble expressing himself or understanding what was being said to him. He was transferred to the hospital's psychiatric unit, where he was diagnosed with dementia, a "lifelong" and "permanent" condition.

Based upon the doctors' advice, Jay decided to place James in a nursing or boarding home in 1998. James was, by all accounts, miserable in the home, and sought help from his visitors to get out. Conditions in the home were by all accounts rather grim, and James correctly blamed Jay for placing him there, and refused to have nothing to do with him. When Jay was away, James' sister (the "Rubenstein" who was later James' PR and a party to this case) removed him from the home and returned him to his house. Upon Jay's return, he returned his father's financial records to him, whereupon James lashed out at him, accusing him of stealing his money and saying that, for him, Jay did not exist.

In subsequent weeks and months, James appointed his sister his attorney in fact, and his heart condition was cared for by a doctor for whom the sister worked. He had a new will drafted, which disinherited his son, over the cautions of his attorney, He lived alone until his death in 2004, largely self-sufficient and in general appearing competent to care for himself. Although there was never any evidence that Jay had actually stolen anything from him, James maintained that he had, and that he had for that reason cut him out of his will. He also complained that Jay had placed him in the home, intending the stay to be permanent.

After the hearings, the Orphans Court judge found that, while a patient in the hospital in 1997 and early 1998, he was clearly without capacity to make a will, although he rejected the diagnosis of permanent and progressive dementia, based on James' subsequent improvement. Based on that improvement, other than the possible issue of an insane delusion, James was found competent to have made the 1998 will. The judge found that James' belief that his son had stolen from him was in fact a delusion, but was unable to conclude that the delusion was the product of a mental disease, and so admitted the will to probate.

On appeal, Jay argued that the judge had applied an incorrect standard to the determination, by requiring a separate determination that the delusion was caused by a mental illness.

In addressing the issue, the Court of Special Appeals (the "Court") noted that, to be valid, a will must be executed by a testator who is of age and legally competent. To rebut the presumption of competence, one must prove either permanent insanity or that the testator was of unsound mind when the will was made. An "insane delusion" or "monomania" is an unsoundness of mind that will invalidate the will if the delusion produced the disposition made in the will. The delusion must be "insane" and the will must be the product of the insane delusion, however. An insane delusion is "a belief in things impossible, or a belief in things possible, but so improbable under the surrounding circumstances, that no man of sound mind could give them credence." Mere eccentricity, peculiar beliefs or aversion to one relative or another are not, standing alone, insane delusions, nor is an insane delusion a general condition, but rather is directed toward some specific object, a person or thing.

The Court them carefully reviewed in detail the three prior Maryland cases where an insane delusion had been found or upheld, finding common features: all were negative false beliefs about the character of a close relative, unconnected to any reality or true experience but only existing in the testator's mind. The obect of the hostility had not only not done the specific acts charged, but in fact had done nothing that could account for the testator's hostility, leaving insanity as the only explanation for the delusion.

Turning to the case at hand, the Court was not convinced the judge had added an additional element by seeking an underlying mental disease, but was merely using "mental disease" as an alternative to "insanity," correctly formulating that more than a mere delusion is needed, namely an "insane delusion." The Court also upheld the judge's determination that the testator's delusion found in this case was not "insane" within the meaning of the rule. The Court distinguished the earlier cases, in which there was no alternate explanation for the delusion other than insanity. Here, the delusion arose while James was a resident, not by choice, of the home, a condition for which James accurately blamed Jay, and arose as an outgrowth of James' stubborn conviction that Jay had "done something wrong" by "imprisoning" him at the home. Although false, the Court found that James' conviction, though it led him to disinherit his son, was not "an inexplicable delusion that only could have come into being as a product of an insane mind," and upheld the judge's conclusion as a reasonable interpretation.

The full opinion is available in WordPerfect and PDF.

Whittington v. Whittington (Ct. of Special Appeals)

Decided January 4, 2007—Opinion by Judge Deborah Eyler.

In a divorce action, the Circuit Court for Anne Arundel County granted a divorce and awarded the wife indefinite alimony, counsel fees, a monetary award, and an interest in the marital portion of her husband's two pensions. The court also ordered the husband to maintain a survivor benefit for the wife on one of his pensions, granted the wife an interest in the survivor benefit, and ordered the division of certain jointly held marital property.

The Court considered six questions on appeal:

I. Did the trial court err or abuse its discretion in granting the wife indefinite alimony of $1,500 a month?

II. Did the trial court err or abuse its discretion in valuing certain marital property and in equitably distributing the marital property?

III. Did the trial court err in awarding the wife a portion of the survivor benefit of one of the husband's pensions?

IV. Did the circuit court make inconsistent findings of material fact warranting a reversal?

V. Did the circuit court err by failing to reconsider the alimony and counsel fee awards after amending the judgment to grant the wife an award of a portion of the one of the pension survivor benefits?

VI. Did the circuit court err in awarding counsel fees without making any factual findings as to the reasonableness of the fees?

Affirming the circuit court's judgment of divorce, the Court otherwise vacated the judgment and remanded because it appeared the trial judge had not exercised discretion in determining whether indefinite alimony was "required" rather than appropriate; and commented for further guidance on other of the issues presented.

The full opinion is available in WordPerfect and PDF.

Hart v. Subsequent Injury Fund (Ct. of Special Appeals)

Decided December 29, 2006 -- Opinion by Judge Deborah S. Eyler.

Appellant appealed the Circuit Court for Kent County's granting of summary judgment against her in an appeal of a denial of subsequent injury benefits before the Workers Compensation Commission.

In September 2002, Appellant had impleaded the Subsequent Injury Fund in her workers' compensation case, but settled her claims shortly thereafter against her employer and its carrier by an "Agreement of Final Compromise and Settlement." The Agreement included a "guide form" questionnaire which asked, inter alia, whether the Subsequent Injury Fund had potential liability. Appellant answered that question in the affirmative.

In her appeal, Appellant argued that

1) She had informed the Workers Compensation Commission in her Guide Form that she had a claim pending against the Subsequent Injury Fund;

2) She did not affirmatively or in any other way give up her rights against the Subsequent Injury Fund; and

3) It was incumbent upon the Workers Compensation Commission itself to "either insure that the Claimant/Appellant's right to proceed further against the [Subsequent Injury Fund] was preserved or to affirmatively inform her that by signing the proposed Agreement she would finally and forever give up her rights against the [Subsequent Injury Fund]."

The Court of Special Appeals noted that the Code, LE §9-722, precluded in plain language any action against the Subsequent Injury Fund after a settlement of claims, unless the Workers Compensation Commission ordered to the contrary, which did not occur, and did not require that a claimant expressly give up such rights to be effective. The Court rejected Appellant's interpretation of her response to the questionnaire regarding the Subsequent Injury Fund's possible liability, characterizing it not as a device for preserving a claim but as a mere tool to prevent unjust results against claimants.

Finding no facts in dispute, the Court sustained the judgment in favor of the Subsequent Injury Fund and denied Appellant's appeal.

The full opinion is available in WPD and PDF.