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Opinions – Maryland Court of Appeals: 7/18/11

Administrative Law

Standing for judicial review

BOTTOM LINE: Petitioners lacked standing to maintain an action for judicial review of a final administrative decision by the Prince George’s County Council since petitioners did not reside in, have a property interest in or pay property taxes in the county.

CASE: Gosain v. County Council of Prince George’s County, Maryland, No. 26, Sept. Term, 2008 (filed June 22, 2011) (Judges Bell, Harrell, Battaglia, Greene, Murphy, ELDRIDGE (retired, specially assigned) & Raker (retired, specially assigned)). RecordFax No. 11-0622-20, 16 pages.

FACTS: Atapco Ritchie Interchange, Inc., and Ritchie Interchange, LLC, are the owners and developers of real property in Prince George’s County known as the Steeplechase Business Park. Atapco submitted to the County Planning Board an application for approval of a detailed site plan for a portion of the Business Park property. After a hearing, the Board approved the site plan for the parcel with conditions.

The County District Council “elected to review” the Planning Board’s approval. Subsequently several individuals, including Rishi Gosain and Abid Chaudhry, filed with the District Council an appeal of the Board’s approval. The District Council affirmed the Board’s decision.

Gosain and Chaudhry filed in the circuit court a petition for judicial review of the District Council’s final decision. Atapco filed a motion to dismiss the action, arguing that Gosain and Chaudhry lacked standing under the Regional District Act, Article 28, §8-106(e), to have judicial review of a decision by the District Council.

Evidence introduced at the hearing on the motion to dismiss disclosed that Gosain was a resident of Springfield, Virginia, and he operated an Exxon gasoline service station in Prince George’s County. This service station did business as “Campus Way Exxon,” and the business was owned by a corporation named “Sona Auto Care, Inc.” The corporation leased the building and land from Exxon Mobil and had a franchise agreement with Exxon Mobil. In addition, taxes paid to Prince George’s County and the State of Maryland in connection with the business have been paid by the Sona Auto Care.

Gosain testified that he owned the corporation and operated the business with ten employees. The personal property tax return filed by Sona Auto Care listed Gosain as president of the corporation.

Furthermore, Chaudhry operated a BP-Amoco gasoline service station in Prince George’s County. Between 1998 and December 2005, the service station property was owned by BP-Amoco. In December 2005, the property was purchased by MNA, LLC. Chaudhry and two partners own the corporation. Chaudhry did not reside in Prince George’s County.

The circuit court dismissed the petition for judicial review. The Court of Special Appeals affirmed.

Gosain and Chaudhry appealed to the Court of Appeals, which affirmed.

LAW: The first sentence of Article 28, §8-106(e), the Regional District Act, reads: “In Prince George’s County, 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.”

Literally, the phrase “any person … in Prince George’s County” could mean all individuals in Prince George’s County, including transients, visitors, those passing through, etc., at any particular time.

Prior to 1965, the statute read: “In Prince George’s County, any person aggrieved by a final decision of the district council, whether such decision is affirmative or negative in form, is entitled to judicial review thereof.”

In 1965, however, the statute was re-written by House Bill 927, which was enacted as Ch. 898 of the Acts of 1965. Ch. 898 repealed the statute’s prior language quoted above and substituted entirely new language. When first introduced, House Bill 927 read (Laws of Maryland 1965, at 1517): “In Prince George’s County, the applicant, any incorporated municipality, any person aggrieved, any taxpayer, or any group or association of taxpayers in the County, is authorized to have judicial review of any final decision of the district council.”

This provision was extensively amended during its journey through the General Assembly. As finally passed and signed by the Governor, the first sentence of the standing provision in Ch. 898 of the Acts of 1965 read: “In Prince George’s County, any incorporated municipality located in Prince George’s County, any person or taxpayer in Prince George’s County, the applicant who is an aggrieved party, is authorized to have judicial review of any final decision of the district council.”

Sometime after 1965, a non-substantive amendment to the provision changed the phrase “is authorized to have judicial review” to “may have judicial review.”

In 1994, after the phrase “any person or taxpayer in Prince George’s County,” the following language was inserted: “any civic or homeowners association representing property owners affected by a final district council decision.” Significantly, Ch. 405 also changed the phrase “and the applicant who is an aggrieved party” to “and, if aggrieved, the applicant.” The title of Ch. 405 stated: “For the purpose of clarifying that the aggrievement standard required to appeal to the circuit court only applies to an applicant.”

Thus, the wording and title of the 1994 Amendment to the statute, as well as the changes effected by the 1965 amendment to the statute, make it clear that, except for the applicant, aggrievement is not required for standing to bring a §8-106(e) judicial review action. Consequently, it was not a requirement that Gosain and Chaudhry be aggrieved in order to maintain this action.

As for what persons or entities were intended to be encompassed by the phrase “any person or taxpayer in Prince George’s County,” it seems clear from the statutory wording and legislative history that the General Assembly contemplated a broad category of persons or entities having standing. The amendments to §8-106(e) over the years had the effect of expanding the class of persons or entities having standing.

Traditionally, standing to challenge in court governmental decisions regarding the use of land has been based on the challenger’s having some type of interest in real property in the area. Under §8-106(e), of course, the pertinent area is all of Prince George’s County. Moreover, the 1994 amendment to §8-106(e) granted standing to associations “representing property owners affected by a final district council decision,” indicating that an interest in property was the basis for standing.

Consequently, a reasonable interpretation of “any person … in Prince George’s County” means a person or entity having some type of interest in real property in Prince George’s County. This would include a person residing in Prince George’s County or owning a residence in the County, regardless of whether it is the person’s domicile. It would include businesses or other entities owning or leasing real estate in Prince George’s County.

Similarly, it is reasonable to conclude that “any … taxpayer in Prince George’s County” means any person or entity which pays property taxes to Prince George’s County. See Superior Outdoor Signs v. Eller Media Company, 150 Md.App. 479 (2003).

Neither Gosain nor Chaudhry resided or had a property interest in a residence in Prince George’s County, nor owned or leased any real property in the County, nor paid property taxes to the County. The two corporations, Sona Auto Care, Inc., and MNA, LLC, owned the two service station properties and the businesses. The corporations, not Gosain and Chaudhry, paid property taxes to Prince George’s County. Neither corporation, however, was a party to this litigation.

Accordingly, Gosain and Chaudhry lacked standing under Article 28, §8-106(e) to maintain this judicial review action.

COMMENTARY: Both the circuit court and the Court of Special Appeals held that “any person … in Prince George’s County” meant a person domiciled in Prince George’s County. They relied on Egloff v. Prince George’s County, 130 Md.App. 113 (2000).

In holding that one who occasionally resided in Prince George’s County was not “a person … in Prince George’s County” within the meaning of §8-106(e), the Egloff opinion stated: “The Court of Appeals has explained that, where a constitutional or statutory provision confers a benefit based on residency, a person’s residence is deemed to be the place where he or she is domiciled, not merely where he or she is physically present. See Bainum v. Kalen, 272 Md. 490, 496-99 (1974).” Id. at 126-127.

What Bainum held was that the “words ‘reside’ or ‘resident’ in a constitutional provision or statute delineating rights, duties, obligations, privileges, etc., would be construed to mean ‘domicile’ unless a contrary intent be shown.” Bainum, 272 Md. at 496.

However, §8-106(e) of the Regional District Act has never contained the words “reside” or “resident” or “residing.” In fact, the legislative history shows that the General Assembly in 1965 rejected using the word “residing.”

Section 8-106(e) contains the word “in,” not the word “reside.” There is no principle that the word “in” should be construed as “domicile.”

Thus, Gosain and Chaudhry were not required to be domiciled in Prince George’s County in order to have standing,

PRACTICE TIPS: Since a corporation is a distinct legal entity, separate and apart from its stockholders, it takes title to real property and holds that property in its own name, while a stockholders do not. Dean v. Pinder, 312 Md. 154, 164 (1988).

Administrative Law

Driver’s license suspension

BOTTOM LINE: At a license suspension hearing, the Motor Vehicle Administration was not required to establish, nor was the judge required to find, that the officer stopped the suspected drunk driver on a highway or publicly-used private property, because the implied consent statute applies to any driver who avails himself of the privilege of driving on Maryland’s roadways.

CASE: Motor Vehicles Administration v. Loane, No. 52, Sept. Term, 2010 (filed June 22, 2011) (Judges Bell, Harrell, Battaglia, Greene, Murphy, Adkins & BARBERA). RecordFax No. 11-0622-21, 22 pages.

FACTS: On May 17, 2009, Officer Karsmith of the Ocean City Police Department stopped Frank William Loane, Jr. for failing to obey lane directions. After detecting an odor of alcohol on Loane’s breath, Officer Karsmith administered field sobriety tests. Loane failed to complete those tests.

Officer Karsmith then asked Loane to submit to a chemical breath test, and informed Loane of his right to refuse to submit to the breath test and, if he did, the resulting administrative sanctions. Officer Karsmith provided Loane Form DR-15, entitled “Advice of Rights,” which explains the administrative process and the rights afforded a driver under the statute. Loane refused to submit to the breath test and signed Form DR-15. That form included a “Alcohol concentration test refused” check box, which was marked to indicate Loane’s refusal. In accordance with §16-205.1(b)(3), Officer Karsmith confiscated Loane’s driver’s license and issued him a temporary license and an Order of Suspension.

Officer Karsmith completed and signed Form DR-15A, entitled “Officer’s Certification and Order of Suspension.” Officer Karsmith indicated on the form that he was a member of the Ocean City Police Department and had stopped Loane for “failing to follow lane directions.”

Officer Karsmith forwarded to the Motor Vehicle Administration (“MVA”) Loane’s driver’s license, the completed and signed Form DR-15, and the completed and signed Form DR-15A.

Loane requested an administrative hearing to show cause why his driver’s license should not be suspended concerning the refusal to take the test. At the hearing, Loane did not present evidence or testimony to rebut the information contained on Form DR-15A, nor did he request issuance of a subpoena requiring Officer Karsmith to attend the hearing. Instead, Loane moved for “no action,” arguing that his license could not be suspended unless the MVA first proved where the stop occurred, whether on a highway or private property used by the public in general.

The Administrative Law Judge (ALJ) found that Officer Karsmith had reasonable grounds to detain Loane, that there was evidence Loane had used alcohol, and that Loane refused to submit to the test after being fully advised of the sanctions for refusal. The ALJ then suspended Loane’s driver’s license for 120 days. Loane filed a petition for judicial review of the ALJ’s decision in circuit court. The circuit court reversed the decision of the ALJ and remanded the case to the Office of Administrative Hearings (OAH) with directions to reverse the suspension of Loane’s license.

The MVA appealed to the Court of Appeals, which reversed the decision of the circuit court and remanded the case.

LAW: Pursuant to subsection (a)(2) of §16-205.1 of the Maryland Transportation Article (TR), any person who drives or attempts to drive a motor vehicle on a highway or on any private property that is used by the public in general in the state of Maryland is deemed to have consented to take a test if the person should be detained on suspicion of driving or attempting to drive while under the influence of alcohol. The statute provides for automatic suspension of a driver’s license in the event that the driver refuses to submit to such testing. See TR §16-205.1(b)(1)(i)(3)(A). A driver may seek review of that suspension at a “show cause” hearing before an ALJ, at the OAH.

Here, the question was whether, at a driver’s license suspension hearing conducted pursuant to the statute, the MVA must establish and the ALJ must find that the officer stopped the driver on a highway or publicly-used private property.

When the language of a statute is clearly consistent with the apparent purpose of the statute and the result is not absurd, no further inquiry into legislative intent is required. Beyond plain meaning, the purpose of the statute may be ascertained by examining the Legislature’s statement of a statute’s purposes, and courts may consider other “external manifestations” or “persuasive evidence” indicating the legislative intent.

However, the language of a statute cannot be divorced from its context. Thus, even where the language of the statute is plain, its meaning is controlled by its context. In short, the statutory language must be construed in light of and governed by its context within the overall statutory scheme. An appellate court may consider evidence such as a bill’s title and function paragraphs, amendments that occurred as it passed through the Legislature, and its relationship to earlier and subsequent legislation to ascertain the Legislature’s goal in enacting the statute.

Subsection (a)(2) contains two references to driving or attempting to drive. First, the “implied consent” clause establishes that any person who drives or attempts to drive a motor vehicle on a highway or on any private property that is used by the public in general in this State is deemed to have consented to take a test. TR §16-205.1(a)(2). Second, the “applicability clause” provides that submission to the breath test is required if the person is detained on suspicion of driving or attempting to drive while under the influence of alcohol. Id.

In this case, the MVA asserted that the reference in subsection (a)(2) to “a highway or any private property that is used by the public in general” related only to the “consent” to testing that drivers impliedly give in return for the privilege to drive on Maryland’s roadways. The MVA further argued that the statute applies regardless of whether a driver is stopped on a highway, a publicly-used private road, or purely private property; in other words, that the statute does not preclude suspension if a motorist is detained somewhere other than on a highway or private property used by the public in general. When viewed in its entirety, the statute supported the MVA’s arguments.

If, as Loane advocated, the General Assembly had intended through the implied consent clause to limit applicability of the statute to only those situations in which the motorist is driving on a highway or a publicly-used private roadway, it would have been unnecessarily repetitive to refer to “driving or attempting to drive” within the applicability clause. To give effect to each clause of subsection (a)(2) and to avoid rendering either clause meaningless or nugatory, the implied consent clause must be read as establishing simply that any driver who has availed himself or herself of the privilege of driving on Maryland’s roadways impliedly consents to submitting to a breath test. The “applicability clause” plainly indicates that the consented-to breath test is triggered whenever an officer has stopped or detained a driver on suspicion of driving while under the influence of alcohol. Noticeably absent from the applicability clause is any indication that the statute applies only to stops of a person driving on a highway or publicly-used private property.

Thus, subsection (a)(2) indicates that the reach of the statute is broad — that is, that is, the administrative license provisions apply to any licensed driver, whether driving on public or purely private property in Maryland. Maryland’s drunk-driving provisions generally were enacted for the protection of the public. The menace posed by an impaired driver on purely private property is often no different from that posed by one who ventures onto property open to the public generally. Furthermore, there is never a guarantee that a vehicle driven by someone in an impaired condition will remain off the roadways for long.

Therefore, the statute did not require the MVA to prove at the show cause administrative hearing that the officer stopped Loane on a highway or private property used by the public in general. The ALJ made all the findings required by subsection (f)(8)(i) of the Statute before suspending Loane’s license to drive.

Accordingly, the circuit court’s judgment to the contrary was reversed, and the case remanded with directions to affirm the decision of the MVA.

COMMENTARY: Reading subsection (a)(2) in conjunction with other provisions of the statute confirmed the Court’s construction of subsection (a)(2). Subsection (f)(7)(i) sets forth the issues that the ALJ is to consider at the show cause administrative hearing. The location of the stop is not among the issues listed in that subsection, nor is the location of the stop among the specific findings listed in subsection (f)(8)(i) that require suspension of the motorist’s license to drive. Rather, the only issues cognizable at the show cause hearing are those listed in (f)(7)(i) and the only findings of the ALJ that precipitate license suspension are listed in (f)(8)(i). Motor Vehicle Admin. v. Jones, 380 Md. 164 (2004); see also Motor Vehicle Admin. v. Aiken, 418 Md. 11, 26 (2011).

PRACTICE TIPS: A reviewing court may reverse or modify an administrative decision only if a “substantial right” of an individual may have been prejudiced because of a finding, conclusion, or decision that is unconstitutional, that exceeds the statutory authority or jurisdiction of the final decision maker, that results from an unlawful procedure, that is affected by any other error of law, that is unsupported by competent, material, and substantial evidence in light of the entire record as submitted, or that is arbitrary or capricious.

Criminal Procedure

Penalty provisions of criminal statutes

BOTTOM LINE: A statute criminalizing conduct but not containing a related penalty provision cannot constitute a crime.

CASE: Evans v. State, No. 72, Sept. Term, 2010 (filed June 30, 2011) (Judges Bell, Harrell, BATTAGLIA, Greene, Murphy, Adkins & Barbera). RecordFax No. 11-0630-20, 27 pages.

FACTS: Leroy Evans, Jr. was convicted of the unlawful obliteration, removal, change, or alteration of a manufacturer’s identification mark or number on a firearm, pursuant to PS §5-142. The court sentenced Evans to a five-year term of incarceration, which was to run consecutive to a sentence on another count.

In the Court of Special Appeals, Evans argued that the circuit court erred by imposing multiple sentences for possession of a firearm during and in relation to a drug trafficking crime, for imposing multiple sentences for unlawful possession of a firearm and for imposing a sentence for obliterating the serial number on a firearm. The Court of Special Appeals affirmed the trial court’s sentences.

Evans appealed to the Court of Appeals, which reversed and remanded.

LAW: “[A] crime is made up of two parts, forbidden conduct and a prescribed penalty. The former without the latter is no crime. In many cases the section of the statute that describes the forbidden conduct concludes with a statement of the punishment; or perhaps one section sets forth the forbidden conduct and the next section the punishment.” LaFave, Criminal Law §1.2(d), at 12.

When a statute, such as the instant one, fails to internally contain a penalty provision, its ability to criminalize conduct becomes more complicated. In some situations there is “little difficulty” for a court to determine criminality. See LaFave, § 1.2(d), at 12-13; Chen v. State, 370 Md. 99 (2002).

In the more difficult situation, however, the omission of a penalty provision in or related to a statute cannot support a criminal conviction for its violation. See LaFave, §1.2(d), at 13.9.

PS §5-142(a) prohibits the obliteration, removal, changing, or altering of the manufacturer’s identification mark or number on a firearm. PS §5-143(a) prohibits a dealer or other person from knowingly participating in the illegal sale, rental, transfer, purchase, possession, or receipt of a regulated firearm in violation of this subtitle. A person violating this section is subject to imprisonment not exceeding 5 years or a fine not exceeding $10,000 or both. PS §5-143(b).

A firearm has been defined as: “(i) a weapon that expels, is designed to expel, or may readily be converted to expel a projectile by the action of an explosive; or (ii) the frame or receiver of such a weapon. (2) “Firearm” includes a starter gun.” PS §5-101(h). The provisions of §5-143(b), however, refer only to a “regulated firearm,” which is a particular subset of firearms. See PS § 5-101(p).

The nomenclature of firearms and regulated firearms represents a meaningful distinction between §§5-142 and 5-143, for, ostensibly §5-143 would only penalize the obliteration of a mark or number on a regulated firearm, leaving obliteration of a mark or number on any firearm, other than that regulated, without penalty. Reconciliation of the two provisions in a plain meaning analysis, then, is difficult.

In 1941, the General Assembly enacted a “Pistols” Subtitle to the Maryland Code with a purpose of regulating the “sale, identification marks and possession of pistols.” One section of the Subtitle forbade “anyone to obliterate, remove, change or alter the manufacturer’s identification mark or number on any firearms,” without a correlative firearms definition.

The other prohibited acts in the list included proscriptions on selling or transferring a pistol or revolver to persons convicted of a crime of violence or who were fugitives from justice, possessing a pistol or revolver if a person had been convicted of a crime of violence or who were fugitives from justice, and possessing, selling, transferring, or disposing of a stolen pistol or revolver. The latter two sections explicitly dealt with a “pistol or revolver,” a term which was defined as “any firearm with barrel less than twelve inches in length.”

A catch-all penalty provision provided that any person violating any of the provisions of the sub-title shall be fined not more than $300 or imprisonment for not more than one 1 year, or both.

In 1966, the Legislature substantially affected the “Pistols” Subtitle, although the provision related to obliterating the manufacturer’s identification mark on a firearm remained the same. The catch-all penalty provision was altered to increase the maximum penalty, and a new provision was added to the section for making false statements in an application to purchase a pistol or revolver.

The Maryland Gun Violence Act of 1996 changed the landscape of firearms provisions. The “Pistols” Subtitle was renamed “Regulated Firearms.” The prohibition on obliterating the manufacturer’s identification mark or number on a firearm remained unchanged, however.

In the other three prohibitory provisions originally associated with obliteration, the Legislature replaced the terms “pistol or revolver” with “regulated firearm.” The Legislature also differentiated “regulated firearm” from “firearm,” as those definitions exist today.

The former catch-all penalty provision, enacted in 1941, was repealed. A new penalty provision was enacted, which added five penalty provisions. See Article 27, §449.

In 2003, the “Regulated Firearms” Subheading was repealed and reenacted as the “Regulated Firearms” Subtitle in the Public Safety Article. The prohibited act of obliterating the manufacturer’s identification mark or number on a firearm was renumbered as §5-142, and the language was changed from “any firearms” to “a firearm.”

At this point, §5-142 became an “orphan.” The other three prohibited acts that had first appeared in the former “Pistols” Subtitle, which were later expanded, were repealed and reenacted in Chapter 5 of the 2003 Laws of Maryland. The former penalty section, §449 of Article 27, was broken up into its respective parts, and each subsection was matched with specific prohibited acts throughout the Subtitle except for §449(f), which became PS §5-143. Thus, it is clear that an oversight led to the failure to provide a penalty provision in or related to §5-142.

Because §5-142 contains no penalty provision, and has no related penalty, obliterating, removing, changing or altering the manufacturer’s identification mark or number on a firearm is not a crime.

Where an individual is convicted pursuant to a charge that does not constitute a crime, that conviction must be reversed and the sentence vacated. See Bruce v. State, 317 Md. 642 (1989). Accordingly, the judgment of the Court of Special Appeals was reversed.

COMMENTARY: “If on trial for a violation of [PS §5-142(b)] possession of the firearm by the defendant is established, the defendant is presumed to have obliterated, removed, changed, or altered the manufacturer’s identification mark or number on the firearm.” PS §5-142(b).

The State averred that the term “possession” in §5-143(a) includes the presumptive possession language of §5-142(b), so that Evans was guilty of possessing a firearm with an obliterated identification mark or number.

Evans, however, was convicted of obliterating the manufacturer’s identification mark or number on a firearm, not of possession. The presumption of possession is an evidentiary one, and thus, §5-142(b) does not place the act of obliterating the manufacturer’s identification mark or number on a firearm in §5-142 and illegal possession of a regulated firearm in §5-143(a) on the “same footing.” Keller v. State, 11 Md. 525, 536 (1857). The State’s reliance on Keller was therefore misplaced.

PRACTICE TIPS: Where the Legislature fails to provide a penalty for a common law offense, the sentence is left to the “sound discretion of the trial court, subject only to the constitutional prohibition against cruel and unusual punishment.” Street v. State, 307 Md. 262, 267 (1986).

Criminal Procedure

Jury instructions

BOTTOM LINE: Jury instruction not objected to in manslaughter trial that erroneously defined state’s burden of proof warranted exercise of plain error review on appeal.

CASE: Savoy v. State, No. 120, Sept. Term, 2009 (filed June 23, 2011) (Judges Bell, Greene, Adkins, BARBERA & Eldridge (retired, specially assigned) (Judges Harrell & Battaglia, dissenting)). RecordFax No. 11-0623-20, 41 pages.

FACTS: Marvin Watts was shot and killed in May of 1993. Ricky Savoy was arrested and charged with various crimes related to the shooting.

At Savoy’s trial, the jury instructions issued by the court stated that the defendant was “presumed innocent of the charges until proven guilty beyond a reasonable doubt and to a moral certainty.” The instruction defined the standard for beyond a reasonable doubt as “certainty based upon convincing grounds of probability.” Savoy did not object to the instruction at trial. Savoy was subsequently convicted of involuntary manslaughter, use of a handgun in the commission of a crime of violence, and carrying a handgun upon his person.

On appeal to the Court of Special Appeals, Savoy initially did not contest the reasonable doubt instruction, and argued only that the handgun-related convictions should merge. His sentence was thereby reduced to 30 years imprisonment.

Savoy pursued post-conviction relief, which resulted in his receiving a second, belated direct appeal on the ground that his counsel on direct appeal was ineffective in failing to challenge, as plainly erroneous, the reasonable doubt instruction given at trial. The Court of Special Appeals heard the appeal and affirmed the judgments of conviction.

Savoy appealed to the Court of Appeals, which reversed the decision of Court of Special Appeals and granted Savoy a new trial.

LAW: Both parties agreed that the reasonable doubt instruction given at Savoy’s trial contained erroneous language, and that Savoy did not lodge a contemporaneous objection to the instruction. The parties disagreed, however, as to whether Savoy’s failure to lodge a contemporaneous objection to the instruction erected procedural and substantive hurdles to obtaining appellate relief.

Rule 8-131(a) is the general rule governing procedural forfeiture of an appellate claim through inaction at the trial level. Rule 8-131 provides that ordinarily, the appellate court will not decide any issue other than jurisdiction over the subject matter and jurisdiction over the person unless it plainly appears to have been raised in or decided by the trial court. Maryland courts have not hesitated to decline to review on direct appeal claims of constitutional dimension that were not preserved under Rule 8-131(a). See Robinson v. State, 410 Md. 91, 106, (2009).

Likewise, Maryland Rule 4-325(e) provides that no party may assign as error the giving or the failure to give an instruction unless the party objects on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection. The Rule further states that an appellate court, on its own initiative or on the suggestion of a party, may nevertheless take cognizance of any plain error in the instructions, material to the rights of the defendant, despite a failure to object. In this case, Savoy was required, but failed, to make a timely objection to the erroneous jury instruction. As such, Savoy had no right to automatic appellate review of the matter. Accordingly, the presenting issue was whether the error was appropriate for review under the guise of plain error.

The circumstances in which an appellate court should take cognizance of unobjected to error are when the error is compelling, extraordinary, exceptional or fundamental to assure the defendant a fair trial. State v. Hutchinson, 287 Md. 198, 203 (1980). Factors to consider in that determination include the materiality of the error in the context in which it arose, giving due regard to whether the error was purely technical, the product of conscious design or trial tactics or the result of bald inattention.” Id. The Due Process Clause of the Fourteenth Amendment to the United States Constitution requires the State to prove every element of an offense charged beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970).

The Constitution does not, however, require that any particular form of words be used in advising the jury of the government’s burden of proof. Rather, taken as a whole, the instructions must correctly convey the concept of reasonable doubt to the jury. Victor v. Nebraska, 511 U.S. 1 (1994). The inquiry is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution. Estelle v. McGuire, 502 U.S. 62, 72 (1991). If upon applying that standard of review, it is determined that the reasonable doubt instruction was constitutionally deficient, then the error is structural and defies analysis by harmless error standards. See Sullivan v. Louisiana, 508 U.S. 275 (1993).

In Cage v. Louisiana, the Supreme Court found a reasonable doubt instruction to be constitutionally deficient in that the instruction, when viewed as a whole, suggested a higher degree of doubt than is required for acquittal, because the instruction equated reasonable doubt with “grave uncertainty” and “actual substantial doubt.” Cage v. Louisiana, 498 U.S. 39, 41 (1990). The Court reversed the conviction on the basis of the constitutionally deficient instruction. Id. Similarly, in this case, the jury instructions contained no language explaining or refining the phrase “a convincing ground of probability” which would give some assurance that the jury understood the concept of proof beyond a reasonable doubt as requiring more than a mere “probability.” See Himple v. State, 101 Md.App. 579, 582-83 (1994).

Compounding this defect was the trial court’s omission of the phrase “without reservation” from the portion of the instruction that stated that the test of reasonable doubt is the evidence that the State has produced “must be so convincing that it would enable you to act on an important piece of business in everyday life” (rather than “act on an important piece of business in everyday life without reservation.”). Accordingly, the error in the reasonable doubt instruction given in Savoy’s case was of constitutional dimension and was “structural” error. Such error was self-evidently plain and material to Savoy’s fundamental right to a fair trial. See State v. Hutchinson, 287 Md. 198, 203 (1980).

The ultimate question, however, was whether the discretion of the Court of Special Appeals or Court of Appeals should be exercised to take cognizance of the un-objected-to error. Maryland courts have not hesitated to exercise discretion, in the appropriate (albeit rare) case, to take cognizance of un-objected-to instructional error under the guise of plain error. See Richmond v. State, 330 Md. 223 (1993). Savoy’s case was an appropriate case for the exercise of plain error review, in that the instructional error was serious, as it undermined a core value of constitutional criminal jurisprudence: that a person charged with a crime shall not be convicted on less than proof beyond a reasonable doubt. The prejudice to Savoy’s case was therefore presumed. Sullivan, 508 U.S. at 280. It followed from the nature of the error that Savoy was entitled to a new trial.

Accordingly, the judgment of the Court of Special Appeals was reversed, the judgments of the circuit court and Court of Special Appeals were vacated, and a new trial was ordered.

COMMENTARY: Savoy disagreed that the “plain error” standard of Rule 4-325(e) necessarily controlled his right to appellate review of the challenged instruction. Specifically, Savoy argued that preservation by contemporaneous objection is not required to preserve an appellate challenge to a reasonable doubt instruction that lowers the constitutional standard of proof, because “waiver” of such error requires that it be a Zerbst-type “intelligent and knowing” waiver. Savoy further argued that an objection is unnecessary when, as here, the claimed instructional error creates a “structural” problem.

The Court of Appeals disagreed with both of Savoy’s arguments as to why, in his view, the “plain error” standard of Rule 4-325(e) did not apply to the instructional error the parties agree occurred in this case. For one, Savoy confused the concepts of a Zerbst-type substantive waiver of a known right or privilege, with a procedural forfeiture of the right to appellate review of trial error by failure to lodge a contemporaneous objection. Forfeiture is the failure to make a timely assertion of a right; by contrast, waiver is the intentional relinquishment or abandonment of a known right. State v. Rich, 415 Md. 567, 580 (2010). The two doctrines are distinct, and the “knowing and intelligent” waiver concept is not applicable to the failure to object to an erroneous jury instruction. Hunt v. State, 345 Md. 122, 150 (1997).

Moreover, a structural error such as the one asserted here is not immune from the ordinary appellate-review requirement of a contemporaneous objection to the claimed error, at trial. A post-conviction petitioner is not excused from the contemporaneous objection requirement, in connection with an allegedly constitutionally deficient reasonable doubt instruction, merely because the error involved fundamental constitutional rights. State v. Rose, 345 Md. 238, 248-49 (1997). Thus, appellate review of unpreserved instructional errors is limited to circumstances warranting plain error review, regardless of the nature of the error.

DISSENT: According to the dissent, the majority wrongly focused almost solely on two problematic phrases in the present jury instruction; however, when viewed as a whole rather than as a series of isolated and dissected phrases and sentences, the jury instructions extinguished any possibility that the jury interpreted unconstitutionally the reasonable doubt instruction. Thus, although there was error in the subject jury instruction, this error was not plain and material, and Savoy was not entitled to a new trial.

PRACTICE TIPS: The use of the phrase “moral certainty” in jury instructions has been discouraged by courts around the country. Courts have expressed concern that the term could leave the jury feeling justified in convicting based on a feeling rather than on the facts of the case. For this reason, the use of the term without surrounding clarifying language can be reversible error.

Negligence

Duty to non-employee

BOTTOM LINE: Because defendant did not owe a duty of care to the decedent as a “creating employer,” regulations promulgated under the Federal Occupational Safety and Health Act or the Maryland Occupational Safety and Health Act were inadmissible as evidence of the standard of care.

CASE: C&M Builders, LLC v. Strub, No. 77, Sept. Term, 2010 (filed June 23, 2011) (Judges Bell, Harrell, Battaglia, GREENE, Murphy, Adkins & Barbera). RecordFax No. 11-0623-21, 39 pages.

FACTS: C&M Builders, LLC entered into an oral contract with Bayside Builders, Inc., a general contractor, to finish framing what was to be a three story row house in Baltimore City. As a subcontractor, C&M agreed to complete the framing work, which included framing the walls on the first floor and constructing the flooring, roof and walls for the second and third floors.

When C&M arrived at the worksite, the first floor had been framed by Bayside and contained a rectangular opening in the first floor above the basement that was not covered or guarded. C&M’s contract required it to create, and it did create, the same size openings in the second and third floors, so that a staircase system could be installed by the staircase subcontractor. C&M used the openings to move plywood, sheathing, lumber and other framing materials between the floors and the roof. The C&M workers built temporary ladders out of 2? x 4? lumber that were nailed at the top side rail into each opening in order to move workers and materials between floors.

On May 5, 2006, C&M finished the framing work, so the workers removed the ladders and put them in a trash pile on the site and covered up the basement and first floor window openings with plywood. C&M workers agreed not to cover the stairwell openings before leaving the site because Bayside wanted the openings left uncovered for its staircase subcontractor.

Three weeks later, Bayside entered into a contract with Comfort Masters Cooling and Heating, Inc. (Comfort Masters), an HVAC subcontractor, to provide and install all HVAC equipment and duct work for the property. Even though the staircases had not yet been installed, Bayside and Comfort Masters agreed that the HVAC work would proceed.

On May 26, 2006, Wayne Nocar and two other Comfort Masters’s employees arrived at the property to begin the HVAC work. When the Comfort Masters’s employees arrived the property was not as C&M had left it: the ladders had been reclaimed from the trash and one had been nailed into the third floor opening, the front door was open, and windows that had been covered with plywood were uncovered and open. Comfort Masters’s employees worked for the next three hours inside the row house, climbing up and down the ladders numerous times, through each of the three stairwell openings, carrying tools, duct work and other materials between floors.

Joshua Tudor had been working with Nocar on the third floor prior to the accident, but they could not complete the work required because they had neglected to bring all of the necessary parts with them. Therefore, Tudor climbed back down to the second floor to do work there, but, Nocar remained on the third floor.

According to Tudor’s testimony, Nocar removed the nail holding the ladder in place between the second and third floors and pulled the ladder up to the third floor. Tudor testified that the ladder was leaning right where the return box was supposed to go. Nocar had leaned the ladder across the hole up against the metal stud, which are not made for structural support. When Nocar leaned on the stud, it bent and tipped the ladder. Nocar fell approximately 26 feet from the third floor into the basement of the row house sustaining fatal injuries.

Kelly Lynn Strub sued C&M on behalf of her son alleging negligence in the death of Nocar. Prior to trial, C&M moved in limine to preclude Strub from introducing expert testimony that C&M either owed or breached a statutory duty of care to Nocar pursuant either to the Federal Occupational Safety and Health Act, 29 U.S.C. §651 (OSHA) or the Maryland Occupational Safety and Health Act, LE §5-101 (MOSHA) regulations that require holes to be guarded and covered at a worksite when any other workers will be foreseeably exposed to them. The trial court granted the motion.

C&M moved for judgment on the ground that Nocar assumed the risk of injury and was contributorily negligent. The trial judge denied the motion and submitted the case to the jury, which returned a verdict in favor of C&M.

The Court of Special Appeals held that the trial judge erred in precluding expert testimony regarding particular MOSHA and OSHA regulations because, as a “creating employer,” C&M owed a duty to Nocar to comply with MOSHA. Additionally, the intermediate appellate court held that the case was properly submitted to the jury and could not have been resolved on C&M’s motion for judgment.

C&M appealed to the Court of Appeals, which reversed.

LAW: The admissibility of expert testimony is generally within the discretion of the trial judge, but when a ruling on the admissibility of evidence is based “on a pure conclusion of law” it is reviewed for legal correctness. Hall v. UMMS, 398 Md. 67, 82-83 (2007).

It was undisputed that Nocar was not an employee of C&M. Thus the general duty provisions of MOSHA, §5-104(a) and §654(a)(1) did not apply. The ultimate question was whether the specific duty clauses of MOSHA, §5-104(b), and OSHA, §654(a)(2), applied as between C&M and Nocar, a non-employee, so that C&M’s violations of state or federal construction regulations would be admissible evidence of negligence.

OSHA, §654(a)(2) “creates a specific duty to comply with standards for the good of all employees on a multi-employer worksite[.]” Therefore the specific duty extends to a more general class than the general duty to provide a safe environment, which extends only to employees. Solis v. Summit Constrs. Inc., 558 F.3d 815, 818 (8th Cir.2009).

The Federal Secretary of Labor, who is charged with enforcing OSHA, has implemented a citation policy, “the multiple-employer worksite doctrine,” which places a limitation on the seemingly broad scope of OSHA §654(a)(2). In federal cases interpreting the administrative application of the doctrine, “creating employers” are held to owe a duty to non-employees where there is evidence of responsibility or duty to maintain, and where it is feasible that the employer would be in a position to remedy the hazard. See e.g., Brennan v. OSHRC, 513 F.2d 1032, 1037-39 (2d Cir.1975).

It is a well-established principle of common law that “a plaintiff may establish a prima facie case of negligence by showing: ‘(a) the violation of a statute or ordinance designed to protect a specific class of persons which includes the plaintiff, and (b) that the violation proximately caused the injury complained of.’” Allen v. Dackman, 413 Md. 132, 143-44 (2010) (quoting Brooks v. Lewin Realty, 378 Md. 70, 79 (2003)).

Neither OSHA, nor MOSHA can be used to establish negligence per se. Solis, 558 F.3d at 829. Statutes, regulations, and industry standards, however, may be admissible as evidence of applicable standards of care. See e.g., Schultz v. Bank of Am., N.A., 413 Md. 15, 35 (2010).

In Brady v. Parsons Co., 327 Md. 275 (1992), the Court of Appeals noted that “although evidence of a violation of an OSH or MOSH Act standard may be admissible in an appropriate case to assist the trier of fact in determining whether an employer or one having the duty of an employer was negligent, proof of a violation of such a standard does not establish negligence per se, nor does it … preclude consideration of the defenses of contributory negligence or assumption of risk.” Id. at 294.

Thus, the admissibility of OSHA and MOSHA standards depends on whether C&M “ha[d] the duty of an employer[.]” Id. at 294. “Creating employers” are held to owe a duty to non-employees where there is evidence of continued presence, responsibility, maintenance, etc. at the worksite. See Brennan, 513 F.2d at 1039; Beatty Equipment Leasing, Inc. v. Secretary of Labor, 577 F.2d 534 (9th Cir.1978).

C&M does not fit into this scheme. The unguarded openings (alleged violations of MOSHA and/or OSHA regulations) in the floors on the second and third stories were undisputably created by C&M, pursuant to their contract, three weeks prior to the arrival of Nocar and the Comfort Masters workcrew. C&M, however, retained no control or oversight at the worksite, and indeed, at the time of the accident, had completely finished its responsibilities under its contract with Bayside and relinquished control of the premises back to Bayside.

It was not contemplated that the scope of Custom Masters’s contract work was related to or dependent on the openings. See United States v. Pitt-Des Moines, Inc., 168 F.3d 976 (7th Cir.1999). Nor was this case factually similar to Beatty where the subcontractor’s role was to install scaffolding for use by subsequent subcontractors and the scaffolding itself violated applicable regulations. Beatty, 577 F.2d at 535.

While C&M did not exercise control in this instance, it was undisputed that C&M did create the hazard when it framed the second and third floors of the row home and left the stairwell openings uncovered and exposed its own employees to the hazard. Even if C&M “created” a hazard that was in violation of a regulation, it did not exercise continuing control, or even a presence, at the worksite at the time of Nocar’s fatal accident. Thus, the facts did not warrant application of the “multi-employer worksite doctrine” or its “creating employer” citation policy.

Accordingly, the trial court did not err in precluding Strub’s expert from testifying that C&M owed a statutory duty to Nocar, as a “creating employer,” to comply with MOSHA or OSHA regulations or that C&M’s violation of the regulations caused Nocar’s death.

COMMENTARY: “In Maryland there are three requirements that the defendant must prove to establish the defense of assumption of the risk: (1) the plaintiff had knowledge of the risk of danger; (2) the plaintiff appreciated that risk; and (3) the plaintiff voluntarily confronted the risk of danger.” American Powerlifting v. Cotillo, 401 Md. 658, 668 (2007).

In determining “whether the plaintiff had the requisite knowledge and appreciation of the risk … an objective standard” is applied. Id. at 668. Thus, the party must have known and appreciated the risk either because it is not credible that a similarly situated person would not have done so, or because the risk was so obvious that it could not have been encountered unwittingly. See Prosser and Keeton, § 68 at 487.

“[T]here are certain risks which anyone of adult age must be taken to appreciate: the danger of slipping on ice, of falling through unguarded openings, of lifting heavy objects … and doubtless many others.” Morgan State v. Walker, 397 Md. 509, 515 (2007).

Here, Nocar was voluntarily working on the third floor. Nocar and Tudor had discussed and decided that the work on the third floor could not be completed at that time and, therefore, Tudor descended safely to complete other tasks on the second floor.

Moreover, Nocar objectively appreciated the “nature and magnitude of the potential injury” posed by falling through the unguarded openings in the floor because he undisputably poked his head through the third floor opening to communicate with Tudor and cannot be said to have remained unaware that just below him were two similarly sized holes with no guardrails or coverings in place.

Finally, Nocar knowingly encountered the risk because the holes were an open and obvious hazard and the danger of falling through one or three of them would be foreseeable to a person of normal intelligence.

Thus, Nocar assumed the risk of his injury, as a matter of law, and, therefore, the trial judge erred in failing to grant C&M’s motion for judgment.

PRACTICE TIPS: The “multi-employer worksite doctrine” becomes a relevant analytical framework in judicial proceedings when a regulated entity has been cited for an OSHA violation, has challenged the citation in an administrative hearing, has then presented an adverse ruling to the OSHRC (or state counterpart) for review, and has finally brought the adverse order before the court for judicial review. Solis, 558 F.3d at 822-23.