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Opinions – 9/26/11: Maryland Court of Special Appeals

Administrative Law

Historic preservation

BOTTOM LINE: Where homeowner obtained permission from city historic preservation commission to replace his front porch with wood columns, commission’s decision denying his application for after-the-fact certificate of approval of fiberglass columns was not premised on erroneous conclusion of law.

CASE: Miller v. City of Annapolis Historic Preservation Commission, No. 219, Sept. Term, 2009 (filed Sept. 6, 2011) (Judges Eyler, D., Woodward & GRAEFF). RecordFax No. 11-0906-02, 32 pages.

FACTS: Bryan Miller and his wife owned a home within the Annapolis Historic District. When the home originally was constructed between 1903 and 1908, a single-story porch was attached. The porch subsequently was torn down, and it was replaced with a brick stoop. The Millers learned of the existence of the porch through research, and they endeavored to reconstruct it.

On August 15, 2005, the Millers submitted to the City of Annapolis Historic Preservation Commission an application for Certificate of Approval to replace the original front porch. In the request, they described the project as, “Replace original front porch with wood elements and brick base.” With respect to the columns on the porch, the Millers represented that the project would include, “Tapered wood columns with a 10 inch diameter and a profile to match the old photographs.” The objective was to reconstruct the porch that existed when the property was first built between 1903 and 1908.

The Commission approved the application on September 13, 2005, and construction commenced. In 2006, the builder hired by the Millers to construct the porch recommended that the Millers use fiberglass instead of wood to build the porch columns. Without seeking a new Certificate of Approval from the Commission, Bryan Miller allowed the builder to install fiberglass columns. In a letter dated October 15, 2007, the Commission informed Miller that it had learned that the columns installed on his porch deviated from the Certificate of Approval issued by the Commission. The Commission advised Miller that his options at that point were either to install the columns the Commission had previously approved or to submit an application for approval of an after-the-fact installation.

On November 13, 2007, the Millers submitted to the Commission another application for Certificate of Approval, which described the project was as, “Application for after-the-fact installation of porch columns.” On January 8, 2008, the Commission held a hearing on the Millers’ application, and ultimately rejected the Millers’ application for an after-the-fact Certificate of Approval to permit them to keep the fiberglass columns. The Millers sought review of the Commission’s decision in circuit court. The circuit court affirmed the Commission’s ruling.

Miller appealed to the Court of Special Appeals, which affirmed.

LAW:           On appeal, Bryan Miller contended that the Commission erred in denying his after-the-fact application for a Certificate of Approval to use fiberglass instead of wood for the columns on his porch. First, Miller argued that the Commission erred in evaluating his application pursuant to guidelines for “rehabilitation” rather than “new construction.” This evaluation was significant because the Annapolis City Code provides that the Commission should be “strict in its judgment of plans” of historic significance, but projects involving “new construction” should be afforded “lenient” review, unless in the Commission’s judgment such plans would seriously impair the historic, cultural, archaeological, or architectural significance of surrounding landmarks, sites or structures. §21.56.060(D).

Here, Miller characterized his application as a proposal for reconstruction, arguing that reconstruction is part of new construction. He emphasized that, when he initially submitted his application to the Commission, there was no porch, and there was nothing left of the original porch to be repaired or to match. Finally, he posited that, even if the Commission correctly evaluated his application under rehabilitation standards, these standards provide that a replacement feature match original materials “where possible,” and that in his case, exact replication was not possible because of current building code requirements. Although both Miller and the Commission agreed that the porch project was reconstruction, they disagreed as to whether reconstruction properly can be construed as new construction.

Statutory construction is an issue of law. Singley v. County Comm ‘rs of Frederick County, 178 Md.App. 658, cert. denied, 406 Md. 114 (2008). When interpreting the meaning of part of a county or local zoning code, the court attempts to ascertain the intention of the drafters from the plain meaning of the words of the ordinance and applies the canons of statutory construction when necessary to elucidate the meaning of the language. Id. In this case, as in Singley, the Board’s decision that the porch project was not new construction was a mixed question of law and fact. As such, pursuant to the analysis set forth in Singley, it was necessary in the case at bar to address whether a reasoning mind could find that the construction of the porch was not new construction, and if so, whether there was substantial evidence in the record to support the Commission’s finding on that issue. Id. at 676.

In this case, the question of whether Miller’s porch project constituted new construction was fairly debatable, and the record contained substantial evidence to support the Commission’s conclusion that it did not. Under the relevant statutes, “new construction” is defined as construction characterized by the introduction of new elements, sites, buildings, or structures or additions to existing buildings and structures in historic districts. By contrast, “reconstruction” means the process of reproducing, by new construction, the exact form and detail of a vanished structure, or part thereof, as it appeared at a specific period of time. “Rehabilitation” is the act or process of returning a property or building to usable condition through repair, alteration, and/or preservation of its features which are significant to its historical, architectural, and cultural values. Annapolis City Code §21.56.020.

To be sure, as Miller argued, the definition of reconstruction includes the term new construction. As the Commission noted, however, the definition of “new construction” in the Annapolis City Code requires the introduction of new elements or structures or additions to existing buildings. §21.56.020. Here, Miller was not introducing a new element; rather, he was seeking to replace an original porch that had been removed. Indeed, Miller, in his initial application to build the porch, described the project as reconstruction, not new construction. Thus, the Commission’s decision, that the porch project was not new construction and was subject to strict review, was not arbitrary or capricious, and it was supported by substantial evidence. As such, the circuit court did not err in upholding the Commission’s decision.

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: Miller additionally argued that the Commission did not have authority to ban a certain class of materials if the materials are compatible in a reconstruction. Specifically, he contended that, although the Commission may review materials for compatibility, it exceeded its authority in enacting a guideline that deemed the use of fiberglass columns not acceptable. As such, he argued that the Commission acted beyond its authority by imposing a ban on the use of fiberglass in the Annapolis Historic District.

A review of the record confirmed the Commission’s assertion that Miller did not argue before the Commission, as he did on appeal, that the guideline in question was impermissible ban on the use of fiberglass in a porch column. Accordingly, this contention was not preserved for review. See Motor Vehicle Admin. v. Weller, 390 Md. 115, 129 (2005). Even if the issue had been preserved, however, Miller’s contention would be without merit.

Three guidelines in the Design Manual addressed the use of substitute building materials. The guideline in issue here, Guideline D.28, provided that use of “contemporary synthetic or fiberglass moldings, trim, and columns is not acceptable…and should be avoided.” By its use of the word “should” rather than the term “shall,” the statute strongly discourages the use of contemporary substitute materials, but does not altogether prohibit them. Nevertheless, the Commission determined that a deviation from its preference for the use of traditional material would be inappropriate in this case.

Specifically, the Commission observed that: (1) good, quality wood was available; (2) methods could be used to prolong the life of wood; (3) only one column required an interior, steel lolly post; and (4) discernable differences between wood and fiberglass would appear over time because materials ages differently, and the columns were located in a highly visible location. Thus, even if the issue had been preserved, the record did not support Miller’s contention that the Commission exceeded its authority in imposing a ban on fiberglass. As such, Miller’s claim for relief in this regard was without merit.

PRACTICE TIPS: Appellate review of an administrative agency’s determination is generally a narrow and highly deferential inquiry. With respect to the legal conclusions, however, appellate review is less deferential, and the reviewing court and can reverse the agency’s legal decisions where the legal conclusions reached by that body are based on an erroneous interpretation or application of the zoning statutes, regulations, and ordinances relevant and applicable to the property that is the subject of the dispute. Nevertheless, a degree of deference is often accorded the position of the administrative agency whose task it is to interpret the ordinances and regulations the agency itself promulgated.

Criminal Procedure

Communications from juror

BOTTOM LINE: Trial court did not err when it failed to inform counsel that an alternate juror, who was dismissed from the case prior to the close of trial, had passed a note to the bailiff stating that the juror knew the person who accompanied one of the state’s chief witnesses into the courtroom.

CASE: Morton v. State, No. 2490, Sept. Term, 2009 (filed Sept. 2, 2011) (Judges Eyler, J., MATTRICIANI & Moylan (retired, specially assigned)). RecordFax No. 11-0902-03, 21 pages.

FACTS: Rodney Morton was charged with various sex offenses and assault crimes involving his 9-year-old daughter, I.M. At Morton’s criminal trial in Maryland circuit court, the State presented the testimony of I.M., Tamara Thompson, and Belle Goslee to prove that Morton digitally penetrated his daughter’s vagina.

During trial, an alternate juror passed a note to the bailiff at some point after Thompson, who had been sequestered, entered the courtroom to testify as the second of the prosecution’s three witnesses in its case-in-chief. The note explained that the alternate juror knew the man who had accompanied Thompson into the courtroom because he and the man worked together. The trial judge took no action at that time.

After completing her testimony, Thompson left the courtroom. Goslee, a sexual assault forensic examination (“SAFE”) nurse, testified immediately thereafter. The State then rested its case-in-chief. Just before Morton took the stand as the sole witness in his defense, there was a 10-minute recess. After the jury returned from the recess, Morton testified on his own behalf, denying any wrongful acts.

Without another recess, the State presented a rebuttal witness. The court then instructed the jury, and closing arguments were presented. The alternate juror was thereafter excused, and deliberations began at 12:05 p.m.

At that time, the trial judge informed counsel that at some point during the trial, the alternate juror had passed a note to the bailiff stating that he knew the person who had accompanied Thompson into the courtroom. The judge told counsel that because “this was going to be a quick trial” and the alternate juror’s services probably were not going to be needed, the judge had let the issue go. The judge further stated that because the alternate juror was gone, the matter clearly would not affect his decision.

The jury found Morton guilty of a third-degree sex offense and second degree assault. Morton appealed to the Court of Special Appeals, claiming that the trial court violated Md. Rule 4-326 by failing to timely notify defense counsel of the note sent by the alternate juror. The Court of Special Appeals held that issue had not been properly preserved for review, and affirmed the conviction.

LAW: Morton first argued that the trial court violated Md. Rule 4-326 by failing to timely notify defense counsel of the note sent by the alternate juror. Rule 4-326(d) provides, in pertinent part, that the court shall notify the defendant and the State’s Attorney of the receipt of any communication from the jury pertaining to the action as promptly as practicable and in any event before responding to the communication. Morton contended that the trial court’s failure to notify the parties immediately upon receiving the note constituted a violation of the mandate in Rule 4-326(d), and that the proper course of action would have been for the judge to call the parties to the bench as soon as the court received the note.

Maryland Rule 8-131(a) governs the scope of appellate review and provides, in part, that the appellate court will ordinarily not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court. Here, when the trial judge informed the attorneys about the excused juror’s note, defense counsel did not object or otherwise comment on the judge’s decision not to communicate with the remaining jurors regarding the note. Thus, this issue was not preserved for appeal.

Moreover, even if the matter had been properly preserved, Morton’s argument was to no avail. It is true that the constitutional guarantee to a criminal defendant to be present at every stage of his trial includes the right to be present whenever the court communicates with the jury in any way. See Perez v. State, —Md. —- (2011). It is also true, however, that such a communication will not be grounds for reversal if the record affirmatively shows that such communications were not prejudicial or had no tendency to influence the verdict of the jury. Midgett v. State, 216 Md. 26, 36-37 (1958).

While Rule 4-326(d) expressly requires notice to the parties of any communication from the jury, its very spirit is to provide an opportunity for input in designing an appropriate response to each question in order to assure fairness and avoid error. Smith v. State, 66 Md.App. 603, 624, cert. denied, 306 Md. 371 (1986). The most vital protection afforded by the rule, therefore, is the ability of the defendant to have input in fashioning a proper response to the jury, particularly in situations where the jury has questions about the law to be applied in reaching its verdict.

In the present case, it was undisputed that the court did not respond to the note, thereby precluding any complaint that the court violated Rule 4-326(d) by communicating with the jury without giving defense counsel an opportunity for input. As previously stated, when the trial judge then informed the attorneys about the excused juror’s note, defense counsel did not object or otherwise comment on the judge’s decision not to communicate with the remaining jurors regarding the note. As a result, the judge did not make any of the inquiries that Morton argued should have been pursued in order to rule out the possibility that the alternate juror had discussed his acquaintance with other jurors in a manner that might prejudice Morton. The only opportunity for conversation among jurors was the 10-minute recess after the State’s case in chief, immediately prior to which the jury was admonished not to discuss “anything about the case.”

In addition, the alternate juror’s communication in this case was merely a statement that he worked with the man who had accompanied Thompson into the courtroom, not a revelation about a personal relationship with the witness herself, or a question about law or facts relating to the case. Perhaps most importantly, the alternate juror was dismissed prior to jury deliberations. Therefore, any connection he may have had with Thompson could not have affected the jury’s verdict.

The record affirmatively showed that the communication sent by the alternate juror and the court’s subsequent dismissal of the alternate juror were not prejudicial to Morton and had no tendency to influence the verdict of the jury. As such, even if Morton had effectively preserved the issue for appeal, the circuit court’s actions with regard to the alternate juror’s communication did not constitute reversible error.

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: Morton additionally argued on appeal that the trial court erred in allowing Belle Goslee, a SAFE (sexual assault forensic examination) nurse, to testify as an expert witness. Morton first objected to Ms. Goslee’s testimony in a motion in limine prior to trial, arguing that the State had failed to identify her timely as an expert witness, as required by Md. Rule 4-263(d). The trial court denied the motion, and permitted Ms. Goslee to take the stand. After conducting voir dire of Ms. Goslee prior to her qualification as an expert, Morton again objected to her testimony, arguing that she was not qualified to render an expert opinion regarding the significance of her findings in a pediatric patient, citing Md. Rule 5-702.

Under Maryland Rule 4-263(n), a trial court may exclude expert testimony as a sanction for failure to comply with mandatory discovery obligations. Under Maryland Rule 4-323(a), an objection to the admission of evidence must be made at the time that the evidence is offered or as soon thereafter as the grounds for objection become apparent. Otherwise, the objection is waived. This requirement means that when a motion in limine to exclude evidence is denied, the issue of the admissibility of the evidence that was the subject of the motion is not preserved for appellate review unless a contemporaneous objection is made at the time the evidence is later introduced at trial. Klauenberg v. State, 355 Md. 528, 539 (1999). Here, when Goslee was proffered as an expert at trial, defense counsel only objected on the ground that she was not qualified as a pediatric examiner. When the prosecutor elicited Goslee’s expert testimony, including her opinion that the labial tear she observed was not a common injury in 9-year-old girls, defense counsel did not object. As such, Morton failed to preserve his “discovery sanction” objection to Goslee’s expert testimony.

Moreover, even if Morton had preserved this objection, the trial court did not abuse its discretion in declining to exclude Goslee’s expert testimony as a discovery sanction. Trial judges are vested with great discretion in applying sanctions for discovery failures. Rodriguez v. Clarke, 400 Md. 39, 57, 66 (2007). Exclusion of evidence for a discovery violation is not a favored sanction and is one of the most drastic measures that can be imposed. Thomas v. State, 397 Md. 557, 570-71 (2007). Consequently, the general rule is that when fashioning a sanction, the court should impose the least severe sanction that is consistent with the purpose of the discovery rules. Id. at 571. In this case, Morton did not claim to be surprised that Goslee would testify about her examination findings, because the State timely disclosed her as a lay witness and provided defense counsel with her written report.

Given that defense counsel made no effort to mitigate the prejudice caused by the late disclosure of Goslee as an expert witness, the trial court did not abuse its discretion in denying Morton’s motion to exclude her expert testimony as a discovery sanction.

PRACTICE TIPS: Under Maryland law, a trial court has broad discretion over the admissibility of expert testimony. Expert testimony may be admitted if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court must determine whether the witness is qualified as an expert by knowledge, skill, experience, training, or education; thus, to qualify as an expert, one need only possess such skill, knowledge, or experience in that field or calling as to make it appear that the opinion or inference will probably aid the jury in its search for the truth.

Criminal Law

Permit to carry handgun

BOTTOM LINE: Appellant’s conviction in the District of Columbia for attempting to carry a pistol without a license was a “qualifying offense” which disqualified him from obtaining a permit to carry a handgun in Maryland.
CASE: McCloud v. Department of State Police, No. 0483 Sept. Term, 2010 (filed Sept. 6, 2011) (Judges Eyler, D., ZARNOCH & Clarke (specially assigned)). RecordFax No. 11-0906-05, 10 pages.

FACTS: On August 16, 2006, Michael McCloud was arrested in the District of Columbia and charged with attempting to carry a pistol without a license. He pled guilty to the charge and received a suspended sentence of 90 days’ confinement and six months probation.

On July 5, 2008, McCloud applied for a renewal of his Maryland permit to carry a handgun. The Maryland State Police (MSP) processed his application which included information about his 2006 conviction in D.C. MSP denied McCloud’s application based on Maryland law prohibiting a person from possessing a handgun permit if he has been convicted of a crime that carries a penalty in excess of two years imprisonment, even if the crime occurred in another jurisdiction. MSP equated the D.C. crime that McCloud was convicted of — attempting to carry a pistol without a license — with the Maryland crime of unlawfully wearing, carrying or transporting a handgun, which carries a statutory maximum penalty that is greater than two years.

The Handgun Permit Review Board reversed MSP’s decision and directed MSP to grant McCloud the handgun permit. The circuit court reversed the Board’s decision.

McCloud appealed to the Court of Special Appeals, which affirmed.

LAW: Maryland law prohibits a person from wearing, carrying, or transporting a handgun without a permit. CL §4-203(b)(2); PS §5-303. A permit may be issued by MSP if the applicant for the permit meets six criteria set forth by statute. PS §5-306(a).

In addition to the criteria for issuing a permit, a person may not possess a handgun if the person has been convicted of a “disqualifying crime,” which includes “a violation classified as a misdemeanor in the State that carries a statutory penalty of more than 2 years.” PS §§5-133(b)(1) (listing persons that may not possess a regulated firearm); 5-101(g)(3) (defining a “disqualifying crime”).

In 2006, the Attorney General concluded that “the phrase ‘disqualifying crime’ includes out-of-state offenses,” and that such an offense “that would be classified as a misdemeanor in Maryland with a potential penalty under Maryland law in excess of two years imprisonment falls within that definition.” 91 Op. Atty. Gen. Md. 68 (2006).

Subsequently, in Ralph Coleman Brown, Jr. v. Handgun Permit Review Board, 188 Md.App. 455 (2009), the Court of Special Appeals held that PS §5-101(g)(3) is intended “to be interpreted such that the conviction’s potential punishment is measured by reference to the penalty under the law of Maryland for a comparable violation.” Id. at 480.

Therefore, a “disqualifying crime” can be an offense committed out-of-state that, when looking to a comparable violation in Maryland, is a misdemeanor and has a penalty of greater than two years imprisonment. See Jones v. State, — Md. —- (2011) [slip op. 4].

The Court of Special Appeals later clarified in Maryland State Police v. Anthony McLean, 197 Md.App. 430 (2011), that to determine whether an out-of-state crime constitutes a “disqualifying crime” under PS §5-101(g)(3), it must look to the “penalty for the equivalent Maryland offense in effect at the time the person convicted seeks to possess a regulated firearm.” Id. at 449. So, if the current penalty for the Maryland offense is different from the penalty at the time the offense was committed, the Court looks to the current penalty.

The current Maryland equivalent of McCloud’s D.C. conviction is CL §4-203(a), which prohibits an individual from wearing, carrying, or knowingly transporting a handgun without a permit. This offense is considered a misdemeanor and carries a maximum penalty of up to three years imprisonment. CL §4-203(c)(2)(i).

McCloud argued that PS §5-133(b)(1), which provides that one cannot possess a handgun if the individual was convicted of a “disqualifying crime,” or a violation that has a statutory penalty of greater than 2 years, conflicts with PS §5-306, which only allows MSP to reject a permit application if the applicant has actually been sentenced to more than one year imprisonment. The result of these contradictory statutes, McCloud argued, is that if an individual is convicted of a crime with a maximum penalty that is greater than two years, but is sentenced to less than one year imprisonment, that person is entitled to a handgun carry permit under PS §5-306, and simultaneously prohibited from possessing a handgun under PS §5-133(b)(1).

Although the statutes may appear to contradict one another, each one serves a different purpose. One, PS §5-306(a), gives criteria for obtaining a handgun permit to lawfully wear, carry or transport a handgun, while the other, PS §5-133(b)(1), excludes certain persons from lawful possession of a handgun.. The two statutes are interrelated in that a person who cannot lawfully possess a handgun under PS §5-133(b)(1), is subsequently not eligible for a permit to wear, carry or transport a handgun under PS §5-306(a).  Brown, 188 Md.App. at 471.

It would “defy common sense” if McCloud could obtain a handgun carry permit, but still be arrested and charged with violating PS §5-133(b)(1) for possessing a handgun. See Dept. of Public Safety and Correctional Services v. Berg, 342 Md. 126, 139 (1996).

Accordingly, McCloud’s D.C. conviction was a “disqualifying crime” and the circuit court did not err in denying him the handgun permit.

COMMENTARY: McCloud contended that the circuit court should not have relied on Brown because it was decided after the Board directed MSP to issue him a permit.

“The question of whether a particular judicial decision should be applied prospectively or retroactively, depends … on whether or not the decision overrules prior law and declares a new principle of law.” Houghton v. County Commissioners of Kent County, 307 Md. 216, 2 (1986). Brown did not overrule a prior court decision. See American Trucking Ass’ns. v. Goldstein, 312 Md. 583, 591 (1988).  Brown did not “declare a new legal principle,” and so it “applies retroactively in the same manner as most court decisions.” Houghton, 307 Md. at 220.

McCloud further claimed that by relying on Brown, the circuit court violated his due process rights because he decided to plead guilty to the D.C. charge based on his understanding that the D.C. conviction would not affect his ability to maintain his Maryland handgun permit.

The failure to be informed of a collateral consequence of a guilty plea, such as the inability to obtain a handgun permit in another state, does not constitute a due process violation. Miller v. State, 196 Md.App. 658, 678 (2010).

Even if it was constitutionally required for McCloud to be informed of this collateral consequence, the proper remedy for such a violation of his due process rights would be to attack his guilty plea in D.C. as involuntary, and proceed against the charges there. See id.

PRACTICE TIPS: Although a reviewing court considers the evidence in the light most favorable to the agency, an appellate court will only affirm the agency’s decision if the agency did not err as a matter of law. McLean, 197 Md.App. at 437.

Criminal Procedure

Jury verdicts

BOTTOM LINE: The fact that a jury verdict acquitting defendant of wearing, carrying, and transporting a handgun was factually inconsistent with a jury verdict finding defendant guilty of unlawful possession of a regulated firearm did not warrant setting aside conviction.

CASE: McNeal v. State, No. 1992, Sept. Term, 2009 (filed Sept. 2, 2011) (Judges Wright, Kehoe & SALMON). RecordFax No. 11-0902-02, 18 pages.

FACTS: On October 15, 2008, Baltimore City police officer Michael Gold saw Daniel McNeal on a Baltimore street and decided to interview him. Officer Gold approached McNeal and asked if he could speak to him. McNeal consented. Officer Gold next asked McNeal whether “he had anything on him that he shouldn’t have.” McNeal replied, “Yes. I have a gun in my left front pants pocket.”

Officer Gold searched McNeal and recovered a 9 millimeter Luger handgun from McNeal’s left front pants pocket. Officer Gold then told McNeal that he was under arrest. When a fellow officer attempted to handcuff McNeal, McNeal resisted and fled. A chase ensued, following which the police officers captured McNeal.

The jury convicted McNeal of unlawful possession of a regulated firearm in violation of Md.Code (2003, 2008 Supp.), §5-133(b) of the Public Safety Article (“PS”), and acquitted him of wearing, carrying, and transporting a handgun in violation of Md.Code (2002, 2008 Supp.), §4-203 of the Criminal Law Article (“CL”).

After the jury announced its verdict but before the jury had harkened to its verdict, defense counsel objected, arguing that the verdicts as to wearing, carrying, or transporting a handgun (acquittal) and possession of a handgun by a prohibited person (guilty) were inconsistent and that the jury should therefore be sent back to the jury room for further deliberation to resolve the inconsistency. The trial judge, however, accepted the verdicts.

McNeal appealed to the Court of Special Appeals, which affirmed in part, vacated, in part, and remanded the case.

LAW: McNeal argued that the trial court erred in permitting inconsistent verdicts to stand over defense counsel’s objection. Specifically, McNeal contended that in light of the manifest inconsistency in the verdicts, the court erred in refusing to either strike the guilty verdict for possession of a regulated firearm or return the counts to the jury for further deliberation.

In Price v. State, following the defendant’s trial on various drug and firearms offenses, the defendant was acquitted of all drug trafficking charges, of two firearms counts charging possession of a regulated firearm after having been convicted of a prior felony, and of unlawfully carrying or transporting a handgun. Price v. State, 405 Md. 10 (2008). The jury found the defendant guilty of possession of a firearm during and in relation to a drug trafficking crime, under circumstances constituting a nexus to the drug trafficking crime. Id. On appeal, Price contended that the circuit court erred when it refused to strike the conviction for possession of a firearm during and in relation to a drug trafficking crime because the conviction was inconsistent with the acquittals on all counts charging drug trafficking crimes. Id. at 16-17.

Reversing Price’s conviction, the Court of Appeals held that, in criminal jury trials inconsistent verdicts shall no longer be allowed. Id. at 29. However, Judge Harrell’s concurring opinion in Price explicitly noted that the applicability of the majority’s opinion was limited to “legally inconsistent” verdicts, and stated that the Court should continue to recognize verdicts that were merely “factually inconsistent.” Id. at 35.

Since Price, Maryland courts have adopted this distinction between factual inconsistency and legal inconsistency as explained by Judge Harrell in his concurrence in Price. See Tate v. State, 182 Md.App. 114, 130-31, cert. denied, 406 Md. 747 (2008). A factually inconsistent verdict is one where a jury renders different verdicts on crimes with distinct elements when there was only one set of proof at a given trial, which makes the verdict illogical. Ashlee Smith, Comment, Vice-A-Verdict: Legally Inconsistent Jury Verdicts Should Not Stand in Maryland, 35 U. BALT. L. REV. 395, 397 n.16 (2006). The feature distinguishing a factually inconsistent verdict from a legally inconsistent verdict is that a factually inconsistent verdict is merely illogical. By contrast, a legally inconsistent verdict occurs where a jury acts contrary to a trial judge’s proper instructions regarding the law.

Examples best elucidate this distinction. For instance, if a legally intoxicated or otherwise reckless driver causes a head-on collision, killing on impact the driver and passenger of the other car, and the intoxicated driver is charged with two counts of vehicular homicide, the jury could convict the defendant of vehicular homicide as to the death of the driver of the other car, but could find the defendant not guilty of the same crime with regard to the death of the passenger. Such a result would constitute factually inconsistent verdicts. Price v. State, 405 Md. at 35-36.

By contrast, a legal inconsistency occurs when the crime of which a defendant is acquitted is, in its entirety, a lesser included offense within the greater inclusive offense of which a defendant is convicted. The commission of the greater crime cannot, as a matter of law, take place without the commission of the lesser crime. Because the lesser crime is a required element of the greater, the acquittal of the lesser crime precludes the finding of that required element of the greater crime for which the defendant was convicted.

The Price case itself contained a set of factually inconsistent verdicts as well as a set of legally inconsistent verdicts. The concurring opinion pointed out that the factual inconsistency would not, in and of itself, have been an occasion for reversing the conviction. In this case, McNeal did not contend that the convictions were legally inconsistent but instead argued that the Court should not recognize a distinction between a legally inconsistent verdict and a factually inconsistent verdict. However, the Court of Special Appeals held that, as stated by Judge Moylan in dicta in Tate, the reversal of verdicts is not warranted on the ground that the verdicts were factually inconsistent.

A violation of §5-133 of the Public Safety Article requires proof of a prior disqualifying conviction; a violation of §4-203 of the Criminal Law Article does not. A violation under Criminal Law §4-203 requires that the weapon be carried on the defendant’s person or in a vehicle traveling on a highway, waterway, or airway generally used by the public; under §5-133, other forms of possession are also forbidden. As the jury was instructed, for purposes of §5-133, possession may be actual or indirect exclusive or joint possession. Thus, the convictions were not legally inconsistent. As such, the trial judge did not err in declining to set aside the conviction for possession of a handgun by a prohibited person simply because that conviction was factually inconsistent with the jury’s acquittal of McNeal for wearing, carrying, or transporting a handgun.

Accordingly, this portion of the circuit court’s judgment was affirmed.

COMMENTARY: McNeal additionally contended that the sentence imposed for the crime of resisting arrest was illegal for two independent reasons. First, McNeal argued that the common-law misdemeanor of resisting arrest was abrogated when the legislature, in 2004, enacted a statute that is now codified in Maryland Code (2002, 2010 Supplement), Criminal Law Article, §9-408.5 Second, McNeal asserted that even if the common-law crime of resisting arrest did still exist, the concurrent sentence of seven years was illegal because, under the new statute, the maximum sentence for resisting arrest is three years. The State maintained that the common-law crime of resisting arrest was not abrogated by the statute, but conceded that the sentence was illegal because it exceeded the statutory maximum set forth by §9-408(c).

It is a generally accepted rule of law that statutes are not presumed to repeal the common law further than is expressly declared, and that a statute, made in the affirmative without any negative expressed or implied, does not take away the common law. Robinson v. State, 353 Md. 683 (1999). Only where a statute and the common law are in conflict, or where a statute deals with an entire subject-matter, is the statute is generally construed as abrogating the common law as to that subject. Id. at 693. This view, generally disfavoring repeal of the common law by implication, has a long history in Maryland. Given this strong presumption against the repealing of the common law by implication, the common law crime of resisting arrest was not abrogated by the 2004 statute. However, as noted by both McNeal and the State, McNeal’s sentence should have been capped at the statutory maximum of three years.

Accordingly, the sentence imposed for resisting arrest was vacated, and the case remanded to the circuit court for a new sentencing as to that charge, with the sentence not to exceed three years.

PRACTICE TIPS: Maryland law permits extrinsic evidence of prior inconsistent statements to be used for the purpose of impeachment, provided certain conditions are met. For extrinsic evidence of a witness’s prior inconsistent oral statement to be admissible for impeachment purposes, the following foundation must be laid: 1) the contents of the statement and the circumstances under which it was made, including the person to whom it was made, must have been disclosed to the witness during his trial testimony; 2) the witness must have been given the opportunity to explain or deny the statement; 3) the witness must have failed to admit having made the statement; and 4) the statement must concern a non-collateral matter. Before these requirements even come into play, however, the prior statement of the witness must be established as inconsistent with his trial testimony.

Criminal Procedure

Discharge of counsel

BOTTOM LINE: Maryland Rule 4-215(e), which addresses the right of a criminal defendant to request the discharge of his counsel, does not require that a trial judge advise a defendant of the option to proceed pro se.

CASE: Pinkney v. State, No. 2661, Sept. Term, 2009 (filed Sept. 2, 2011) (Judges Graeff, WATTS & Moylan (retired, specially assigned)). RecordFax No. 11-0902-05, 19 pages.

FACTS: On July 29, 2009, three Baltimore City police detectives, working in plain clothes capacity in an unmarked vehicle, saw a woman bend down to pick up some loose paper currency that had dropped from the air. The detectives witnessed Jerome Pinkney yell at the woman to give him the money, and they then saw Pinkney strike her in the face.

Pinkney was subsequently charged in Maryland district court with second-degree assault, resisting arrest, and disorderly conduct. Following Pinkney’s request for a jury trial, the case was transferred to circuit court. In a letter addressed to the circuit court prior to trial, Pinkney moved to dismiss his attorney. Specifically, Pinkney alleged that his attorney was conspiring with the prosecutor and was not properly defending him. The trial court denied the motion, but indicated that on the day of trial, Pinkney could renew the motion.

On the first day of trial, prior to jury selection, Pinkney’s counsel, who had been appointed by the Public Defender’s office, renewed Pinkney’s motion to discharge his attorney. When questioned by the trial judge about his motion to discharge the attorney that had been appointed him, Pinkney stated that he had not had ample time to talk to his attorney about his case. The trial judge asked Pinkney whether he had identified to his attorney any potential witnesses who might be available to testify on his behalf, and said that he had not.

The trial judge told Pinkney that he had seen no basis for Pinkney’s allegation that his attorney was working with the State and found that there was no basis for Pinkney to discharge his appointed counsel. As such, the trial judge denied Pinkney’s renewed motion to discharge his attorney, and the jury subsequently convicted Pinkney of second-degree assault. Pinkney was sentenced to 18 months of imprisonment, with credit for time served.

Pinkney appealed to the Court of Special Appeals, which affirmed.

LAW: Pinkney first argued that the trial judge violated Maryland Rule 4-215(e) in failing to inform him that he could discharge his counsel and proceed pro se if he so chose. Pinkney did not dispute that he was given an opportunity to explain the reasons he wanted to discharge his attorney but instead contended that, after the trial judge found those reasons to be unmeritorious, the trial judge was required to inform him that he could discharge counsel and proceed pro se.

A defendant in a criminal prosecution has a constitutional right to the effective assistance of counsel and the corresponding right to reject that assistance and represent himself. Gonzales v. State, 408 Md. 515, 529-30 (2009). The Sixth Amendment to the United States Constitution grants the accused not only the right to be represented by counsel, but also the right to make his own defense without the assistance of counsel. Gregg v. State, 377 Md. 515, 548 (2003). As to the implementation and protection of the right to counsel, Md. Rule 4-215(e) provides that if a defendant requests permission to discharge an attorney whose appearance has been entered, the court shall permit the defendant to explain the reasons for the request.

Rule 4-215(e) further provides that if the court finds that there is a meritorious reason for the defendant’s request, the court must permit the discharge of counsel, continue the action if necessary, and advise the defendant that if new counsel does not enter an appearance by the next scheduled trial date, the action will proceed to trial with the defendant unrepresented by counsel. If the court finds no meritorious reason for the defendant’s request, the court may not permit the discharge of counsel without first informing the defendant that the trial will proceed with the defendant unrepresented by counsel if the defendant discharges counsel and does not have new counsel.

Thus, the plain language of Md. Rule 4-215(e) imposes upon the trial court the responsibility not to permit discharge of counsel unless the defendant is informed of the possibility that trial will proceed with the defendant unrepresented by counsel. If the court finds no meritorious reason for the defendant’s request, but permits the defendant to discharge counsel, the court must comply with subsections (a)(1)-(4) of Md. Rule 4-215, which provide, in relevant part, that the court shall conduct an inquiry under section (b)4 if the defendant indicates a desire to waive counsel. However, where a trial court finds no meritorious reason for the requested discharge of counsel and does not permit the discharge, Md. Rule 4-215(e) does not impose an obligation on the trial court to inform the defendant of the option to proceed pro se.

In Gonzales, 408 Md. at 531-32, the Court of Appeals analyzed Md. Rule 4-215 and stated that, under the Rule, when a defendant requests permission to discharge an attorney whose appearance has been entered in his or her case, the court must provide the defendant an opportunity to explain his reasons for wishing to discharge that attorney. Next, the trial court must make a determination about whether the defendant’s desire to discharge counsel is meritorious. Moore v. State, 331 Md. 179, 186-87 (1993). Finally, where the trial judge finds a defendant’s reasons to be meritorious, he must grant the request and, if necessary, give the defendant an opportunity to retain new counsel. By contrast, when a defendant makes an unmeritorious request to discharge counsel, the trial judge may proceed in one of three ways: (1) deny the request and, if the defendant rejects the right to represent himself and instead elects to keep the attorney he has, continue the proceedings; (2) permit the discharge in accordance with the Rule, but require counsel to remain available on a standby basis; or (3) grant the request in accordance with the Rule and relieve counsel of any further obligation. Williams v. State, 321 Md. 266, 273 (1990).

While strict compliance with Md. Rule 4-215 is required, no reported Maryland case has directly held that a trial judge must advise a defendant of his right to proceed pro se after finding the defendant’s reasons for discharging his counsel are unmeritorious. The language of the Williams decision does not warrant reading this requirement into Md. Rule 4-215. Therefore, under Md. Rule 4-215(e), once a trial court determines that a defendant’s reasons for wanting to discharge counsel are unmeritorious and do not permit the discharge, the court may deny the request without affirmatively informing the defendant of the possibility to proceed pro se.

In this case, Pinkney did not seek to proceed pro se, nor did he raise the issue of self-representation in any manner. In fact, Pinkney’s written request filed prior to trial ended by asking “the court to find me Legal Counsel.” As such, the trial court did not abuse its discretion in denying Pinkney’s request to discharge counsel without informing Pinkney of his right to proceed pro se.

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: Pinkney additionally argued that the trial judge abused his discretion in failing to give the missing witness instruction set forth in Maryland Pattern Jury Instruction Criminal (“MPJI-CR”) 3:29 (2007) as to the woman who was the alleged victim in the case. Pinkney contended that the circuit court erred in refusing to give the missing witness instruction regarding the witness because the identity of the witness was in the State’s control, and the State was therefore in the best position to secure the witness’s presence at trial. The trial court denied the request for a missing witness instruction, stating that the instruction called for someone who is peculiarly within the power of a party to produce and that there was nothing that made the victim peculiarly within the power of the State to produce.

The missing witness rule applies where there is a witness who is peculiarly available to one side and not the other, whose testimony is important and non-cumulative and will elucidate the transaction, and who is not called to testify. Woodland v. State, 62 Md.App. 503, 510, cert. denied, 304 Md. 96 (1985). A “relationship” between a party and a witness in the missing witness instruction context generally refers to a family relationship, an employer-employee relationship, and, sometimes, a professional relationship. Christensen v. State, 274 Md. 133, 134-35 (1975). Underlying this principle is the realization that despite a party’s theoretical ability to subpoena the witness’s testimony, there is a practical concern that certain relationships may engender a very strong bias which would undermine the utility of that witness’s testimony. Davis v. State, 333 Md. 27, 50 (1993). As such, the rule looks toward addressing the bias engendered by feelings of love, friendship, or loyalty.

In this case, however, there was no relationship between the witness and the State. A police officer took the witness’s name and had no further contact with her. Neither was there any indication that the witness was peculiarly available to the State and not to the defense, and the record did not support Pinkney’s contention that the witness was solely available to be called by the State.

Finally, the record was devoid of any attempt by Pinkney to seek or secure the victim’s presence as a witness. Maryland courts have previously concluded that a witness was not peculiarly available to the State where there was no showing that the defendant had exhausted the avenues available to produce the witness. Bing Fa Yuen v. State, 43 Md.App. 109, 112 (1979), cert. denied, 444 U.S. 1076 (1980). Pinkney, in this case, did not identify any efforts or attempts on his part to bring the woman identified in the charging document as a witness. Indeed, as the trial court observed, Pinkney had the exact same tools available to the State to produce a civilian witness. Under these circumstances, the trial court’s decision not to give the missing witness instruction was not an abuse of discretion.

PRACTICE TIPS: Under Maryland law, if a defendant who is not represented by counsel indicates a desire to waive counsel, the court may not accept the waiver until after an examination of the defendant on the record conducted by the court, the State’s Attorney, or both, the court determines and announces on the record that the defendant is knowingly and voluntarily waiving the right to counsel. The advisements required by Maryland law may, however, be satisfactorily given to a defendant in a “piecemeal and cumulative” manner by successive judges of the district and circuit courts, as long as the advisements achieve the prediction of a knowing and intelligent waiver.

Constitutional Law

Search & seizure

BOTTOM LINE: The second-story balcony on which defendant was sitting was part of the curtilage of the home in which she had a reasonable expectation of privacy and, therefore, the officer’s warrantless entry onto the balcony violated the Fourth Amendment.
CASE: McGurk v. State, No. 00501, Sept. Term, 2010 (filed Sept. 7, 2011) (Judges Eyler, D., Hotten & SALMON (retired, specially assigned)). RecordFax No. 11-0907-01, 32 pages.

FACTS: Carrie McGurk was on the second-floor balcony of 608 Philadelphia Avenue, in Ocean City, Maryland, with Roberto Villagra. At approximately 3:15 a.m., Ocean City police officer Michael Valerio, in uniform, on bicycle patrol south-bound on Philadelphia Avenue, smelled the odor of marijuana. He peddled approximately 60 feet north of 608 Philadelphia Avenue in an attempt to locate the source of the odor. He then looked back towards the south and saw two people sitting on a balcony.

Officer Valerio approached the staircase that led to the second-floor balcony at 608 Philadelphia Avenue and radioed for additional officers. Before any officers arrived, Officer Valerio, uninvited, walked up the stairway to the second-floor balcony. Once on the balcony, Officer Valerio identified himself as a police officer. Officer Valerio believed that he smelled the odor of burnt marijuana coming from Villagra.

Initially, Villagra denied having any marijuana on him. When asked again, Villagra said that he had smoked a “roach” but had thrown the “roach” off the balcony. Officer Valerio found, in the front yard, a small “roach,” the butt of a marijuana cigarette. Officer Valerio placed Villagra under arrest.

Officer Charles Kelley arrived at 608 Philadelphia Avenue approximately 5 minutes after Officer Valerio’s arrival. Officer Kelley climbed the steps to the second-floor balcony to assist Officer Valerio. Officer Kelley initiated a conversation with McGurk. Officer Kelley smelled marijuana on McGurk. He asked if he could see McGurk’s identification. When she opened her purse to get her identification, Officer Kelley observed a “prescription style” orange bottle with a white lid. The bottle was transparent which allowed him to see, “in plain view” that inside the bottle was a “glassine cellophane type baggie” that contained a substance which he recognized as marijuana. McGurk was arrested and searched. The officers also found $813 in McGurk’s pants pocket.

McGurk was charged with possession of marijuana, and possession of cocaine with the intent to distribute, and various other drug offenses. The circuit court denied McGurk’s motion to suppress.

McGurk proceeded on a not-guilty agreed statement of facts as to the charge of possession with the intent to distribute cocaine. The trial judge found her guilty of that offense and sentenced her to three years incarceration but suspended all that sentence in favor of a period of probation.

McGurk appealed to the Court of Special Appeals, which vacated the judgment.

LAW: “[T]he Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Katz v. United States, 389 U.S. 347, 351 (1967).

A two-part test is to be used to determine whether the government has invaded an individual’s reasonable expectation of privacy: “[f]irst, an individual must demonstrate that he had an actual subjective expectation of privacy. Second, society must be willing to recognize that expectation as reasonable.” Kitzmiller v. State, 76 Md.App. 686, 690 (1988).

In considering the first part of this test, “the Fourth Amendment applies only to ‘constitutionally protected areas’ such as a person’s house or curtilage.” Sproates v. State, 58 Md.App. 547, 557 (1984). The curtilage is the area immediately surrounding the home “to which extends the intimate activity associated with the ‘sanctity of a man’s home and the privacies of life,’ and therefore has been considered part of the home itself for Fourth Amendment purposes.” Oliver v. United States, 466 U.S. 170, 180 (1984).

“[T]he extent of the curtilage is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself,” including: “the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.” United States v. Dunn, 480 U.S. 294, 301 (1987).

The second story balcony is located 10 feet above street level, and includes a waist high wooden railing on the west and north sides of the building, which means that passersby on the sidewalk or on Philadelphia Avenue would not have a clear view of what is taking place on the balcony. Located on the balcony are some flowers and plants as well as a glass table. There was at least one chair along with “a two-person style rocking chair” on the balcony, which suggests that the balcony is used for purposes akin to uses served by a room inside a house. All of these factors suggest that the balcony was within the curtilage of the home. Thus, the balcony was part of the curtilage of the home, and McGurk, while on that balcony, had a subjective expectation of privacy.

The next part of the Katz test is whether that subjective expectation was objectively reasonable. There are no cases dealing with a warrantless entry by police onto a balcony of a residence accessible by an external staircase that begins at a sidewalk bordering on a public street. Instead, the State analogized this case to those where the police entry was at the front door or front porch of a residence.

In United States v. Santana, 427 U.S. 38 (1976), following a controlled buy of heroin at Santana’s house, police officers returned to that location and observed Santana “standing in the doorway of the house with a brown paper bag in her hand.” Id. at 40. After yelling, “Police,” Santana retreated into the vestibule of her house and the police followed her inside, where they found heroin inside the same bag. Id. at 40-41.

The Supreme Court concluded that Santana was in a public place and that the arrest was lawful: “While it may be true that under the common law of property the threshold of one’s dwelling is ‘private,’ as is the yard surrounding the house, … Santana was in a ‘public’ place. She was not in an area where she had any expectation of privacy. She was not merely visible to the public but was as exposed to public view, speech, hearing and touch as if she had been standing completely outside her house.” United States v. Santana, 427 U.S. at 42. See also United States v. Watson, 423 U.S. 411 (1976).

However, the record did not support the State’s suggestion that the second story balcony where McGurk was sitting when arrested was akin to a “front porch” or otherwise served as the primary threshold for entry into 608 Philadelphia Avenue.

This case is most factually analogous to State v. Neanover, 812 N.E.2d 127 (Ind.Ct.App.2004). Alicia Neanover lived with her husband in one of two apartments located at the top of a three-story apartment building. Id. at 128. Outside the door to their apartment was an open landing area where Neanover kept a patio table and chairs. Sometimes the Neanovers would temporarily place garbage on the landing prior to taking that garbage downstairs to an area enclosed by a fence across from the building’s parking lot. Id.

The police received a citizen complaint that marijuana was growing inside Neanover’s apartment. Responding to the apartment and receiving no answer after knocking on the Neanover’s door, the police seized bags of garbage that had been left outside the apartment door on the open landing area. Police found evidence of marijuana use in that garbage and subsequently charged Neanover with possession of marijuana. Id. at 129.

The Indiana intermediate appellate court ruled that the Neanovers had both a subjective expectation of privacy with respect to the landing area, and that this expectation was objectively reasonable under the circumstances. Id. at 130. The Court determined that Neanover treated the landing area outside her apartment door as a combination patio/storage space, a zone of privacy akin to curtilage. Id. Furthermore, this expectation of privacy was objectively reasonable because, “[a]lthough the third-floor landing was open and accessible to the general public, the landing was not readily accessible.” Id. Thus, McGurk’s subjective expectation of privacy in the second story balcony area was objectively reasonable.

Accordingly, the judgment of the circuit court was vacated.

COMMENTARY: The State argued that, assuming that McGurk had some minimal expectation of privacy in the balcony of the 608 Philadelphia Road, the police encounter was still lawful based on exigent circumstances.

“Exigent circumstances” are those in which “the police are confronted with an emergency — circumstances so imminent that they present an urgent and compelling need for police action.” Paulino v. State, 399 Md. 341, 351 (2007). “Certain factors must be considered in the determination of whether exigent circumstances are present: “the gravity of the underlying offense, the risk of danger to police and the community, the ready destructibility of the evidence, and the reasonable belief that contraband is about to be removed.” Also “relevant to the determination … is the opportunity of the police to have obtained a warrant.” Gorman v. State, 168 Md.App. 412, 422 (2006).

It was undisputed that the police officer never discovered that a roach had been thrown away or that either of the balcony occupants had smoked marijuana until after he entered onto the balcony. Therefore, he could not possibly have believed that exigent circumstances permitted his entry. An entry into a constitutionally protected area cannot be justified based on “exigent circumstances” unknown to the police.

Officer Valerio admitted that he did not know that the marijuana odor was coming from the balcony until after he walked up the steps of 608 Philadelphia Avenue. He therefore did not have probable cause to believe that the occupants of the balcony had committed a crime at the time he entered onto the balcony.

After the officer smelled the odor of marijuana in the air, he turned around and peddled approximately 60 feet north in an attempt to locate the source of that odor. He turned back to the south and then saw two people sitting on the balcony. At that point, he approached the staircase and radioed for assistance. Officer Valerio explicitly admitted that he did not smell the odor of burnt marijuana on the balcony until after he asked several questions and “got closer to” Mr. Villagra.

There was no exigency permitting the police officer to violate McGurk’s reasonable expectation of privacy by entering onto the second story balcony of the home.

PRACTICE TIPS: An overnight guest in a house has a reasonable expectation of privacy in the host’s home and, therefore, such a guest has a right to contest the entry of police into that home. Minnesota v. Olson, 495 U.S. 91, 98-99 (1990).

Environmental Law

Clean Water Act

BOTTOM LINE: The promulgation by appellants of a general discharge permit for animal feeding operations, which authorizes certain discharges of pollutants to water but imposes requirements regarding the management of manure and its application as fertilizer, was in accord with state and federal law.
CASE: Assateague Coastkeeper v. Maryland Department of the Environment, No. 471, Sept. Term, 2010 (filed Sept. 6, 2011) (Judges GRAEFF, Hotten & Thieme (retired, specially assigned)). RecordFax No. 11-0906-04, 66 pages.

FACTS: Animal Feeding Operations (AFOs), facilities that house animals, produce large quantities of animal manure each year, which is applied to crops in place of chemical fertilizer. The manure contains nutrients that, if improperly managed, contribute to water quality problems for lakes, rivers, and groundwater.

Both federal and state law prohibit discharges of pollutants to water, except as authorized by permit. The MDE issued a General Discharge Permit (GP) for AFOs, which authorizes certain discharges, but imposes requirements regarding the management of manure and its application as fertilizer.

The GP established two categories of AFOs. The first category, “concentrated animal feeding operation” (CAFOs), are AFOs that discharge to surface waters, which are covered by the Clean Water Act (CWA) and must obtain a permit issued by MDE under the National Pollutant Discharge Elimination System (NPDES). The second category, an AFO that qualifies as a CAFO under federal regulations, but does not discharge or propose to discharge to surface water, is classified as a Maryland Animal Feeding Operations (MAFO). MAFOs are not required to obtain a NPDES permit because they do not discharge to surface water. See COMAR 26.08.03.09C(5)(c)-(6).

Pursuant to the GP, CAFOs cannot store poultry litter manure in the field for more than 14 days unless it is separated from ground water and storm water by a liner and a cover to prevent leaching or runoff of pollutants. MAFOs are allowed to store poultry litter manure for up to 90 days without a liner or cover. The 90-day stockpiling provision changes to 30 days within three years, after the GP has been phased into full effect and farms have been given an opportunity to make changes to their operations.

Assateague Coastkeepers, Waterkeeper Alliance, Lower Susquehanna Riverkeeper, and Charles and Betty Schelts (collectively Assateague), challenged the GP pursuant to the Administrative Procedure Act. SG §10-201. The case was transmitted to the Office of Administrative Hearings (OAH) for a hearing before an ALJ. MDE filed a motion for summary decision, which the ALJ granted. Assateague filed exceptions to the ALJ’s proposed decision granting MDE’s motion for summary decision. The final decision maker (FDM) granted MDE’s motion for summary decision and the circuit court affirmed.

Assateague appealed to the Court of Special Appeals, which affirmed.

LAW: Congress enacted the federal Clean Water Act (CWA) in 1972 to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. §1251(a). Among its core provisions, the CWA prohibits the “discharge of any pollutant” to waters of the United States, except as authorized by a permit issued under the NPDES. §§1251(a)(1), 1311(a), 1342(a)(1).

The term “discharge of a pollutant” means “any addition of any pollutant to navigable waters from any point source.” §1362(12). A “point source” is defined as “any discernible, confined and discrete conveyance,” including any container or CAFO “from which pollutants are or may be discharged.” §1362(14). An AFO becomes a CAFO in two ways: (1) automatically, if it confines a certain number of animals; and (2) if it is specifically designated as a CAFO based on a determination that it is a significant contributor of pollutants to waters of the United States. 40 C.F.R. §122.23(b)-(c).

Currently, pursuant to federal law, only CAFOs that discharge pollutants are required to apply for a NPDES permit. To obtain a NPDES permit, however, applicants are required to develop and implement Nutrient Management Plan (NMPs) to limit the discharge of pollutants to water.

The CWA contains other provisions to protect water quality, including limiting the issuance of a discharge permit if waters within a State’s borders are identified as impaired by pollutants. The CWA requires that states develop water quality standards for water bodies within their boundaries. 33 U.S.C. §1313(c)(2)(A). It also requires states to identify those waters within its borders that are impaired by one or more pollutants. §1313(d)(1)(A). For those impaired waters, states are directed to establish a Total Maximum Daily Load (TMDL) for each impairing pollutant that can be accommodated by the water body without violating water quality standards and to allocate the available load to existing and future sources. §1313(d)(1)(C).

MDE is charged with “managing, improving, controlling and conserving the waters of Maryland.” Northwest Land Corp. v. Md. Dep’t of the Env’t., 104 Md.App. 471, 478 (1995). MDE is also tasked with issuing discharge permits. EN §9-323. Maryland law prohibits the discharge of pollutants to “waters of the State,” i.e., surface or ground water, except as authorized by a discharge permit issued by MDE. EN §§9-101(l),-322,-323. In this respect, Maryland law is more stringent than federal law; it regulates discharges to groundwater and surface water, whereas federal law regulates only discharges to surface water. Maryland has regulations in place governing the issuance of general discharge permits. See COMAR 26.08.04.09.

Assateague argued that the FDM erred in upholding the provision in the GP that allows MAFOs “to store poultry litter on bare ground, in uncovered piles,” for more than the 14 days permitted for CAFOs.

The inquiry was whether a “reasoning mind reasonably could have reached the factual decision the agency reached.” Najafi v. Motor Vehicle Admin., 418 Md. 164, 173-74 (2011). MDE submitted affidavits from Robert M. Summers, Ph.D., who at that time was Deputy Secretary of MDE, and Dinorah Dalmasy, a Senior Regulatory and Compliance Engineer with MDE. MDE sought further advice regarding the water quality impact of various poultry litter storage times from several different sources: the EPA; the University of Maryland scientists at the Cooperative Extensive Service; the Wye Research and Education Center; and scientists at the Chesapeake Research Consortium. None of these sources advised that 30 to 90 days of storage would significantly increase nutrient loss to the environment.

Under these circumstances, MDE had a reasonable basis for establishing the three year, 90-day phase-in-period for the storage of uncovered manure by MAFOs. Furthermore, Assateague did not submit any evidence stating that there were quantifiable differences in nutrient loss for 90-day storage of poultry litter as opposed to 14-day storage. Thus, there was no material dispute of fact that the 90-day provision in the GP did not adequately protect water quality and summary judgment on that issue was appropriate.

Assateague further argued that the GP violates federal regulations governing water quality standards. The CWA requires states to set water quality standards for the waters in their state. 33 U.S.C. §1313(c)(1)-(2). Waterbodies that do not meet water quality standards are deemed “water quality limited” or “impaired.” See 33 U.S.C. 1313(d)(1)(A).

Federal regulations prohibit the issuance of a NPDES permit “[t]o a new source or a new discharger, if the discharge from its construction or operation will cause or contribute to the violation of water quality standards.” 40 C.F.R. §122.4(i). The phrase “cause or contribute” to a water quality violation is not defined. “Cause” is defined as: “To bring about or effect,” BLACKS LAW DICTIONARY 251; and (2) “contribute” is defined as: “[T]o give or supply in common with others” or “to play a significant part in bringing about an end or result.” MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 285.

The phrase “cause or contribute” is ambiguous. The phrase could mean, as Assateague contended, that any discharge to an impaired water necessarily causes or contributes to a violation of water quality standards. It also could be interpreted, however, as MDE maintained, to mean that a discharge does not cause or contribute to a violation of water quality standards if discharge is offset by a corresponding reduction.

Several courts have addressed the meaning of the phrase “cause or contribute” in §122.4(i). The 9th Circuit rejected the “offset” interpretation relied on by MDE and adopted by the FDM. Friends of Pinto Creek v. EPA, 504 F.3d 1007, 1012 (9th Cir.2007).

The Supreme Court of Minnesota disagrees. In In the Matter of the Cities of Annandale and Maple Lake NPDES/SDS Permit Issuance for the Discharge of Treated Wastewater, 731 N.W.2d 502, 524 (Minn.2007), the Minnesota Pollution Control Agency (MPCA) issued a NPDES permit to a wastewater treatment plant, which would increase phosphorus discharge to Crow River. Id. at 506. The MPCA concluded, however, that the increase would not contribute to the violation of water quality standards because “the increased discharge would be offset by [a substantial] reduction in phosphorus discharge due to an upgrade of a nearby wastewater treatment plant”; and therefore, “[b]ecause of the net reduction in the watershed,” the proposed facility would “not contribute to water quality standards violations.” Id. at 506-07.

The Supreme Court of Minnesota agreed: “Nothing in the language of the regulation or the structure of the CWA prohibits the MPCA from considering offsets in this situation. In light of the multitude of variables and possible approaches in determining whether a specific discharge of phosphorus will ‘cause or contribute to the violation of water quality standards’…it appears that the MPCA’s interpretation of 40 C.F.R. §122.4(i) is reasonable.” Id. at 524.

The analysis in Annandale was persuasive. The language of 40 C.F.R. §122.4(i) does not make clear whether the discharge from the new source should be considered in isolation or in the context of net reductions in the substance causing the water quality impairment. MDE is the agency tasked with enforcing and administering federal regulations regarding water quality standards. See EN §9-324. The resolution of this issue involves MDE’s agency expertise, and deference is given to MDE. Najafi, 418 Md. at 174.

MDE’s construction of 40 C.F.R. §122.4(i), as allowing the consideration of pollution offsets in determining whether a discharge “causes or contributes” to a violation of water quality standards, is reasonable.

The FDM reviewed all of the evidence submitted on this issue and concluded that the issuance of the GP to existing CAFOs in impaired waterways will not cause or contribute to the violation of water quality standards.

That finding is a factual finding, or at least a mixed question of fact and law, which limits the review to whether there was substantial evidence in the record to support the finding and whether a “reasoning mind” could have reached that conclusion. See Singley v. County Comm’rs of Frederick County, 178 Md.App. 658, 666 (2008).

Because the GP imposes restrictions on CAFOs and MAFOs, including farms that previously were not subject to regulation, a reasoning mind could conclude, as the FDM did, that these conservation practices would reduce, overall, the pollutants introduced to waterbodies. Thus, even with some new discharges, there would be a net reduction in pollutants to State waters.

Accordingly, there was a substantial basis for the FDM’s decision that the GP would not “cause or contribute” to a violation of water quality standards.

Assateague further asserted that, pursuant to 40 C.F.R. §122.44(d)(1), MDE is required to conduct a case-by-case reasonable potential analysis (RPA) for each CAFO to determine whether water quality-based effluent limits (WQBELs) are necessary for the specific NPDES to meet water quality standards of receiving water bodies. They argued that the GP fails to comply with this requirement.

The record reflected that the GP does provide for review of permit applications by MDE. CAFO applicants must submit a completed Notice of Intent (NOI) form, and a Comprehensive Nutrient Management Plan (CNMP), for MDE review and approval. Each NOI and CNMP is subject to public review and comment, and a CAFO will not be issued permit coverage prior to completion of the public participation process.

It was within the province of MDE to determine that this process is sufficient to ensure that the issuance of new permits will not cause or contribute to the violation of water quality standards. The Court would not substitute its judgment for that of the agency on this issue.

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: The GP reflects a two-tiered permit scheme. A CAFO that discharges or proposes to discharge must obtain a NPDES permit issued by Maryland. COMAR 26.08.03.09B(3). An AFO that qualifies as a CAFO under federal regulations, but does not discharge or propose to discharge to surface water, is classified as a MAFO. COMAR 26.08.03.09B(1)(d). Although MAFOs are not required to obtain a NPDES permit, they pose a threat to groundwater, and therefore, they are required to get a State discharge permit. The State discharge permit required for MAFOs addresses groundwater; it does not authorize the MAFO to discharge to surface water. COMAR 26.08.03.09C(5)(c)-(6).

Both MAFOs and CAFOs are required to develop a Nutrient Management Plan (NMP). Although a CAFO must develop a CNMP, whereas a MAFO may develop a CNMP or a NMP and a Conservation Plan, the GP requires all AFOs in Maryland to develop NMPs. And the GP’s requirements in this regard are substantially the same as the federal requirements.

Thus, Assateague’s contention that the GP does not require the same nutrient management practices as federal law was without merit.

Moreover, CAFOs are subject to regulation under the CWA only if they discharge to surface water. See Nat’l Pork Producers Council v. EPA, 635 F.3d 738, 751 (5th Cir.2011). Maryland, however, still regulates CAFOs that “propose to discharge.” EN §9-101(b)(2). The GP also regulates MAFOs that do not discharge or propose to discharge to surface water.

Thus, because the GP regulates facilities not subject to regulation under federal law, it is actually broader, not less stringent, than federal law.

Evidence

Admission of recordings

BOTTOM LINE: Trial court did not err in allowing video tapes of the police interviews with defendant to be played for the jury because the police were not required to obtain defendant’s permission before recording the interviews and the recordings were relevant and not unfairly prejudicial.

CASE: Donaldson v. State, No. 2799, Sept. Term, 2009 (filed Sept. 6, 2011) (Judges Graeff, Watts & ALPERT (retired, specially assigned)). RecordFax No. 11-0906-00, 17 pages.

FACTS: On March 22, 2009, Michael Donaldson planned and participated in the execution style murder of his close friend, James Falcoun, allegedly because he discovered that Falcoun had had a sexual relationship with Joanne Severn, Donaldson’s girlfriend and the mother of two of his children. Donaldson recruited two other friends, Eric Moss and Edward Harris, to carry out the murder, telling them he wanted “his best home boy dead” for something he did with Joanne Severn.

During the ensuing investigation, Donaldson provided conflicting stories to police regarding his whereabouts before and after the crime. He was interviewed by Detectives David Jacoby and Mo Greenberg on three occasions — March 23, 2009, March 31, 2009, and April 2, 2009 — and each interview was recorded for audio and video. Donaldson was neither advised there was a camera in the room nor was did the detectives ask for his permission to record the interviews.

At the time of the first interview, Donaldson had not yet been developed as a suspect. During that interview, Donaldson described the details of the crime and provided the name of someone named “Dazz,” whom he said might have been responsible for the shooting. During the first interview, Donaldson was calm and talkative.

Detective Jacoby also interviewed Joanne Severn on March 23, 2009, after she had left a message with the homicide office stating that she had information regarding Falcoun’s death. From the information obtained during that interview, Jacoby focused on Donaldson as a suspect.

Donaldson was next interviewed on March 31, 2009, at which time he was read his Miranda rights. Donaldson signed a waiver of those rights and indicated he understood what he had read in the waiver. During the interview, Donaldson was “very talkative, a little more emotional,” than he had been during the first interview. Following the interview, Donaldson was released and driven home.

At the third interview, Donaldson was placed under arrest for the murder of Falcoun. Donaldson was again advised of his Miranda rights, and he again signed the Miranda rights waiver form. Donaldson did not ask for an attorney, he was not threatened or promised anything as an inducement to talk to police, and he was given food and water and breaks as requested.

During that interview, Detective Jacoby confronted Donaldson with the facts of the case. Donaldson’s demeanor differed from that exhibited during the first two interviews, as he was “[s]omewhat more vocal, tried talking over [Jacoby], argumentative.”

At trial, the DVD recordings of Donaldson’s three interviews with police were admitted into evidence and played for the jury over defense counsel’s objections. Donaldson was convicted of first degree murder and related crimes.

Donaldson appealed to the Court of Special Appeals, which affirmed.

LAW: Donaldson did not challenge the voluntariness of the giving of his statements, nor did he assert that the waiver of his Miranda rights was not given freely, voluntarily, and intelligently. His only argument was that he was unaware that his interviews were being recorded and that the admission of the recordings themselves added evidentiary value to his words that was prejudicial to him, as the jury could make negative inferences about him from his assertive tone with Detective Jacoby and his use of foul language and raised voice.

Miranda stands for the requirement that, before police may interrogate a person in custody, the police must advise the person that any statement he or she makes “can be used against him in a court of law,” so as to protect him from compelled self-incrimination. Miranda, 384 U.S. at 478-79. The person in custody may waive his Miranda rights if the waiver is voluntarily, knowingly, and intelligently made, and the determination of whether the waiver of an accused has been made knowingly and voluntarily is by a review of the totality of the circumstances. Lee v. State, 186 Md.App. 631, 649 (2009).

The police were not required to ask for or receive permission from appellant before recording the interviews in the police interrogation room, and their failure to do so does not imply a due process violation. CJ §10-402(c)(2)(ii) makes it lawful for a law enforcement officer acting in a criminal investigation to intercept an oral communication to provide evidence of the commission of a murder. Furthermore, “‘[t]here is no requirement that a defendant who has properly been given Miranda warnings must also be told he…may be tape-recorded or video-recorded or both.’” Lee, 186 Md.App. at 654 (quoting State v. Vandever, 714 A.2d 326, 328 (N.J.Super.Ct.App.Div.1998)).

Detective Jacoby never falsely promised, or even intimated to, Donaldson that the interviews were not being recorded, and Donaldson never inquired if they were. Had Jacoby lied if Donaldson had asked if the interviews were being recorded for later use at trial, or told Donaldson that what he said during the interviews was “off the record” or would go no further than the interrogation room, such an express misstatement may have conflicted with the Miranda advisement that anything Donaldson said could be used against him in court. Lee v. State, 418 Md. 136, 156 (2011).

There was no question that Donaldson voluntarily and intelligently waived his Miranda rights before agreeing to speak with the detectives. Donaldson thus knew that anything he said could be used against him at trial. Also, he had no reason to assume that his interviews were not being recorded. Thus, the application of Donaldson’s waiver of his Miranda rights was extended from merely the words he used to the manner in which he used them. The admission of the recorded version of his words, therefore, did not violate any of Donaldson’s due process rights.

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: With regard to the admission of the recordings themselves as evidence at trial, the admission of evidence is left to the “considerable and sound discretion of the trial court.” Merzbacher v. State, 346 Md. 391, 404 (1997). All relevant evidence is generally admissible unless its probative value is substantially outweighed by the danger of unfair prejudice. Id. at 405. A trial court’s decision to admit relevant evidence over objection that the evidence is unfairly prejudicial will not be reversed absent an abuse of discretion. Id.

The recordings of his statements to police, in which Donaldson denied involvement in the crime, were clearly relevant evidence. Although Donaldson argued he was prejudiced because the jury may have been swayed by the argumentative demeanor and use of expletives he exhibited during his interviews, along with Detective Jacoby’s recitation of his belief of the facts of the crime, he pointed to no evidence of any such effect upon the jury.

Moreover, after the tapes were shown at trial, the court specifically instructed the jury that anything asserted by the police officers on the tape could not be considered substantive evidence.

The trial court did not err in admitting the recording. However, even if the admission of the recordings constituted error, the error was harmless beyond a reasonable doubt. See Dorsey v. State, 276 Md. 638, 659 (1976).

The cumulative evidence established, beyond a reasonable doubt, that Joanne Severn, Donaldson’s girlfriend, told him she had had a sexual affair with the victim. Eric Moss testified that shortly thereafter, Donaldson told Moss that Donaldson wanted Falcoun dead for something he did with Severn and that Donaldson enlisted Moss and Edward Harris’s aid in setting up the victim for murder. That information was borne out by the admission of Donaldson’s cell phone records, which showed calls to Moss, Harris, and Falcoun on the evening of the murder.

Detective Jacoby stated that Joanne Severn called the homicide detectives to state that she had information about Falcoun’s death. Finally, Donaldson was unquestionably in the victim’s car on the night of the shooting, as shown by the testimony of the victim’s girlfriend and the fact that he left his cell phone in the car when he fled the scene.

Even without the admission of the actual recordings of the interviews, Donaldson conceded a transcription of the statements he gave during the interviews with police could have been admitted at trial. Therefore, the jury would have received the same information with or without the recordings’ admission. Had the recordings themselves not been admitted, the jury would have returned the same verdict, based on the evidence as presented.

PRACTICE TIPS: In states that have a statutory right to privacy, a defendant who has properly been given Miranda warnings must be told that he may be recorded. Washington’s Privacy Act, for example, specifically authorizes police officers to record the statements of persons in custody only if they conform strictly to the requirements of the Act, which include: 1) advising the arrested person he is being recorded; 2) recording the start/stop times of the interview; 3) advising the arrested person of his constitutional rights on the tape, and; 4) using the recordings only for valid police or court activities. See State v. Courtney, 137 Wash.App. 376, 383, 153 P.3d 238 (Wash.App.2007). In those instances, the issue is decided on statutory rather than constitutional grounds.

Insurance Law

Binders

BOTTOM LINE: Insurance company did not violate IN §27-614 when it unilaterally increased policy-holder’s insurance premium without providing him with the statutorily required 45-day written notice since the statute applies only to insurance policies and not to binders.
CASE: Insurance Commissioner for the State of Maryland v. State Farm Fire & Casualty Company, No. 0041, Sept. Term, 2010 (filed Sept. 6, 2011) (Judges Eyler, D., HOTTEN & Salmon (retired, specially assigned)). RecordFax No. 11-0906-01, 17 pages.

FACTS: Reverend D.C. Washington met with a State Farm Mutual Automobile Insurance Company agent to obtain automobile and renter’s insurance. The agent reviewed the application and determined, based on Washington’s accident history, that he was ineligible for coverage through State Farm Mutual Automobile Insurance Company. However, Washington was eligible for coverage through a subsidiary, State Farm Fire and Casualty Company. The agent quoted Washington a premium rate of $1,401 for a six month policy. Washington accepted the quote and tendered an initial payment of $233. The agent then issued an insurance binder. Both parties understood that an insurance policy would be issued at a later date.

The agent submitted Washington’s application to the company’s underwriting department. A comprehensive loss underwriting exchange (CLUE) report was generated and verified Washington’s disclosure of two accidents. Although Washington was eligible for coverage, the agent had failed to consider the two accidents, and, thus, quoted an inaccurate premium rate. State Farm’s underwriting guidelines provided that a 90 percent surcharge needed to be added to Washington’s base rate. State Farm thereafter issued a six-month policy with a premium of $2,512 and retroactively charged Washington for the additional premium.

Subsequently, State Farm determined that Washington may have been responsible for only one of the accidents. Therefore, State Farm adjusted Washington’s premium and retroactively reduced it.

Washington filed a complaint with the Maryland Insurance Administration (MIA), alleging that State Farm failed to provide written notice of an increase in Washington’s premium at least 45 days before its effective date, in violation of IN §27-614. MIA concluded that State Farm did violate IN §27-614. MIA disallowed the premium increase, and noted that after State Farm had verified Washington’s accident history, it had the option to cancel his insurance policy.

State Farm challenged MIA’s determination and requested a hearing. MIA referred the case to the Office of Administrative Hearings (OAH). The OAH concluded that Washington met State Farm’s underwriting standards; therefore, upon discovering the error, State Farm was obligated to adjust the premium to comply with its established rating plan. OAH also noted that there was no “increase in premium” because IN §27-614 does not treat the terms “binder” and “policy” as synonymous.

The circuit court affirmed OAH’s decision, finding that the terms “binder” and “policy” were not interchangeable and concluded that there was no violation of IN §27-614 because it applied to policies and not binders.

MIA appealed to the Court of Special Appeals, which affirmed.

LAW: IN §27-614(a) defines an increase in premium to “include an increase in total premium for a policy due to: (1) a surcharge; (2) retiering or other reclassification of an insured; or (3) removal or reduction of a discount.” Under IN §27-614(c), an insurer must send written notice of a premium increase to the insured at least 45 days before the effective date of the increase. The plain language of IN §27-614 makes numerous references to insurance policies, but does not reference its application to insurance binders.

HB 760 created IN §27-605.1, which was redesignated as IN §27-614. IN §27-605.1 was primarily comprised of the former IN §27-605(a), which read: “‘increase in premium’ and ‘premium increase’ include an increase in the premium for any coverage on a policy due to: (1) a surcharge; (2) retiering or other reclassification of an insured; or (3) removal or reduction of a discount.”

When HB 760 created IN § 27-605.1, which was re-designated as IN §27-614, it deleted the phrase “any coverage on” in subsection (a). The deletion of “any coverage on” demonstrates that IN §27-614 is not applicable to binders because the phrase could reasonably be interpreted to refer to insurance binders. HB 760, moreover, does not contain any reference to binders. The former IN §27-605 included references to both policies and binders, but when IN §27-605.1, re-designated as IN §27-614, was created, HB 760 neglected to include binders like the former IN §27-605 did.

Additionally, the re-designation of the former IN §27-605 to IN §27-613 in HB 570 explains the non-codified language of Section 3 of HB 760, which addresses binders and policies. Section 3 of HB 760 states that “this Act applies to all private passenger motor vehicle liability binders and policies issued or renewed on or after the effective date of this Act.” The “Act” referenced in Section 3 was the former IN §27-605, which originally included references to binders and policies, but was re-designated as IN §27-613. The re-designation to IN §27-613 clearly demonstrates that the non-codified language is not applicable to IN §27-614.

Furthermore, the content of IN §27-614’s notice requirement also precludes it from applying to binders. As part of its consumer protection, IN §27-614 requires an insurer to include a comparison between the premium for the current policy period and the renewal policy period in its premium increase notice. An insured who has only been issued a binder would not have a current or renewal policy period that could be compared and included in a premium increase notice.

Moreover, the distinction between binders and policies in IN §12-106(h), which states that “a binder is no longer valid after the policy as to which it was given is issued[,]” demonstrates that IN §27-614 is not applicable to binders. Thus, IN §27-614, which only references policies and cannot be interpreted to apply to binders, was inapplicable to this case.

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: Washington argued that the term “risk” includes the premium rate and, thus, IN §12-106(d) requires cancellation when an underwriting investigation reveals that “the risk does not meet the underwriting standards of the insurer.” State Farm argued that this issue was not preserved for appeal.

In its determination, MIA found that State Farm violated IN §27-614(c). MIA, however, did not find a violation of IN §12-106(d). Instead, MIA noted that pursuant to IN §12-106(d), State Farm had “the option to cancel” Washington’s binder. MIA also conceded that State Farm did not violate IN §12-106(d). In that regard, whether there was a violation of IN §12-106(d) was not preserved for review. See Robinson v. State, 410 Md. 91, 106 (2009).

IN §12-106(d) provides that “[a]n insurer may cancel a binder or policy during the underwriting period if the risk does not meet the underwriting standards of the insurer.” The inclusion of the word “may” demonstrates that an insurer has discretion when deciding whether to cancel a binder or policy during the underwriting period.

Thus, even though the argument was not preserved for review, Washington’s argument that cancellation is required when an underwriting investigation reveals that “the risk does not meet the underwriting standards of the insurer” was incorrect.

PRACTICE TIPS: “The term ‘binder’ has a well-known significance in the parlance of insurance contracts, and a binder or a binding slip is merely a written memorandum of the most important terms of a preliminary contract of insurance intended to give temporary protection pending the investigation of the risk of insurer, or until the issuance of a formal policy.” Flester v. The Ohio Casualty Ins. Co., 269 Md. 544, 550 (1973) (quoting 44 C.J.S., Insurance, § 49).