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.

Department of Human Resources v. Howard (Ct. of Appeals)

Filed March 13, 2007. Opinion by Judge Glenn T. Harrell, Jr.

The issue facing the Court of Appeals was whether specially assigned retired judges could properly sit with the Court of Special Appeals ("CSA") during the hearing and decision of an appeal in banc. While taking pains to acknowledge the abilities and contributions of specially assigned judges, the court held that only the thirteen incumbent judges of the CSA could participate in the hearing and decision of in banc appeals.

The facts of the underlying appeal are not relevant to the issue before the court. After an appeal to the CSA had been noted and routinely assigned to a three-judge panel, the CSA invited the parties to submit the question at issue to the CSA in banc. In addition to the thirteen incumbent judges of the CSA, two specially assigned judges participated in the hearing and decision of the appeal. Following an eight to seven decision of the CSA, which generated a multiplicity of opinions, the Court of Appeals granted certiorari sua sponte, posing the additional question of the propriety of participation by the specially assigned judges.

In its analysis, the Court of Appeals traced the history of the CSA, examined the statutes creating the court and providing for in banc review, and examined the manner in which in banc review was handled by other courts. The Court of Appeals found that the underlying statute clearly and unambiguously stated that in banc review was to be conducted by "incumbent" judges, being those appointed by the Governor and confirmed by the Senate. Specially assigned judges did not meet this definition, and, therefore, could neither participate in the hearing nor decision of an in banc appeal. This result, the Court of Appeals held, is consistent with the policy reason for in banc review - permitting the incumbent judges of the CSA to control the jurisprudence of the court upon which they sit. The court expressly refused to simply disregard the votes of the specially assigned judges and treat the vote of the incumbent judges as the decision of the CSA. Instead, the decision of the CSA was vacated and the matter remanded for further proceedings.

The opinion is available in PDF format.