Maryland Criminal Defense Attorneys Association Newsletter

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1 Maryland Criminal Defense Attorneys Association Newsletter March/April 2002 MCDAA CLE HIGHLIGHTS On June 1, MCDAA hosted a successful CLE at the University of Maryland Technology Center in Catonsville, MD. Again, MCDAA was fortunate to draw upon the many experienced and dedicated attorneys from our membership to provide an informative and useful CLE program. MCDAA was honored to have as speakers, Nancy Forster of the appellate division, Public Defenders Office, Leonard Stamm, Gary Bernstein, Leonard Shapiro, Anne Albright, Raphael Santini, John Salvatore, and Larry Nathans. Many thanks goes to the newest member of the executive board, Chris Flor, who chaired the CLE organizing committee. Nancy Forster highlighted recent appellate cases from Maryland and the Supreme Court. Her presentation, entitled The Good, The Bad, and The Ugly, reviewed cases that are both good and bad from the Defense point of view, and also reviewed pending cases in the Maryland Appellate Courts and Supreme Court. She reviewed 40 of the most pressing cases including Drury v. In This Issue MCDAA CLE Highlights.. 1 DWI Update. 1 Summaries of Maryland... 3 Next meeting: Sept. 10 Cesar s Den State, which is addressed in the Summaries of Maryland on page 3 under the heading Confessions. Her presentation was very helpful and easily could have been a CLE by itself. Following Nancy was the DWI trio of Leonard Stamm, Gary Bernstein, and Leonard Shapiro. The provided a shortened summary of their MICPEL DWI presentation. It was extremely helpful to those in attendance and as a benefit, the members were provided with a binder containing Drunk Driving Defense Secrets. Even though it only summarized the many topics from the MICPEL seminar, it was very helpful and reminded everyone of the various tactics available in DWI defense. The CLE provided members with the opportunity to select the final CLE from three separate presentations: 1. How to Run Your Shop Profitably, which was chaired by a panel of experienced practitioners: Anne K. Albright, Raphael J. Santini, and John R. Salvatore. 2. Power in the Courtroom: Using PowerPoint. and 3. Creative Attacks on the Federal Sentencing Guidelines, by Larry Nathans. The panel on How to Run Your Shop Profitably provided a top ten list to making money while running your shop. They deserve repeating here. 1) Get paid first, but if you don't, collect your fee; 2) Set a separate investigation budget; 3) Do not give free consultations; 4) Do not quote fees over the telephone; 5) Give out extra business cards; 6) Prepare a written fee agreement, always; 7) Don't take checks the day before trial; 8) Be realistic in setting your fee - assume the case will go to trial; 9) Set up office efficiently - once you make money, don't give it DWI Update Sasha Natapoff Assistant Federal Public Defender Baltimore, Maryland CHALLENGING EXPERT OPINION IN DWI CASES: US v. HORN Recent developments in federal law concerning the admissibility of expert testimony have opened up new opportunities for defense challenges. New case law and amendments to the federal rules have made it easier to raise reliability challenges to expert testimony, thereby forcing the government to prove that the principles relied on by their expert witnesses are scientifically reliable. Two judicial decisions set the tone for the challenges. In Daubert, the Supreme Court held that in order to admit scientific testimony, courts must consider whether the evidence is susceptible of testing, whether it has a known error rate, whether it has been subject to peer review, and whether it is generally accepted by the relevant scientific community. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, (1993). The Court subsequently extended the Daubert test to cover not just scientific but all technical and specialized expertise or knowledge. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). Similarly, the 2000 amendments to Rule 702 of the Federal Rules of Evidence now require that all expert testimony scientific, technical, or other specialized knowledge pass a threshold test of inherent reliability. These developments enable defendants to demand an independent, judicial reevaluation of the reliability of a wide range of government-

2 PAGE 2 DWI UPDATE sponsored expertise. THE UNITED STATES v. HORN DECI- SION The Daubert/Kumho reliability test was recently applied by the United States District Court for the District of Maryland to evaluate the admissibility of Field Sobriety Tests (FSTs) in drivingwhile-intoxicated cases. Magistrate Judge Paul W. Grimm excluded police expert testimony regarding the defendant s performance on FSTs, finding that the science underlying the FSTs to be unreliable. United States v. Horn, 185 F.Supp.2d 530 (D. Md. 2002). In an extensive, 70-page opinion, Judge Grimm held that FSTs are specialized or technical knowledge to which Daubert, Kumho, and Fed. Rule of Evid. 702, must be applied. As in the typical DWI case, the government had sought to introduce FSTs consisting of three psychomotor tests the walk-and-turn, the oneleg-stand, and the horizontal gaze nystagmus test in an attempt to establish Horn s impairment from alcohol. Judge Grimm heard live testimony from four experts, and reviewed the National Highway and Transportation Safety Administration (NHTSA) studies that, for twenty-five years, had been relied on by courts to establish the validity of the FSTs. Grimm concluded that those studies, which purport to validate the FSTs, did not satisfy the reliability threshold established by Rule 702 and Daubert. Judge Grimm further held that police officers cannot testify as experts regarding a person s performance on FSTs because the scientific principles underlying their expertise is faulty. Instead, he held that police officers can only testify as lay witnesses to their physical observations of performance. Accordingly, if a police officer administers the one-leg-stand or the walk-and-turn tests, he or she can subsequently testify only how long the person remained balanced on one leg, whether he or she put their foot down or stumbled, and other such personal observations. With respect to the horizontal gaze nystagmus (HGN) test, Judge Grimm found that properly trained officers can testify to their personal observations of nystagmus, while courts can take judicial notice of the scientific fact that HGN correlates with the presence of alcohol in the bloodstream (although not impairment), as well as the fact that there are numerous other causes of HGN besides alcohol. The officer cannot testify that the person missed any clues, that they passed or failed a test, or make any expert assertions about the likelihood that the person was impaired. Of particular interest is Judge Grimm s treatment of the general acceptance prong of the Daubert test. Grimm 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 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: Laura Kelsey Rhodes Phone: President Elect: Larry Nathans Phone: First Vice President: Lenny Stamm Phone: Second Vice President: Timothy Mitchell Phone: Secretary: John Salvatore Phone: Treasurer: Carroll McCabe Phone:

3 PAGE 3 Michael R. Braudes Maryland Public Defender Appellate Division ISSUES OF CURRENT INTEREST 1. The line separating a Terry stop from an arrest often determines whether the police possessed sufficient information to justify a particular intrusion into a suspect s expectation of privacy. That topic was extensively discussed by the Court of Appeals in In re: David S., summarized under ARREST and SEARCH & SEIZURE. 2. A display of physical evidence to a suspect in custody, having no purpose other than to elicit an incriminating response, qualifies as interrogation for Miranda purposes. Drury v. State, under CONFESSIONS. 3. Concealing in one s home a weapon which it is lawful to possess is not a crime. And while it is possible to commit the offense of carrying a weapon openly with intent to injure in one s home, the State must prove that the weapon was deployed in that fashion. In and of itself, the use of the weapon is not sufficient to establish that offense. Thomas v. State, under DEADLY WEAPON OFFENSES. 4. Maryland has a new leading case on the concept of State action required for a violation of the Fourth Amendment. See State v. Collins, under SEARCH & SEIZURE, in which a police officer s assistance was deemed sufficiently involved to bring the Constitution to bear in assessing whether a trial court must suppress items caused to be seized by private bail bond agents. 5. A valuable primer in the various theories recognized by Maryland law for attacking the admissibility of a suspect s statement to police was provided by Facon v. State, summarized under CONFESSIONS. Newer lawyers should be aware that Drury discusses the basics of a Miranda theory, and Facon the various forms of an argument that a confession was involuntary. ARREST In re: David S., 367 Md. 523, 789 A.2d 607 (2002) Police in a high-drug area observed David walking with Hall, a suspected drug dealer. Acting furtively, they approached an abandoned building. David walked behind the building and then reemerged, while Hall crouched down and looked around. David showed Hall an object, and then stuffed the object into the front waistband of his trousers. An experienced narcotics officer, concluding that the object was a gun, had the two suspects stopped. Three officers with drawn guns forced the two to lay on the ground, where they were handcuffed. An officer rolled David onto his back and touched the area of his waistband, feeling a hard object. The officer, believing it was a gun, pulled out David s tucked-in shirt, exposing a black object. He noted the object was contained in a plastic bag, opened the bag, and found cocaine. Held: 1. A true investigative detention under Terry v. Ohio was justified. The police had reasonable and articulable suspicion that David had burglarized the building, with Hall serving as lookout. 2. Whether an accosting stops being an investigatory detention and qualifies as an arrest requiring probable cause turns upon the totality of the circumstances. Relevant factors include whether the police produced weapons, whether the suspects were handcuffed, the extent to which the information known to the police creates a concern for officer safety, and the duration of the encounter. Such factors must be considered by a reviewing court in balancing a citizen s interest in avoiding an unnecessary governmental intrusion against the legitimate needs of law enforcement. Here, what the officers did constituted a legitimate Terry stop, not an arrest. On these facts, a severe degree of intrusion, including weapons, handcuffs, and a hard take-down was justified by the reasonable belief that the suspects posed a threat to officer safety. was justified once he felt a hard object which he reasonably suspected was a gun. The Fourth Amendment does not require near-certainty before such an intrusion becomes justified. 4. Nevertheless, the trial court erred in restricting cross-examination of the seizing officer at the suppression hearing. Defense counsel sought to establish that once the officer saw the plastic bag, he stopped believing that the object was a gun. The State successfully objected. The sustaining of this objection was error, because the purpose of a Terry frisk is to confirm or rule out the presence of a weapon, not to search for evidence. Had the officer ruled out the object being a weapon, he had no right to open and search the bag; the plain view doctrine was inapplicable because it was not immediately apparent to the officer that the bag contained drugs. CONFESSIONS Drury v. State, 368 Md. 331, 793 A.2d 567 (2002) A burglary was perpetrated utilizing a tire iron to gain entry, and certain magazines stolen during the incident were later recovered in a trash bag. Drury was taken into custody. Before giving him Miranda warnings, an officer showed Drury a tire iron and trash bag, stating that they would be submitted for fingerprints. Drury responded with incriminating statements. Held: The officer s conduct constituted the functional equivalent of interrogation. Therefore, the admissions were obtained in violation of Miranda. In so holding, the Court wrote: 1. The test to be applied in determining whether the police officer s statements and exhibition of the physical evidence was tantamount to interrogation is whether the words and actions of the officer were reasonably likely to elicit incriminating responses from petitioner. 2. The primary focus of the test is upon 3. The officer s lifting of David s shirt

4 DWI UPDATE PAGE 4 concluded that the self-serving validation studies conducted by NHTSA researchers did not constitute general acceptance of those tests within the relevant scientific community. This conclusion could have widespread implications in other areas where law enforcement has developed and validated a type of expertise or forensic analysis without review by a broader, more neutral scientific community. Judge Grimm s rejection of the FSTs, and his conclusion that police officers cannot testify as experts based on their NHTSA training, contradicts the longstanding conclusions of most state courts. The Horn opinion makes clear, however, that where the principles underlying expert testimony are challenged, courts should not simply rely on prior judicial acceptance of those principles, but must conduct a de novo review of reliability. It is worth noting that Daubert challenges of this type in federal court are governed by Rule 104, Fed. R. Evid., which sets the ground rules for preliminary evidentiary hearings. Because the rules of evidence themselves do not apply to such hearings, innovative arguments can be made with respect to reliability and admissibility that could not be made at trial. For example, the defense in Horn called three non-traditional experts to testify regarding the validity of the NHTSA testing procedures two employment testing experts and one clinical psychologist and submitted affidavits, law review articles, and other research materials. Under Rule 104, counsel are almost unlimited in the ability to use other disciplines to challenge the validity of expert testimony. The conclusion of the Horn decision reflects the expansiveness of the ruling: As lawyers and courts become fully aware of the relatively recent additional requirements of Kuhmo Tire and revised Rule 702, this process of reexamination can be expected to continue. It may mean, in a very real sense, that everything old is new again with respect to some scientific and technical evidentiary matters long considered settled. Alarmists may see this as undesirable, envisioning courtrooms populated by mad scientists in white lab coats and overzealous judges in black robes, busily undoing established precedent. The more probable outcome is that judges, lawyers, and expert witnesses will have to learn to be comfortable refocusing their thinking about the building blocks of what truly makes evidence that is beyond the knowledge and experience of lay persons useful to them in resolving disputes. United States v. Horn, 185 F. Supp. 2d 530, (D. Md. 2002). RECENT SIMILAR CASES Other courts have begun to take fresh looks at established areas of expert testimony. In a highly controversial decision, Judge Pollak initially excluded evidence of latent fingerprints, concluding that the underlying principles of latent fingerprint analysis were insufficiently reliable. United States v. Llera Plaza, 179 F. Supp.2d 492 (E.D. Pa. 2002), rev d by 188 F. Supp.2d 549 (E.D. Pa. 2002). Judge Pollak would have permitted the fingerprint technician to testify to her personal observations the existence of a swirl or other identifying mark but not to the ultimate, technical conclusion that the print was a match. The original decision relied on the same analysis as did Horn: where the underlying expertise is unreliable, an expert witness can only testify to their personal, physical observations without the interpretive gloss provided by the expertise. On reconsideration, however, Judge Pollak reversed himself and permitted the expert testimony. Judge Pollack decided that fingerprint analysis is not strictly scientific but a technical expertise and that therefore the general acceptance and standards within the fingerprint community, as well as the lack of documented misidentifications, provide sufficient guarantee of reliability. United States v. Llera Plaza, 188 F. Supp.2d 549, (E.D. Pa. 2002). The Ninth Circuit recently concluded that a law enforcement narcotics expert had not established the reliability of the methods used to determine the meaning of code words used in a narcotics transaction. United States v. Hermanek, 289 F.3d 1076, (9 th Cir. 2002). The Court held that although some such expert might theoretically pass muster, in this particular case the witness s years of drug-enforcement experience and his work on that particular investigation were insufficient to establish the reliability of his opinion that certain code words referred to cocaine. Likewise, in United States v. Brewer, 2002 WL (N.D. Ill. 2002), the Court excluded a handwriting comparison expert s testimony, finding that the principles underlying the expertise were insufficiently reliable. In contrast to Horn, the Court rejected the government s argument that the expert s personal observations should be admissible as lay witness testimony, finding that any handwriting comparisons would necessarily be based on scientific, technical or other specialized knowledge under Rule 701(c), Fed. R. Evid. CONCLUSION The implications of the Horn decision for DWI cases are obviously broad. Without the scientific gloss of the NHTSA testing and evaluation, field sobriety tests are simply physical exercises. A person s performance, or non-performance, on the tests should have no more evidentiary weight than the person s inability to rub their stomach and pat their head at the same time. More fundamentally, the Horn opinion and other comparable cases makes clear that advocates are well within their rights to ask courts to revisit seemingly settled questions of admissibility. Under this view, potential future challenges are nearly limitless: they can include informant narcotics testimony, interstate commerce experts, computer experts, pornography experts, or financial and securities experts. As Judge Grimm put it, everything old is new again. Sasha Natapoff successfully represented Sgt. Eric Horn in the United States District Court for the District of Maryland. She is an assistant Federal Public Defender in Baltimore.

5 PAGE 5 the perceptions of the defendant, although the officer s intent bears upon whether his conduct is reasonably likely to elicit an incriminating response. 3. It is relevant that the officer was not following routine booking procedures or complying with other obligations created by rule, such as revealing to a suspect that which was taken from his home during a search and seizure. To the contrary, the officer indicated that Drury had been brought to the police station for the purpose of questioning. Facon v. State, #1789 COSA 2000, 2/5/02 (Hollander) 1. The voluntariness of a confession is tested under a totality of the circumstances approach. The totality analysis encompasses several factors, including the defendant s age and education; the defendant s physical condition and mental capacity; the length and location of the interrogation; the persons present at the interrogation; the use of physical or psychological intimidation or mistreatment of the suspect; whether the defendant was given Miranda warnings; and the use of force, undue influence, or improper promises by the police to induce the statement. Slip op. at A due process violation in the obtaining of a confession requires state action; coercive police activity is therefore a necessary element of such a violation. Colorado v. Connelly, 479 U.S. 157 (1986). 1) a police officer... promises or implies to a suspect that he or she will be given special consideration from a prosecuting authority or some other form of assistance in exchange for the suspect s confession, and 2) the suspect makes a confession in apparent reliance on the police officer s statement. Slip op. at Delay in presentment to a commissioner is only one factor in determining whether a statement is voluntary. Hamwright v. State, 142 Md. App. 17, 787 A.2d 824 (2001) In the course of rejecting the argument of a 15 year old defendant that his confession was rendered involuntary by a lengthy interrogation session during which he was shackled, the court emphasized that the suspect never asked for anything (food, drink, contact with the outside world, etc.) which was refused. The Court noted that under McIntyre v. State, 309 Md. 607 (1987), the totality of the circumstances test of voluntariness applies to juveniles as well as adults. DEADLY WEAPON OFFENSES Thomas v. State, 143 Md.App. 97, 792 A.2d 368 (2002) 1. The offense of carrying a weapon openly with intent to injure may be committed in one s own home with weapons that are found there, so long as the State establishes the open carrying of the weapon. In and of itself, the use of the weapon does not establish that it was carried openly with the requisite intent. A.2d 836 (2001) 1. McDonald, 19 years old, was convicted under Art. 27, 445(e)(1), which proscribes possession of a regulated firearm by a person who is under 21 years of age. For purposes of the regulated firearm subtitle generally, 441(o) define minor as a person under 18. Upholding the conviction, the Court wrote that because the statute under which McDonald was charged contains its own age provision, that provision governs. The fact that a different age limit applies more generally to the subtitle creates no ambiguity which would have to be resolved in the defendant s favor. In so holding, the Court applied the rules of statutory construction that the intent of the legislature is generally ascertained from the plain language of the statute, and that bold-print captions and headings in the Code (here, including the word minors ) are for guidance only, and do not form part of the statute itself. 2. The evidence was legally sufficient to establish defendant s constructive possession of the gun where it was found on the rear floor of a motor vehicle; the defendant was the only person in the rear seat; the gun was partially visible; and the defendant appeared to be attempting to conceal something between his feet. Among the relevant factors in assessing constructive possession are the proximity between defendant and contraband, and whether the item in question is within the defendant s view. EVIDENCE 3. Under Maryland s common-law inducement rule, discussed in depth in Winder v. State, 362 Md. 275 (2001), a confession is inadmissible if: 2. On the other hand, the concealing of lawful weapons in one s own home is not a crime. In re Colby H., 362 Md. 702 (2001). McDonald v. State, 141 Md. App. 371, 785 Thomas v. State, 143 Md.App. 97, 792 A.2d 368 (2002) Defendant was arrested for having, on July 21, 2000, killed his girlfriend by inflicting

6 PAGE 6 numerous blunt force injuries. He told the police that they had been fighting, that she had injured him with a knife and hammer, and that her major injury was incurred when she fell and injured herself. The defense at trial unsuccessfully offered evidence that in 1998, the victim had been charged with assaulting the defendant, and that while she was not convicted there was a stay-away order entered against her. In excluding this evidence, the trial judge found that selfdefense had not been generated, because the defendant never said that he struck the victim out of fear for his own safety. Upholding the trial court s ruling, the Court wrote: 1. Regarding defense efforts to adduce this evidence through crossexamination, the defense would to some extent have had a constitutional right to adduce impeaching evidence, but in large measure the scope of cross-examination is within the discretion of the trial judge. 2. Similarly, the determination of relevance, which the Court defined in some detail, is a discretionary call for the trial judge. 3. Once a defendant establishes an evidentiary foundation that he acted in self-defense, evidence of the victim s violent character becomes relevant. Here, that foundation was not established. Perfect self-defense, which is a complete defense to assaultive crimes, consists of the following elements: (1) The accused must have had reasonable grounds to believe himself in apparent imminent or immediate danger of death or serious bodily harm from his assailant or potential assailant; (2) The accused must have in fact believed himself in this danger; (3) The accused claiming the right of self-defense must not have been the aggressor or provoked the conflict; and (4) The force used must have not been unreasonable and excessive, that is, the force must not have been more force than the exigency demanded. Imperfect self-defense, which negates malice and therefore reduces murder to manslaughter, is comprised of the same elements, except the perception of danger, or of the need to use a particular level of force, need not be objectively reasonable. Here, there was no evidence that Thomas perceived himself to be in danger, or used force as a result of such a perception. Therefore, even if the stay-away order had evidenced a relevant character trait of the victim in a self-defense case, the failure to generate self-defense rendered the evidence inadmissible. HOMICIDE Thomas v. State, 143 Md.App. 97, 792 A.2d 368 (2002) 1. Where a defendant is charged with murder, and wishes to preserve for appellate review the trial court s failure to propound a manslaughter instruction, he must except to the absence of such an instruction after the jury has been instructed. 2. Voluntary manslaughter is defined as an intentional homicide, done in a sudden heat of passion, caused by adequate provocation, before there has been a reasonable opportunity for the passion to cool. Slip op. at 18, quoting Selby v. State, 361 Md. 319, 332 (2000). Involuntary manslaughter is an unintentional killing done without malice, by doing some unlawful act endangering life, or in negligently doing some act lawful in itself, or by the negligent omission to perform a legal duty. Id. Held: Neither form of manslaughter was generated where the defendant stated that he and the victim had argued; she had attacked him; that the fatal blow was struck by the victim falling and striking her head; and that he only struck her after she was unconscious and for the purpose of arousing her. JUVENILE PROCEEDINGS Hamwright v. State, 142 Md. App. 17, 787 A.2d 824 (2001) Where a person age 14 or older is alleged to have committed a crime which if committed by an adult would carry a potential sentence of life imprisonment or death, the juvenile court does not have jurisdiction over that offense, as well as all other charges against the child arising out of the same incident (e) of the Courts Article (excepting charges which have been reverse-waived to juvenile court under Art. 27, 594A.) Hamwright, 15 years old, was charged with first degree sexual offense and attempted first degree sexual offense, which carry potential life sentences. At issue was whether a series of lesser crimes arose out of the same incident, and were therefore properly tried in the adult circuit court. Over a two hour period, Hamwright and two others committed a carjacking, forced a female occupant of the car to accompany them as they drove the car, robbed that person, committed sexual offenses against her, and made two stops at convenience stores where they committed additional robberies. Held: the word incident in the statute includes the definition, A series of acts committed in close proximity or a chain of events forming a part of a schematic whole. (Quoting Webster s Third New International Dictionary.) Under this analysis, all of the crimes involving the initial victim (kidnapping, robbery, use of a handgun, and the flagship sexual assaults) were all sufficiently connected, despite the fact that some happened inside the car while others occurred outside of the car minutes later.

7 PAGE 7 Further, the carjacking from the primary victim s companion, who was forced to run off, was also part of the same incident. The robberies at the two stores, however, were not part of the same incident. The primary victim had already been released at that point, and was not further harmed by the robberies. The circuit court accordingly lacked jurisdiction to try the charges arising out of those robberies. (Note: The Court went on to find no error in the trial court s refusal to sever the robberies from the remaining offenses, because the evidence tended to show that whomever committed the robberies also committed the remaining crimes. One would think, however, that that same reasoning would establish that the jurisdictional error in trying the robberies at all would have been prejudicial as to the remaining crimes, compelling reversal of all.) MOTIONS Folk v. State, 142 Md.App. 590, 791 A.2d 152 (2002) On Day 1, defendant was convicted and sentenced. On Day 3, he noted an appeal to the Court of Special Appeals. On Day 9, he timely filed a motion for new trial under Rule 4-331(a), allowing for such a motion to be filed within 10 days of verdict. Ten weeks later, new counsel filed a supplemental motion for new trial, adding a claim of ineffective assistance of trial counsel. Three weeks after that, the trial court ruled that it was divested of jurisdiction to hear the motion for new trial by the pendency of an appeal. Finding error, the Court wrote: 1. In the usual situation where a motion for new trial is filed before an appeal is noted, Rule 8-202(b) mandates that the appeal should be noted within 30 days of the later of judgment or the disposition of the motion for new trial by denial or withdrawal. 2. As a general matter, the pendency of an appeal does not divest a trial court of its fundamental jurisdiction to act, including to take action upon a motion for new trial, so long as its ruling does not interfere with the subject matter of a pending appeal or the ability of the appellate court to resolve the issue before it. Thus, a denial of a motion for new trial during the pendency of an appeal will always be permissible, while the granting of such a motion bears the potential for improperly interfering with the ability of the appellate court to resolve the issues before it. 3. Where an appeal is filed prior to resolution of a motion for new trial, it is held in abeyance until that motion is ruled on. At that point, the appellant has a full opportunity to raise any appropriate issues in the appellate court. On the facts of this case, the Court held that the trial judge is free to rule in either direction on the motion, regardless of the appeal. If the motion is denied, the appeal may proceed on any appropriate issues. If it is granted, the defendant will simply dismiss the appeal and proceed to the new trial. 4. The grounds upon which a motion for new trial under Rule 4-331(a) may be based are virtually unlimited. While claims of ineffective assistance of counsel are usually best raised in post-conviction proceedings, they are also cognizable as part of a motion for new trial. It is, however, within the trial court s discretion whether to conduct a hearing upon the motion. ROBBERY Facon v. State, #1789 COSA 2000, 2/5/02 (Hollander) 1. Effective 10/1/00, Art. 27, 486, was amended to provide that a) the intent element requires proof of intent to deprive another of property, and b) that the offense includes obtaining the service of another by force or threat of force. 2. A completed robbery was committed where the defendant confronted two cashiers with a handgun, the cashiers were unable to open the cash register, the defendant grabbed a pack of cigarettes on his way out of the store after having put the gun back in his pants, and one of the cashiers testified that he did not try to stop the taking of the cigarettes because of the defendant s possession of the gun. 3. For robbery to occur, the intent to steal must accompany the taking. The exercise of force, however, may occur earlier and for a different purpose, such as sexual assault. If the defendant takes advantage of the effect of the application of force to take property with the intent to steal, robbery is committed. 4. Under Borchardt v. State, 367 Md. 91 (2001), the unit of prosecution for robbery is the victim from whose person or possession property is taken by force or intimidation. Therefore, a taking of one item, by force, from the presence of two intimidated persons, constitutes two robberies. Unlike theft, where a single taking which victimizes several persons constitutes one offense under the single larceny rule, the gravamen of robbery is the assault. Therefore, the number of persons victimized establishes the number of robberies. (In taking this approach, the Court wrote that excessive punishment for a single criminal episode is not a great worry because The option for concurrent sentences, and the rule of lenity, protect against unreasonable multiplication of punishment. ). SEARCH & SEIZURE In re: David S., 367 Md. 523, 789 A.2d 607 (2002)

8 PAGE 8 Police in a high-drug area observed David walking with Hall, a suspected drug dealer. Acting furtively, they approached an abandoned building. David walked behind the building and then reemerged, while Hall crouched down and looked around. David showed Hall an object, and then stuffed the object into the front waistband of his trousers. An experienced narcotics officer, concluding that the object was a gun, had the two suspects stopped. Three officers with drawn guns forced the two to lay on the ground, where they were handcuffed. An officer rolled David onto his back and touched the area of his waistband, feeling a hard object. The officer, believing it was a gun, pulled out David s tucked-in shirt, exposing a black object. He noted the object was contained in a plastic bag, opened the bag, and found cocaine. Held: 1. A true investigative detention under Terry v. Ohio was justified. The police had reasonable and articulable suspicion that David had burglarized the building, with Hall serving as lookout. 2. Whether an accosting stops being an investigatory detention and qualifies as an arrest requiring probable cause turns upon the totality of the circumstances. Relevant factors include whether the police produced weapons, whether the suspects were handcuffed, the extent to which the information known to the police creates a concern for officer safety, and the duration of the encounter. Such factors must be considered by a reviewing court in balancing a citizen s interest in avoiding an unnecessary governmental intrusion against the legitimate needs of law enforcement. Here, what the officers did constituted a legitimate Terry stop, not an arrest. On these facts, a severe degree of intrusion, including weapons, handcuffs, and a hard take-down was justified by the reasonable belief that the suspects posed a threat to officer safety. 3. The officer s lifting of David s shirt was justified once he felt a hard object which he reasonably suspected was a gun. The Fourth Amendment does not require nearcertainty before such an intrusion becomes justified. 4. Nevertheless, the trial court erred in restricting cross-examination of the seizing officer at the suppression hearing. Defense counsel sought to establish that once the officer saw the plastic bag, he stopped believing that the object was a gun. The State successfully objected. The sustaining of this objection was error, because the purpose of a Terry frisk is to confirm or rule out the presence of a weapon, not to search for evidence. Had the officer ruled out the object being a weapon, he had no right to open and search the bag; the plain view doctrine was inapplicable because it was not immediately apparent to the officer that the bag contained drugs. State v. Collins, 367 Md. 700, 790 A.2d 660 (2002) One element of a violation of the Fourth Amendment is the presence of state action. On the following facts, the Court found that state action was established. Two bail bond agents went to a residence in search of a defaulting felon, one Estep. They were accompanied by a police officer pursuant to a policy under which an officer would accompany bond agents in such circumstances for their protection. The officer knocked on the door. Collins emerged, closed the door, and stated that Estep had not been there for two weeks. The agents stated that they were going to enter the residence regardless of Collins refusal to admit them. A second resident emerged, and consented to the bond agents entry. This resulted in an odor of burnt marijuana emanating from the residence, and one of the agent s report that she observed 15 marijuana plants inside. Collins, carrying a bag containing marijuana and paraphernalia, attempted to run away but was apprehended. A warrant was obtained, and further evidence seized from the residence. The trial court denied a motion to suppress in part because the bond agents were not state actors. In finding sufficient state action to require reconsideration of the Fourth Amendment merits, the Court wrote: 1. The mere presence of police, or an officer s as a recipient of items seized by a private party, does not establish state action. The question is whether the private party is an agent or instrument of the state. 2. Although bail bond agents are regulated by the government and have broad arrest powers vis-a-vis their principals, that does not alone render them state agents for Fourth Amendment purposes. 3. Numerous courts have focused upon a) the extent of a government entity s instigation of or participation in the private party s conduct, and b) whether the private party intended to advance his own ends or to assist the government. 4. Here, the actions of the officer were decisive. His agency provided standby services for bail bond agents. He physically accompanied the agents, personally knocked on the door, and personally conversed with Collins, asking if we could enter and look for Estep. The officer said nothing to create an impression that he was merely present to lend assistance to private actors. When the agents stated that they planned to enter with or without consent, a reasonable person would conclude that they were working hand-inhand with the police officer. After an agent entered, the officer remained outside the door, smelling an increasingly strong odor of marijuana and calling in other officers when the agent reported the presence of marijuana plants within. Under these circumstances, the officer s actions were so intertwined with those of the otherwise-private bail agents that

9 PAGE 9 State action was established for Fourth Amendment purposes. 4. Standing alone, the presence of the target of the investigation during the search does not justify the patdown of others who are present. apparent imminent or immediate danger of death or serious bodily harm from his assailant or potential assailant; Dashiell v. State, 143 Md.App. 134, 792 A.2d 1185 (2002) Police executing a search warrant at an apartment encountered defendant in the living room. Although she was not the target of the search, pursuant to police department policy she was patted down for weapons. The frisking officer felt a plastic bag believed to contain cocaine. When a second officer mentioned to defendant that the earlier officer had found something, she replied Yes, the dope. The officer then seized the bag, which at this point was hanging out of a pocket. In finding no Fourth Amendment violation in the seizure of the drugs, the Court wrote: 1. In the course of executing a search warrant, police are permitted to detain persons present. Michigan v. Summers, 452 U.S. 692 (1981). 2. They are not, however, permitted to automatically frisk everyone present. Rather, The constitutionality of a pat-down depends on the particular facts of each case. 3. Persons present at a private residence are more likely to be involved in criminal acts centered in that residence than persons present in an establishment open to the public. Here, Dashiell was present at a private residence where substantial drug dealing occurred and guns were known to be stored. Moreover, police involved in a search are endangered by the duration of their stay and their focus upon the search rather than persons present. The obtention of a no-knock warrant also implied the existence of an exigency dangerous to the police. Taken together with the general relationship between guns and drugs, these facts rendered the pat-down of Dashiell for officer safety objectively reasonable. SELF-DEFENSE Thomas v. State, 143 Md.App. 97, 792 A.2d 368 (2002) Defendant was arrested for having, on July 21, 2000, killed his girlfriend by inflicting numerous blunt force injuries. He told the police that they had been fighting, that she had injured him with a knife and hammer, and that her major injury was incurred when she fell and injured herself. The defense at trial unsuccessfully offered evidence that in 1998, the victim had been charged with assaulting the defendant, and that while she was not convicted there was a stay-away order entered against her. In excluding this evidence, the trial judge found that selfdefense had not been generated, because the defendant never said that he struck the victim out of fear for his own safety. Upholding the trial court s ruling, the Court wrote: 1. Regarding defense efforts to adduce this evidence through crossexamination, the defense would to some extent have had a constitutional right to adduce impeaching evidence, but in large measure the scope of cross-examination is within the discretion of the trial judge. 2. Similarly, the determination of relevance, which the Court defined in some detail, is a discretionary call for the trial judge. 3. Once a defendant establishes an evidentiary foundation that he acted in self-defense, evidence of the victim s violent character becomes relevant. Here, that foundation was not established. Perfect self-defense, which is a complete defense to assaultive crimes, consists of the following elements: (1) The accused must have had reasonable grounds to believe himself in (2) The accused must have in fact believed himself in this danger; (3) The accused claiming the right of self-defense must not have been the aggressor or provoked the conflict; and (4) The force used must have not been unreasonable and excessive, that is, the force must not have been more force than the exigency demanded. Imperfect self-defense, which negates malice and therefore reduces murder to manslaughter, is comprised of the same elements, except the perception of danger, or of the need to use a particular level of force, need not be objectively reasonable. Here, there was no evidence that Thomas perceived himself to be in danger, or used force as a result of such a perception. Therefore, even if the stay-away order had evidenced a relevant character trait of the victim in a self-defense case, the failure to generate self-defense rendered the evidence inadmissible. SENTENCING State v. Stewart, 368 Md. 26, 791 A.2d 143 (2002) 1. The Eighth Amendment prohibition upon cruel and unusual punishment is not violated by the imposition of 25 years without parole under Art. 27, 286(d), which requires that a person convicted of a felony-level drug offense have previously been convicted of two other such offenses and served at least 180 days as a result of one of the prior convic-

10 tions. This is so even where the defendant is a small-time dealer whose offenses have not involved violence or large quantities of CDS. In so holding, the Court noted that it is only where a sentence is grossly disproportionate to the crime that an extended proportionality analysis is required under Solem v. Helm, 463 U.S. 277 (1983); that analysis would call for a comparison between the sentence imposed and that which could be imposed for other crimes in Maryland and for the same offense in other jurisdictions. Stressing the societal harm caused by drug trafficking, and the clear justification for imposing harsher sentences upon repeat offenders, the Court concluded that the sentence is not grossly disproportionate. 2. Nothing in Apprendi v. New Jersey, 530 U.S. 466 (2000), requires that the issue of whether the defendant served the requisite 180 days pursuant to a previous conviction must be submitted to a jury at trial. The fact of a prior conviction is a well-established exception to Apprendi s requirement that certain sentencing-enhancing facts must be proved to a jury beyond a reasonable doubt. Matters closely related to the fact of a prior conviction, including the sentence served, may also be proved to the judge at sentencing Apprendi does not apply. Facon v. State, #1789 COSA 2000, 2/5/02 (Hollander) When a defendant is convicted of more than one qualifying crime of violence as the result of a single incident, only one sentence may be imposed under 643B(c). Slip op. at 54. Hamwright v. State, 142 Md. App. 17, 787 A.2d 824 (2001) A sentencing judge may take into consideration reliable evidence of a defendant s conduct underlying charges of which he was acquitted. Henry v. State, 273 Md. 131 (1974). Therefore, the sentencing judge did not err in considering all facets of a crime spree in imposing sentence, although it turned out that the court did not have jurisdiction over some of the offenses committed during that spree, which required that those convictions be reversed. The sentences imposed upon the offenses which did come within the court s jurisdiction were untainted by the reliably-proven facts underlying the offenses which did not. STATUTES McDonald v. State, 141 Md. App. 371, 785 A.2d 836 (2001) 1. McDonald, 19 years old, was convicted under Art. 27, 445(e)(1), which proscribes possession of a regulated firearm by a person who is under 21 years of age. For purposes of the regulated firearm subtitle generally, 441(o) define minor as a person under 18. Upholding the conviction, the Court wrote that because the statute under which McDonald was charged contains its own age provision, that provision governs. The fact that a different age limit applies more generally to the subtitle creates no ambiguity which would have to be resolved in the defendant s favor. In so holding, the Court applied the rules of statutory construction that the intent of the legislature is generally ascertained from the plain language of the statute, and that bold-print captions and headings in the Code (here, including the word minors ) are for guidance only, and do not form part of the statute itself. 2. The evidence was legally sufficient to establish defendant s constructive possession of the gun where it was found on the rear floor of a motor vehicle; the defendant was the only person in the rear seat; the gun was partially visible; and the defendant appeared to be attempting to conceal something between his feet. WITNESSES PAGE 10 Among the relevant factors in assessing constructive possession are the proximity between defendant and contraband, and whether the item in question is within the defendant s view. Facon v. State, #1789 COSA 2000, 2/5/02 (Hollander) 1. Where a defendant moves in limine to exclude evidence of prior convictions for impeachment purposes, and the motion is denied, it is necessary to object when the evidence is actually offered in order to preserve the issue for appellate review. (Note: The issue is also waived if the defendant elects not to testify, even if that election is prompted by the in limine ruling.) 2. Under Rule 5-609, a witness s prior conviction is admissible to impeach if a) it is within the eligible universe of prior convictions, b) it is less than 15 years old and has not been reversed or is presently on appeal, and c) the probative value is not outweighed by unfair prejudice. In weighing prejudice against probative value, relevant considerations include (1) the impeachment value of the prior crime; (2) the point in time of the conviction and defendant s subsequent history; (3) the similarity between the past crime and the charged crime; (4) the importance of the defendant s testimony; and (5) the centrality of the defendant s credibility.

11 MCDAA CLE HIGHLIGHTS PAGE 11 away in unnecessary overhead 10) Better not to do the work and not get paid, than to do the work and not get paid. The final presentation featured Guest Speaker Billy Murphy, who was gracious to fill in for the guest speaker who suddenly became ill, and was unable to attend. Finally, many thanks to Sharon Kneebone and Heather Waldschmidt who tirelessly organized the program and insured that we were provided with a successful program. Also, for the first time, we present pictures in the Newsletter of the CLE program. Sharon Kneebone kindly provided the pictures for the Newsletter. -Ed.

12 Wanted: New Members Membership in MCDAA is growing every day. Help spread the word by encouraging your colleagues in criminal defense to join. Membership Application NAME: ADDRESS: FIRM: COUNTY: CITY: ZIP CODE: PHONE: (OFFICE): FAX: ADDRESS: COURT OF APPEALS DATE OF ADMISSION: Check one: Active Criminal Defense Attorney Law Student University Date of Graduation: Judicial Officer (Judge, Magistrate, Master, Commissioner). Title Court Date Signature Don t Miss out on these Exclusive Member Benefits! Our Bi-monthly Newsletter and our Listserve Sustaining Membership Dues...$ per member Regular Membership Dues 1-5 years in Practice...$75.00 per member More than 5 years in Practice...$90.00 per member Full Time Public Defender... $40.00 per member Student...$25.00 per member Please return application and payment to: MCDAA, c/o Heather R. Waldschmidt, Executive Director 720 Light St. Baltimore, MD

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