JEAN PAUL BUTLER v. STATE OF MARYLAND
Court of Special Appeals, Nazarian, Filed Nov. 1, 2013
CDS- Digital scale with cocaine residue provided sufficient evidence to support conviction for felony CL 5-603 “Equipment to produce controlled dangerous substance”

JAMAR HOLT v. STATE OF MARYLAND
Court of Appeals, Barbera, Filed Oct. 28, 2013
Terry Stop- Where a known drug-dealer was observed distributing drugs two weeks earlier; reasonable, articulable suspicion existed to stop a suspect when he met with that drug dealer in a similar fashion.

DEMETRIUS D. LOVELACE v. STATE OF MARYLAND
Court of Special Appeals, Woodward, Filed Oct. 30, 2013
Miranda- Police may question a suspect who reinitiates communication, exchanges, or conversations with the police following an invocation of his or her right to remain silent.

IN RE: LANDON G.
Court of Special Appeals, Woodward, Filed Oct. 30, 2013
Auto Theft- Presence of passenger in a stolen vehicle coupled with evidence that tends to show “a joint enterprise or acting in concert by the driver and the defendant passenger” is sufficient to sustain theft conviction.

Oct. 24, 2013
JOSEPH MOBUARY v. STATE OF MARYLAND, Bell, Court of Appeals,
De Novo Appeal- Abuse of discretion to deny motion to reimpose a dismissed de novo appeal when incarcerated defendant provided information explaining his involuntary absence from court on the assigned date

Oct. 23, 2013
SHELTON BURRIS a/k/a TYRONE BURRIS v. STATE OF MARYLAND, Battaglia, Court of Appeals,
Gang- Absent a tie to the facts of the case strong enough to warrant admission, discussion of gang history, gang affiliation, and gang tattoos on defendant was unfairly prejudicial and required reversal

BIG LOUIE BAIL BONDS, LLC v. STATE OF MARYLAND, et al, Bell, Court of Appeals,
Bail- Bondsman for defendants that were deported should not have bail forfeited when defendants subsequently failed to appear for trial

Oct. 21, 2013
TAQUEZ PRICE v. STATE OF MARYLAND, PC order dismissing cert
STATE OF MARYLAND v. HAROLD ALBERT NORTON, JR., PC order remanding for further reconsideration in light of Derr and Williams

And in “As the Bar Turns”:
PATRICK EDWARD VANDERSLICE stole client funds and “generated deficiently drafted retainer agreements,” warranting a suspension in Delaware but disbarment in Maryland
Another attorney had some issues with follow-through, indefinite suspension
And Tabitha Cuadra consented to be reprimanded. Bad Tabitha! For… you know… whatever you did…

I wish opinions came down at a steady rate rather than in droughts and deluges, but that’s how it goes… and here I set up this nifty new Twitter account and everything to get legal updates out there into the world!

Only news this week: another attorney loses his “esq.” BENJAMIN COYLE SUTLEY, we hardly knew ye.

And, in what surely must be a targeted attempt to drive me crazy, the Court of Appeals has been scanning their pdfs as images instead of text.

Because, you know, nobody needs to quote what they say…

* Edit, ok, no need to panic. The Oct 17 opinion granting inactive statuts to an attorney went back to text pdf.

Even an approaching tropical storm couldn’t keep Annapolis indoors writing opinions. Nothing of substance this week.

CLARA A. HENRIQUEZ ALEMAN V. STATE OF MARYLAND
Court of Appeals, Per Curium, Filed October 9, 2013,
http://www.mdcourts.gov/opinions/coa/2013/19a13pc.pdf
Dismissed Writ of Cert as “improvidently granted.”

In this week’s edition of “Officer of the Court”:

JOHN GARY BILLMYRE was suspended by consent.

JOHN ARTHUR SUNDERLAND, JR was suspended due to issues with the Virginia bar.

KENNETH RAYMOND WHITE was disbarred by consent

I know I was going to break the posts into individual opinions/orders, but there haven’t been any criminal opinions yet… so…

Attorney Grievance (“Officers of the Court”)

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. MARK EDWARD HUNT
Court of Appeals, Filed Oct. 1, 2013,
http://www.mdcourts.gov/opinions/coa/2013/1a12ag.pdf
Hunt was a former IRS official that admitted “accepting bribes in exchange for confidential taxpayer information and other criminal acts…” but didn’t include this on his bar application despite having been informed by a federal agent that charges were imminent. He was eventually indicted, at which point he informed the AGC and was disbarred after a hearing.

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. DANIEL QUINN MAHONE
Court of Appeals, Filed Sept. 29, 2013,
http://www.mdcourts.gov/opinions/coa/2013/35a11ag.pdf
Mahone entered a courtroom, was removed after failing to follow the directions of the bailiff, attempted to re-enter, got into a “door handle tugging match” with a deputy, “attempt[ed] to use his position as an attorney to his benefit, repeatedly stating, ‘I ‘m an officer of the court’ and threatening to sue while refusing to comply with the explicit directives of the Bailiff and Deputies,” “made slight, unintentional physical contact with Deputy Milam in his effort to regain entry into the courtroom,” did not submit to authority of deputy when informed he was being placed under arrest, when the deputy tried to take hold of him, Mahone “pulled away from Deputy Milam and was forced to the ground. [Mahone] struggled. Deputy Milam warned [Mahone] that if [Mahone] did not stop his resistance that pepper spray would be used, at which point [Mahone] stopped any resistance and was placed in handcuffs.” Mahone refused to provide identification upon arrest and referred to the arresting officer as a “nazi.”
So sayeth the Court of Appeals: Well, he apologized to the judge, so suspended 30 days.
They would have let him off with a reprimand, but “[t]hat he has once before been reprimanded for in-court or court-related improper conduct disqualifies him for that sanction.”
And there’s nothing at all unreasonable about that…

Big week for cases! Cell phones may be searched incident to arrest, PDs are required at commissioner bail-reviews, employees can’t carry guns on parking lots, Judge McDonald’s putting a little Shakespeare in his opinions, and more!

RONALD SINCLAIR v. STATE OF MARYLAND
Court of Special Appeals, Kenney, Filed Sept. 25, 2013
http://www.mdcourts.gov/opinions/cosa/2013/1724s11.pdf
Cellular Phones- No error where trial court admitted digital photographs and “wallpaper” recovered from cellular “smart” phone incident to arrest for CDS and armed carjacking where “wallpaper” of cellular phone was a picture of the stolen vehicle’s wheel rims. (Court noted that the search was “limited and immediate”)

ROGUELL BLUE v. PRINCE GEORGE’S COUNTY
Court of Appeals, McDonald. Filed Sept. 27, 2013
http://www.mdcourts.gov/opinions/coa/2013/87a12.pdf
Guns in Businesses- CR 4-203 allowing supervisory employees to carry handguns in certain circumstances “within the confines of the business establishment” applies ONLY within “the enclosed premises of the business,” not an adjacent parking lot.

Other notes from the case:

– 4-203 is intended for self-defense against robbers and the like, not to “deputize” private citizens
– The CoA notes that if a business wants armed security, they may hire Armed Security who must have handgun permits
– Cites an AG opinion that a supervisory employee was not entitled to transport a handgun between the business establishment and the employee’s home
– Suggests that an armed supervisory employee must leave the weapon inside if they exit to stop a fight or chase a burglar/would-be-robber
– Judge Greene, in dissent, takes issue with Judge McDonald’s choice of dictionary and would allow armed security to operate on the entire premises without a permit

Continue reading →

No new opinions of this week

The only orders released by the court this week were re-admission of 4 attorneys to the bar and suspension of 1 after their suspension in the District of Columbia.

It’s a slow week, so let’s take a look at our re-admitted members of the bar:
Mr. Chapman was suspended in January 2013 for some miscommunication related to mortgage loan modification.

Mr. Ijeabuonwu was suspended in September 2012 for 30 days pursuant to a joint agreement. No information in the opinion as to why. Still, it’s been way more than 30 days.

Ms. Kepple was suspended in June 2013 for improperly getting in-state tuition during law-school over a decade prior to the complaint… which arose when her ex-husband attempted to retaliate against her and informed bar counsel. Ms. Kepple attempted to pay back the tuition, but the offer was declined by the law school.

Mr. Milton was suspended in January 2013 pursuant to a joint agreement. No information in the opinion as to why.

MARLON SMITH v. STATE OF MARYLAND
Court of Special Appeals, Raker, Filed Sept. 10, 2013,
http://www.mdcourts.gov/opinions/cosa/2013/1295s12.pdf
Car Stop- Non-functioning center brake light was proper basis for vehicle stop.

RICKEY HALL v. STATE OF MARYLAND
Court of Special Appeals, Matricciani, Filed Sept. 10, 2013,
http://www.mdcourts.gov/opinions/cosa/2013/1306s12.pdf
Evidence- State’s decision to charge or not charge an individual is irrelevant and therefore inadmissible in trial of another.

RALPH SABERT CHOATE v. STATE OF MARYLAND
Court of Special Appeals, Moylan, Filed Sept. 9, 2013,
http://www.mdcourts.gov/opinions/cosa/2013/0922s12.pdf
Hearsay/Sexual-Assault: Admissibility of hearsay under Rule 5-802.1(d) (prompt complaint of sexual assault) does not require the defendant to first challenge the complaint’s promptness.

Other notes:
– Jury Instruction- All that is necessary to generate a requested instruction that is a correct statement of the applicable law and that has not been covered by other instructions is “some evidence.”
– Mistrial- “A mistrial is not a sanction designed to punish an attorney for an impropriety. It is rather an extreme sanction that sometimes must be resorted to when such overwhelming prejudice has occurred that no other remedy will suffice to cure the prejudice.”
– Closing Argument- Attorneys are entitled in closing argument to ask the jury to draw reasonable inferences from the evidence. State’s claim that a particular item was THE item used when victim wasn’t certain was permissible, as jurors could reasonably come to that conclusion. Defense was free to argue that it was not.
– Closing Argument- Prosecutor’s statement that “Now, with respect to the credibility… a lot of this case comes down to what [the victim] told you, because when a rape occurs, a rape doesn’t occur in front of a camera. There’s only two people there. In this case, the two people who were there were [the victim] and the defendant. And yesterday, [the victim] came in and she sat here and she told you what happened,” was properly read in context of prosecutor’s lengthy examination of witness credibility, not commenting on Defendant’s failure to testify.
– Hicks- unlike the Sixth Amendment speedy trial guarantee, the Hicks rule is a statement of public policy, not a source of individual rights.
-Hicks- violation of local court rule (“Montgomery County Criminal Differentiated Case Management Plan”) would not necessarily mandate dismissal
– Continuing Objections- When continuing objection is interrupted by other testimony or evidence and is not renewed, it is severed.

The Court of Special Appeals appears to have spent their Labor-Day weekend hard at work drafting opinions.

CORY JAMAUL JONES v. STATE OF MARYLAND
Court of Special Appeals, Sharer, Filed Sept. 4, 2013,
http://www.mdcourts.gov/opinions/cosa/2013/2224s11.pdf
GSR Test- Search warrant not necessary to obtain GSR sample so long as probable cause exists

KHALIQ KHAN v. STATE OF MARYLAND
Court of Special Appeals, Mattricciani, Filed Sept. 4, 2013,
http://www.mdcourts.gov/opinions/cosa/2013/2715s11.pdf
Batson- Court re-seated juror after finding defense attorney’s excuse for striking to white jurors

Other notes:
– Jury Selection- If a party’s use of peremptory strikes is contested as unconstitutionally discriminatory: 1) The trial court is to determine whether a prima facie case of racial discrimination against potential jurors exists; 2) If so, the party exercising the peremptory strikes must present a race-neutral explanation for each strike; 3) The trial court must then decide whether purposeful discrimination has occurred.
– Jury Selection- That the party’s explanation is race- and gender-neutral and an accurate description of the juror is not alone sufficient to withstand a Batson challenge; the court must decide whether the reasons given are pretextual
– Jury Selection (footnote) – “It is fair to disallow a strike where racial bias plays any part in the decision to strike a juror.”
– Jury Selection- Appellate review of a Batson challenge is a “clearly erroneous” standard
– Open Door- If one party has introduced irrelevant evidence, over objection, or, indeed, even ‘admissible evidence which generates an issue,’ the trial court may rule that the first party has ‘opened the door’ to evidence offered by the opposing party that previously would have been irrelevant, but has become relevant.
– Open Door- May be limited if probative value is substantially outweighed by
danger of unfair prejudice, confusion of the issues, misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.
– Voir Dire- Not abuse of discretion where court asked pool whether, as a result of allegations, they “will be unable to listen fairly and impartially” instead of whether they had “strong feelings”

DAJUAN MARSHALL v. STATE OF MARYLAND
Court of Special Appeals, Wright, Filed Sept. 4, 2013,
http://www.mdcourts.gov/opinions/cosa/2013/2500s11.pdf
Gang Statute- When charged under gang statute, CL § 9-801 et seq., “other bad acts” evidence allowable in order to prove crime.

Other note:
– When testimony is admissible during an original trial, it is admissible during a retrial

MARK JOHNSON v. STATE OF MARYLAND
Court of Special Appeals, Matricciani, Filed Sept. 5, 2013,
http://www.mdcourts.gov/opinions/cosa/2013/2759s11.pdf
Re-Sentencing- Re-structuring a sentence is not a violation of due process where sentences (originally concurrent to later-invalidated sentences) each start no later than the date that the preceding, invalidated sentence would have commenced as originally imposed (An extension of the “transitive property of sentences”)

CARLOS TEIXEIRA v. STATE of MARYLAND
Court of Special Appeals, Thieme, Filed Sept. 5, 2013,
http://www.mdcourts.gov/opinions/cosa/2013/0388s12.pdf
Inconsistent Verdict- Analysis requires review of the the elements of the offenses as charged to the jury without regard to the proof that was actually presented at trial.

Other notes:
– Jury- A jury is not yet “dispersed” when they are stopped from leaving the jury room, even after giving a verdict

Part 2 of the 8 Criminal Opinions from the Court of Special Appeals (and a bonus crime-related opinion):

ROBERT LOUIS COSTEN, III v. STATE OF MARYLAND
Court of Special Appeals, Meredith, Filed September 3, 2013,
http://www.mdcourts.gov/opinions/cosa/2013/1471s11.pdf
Jury Trial Waiver- Under Valonis, reversal required where judge failed to determine and announce on the record that the waiver of a jury trial is made “knowingly and voluntarily”

CHARLES THOMAS v. STATE OF MARYLAND
Court of Special Appeals, Graeff, Filed Sept. 4, 2013,
http://www.mdcourts.gov/opinions/cosa/2013/2071s11.pdf
Attorney Work Product- “Fact” work product (material gathered for trial, including witness statements) is discoverable while “opinion” work product (attorney’s mental process) generally is not.

Other notes from the case:
– Where defense investigator took taped statements from witnesses, not error for judge to decide that those statements were intended to be used at trial and mandate discovery
– Noting Oregon case: “if defense counsel, even though not certain, can ‘reasonably predict’ that she will use certain exhibits to impeach a State’s witness, she must give timely discovery to the prosecutor”
– And a Washington case: “(a prosecutor “intends to use” a document for purpose of the discovery rule where the State is “aware of the document and there is a reasonable possibility that the document will be used during any phase of the trial”)
– Where prior inconsistent evidence is offered to impeach, Rule 5-613 controls and requires an appropriate foundation (witness given opportunity to explain, etc)
– Where prior inconsistent evidence offered as substantive evidence, Rule 802.1 controls (not mandating Rule 5-613 foundation)
– Other crimes evidence- 3-step analysis: 1) 5-404(b) exception or special relevance to contested issue, 2) clear and convincing evidence, 3) weigh necessity/probative-value against undue prejudice
– Pre-trial identification- two-stage analysis: 1) whether procedure was impermissibly suggestive and 2) if so, under the totality of circumstances was the identification reliable?

JOHN WAGNER v. STATE OF MARYLAND
Court of Special Appeals, Filed Sept. 4, 2013,
http://www.mdcourts.gov/opinions/cosa/2013/2129s11.pdf
Restraints- No inherent prejudice when defendant’s shackles were not visible to jury

Other notes from case:
– Voir Dire- Not abuse of discretion to deny defense question of whether panel or their immediate relative or close friends had been victim of violent crime where court asked whether any member of panel had “strong feelings” about robberies/homicides
– Photo Lineup- not “other crimes evidence” where photo lineup wasn’t “obviously” mug shot (contrasted with standard front/profile used in other case)
– Other crimes evidence- not “other crimes evidence” where witness stated she knew defendant wanted to rob someone because he said the same thing he had said before when they went out to rob
– Other crimes- not “other crimes evidence” when defendant went out to buy drugs after robbery; evidence that defendant shared in proceeds of robbery was probative of his participation in the robbery
– Mistrial- Where statement that defendant was “locked up” was isolated, unsolicited and unlikely to cause significant prejudice, not error to deny mistrial
– Statements- A defendant is not generally entitled to admit an exculpatory/self-serving statement
– Jury instruction- While a trial court is required to instruct on the applicable law, they are not required to instruct on presence or absence of most evidentiary inferences
– Restraints- Defendant may be restrained to prevent the defendant’s escape, protect those in the courtroom, and maintain order. Unless one or more factors outweigh prejudice, physical restraint is inappropriate.
– Restraints- Requiring a defendant to wear shackles during the rendering of the jury verdict, after the jury has reached a guilty verdict and the presumption of innocence has been overcome, is not inherently prejudicial

Other related:
MEREDITH CROSS v. BALTIMORE CITY POLICE DEPARTMENT
Court of Special Appeals, Zarnoch, Filed Sept. 3, 2013,
http://www.mdcourts.gov/opinions/cosa/2013/1290s11.pdf
Police officer married convicted murderer and was fired. Because limit on freedom to marry/freedom of association was indirect, and because the police had a rational basis for the policy, termination upheld.