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Opinions – Maryland Court of Appeals: 6/6/11

Criminal Law


BOTTOM LINE: The defendants’ convictions for second-degree escape were legally valid even though the convictions were predicated on their failure to obey a court order was legally invalid.

CASE: Hill, et al. v. State, No. 93, Sept. Term, 2010 (filed May 23, 2011) (Judges Bell, Harrell, Battaglia, Greene, Murphy, ADKINS & Barbera). RecordFax No. 11-0523-20, 14 pages.

FACTS: Steven Hill, Terri Alston, and Charles Yates were sentenced to terms of imprisonment with a deferred, or “springing,” start date. Under these sentences, their jail terms were scheduled to begin three to five years after the sentencing date. The sentencing judge informed them that if they stayed out of further legal trouble during that time, they could return to court before the start date and have their sentences vacated.

Each, however, did not return to court, and later failed to report on the respective start dates. Each was charged and pled guilty to second-degree escape.

After their convictions, the Court of Appeals decided Montgomery v. State, 405 Md. 67 (2008), and invalidated a “springing sentence” similar to the underlying sentences here. Consequently, Hill, Alston and Yates filed motions to vacate their convictions, which the circuit court denied. The Court of Special Appeals affirmed.

Hill, Alston and Yates appealed to the Court of Appeals, which affirmed.

LAW: In Montgomery v. State, 405 Md. 67 (2008), a criminal defendant admitted to violating his probation, and was ordered to serve the remaining ten years of his sentence with a deferred start date of three years after the sentencing hearing. Id. at 69–70. In ordering the deferred start date, the trial court reasoned “if you are of good behavior between now and three years from now I will reconsider it and vacate it and not make you serve another day.” Id. The defendant challenged this “springing sentence” as being unauthorized by statute and being illegal.

The Court of Appeals first concluded that, although a deferred sentence was allowed at common law, it would not be allowed for the reasons stated by the trial judge; i.e. to monitor good behavior and give the defendant an opportunity to avoid imprisonment. See Montgomery, 405 Md. at 79.

The Court next analyzed Rule 4–348(d), which states that a sentence “may be stayed upon terms the court deems proper.” The Court concluded that a stay was intended to allow the defendant “take care of his or her personal, financial or other commitments[,] [including] such things as winding up business affairs [and] making arrangements for the care of children or other dependents[.]” Id. at 81. The purpose of the provision was not to allow a trial judge to monitor the defendant’s behavior for several years. The underlying, springing, sentences were illegal under Montgomery.

Here, Hill, Alston and Yates each pled guilty to second-degree escape under CL §9–405, which provides, inter alia, “A person may not knowingly fail to obey a court order to report to a place of confinement.”

The current form of the escape statute is the result of amendments in 1999, in which the Legislature included, among other things, a failure to obey a court order as an “escape.” Legislative history demonstrates that the Legislature intended to treat a failure to report for imprisonment identically to an active escape from confinement. See Floor Report to Senate Bill 355, quoted in Boffen v. State, 372 Md. 724, 742–43 (2003).

The Court of Special Appeals has previously upheld an escape conviction despite the defendant’s claims that the underlying conviction was illegal. See, e.g., Vucci v. State, 18 Md.App. 157, 160 (1973). In Vucci, the defendant attempted to escape from prison by cutting a hole through a perimeter fence, and was charged with escape. On appeal, the defendant argued he was being illegally detained because of a procedural defect. Id. at 159. This illegality, he argued, gave him “the absolute right to depart from the confines of [imprisonment.]” Id.

“[I]t is clear in Maryland that even if a person is illegally confined because of defects in the procedure by which he was arrested and imprisoned, he is not entitled to resort to self-help but must apply for his release through regular legal channels. We think it is equally clear that even if a person, confined under color of law, is illegally confined because of violations of statutory procedures required with respect to his continued confinement, he is similarly not entitled to resort to self-help but must apply for his release through regular legal channels.” Id. at 159.

Under existing Maryland law, there is a narrow exception to its general prohibition against self-help for criminal defendants. Maryland has recognized that “one illegally arrested may use any reasonable means to effect his escape, even to the extent of using such force as is reasonably necessary.” Polk v. State, 378 Md. 1, 41 (2003). Maryland thus allows a defendant to argue, as a defense to certain criminal charges arising from his resistance to an arrest, that the arrest was illegal.

This limited allowance for self-help, however, does not extend to facially valid court orders. For example, a person may not resist an arrest carried out pursuant to a court-issued warrant. See Rodgers v. State, 280 Md. 406, 421 (1977). This distinction makes clear that Maryland law requires compliance with court orders, even if there are serious questions about the validity of the order. Cf. United States v. United Mine Workers, 330 U.S. 258 (1947).

Under these standards, Hill, Alston and Yates were properly convicted of escape. They were under a court order to report for a term of imprisonment, and failed to comply with these court orders, a clear violation of CL §9–405. A prisoner with an invalid sentence may not engage in self-help, and defy a court order of imprisonment, any more than a prisoner with a potentially invalid conviction. See Jennings, 8 Md.App. at 325.

Thus, the failure of Hill, Alston and Yates to report for imprisonment was sufficient to support their escape convictions. Montgomery allowed them to challenge, in the appropriate venue, the validity of their “springing” sentences. It did not, however, allow them to engage in self-help.

Accordingly, the judgment of the Court of Special Appeals was affirmed.

COMMENTARY: Hill, Alston and Yates argued that illegality of the underlying court order was a defense to escape because the escape statute, CL §9–405(b), requires the underlying court order to be lawful.

In Boffen v. State, 372 Md. 724 (2003), the Court reversed a first degree escape conviction, explaining that for a valid escape conviction “the escapee must have been legally detained[,]” and that “escape is the unauthorized departure from lawful custody.” Id. at 733. Boffen had been convicted of certain credit card offenses, and appeared in court for a sentencing hearing. When the judge stated that “the sentence under count number one is fifteen years to the Division of Correction[,]” Boffen “interrupted him, bolted from the courtroom, and ran out onto the street where he was eventually arrested.” Id. at 727. He was later convicted for escape.

The Court of Appeals granted certiorari to define the boundaries of “custody.” The Court reviewed Johnson v. Warden, 196 Md. 672, 674 (1950), where it held: “[A] prisoner was legally confined in the State Reformatory … even though he was allowed to work outside, unguarded, on a private farm, and that, when he escaped from the farm, he was subject to punishment for escape from the Reformatory.” Further, in Ford v. State, 237 Md. 266, 270 (1965), the Court held that a prisoner was in constructive custody of the State while being transported from a prison.

However, unlike in Johnson and Ford, Boffen had not yet entered custody of law enforcement, constructive or otherwise, at the time he fled. See Boffen, 372 Md. at 747. Therefore, his conviction was reversed.

In this line of cases, “lawful custody” signified that the defendant was “within the actual or constructive custody of a place of confinement within the meaning of the statute.” See Boffen, 372 Md. at 733. These cases do not distinguish between lawful and unlawful official custody. Indeed, those defendants did not allege that their underlying conviction or sentence was invalid.

Clearly, Boffen did not transform Maryland law so as to allow criminal defendants, seeking relief from their sentences, to engage in self-help instead of filing an appropriate motion or pleading in court.

PRACTICE TIPS: Acceptable reasons for a deferred start date included “when a female defendant was pregnant or when a defendant desired an opportunity to apply for executive clemency.” Montgomery v. State, 405 Md. 67, 79 (2008).

Criminal Procedure


BOTTOM LINE: Where defendant’s original sentence was increased by a three-judge sentence review panel, the panel’s sentence was the “sentence previously imposed” for purposes of CJ §12–702(b) upon remand for a new trial.

CASE: Gardner v. State, No. 11, Sept. Term, 2010 (filed May 24, 2011) (Judges Bell, Harrell, Battaglia, Greene, Murphy, Adkins & BARBERA). RecordFax No. 11-0524-20, 18 pages.

FACTS: Eugene Gardner was found guilty of armed robbery and use of a handgun in the commission of a felony. The sentencing judge imposed concurrent sentences of 25 years imprisonment without the possibility of parole for armed robbery, and 5 years without the possibility of parole for the handgun violation, for a total sentence of 25 years incarceration.

Gardner appealed and sought review of the sentence by a three-judge panel, pursuant to CP §§8–102, 8–105. The panel was unanimous in its decision to increase the sentence originally imposed. The panel did not change the 25-year, no-parole sentence for armed robbery; the panel, though, increased the sentence on the handgun conviction from 5 to 20 years incarceration, no part of which was suspended and the first 5 years of which was to be served without parole. The panel directed the sentences to be served consecutively, resulting in an increase in the total sentence from 25 years to 45 years of executed time, followed by five years probation.

The Court of Special Appeals reversed the judgments of conviction and remanded the case to the circuit court for a new trial. Gardner elected a bench trial, at which the judge found him guilty of the same offenses as before. The court sentenced Gardner to a total of 40 years of executed time: 25 years, without parole, for armed robbery and 20 years with all but 15 years suspended, also without parole, for the handgun offense, to run consecutively.

The Court of Special Appeals held that, as applied to Gardner’s case, “the sentence previously imposed” referred to the 45-year sentence imposed by the three-judge sentence review panel. Consequently, the 40–year sentence imposed by the court following re-trial did not violate §12–702(b).

Gardner appealed to the Court of Appeals, which affirmed.

LAW: A court’s primary goal in interpreting statutory language is to discern the legislative purpose, the ends to be accomplished, or the evils to be remedied by the statutory provision under scrutiny. If the language of the statute is unambiguous and clearly consistent with the statute’s apparent purpose, the inquiry as to the legislative intent ends ordinarily and the statute is applied as written without resort to other rules of construction. State v. Johnson, 415 Md. 413, 421 (2010).

CJ §12–702(b) prohibits a court from imposing, following an appeal and remand for a new trial or resentencing, “a sentence more severe than the sentence previously imposed for the offense.” As enacted in 1966, §12–702(b) contained the language at issue in the case before us (i.e., on remand, a court “may not impose a sentence more severe than the sentence previously imposed”), and then, as now, subsection (b) included an exception to the general rule prohibiting increased sentences on remand.

Prior to July 1, 1988, though, subsection (b)(2) stated that one requirement of the exception was that “[t]he reasons [for the increased sentence] are based upon objective information concerning identifiable conduct on the part of the defendant occurring after the original sentence was imposed.” House Bill 1139, effective July 1, 1988, deleted from subsection (b)(2) the phrase “occurring after the original sentence was imposed.” See 1988 Md. Laws Ch. 722.

The Senate Judicial Proceedings Committee’s Floor Report regarding H.B. 1139 reveals that the purpose of that deletion was “to correct situations in which the first sentence was given while the judge was unaware of information that would have resulted in a greater sentence had the judge been aware of the information. The example was given of a defendant giving false information that the defendant was a first offender while in reality the defendant had prior convictions in another jurisdiction.”

Thus, the deletion of subsection (b)(2)’s reference to “the original sentence” was not intended to change the meaning of the phrase, “the sentence previously imposed.”

The language in its entirety, considered in light of its original text, the amendment, and the reason for it, reveals that “the sentence previously imposed” cannot mean merely “the original sentence.” This is because §12–702(b) originally contained both phrases, and it is presumed that the Legislature intentionally used different phrases to carry different meanings. See Chow v. State, 393 Md. 431, 448 (2006). Because H.B. 1139 did not alter the original meaning of the phrase “the sentence previously imposed,” the phrase, as it currently exists in §12–702(b), is not coterminous with the “original sentence.” Thus viewed, §12–702(b) is not ambiguous.

The result would be no different even if the statute was ambiguous. When the language of the statute is subject to more than one interpretation, and thereby rendered ambiguous, the Court “must resolve the ambiguity by searching for legislative intent in other indicia, including the history of the legislation or other relevant sources intrinsic and extrinsic to the legislative process.” Johnson, 415 Md. at 422.

When §12–702(b) is considered in conjunction with the sentence review panel statute, CP §§8–102 et. seq., any facial ambiguity in §12–702(b) dissolves and the statute’s meaning becomes clear. CP §8–106(a) permits a review panel to “increase, modify, or reduce a sentence.” The statute grew out of the 1965 Report of the Governor’s Commission to Study Sentencing in Criminal Cases, which concluded that in many instances the sentences imposed by circuit judges throughout the state for the same crimes committed under the same circumstances by persons with similar backgrounds were alarmingly disparate. Accordingly, the Commission recommended the adoption of a system which would provide for the review of criminal sentences by a panel of trial judges who were the peers of the sentencing judge. Collins v. State, 326 Md. 423, 424–25 (1992).

In Rendelman v. State, 73 Md.App. 329 (1987), the Court of Special Appeals found that a defendant has the right to appeal the decision of a three-judge panel to increase a sentence. The Rendelman court noted that, when the panel increases the sentence, “the focus is necessarily and quite properly on what occurred before the panel,” rather than on what occurred before the original sentencing judge. Id. at 333. Moreover, “[t]he [sentence review panel] statute merely provides a procedure for three judges, acting for the court [where the case was tried and sentence imposed], to review the sentence imposed by a single judge, acting for the court. The decision of the panel, to the extent that it changes the sentence, is the decision of the court; indeed, by finally concluding the rights of the parties at that level, it is the final judgment of the court.” Id. at 336.

When a sentence review panel alters the original sentence by increasing (or decreasing) it, the panel’s sentence becomes the “sentence of the court.” Rendelman, 73 Md.App. at 336. The original sentence is “substituted” with the sentence imposed by the sentence review panel. See CP §8–107. The original sentence is erased, having been superseded, and the panel’s sentence becomes, for purposes of §12–702(b), the “sentence previously imposed.” This construction of §12–702(b) gives full effect to the purposes of the sentence-review panel statute. Johnson, 415 Md. at 421.

Section 12–702(b), thus construed, also gives full effect to the purpose underlying the General Assembly’s enactment of that provision. The General Assembly enacted §12–702(b) as a response to the Supreme Court’s ruling in North Carolina v. Pearce, 395 U.S. 711 (1969), where the Supreme Court concluded that due process “requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” Id. at 725.

Had Gardner not been successful on appeal, his sentence would have remained 45 years, as determined by the three-judge panel. That panel made its decision before Gardner received a favorable decision from the Court of Special Appeals. It follows that “vindictiveness” for Gardner’s “having successfully attacked his first conviction” could have played no part in the panel’s decision. Pearce, 395 U.S. at 725.

With that in mind, the trial court on remand could not have penalized Gardner with a “heavier sentence,” id. at 723, unless it imposed a sentence greater than the 45 year-sentence Gardner faced, had his appeal failed. Furthermore, the threat of receiving a sentence of up to 45 years following a new trial would not “chill the exercise” of Gardner’s right to appeal his conviction because that is the sentence he faced if his appeal had not succeeded to the United States Supreme Court’s ruling in North Carolina v. Pearce, 395 U.S. 711 (1969). See Briggs v. State, 289 Md. 23 (1980).

Accordingly, §12–702(b), was not violated and Gardner’s 40–year sentence was affirmed.

COMMENTARY: The rule of lenity instructs that courts “will not interpret a … criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what [the legislature] intended.” White v. State, 318 Md. 740, 744 (1990). “[T]he touchstone of the rule of lenity is statutory ambiguity. Where [the legislature] has manifested its intention, we may not manufacture ambiguity in order to defeat that intent.” Bifulco v. United States, 447 U.S. 381, 387 (1980).

The Supreme Court has further clarified that: “[W]e have declined to deem a statute ‘ambiguous’ for purposes of lenity merely because it was possible to articulate a construction more narrow than that urged by the Government. Instead, we have always reserved lenity for those situations in which a reasonable doubt persists about a statute’s intended scope even after resort to the language and structure, legislative history, and motivating policies of the statute.” Moskal v. United States, 498 U.S. 103, 108 (1990).

The rule of lenity only informs the interpretation of a criminal statute when the standard tools of statutory interpretation fail to discern the intent of the Legislature. See Kushell v. Dept. of Nat. Resources, 385 Md. 563, 576 (2005). Lenity provides a mechanism for resolving ambiguity when legislative intent cannot be determined to any degree of certainty. See Randall Book Corp. v. State, 316 Md. 315, 327 (1989).

Because the legislative purpose behind §12–702(b) was ascertained, the rule of lenity had no application in this case.

PRACTICE TIPS: Although the Supreme Court has retreated from the Pearce analysis, see Alabama v. Smith, 490 U.S. 794 (1989), the Court of Appeals has made clear that the General Assembly’s codification of the Pearce doctrine is not influenced by the Supreme Court’s subsequent determination “that due process does not now forbid what it seemed to prohibit in Pearce.” Jones v. State, 307 Md. 449, 455 (1986).

Criminal Procedure


BOTTOM LINE: The post-conviction court granted the defendant only a right to make a belated motion for modification of sentence, not the right to actually receive the sentence agreed upon at the post-conviction hearing.

CASE: Tatem v. State, No. 33, Sept. Term, 2010 (filed May 20, 2011) (Judges Bell, Harrell, Battaglia, Greene, MURPHY, Adkins & Barbera). RecordFax No. 11-0520-20, 16 pages.

FACTS: A jury convicted Paul Andrew Tatem of armed robbery and related offenses. Tatem filed a pro se petition for post-conviction relief. At a hearing on the petition, the prosecutor and Tatem reached an agreement concerning a new sentence.

The post–conviction court granted Tatem a re-sentencing hearing before the judge who had imposed Tatem’s original sentence. At the hearing, Tatem and the State requested that the judge impose the agreed upon sentence, but the sentencing judge rejected that request, believing that the original sentence was appropriate for armed robbery. The Court of Special Appeals affirmed.

Tatem appealed to the Court of Appeals, which affirmed.

LAW: Rule 4–345(a) provides that “[t]he court may correct an illegal sentence at any time.” When a court has breached a plea agreement by imposing a sentence that exceeded the sentence for which the defendant bargained and upon which the defendant relied in pleading guilty, that sentence is “illegal.” Cuffley v. State, 416 Md. 568 (2010).

When a post-conviction court grants the defendant the right to file a belated motion for modification of sentence, unless the judge who imposed that sentence is unavailable to decide the motion, the motion for modification must be presented to the judge who imposed the sentence.

Although the post–conviction court certainly had the authority to (1) vacate the sentences imposed by the sentencing judge, (2) preside at a “new” sentencing hearing, and (3) proceed to impose the sentence for which Tatem had bargained, the record is clear that the post–conviction court granted Tatem only the right to a “belated” motion for modification of sentence hearing before the judge who imposed the original sentences.

As a result of the agreement reached during the post-conviction proceeding, Tatem acquired an enforceable right to a “re-sentencing” hearing before the sentencing judge, as well as to a joint submission of that agreement to the sentencing judge. Tatem did not, however, acquire an enforceable right to the recommended sentence.

Thus, the sentences imposed at Tatem’s re-sentencing hearing were not “illegal” under Rule 4–345(a).

COMMENTARY: Tatem failed to object at the re-sentencing hearing that his sentence was illegal. This failure, however, did not waive argument on appeal that sentence imposed was illegal, since a defendant can attack an illegal sentence at any time. Rule 4–345(a).

PRACTICE TIPS: Although Rule 4–345(e) does not expressly provide that a motion for modification must be presented to and decided by the judge who imposed the sentence at issue, the “Reduction of Sentence” provisions in the Rules are “virtually identical” to the provisions then contained in FRCrP 35 Johnson v. State, 274 Md. 29, 39 (1975), and “[f]ederal case law clearly indicates that, under Rule 35, motions to correct or reduce a sentence are to be heard by the court that rendered the original judgment and sentence.” State v. Beam, 115 Idaho 208 (Idaho 1988).


Jury instructions

BOTTOM LINE: In an action by a former tenant to recover for brain damage as alleged result of exposure to lead-based paint in rental property, the court’s erroneous instruction to the jury that an occupant of rental premises has a legal duty to maintain a dwelling in a clean and sanitary condition was not harmless.

CASE: Barksdale v. Wilkowsky, No. 66, Sept. Term, 2010 (filed May 23, 2011) (Judges Bell, Harrell, Battaglia, Greene, Murphy, ADKINS & Barbera). RecordFax No. 11-0523-22, 28 pages.

FACTS: Janay Barksdale lived with her grandmother until she was eleven years old in a rented house in Baltimore. As a teenager, Barksdale was diagnosed with mild mental retardation, a low IQ score, and impaired senses, impairments which limited her ability to read, her verbal language abilities, and her mathematical reasoning.

As an adult, Barksdale filed suit against the owners of her childhood home, alleging injuries from lead paint on the premises.

At trial, the owners questioned Barksdale’s grandmother as to whether she had ever notified them of flaking and peeling paint in Barksdale’s home. The owners then requested a jury instruction indicating that a person’s failure to report flaking paint to the landlord was evidence of negligence.

The trial court gave the instruction, even though the grandmother’s negligence was not attributable to Barksdale, and Barksdale herself was too young to have any duty to report. The jury issued a verdict in favor of the owners.

The Court of Special Appeals upheld the jury verdict, finding that, although the jury instruction was erroneous, it was also harmless.

Barksdale sought review from the Court of Appeals, which reversed the decision of the Court of Special Appeals.

LAW: The pertinent question was whether the inclusion of the erroneous jury instruction in this case required reversal of the jury verdict. A Maryland court will not reverse a lower court judgment if the error is harmless. Flores v. Bell, 398 Md. 27, 33 (2007). The harmless error rule embodies the principle that courts should exercise judgment in preference to the automatic reversal for “error” and ignore errors that do not affect the essential fairness of the trial. Williams v. State, 394 Md. 98, 120 (2006). The two issues which often comprise the harmless error analysis are: (1) whether the complaining party is entitled to any presumption of prejudice; and (2) how a party can satisfy its burden of showing prejudice.

The question of whether a complaining party is entitled to a presumption of prejudice is an important, and often dispositive, question. The test that courts have employed varies by the context of the case (i.e., civil or criminal) and by the type of error alleged. Courts analyzing prejudice generally look to the degree to which the conduct of the trial has violated basic concepts of fair play. See Kyle v. United States, 297 F.2d 507, 514 (2nd Cir.1961). The showing of prejudice required to bring down the balance in favor of a new trial varies from case to case. In some cases, only a small showing of prejudice, or none, is demanded, because a new trial is necessary in order to ensure that the administration of justice is not only above reproach but that it is beyond even the suspicion of reproach. In other cases, where the conduct of the trial was less censurable or not censurable at all, a greater showing of prejudice is demanded, because the interest in obtaining an ideal trial may be outweighed by the interest in avoiding a retrial unlikely to have a different outcome. See Kyle v. United States, 297 F.2d 507, 514 (2nd Cir.1961).

In civil cases, Maryland courts have varied the tests based on the relative gravity of the error. For the more egregious civil errors, Maryland employs a presumption of prejudice. See Murrell v. Mayor & City Council of Baltimore, 376 Md. 170, 197 (2003). This presumption of prejudice in the civil context has been justified by the need to provide for hearty review of trial errors. See Harris v. Harris, 310 Md. 310, 319–20 (1987). Other than these limited circumstances, however, the burden to show error in civil cases is on the appealing party to show that an error caused prejudice. See Flores, 398 Md. at 33. Although most of the harmless error analyses in civil law cases involve erroneous exclusion or admission of evidence, it is also clear that a party complaining of an erroneous jury instruction in a civil case must show prejudice. See Fry v. Carter, 375 Md. 341, 355 (2003).

The harmless error test is one for which Maryland courts, like many other jurisdictions, have declined to establish precise standards. See Flores, 398 Md. at 33. Instead, Maryland courts have determined prejudice based on the facts of each individual case. See id. Some courts have described the complainant’s required showing of prejudice as a showing that that prejudice was “likely” or “substantial.” See Crane v. Dunn, 382 Md. 83, 91 (2004). The focus of the inquiry is the probability, not the possibility, of prejudice. Flores, 398 Md. at 33. Thus, the general rule is that a complainant who has proved error must show not merely that prejudice was possible, but that it was probable.

When prejudice is not readily apparent, a reviewing court must focus on the context and magnitude of the error. Maryland Rule 5–606 strictly limits a court’s ability to inquire, post-verdict, into “the sworn juror’s mental processes in connection with the verdict.” In the criminal context, this difficulty has led Maryland to adopt a presumption of prejudice for errors, which may be rebutted by the State. Although, in the civil context, this same difficulty does not give rise to a universal presumption of prejudice, it does shape the applicable harmless error test.

In Fry v. Carter, a highway construction worker was killed when he was struck by roof trusses protruding from the side of a trucker’s vehicle as the trucker was driving by the construction site. Fry v. Carter, 375 Md. 341 (2003). The deceased worker’s family filed suit against the truck driver for negligence, and after the close of evidence, the judge, over the plaintiff’s objection, gave an “unavoidable accident” instruction to the jury. Id. at 346–47. The jury returned a verdict in favor of the defendant. On appeal, the Court of Appeals found that the trial court had erred in instructing the jury on unavoidable accident. Id. at 355. The Fry Court then considered whether the error required reversal of the jury verdict, analyzing the injection of the “unavoidable accident” concept in the context of the case. The Court concluded that the unavoidable accident instruction was prejudicial because it permitted the jury to speculate as to whether the defendant could have avoided the accident at the last minute, thereby diverting juror attention from the pivotal issue in the case, negligence. Id. at 356.

Thus, the Fry Court did not set forth a specific standard, nor did it create an automatic presumption of prejudice; instead, it declared prejudicial those jury instructions which are misleading, distracting, and permit the jury to speculate as to improper issues which may be dispositive. Fry, 375 Md. at 356. More generally, Fry holds that a complainant must satisfy her burden regarding prejudice by showing the nature of the erroneous jury instruction and its relation to the issues in the case. A reviewing court can then weigh the materiality of the error and the potential that it poisoned the jury deliberations. An erroneous instruction may be prejudicial if it is misleading or distracting for the jury, and permits the jury members to speculate about inapplicable legal principles. See Fry, 375 Md. at 355. An error may also be prejudicial if the error, by itself, could have precluded a finding of liability where one was warranted. See LNC Invs. v. First Fid. Bank, N.A., 173 F.3d 454, 463 (2nd Cir.1999).

In this case, the trial court’s error was the inclusion in its jury instructions of §902A of the Baltimore City Code. Section 902A provides, in relevant part, that “every occupant of a dwelling or a dwelling unit shall keep in a clean and sanitary condition that part of the dwelling unit and the premises thereof which he occupies and controls. A clean and sanitary condition…shall include, but is not limited to the following standards; walls and windows.” The owners requested the inclusion of §902A on the basis that it was the provision in the code that discussed the obligations of the tenant. Barksdale’s counsel countered that in making this request, the owners were “trying to throw in a contributory negligence argument.”

It was undisputed that the pertinent issues in this case did not include contributory negligence by Barksdale or a superseding cause of negligence by Barksdale’s grandmother. Maryland law has determined that the responsibility of a landlord to protect children from lead paint poisoning is an important one, and thus does not allow the landlord to escape liability by blaming the child or her family. See, e.g., Caroline v. Reicher, 269 Md. 125 (1973). As such, the jury was prohibited by law from blaming Barksdale or her grandmother for contributory or superseding negligence. However, inclusion of the §902A instruction may well have enticed the jurors down that road.

At the very least, it was impossible to determine whether the jury relied on Barksdale’s grandmother’s conduct in reaching a verdict in favor of the owners. Thus, although not explicitly a “superseding cause” or “contributory negligence” argument, the owners’ request for a §902A instruction might have served the same purpose and had the same impermissible effect of deflecting liability to a third party. The §902A instruction, therefore, touched on the heart of the case (i.e., determining who was responsible for Barksdale’s injury) and might have had an insidious impact on the jury’s thinking. Therefore, Barksdale carried her burden of showing prejudice.

Accordingly, the judgment of the Court of Special Appeals was reversed.

COMMENTARY: Barksdale also suggested, in novel arguments, that she should be entitled to a presumption of prejudice. First, Barksdale argued that a presumption should be afforded to “a statutorily protected class such as lead-poisoned children.” Second, she contended that a defective jury instruction jeopardizes the constitutional guarantees of relief for injury, trial by jury, and due process, and therefore warrants a presumption of prejudice.

However, Maryland courts have never recognized a presumption of prejudice from error based on the personal characteristics of the complaining party, and the Court of Appeals declined to create a special rule in this case.

PRACTICE TIPS: An error in evidence is harmless if identical evidence is properly admitted. Likewise, erroneous instructions can be harmless if the court takes appropriate steps to cure that error.


Statute of limitations

BOTTOM LINE: Statute that extended limitations period for actions arising out of an alleged incident of sexual abuse that occurred while the victim was a minor to seven years from the date victim attained the age of majority was remedial and procedural in nature and therefore effected an extension of time for the filing of claims that were otherwise time-barred.

CASE: Doe v. Roe, No. 95, Sept. Term, 2010 (filed May 23, 2011) (Judges Bell, HARRELL, Battaglia, Greene, Murphy, Adkins & Barbera). RecordFax No. 11-0523-21, 26 pages.

FACTS: On Sept. 3, 2008, Mary Roe, an alleged victim of childhood sexual abuse, filed a civil action against her grandfather James Doe for assault, battery, false imprisonment, intentional infliction of emotional distress, and negligence. In her complaint, Roe alleged that Doe raped her on two separate occasions, first when Roe was either 6 or 7 years of age, and again when she was 9 years old.

Roe had reached the age of majority on Sept. 29, 2001, at which time the limitations period on the civil claims stemming from the alleged sexual assaults was governed by Maryland Code (1974, 1998 Repl.Vol.), Courts & Judicial Proceedings Art., §5–101, which provided that a civil action at law must be filed within three years from the date that the claim accrued. Chapter 360 of the Acts of 2003, effective Oct. 1, 2003, however, added §5–117 to the Courts & Judicial Proceedings Article. Section 5-117 established a limitation period of seven years from the date that the victim attained the age of majority for damages arising out of an alleged incident or incidents of sexual abuse that occurred while the victim was a minor.

In response to Roe’s complaint, Doe filed a motion to dismiss, arguing that all of the claims were time-barred because Roe filed her complaint at least three years after the date on which Roe reached the age of majority. Doe asserted that the seven-year statute of limitations did not apply to Roe’s sexual assault claims against Doe, asserting that the new legislation was prospective only.

The circuit court held that all of Roe’s claims were time-barred and granted Doe’s motion to dismiss. Roe appealed to the Court of Special Appeals, which reversed the circuit court judgment with regard to the sexual assault claims, finding that it could not be concluded that the seven-year statute of limitation was to operate only prospectively.

Doe appealed to the Court of Appeals, which affirmed the judgment of the Court of Special Appeals.

LAW: Under Cts. & Jud. Proc. §5–101, the general rule in Maryland is that a civil action at law shall be filed within three years from the date it accrues. Ali v. CIT Technology Financing Services, Inc., 416 Md. 249, 257, 258, (2010). However, because this “one-size-fits-all” approach does not always serve to further the policies underlying the three-year limit, the Legislature has enacted numerous exceptions to the three-year statute of limitations. One such exception, §5–117, was at the heart of the present matter.

The principle that statutory time limits for a minor to bring an action do not begin running until the age of majority has been firmly established in Maryland law for some time. Piselli v. 75th Street Medical, 371 Md. 188, 212 (2002). Accordingly, before §5–117 was enacted, victims of child sexual abuse had until the day prior to their 21st birthday to file a civil action for damages relating to such abuse. See Mason v. Bd. of Educ. of Baltimore County, 375 Md. 504 (2003). Concerned that a three-year statute of limitations might effectuate a unique injustice in cases of child sexual abuse, the Maryland Legislature enacted Cts. & Jud. Proc. §5–117, which provides, in relevant part, that “[a]n action for damages arising out of an alleged incident or incidents of sexual abuse that occurred while the victim was a minor shall be filed within seven years of the date that the victim attains the age of majority.”

Generally speaking, the legislative function is principally concerned with the establishment of future rules of conduct. SUTHERLAND §41.01. That said, there is no question of the Legislature’s general power to enact laws which operate retroactively or retrospectively. SUTHERLAND §41.04. Maryland courts have established several well-settled rules of statutory interpretation applicable in seeking to ascertain the actual intention of the legislature. First, a statute is presumed to operate prospectively from its effective date, absent clear language to the contrary, or unless the manifest intention of the Legislature indicates otherwise. Second, despite the presumption of prospectivity, a statute effecting a change in procedure only, and not in substantive rights, ordinarily applies to all actions whether accrued, pending or future, unless a contrary intention is expressed. Third, a statute affecting or impairing substantive rights will not operate retrospectively as to transactions, matters, and events not in litigation at the time the statute takes effect unless its language clearly so indicates. Rawlings v. Rawlings, 362 Md. 535, 555 (2001).

In this case, the Court of Appeals addressed the question of whether a statute acting to extend the limitations period to claims not-yet barred by the original limitations period was “procedural” and/or “remedial.” Generally, remedial statutes are those which provide a remedy, or improve or facilitate remedies already existing for the enforcement of rights and the redress of injuries. Langston v. Riffe, 359 Md. 396, 408–09 (2000). Remedial statutes also include statutes intended for the correction of defects, mistakes and omissions in the civil institutions and the administration of the state. The definition of a remedial statute has also been stated as a statute that relates to practice, procedure, or remedies and does not affect substantive or vested rights.

Every statute that makes any change in the existing body of law, excluding only those enactments which merely restate or codify prior law, can be said to “remedy” some flaw in the prior law or some social evil.

In applying these definitions, the Court of Appeals found that §5–117 was remedial in nature. The extended limitations period improved remedies already existing for the enforcement of rights and the redress of injuries, by establishing an extended period of time during which alleged victims of child sexual abuse may seek redress in the courts for the alleged wrongs committed against them. Further, §5–117 is clearly designed to correct then-existing law, and to introduce regulations conducive to the public good, as the legislative history of the statute reflected that the extended limitations period was passed (at least in part) “in response to the outcry and evolving understanding of childhood sexual abuse.” Sandee L. Chadwick, The Disappearing Ex Post Facto Clause and Reviving Time–Barred Prosecutions, 30 SW. U.L. REV. 197, 215 (2000). Finally, in concluding that §5–117 was a remedial and procedural statute, the Court of Appeals was in accord with the overwhelming majority of jurisdictions which hold that a change to a limitations period, when applied to claims not-yet-barred by the previous limitations period, is procedural or remedial in nature.

For these reasons, the Court of Special Appeals was correct in its finding that §5-117 was applicable retroactively and that Roe’s claims were not time-barred under Maryland law.

Accordingly, the judgment of the Court of Special Appeals was affirmed.

COMMENTARY: Had Roe’s claim been barred under the three-year limitations period as of Oct. 1, 2003, the effective date of §5–117.18, the Court of Special Appeals would have been presented with a different situation entirely. However, because the Court was not presented with that scenario, it expressed no holding regarding the applicability of § 5–117 to child sexual abuse claims barred under the three-year statute as of Oct. 1, 2003, the effective date of the new statute.

Because §5–117, at least as applied to those claims not-yet barred by the previously-applicable three-year limitations period as of the effective date of §5–117, was a procedural and remedial statute, and because there was no indication in the record that this procedural and remedial statute was intended to be applied prospectively only, §5–117 contained no presumption of prospectivity such that it would be necessary to determine whether the “manifest intention of the Legislature” was for the statute to apply retrospectively.

PRACTICE TIPS: It is an oversimplification of the law to say that every application of a statute expanding a statute of limitations period is remedial or procedural in nature. In certain circumstances, a statute changing a limitation period constitutes a substantive change in the law. For instance, where a limitation period is stipulated in a statute creating a cause of action, the limitation is to be considered a limitation upon the right as well as the remedy, with the result that as to causes of action already accrued at the time of the enactment of a subsequent statute enlarging the limitation period for such causes of action, the subsequent statute will not be held applicable so as to extend or enlarge the original limitation period.