No criminal-law opinions this week.
No opinions at all, actually.
The only news from the Court of Appeals this week is that Grant M. Murchison and Christopher M. Johns agreed to be disbarred.
So big week for them, but not so much for everyone else.
Criminal Law:
CHAD EASON FROBOUCK v. STATE OF MARYLAND
Court of Special Appeals, Filed June 6, 2013
http://mdcourts.gov/opinions/cosa/2013/2061s11.pdf
Short Version (Consent Search): Where landlord called police to a warehouse, told police that he had reclaimed the property after the lease expired, and upon arrival the door was open and the landlord was inside, the landlord had apparent authority to give consent to search. Police were not required under the circumstances to inspect the lease or inquire further about how the premises had been retaken from the lessee.
Notes on consent searches from the case:
– When the State argues that a search was conducted pursuant to consent, it has the burden of proving that the consent, in fact, was given freely and voluntarily
– Generally speaking, a landlord cannot consent to the search of his tenant’s property when the lease is still valid
– Common authority to consent to a search is not derived “from the mere property interest a third party has in the property” searched; rather, such authority rests “on mutual use of the property by persons generally having joint access or control for most purposes.” And if a person with common authority over
the premises consents to a search of the premises, that consent is “sufficient to validate [the] search.”
– A valid consent to search may be oral
– Apparent authority exists when the facts available to the officer at the time of the search would “‘warrant a man of reasonable caution’” to believe that “the consenting party had authority over the premises”
– The doctrine of apparent authority:
• is not restricted to residences
• places responsibility on the officer to assess the situation critically. Even when the invitation is accompanied by an explicit assertion that the person giving consent lives there, the surrounding circumstances could be such that a reasonable person would not act upon it without further inquiry
• applies only to mistakes of fact and not mistakes of law. i.e. An investigator’s erroneous belief that landlords are generally authorized to consent to a search of a tenant’s premises could not provide the authorization necessary for a warrantless search.
Crime-Related Opinion:
FINANCIAL CASUALTY INSURANCE COMPANY v. STATE OF MARYLAND
Court of Special Appeals, Filed June 6, 2013
http://mdcourts.gov/opinions/cosa/2013/1400s11.pdf
Short Version (Forfeiting Bail): Our bail/bond system makes no sense. Posting bail for someone that fails to appear results in a forced loan from the surety to the government until the defendant is brought back in (even if the government is the one that locates him), at which point the money is returned minus the expenses incurred.
Actual holding: Where a surety posts bond for a defendant and the defendant fails to appear after 90/180 days, the surety is entitled to a refund (less expenses incurred) if the defendant is EVER brought back to court, regardless of “[w]hether the defendant is produced through the efforts of the State, the surety, or the voluntary act of the defendant.”
Side note: The statute has since been changed so that the surety is only entitled to refund if they paid the penalty sum in a timely fashion.
STATE v. TYRES KENNARD TAYLOR
Court of Appeals, Filed May 21, 2013
http://mdcourts.gov/opinions/coa/2013/60a12.pdf
Short version: Defendant tried switching lawyers on day of trial, but new lawyer would have required a postponement to take the case. Court listened to reason and denied. CoSA reversed, circuit court judgement affirmed.
Holding (Discharge counsel): Pursuant to Rule 4-215(e), where defendant requests discharge of counsel, “[t]he trial judge has the duty to listen, recognize that he or she must exercise discretion in determining whether the defendant’s explained reasons are meritorious, and make a rational decision.” However, the trial court is not required to “make sense of nonsense” in understanding defendant’s reasons for discharging counsel.
Notable: Defendant’s pre-trial statement of dissatisfaction with attorney or desire to switch counsel are “red flags” inviting trial court to clarify whether defendant is requesting to discharge counsel.
JEFFREY ROBERT VALONIS v. STATE and ANTHONY TYLER v. STATE
Court of Appeals, Filed May 20, 2013
http://mdcourts.gov/opinions/coa/2013/52a12.pdf
Holding (Waiver of jury): Rule 4-246(b) requires that prior to waiver of the jury trial right “the court determines and announces on the record that the waiver is made knowingly and voluntarily.” Failure to do so is reversible error.
MICHAEL DAVID GORDON v. STATE
Court of Appeals, May 20, 2013
http://mdcourts.gov/opinions/coa/2013/43a12.pdf
Holding (Hearsay): Trial court allowed testimony by officer regarding Defendant’s date of birth where defendant provided police officer with his driver’s license upon request, thereby adopting the “hearsay” date of birth listed on it. No clear error. Affirmed.
Notable: Suggested that providing a license to an officer in a situation other than proving authorization to drive a vehicle is an adoption of both the name and date of birth listed on the license.
ANTONIO L. BROWN v. STATE
Court of Appeals, Filed May 20, 2013
http://mdcourts.gov/opinions/coa/2013/58a12.pdf
Holding (Post-conviction): Where absence of inculpatory DNA evidence was noted at trial, post-conviction testing confirming victim’s DNA and lack of defendant’s DNA did not amount to “substantial possibility” he would not have been convicted.
Just one criminal opinion. Not much going on in Annapolis this week.
Criminal Law:
STATE v. FENNELL
Court of Appeals, Filed May 17, 2013
http://mdcourts.gov/opinions/coa/2013/72a12.pdf
Short version: Prior to declaring a mistrial for a hung jury, the trial judge should explore reasonable alternatives. If the jury indicates agreement on some counts, the trial judge should consider partial verdict prior to declaring mistrial.
Facts: The jury was sent to deliberate at 5:50 pm. At 9:00 pm The jury sent a verdict form to the trial judge as a “note” showing the vote count on various charges. On 3 of the counts, they noted that they were 12-0 Not Guilty. On 2 counts, they noted a 6-6 split and somehow ended up 6-5 Not Guilty on one count. When the jury seemed deadlocked at 9:30 pm, the defense asked (unsurprisingly) for a partial verdict which the State (unsurprisingly) objected to. The trial judge denied the defense request and granted a mistrial on all charges due to the hung jury.
Since this is a light week, I’ll take a look at double jeopardy using too many hyperlinks without jump cites.
Double jeopardy is hardly a new concept, having been found in ancient Roman law and ancient Jewish law.
“Writing in the 17th century, Lord Coke described the protection afforded by the principle of double jeopardy as a function of three related common-law pleas:
autrefois acquit, [autrefois means “formerly” and acquit means… well, scholars maintain that the translation was lost hundreds of years ago]
autrefois convict,
and pardon.”
This was later incorporated into the Bill of Rights as “… nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb…”
And while some believe that the founders intended this to apply only to capital punishment, believing that the term “life or limb” is literal, the Courts have held that it applies to all cases where a second punishment is attempted to be inflicted for the same offence by a judicial sentence.
But “Double jeopardy” has been held to apply to more than just conviction, acquittal, and pardon.
“Even if the first trial is not completed, a second prosecution may be grossly unfair.
* “It increases the financial and emotional burden on the accused,
* It “prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing,
* And it “may even enhance the risk that an innocent defendant may be convicted.
“The danger of such unfairness to the defendant exists whenever a trial is aborted before it is completed”
Where the defendant makes a motion for mistrial, it is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by prosecutorial or judicial error. This is true so long as the motion for mistrial is not attributable to prosecutorial or judicial overreaching.
Otherwise, “[t]he prosecutor must demonstrate ‘manifest necessity’ for any mistrial declared over the objection of the defendant.”
Manifest means easily understood or recognized by the mind : obvious
Necessity means something that is necessary, which in turn means absolutely needed : required.
And so, in order to avoid “the confinement of the jury till death if they do not agree,” “it is manifest that the key word ‘necessity’ cannot be interpreted literally.” Instead, the courts require a “high degree” of necessity for a mistrial over a defense objection.
By definition, something that is necessary can have no alternatives. To meet the ‘high degree’ of necessity, there must be no reasonable alternative to the declaration of a mistrial.
“A genuinely deadlocked jury is considered the prototypical example of a manifest necessity for a mistrial.” (Prototype or paradigm?) A “genuinely deadlocked jury” is at “more than an impasse; it invokes a moment where, if deliberations were to continue, ‘there exists a significant risk that a verdict may result from pressures inherent in the situation rather than the considered judgment of all the jurors.”
In Fennell, the defense was “ready to ask you to let it go, Judge.” The defense then requested a partial verdict, which the state objected to. The Court stated that it wasn’t going to take a verdict, to which the defense replied “okay.”
If this was a defense request for mistrial, then there could be no jeopardy bar to re-prosecution. If “okay” signified agreement with the trial court’s decision, then there could be no appeal.
No to both. The Court held that the trial judge declared a sua sponte mistrial “with respect to the three charges at issue here” and that the defense “consented — and indeed requested — a mistrial as to the two indisputably undecided charges.” Even though the defense said “okay” to the trial judge’s decision not to take a verdict, that was not seen as sufficient to overcome his request for partial verdict.
(Don’t get too excited here; while the idea that one can make a request for partial mistrial is novel, I don’t think the opinion supports expansion of the concept outside of the MJOA/verdict context)
Because of this, the Court used a “manifest necessity” standard and held that “Because the trial judge was on notice that the jury may have reached a partial verdict, an ambiguity as to unanimity persisted through the colloquy with the jury, defense counsel requested a partial verdict, and the specter of coercion was low due to the posture of the jury’s deliberations, Maryland Rule 4-327(d)” [allowing partial verdict] “provided the trial judge with a reasonable alternative to the declaration of a mistrial. Thus, before a proper finding of manifest necessity for a mistrial could have been made, the trial judge should have inquired into the jury’s status of unanimity prior to its discharge. Failure to do so was an abuse of discretion, and retrial on the charges of first degree assault, conspiracy to commit first degree assault, and conspiracy to commit robbery is barred by double jeopardy.”
In a footnote, the Court noted that they “assume, without deciding,” that the same analysis “applies equally where a jury votes to acquit on a greater offense and is hung as to a lesser-included offense.”
And that, I believe, thoroughly exhausts my interest in this otherwise minimally interesting case. Good night!
In the future I’ll try to do this on a weekly basis with “special updates” when notable opinions are filed.
Criminal Law:
KEGARISE v. STATE
Filed May 2, 2013
http://mdcourts.gov/opinions/cosa/2013/1992s11.pdf
Short version: Defendant entitled to voir dire regarding juror statutory qualifications (adult as of the day selected; citizen of the United States; resides in the county as of the day sworn) if requested
Questions raised: According to the Court’s opinion, jurors already swear under penalty of perjury that they meet each statutory qualification prior to being selected for the jury pool. Moreover, inclusion of an unqualified juror does not provide grounds for setting aside a conviction where there has been no objection.
What is the utility, then, in setting aside a conviction (for theft and possession of a handgun by a prohibited person) when there is no prejudice? Particularly where the defendant had no reason to believe that any of the jurors were not US citizens, the defendant offered no rationale (other than “I just thought of it”) for asking the question, the defendant did not object to seating the jury, and had the question been asked it would expose any jurors offering a negative response to a possible perjury charge.
THURMAN v. STATE
Filed May 2, 2013
http://mdcourts.gov/opinions/cosa/2013/1729s11.pdf
Short version: Neither assault on police nor fleeing/eluding police are impeachable offenses.
Other holding: It is not appropriate for a trial judge to establish prior to testimony or re-direct that no re-cross examination will be permitted. This error was held to be harmless where the same subject matter was covered by other witnesses.
Other interesting cases:
ATTORNEY GRIEVANCE COMMISSION V. FADER
Filed May 6, 2013
http://mdcourts.gov/opinions/coa/2013/12a12ag.pdf
“Fader ‘overtly misled’ the administrative law judge, and, accordingly, Joel Jay Fader is hereby disbarred.”
In administrative case, attorney filed for postponement citing health issues and submitted a forged doctor’s note supporting the claim, then got caught.
MADISON PARK NORTH APARTMENTS, L.P. v. THE COMMISSIONER OF HOUSING & COMMUNITY DEVELOPMENT
Filed May 3, 2013
http://mdcourts.gov/opinions/cosa/2013/0071s12.pdf
Notable Holding: Appellate review of an administrative decision may be had in the Court of Special Appeals in a mandamus action if no appellate procedure is included in the enacting legislation. This authority is limited to whether the decision was supported by substantial evidence and was not arbitrary or capricious.
Multiple-Family Dwelling License for Madison Park North Apartments revoked after hearing established that MPNA “knew or should have known that the premises are being used for the purpose of drug trafficking, and failed to prevent them from being so used.” Petition for review heard and denied in Circuit Court. Held that CoSA has right to appellate review and that the city code used to revoke the license is not void for vagueness.