Moscarillo v. Professional Risk Management Services, Inc. (Ct. of Appeals)

Filed April 16, 2007. Opinion by Judge Clayton Greene.

From the official headnote:

PROFESSIONAL LIABILITY INSURANCE– DUTY TO DEFEND– To establish a potentiality of coverage, an insured can refer to extrinsic evidence, however, the extrinsic evidence must relate to a cause of action actually alleged in the complaint and can not create a new, unasserted claim. An insurer’s duty to defend is not triggered when the professional liability insurance policy at issue does not provide coverage for fraud and the gravamen of the complaint in the underlying action alleges only fraud.

On appeal from a decision of the Court of Special Appeals affirming the decision below that the insurer had no duty to defend the insured ("Moscarillo") for intentional rather than negligent conduct, the Court of Appeals AFFIRMED the decisions below.

The opinion is available in PDF format.

Attorney Grievance Commission v. Mahone (Ct. of Appeals)

Filed April 10, 2007. Opinion by Judge Clayton Greene, Jr.

From the official headnote:

ATTORNEY DISCIPLINE – Our goal in matters of attorney discipline is to protect the public and the public's confidence in the legal profession rather than to punish the attorney.

ATTORNEY DISCIPLINE – We protect the public by imposing sanctions that are commensurate with the nature and gravity of the attorneys’ violations and the intent with which they were committed. The severity of the sanction depends upon the facts and circumstances of each case, taking account of any particular aggravating or mitigating factors. Under the circumstances, the appropriate sanction is a reprimand where the attorney disrupted court proceedings in one instance; and, in another instance walked out during the court proceedings to show his disdain for the trial judge. The mitigating factors were that the attorney’s clients were not prejudiced as a result of his misconduct and that there were no prior disciplinary proceedings filed against the attorney. In addition, by imposing a reprimand in this case, we are able to send a clear message to the Bar that deliberately disruptive behavior by attorneys in court proceedings will not be tolerated.

In the course of representing two clients in three matters before two judges, Mahone was found by the hearings judge to have not shown up for a hearing in one matter, without notice to the court that he would be tardy or explaining or apologizing for his tardiness afterwards, and repeatedly interrupted the judges and acted in a condescending manner in two other matters, including leaving the courtroom and abandoning his client during the judge's rendering of his opinion in one of them. Consequently, the hearings judge found Mahone's conduct to have been prejudicial to the administration of justice in violation of Rule 8.4(d) of the MRPC.

Mahone filed exceptions on the grounds that the hearings judge failed to make findings of mitigation on the basis of his "Equitable Grounds Defense", in which he had suggested that the complaints had been filed as a product of judicial retaliation and resentment, and that the hearing judge erred in finding that one instance of lateness supported a finding of discourtesy, and in failing to find that one of the trial judges initiated a patter of interruptions, goaded him during the hearing, was discourteous to counsel, and lost control of the proceedings and created a hostile and oppressive court environment, and that Mahone's walking out was a "speech protest" rather than a substantial idsruption of the proceedings. Mahone also noted that neither judge had held him in contempt, and that one waited four months before filing a complaint.

The Court found that Mahone had had a full opportunity to be heard before the hearing judge on all matters raised in the exceptions, and found no basis for determining the factual findings below were clearly erroneous. The Court had little effort affirming the hearing judge's finding of law that Mahone had violated MRPC 8.4(d), finding that his patterns of disruption and walking out of court constituted a direct contempt, and that the exceptions proffered, even if taken at face value as true, did not excuse Mahone's conduct. Further, the restraint exercised by the judges did not serve to demonstrate that his conduct was not disruptive.

The Court did not agree with the suspension requested by Bar Counsel, noting that not every contempt of court deserves suspension or disbarment. Here, given that Mahone was, as noted by the hearing judge, a "zealous advocate" who had "[lost] his perspective", that neither client had been prejudiced by Mahone's misconduct, and that there had been no prior disciplinary proceedings against him, the Court held that the appropriate sanction was a reprimand, since that would be sufficient to "send a clear message" that such behavior will not be tolerated.

The opinion is available in PDF format.

Erie Insurance Exchange v. Heffernan, II, et al. (Court of Appeals)

Filed April 10, 2007 --Opinion by Judge Clayton Greene

The parents of a child killed in an automobile accident when the driver fell asleep sued for benefits, pursuant to two policies of insurance issued to them by Erie Insurance Exchange. The Court of Appeals held that, in a breach of contract action for benefits, pursuant to the uninsured/underinsured provisions of an automobile insurance contract executed in Maryland, what the parents were "entitled to recover" was determined by Delaware substantive law because the law of the situs of the accident controlled the tort aspects of the claim, including questions of liability and damages raised in an uninsured motorist claim.

Prior to filing the contract action, the parents had settled the underlying tort claim against the underinsured tortfeasor. Because Erie approved the settlement with the tortfeasor, the Court noted that Erie was bound by that settlement and, therefore, liability was not at issue. The Court also concluded that Maryland's public policy exception to the doctrine of lex loci delicti does not require the application of Maryland's statutory cap on non-economic damages or application of Maryland's contributory negligence principles.

The opinion is available in PDF.

Thornton v. State (Ct. of Appeals)

Filed March 20, 2007--Opinion by Judge Clayton Greene.

Petitioner seeks review of a Court of Special Appeals judgment affirming his conviction for murder in the second degree. Two questions were presented:

1. Did the intermediate appellate court and the trial judge correctly interpret and apply the mens rea element of the second-degree murder of the intent-to-inflict-grievous-bodily-harm variety?

2. Did the intermediate appellate court and the trial court correctly interpret and apply the law of imperfect self-defense?

Second degree murder does not require premeditation or deliberation. In order to convict the defendant of second degree murder, the burden is on the State to prove (1) that the conduct of the defendant caused the death of the victim; and (2) that the defendant engaged in the deadly conduct either with the intent to kill or with the intent to inflict serious bodily harm such that death would be the likely result.

To determine whether the trial judge and intermediate appellate court correctly interpreted and applied the intent element of second-degree murder, the Court reviewed the mens rea requirement, focusing on the definitions of murder, malice and grievous bodily harm, including the meaning of the phrase "that death would be the likely result." Where murder is predicated upon a theory of intent to commit grievous bodily harm, the intended harm must be grievous bodily harm and must be the legal equivalent of malice. Furthermore, in the context of a murder prosecution, intent to inflict grievous bodily harm means such harm that a reasonable person could or should know, under the circumstances, would likely result in death to the victim. Because the crime involves an unintentional killing, the defendant need not actually know that his conduct will result in the victim's death. The requisite mens rea is measured by an objective standard, i.e., could or should a reasonable person, under the circumstances, have foreseen that death would likely ensue as a result of his or her conduct. Thus, the likelihood requirement is no more than an objective standard used to circumscribe and clarify the elements of intent and malice.

Malice may be inferred from (1) an act by the accused sufficient to show an intent to inflict great bodily harm, or (2) an act the natural tendency of which would cause death or great bodily harm. In other words, the trier of fact may infer malice where the defendant acts without provocation, justification or excuse, and could or should have foreseen that the consequences of his or her conduct might result in death to another person. Malice may be either express or implied.

Intent has traditionally been defined to include knowledge, and thus it is usually said that one intends certain consequences when he desires that his acts cause those consequences or knows those consequences are substantially certain to result from his act. A general mens rea or intent includes those consequences which (a) represent the very purpose for which an act is done (regardless of the likelihood of occurrence), or (b) are known to be substantially certain to result (regardless of desire). By contrast, a specific intent requires more than the general intent to do the actus reus. An offense is murder depending on the results and the nature and extent of the injury or wrong actually intended.

Thus, the trier of fact may find the requisite intent for second-degree murder, even where the defendant did not intend to kill the victim, but did intend to inflict grievous bodily harm. Murder of the intent-to-inflict-grievous-bodily-harm type is, by definition, a specific intent crime, and the specific intent necessary for conviction is the intent to do serious bodily injury, that death would be the likely result.

In the instant case, the trial judge found that Petitioner did not possess a specific intent to kill his victim but did indicate that malice was implied. Yet, at no time did the trial judge state that Petitioner acted with the intent to inflict grievous bodily harm. Essentially, the trial judge reasoned that because Petitioner was responsible for his actions, he, therefore, must have known that his act would inflict serious bodily harm and that death would be a possible or probable consequence of that harm. The intent to inflict grievous bodily harm is a life-threatening state of mind. Thus, in order to convict Petitioner, the trier of fact was required to find that Petitioner's desire or purpose was to inflict such harm that a reasonable person, under the circumstances, could or should have anticipated that death would likely occur.

The trial judge erred by substituting the notion of responsibility for one's actions (the act of stabbing the victim in the leg) for knowledge that death would likely occur. Merely because Petitioner may be blameworthy, because of the consequences of his actions, does not mean that he either had a desire to bring about those results or that those results were probable. Essentially, the trial judge found that because Petitioner caused the injury from which death resulted, he was guilty of murder. This determination resulted in a presumption that Petitioner intended the consequences of his actions and a modification of the mens rea requirement for specific intent-to-inflict-grievous-bodily-harm. The trier of fact may draw inferences from the facts presented in the case but may not presume an element of the State's case.

Held that the Court of Special Appeals erred in affirming the trial court's interpretation and application of the intent element for the crime of second-degree murder. The qualification that "death would be the likely result" both circumscribes and clarifies the intent element of second degree murder of the type of consideration. Moreover, the panel majority did not acknowledge the difference between serious bodily harm in the context of murder and in the context of an assault. Second degree murder of the intent to inflict grievous bodily harm is neither a strict liability crime nor a crime predicated upon a theory of negligence. Accordingly, the State must prove intent to injure the victim so severely that death would be the likely result even though the defendant did not intend that the victim die. In summary, the trial judge's mistaken conclusions of law, which modified the specific intent requirement and unconstitutionally shifted the burden of proof to Petitioner, warrants reversal of conviction for murder in the second degree and a remand of the case for a new trial. In light of this holding, the second question was not addressed.

The full opinion is available in PDF.

Koons Ford of Baltimore, Inc. v. Lobach (Ct. of Appeals)

Filed March 20, 2007--Opinion by Judge Clayton Greene (JJ Raker and Harrell dissenting).

The Lobachs purchased a vehicle from Koons Ford and, after discovering defects in the vehicle, filed a complaint against Koons alleging, inter alia, that Koons violated the Magnuson-Moss Warranty Act ("MMWA"), the Maryland Consumer Protection Act ("MCPA"), breach of contract, violation of the Maryland Commercial Law Code, fraud, and a derivative action against Suntrust Bank for all of the aforementioned claims. Koons responded with a Petition for Order to Arbitrate and Dismissal of Complaint. Koons maintained that the claim had to be submitted to binding arbitration because, as part of the purchase, the Lobachs signed a buyer's order that contained a binding arbitration clause, and arbitration is expressly favored by the Federal Arbitration Act ("FAA"). The Lobachs argued the MMWA prohibits the forced resolution of claims through binding arbitration and, therefore, the FAA does not apply. The Lobachs further maintained that the arbitration clause must be included in the warranty document to be enforceable under the single document rule.

This Court rejected the Lobach's claim that they had no notice of the binding arbitration provision or that they were foregoing their ability to bring a civil suit. The applicable language was clear and comprehensible and appeared in the buyer's order in capital letters and bold print. Because the Lobachs signed their names below the arbitration provision, attesting to their understanding of what they read, the Court held that they may not evade their obligations simply because they choose to not read what they had signed.

Another provision in the buyer's order provided in relevant part, "NOR SHALL ANYTHING HEREIN BE CONSTRUED TO LIMIT ANY REMEDIES UNDER . . . THE MAGNUSON MOSS ACT." The Court interpreted this provision to mean that the Lobachs may not be precluded from pursuing claims for breach of warranty in a court of law. However, although the MMWA allows for non-binding, as opposed to binding, arbitration, the next issue is to determine whether the FAA trumps the MMWA and whether the binding arbitration provision contained in the buyer's order is nonetheless enforceable.

The Court rejected Koon's interpretation of the MMWA and agreed with the Lobach's contention that Congress expressed an intent to preclude binding arbitration of claims under the MMWA, a conclusion which is further supported by the FTC regulations. The language of 15 U.S.C. § 2310 makes clear that the warrantor may establish informal dispute settlement mechanisms that consumers must use to resolve their claims under the MMWA, but that consumers cannot be forced to resolve their claims through an informal dispute resolution mechanism that is binding. Consumers may be required by warrantors to participate in a non-binding informal dispute settlement mechanism, but only as a prerequisite; afterwards, consumers may pursue other legal remedies.

This Court held that, under the MMWA, claimants may not be forced to resolve their claims through binding arbitration because Congress expressed an intent to preclude binding arbitration when it enacted the MMWA. The FAA does not supersede the MMWA. Because of the resolution of this case, the Court did not address the parties' dispute over the single document rule.

The full opinion is available in PDF.

Morgan State University v. Walker (Ct. of Appeals)

Filed March 15, 2007--Opinion by Judge Clayton Greene.

Ms. Walker instituted a personal injury action against MSU, arguing they were negligent for their failure to remove snow from a parking lot which resulted in Ms. Walker fracturing her leg when she fell on the ice. The Circuit Court for Baltimore City determined that despite MSU's negligence, as a matter of law, Ms. Walker assumed the risk of her injuries and granted summary judgment in favor of MSU. The Court of Special Appeals reversed in an unreported opinion, holding that the voluntariness of Ms. Walker's action was a jury question. This Court concluded that when Ms. Walker walked across the parking lot with knowledge that the lot was covered with ice and snow, she assumed the risk of her injuries, as a matter of law, under the circumstances. Further, in an assumption of the risk analysis, the defendant's or a third party's negligence is irrelevant.

The voluntariness of conduct in an assumption of risk analysis is measured by an objective standard. Ms. Walker's testimony indicated she was aware of the icy conditions and clearly appreciated the danger of walking on the ice. Further, Ms. Walker's motivation to walk across the ice would be considered involuntary only if she lacked the free will to avoid the situation. The fact that no other reasonable alternative path was available does not reduce the free will standard. Ms. Walker's purpose of walking across the ice was to visit her daughter. As soon as she realized the parking lot was covered in ice, she made the free-will choice to continue with her visit, park her car, and walk across the ice. Because the uncontroverted evidence demonstrated that Ms. Walker knowingly and voluntarily walked across the icy parking lot, the Circuit Court correctly granted summary judgment in favor of MSU.

The full opinion is available in PDF.

State v. Williams (Ct. of Appeals)

Filed February 8, 2007—Opinion by Judge Clayton Green

Charles Williams was convicted in a bench trial of aiding and abetting Anthony Henderson and Cheryl Gains in the attempted robbery of a Citgo station in Baltimore County. The trial judge found Williams guilty of attempted robbery with a dangerous weapon (Count 1); attempted robbery (Count 2); assault in the first degree (Count 3); attempted theft (Count 4); use of a handgun in the commission of a felony (Count 6); and use of a handgun in the commission of a crime of violence (Count 7). Williams was acquitted of wearing, carrying or transporting a handgun (Count 5) and two counts of possession of a firearm (Counts 8 and 9).

Williams was convicted as a principal in the second degree to those crimes, in part, because he drove Henderson and Gaines to and from the station where the crimes took place. The Court of Special Appeals found the guilty verdicts inconsistent with the acquittal for wearing, carrying or transporting a handgun because Williams could not have used the handgun if he did not first possess it. The trial judge neither acknowledged the inconsistencies offered nor offered any justification to explain how Williams was not in joint constructive possession of the handgun used in the crime.

The Court of Special Appeals compared the “use” of a handgun to the “possession” and determined that the Legislature intended “use” to be something more than “possession” – an active, rather than a passive operation or employment of a handgun. The intermediate appellate court acknowledged that there existed no evidence that Williams actually possessed the handgun but noted that his convictions were not based on his actual use of the handgun; they were based on Henderson’s use of the handgun and William’s complicity in Henderson’s actions. The court explained that before Williams could use the gun he had to have possessed it, and the trial court failed to explain that inconsistency. As such, the Court of Special Appeals reversed Williams’ convictions for attempted robbery with a dangerous weapon, assault in the first degree, and use of a handgun in the commission of a crime of violence and a felony. It affirmed all the other verdicts and remanded the case to the Circuit Court for new sentencing.

Upon the State’s writ of certiorari, this Court reasoned that verdicts are inconsistent if they are “lacking consistency; not compatible with another fact or claim.” BLACK’S LAW DICTIONARY 781 (8th ed. 1999). Inconsistent verdicts in jury trials are permissible in criminal cases; however, inconsistent verdicts of guilty and not guilty by a trial judge at a nonjury trial are not ordinarily permitted. When a trial judge renders inconsistent verdicts, the remedy is to reverse or vacate the verdict entered on the inconsistent guilty verdict. Where, however, there is an apparent inconsistency in the verdicts at a nonjury trial, but where the trial judge on the record satisfactorily explains the apparent inconsistency, the guilty verdict may stand. If there is only an apparent inconsistency which in substance disappears upon review of the trial court’s explanation, the guilty verdict will not be vacated.

The Court agreed with the State’s distinctions between misdemeanors and felonies in the application of the law of accessoryship in Maryland, but disagreed that those differences render the verdicts inconsistent, as a matter of law, in this case. The Court established that the common law doctrine of accessoryship is applicable to felonies only and outlined the differences:

A principal in the first degree is one who actually commits a crime, either by his own hand, or by an inanimate agency, or by an innocent human agent. A principal in the second degree is one who is guilty of a felony by reason of having aided, counseled, commanded or encouraged the commission thereof in his presence, either actual or constructive. A principal in the second degree differs from an accessory before the fact because an accessory before the fact is one who is guilty of a felony by reason of having aided, counseled, commanded or encouraged the commission thereof, without having been present either actually or constructively at the moment of perpetration. Lastly, an accessory after the fact is one who, with knowledge of the other’s guilt, renders assistance to a felon in the effort to hinder his detection, arrest, trial or punishment. These differences are not applicable to misdemeanors because, in Maryland, the principles of accessoryship apply only to felonies; as to misdemeanors, all participants in a crime are considered principals.

In accordance with these definitions and case law, the Court concluded that Williams must have possessed the handgun before he could use it. Because Williams embraced the entire criminal enterprise, it was inconsistent for the trial judge to conclude that Williams used the handgun but did not actually or constructively possess that gun. The judge, further, failed to adequately explain how Williams was not in possession of the handgun while traveling to the Citgo station but nonetheless embraced all of the other crimes committed in furtherance of the attempted armed robbery. Consequently, the convictions for attempted robbery with a dangerous weapon, assault in the first degree, and use of a handgun in the commission of a crime of violence and a felony must be reversed.

The full opinion is available in PDF.

Cox v. State (Ct. of Appeals)

Filed February 8, 2007–Opinion by Judge Clayton Greene.

Petitioner sought to suppress a baggie of marijuana seized after police had obtained information about Petitioner’s outstanding arrest warrant subsequent to an arguably illegal stop. The two issues to review were (1) whether a police encounter, in which a uniformed officer approached Petitioner on the street claiming that he "loosely fit" the description of the perpetrator of a recent string of robberies, asked Petitioner for identification, and ran a check on his identification, constituted an illegal stop in violation of the Fourth Amendment, and (2) whether a police officer’s subsequent discovery of an outstanding arrest warrant represented an intervening circumstance, such that if the stop were illegal the arrest on the warrant attenuated the taint of the illegal stop.

The Court focused on three factors: (1) the Temporal Proximity Factor, (2) the Intervening Event Factor, and (3) the Flagrancy of the Police Conduct Factor.

The Temporal Proximity Factor suggests that the greater the time lapse between the illegality and discovery of evidence, the greater the chance that the taint has been purged. In this case, there existed a mere two minutes between the illegal stop and the discovery of the marijuana. However, since the temporal proximity factor has been labeled ambiguous and the question of timing is not dispositive on the issue of taint, the court focused on the other two factors.

An Intervening Circumstance is an event that breaks the causal connection between the unlawful conduct and the derivative evidence. In this case, the officers discovered the baggie of marijuana after the police learned of Petitioner’s outstanding arrest warrant, stood Petitioner up from the curb and arrested him pursuant to that warrant. The police did not ask Petitioner to sit on the ground until after the radio alert of the outstanding warrant. Although Petitioner may have discarded the baggie while he was seated on the ground, that fact is not dispositive to the Court’s analysis or holding.

The final factor is the Flagrancy of the Police Misconduct. The Court found nothing in the record indicating the police acted in bad faith. Once the officer discovered the outstanding warrant for Petitioner’s arrest, he "gained an independent and intervening reason to arrest and search [Petitioner]." Furthermore, merely because the officer’s stop of Petitioner was determined to be invalid does not mean that his conduct was flagrant.

Holding:
Assuming arguendo that the police encounter constituted an illegal stop, the ultimate question is more appropriate: whether it was proper for the trial court to grant Petitioner’s motion to suppress the evidence. The police officer’s discovery of an outstanding warrant for Petitioner’s arrest pursuant thereto represents an intervening circumstance sufficient to attenuate the taint of what appears to be an illegal stop.

The full opinion is available in PDF.

Mundey v. Erie Insurance Group (Ct. of Appeals)

Filed January 16, 2007 -- Opinion by Judge Clayton Greene

Richard Mundey, Jr., age 21, was a passenger in a motor vehicle driven by his friend, Amber Burgess. As a result of Amber's negligent operation of her automobile a collision occurred and Mundey suffered serious physical injuries which exceeded $20,000.00, the maximum amount of liability coverage on the vehicle in which he was a passenger. At the time of the collision, Mundey resided temporarily in the home of his grandmother and was not permitted to reside in the home of his parents. Mundey sought a declaration that he was covered under his parents' automobile liability insurance policy for payment of his damages pursuant to the uninsured/underinsured motorist provision of that policy.

In affirming the decision in the Court of Special Appeals, the Court held that Mundey was not entitled to recover under his parents' uninsured motorist endorsement because, at the time of the collision, he was not a resident of their household or otherwise insured under the automobile liability policy in question. In addition, the Court held that consistent with Md. Code (1997, 2006 Repl. Vol.), §19-509 of the Insurance Article, Mundey was not a "clause 1 insured" under his parents' automobile liability policy at the time of the accident.

This opinion is available in PDF format.

Evans v. State (Ct. of Appeals)

Filed December 19, 2006—Opinion by Judge Alan Wilner, joined as to Nos. 107 and 124 by Judge Clayton Greene, dissent by Chief Judge Robert Bell, in which Judge Greene joined as to Parts C and D only.

The Court considered four appeals – Nos. 107, 122, 123, and 124 – which it consolidated. In Nos. 107 and 124, two substantive issues were raised: (1) Whether Evans was entitled to a new sentencing hearing because his attorneys at the 1992 re-sentencing hearing failed to investigate and present mitigating evidence relating to his background, thereby rendering their service, under principles enunciated in Wiggins v. Smith and Rompilla v. Beard, constitutionally deficient and prejudicial; and (2) Whether, under Miller-El v. Dretke, he was entitled to a new trial as to guilt or innocence because the State, in selecting a jury at the 1984 trial, exercised peremptory strikes in a racially discriminatory manner.

The issue in No. 123 was whether the Circuit Court for Baltimore County abused its discretion in denying, without affording discovery, Evans's third motion to reopen the 1995 post conviction proceeding in order to present the complaint that "selective prosecution by the Baltimore County State's Attorney's Office and systemic statewide racial and geographic discrimination rendered his sentence unconstitutional."

Appeal No. 122 arose from an action for injunctive relief filed in the Circuit Court for Baltimore City. Maryland Code, §3-905 of the Correctional Services Article requires that the manner of executing a sentence of death be by lethal injection. The Division of Correction (DOC) has adopted a comprehensive set of execution protocols, including a detailed description of the manner in which the lethal drugs are to be administered. Joined by three co-plaintiffs – the NAACP, the ACLU, and Maryland Citizens Against State Executions (CASE) – Evans contended that those aspects of the execution protocol were (1) inconsistent with the statutory requirements, and (2) in the nature of a regulation that was promulgated without compliance with the State Administrative Procedure Act. The appeal was from the Circuit Court's denial of a temporary injunction that would have restrained DOC from using its protocol.

The majority affirmed the Circuit Court on Appeal Nos. 107, 123, and 124, but found merit in the second aspect of Evans's complaint in No. 122, holding that Evans was not entitled to a new sentencing proceeding or to a new trial, but that the part of the DOC protocol that directs the manner of administering the lethal injection is ineffective until either (1) it is adopted as a regulation in accordance with the Administrative Procedure Act, or (2) the Legislature exempts it from the requirements of that Act.

Thus the majority held that those aspects of the EOM that direct the manner of executing the death sentence – the Lethal Injection Checklist – constitute regulations under SG §10-101(g) and, because they were not adopted in conformance with the requirements of the APA, are ineffective and may not be used until such time as they are properly adopted. The majority reversed the ruling of the Circuit Court for Baltimore City, remanding so that a final injunction could issue.

In dissent, Chief Judge Robert Bell did not disagree with the majority’s resolution of the "regulation" issue, but took strong exception to the majority's other holdings. In Part C, Judge Bell wrote that the merits of the selective prosecution claim were not yet on the table; but that Evans had satisfied the threshold inquiry into whether discovery on that issue was warranted. In Part D, Judge Bell agreed with the majority’s disposition of the "regulation" issue, but further concluded that the DOC procedure does not comport with, and is in fact violative of the statute. Judge Greene joined in Parts C and D only of the dissent.

The full opinion is available in WordPerfect and PDF.

Web Commentary: Crablaw, Sentencing Law & Policy, Ohio Death Penalty Information, Underdog Blog, Capital Defense Weekly, Lethal Injection, Maryland Moment, Baltimore Crime, Crime and Consequences, Andrew Cohen in the Washington Post.

Cottman v. State (Ct. of Appeals)

Filed December 8, 2006--Opinion by Judge Clayton Greene, Jr.

Criminal Law – Proceedings – Appeals – Effect of New Trial – Mootness – Where a criminal defendant, after conviction and sentence, files a timely notice of appeal to the Court of Special Appeals, but is granted a new trial before the appellate opinion is filed, the appellate court may be required to dismiss the appeal. The trial court retains fundamental jurisdiction to grant a new trial, despite the pending appeal, but the effect of granting a new trial, ordinarily, renders the appeal moot. In the instant case, the Court of Special Appeals erred, as a matter of law, in failing to dismiss the appeal where the subject matter of the appeal was moot and that court was unable to review the propriety of the order granting the new trial.

The full opinion is available in WordPerfect and PDF.