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Opinions – Maryland Court of Appeals: 7/11/11

Administrative Law

Withdrawal of election to review

BOTTOM LINE: Once the District Council of Prince George’s County elects to review a decision, it is not permitted to withdraw that election and it must hold a hearing on the merits and adopt written findings and conclusions.

CASE: County Council of Prince George’s County, Maryland v. Billings, No. 46, Sept. Term, 2010 (filed June 20, 2011) (Judges Bell, Harrell, Battaglia, Greene, Murphy, ADKINS & Barbera). RecordFax No. 11-0620-20, 28 pages.

FACTS: The Eastern Petroleum Company (EPC) owns and operates a gas station located in Prince George’s County. In 2007, EPC sought to improve the gas station by razing its current convenience store, along with two vacant buildings on the lot, and adding a larger convenience store and a drive-through car wash.

First, the project required a Departure from Design Standards. The Prince George’s County Planning Board considered EPC’s Departure from Design Standards request (DDS 564) in public hearings. At these hearings, several nearby residents (the Citizens) appeared in opposition. Nonetheless, the Planning Board approved the request, as proposed.

EPC’s project also required a Special Exception. A Prince George’s County Zoning Hearing Examiner (ZHE) held a hearing for EPC’s request for Special Exception (SE 4549), which was also attended by one of the Citizens. The ZHE approved the request.

After each agency approval, the parties were advised of three possibilities: (1) a party could file a written appeal with the District Council of Prince George’s County, (2) the District Council could elect to review the approval, or (3) the approval could become final if neither a party nor the Council took any action.

With regard to both DDS 564 and SE 4549, the District Council elected to review the agency approval before any action by the Citizens. The Citizens did not file written exceptions to the agencies’ decisions with the District Council, apparently waiting to contest the decisions at the public hearing for the “election to review.” Before any review proceedings, however, the District Council withdrew its election to review the local decisions and declared the agency decisions “final.”

The Citizens petitioned the circuit court for judicial review. The circuit court dismissed the Citizens’ petition. The Court of Special Appeals reversed and remanded the case to the District Council, with direction that they resume review of the agency decisions.

The Court of Appeals affirmed.

LAW: The right to challenge agency zoning decisions in Prince George’s County is governed by the Regional District Act, which provides that “any incorporated municipality located in Prince George’s County, any person or taxpayer in Prince George’s County, any civic or homeowners association representing property owners affected by a final district council decision, and, if aggrieved, the applicant, may have judicial review of any final decision of the district council..” Art. 28, §8–106(e). The Citizens met these non-demanding standing requirements.

Moreover, “[i]n actions for judicial review of administrative land use decisions, ‘an adjoining, confronting or nearby property owner is deemed, prima facie,…a person aggrieved.’” Sugarloaf Citizens’ Ass’n v. Dep’t of Env’t, 344 Md. 271, 297 (1996) (quoting Bryniarski v. Montgomery Co., 247 Md. 137, 145 (1967)). Accordingly, the Citizens were eligible to seek judicial review of the District Council’s decision.

The statute governing a Departure from Design Standards request allows for such a request to arrive in the District Council in two ways: “The Planning Board’s decision may be appealed to the District Council upon petition of any person of record [within thirty days]. The District Council may vote to review the Planning Board’s decision on its own motion within thirty (30) days after the date of the notice.” PG Code §27–239.01(b)(9). Here, the review was triggered by the District Council’s own motion.

Once it elects to review a DDS decision, the governing statutes provide review procedures, and the Council may “based on the record, approve, approve with conditions, remand, or deny the application.” PG Code §27–132(f)(2). The local code imposes a mandatory procedure after the discretionary election to review an agency decision. PG Code §27–239.01(b)(9). The District Council is required to make “specific written findings of basic facts and conclusions.” PG Code §27–141. A “withdrawal of election” is clearly not provided for by the detailed statutory scheme.

Similar to the DDS procedure, a Special Exception Request can move from the Office of the Zoning Hearing Examiner to the District Council by appeal or by the Council’s own motion. See PG Code §27–312(a)(2).

The County Code does not require, after an election to review a special exception application, that a public hearing be held. Instead, the Code states that: “[w]henever the District Council conducts a public hearing (including an oral argument) for a Special Exception case, it shall do so in accordance with [the County Code.]” PG Code §27–315. The code further provides that “[t]he District Council may conduct oral argument in those zoning cases which the District Council elects to review[.]” PG Code §27–131(c)(2).

The statute requires that a final decision, in this case, the Council’s decision, be “supported by specific written findings of basic facts and conclusions.” Harford County v. Preston, 322 Md. 493, 505 (1991).

Withdrawal of the election to review is absent from the statutory options available to the Council. The statute allows the Council, after electing to review an agency decision, to (1) approve it, (2) approve it with conditions, (3) remand it, or (4) deny it. See §27–132(f). The Council does not have a fifth option to “decide not to review it, making the agency decision final.” Instead, the Council’s “withdrawal of an election to review” is, in effect, an approval of the lower agency decisions in full, without any written findings of fact or conclusions that the law requires.

The Council’s withdrawing its election to review is not an option allowed by the statute. The District Council did not make its required findings, nor affirm, reverse, modify, or return the local decisions, as the statute required it to do. Thus, the case was remanded to the District Council.

COMMENTARY: As a prerequisite to judicial review, parties must pursue and complete all administrative avenues of relief which the legislature has provided. See Maryland Reclamation Assocs. v. Harford County, 342 Md. 476, 490–491 (1996) (MRA II). The decision not to file an administrative appeal may be fatal to judicial review, especially when administrative deadlines have lapsed. See Public Service Comm’n. v. Wilson, 389 Md. 27 (2005).

The Citizens had a statutory right to District Council review, provided that they file written exceptions within 30 days of the agency decisions. If the Citizens’ failure to file written exceptions had prevented the agency decisions from ever reaching the District Council, their inaction would be a failure to exhaust administrative remedies and they would be foreclosed from judicial review.

But the exhaustion question is complicated by the District Council’s ability to “elect to review” a decision on its own. When the District Council elects to review an agency decision, review at that level proceeds even though no party of record has exercised their right to force an appeal.

Generally, when an administrative appeal proceeds without action by the parties of record, they are not required to take advantage of every opportunity to file their objections before a hearing. Instead, they may present their arguments at the public hearing, with no prior written record of their objections.

Moreover, in the administrative zoning context, at the initial agency level, a party need only attend the hearing, and then be “aggrieved” by the eventual decision. Sugarloaf, 344 Md. at 286–87. Assuming the district council review step did not exist, the Citizens would have effectively “exhausted” their administrative remedies by entering the hearing and signing on as a party of record.

When the District Council elects to review a decision, the filing of exceptions no longer is necessary to guarantee review at the next administrative level. Nothing in the statute or the Council’s communications suggested to the Citizens that they would have to file exceptions after the Council’s election to review the decision. Indeed, the Council’s own notices presented the filing of written exceptions as an alternative to the grant of an election to review. Any citizen would be reasonable in interpreting the District Court’s election to review the matter as relieving the citizen of any obligation to file a written appeal.

Therefore, the Citizens did not fail to exhaust administrative remedies by failing to file exceptions to the administrative decisions or an appeal to the District Council.

PRACTICE TIPS: “In cases involving challenges to administrative land use decisions, there is a distinction between standing in court to obtain review of the governmental action and the merits of the challenger’s position. ‘Because the result on the merits might be adverse … does not mean that the protestant would not have status to challenge the board’s action.’” Sugarloaf, 344 Md. at 294–96 (quoting Bryniarski, 247 Md. at 145–46).

Criminal Law

Restitution

BOTTOM LINE: The circuit court erred in ordering defendants to pay restitution for crimes for which they were not convicted and had not expressly agreed to pay restitution as part of a valid plea agreement.

CASE: Silver v. State, Nos. 98, 99, Sept. Term, 2010 (filed June 20, 2011) (Judges Bell, Harrell, Battaglia, Greene, Murphy, ADKINS & Barbera). RecordFax No. 11-0620-21, 24 pages.

FACTS: On March 20, 2009, Kerry Boller drove down Frys Lane in Randallstown on her way to visit a friend. As she passed the property of Donna and Hilton Silver, she noticed a large white object in the yard, covered by a blue tarp. She then observed that the Silvers’ white horse was missing from the horse paddock. Ms. Boller contacted the police.

Five days later, Joyce Barnett reported to the Silvers’ property. Barnett, an experienced Animal Control officer, pulled in the driveway and saw two horses in the pasture whose ribs were visible under their skin. As she walked through the yard, she then saw what she thought to be a dead horse lying under a blue tarp.

The horse — Calypso — attempted to lift her head off the ground, but other than that was unable to move. Calypso’s ribs were showing, and her back and hips were covered with burrs. The ground around Calypso’s head and feet was dug out, as the horse had been kicking and rocking back and forth attempting to get up. Behind the horse, there was a large pile of manure. It was apparent that she had been lying there for days.

Barnett went to the house and knocked on the door. Donna Silver came to a window. After being questioned, Mrs. Silver told Barnett that the horse had fallen down a few days earlier, and that they had been unable to get the horse up, and could not afford a veterinarian. Barnett told the Silvers that the horse needed to be euthanized, immediately. A veterinarian agreed to euthanize Calypso for free.

A few days after Calypso was euthanized, Barnett returned to the Silvers’ property to discuss the other two horses on the property. Those horses exhibited similar, though not as extreme, symptoms of malnourishment and neglect. The Silvers refused to turn the horses over to Animal Control. Instead, the State obtained a warrant to confiscate the horses, and transported the two horses to a farm.

The State charged Hilton and Donna Silver each with three counts of animal cruelty, pursuant to CL §10–604(a)(5). The initial trial proceedings were held in the district court. Pursuant to a plea deal, the Silvers entered an Alford guilty plea to one count of animal cruelty (the one regarding Calypso), and the other counts were nolle prossed by the State’s Attorney. The district court sentenced the Silvers to serve six days of imprisonment over the course of three weekends. The Silvers appealed for a de novo trial to the circuit court. After the district court hearing, Mrs. Silver “signed over” the horses to Animal Control.

The circuit court held a de novo bench trial, where counsel for the Silvers attempted to limit any testimony regarding the horses other than Calypso, arguing that it was irrelevant because those charges had been nolle prossed. The trial judge denied those requests, allowing testimony regarding the condition of those horses.

The circuit court convicted both of the Silvers of animal cruelty. As a condition of probation, the court ordered the Silvers to pay restitution to the veterinarian who euthanized one horse, and to the rescue farm for the costs of caring for the surviving horses.

The Silvers appealed to the Court of Appeals, which vacated the restitution order and affirmed the remainder of the judgment.

LAW: A trial court may not order a criminal defendant to pay restitution to a victim of a crime for which he was not convicted. Walczak v. State, 302 Md. 422, 433 (1985). In Walczak, the defendant was alleged to have robbed two victims at gunpoint, and agreed to plead guilty to one count of robbery with a deadly weapon if the State would nolle pros the remaining charges. At sentencing, the circuit court ordered Walczak to pay restitution to both victims as a condition of probation. Id. at 424.

The Court of Appeals concluded: “Clearly … restitution is punishment for the crime of which the defendant has been convicted. Restitution depends on the existence of that crime, and the statute authorizes the court to order restitution only where that court is otherwise authorized to impose punishment.” Id. at 429.

The general rule in Walczak is subject to one narrow exception. In Walczak, the Court of Appeals observed that some courts allow more expansive restitution orders “in cases in which a defendant has entered a plea agreement for restitution of greater amounts than those involved in the crime for which conviction was had.” Walczak, 301 Md. at 432 n.3.

One year after Walczak, the Court considered such a plea agreement in Lee v. State, 307 Md. 74 (1986), where the question presented was “whether, in light of Walczak …, a defendant in a criminal case may, as part of a plea agreement, lawfully be ordered to pay restitution in an amount greater than that involved in the crime of which he was convicted.” Id. 74. The Court first observed that allowing restitution as part of plea bargaining served important policy goals, especially in multi-count indictments. See id. at 80–81.

The Court stated: “The guilty plea was in pursuance of a plea agreement, the State agreeing to nol-pros the theft count upon the further understanding with the defendant that he would expressly consent, as a condition of probation, to the payment of full restitution for the theft offense. Thus, in addition to the forgery conviction, there was a judicial admission of guilt to the criminal acts underlying the theft loss, together with Lee’s consent to make restitution in the full amount — all as part of a plea agreement between the parties.” Id. at 81.

Walczak and Lee thus instruct that a restitution order regarding alleged crimes for which the defendant was not convicted is valid only if the defendant freely and voluntarily agrees to make restitution to victims of the other, alleged crimes as part of a plea agreement.

Applying the standards of Walczak and Lee in this case, the circuit court’s order of restitution for the surviving horses was invalid. The restitution order was not part of a plea agreement, and the Silvers never agreed to pay for the rehabilitation of the two surviving horses. This case, therefore, fell under the general rule of Walczak, and the court was only permitted to order restitution relating to the crimes of which each of the Silvers was convicted.

The Silvers clearly signaled an intent to contest their guilt in the circuit court, as they were entitled to by law, by filing a timely appeal. At that point, the State was completely free to re-file, in the circuit court, the charges that had been nolle prossed in the district court. Had the State re-filed those charges, it would have preserved the full range of sentencing options, including restitution for those counts, and avoided this procedural quandary. Unfortunately, it did not.

Accordingly, it was beyond the circuit court’s authority to order restitution for the two surviving horses.

COMMENTARY: Hilton Silver objected to the circuit court’s admission of Officer Carpen’s testimony, arguing that the prosecutor failed to provide Carpen’s written report prior to trial, which prejudiced Hilton Silver’s “ownership” defense.

Rule 4–263(d)(3) requires the State to provide the “name and … the address of each State’s witness whom the State’s Attorney intends to call to prove the State’s case in chief or to rebut alibi testimony, together with all written statements of the person that related to the offense charged[.]” Further, the State must produce “[a]ll written and all oral statements of the defendant and any codefendant that relate to the offense charged[.]” Rule 4–263(d)(1).

Clearly, the Silvers were aware of the State’s claim that Calypso, and the other horses, were owned by, or in the custody of, the Silvers. Moreover, Mr. Silver was given time to consider this testimony, an opportunity to cross-examine the State’s witnesses regarding the ownership issues, and the opportunity to call his own witness — his daughter — to testify regarding his relative level of custody over the horses.

It is entirely within the discretion of the circuit court to deny a motion to strike a witness’s testimony, and that discretion was not abused here.

Hilton Silver also argued that there was prejudicial error when the circuit court admitted “other crimes” evidence consisting of photographs of the two horses who survived.

Rule 5–404(b) states: “Evidence of other crimes, wrongs, or acts…is not admissible to prove the character of a person in order to show action in conformity therewith.” “The danger being guarded against is that such past behavior will be offered to show and will be used by a jury to conclude that the defendant has a propensity to commit crime.” Odum v. State, 412 Md. 593, 611 (2010).

Examining the disputed evidence in this case, the concerns of Rule 5–404(b) were not present. The State did not introduce evidence of the condition of the other horses in order to show the Silvers’ propensity to abuse animals, so as to prove they abused Calypso. Instead, the photos and testimony regarding the surviving horses were merely “crime scene” evidence. Therefore, the neglect of the surviving horses was not an “other crime” so as to render that evidence presumptively inadmissible.

In any event, any error was harmless beyond a reasonable doubt.

PRACTICE TIPS: “[A] nolle prosequi discharges the defendant on [that particular] charging document or count which was nolle prossed,…[but] does not preclude a prosecution for the same offense under a different charging document or different count.” Ward v. State, 290 Md. 76, 83 (1981).

Evidence

Post-arrest, post-Miranda silence

BOTTOM LINE: Because the defendant did not “open the door” sufficiently with his statements at trial regarding his pre-arrest actions and intentions, the State was not entitled to elicit testimony regarding his post-arrest, post-Miranda silence.

CASE: Lupfer v. State, No. 109, Sept. Term, 2010 (filed June 20, 2011) (Judges Bell, HARRELL, Battaglia, Greene, Murphy, Adkins & Barbera). RecordFax No. 11-0620-22, 34 pages.

FACTS: Raymond Lupfer shot and killed Jeremy Yarbray outside of a residence in Cecil County, Maryland. The circumstances surrounding the murder were sharply disputed at trial.

Lupfer testified that, following the shooting, he ran out the back of the residence, threw the gun in the nearby woods, and encountered a former co-worker who agreed to give him a ride in his truck to New Jersey, where Lupfer claimed to have another friend with whom he could stay. After reaching New Jersey, Lupfer claimed he called his girlfriend in Maryland to come pick him up. Lupfer stated that, on his return to Maryland, he intended to go to his girlfriend’s house because he needed to prepare himself to go talk to the police. The police arrested Lupfer later that night back in Cecil County.

At trial, the trial judge allowed the prosecutor to cross-examine Lupfer about the fact that he testified that he intended to speak to police and then chose to remain silent when questioned by the police. On cross-examination, Lufper testified that when he came back to Cecil County he was not sure whether or not he intended to turn himself in, but that running was not his intention. Lupfer further testified that after the police arrested him, they did not give him the opportunity to explain what happened before they slid the charges charging him with first-degree murder in front of him.

As a rebuttal witness, the State called Sergeant David J. Sexton, who acted as the lead investigator in the case. Sergeant Sexton testified that when Lupfer was brought to the police station, he asked what he was being charged with. Sergeant Sexton told him he was being charged with murder and read him Miranda rights. Lupfer then evoked his right to remain silent and asked to speak to a lawyer.

The jury acquitted Lupfer of first-degree murder, but convicted him of second-degree murder, first-degree assault, and use of a handgun in a crime of violence. The Court of Special Appeals affirmed.

Lupfer appealed to the Court of Appeals, which reversed and remanded for a new trial.

LAW: “In general, silence is evidence of dubious value that it is usually inadmissible under Maryland Rule 5–402 [relevance] or 5–403 [prejudice].” Kosh v. State, 382 Md. 218, 227 (2004). “[A] defendant’s failure to come forward does not constitute an admission, and lacks probative value. Failure to come forward to the police may result from numerous factors, including a belief that one has committed no crime, general suspicion of the police, or fear of retaliation. Such silence is simply not probative as substantive evidence of guilt.” Grier v. State, 351 Md. 241, 254 (1998). Silence at the time of arrest has a significant potential for unfair prejudice. Id. at 263.

In Doyle v. Ohio, 426 U.S. 610 (1976), co-defendants were convicted of selling marijuana to a police informant. At trial, they claimed that the informant framed them, and that it was the informant who sold the marijuana to them. Id. at 612–13. On cross-examination, the prosecution asked each defendant why he had not told the frame-up story to the police officer when he arrested them. Id. at 613.

In holding that the use of the post-arrest silence violated the Due Process Clause, the Supreme Court explained that, because “every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested,” “it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” Id. at 617, 618.

Putting the first dent in the rule on non-admissibility, however, the Supreme Court, in a footnote, emphasized that: “It goes almost without saying that the fact of post-arrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest. In that situation the fact of earlier silence would not be used to impeach the exculpatory story, but rather to challenge the defendant’s testimony as to his behavior following arrest.” Id. at 620 n. 11.

In United States v. Robinson, 485 U.S. 25 (1988), the Supreme Court provided another exception to the blanket rule of inadmissibility of post-arrest, post-Miranda silence. In Robinson, a defendant was convicted of two counts of mail fraud. Id. at 26. During closing argument, Robinson’s counsel urged “that the Government had not allowed [the defendant] to explain his side of the story.” Id. In responding to this assertion, during rebuttal, the prosecutor informed the jury that Robinson “could have taken the stand and explained it to you[.]” Id.

The Supreme Court held that there was no constitutional error because “the prosecutorial comment did not treat the defendant’s silence as substantive evidence of guilt, but instead referred to the possibility of testifying as one of several opportunities which the defendant was afforded, contrary to the statement of his counsel, to explain his side of the case.” Id. at 30, 32. “[W]here…the prosecutor’s reference to the defendant’s opportunity to testify is a fair response to a claim made by defendant or his counsel, we think there is no violation of the privilege.” Id.

Maryland’s privilege against self-incrimination, embodied in Article 22 of the Maryland Declaration of Rights, has been interpreted to be more comprehensive than that contained in the federal Bill of Rights. Newman v. State, 384 Md. 285, 316 (2004).

In Grier, 351 Md. at 244, the defendant was convicted of attempted robbery with a deadly weapon, maiming, and related offenses. At trial, the trial judge sustained defense counsel’s objection to the prosecutor’s questioning of an arresting officer about the defendant’s post-arrest behavior asking, “[d]id the defendant offer any explanation as to what [the incident] was about?” Id. at 248. Later, however, the prosecutor was permitted to ask the officer “[W]hat, if any, explanation did the defendant offer to you ever why he was or why this was taking place?” to which the officer responded, “He didn’t offer any.” Id.

Regarding the opening the door doctrine, the Court stated that, although the doctrine operates to make “evidence which was previously irrelevant … now relevant through the opponent’s admission of other evidence on the same issue,” Id. at 260, the doctrine does not permit the admission of “evidence that is inadmissible for reasons other than relevancy” or “incompetent” evidence. Clark v. State, 332 Md. 77, 87 n.2 (1993). The State’s evidence of Grier’s post-arrest silence was incompetent, not merely irrelevant, and, accordingly, the evidence was not admissible under the opening the door doctrine. Grier, 351 Md. at 261.

Regarding the fair response doctrine, the Court held that because Grier merely “asked the jurors to pay close attention to the police officers’ investigation,” “[he] had said nothing to generate a response by the State,” and, accordingly, the evidence was not admissible under that doctrine. Id. at 263.

The Supreme Court has provided little guidance as to what circumstances entitle the prosecution to a fair response. The Court has stated that if a defendant claims to have made a statement following his or her arrest, the prosecution may introduce evidence that the defendant had, in fact, remained silent. See Doyle, 426 U.S. at 620 n. 11.

Furthermore, when either the defendant or his counsel states expressly that the defendant cooperated fully with law enforcement officials, the prosecution may introduce evidence of the defendant’s post-arrest, post-Miranda silence for the purpose of showing that the defendant, in fact, had not been cooperative with law enforcement. See United States v. Fairchild, 505 F.2d 1378, 1380 (5th Cir.1975); United States v. Shue, 766 F.2d 1122, 1129 (7th Cir.1985).

Here, the State did not elicit the testimony of Sergeant Sexton for the purposes of rebutting Lupfer’s claim that he cooperated fully with police or that he created an impression or implication that he had cooperated fully with the police. Rather, Lupfer created the impression for the jury that he fully intended to cooperate and speak with the police, at some unspecified, undetermined, future time when he reached Maryland.

The testimony proffered by the State to suggest that Lupfer opened the door did not relate to “his interactions with the police after the arrest,” see State v. Cockrell, 741 N.W.2d 267, 271 (Wis.Ct.App.2007), (e.g., fully cooperating with police, making a statement to police, etc.); rather, they involved only his actions and intentions before he was arrested (e.g., while in New Jersey, he intended to return to Maryland to “prepare to go talk to the police,” etc.)

Evidence of post-arrest silence may be admissible to rebut a defendant’s claim that he made a statement to police following arrest, as both the testimony relating to the post-arrest silence and the testimony regarding the statement are “evidence on the same issue.” See Fairchild, 505 F.2d at 1380.

In the present case, however, it cannot be said that both (1) the sum of Lupfer’s testimony as to what he intended to do at some undermined time in the future; and (2) Sergeant Sexton’s testimony regarding Lupfer’s post-arrest, post-post Miranda silence were “evidence on the same issue,” as an individual may choose not to carry out his expressed intentions for any number of reasons. It is not inconsistent necessarily for Lupfer to have testified, on one hand, that he, at some undetermined point in the future, intended to speak with police, and, on the other hand, to have remained silent after being read his Miranda rights and seeing a charge of first-degree murder made manifest.

Therefore, when the prosecution elicits evidence relating to a defendant’s post-arrest, post-Miranda silence to rebut an implication that the defendant merely intended, at some undetermined point in the future, to cooperate with police, the probative value of such evidence is dwarfed by the danger of unfair prejudice. The evidence was inadmissible under Rule 5–403.

COMMENTARY: “An error is not harmless unless, upon an independent review of the record, a reviewing court is able to declare beyond a reasonable doubt that the error in no way influenced the verdict.” Grier, 351 Md. at 263.

The viability of Lupfer’s defense at trial — that Yarbray’s death was the unintended consequences of a struggle between Lupfer and Yarbray over a gun — hinged on Lupfer’s credibility. Thus, the error in allowing the inadmissible evidence was not harmless beyond a reasonable doubt. See Dupree v. State, 352 Md. 314 (1998).

PRACTICE TIPS: Where “the issue … may be decided either as a matter of state constitutional law or based on rules of evidence,” a court should dispose of the case on evidentiary grounds, because “nothing is better settled than the principle that courts should not decide constitutional issues unnecessarily[.]” Wills v. State, 82 Md.App. 669, 677 (1990) (quoting State v. Raithel, 285 Md. 478, 484 (1979)).