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.
Showing posts with label judicial discretion. Show all posts
Showing posts with label judicial discretion. Show all posts
Tuesday, February 6, 2007
Thursday, January 25, 2007
Price v. State (Ct. of Special Appeals)
Decided January 25, 2007--Opinion by Judge James R. Eyler
Price was convicted by a jury of possession of heroin, possession of cocaine, possession of marijuana, and possession of a firearm under sufficient circumstances to constitute a nexus to a drug trafficking crime. The court sentenced Price to eight years imprisonment on the heroin possession, a consecutive eight years imprisonment on the cocaine possession, two years concurrent on the marijuana possession, and another twelve years imprisonment consecutive on the possession of a firearm conviction.
Four issues were raised on appeal:
1) Whether the evidence was sufficient to sustain Price's convictions;
2) Whether the court erred by refusing to ask an impaneled juror, who was later dismissed, whether he had discussed the reason for his dismissal with any of the other jurors;
3) Whether the court erred by doubling Price’s sentences for all three drug possession convictions pursuant to Maryland Code (2002 Repl. Vol.) §5-905 of the Criminal Law ("C.L.") Article;
4) Whether the court erred by allowing the jury to convict Price of possession of a handgun in connection with trafficking, and acquit him of all other drug trafficking charges.
Held:
1) To support a conviction for the offense of simple possession, the evidence must show directly or support a rational inference that the accused did in fact exercise some dominion or control over the prohibited drugs in the sense contemplated by the statute, i.e., that the accused exercised some restraining or directing influence over it. Additionally, the accused, in order to be found guilty, must know of both the presence and the general character or illicit nature of the substance and referred to the following factors to determine the issue of possession:
(i) proximity between the Defendant and the contraband, (ii) the fact that the contraband was within the view or otherwise within the knowledge of Defendant, (iii) ownership or some possessory right in the premises or the automobile in which the contraband is found, or (iv) the presence or circumstances from which a reasonable inference could be drawn that the Defendant was participating with others in the mutual use and enjoyment of the contraband.
The evidence adduced at trial consisted mainly of testimony of the police officers who were conducting surveillance. From this testimony, the court found, the jury could have reasonably concluded that Price was in close proximity and had knowledge of the presence of the drugs, inferred that Price was participating in the sale and that the gun and money thrown by Price were instruments related to the sale of the drugs. Thus, the evidence was sufficient to support Price's possession convictions.
2) A note left by juror number 4 for the judge indicated concern by the juror of potential reprisal given that he resided within close proximity to the neighborhood where Price was arrested. Prior to dismissal of the juror, Defense argued that the juror should be questioned as to whether he explained his dismissal to other jurors, potentially tainting the jury. The court found that, on several occasions, the jurors had been admonished not to discuss the case, and the trial court did not abuse its discretion by dismissing the juror without further inquiry as to whether he had discussed with anyone his reasons for wanting to be dismissed.
3) The State contends that C.L. §5-905 authorized the court to double Price's sentences because of his status as a repeat offender. Price countered that doubling his sentences is explicitly limited to one count only. The court found the language of §5-905 ambiguous; that the language of the statute does not make clear whether an enhanced penalty can be imposed on each and every count arising out of a single course of conduct, or whether an enhanced penalty can only be imposed on one count of a multi-count charging document based on a single course of conduct. Relying on Diaz v. State, the rule of lenity applied and required vacating Price's sentences.
4) The court noted that although unexplained, inconsistent verdicts rendered by a trial judge cannot stand, inconsistent verdicts in a jury trial are generally tolerated under Maryland law. At the appellate level, the court will review such inconsistent verdicts where real prejudice is shown and the verdicts may be attributable to errors in the jury charge.
The jury, without finding Price guilty of one of the drug trafficking offenses, found him guilty of possession of a firearm with a nexus to drug trafficking. Price conceded that the jury instructions were correct and the court decided not to disturb the jury’s verdict.
A copy of the opinion is available in PDF.
Price was convicted by a jury of possession of heroin, possession of cocaine, possession of marijuana, and possession of a firearm under sufficient circumstances to constitute a nexus to a drug trafficking crime. The court sentenced Price to eight years imprisonment on the heroin possession, a consecutive eight years imprisonment on the cocaine possession, two years concurrent on the marijuana possession, and another twelve years imprisonment consecutive on the possession of a firearm conviction.
Four issues were raised on appeal:
1) Whether the evidence was sufficient to sustain Price's convictions;
2) Whether the court erred by refusing to ask an impaneled juror, who was later dismissed, whether he had discussed the reason for his dismissal with any of the other jurors;
3) Whether the court erred by doubling Price’s sentences for all three drug possession convictions pursuant to Maryland Code (2002 Repl. Vol.) §5-905 of the Criminal Law ("C.L.") Article;
4) Whether the court erred by allowing the jury to convict Price of possession of a handgun in connection with trafficking, and acquit him of all other drug trafficking charges.
Held:
1) To support a conviction for the offense of simple possession, the evidence must show directly or support a rational inference that the accused did in fact exercise some dominion or control over the prohibited drugs in the sense contemplated by the statute, i.e., that the accused exercised some restraining or directing influence over it. Additionally, the accused, in order to be found guilty, must know of both the presence and the general character or illicit nature of the substance and referred to the following factors to determine the issue of possession:
(i) proximity between the Defendant and the contraband, (ii) the fact that the contraband was within the view or otherwise within the knowledge of Defendant, (iii) ownership or some possessory right in the premises or the automobile in which the contraband is found, or (iv) the presence or circumstances from which a reasonable inference could be drawn that the Defendant was participating with others in the mutual use and enjoyment of the contraband.
The evidence adduced at trial consisted mainly of testimony of the police officers who were conducting surveillance. From this testimony, the court found, the jury could have reasonably concluded that Price was in close proximity and had knowledge of the presence of the drugs, inferred that Price was participating in the sale and that the gun and money thrown by Price were instruments related to the sale of the drugs. Thus, the evidence was sufficient to support Price's possession convictions.
2) A note left by juror number 4 for the judge indicated concern by the juror of potential reprisal given that he resided within close proximity to the neighborhood where Price was arrested. Prior to dismissal of the juror, Defense argued that the juror should be questioned as to whether he explained his dismissal to other jurors, potentially tainting the jury. The court found that, on several occasions, the jurors had been admonished not to discuss the case, and the trial court did not abuse its discretion by dismissing the juror without further inquiry as to whether he had discussed with anyone his reasons for wanting to be dismissed.
3) The State contends that C.L. §5-905 authorized the court to double Price's sentences because of his status as a repeat offender. Price countered that doubling his sentences is explicitly limited to one count only. The court found the language of §5-905 ambiguous; that the language of the statute does not make clear whether an enhanced penalty can be imposed on each and every count arising out of a single course of conduct, or whether an enhanced penalty can only be imposed on one count of a multi-count charging document based on a single course of conduct. Relying on Diaz v. State, the rule of lenity applied and required vacating Price's sentences.
4) The court noted that although unexplained, inconsistent verdicts rendered by a trial judge cannot stand, inconsistent verdicts in a jury trial are generally tolerated under Maryland law. At the appellate level, the court will review such inconsistent verdicts where real prejudice is shown and the verdicts may be attributable to errors in the jury charge.
The jury, without finding Price guilty of one of the drug trafficking offenses, found him guilty of possession of a firearm with a nexus to drug trafficking. Price conceded that the jury instructions were correct and the court decided not to disturb the jury’s verdict.
A copy of the opinion is available in PDF.
Friday, December 29, 2006
Wilbon v. Hunsicker (Ct. of Special Appeals)
Decided December 29, 2006 – Opinion by Judge Patrick L. Woodward.
Plaintiff brought suit against two police officers alleging battery, false arrest and imprisonment, gross negligence, negligence, and violation of Articles 24 and 26 of the Maryland Declaration of Rights. Defendants responded with a motion to dismiss where they argued that plaintiff had not complied with the notice requirement of the Local Government Tort Claims Act ("LGTCA"). Md. Cts. & Jud. Proc. Code §5-304. The court denied this motion, as well as defendants' later attempts, by motions for summary judgment and a post-trial motion, to have the case dismissed for lack of compliance with the LGTCA. The jury awarded compensatory damages after which both sides appealed.
Held:
Plaintiff did not strictly or substantially comply with the notice requirement under the LGTCA and the trial court abused its discretion when it determined that plaintiff demonstrated good cause to justify a waiver of the notice requirement.
Plaintiff brought suit against two police officers alleging battery, false arrest and imprisonment, gross negligence, negligence, and violation of Articles 24 and 26 of the Maryland Declaration of Rights. Defendants responded with a motion to dismiss where they argued that plaintiff had not complied with the notice requirement of the Local Government Tort Claims Act ("LGTCA"). Md. Cts. & Jud. Proc. Code §5-304. The court denied this motion, as well as defendants' later attempts, by motions for summary judgment and a post-trial motion, to have the case dismissed for lack of compliance with the LGTCA. The jury awarded compensatory damages after which both sides appealed.
Held:
Plaintiff did not strictly or substantially comply with the notice requirement under the LGTCA and the trial court abused its discretion when it determined that plaintiff demonstrated good cause to justify a waiver of the notice requirement.
Full opinion available in Word Perfect and PDF.
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