KEVIN C. ALSTON v. STATE OF MARYLAND
Court of Appeals, Filed: June 26, 2013
http://mdcourts.gov/opinions/coa/2013/109a05.pdf
The rule of lenity – faulty opinion by CJ Bell, analysis article to follow
Short version:
– Previous version of PS 5-133 required that crime of violence conviction be felony-level in order to qualify for 5-year-without-parole sentence (this is not the flawed portion of the opinion)
– Because CR 5-622 and previous-version of PS 5-133 “proscribe the same conduct” (hint- they don’t), one carrying a larger penalty than the other, “without a clear expression as to how the Legislature intended them to interface (hint- the legislature made them different crimes with different elements proscribing different conduct and intended that the penalties attached to each statute be applied) or that the Legislature intended that the choice of which to prosecute is left to the unfettered discretion of the prosecution,” the rule of lenity mandates that the lesser penalty apply (hint- it doesn’t… or didn’t until this opinion).
“After more than 38 years of public service in the Maryland Judiciary, Court of Appeals Chief Judge Robert M. Bell announced he will retire July 6, his 70th birthday. Under Maryland law, state judges must retire at age 70.”
http://www.courts.state.md.us/media/news/2013/pr20130417.html
A great, kind, and at times courageous man. His bearing and grace will be missed… his legal acumen perhaps not as much.
BRIAN LEE MOULDEN v. STATE OF MARYLAND
Court of Special Appeals, Filed: June 26, 2013
http://mdcourts.gov/opinions/cosa/2013/0750s11.pdf
Evidence insufficient to support reckless endangerment where only testimony as to operability of firearm pointed at victim was victim’s statement that he thought the gun was fake.
Other notes and quotes:
– (Flight from police) Officer turned marked police car into court, at which point defendant abandoned his bicycle and ran into an apartment building. Even though defendant’s back was to officer and officer wasn’t sure if defendant saw him, reasonable to infer that the defendant was aware of officer’s approach and fled to avoid the police.
– (Raising standing) If the prosecution raises the issue of standing in a suppression hearing, “by even the most informal of oral pleadings, it is then clear that the burden of proof is allocated to the defendant to show his standing.”
– (Consent search) Valid consent to search where police asked female inside of apartment to bring her children outside, “escorted” female and children away from apartment while SWAT team arrived to prepare to make entry, female gave verbal consent to search on-scene and was transported to district where she gave written permission to search, and defendant may have been co-tenant.
– (Plea agreements) Where trial court agreed to plea for a concurrent suspended sentence, then stated at sentencing that in the event of a violation he would impose consecutive time, that aspect of sentence was in violation of the plea agreement.
ROBERT LOUIS COSTEN, III v. STATE OF MARYLAND
Court of Special Appeals, Filed: June 26, 2013
http://mdcourts.gov/opinions/cosa/2013/1471s11.pdf
Court’s declaration that “I find that he has waived his right to a jury trial” was not the same as announcing “on the record that the waiver was made knowingly
and voluntarily.” Reversed consistent with Valonis.
THEDRAL THOMAS WILLIAMS, III v. STATE OF MARYLAND
Court of Special Appeals, Filed: June 26, 2013
http://mdcourts.gov/opinions/cosa/2013/1597s11.pdf
(Reasonable suspicion) Very fact-specific case. Reasonable articulable suspicion to stop vehicle and occupants when vehicle drove by a crime scene less than an hour after two incidents in a secluded area (armed robbery and home invasion), the vehicle slowed and the occupants stared at police, three of the occupants matched general race/gender description of the suspects, police recognized one as a known drug user, and the vehicle quickly accelerated and turned down another road.
Other notes and quotes from the opinion:
– Prior knowledge of suspect’s history of criminal activity “was relevant to the issue of whether police had reasonable suspicion”, yet the appellate court found that the trial court “unaccountably” sustained an objection to its admission at a suppression hearing.
– Reasonable suspicion requires “considerably less than proof of wrongdoing by a preponderance of the evidence” and “obviously less demanding than that
for probable cause.” Citing US v. Sokolow, 490 US 1 (1989)
– Events that occur after a “show of authority” by police and the actual seizure may be considered in deciding whether police had reasonable suspicion to seize an individual
– When a crime was committed by a group of a certain size, it makes no sense to suggest that only groups of that size may be stopped for investigation
– Car slowed down to investigate, occupants observed police, car sped up and turned down another street “could reasonably be interpreted as a form of flight.”
– A blocking vehicle “is not the motorized equivalent of handcuffing”
– The “LaFave factors” in conducting reasonable-articulable-suspicion analysis after a crime has occurred where police are not in hot pursuit:
(1) the particularity of the description of the offender or the vehicle in which he fled
(2) the size of the area in which the offender might be found, as indicated by such facts as the elapsed time since the crime occurred
(3) the number of persons about in that area
(4) the known or probable direction of the offender’s flight
(5) observed activity by the particular person stopped
(6) knowledge or suspicion that the person or vehicle stopped has been involved in other criminality of the type presently under investigation.
But “The LaFave factors are not an exhaustive list”
– The CoSA added other factors in their analysis: the secluded nature of the area where the stop occurred; the time of day of the stop; the total lack of vehicular and pedestrian traffic in that area; and the occurrence of two successive criminal intrusions within less than an hour in that small secluded area, suggesting a pattern of criminal conduct still in motion.
KIRK ALBERTSON v. STATE OF MARYLAND
Court of Special Appeals, Filed: June 27, 2013
http://mdcourts.gov/opinions/cosa/2013/2583s11.pdf
(Bad Checks) In order to find a defendant guilty under CR 8-103(a), the trier of fact must be convinced that the defendant intended, at the time he or she issued the check, that payment would be refused when the payee presented the check to the drawee. Where there is a “hold check” agreement (the recipient of the check is supposed to wait to present it), there is no present intent at the time the check is issued and the crime cannot be proven.
HUGO M. FALERO v. STATE OF MARYLAND
Court of Special Appeals, Filed: June 28, 2013
http://mdcourts.gov/opinions/cosa/2013/0184s12.pdf
(Plea Agreement) When the court discovers that a defendant obtained acceptance of a plea agreement by fraud or materially breached any of its terms, it
may void the agreement and vacate the guilty plea
Other notes and quotes from the opinion:
– Plea agreement terms “are to be construed according to what a defendant reasonably understood when the plea was entered.”
– Maryland has determined that the only terms of a plea agreement are the ones stated on the record before the court accepts the defendant’s guilty plea.