Law digest – 8/13/14


Criminal Procedure,Competency: Circuit court did not err in finding defendant was competent to stand trial, where, despite his refusal to participate in competency evaluations and his assertions that he did not understand the proceedings, there was significant evidence of competency in the record and the defendant’s assertions of incompetency were consistent with his “flesh and blood” defense strategy. Stewart-Bey v. State, No. 2525, Sept. Term, 2012. RecordFax No. 14-0731-02.

Criminal Procedure, Maryland Wiretap Act: Police did not unlawfully “intercept” text messages from defendant’s cell phone in violation of Maryland Wiretap Act where those messages were, at the time of their seizure, already stored in that phone, having already been sent and received before police gained access to them; the term “intercept” requires acquisition contemporaneous with transmission of the messages. Martin v. State, No. 2413, Sept. Term, 2010. RecordFax No. 14-0730-03.

Criminal Procedure, Rule of lenity: Under the rule of lenity, defendant’s convictions for possession of a regulated firearm merged into his conviction for possession of a regulated firearm after conviction of a crime of violence, which was the conviction carrying the greatest penalty. Clark v. State, No. 701, Sept. Term, 2013. RecordFax No. 14-0731-05.

Criminal Procedure, Rule of lenity: Under the rule of lenity, defendant’s sentence for possession with intent to distribute cocaine and cocaine base merged into his sentences for volume dealing of more than 448 grams of cocaine and more than 50 grams of cocaine base, because legislative history indicated that the General Assembly did not intend that volume of dealing to be punished separately from the offense of possession with intent to distribute. Kyler v. State, No. 0142, Sept. Term, 2013. RecordFax No. 14-0731-04.

Criminal Procedure, Search and seizure: In a burglary case in which the charges against defendant were based solely on DNA evidence from a sample he voluntarily gave in an earlier, successful effort to clear himself of an unrelated rape charg, the state’s retention and subsequent examination of the sample did not itself amount to a search and, therefore, the state had no obligation to obtain a warrant before using the sample in its subsequent investigation. Varriale v. State, No. 1261, Sept. Term, 2013. RecordFax No. 14-0730-05.

Criminal Procedure, Statements made in settlement: Circuit court did not commit plain error in admitting defendant’s statements to the police regarding events surrounding a shooting death, and, moreover, did not commit an error at all, because the statements were not made to an attorney for the prosecuting authority but to two police detectives and, thus, were not, as defendant claimed, statements made in the context of settlement negotiations. Savoy v. State, No. 2612, Sept. Term, 2012. RecordFax No. 14-0731-03.

Criminal Procedure, “Witness promised benefit” jury instruction: Circuit court did not abuse its discretion in declining to give a “witness promised benefit” jury instruction despite the fact that an eyewitness received paid protective housing from the state, because credibility issues were fairly covered in general jury instructions and, moreover, eyewitness’s testimony was corroborated by other testimony. Preston v. State, No. 1293, Sept. Term, 2012. RecordFax No. 14-0730-04.

Family Law, Child abuse by mental injury: The record supported administrative law judge’s factual findings that the mother’s actions constituted child abuse by mental injury, where the mother made multiple allegations that the child had been sexually abused by her father and subjected the child to repeated sexual abuse exams. McClanahan v. Washington County Department of Social Services, No. 737, Sept. Term, 2013. RecordFax No. 14-0731-00.

Torts, Nuisance: In private nuisance action by a drive-in movie theater, against a neighboring convenience store and service station, in which plaintiff alleged that the defendant’s lighting interfered with plaintiff’s drive-in movie business, circuit court correctly granted defendant’s motion for judgment notwithstanding the jury verdict, as the evidence was not sufficient to show that defendant’s lighting was unreasonable and substantial to a business no more than ordinarily susceptible to light. Blue Ink., Ltd. v. Two Farms, Inc. d/b/a Royal Farms, Inc., No. 01487, Sept. Term, 2012. RecordFax No. 14-0730-06.

Zoning, Judicial review: The enactment of a statutory text amendment by the city council and planning commission was a purely legislative act not subject to judicial review by the circuit court because the action did not decide the use of the specific parcel in question and was initiated by the mayor and city council rather than by a property owner and, therefore, was not a quasi-judicial zoning action. Mayor and Council of Rockville, et al. v. Pumphrey, No. 0599, Sept. Term, 2013. RecordFax No. 14-0731-01.


Bankruptcy Law, Preference avoidance: Chapter 11 litigation trustee for estate of debtor company was not entitled to avoid and recover premium payments that debtor company transferred to its insurer’s managing general underwriter, which later transferred them to the insurer, because underwriter was a mere conduit for the premium payments, and a party cannot be both a mere conduit and an entity for whose benefit a transfer was made. In Re: Railworks Corporation. Guttman v. Construction Program Group, No. 13-1931. RecordFax No. 14-0728-60.

Health Care, Affordable Care Act: The Internal Revenue Service’s final rule implementing the premium tax credit provision of the Affordable Care Act, interpreting the ACA as authorizing the IRS to grant tax credits to individuals who purchase health insurance on both state-run insurance “Exchanges” and federally-facilitated “Exchanges,” was a permissible construction of ambiguous statutory language and was therefore a permissible exercise of the agency’s discretion. King, Hurst, Levy, Luck v. Burwell, et al., No. 14-1158. RecordFax No. 14-0722-60.

Immigration Law, Special rule cancellation of removal: Where the only credible evidence showed that applicant for “special rule” cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act was first seen by a border patrol agent 17 miles from the U.S. border and was taken into custody eight miles later, Board of Immigration Appeals erred as a matter of law in finding that applicant failed to prove he was not apprehended at “time of entry.” De Leon v. Holder, No. 13-1651. RecordFax No. 14-0730-60.

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