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
PAUL DEWOLFE v. QUINTON RICHMOND
Court of Appeals, Eldridge, Filed Sept. 25, 2013
http://www.mdcourts.gov/opinions/coa/2013/34a11.pdf
Public Defender- Under the Due Process component of Article 24 of the Maryland Declaration of Rights, an indigent defendant has a right to state-furnished counsel at an initial appearance before a District Court Commissioner.
WILLIAM SIAM SIMPSON, III v. STATE OF MARYLAND
Court of Special Appeals, Hotten, Filed Sept. 25, 2013,
http://www.mdcourts.gov/opinions/cosa/2013/2833s11.pdf
Canine/Expert- Testimony of an officer’s observations of his/her detection canine qualifies as expert testimony.
other notes from the case:
– Opening Statement- Prosecutor’s multiple statements in opening that the defendant would tell the jury why he committed the crime were not an unconstitutional comment on the defendant’s taking the stand because (though the prosecutor didn’t mention it) he was referring to the defendant’s confession, as highlighted in defense-counsel’s opening statement. (CoSA gave their holding after a nearly 30-page coast-to-coast survey of the privilege against self-incrimination)
BASHAWN MONTGOMERY RAY v. STATE OF MARYLAND
Court of Appeals, Barbera, Filed Sept. 27, 2013,
http://www.mdcourts.gov/opinions/coa/2013/80a12.pdf
Waiver- A claim for suppression of evidence must be advanced and litigated at the trial court level in order to avoid waiver of the right to have that claim litigated on direct appeal
Other Notes from the case:
– In an unusual dissent, Judge Adkins agrees with the majority’s central holding (Ray waived his argument and his conviction should stand) but thinks they should have reversed the CoSA opinion in the case (holding that Ray did NOT waive his argument, but that his argument fails anyway and his conviction should stand)
– Of course, the “judgment” of the CoSA was that the conviction should stand and so, with both Judge Adkins and the majority agreeing on that point it is a most unusual dissent in which everyone agrees on the outcome — those situations generally being referred to as “a concurrence.”
– At any rate, Judge Adkins believes that the CoSA opinion ignored the 2-stage analysis of Pringle regarding whether contraband can be attributed to a passenger (The first step is to determine what enterprise the quantity and type of contraband evidences. The second step is to determine if a person engaged in the enterprise would be unlikely to admit an innocent person.)
– There
ALONZO JAY KING, JR. v. STATE OF MARYLAND (On Remand from USSC)
Court of Appeals, Harrell, Filed Sept. 25, 2013,
http://www.mdcourts.gov/opinions/coa/2013/68a11.pdf
DNA- USSC reversed original CoA holding and held that DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. On independent state review, the Court of Appeals incorporated the USSC holding into Article 26, reading it in pari materia.
Other notes from the case:
– PS 2-504- No exclusionary rule for violation of PS 2-504, the DNA Collection Act.
– PS 2-504- Burden on defendant to provide prima facie proof of violation of PS 2-504, the DNA Collection Act.
– Challenging Search Warrant- The CoA implied that there are three methods of challenging a search warrant: the 4-corners test, a Franks hearing (“challenging the veracity” of the statements made in the warrant), and a suppression hearing (taint/fruit-of-the-poisonous-tree argument focused “on the illegality of the probable cause underlying the warrant”).
– Challenging Search Warrant- In a “Franks hearing,” the burden is on the defendant to “demonstrate by a preponderance of the evidence that the supporting warrant affidavit is tainted by allegations of deliberate falsehood or with reckless disregard for the truth.”
– Challenging Search Warrant- In a motion to suppress (fruit of the poisonous tree), the burden is on the defendant to show 1) primary illegality (“tree was poisonous”) and 2) a cause and effect relationship between that illegality and the evidence at issue (“the evidence was, indeed, the identifiable fruit of that particular tree”).
– Exclusionary Rule- “The exclusionary rule, which is recognized generally as a ‘judicially imposed sanction for violations of the Fourth Amendment,’ does not apply automatically to every violation.” Rather, it applies “when the Constitution or a statute requires it.”
– Exclusionary Rule- “[W]here the Legislature does not provide explicitly for a suppression remedy, courts generally should not read one into the statute.”
DAVID C. WINTERS v. STATE OF MARYLAND
Court of Appeals, Greene, Filed Sept. 25, 2013,
http://www.mdcourts.gov/opinions/coa/2013/85a12.pdf
Court Advisement- Where the trial court is required to ensure that the defendant has been properly informed on a topic (specifically waiver of jury trial), addition of erroneous information that might alter defendant’s choice (even if not part of the required litany), is reversable error even without a showing of the defendant’s reliance on that error and even where the defendant is represented by counsel.
Other notes from the case:
– Court Advisement (Disavowed Prior Holding) – Previously, CoSA implied that a represented defendant who was given an inaccurate advisement by the court stood in a different position than an unrepresented defendant. Disavowed by the CoA.
– Court Advisement (Disavowed Prior Holding) – Previously, the CoA held that an ambiguous statement made by the trial judge or counsel during the waiver inquiry will not provide a basis for appellate relief absent some clear indication that the defendant was misled by the ambiguity. This opinion explicitly disavows that holding as applies to jury trial waivers.
LINCOLN MILLER v. STATE OF MARYLAND
Court of Appeals, Battaglia, Filed Sept. 25, 2013
http://www.mdcourts.gov/opinions/coa/2013/94a12.pdf
Post-Conviction- USSC opinion in Padilla v. Kentucky, that counsel is constitutionally ineffective by failing to inform defendant of immigration consequences to guilty plea, is to be applied retroactively
Other notes from the case:
Coram Nobis- The waiver standards embodied in the Post Conviction Procedure Act apply to a coram nobis proceeding
Post-Conviction- CoA bound by USSC opinions related to Strickland insofar as they interpret the US Constitution
OGDEN E. COLEMAN, II v. STATE OF MARYLAND
Court of Appeals, Greene, Filed Sept. 24, 2013
http://www.mdcourts.gov/opinions/coa/2013/90a12.pdf
Post-conviction- Failure of counsel to object to testimony regarding defendant’s demeanor (lack of response, placing head in hands) during a post-miranda interrogation was ineffective assistance of counsel even where defendant subsequently confessed.
Editor’s note-
– The defendant was mirandized and CONFESSED “that he was present and assisted in the cover up” of the murder. He confessed. He admitted his presence and culpability. And yet the CoA found ineffective assistance of counsel because defense counsel failed to object to those parts of his statement where he was not confessing.
– The primary issue the court had was that counsel failed to object “approximately 30 times,” even though counsel testified during the post-conviction proceeding that he didn’t object because it didn’t hurt the defendant under his theory of the case (defendant’s anguish was consistent with his being an accessory after the fact)
– Even though the post-conviction court made no factual determinations, the CoA felt that there was sufficient evidence for them to rule counsel’s assistance ineffective
BERNARD DELANEY MCCREE, JR., v. STATE OF MARYLAND
Court of Special Appeals, Kehoe, Filed Sept. 24, 2013,
http://www.mdcourts.gov/opinions/cosa/2013/0525s11.pdf
Charging- Addition of unnecessary element in charging document was not fatal error as it still provided satisfactory notice of the charge alleged and did not remove jurisdiction from court
– Other Notes From The Case:
– Counterfeit Mark- CR 8-611 [willfully manufacture, produce, display, advertise, distribute, offer for sale, sell, or possess with the intent to sell or distribute goods or services that the person knows are bearing or are identified by a counterfeit mark] is not constitutionally vague.
– the reasonableness of a stop’s duration cannot be determined solely based on “the running of the clock
– 18 minutes was not excessively long for traffic stop
– examining criminal and traffic record of defendant was relevant to traffic stop and did not inappropriately elongate stop
– CR 7-308(d)(2) does not require lack of consent by the owner