Maryland Criminal Defense Attorneys Association Newsletter

Transcription

1 Maryland Criminal Defense Attorneys Association Newsletter November/December 2002 President s Message Larry Allen Nathans MARYLAND LEGISLATURE On January 8 th the new Maryland legislative session will begin. Because this is a legislative transition year, there are no pre-filed bills and we can only speculate as to what legislation is likely to be introduced. Since Governor Ehrlich will not be sworn in until January 15 th, his budget completed before the 17 th and the confirmation proc- In This Issue Presidents Message.. 1 DWI Update. 1 Summaries of Maryland... 3 Next meeting: April 8, 2003 Rocky Run Tap & Grill Columbia, MD ess for his cabinet members will likely take several weeks, it is unlikely that a great deal of substantiative legislation relevant to the MCDAA (other than possible death penalty issues) will occur in January. However, as the result of the aforementioned, it is likely that the usual ninety day session will really be compressed and that bills germane to our organization will be addressed starting sometime in February until the close of the session on April 6 th. I anticipate that bills on the following topics will be introduced that will concern our group: changes in DWI laws or sentencing; death penalty sentencing; mandatoryminimum sentences; compensation for the innocently imprisoned; and bills seeking to expand the authority of the Maryland State Police. Our organization certainly has an interest in extending the death penalty moratorium or in seeking to have the legislature provide greater safe-guards in death penalty and other prosecutions. Although the current Maryland death penalty moratorium is based on racial disparity, rather than on innocence, the number of persons wrongfully sentenced to death in this country is staggering. Maryland, with a relatively small death row, has had at least three persons in the 90's released or their sentence reduced as the result of serious questions about their guilt. Kirk Bloodsworth was released after DWI Update RESOURCES FOR STAYING AFLOAT ON THE SEA OF DUI LAW by Leonard R. Stamm In order to be an effective advocate for the unfortunate person accused of drunken driving, it is critical to stay current in developments in the law, and prosecution and defense of drunk driving cases, not only in Maryland, but nationally. Fortunately, there are numerous resources that contain a wealth of information for drunk driving practitioners including newsletters, treatises, and other publications, as well as opportunities to attend seminars all over the country that focus on defense of drunk driving cases. The two most prominent newsletters are the DWI Law & Science Journal (John Tarantino, ed.), which is published monthly by Whitaker Newsletters, 313 South Avenue, P.O. Box 192, Fanwood, N.J ( ) and the Drinking Driving Law Letter, (Donald H. Nichols and Flem Whited, III, ed.) which is published 26 times per year by West Group, 620 Opperman Drive, St. Paul, MN, ( ). Treatises and other published materials on drunk driving defense include Defense of Drunk Driving Cases, Richard Erwin, published by Matthew Bender and Company, Drunk Driving Defense, (Fifth Edition 2000), by Lawrence Taylor, published by Aspen Publishers and available online at loislaw.com, and Drunk Driving Litigation: Criminal and Civil, Donald Nichols, Flem Whited, published by West Publishing Company. Another excellent resource, more closely focused on Maryland drunk driv-

2 PAGE 2 President s Message DNA evidence proved that he did not commit a rape/murder. Ian Henry, who spent seven years on death row, is home in Jamaica after the discovery of significant Brady violations that called his guilt in question. Finally, Governor Glendening reduced the death sentence of Eugene Colvin-El because the Governor questioned his guilt. Legislation curbing the use of informant and eyewitness testimony and mandating the preservation of evidence are only a few safeguards that should be put in place. Similarity, the present method for compensating the innocently incarcerated is wrong, cumbersome and does not provide adequate compensation. Why should a gubernatorial pardon be necessary for someone when a court or the state has proclaimed the person innocent? In the past, MCDAA has relied on the hard work of Albert Figinski, Nancy Forster and other members of the Public Defender s Office, prior MCDAA Presidents and other volunteers to monitor and challenge unwise legislation. This year, MCDAA Secretary Caroll McCabe and Deputy Public Defender Nancy Forster will track new legislation and help prepare our response. I would greatly appreciate it if our lawyers who have specific interests in any of the topics already mentioned or likely to be come up would me, Caroll and Nancy and let us know that we can count on you to help formulate our presentations. Please include in your s your work, home and cell numbers and specific thoughts ideas you have. Our s are nathans@bnllp.com, Mccabellc@yahoo.com,. We need your expertise, your time and commitment to follow through. Thank you on behalf of MCDAA. Maryland Criminal Defense Attorneys Association Newsletter Published bi-monthly by the Maryland Criminal Defense Attorneys Association Annual subscriptions provided to all current MCDAA members at no cost as part of the annual dues. Editor: Timothy Mitchell Office: 6303 Ivy Lane, Suite 102, Greenbelt, Maryland TMitchell@Maryland-Lawyer.com Statements or opinions expressed her ein ar e those of the aut hor s and do not necessarily reflect those of the MCDAA, its officers, Directors, or of the Editor Officers and Board of Directors Maryland Criminal Defense Attorneys Association President: Larry Nathans Phone: nathans@bnllp.com President Elect: Lenny Stamm Phone: lstamm@lstamm.com First Vice President: Timothy Mitchell Phone: TMitchell@Maryland-Lawyer.com Second Vice President: John Salvatore Phone: jrslawman@aol.com Secretary: Carroll McCabe Phone: McCabe@earthlink.net Treasurer: Christopher Flohr Phone: chrisflohr@toad.net

3 PAGE 3 Michael R. Braudes Maryland Public Defender Appellate Division ISSUES OF CURRENT INTEREST 1. Thoroughly discussing the circumstances under which a person has sufficient care or custody or responsibility for a child to qualify for a child abuse conviction, the Court of Appeals held this month that a public school teacher who offers a 14 year old student a ride home from school and detours to his own home to engage in consensual sex with the student has committed, inter alia, child abuse. Anderson v. State, summarized under CHILD ABUSE. 2. The Court of Special Appeals discussed the State s obligation to disclose the precise placement of a covert location from which an officer observed criminal activity in Johnson v. State, under DISCOVERY. 3. While allowing an in-court demonstration is generally a matter of trial court discretion, there are limits. The violent and dramatic shaking of a doll in a shaken-baby case, where the doll s anatomy was materially different than a child s such that the jury could be misled by the demonstration, was permitted in error. Andrews v. State, summarized under EVIDENCE. 4. A canine alert for drugs within a vehicle does not confer probable cause to search a passenger. State v. Wallace, under SEARCH & SEIZURE, continues the trend toward requiring a greater justification for the arrest, search, or conviction of a passenger than for a driver. APPELLATE PROCEDURE State v. Brooks, 148 Md. App. 374, 812 A.2d 342 (2002) A trial judge s factual finding, e.g., at a suppression hearing, is reviewed on appeal under the highly deferential clearly erroneous standard. Genuinely clearly erroneous findings are rare... a clearly erroneous holding should be limited to a situation where, with respect to a proposition or a fact as to which the proponent bears the burden of production, the factfinding judge has found such a proposition or fact without the evidence s having established a prima facie basis for such a proposition or fact. The holding should be confined to situations where, as a matter of law, the burden of production has not been satisfied. A weak or questionable factual basis does not render a finding clearly erroneous there must be essentially no factual basis. This standard coexists with the appeals court s frequent duty to rule on the basis of that version of the facts most favorable to the appellee as the prevailing party in the trial court. Jenkins v. State, 146 Md.App. 83, 806 A.2d 682 (2002) It is well settled that when specific grounds are given at trial for an objection, the party objecting will be held to those grounds and ordinarily waives any grounds not specified that are later raised on appeal. quoting Klauenberg v. State, 355 Md. 528, 541 (1999). Thompson v. State, 371 Md. 473, 810 A.2d 435 (2002) Rule requires the defendant s consent to the amendment of a charging document if the amendment changes the character of the offense charged. Thompson was charged with possession of controlled paraphernalia in a count which twice cited to Art. 27, 287A, a statute which provides for a fine but no jail time. Over objection, on the last day of trial the State was permitted to substitute citations to Art. 27, 287 (d)(2), which provides for incarceration up to one year. The language of the count was not otherwise changed. Finding no error in permitting the amendment, the Court wrote: 1. In general, a statutory citation in a charging document is included for convenience only, and carries no substantive effect. It is the language of the count that matters, and here that language was consistent with 287 (d)(2). While in rare cases such a citation may take on substantive meaning because the count otherwise fails to properly charge an offense, that was not the case here. The count s language informed Thompson that the more serious (d)(2) offense, involving an intent to distribute, was being charged, and not the less serious 287A offense, which goes to possession of paraphernalia for personal use. 2. It is the substance of the count, not the statutory cite, which sets the range of possible punishments. Therefore, the amendment did not increase the potential punishment. 3. Citing Article 21 of the Maryland Declaration of Rights, and the sixth amendment to the Federal Constitution, the Court wrote that... the purpose of an indictment is to provide notice to the accused of the charge against him and to guard against the possibility of unfair surprise during trial. CHILD ABUSE Anderson v. State, 372 Md. 285, 812 A.2d 1016 (2002) In order to be guilty of child abuse, a person who is not a parent or household member must have care or custody or responsibility for the supervision of the victimized child. Art. 27, 35C (b). A person acquires such responsibility only with the mutual consent of that person and the child s parent or guardian. Such mutual consent clearly encompasses a teacher during the course of school activities. Here, Anderson was a teacher, and the

4 DWI UPDATE PAGE 4 ing defense is the Maryland DUI Manual, by William D. Paton, and published by the Hanford Publishing Company. This book is in the same format as the Maryland Criminal Trial Manual, also published by Hanford, and features citations to cases relevant to drunk driving defense and quotations of relevant passages from the cases. Books dealing more specifically with the scientific aspects of drunk driving defense include, the Forensic Science Handbook, by Richard Saferstein, and published by Prentice Hall, Intoxication Test Evidence, Second Edition, by Edward F. Fitzgerald and David N. Hume, and published by the Lawyers Cooperative Publishing Company, Scientific Evidence, Third Edition, by Paul Giannelli and Edward J. Imwinkelreid, and published by Lexus Law Publishing, and Medicolegal Aspects of Alcohol, Edited by James C. Garriott, Lawyers & Judges Publishing Co. There are numerous government publications on the subject of drunk driving, including the studies that led to the adoption of the standardized field sobriety tests, such as, Marcelline Burns and Herbert Moskowitz, Psychophysical Tests for DWI Arrest, Department of Transportation, National Highway Traffic Safety Administration, June 1977 (DOT-HS )(Order # PB269309); V. Tharp, M. Burns, and H. Moskowitz, Development and Field Test of Psychophysical Tests for DWI Arrest, Department of Transportation, National Highway Traffic Safety Administration, March 1981 (DOT-HS )(Order # PB ), Snapper, Seaver, and Schwartz, An Assessment of Behavioral Tests to Detect Impaired Drivers, December 1981 (DOT-HS )(Order # PB ), T.E. Anderson, R.M. Schweitz, and M.B. Snyder, Field Evaluation of a Behavioral Test Battery for DWI (Driving While Intoxicated), National Highway Traffic Safety Administration, Washington, D.C. Office of Driver and Pedestrian Safety, September 1983 (DOT-HS )(Order # PB ), Richard P. Compton, Field Evaluation of the Los Angeles Police Department Drug Detection Program, Department of Transportation, National Highway Traffic Safety Administration, February 1986 (DOT-HS ), Richard P. Compton, Pilot Test of Selected DWI Detection Procedures for Use at Sobriety Checkpoints, (DOT-HS )(Order # PB ). The training manuals for the administration of standardized field sobriety tests may be purchased at or from NACDL. Since material ordered from NTIS may not be returned and is nonrefundable, the order numbers listed here should be confirmed prior to ordering. Student Manual 1989: NTIS Order Number: PB INT Student Manual 1992: NTIS Order Number: PB INT Student Manual 1995: NTIS Order Number: PB INT Student Manual 2000: NTIS Order Number: AVA20839-BB00 Student Manual 2002: NTIS Order Number: AVA21135-BB00 Instructor Manual 1992: NTIS Order Number: PB INT Instructor Manual 1995: NTIS Order Number: PB INT Instructor Manual 1995: NTIS Order Number: AVA19910-BB00INA Instructor Manual 2000: NTIS Order Number: AVA20838-BB00 Instructor Manual 2002: NTIS Order Number: AVA21134-BB00 Teacher-Trainer Manual 1995: NTIS Order Number: PB INT Student-Instructor Manual 1989: NTIS Order Number: PB INT The training manuals for DREs may also be ordered from Preliminary Training for Drug Evaluation and Classification "The Pre-School" Student Manual (PB ) Preliminary Training for Drug Evaluation and Classification "The Pre-School" Instructor Manual (PB ) Drug Evaluation and Classification Training "The Drug Recognition Expert School" Student Manual (PB ) Drug Evaluation and Classification Training "The Drug Recognition Expert School" Instructor Manual (PB ) The NTIS web site has the videotapes that are used in the courses. In addition to these resources, as indicated above there are numerous seminars, available to lawyers, experts, and others in the field of drunk driving defense. These seminars feature speakers from all over the country, and some from all over the world, who bring an enormous amount of experience and expertise to share with attendees. Each April, Headlines Marketing hosts the Mastering Scientific Evidence in DUI/DWI Cases seminar in Atlanta, Georgia. More information is available at The National College for DUI Defense offers a Summer Seminar, each July, on the campus of the Harvard Law School (there is no affiliation with Harvard, they just rent the space) and a winter seminar, which recently concluded in San Antonio, Texas. This year the winter seminar was one and a half days. The summer seminar will be four days and features breakout sessions where attendees can test their skills before their peers. NACDL holds a three morning DUI Seminar each fall in Las Vegas, Nevada. The Minnesota Society for Criminal Justice offers a seminar each year on President's Weekend. Last year's seminar was at the Hard Rock Hotel in Orlando, Florida. This years is at the Aladdin Hotel in Las Vegas, Nevada. The Indiana University also offers the Robert F. Borkenstein Course on Alcohol, Drugs and Highway Safety: Testing, Research and Litigation. This is an intensive five day seminar, primarily attended by officers and state experts, but open to defense lawyers, given twice year in May and December in Bloomington, Indiana. There are also a number of courses given by former police officers to lawyers in standardized field sobriety tests in accordance with standards set forth by the International Association of Chiefs of Police (IACP) and the National Highway Traffic Safety Administration (NHTSA). The standardized student course, is 24 hours and the instructor course is 32 hours. Half day and one day seminars are offered by the Maryland Institute for Continuing Professional Education of Lawyers (MICPEL) and Lorman Educational Services, in Maryland, on drunk driving defense and MVA hearings. Attending all of these seminars and classes gives one the information necessary to stay a couple of steps ahead of the prosecution, network with defense attorneys and experts from all over the country, and while your at it, have a little fun.

5 PAGE 5 victim a 14 year old student. He had previously given her rides home, but on this occasion drove her to his house, where they engaged in consensual intercourse. Finding the evidence sufficient to sustain the element of supervisory responsibility, the Court agreed with the Court of Special Appeals that a parent impliedly consents to a teacher assuming responsibility for safely delivering the child to her home, and that on these facts there was an unbroken chain of events from the meeting of teacher and child at the school to the ride home to the commission of the offense. Therefore, the normal assumption of responsibility at the school was voluntarily extended by the ride home, and never interrupted by a parental reassumption of responsibility. It is the school related activity immediately connected to the abuse, in this case the transportation of the student home from school, that provides the basis of supervision. DISCOVERY Johnson v. State, 148 Md.App. 364, 811 A.2d 898 (2002) Where a police officer claims to have observed criminal activity from a covert location, the State at trial possesses a qualified privilege, analogous to the informer s privilege, to refuse to disclose the location. On a case by case basis, the trial judge must balance the public s interest in nondisclosure against the defendant s interest in crossexamining the officer and putting on a defense. Here, the trial court did not err in refusing to compel disclosure where to do so might endanger police officers who continued to use the location as well as the citizen who permitted the police to utilize his premises, and the defense was able on cross to explore the officer s distance from the observed drug transaction, height from the ground, angle of observation, possible obstructions, and weather conditions. (Trial lawyers take note: the Court also found it relevant that defense counsel did not proffer other areas of cross which might have been possible had disclosure been made of the precise location.) DOUBLE JEOPARDY State v. Taylor & Bledsoe v. State, 371 Md. 617, 810 A.2d 964 (2002) In these two cases, the defendants prior to trial moved to dismiss on the basis that their conduct did not violate the law alleged to have been broken. In both, the trial judge considered evidence, such as a police report and stipulated facts, which the parties agreed established the facts of the alleged crimes relevant to the motion to dismiss. In both cases, the trial judge considered this evidence, heard argument, and granted the motion to dismiss. In both, the State purported to appeal, arguing to a higher court that the motions had been granted in error. In holding that double jeopardy principles barred further proceedings against the defendants in both cases, the Court emphasized that a trial judge s ruling which in substance is an acquittal brings the prosecution to an end, and the State has no right of appeal. And this is true regardless of the label placed on the ruling by the trial judge, and regardless of whether in a technical sense jeopardy has attached. It is true even if the acquittal is entered in error. Limiting its holding to the Maryland common law of double jeopardy (and thus precluding review by the Supreme Court), the majority reasoned that double jeopardy issues must be reviewed for their substance and not their form; where a trial judge in ruling upon a motion to dismiss goes beyond the sufficiency of the language of the charging document and considers extrinsic evidence, the substance of the ruling may well be that there is insufficient evidence to convict. For double jeopardy purposes, that is equivalent to acquittal. The Court went on to note that there is no equivalent in criminal cases to the civil motion for summary judgment; therefore, extrinsic evidence should not even be considered when a criminal defendant moves to dismiss a charging document. If the charging document on its face charges a crime, evidentiary sufficiency becomes a matter to be litigated at - not prior to - trial. Jenkins v. State, 146 Md.App. 83, 806 A.2d 682 (2002) In this opinion, the Court discussed in detail merger of each of the two forms of first degree assault ((a)(1): intent to inflict serious physical injury, and (a)(2): assault with a firearm) into an attempted criminal homicide. While the Court discussed various permutations of this issue under the reasoning of Dixon v. State, 364 Md. 209 (2001), its actual holdings are as follows: 1. The (a)(2) version of first degree assault does not merge into attempted first degree murder under the required evidence test, because each offense requires proof of an element that the other does not; the critical extra element is the use of a firearm. 2. Where, however, an assault by firearm is based upon the same act as an attempted murder, the sentence for assault merges into that for attempted murder under the rule of lenity. In this circumstance, there is no indication that the General Assembly intended multiple punish-

6 PAGE 6 ments. EVIDENCE Andrews v. State, 372 Md. 1, 811 A.2d 282 (2002) In a prosecution for the homicide of Andrews infant daughter, conflicting evidence was adduced as to whether the child died as a result of having been shaken, or rather as a result of complications from medical problems resulting from premature birth. Over objection, the State was permitted to have one of its experts, as a demonstration, shake a doll which was primarily used for CPR training. The doll differed from the child in several ways, including weight, the flexibility of the neck, and the proportion in size and weight between the head and the remainder of the body. Finding error, the Court wrote that while the admission of demonstrative evidence is discretionary with the trial judge, the party seeking to utilize the demonstration [must] make a preliminary showing that what the demonstration is expected to establish is substantially similar to the facts and circumstances at issue. Where as here the proponent of the evidence is not able to make an ample showing that the event depicted in the courtroom (here, the application of sufficient force to inflict shaken baby syndrome) is substantially similar to what occurred outside of the courtroom, the demonstration should not be permitted: crossexamination and cautionary instructions do not compensate for the lack of necessary foundation. Smith v. State, 371 Md. 496, 810 A.2d 449 (2002) 1. Maryland s definition of relevance in Rule combines what were formerly the separate concepts of relevance and materiality. In order to be admissible, it is necessary both that the evidence tend to make the existence of a fact more or less probable (traditional relevance), and that resolution of that fact be important to the outcome of the case (traditional materiality). 2. In the course of rejecting an evidentiary argument due to the lack of a specific proffer and the unclear, tenuous, and amorphous nature of trial counsel s theory underlying the relevance of the semiproffered evidence, the Court wrote: We have no disagreement with the general propositions posited by petitioner that he had a right to present his defense to the jury, that evidence of bias and interest on the part of adverse witnesses is always relevant, and that such bias or interest is always the proper subject for crossexamination, which may not be unreasonably denied or limited. 3. Where as here the relevance, if any, was marginal, Rule conferred great discretion upon the trial court to determine that it was outweighed by prejudice, confusion, or misleading the jury. Jenkins v. State, 146 Md.App. 83, 806 A.2d 682 (2002) 1. The State alleged that Barnett and Jenkins encountered Dorsey on the street, Dorsey said words to the effect of I ve still got that for you, and Barnett shot him. At issue was the admissibility of a statement from Barnett to Dorsey three days earlier inquiring about buying a gun. Applying basic principles of both hearsay and relevance, the Court found that the statement was not offered for the truth of the matter asserted, and thus not hearsay, and that it was relevant in linking Jenkins alleged coconspirator Barnett to the victim, and in making sense of the victim s statement to Barnett that he still had what Barnett was looking for. Applying Rules 5-401, 402, and 403, the Court found the evidence to be relevant, and that its potential for unfair prejudice did not outweigh its probative value. 2. Affirming the denial of a motion to suppress identification evidence on the basis of alleged impermissible suggestiveness, the Court wrote: a) When a defendant challenges an extrajudicial identification, a reviewing court applies a two-prong analysis. Initially, the defendant bears the burden of establishing that the police utilized impermissibly suggestive procedures to obtain the ID. b) In assessing suggestiveness it is a factor, but not a dispositive one, that the defendant is the only person who has been shown to a witness more than once. Here, Jenkins was included in both a photo array and a lineup a few months later which were shown to the same witness, but neither the trial nor appellate court found suggestiveness.

7 PAGE 7 c) If the defendant carries his burden on suggestiveness, the State may still salvage the identification by establishing that it is reliable under the totality of the circumstances. In determining reliability, relevant factors include: the opportunity of the witness to view the criminal at the time of the crime, the witness degree of attention, the accuracy of the witness prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. quoting Neil v. Biggers, 409 U.S. 188, (1972). INSTRUCTIONS Smith v. State, 371 Md. 496, 810 A.2d 449 (2002) Defendant was charged with being one of two or three perpetrators of a housebreaking which turned into a felonymurder. The judge propounded a felony-murder instruction, and a mere presence is not enough to prove guilt instruction. The jury sent out a note: In the case of first degree felony murder does the evidence have to prove that the defendant committed the murder or only that he was present during the commission of a felony when the murder occurred? The judge responded by repeating the felony-murder instruction, but refused over objection to also repeat the mere presence instruction. Finding no error, the Court wrote that a) whether and the extent to which a judge gives supplemental instructions is discretionary, and b) reinstruction on felonymurder alone sufficiently answered the jury s question, as it required participation and not mere presence in order to establish guilt. JURY TRIAL Thompson v. State, 371 Md. 473, 810 A.2d 435 (2002) If a trial judge wishes to propound a duty to deliberate or Allen charge, either before or after the commencement of deliberations, he or she must conform closely to the ABArecommended instruction approved in Burnette v. State, 280 Md. 88 (1977) and restated in Maryland Criminal Pattern Jury Instruction 2:01. The heart of that instruction is that all jurors, majority and minority, should equally consider the views of others, but not relinquish their own convictions merely to achieve unanimity. Here, the trial court erred by deviating from the pattern, improperly informing the jurors a) that it is wrong for a juror to express a strong opinion at the outset of deliberations; b) that the final test of the quality of jury service is the verdict returned; and c) that a proper verdict will contribute to efficient judicial administration. The Court was particularly critical of the final test language, which is suggestive of the primacy of collective judgment over individual principle and honest conviction. Jenkins v. State, 146 Md.App. 83, 806 A.2d 682 (2002) Two days after her testimony in a murder trial which had not yet concluded, a police detective encountered a juror at a religious retreat. Believing that the juror introduced himself as a member of a past jury, she stated Oh, you re one of the ones that convicted him? They then realized he was on the present jury, and terminated their contact. At the conclusion of the retreat, they had lunch together and discussed only personal matters. The trial judge found that the contact and failure to report it were improper, but denied a motion for new trial because there was no prejudice: the detective was a relatively minor witness whose testimony helped Jenkins at least as much as it did the State, and the juror would not have carried over any enhanced view of her credibility to that of other officers, who were attacked at trial as having conducted a sloppy investigation. Finding no error, the Court of Special Appeals wrote: 1. Despite the fact that the problem was not discovered until after trial, the standard of review of the denial of the motion for new trial is abuse of discretion, because had it been discovered during trial, the possible remedies of striking the juror or declaring a mistrial would have been committed to the judge s discretion. The Court distinguished Merritt v. State, 367 Md. 17 (2001), in which the impact of a post-trial discovery that inadmissible materials had gone to the jury during deliberations was tested under the much less deferential standard of harmless error, because that would have been the test had the judge erroneously admitted the items. 2. Juror-witness communication is forbidden, and presumptively prejudicial, because it brings into question whether the juror based his or her verdict strictly upon the evidence. That presumption, however, is rebuttable, and its existence has been called into question by recent cases. Here, however, the presumption was rebutted. While juror-witness contact may be prejudicial even in the absence of discussion of the case, here that con-

8 PAGE 8 MOTIONS tact enhanced the credibility of a witness who had taken a statement from a more important State s witness which served to impeach the latter s credibility. Further, the detective s remarks to the juror did not convey a belief that the latter should return a guilty verdict. State v. Taylor & Bledsoe v. State, 371 Md. 617, 810 A.2d 964 (2002) In ruling upon a pretrial motion to dismiss, a trial judge errs in considering evidence extrinsic to the charging document and deciding in substance that there is insufficient evidence to convict. Instead, the question of evidentiary sufficiency should be decided at trial. The consequences of erroneous granting of a motion to dismiss under these circumstances are discussed in this memo under DOUBLE JEOPARDY. POST-CONVICTION Mateen v. Galley, 146 Md.App. 623, 807 A.2d 708 (2002) Mateen received a sentence of 50 years for first-degree murder, which the trial judge upon inquiry by the Parole Commission clarified to mean life with all but 50 years suspended. In a habeas corpus proceeding, he challenged what he contended was an illegal upward modification of his sentence, as well as the Governor s policy not to consider lifers for parole a policy which affects classification and program eligibility in the prison as well as the release date. Held: 1. A substantively illegal sentence may be redressed on appeal or motion to correct illegal sentence. On the other hand, asserted errors by the DOC or Parole Commission must be made the subject of a civil habeas corpus proceeding. A ruling on a habeas petition may be appealed where the writ is sought for any purpose other than to challenge the legality of a conviction of a crime or sentence. A challenge to confinement, as opposed to the initial legality of a conviction or sentence, can be litigated in a habeas proceeding and an appeal taken from an adverse ruling. Mateen is challenging his confinement; an appeal, therefore, is available. 2. A cognizable-in-habeas and ultimately appealable issue arises when an inmate claims that his sentence is ambiguous and the DOC is interpreting it too harshly, and the DOC obtains from the sentencing judge a post hoc, ex parte explanation of what the judge actually intended. 3. Habeas relief is available where an inmate is not claiming a right to immediate release, but to entitlement to a hearing (such as a parole hearing) which may result in earlier release. Both immediate release and such a hearing are appropriate forms of relief to be sought through the writ of habeas corpus. 4. Where there is ambiguity in a sentence pronounced by a trial judge, the defendant is entitled to the more lenient possible construction. Thus, the Court assumed (in the absence of a transcript) that Mateen at one point was sentenced to 50 years and not life suspend all but 50. However, a sentence of a flat term of years for firstdegree murder is illegal the judge must impose a life sentence, although some of it may be suspended. 5. A judge may correct an illegal sentence at any time, even without a motion by a party. Rule 4-345(a). If the earlier sentence was illegally lenient, the judge does not violate the usual prohibition upon upward modifications by revising the sentence to bring it within the permissible legislated range. 6. An illegal sentence is to be contrasted with an erroneous or mistaken, but legal sentence. While an illegal sentence may be stricken and a different sentence substituted at any time, a legal but mistaken sentence may not be modified upward after sentence has been pronounced and the defendant has left the courtroom. 7. The State has a right of appeal from an illegally lenient sentence. 8. Even an illegal sentence may only be corrected at a hearing in open court of which the defendant has notice and an opportunity to be heard. 9. A change in parole commission policy which has the effect of depriving an inmate of a possibility of parole which existed when the crime was committed constitutes an unlawful ex post facto law. Knox v. Lanham, 895 F.Supp. 750 (D. Md. 1995).

9 10. A governor s policy of not paroling lifers is not an invalid ex post facto law. Lomax v. Warden, 356 Md. 569 (1999). Nevertheless, the Parole Commission is obligated by law to work up individual cases and make recommendations without regard for any such policy. This means that the commission must afford meaningful consideration to a lifer s possibility of parole, as opposed to a rubber stamp denial based upon a current governor s current policy. Meaningful consideration, in turn, means taking into account the factors listed in applicable statutes and regulations. 11. An inmate s security classification and eligibility for work release and family leave are matters of prison administration. They do not involve vested rights that the courts will enforce. RAPE Starkey v. State, 147 Md.App. 700, 810 A.2d 542 (2002) Then-applicable Art. 27, 464B(a)(4) created a third-degree sexual offense where the alleged victim is 14 or 15 years old and the person performing the sexual act is at least 21. Starkey, age 21, received an act of fellatio from a 15 year old girl, and argued that he was not guilty because he was not the person performing the sexual act. Rejecting that argument, the Court reasoned that the statute is gender-neutral, and intended to proscribe even consensual sexual activity between persons falling within specified age categories. In the context of fellatio, the General Assembly intended to punish the older person, regardless of whether his or her participation involved that person s penis or that person s mouth. (Note: The Court s rejection of the argument that the State may only charge an offense involving fellatio under the perverted practices statute is discussed in this memorandum under STATUTES. ). SEARCH & SEIZURE State v. Wallace, 372 Md. 137, 812 A.2d 291 (2002) A canine alert for drugs upon a vehicle lawfully stopped for a traffic violation does not confer probable cause to search a passenger in that vehicle. In so holding, the Court wrote: 1. Upon effectuating a lawful vehicle stop, the police may order all occupants out of the vehicle, and if probable cause exists under the Carroll doctrine search even a passenger s property which is left in the vehicle after the passenger is ordered out. 2. A positive alert by a properly trained dog to the presence of contraband authorizes a warrantless search of the vehicle. 3. Probable cause is a constant. The required degree of likelihood is the same in the context of a warrantless arrest as it is in the context of a warrantless search. The circumstances taken as a whole must lead a reasonably cautious person to believe that a crime has been committed or that contraband will be found in a particular location. 4. Under Pringle v. State, 370 Md. 525 (2002), concealed drugs in a car do not confer PAGE 9 probable cause to arrest a passenger who has no ownership interest in the vehicle. Similarly, a passenger is not guilty merely because a driver or other passenger commits a crime in the passenger s presence. United States v. Di Re, 332 U.S. 581 (1948). 5. Noting that a canine sniff in and of itself is not a Fourth Amendment search, the Court suggested that if a dog alerts to a car, thereby providing probable cause to search the car, the dog should also be directed to sniff the individual occupants. Some individualized basis for suspicion is required before a passenger may be searched. State v. Brooks, 148 Md.App. 374, 812 A.2d 342 (2002) 1. When an appellate court reviews a ruling on a motion to suppress, it views the evidence in a light favorable to the prevailing party in the trial court, and affords great deference to factual and credibility determinations of the trial judge. It is therefore frequently true that either the granting or denying of the motion would be affirmed on appeal. 2. When police respond to an emergency in their community caretaking function, they are not involved in a criminal investigation, and their conduct is not judged by the same standard as when they are involved in a criminal investigation and an emergency is alleged to justify warrantless action which would ordinarily require a warrant. While an

10 exigency may exist in both contexts, they are analytically distinct. 3. Here, the police were aware that a person in a residence called 911 and hung up, and that a return call resulted in overhearing a serious and threatening domestic argument, followed by another hang-up. Had that been all an officer knew when he arrived at the residence, he could have entered without a warrant under the community caretaking function of protecting a person from imminent danger. However, when the officer arrived, the woman believed to be in danger met him at the door, informed him that there was no longer a problem, and presented through appearance and demeanor as a person not in danger. Under these circumstances, it was within the range of the hearing judge s authority to find that it was unreasonable under the Fourth Amendment for the officer to nevertheless enter the house. 4. When police conduct is argued to be justified by the community caretaking function, the suppression hearing judge must determine whether, applying an objective reasonable person standard, the circumstances facing the officer established that the action taken by the officer was reasonable. When this inquiry requires a hearing judge to decide whether an emergency still existed or had subsided as of the moment an officer took action, this latter decision is a resolution of a question of fact, upon which an appellate court affords great deference to the trial judge s ruling under the clearly erroneous standard. 5. Even where, unlike here, a warrantless entry into a residence is proper, the scope of the officer s further activities is still subject to scrutiny. If information inside of the house presents itself which establishes that any exigency no longer exists, the officer has no basis for continuing to search. SENTENCING Mateen v. Galley, 146 Md.App. 623, 807 A.2d 708 (2002) Mateen received a sentence of 50 years for first-degree murder, which the trial judge upon inquiry by the Parole Commission clarified to mean life with all but 50 years suspended. In a habeas corpus proceeding, he challenged what he contended was an illegal upward modification of his sentence, as well as the Governor s policy not to consider lifers for parole a policy which affects classification and program eligibility in the prison as well as the release date. Held: 1. A substantively illegal sentence may be redressed on appeal or motion to correct illegal sentence. On the other hand, asserted errors by the DOC or Parole Commission must be made the subject of a civil habeas corpus proceeding. A ruling on a habeas petition may be appealed where the writ is sought for any purpose other than to challenge the legality of a conviction of a crime or sentence. A challenge to confinement, as opposed to the initial legality of a conviction or sentence, can be PAGE 10 litigated in a habeas proceeding and an appeal taken from an adverse ruling. Mateen is challenging his confinement; an appeal, therefore, is available. 2. A cognizable-in-habeas and ultimately appealable issue arises when an inmate claims that his sentence is ambiguous and the DOC is interpreting it too harshly, and the DOC obtains from the sentencing judge a post hoc, ex parte explanation of what the judge actually intended. 3. Habeas relief is available where an inmate is not claiming a right to immediate release, but to entitlement to a hearing (such as a parole hearing) which may result in earlier release. Both immediate release and such a hearing are appropriate forms of relief to be sought through the writ of habeas corpus. 4. Where there is ambiguity in a sentence pronounced by a trial judge, the defendant is entitled to the more lenient possible construction. Thus, the Court assumed (in the absence of a transcript) that Mateen at one point was sentenced to 50 years and not life suspend all but 50. However, a sentence of a flat term of years for firstdegree murder is illegal the judge must impose a life sentence, although some of it may be suspended. 5. A judge may correct an illegal sentence at any time, even without a motion by a party. Rule 4-345(a). If the earlier sentence was illegally lenient,

11 the judge does not violate the usual prohibition upon upward modifications by revising the sentence to bring it within the permissible legislated range. 6. An illegal sentence is to be contrasted with an erroneous or mistaken, but legal sentence. While an illegal sentence may be stricken and a different sentence substituted at any time, a legal but mistaken sentence may not be modified upward after sentence has been pronounced and the defendant has left the courtroom. 7. The State has a right of appeal from an illegally lenient sentence. 8. Even an illegal sentence may only be corrected at a hearing in open court of which the defendant has notice and an opportunity to be heard. 9. A change in parole commission policy which has the effect of depriving an inmate of a possibility of parole which existed when the crime was committed constitutes an unlawful ex post facto law. Knox v. Lanham, 895 F.Supp. 750 (D. Md. 1995). 10. A governor s policy of not paroling lifers is not an invalid ex post facto law. Lomax v. Warden, 356 Md. 569 (1999). Nevertheless, the Parole Commission is obligated by law to work up individual cases and make recommendations without regard for any such policy. This means that the commission must afford meaningful consideration to a lifer s possibility of parole, as opposed to a rubber stamp denial based upon a current governor s current policy. Meaningful consideration, in turn, means taking into account the factors listed in applicable statutes and regulations. 11. An inmate s security classification and eligibility for work release and family leave are matters of prison administration. They do not involve vested rights that the courts will enforce. STATUTES Starkey v. State, 147 Md.App. 700, 810 A.2d 542 (2002) PAGE 11 In some instances, where a specific act is proscribed by both a specific statute covering only that act and a more general statute covering that act and others, the State is obligated to proceed under the specific, even if it limits the potential penalty. State v. Ghajari, 346 Md. 101 (1997). Held: Where the act alleged is fellatio, the State is not limited to proceeding under the perverted practices statute, Art. 27, 554, and precluded from proceeding under the more general sexual offense statutes, because the perverted practices statute is not limited to fellatio. WIRETAPPING Anderson v. State, 372 Md. 285, 812 A.2d 1016 (2002) Section (c)(2) of the Courts Article permits a warrantless intercept of a wire, oral, or electronic communication by a police officer where a party to the communication consents and the officer is investigating one of several enumerated offenses. The Court in this case left open, but in footnote 4 discussed, the officer s requisite level of certainty that one of the enumerated crimes has been committed: must he have a good faith belief, reasonable suspicion, probable cause, or some other level of knowledge? The footnote collects outof-state authority on the issue. UPCOMING MEETINGS: SAVE THESE DATES: TUESDAY, APRIL 8, 2003, Rocky Run Tap & Grill, Columbia, MD TUESDAY, JUNE 10, 2003, LOCATION TBA TUESDAY, SEPTEMBER 9, 2003, LOCATION TBA

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