State v. Rush (Ct. of Special Appeals)

Filed April 27, 2007--Opinion by Judge Deborah S. Eyler.

In its murder prosecution against Rush, the State has appealed a pre-trial ruling suppressing from evidence inculpatory statements Rush gave to the police.

The issues before the court at the suppression hearing were whether Rush's statements were obtained in violation of Miranda and whether her statements had been obtained voluntarily. The circuit court ruled that Rush's statements had been obtained in violation of Miranda and would be suppressed on that ground. Further, the court made plain that it was granting the suppression motion on the Miranda violation ground only and was not granting it on the alternative involuntariness ground.

The issue stems from a murder investigation for which Rush was brought in to the police station and questioned. Subsequent to some light background conversation on the investigation, the detective proceeded to advise Rush of her rights using a standard Advice of Rights Form ("Form"), to which he made a handwritten alteration. The form with the alteration stated, in relevant part:

If you want a lawyer, but cannot afford one, a lawyer will be provided to you @ some time at no cost.

The bolded portion is the handwritten addition made by the detective. Rush read the form and, when the detective asked Rush whether it all made sense, she replied in the affirmative. He then asked several questions to verify that she understood the stated advisements and had her initial next to the four answers on the form, confirming:

1. that she understood the rights that had been read to her;
2. that she wanted to make a statement at that time without a lawyer;
3. that she had not been offered any kind of reward or benefit nor had she been threatened in any way in order to get her to make a statement; and
4. that she was not under the influence of alcohol or drugs.

Prior to Rush signing the form, she asked " . . . do I need a lawyer or somethin' or is it, am I just in here for . . . questioning?" The detective responded, ". . . if you decide at that, any point in time during our questioning that you feel that that'd be the best for you, then you let me know that. Okay?" Ultimately, Rush signed and noted her level of education below her signature.

At the suppression hearing, the detective explained that handwriting the words "@ some time" is his usual practice because "[a lawyer] is not going to magically appear. It's going to take a little time for a lawyer to be provided to her for a representation. . ." Rush testified that she did not remember being advised of her rights but did remember being told that a lawyer would be appointed for her "after [she] would go to jail." She then acknowledged, however, that that was said to her only after the interrogation had concluded.

On review, the Court assessed the advisements given to Rush in their totality. By means of Advisement 2, "You have the right to talk to a lawyer before you are asked any questions and to have a lawyer with you while you are being questioned," Rush was told orally and in writing that she had the right to talk to a lawyer. She was then informed, by means of Advisement 3, also orally and in writing, that if she could not afford a lawyer, one would be provided for her at some time, at no cost. Under Eagan and Prysock, the added language did not violate Miranda because the warnings, as given, told Rush in straightforward language that she had a right to talk to a lawyer before being questioned and to have a lawyer present during questioning. Advisement 3, as altered by the words "at some time," was not inconsistent with the rights communicated in Advisement 2. Its message, stated separately from Advisement 2 because its topic was not the same, was that, if Rush decided that she wanted a lawyer, i.e., to exercise the right to a lawyer communicated in Advisement 2, but she did not have the resources to pay for a lawyer, she would be given a lawyer at no cost and at some time. Read objectively, this message did not tell Rush that, if she indeed asked for a lawyer right then, she nevertheless would have to undergo questioning without a lawyer until her lawyer arrived "at some time."

Rush argues that the detective actually asked her a few questions before advising her of her rights and, by doing so, created the impression that the interrogation had begun and the advice-of-rights had no bearing on Rush's ability to stop the interrogation. The Court reasoned that the questions posed prior to advising Rush of her rights were meant to orient her and to determine whether she had any first-hand familiarity with the Miranda warnings before he gave them to her. Further, the remarks made by Rush while the Miranda warnings were being given, and subsequently during the interview, evidence no confusion about her right to counsel and show that she was willing to speak to the police at the outset of the interview and as it progressed. Rush affirmatively stated she was willing to speak with police without a lawyer; and in doing so, she said nothing to suggest that she thought she had no choice in the matter. Rush even inquired whether she "needed" a lawyer, which prompted the detective to advise her that it was her decision and that she could make that decision at any time and questioning would cease.

Based on the stated reasoning, this Court held the circuit court erred in holding that Rush was not advised of her rights in accordance with Miranda and in granting her motion to suppress her statements from evidence on that ground.

With this holding, ordinarily the Court's inquiry would end. However, Rush asked they address the alternative voluntariness and argues that her statements were induced by improper promises and threats and, therefore, were involuntary and subject to suppression even if Miranda were complied with. As opposed to the State, a criminal defendant has no right to immediately appeal a circuit court's decision not to suppress evidence and has no right to pursue a cross-appeal in a State's appeal under CJ section 12-302(c)(3). The criminal defendant, unlike the State, is not without remedy if inculpatory evidence is erroneously admitted at trial, as he may raise the error on appeal after a final judgment of conviction. The legislature created the right of immediate appeal for the State in order to equalize the opportunities the parties have in criminal cases for meaningful correction of erroneous pretrial evidentiary rulings, made on constitutional grounds. The objective was to provide a vehicle to challenge a pre-trial ruling excluding critical evidence so that, if the ruling were erroneous, the error could be corrected before jeopardy would attach. Without such a right of immediate appeal, the State has no meaningful opportunity for error correction, because under double jeopardy principles and the developed case law on verdicts of acquittal, the State cannot appeal from a final judgment in favor of the defendant. The Court reasoned, however, that as the fields have been leveled, it would amount to an enourmous waste of judicial time and resources, and contrary to policies favoring judicial economy, to delay fully ruling on the correctness of a pre-trial suppression ruling when an immediate appeal has been taken.

To be voluntary, a confession must be "freely and voluntarily made at a time when [the defendant] knew and understood what he was saying." Similarly, in order to pass federal and Maryland constitutional muster, a confession must be voluntary, knowing and intelligent. The burden falls on the State to show "affirmatively that the inculpatory statement was freely and voluntarily made." Ordinarily, voluntariness is determined based on a totality of the circumstances test. When a confession is preceded or accompanied by threats or a promise of advantage, however, those factors are transcendant and decisive, and the confession will be deemed involuntary unless the State can establish that such threats or promises in no way induced the statement (the "Hillard" test). The first prong of Hillard is objective -- whether the police or State agent made a threat, promise or inducement, i.e., that is not, as a matter of routine, done for all suspects. Mere exhortations to tell the truth and appeals to a suspect's inner conscience has been held not to be improper. Further, the suspect's subjective belief that he will be advantaged in some way by confessing is irrelevant. The second prong of Hillard triggers a causation analysis to determine whether there was a nexus between the promise or inducement and the accused's confession.

Rush maintains the detective made improper promises during her interrogation that caused her will to be overborne, resulting in her making incriminating statements -- he promised "to help her if she told him the truth." The essential questions to answer are: (1) whether, to a reasonable person in Rush's circumstances, any of the detective's statements urging her to tell the truth were coupled with a promise, express or implied, that there would be a special benefit in doing so; and (2) if so, whether any such improper promise caused her to make an incriminating statement. The Court found that, because the interrogation was recorded, there was no factual dispute about what was said.

The Court agreed with Rush that several of the detective's comments were implied inducements in which he suggested that it would be advantageous to Rush, in terms of the charges she was facing, to speak out and reveal all she knew about the events leading up to the murder. He made two references that strongly implied a special benefit from speaking: 1) that there could be "salvation" for Rush if she told the truth, but, if not, she would remain in "major trouble"; and 2) that if Rush were to tell him "exactly what happened and why it happened," "we can resolve this and get it over with. . . ." These comments went beyond mere pleas to honesty and good conscience. Rather, they conveyed the message that a full statement would get the detective's assistance in making the first degree murder warrant go away so she would not have to "take the ride, take the charge," because the charge would be "resolved." A reasonable person in Rush's circumstances -- age 20 and having a 9th grade education - was an improper inducement. Accordingly, the Court affirms the order of the circuit court suppressing Rush's statements from evidence, in part, and vacates in part.

The full opinion is available in PDF.

Jenson v. Maloff (Maryland U.S.D.C.)

Decided April 27, 2007 -- Judge Andre M. Davis

Petitioner Dagmar Jenson filed for habeas corpus relief in the United States District Court for the District of Maryland following a state conviction for first degree murder and a handgun violation. Petitioner cited five grounds for habeas relief after exhausting her appellate and post-conviction remedies under Maryland law. The United States District Court denied all claims for habeas relief and dismissed Petitioner's petition generally.

A more elaborate synopsis of this opinion shall appear shortly.

Edmund v. State (Ct. of Appeals)

Issued April 17, 2007 -- Opinion of Judge Lawrence J. Rodowsky

HEADNOTE: Criminal Law - First Degree Assault - Victim in shooting fled and never located. Held: Charging document that identified victim by description, but not by name, charged a criminal offense and was not jurisdictionally defective.

Defendant was arrested after reports of an alleged shooting of a victim later described by ethnicity and race, approximate weight, height, facial and specifics of attire. After arrest, Defendant confessed to firing a handgun at such a victim after a neighborhood dispute with an unidentified victim fitting that general description. A charging document was filed in the Circuit Court for Baltimore County describing but not identifying the victim and accusing Defendant of first degree assault and handgun violations. The grand jury returned an indictment on all counts.

Defendant's counsel filed a general omnibus motion objecting, inter alia, to the sufficiency of the charging documents, but without specificity as to the nature of the insufficiency. The State objected to the timeliness of the motion but the Circuit Court ruled instead on the merits that the charging document was sufficient, notwithstanding Defendant's counsel's arguments in open court that the failure of the charging document to identify the victim was a defect depriving the Circuit Court of jurisdiction. After trial, conviction and sentence before the Circuit Court, Defendant appealed to the Court of Special Appeals, but the Court of Appeals issued a writ of certiorari sua sponte before the Court of Special Appeals ruled on the appeal.

Reviewing the text of the first degree assault statute, Code CL 3-202, the "sufficient" form of pleading provided in Code, CL 3-206, the developed common law of Maryland and of some other states and Great Britain and the text of and precedents under Article 21 of the Maryland Declaration of Rights, the Court concluded that none of those authorities required that the charging document identify the victim of the first degree assault in this case.

In summary fashion, the Court also held that the prosecution presented sufficient evidence to support a finding of guilt, and upheld the discretion of the Circuit Court to allow Defendant to present a more specific argument orally than was presented in written motion, finding no prejudice to the State in this case.

Accordingly, the Court of Appeals upheld Defendant's conviction before the Circuit Court for Baltimore County for first degree assault.

The full opinion is available in PDF form here.

Fuller v. State (Ct of Appeals)

Filed March 13, 2007 – Opinion by Judge Lynne Battaglia

Petitioner, Gerald Davis Fuller, serving two concurrent natural life sentences had petitioned for Commitment to the Alcohol and Drug Abuse Administration pursuant to Section 8-50 7 of the Health-General Article of the Maryland Code (1982, 2005 Repl. Vol., 2006 Supp.). The Circuit Court for Baltimore City denied the petition, and Fuller appealed. The Court of Special Appeals concluded that the denial of Fuller’s petition was not appealable and dismissed the appeal. The Court of Appeals affirmed, holding that the denial of a petition under Section 8-507 of the Health-General Article is not appealable. The Court determined that because a petition for commitment, unlike a motion for modification, initiates a statutory cause of action separate from the conviction that can be filed repeatedly and because the General Assembly did not proactively and clearly confer the right of appeal to petitioners denied relief under Section 8-507, no right to appeal existed.

The opinion is available in PDF.

Addison v. State (Ct. of Special Appeals)

Filed March 8, 2007. Opinion by Judge Timothy E. Meredith.

From an appeal of a pretrial order denying the defendant's motion for an ex parte hearing regarding pretrial use and disclosure of confidential records he had previously subpoenaed and reviewed in the trial court's chambers, the Court of Special Appeals granted the State's motion to dismiss this interlocutory appeal, on the grounds that the ruling below was not immediately reviewable under the collateral order doctrine.

On trial in Montgomery County for various counts of sexual offense and sexual abuse, Addison sought certain educational and health records for the alleged victim from the local public schools and the local Department of Health and Human Services, which request was opposed by those entities on privacy and confidentiality grounds. The trial court ordered that the requested records be made available for inspection in chambers by counsel for Addison, but prohibited any use or disclosure of them pending further court order.

After inspection of the materials, Addison's counsel moved to be heard ex parte on the justification for pretrial use by Addison of some of the materials, arguing that such proffers would require the disclosure of defense strategy and work product, and therefore should not be shared with the prosecution because, if shared, the disclosure would violate Addison's due process rights, the right not to self-incriminate and the right to effective assistance of counsel. The trial judge denied the motion, and Addison appealed.

The Court noted that, as a general principle, ex parte communication between one party and the judge are disfavored, except as permitted by law, with explicit restrictions on both judges and attorneys to avoid engaging in such. Addison had argued that the requested ex parte hearing was expressly authorized by law, even with no Maryland case or statute on point, by virtue of cases in other jurisdictions. The Court noted that such cases were distinguishable from the case at hand, since most involved hearings to determine whether an indigent defendant was entitled to payment by the state for expert psychiatric testimony, but did not decide the issue, since the case at hand was resolved on other grounds.

To be appealable, an order or judgment must ordinarily be final. Under Maryland law, there are only three limited exceptions to the final judgment requirement, the first being appeals from interlocutory orders specifically allowed by statute, the second being immediate appeals permitted under Maryland Rule 2-602, and the final being appeals allowed under the common law collateral order doctrine. Here, there was no claim that either of the first two applied, so if allowable, this appeal must qualify under the final exception.

To satisfy the collateral order doctrine, four elements must be found to exist. The order must conclusively determine the disputed question, resolve an important issue, be completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment. The Court noted that, in Maryland, the four elements are very strictly applied and interlocutory appeals sustained only in extraordinary circumstances. In the St. Joseph case, the scope of the collateral order doctrine had been limited to one very unusual situation, involving trial court orders permitting the deposition of high government decision makers.

The Court found none of the exceptions to apply in this case, noting that if Addison's arguments were adopted, many discovery disputes would be entitled to interlocutory appeal, a result counter to the stated formulation of the collateral order doctrine under Maryland law. Thus, the prosecution's motion to dismiss the appeal was granted, without resolving the ex parte hearing issue.

The opinion is available in PDF.

State v. Garnett (Ct. of Special Appeals)

Filed February 2, 2007. Opinion by Chief Judge Joseph F. Murphy, Jr.

From the official headnote of the case:

CRIMINAL PROCEDURE; LAW OF THE CASE DOCTRINE; MOTION TO CORRECT
ILLEGAL SENTENCE: Although Md. Rule 4-345(a) does not entitle a defendant to relitigate an “illegal sentence” issue actually decided by the Court of Appeals or the Court of Special Appeals, that rule would be meaningless if the law of the case doctrine were extended to sentences that could have been -- but were not -- challenged as illegal at the time an appellant filed his or her first appellate brief. The law of the case doctrine therefore prohibits a defendant from attempting to once again present an “illegal sentence” argument that has been presented to and rejected by an appellate court.

The procedural history of the case was set forth in the previous trip to the Court of Appeals (in Garnett I) and was not repeated in this opinion, other than to note that in Garnett I, the order of restitution entered against Garnett was a penal sanction to which she was subject, despite a finding of guilty but not criminally responsible. As such, it was not subject to discharge in bankruptcy, and the State's motion to allow garnishment should have been allowed. On remand, Garnett sought to dismiss the garnishment motion, claiming the restitution order was illegal because she was found guilty but not criminally responsible and could not be held to account for the crimes for which she was convicted. The circuit court granted Garnett's motion to dismiss, and this appeal followed.

On consideration, the court concluded that the law of the case doctrine did not preclude raising the illegal sentence issue, since the Court of Appeals in Garnett I had noted the issue had not been before it. Further, the court rejected the State's claim that recent legislative changes to the Victim's Rights Act had effectively overruled the holding in Pouncey v. State, 297 Md. 264 (1983), finding that no sentence of restitution should have been imposed on Garnett, concluding that the illegal sentence of restitution was appropriately corrected, and affirming the judgment.

This opinion is available in PDF format.

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.

Singfield v. State (Ct. of Special Appeals)

Decided December 29, 2006 -- Opinion by Judge James P. Salmon.

Appellant appealed on three separate grounds his criminal conviction for murder with a handgun, the first such ground being the trial court's refusal of a voir dire question on the issue of juror prejudice or bias on the basis of the specific charge of murder with a handgun.

The Court of Special Appeals held that the trial court had not adequately addressed the issue of charge-specific bias by granting questions related to whether each juror:

1) had been the "victim of a weapon's charge" [sic] or a weapon's crime or had someone in the family who was accused of a weapon's crime; and

2) had any reason whatsoever . . . that would affect his or her ability to render a fair and impartial decision.

The Court of Special Appeals rejected arguments from the State that no charge-specific voir dire question should issue for a murder with a handgun charge in the manner required in prior Maryland decisions for charges involving certain sex offense or controlled dangerous substance charges. The Court of Special Appeals further noted that Appellant faced other lesser included homicide charges involving imperfect self-defense claims, and that the denied voir dire question was germane to those charges as well.

The Court of Special Appeals accordingly reversed the conviction and remanded the case for retrial on that ground, and did not address Appellant's other grounds.

The full opinion is available in WPD and PDF.

Johnson v. State (Ct. of Special Appeals)

Decided December 26, 2006 -- Opinion by Judge Paul E. Alpert, Concurring Opinion by Chief Judge Joseph F. Murphy, Jr.

Appellant sought to exclude evidence obtained pursuant to a search warrant and supporting documentation authorizing a search of the residence, car and person of both Appellant and an unidentified third party, on the grounds that the State did not provide Appellant an opportunity to inspect that warrant with respect to the third party. The trial court refused to exclude such evidence and the Court of Special Appeals upheld the trial court, noting that:

1) Appellant had no standing to challenge on constitutional or other ground the validity of warrant against the third party;

2) The State had an interest in maintaining the confidentiality of confidential informants, an interest conceded by the Appellant;

3) Appellant had not requested an in camera review of redacted version of the warrant materials for the purpose of obtaining of possible exculpatory evidence;

4) Appellant had not preserved the issue in prior proceedings of whether the application for the warrant for the unidentified person may have tainted the warrant application for the search of Appellant's person and property; and

5) The State did not call or intend to call the unidentified person as a witness against the Defendant, and therefore the material was not discoverable under Rule 4-263(c)(2).

Chief Judge Murphy noted in a brief concurring opinion that the case at bar did not present the issues of the use of the warrant material for the unidentified person for cross-examination purposes or for proving a tainted warrant application by the strategic misinformation or omissions by an affiant to produce the illusion of probable cause.

The full opinions are available in WPD and PDF.

Cottman v. State (Ct. of Appeals)

Filed December 8, 2006--Opinion by Judge Clayton Greene, Jr.

Criminal Law – Proceedings – Appeals – Effect of New Trial – Mootness – Where a criminal defendant, after conviction and sentence, files a timely notice of appeal to the Court of Special Appeals, but is granted a new trial before the appellate opinion is filed, the appellate court may be required to dismiss the appeal. The trial court retains fundamental jurisdiction to grant a new trial, despite the pending appeal, but the effect of granting a new trial, ordinarily, renders the appeal moot. In the instant case, the Court of Special Appeals erred, as a matter of law, in failing to dismiss the appeal where the subject matter of the appeal was moot and that court was unable to review the propriety of the order granting the new trial.

The full opinion is available in WordPerfect and PDF.