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Law digest – 5/8/14

MARYLAND COURT OF APPEALS 

Criminal Procedure, Appointment of counsel: The plain language of Rule 4-707(b) — which provides that a trial court must, under certain circumstances, appoint counsel for an indigent petitioner for purposes of conducting DNA testing — is inconsistent with the Rule’s purpose, which was to implement recent precedent that made appointment of counsel discretionary; and, given that petitioner never requested appointment of counsel, the trial court’s failure to appoint counsel was not an abuse of discretion. Fuster v. State, No. 41, Sept. Term, 2013. RecordFax No. 14-0422-20, 21 pages.

Criminal Procedure, Waiver of jury trial: Following a jury trial waiver colloquy, a trial judge must explicitly state on the record his or her finding that a criminal defendant’s waiver was made both knowingly and voluntarily and, although a fixed litany is not required, both concepts must be addressed in the trial judge’s announcement, either by using that precise language or using synonyms that represent the same concepts. Nalls v. State, No. 54, Sept. Term 2013; Melvin v. State, No. 95, Sept. Term 2013. RecordFax No. 14-0423-22, 33 pages.

Criminal Procedure, Waiver of jury trial: Following a jury trial waiver colloquy, a trial judge must explicitly state on the record his or her finding that a criminal defendant’s waiver was knowing and voluntary, and, although no “magic words” are required, both concepts must be addressed; therefore, trial court erred in accepting a waiver where colloquy did not comply with these standards and judge merely said defendant “made a free and voluntary election of a court trial.” Szwed v. State, No. 61, Sept. Term, 2013. RecordFax No. 14-0423-21, 15 pages.

Criminal Procedure, Waiver of jury trial: Circuit court did not err when it accepted defendant’s waiver of his right to a jury trial before announcing that it determined the waiver to be knowing and voluntary, as that announcement need not follow immediately after the waiver colloquy; and court’s colloquy with defendant was sufficient to determine that defendant’s waiver was knowing and voluntary. Morgan v. State, No. 71, Sept. Term, 2013. RecordFax No. 14-0423-20, 18 pages.

Labor & Employment, Collective bargaining: Under Montgomery County Code’s Police Labor Relations Act, which required that the county and a representative of the police union local collectively bargain regarding certain employee benefits, the county council had the authority — at least where the changes were fiscal in nature and the parties were unable to reach a renegotiated agreement — to define and change the terms of the collective bargaining agreement, and the council did not improperly terminate renegotiations. Fraternal Order of Police, Montgomery Lodge 35 v. Montgomery County, Maryland, No. 67, Sept. Term, 2013. RecordFax No. 14-0418-20, 21 pages.

Labor & Employment, Law Enforcement Officers’ Bill of Rights: Provision in Public Safety Article which provides that prior to a hearing under the Law Enforcement Officers’ Bill of Rights, an officer under investigation shall be provided with a copy of the investigatory file and any “exculpatory information,” but not “nonexculpatory information,” requires state and federal agencies to disclose only exculpatory information related to the officer under investigation and the charges specified. Ellsworth v. Baltimore Police Department, No. 58, Sept. Term 2013. RecordFax No. 14-0424-20, 37 pages.

Negligence, Informed consent: In an action alleging that defendant physician failed to obtain informed consent for the administration of radiation therapy, discerning which risks were “material,” and therefore required disclosure, included the severity of the risk and the likelihood with which the risk will occur; thus, where the proffered testimony of plaintiffs’ expert witness failed to address those factors, the circuit court did not err in excluding it. Shannon v. Fusco, No. 57, Sept. Term 2013. RecordFax No. 14-0424-21, 47 pages.

Professional Responsibility, Disbarment: Disbarment was the appropriate sanction for attorney who violated Maryland Lawyers’ Rules of Professional Conduct relating to diligence, communication, safekeeping property, and declining or terminating representation, by failing to remit to his client any portion of collections he made on the client’s behalf pursuant to a contingency fee agreement. Attorney Grievance Commission v. Lee Landau, Misc. Docket AG No. 84, Sept. Term, 2012. RecordFax No. 14-0421-20, 14 pages.

Torts, Statutory duty: Circuit court erred in granting defendant’s motion for summary judgment in negligence action based on near-drowning of plaintiff’s 3-year-old son in a swimming pool maintained by defendants, because statutory regulations governing maintenance and safety of swimming pools gave rise to a duty of compliance that extended to the child, as he was a member of the statute’s protected class and noncompliance with the statute was the proximate cause of his injury. Blackburn L.P. d/b/a Country Place Apartments v. Paul, No. 55, Sept. Term 2013. RecordFax No. 14-0429-20, 33 pages.

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