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Opinions – 10/11/11: Maryland Court of Appeals
BOTTOM LINE: The Maryland death penalty statute, which allows the jury to find by a preponderance of the evidence that aggravating circumstances outweigh mitigating circumstances, did not violate defendant’s Sixth Amendment right to a jury trial.
CASE: Miles v. State, No. 120, Sept. Term, 2007 (filed Sept. 20, 2011) (Judges Harrell, Battaglia, MURPHY, & Cathell (retired, specially assigned) (Judges Raker (retired, specially assigned), Bell & Greene dissenting)). RecordFax No. 11-0920-20, 16 pages.
FACTS: A jury convicted Jody Lee Miles of first-degree felony murder and related offenses and sentenced Miles to death. The Court of Appeals affirmed Miles’ convictions and the sentence of death. The United States Supreme Court denied Miles’ petition for writ of certiorari.
Miles filed a motion to correct an illegal sentence, arguing that he was entitled to a new sentencing hearing on the ground that the jury should have been instructed that a death sentence cannot be imposed unless every juror is persuaded beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating circumstances. The circuit court denied the motion.
The Court of Appeals affirmed the denial of Miles’ motion to correct an illegal sentence.
LAW: In Kansas v. Marsh, 548 U.S. 163 (2006), the Supreme Court held that “Kansas’ death penalty statute, consistent with the Constitution, may direct imposition of the death penalty when the State has proved beyond a reasonable doubt that mitigators do not outweigh aggravators, including where the aggravating circumstances and mitigating circumstances are in equipoise.” Id. at 173. Thus, Maryland’s capital sentencing procedure does not violate the Eighth Amendment.
According to Miles, however, his sentence became “illegal” when the United States Supreme Court decided Cunningham v. California, 549 U.S. 270 (2007). Cunningham presented only the question of “whether [California’s determinate sentencing law] … , by placing sentence-elevating factfinding within the judge’s province, violates a defendant’s right to a trial by jury safeguarded by the Sixth and Fourteenth Amendments.” Id. 274. Cunningham, however, did not establish the rule that the Sixth Amendment requires that “any fact (other than prior conviction) that increases the maximum penalty for a crime … be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.”
The rule in Cunningham was first established in Jones v. United States, 526 U.S. 227 (1999). In Apprendi v. New Jersey, 530 U.S. 466, 476 (2000), the United States Supreme Court held that “[t]he Fourteenth Amendment commands the same answer in [a] case involving a state statute.” This rule was made applicable to capital cases in Ring v. Arizona, 536 U.S. 584 (2002).
Oken v. State, 378 Md. 179 (2003), includes a thorough analysis of the United States Supreme Court’s death penalty jurisprudence. “Ring only addresses the eligibility phase of the sentencing process. Those aggravating factors which narrow the class of death-eligible defendants for Eighth Amendment purposes must be found by a proper sentencing authority beyond a reasonable doubt in order to comply with the requirements of the Sixth Amendment. Ring holds no implications for the selection phase of Maryland’s sentencing process. Because the Maryland statute already requires that the finding of the existence of an aggravating circumstance must be made by a jury beyond a reasonable doubt, the Maryland statute is unaffected by the Ring holding.” Oken, 378 Md. at 251-53.
The Court continued “We also conclude that the Maryland death penalty statute, [Article 27, §413(h)], cannot be read to be implicated by Ring under any theory of legislative interpretation. The legislative history indicates that the weighing process never was intended to be a component of a ‘fact finding’ process required to narrow the class of death-eligible defendants. Far from being designed to further refine the class of death-eligible defendants, the assignment of a standard to the weighing process was intended to protect the statute from Constitutional attack by such defendants.” Id. at 268-70. See also Ritchie v. State, 809 N.E.2d 258 (Ind.2004).
In Evans v. State, 389 Md. 456 (2005), the Court of Appeals refused to award a new sentencing hearing on the ground that the appellant had been sentenced to death by a jury that was instructed to apply the preponderance standard to the issue of whether any aggravating factors outweigh any mitigating factors.
In Grandison v. State, 390 Md. 412 (2005), a majority of the Court of Appeals reaffirmed its prior holdings that Maryland’s death penalty statute, which permits the jury to find that aggravating factors outweigh mitigating factors by a preponderance of the evidence, is constitutional under Apprendi and Ring.
The Court stated: “The actual holding of Apprendi is that ‘[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.’ Apprendi, 530 U.S. at 490. In Ring, the Supreme Court stated that ‘[b]ecause Arizona’s enumerated aggravating factors operate as ‘the functional equivalent of an element of a greater offense,’ the Sixth Amendment requires that they be found by a jury.’ Ring, 536 U.S. at 609. The holding in Ring clearly states that it is the finding of an aggravating circumstance, and only the finding of an aggravating circumstance, that results in death-eligibility. Because the Maryland death penalty statute requires that an aggravating circumstance be found by a proper sentencing authority beyond a reasonable doubt, the Maryland statute does not violate the Sixth Amendment requirements most recently stated in Apprendi and Ring.” Grandison, 390 Md. at 438.
The Court of Appeals stated: “As individual judges, we might well entertain the personal belief that it would be more fair, or better public policy, for the jury to apply a reasonable doubt standard in determining that aggravating circumstances outweigh mitigators. That is a judgment for the Legislature to make, however, and, unlike its counterparts in other States, which have legislatively imposed a reasonable doubt standard, the Maryland General Assembly has chosen a different approach.” Borchardt v. State, 367 Md. 91, 128-29 (2001).
To apply Ring and Cunningham as Miles urged would be the very same substitution of the Court’s judgment for that of the Legislature. “If we err in our conclusions, … there is a Supreme Court erected expressly for the final adjudication of such questions, where our judgment may be reviewed and corrected, and the rights of the citizen vindicated. To this we … defer[,] confidant that none will more cordially concur in the result.” Stevenson v. State, 289 Md. 167, 189 (1981).
Accordingly, the judgment of the Court of Special Appeals was affirmed.
COMMENTARY: The State moved to dismiss this appeal on the ground that Cunningham is a non-capital case that merely reiterates the principles espoused in Apprendi and Ring and which does not constitute a new judicial interpretation of Apprendi and Ring.
While the State’s interpretation of Cunningham was correct, the motion to dismiss was denied. Miles had a right to appellate review of his claim that he was entitled a new sentencing proceeding on the ground that Cunningham did establish a Sixth Amendment standard that must be applied retroactively.
DISSENT: According to the dissent, the portion of §2-303(i) that provides that the punishment shall be death if the sentencing authority finds that the aggravating factors outweigh the mitigating factors by a preponderance of the evidence, violates the Sixth Amendment and the Maryland Declaration of Rights. The dissent would sever the unconstitutional portion of the statute, require the beyond a reasonable doubt standard to be applied as a matter of law, vacate Miles’s sentence of death imposed pursuant to §2-303(i), and remand for a new sentencing hearing.
PRACTICE TIPS: “State convictions are final ‘for purposes of retroactivity analysis when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely filed petition has been finally denied.’” Beard v. Banks, 42 U.S. 406, 411 (2004) (quoting Caspari v. Bohlen, 510 U.S. 383, 390 (1994)). In Schriro v. Summerlin, 542 U.S. 348, 358 (2004), the United States Supreme Court squarely held that Ring v. Arizona, 536 U.S. 584 (2002) “announced a new procedural rule that does not apply retroactively to cases already final on direct review.”
Constitutional Law
BOTTOM LINE: Statements made to a fellow detainee by defendant’s alleged accomplice, relating facts about a murder, were admissible at defendant’s trial. The statements were non-testimonial because they were part of a casual conversation between longtime acquaintances, the detainee was not acting as a law enforcement agent, and it was unlikely the accomplice would have made the statements if he had believed they would be used in a later trial.
CASE: Cox v. State, No. 1980, Sept. Term, 2010 (filed Sept. 20, 2011) (Judges Bell, Harrell, Battagli, GREENE, Murphy, Adkins & Barbera (retired, specially assigned)). RecordFax No. 11-0920-22, 31 pages.
FACTS: On December 28, 2007, Baltimore City police officer William Keitz found Todd Dargan lying face up, bleeding and unresponsive, at a Baltimore shopping center. Officer Keitz called for a medic and surveyed the scene. That day, detectives Milton Smith, Derek Phyall, and Eugene Bush were patrolling in an unmarked car near the shopping center when they observed Ronald Cox driving a black 2006 Mercedes without his seatbelt fastened. Rodney Johnson, a black male wearing a black hooded sweatshirt, was sitting in the passenger’s seat. When the car failed to stop at a stop sign, the detectives initiated a traffic stop.
When the police stopped Johnson and Cox, Johnson’s hands were visibly shaking, and Cox appeared calm. As the detectives spoke with the men, a series of calls came over the police radio reporting the nearby shooting, and Johnson appeared increasingly nervous as he overheard the calls. Observing Johnson’s reaction, Detective Smith asked Johnson if he possessed anything illegal. After Johnson replied that he did not, the detective asked if he “could check.” Johnson stepped out of the car and Detective Smith patted him down, but did not find either drugs or weapons in his possession. Johnson was instructed to sit on the curb beside the car.
Between 15 and 23 minutes after the initial stop, a description of the suspect in the shooting was relayed over the radio police describing a “black male wearing a black hoodie.” Noting that Johnson matched that description, Detective Phyall asked Cox if there was anything in the car. In response, Cox stepped out of the car with his hands in the air. Detective Phyall later testified that he felt this action constituted consent to a search. While Detective Bush patted Cox down, finding no drugs or weapons, Detective Phyall searched the vehicle and found a handgun in the trunk. At that point, both Cox and Johnson were placed under arrest.
Cox and Johnson filed a pretrial motion to suppress the evidence obtained during the stop, namely the recovered gun. The circuit court granted the motion and suppressed the handgun in addition to any testimony relating to the search or arrest. The court found that the initial stop was lawful, but concluded that the length of that detention, which was between 15 and 23 minutes, was unreasonable. The hearing judge additionally found that the police lacked both consent and probable cause to search the vehicle.
The circuit court held a second pretrial suppression hearing regarding Cox’s motion to suppress the testimony of a fellow inmate named Michael West, who testified that he had known Johnson for approximately 15 years. West testified that he had been arrested, on an unrelated weapons charge, on the same date as Cox and Johnson, and that he saw Cox and Johnson the next day in Central Booking. West explained that Johnson and Cox made a number of incriminating statements to West regarding their involvement in the shooting.
Cox’s counsel objected to the admission of West’s testimony as hearsay, as a violation of Cox’s right to confrontation, and as the “poisonous fruit” of the illegal detention, search, and arrest. The hearing court denied Cox’s motion to suppress the statements.
A jury convicted Cox of first-degree murder, use of a handgun in the commission of a felony or a crime of violence, wearing, carrying or transporting a handgun, and possession of a regulated firearm after conviction of a disqualifying crime. Cox appealed to the Court of Special Appeals, which affirmed his convictions.
The Court of Appeals also affirmed.
LAW: The Confrontation Clause provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. Crawford v. Washington, 541 U.S. 36 (2004). Constitutional parameters prohibit admission of testimonial statements of a witness who did not appear at trial unless the witness was unavailable to testify, and the defendant had a prior opportunity for cross-examination. Crawford, 541 U.S. at 53–54.
By contrast, if a statement is non-testimonial, the Confrontation Clause does not bar its admission, and the only remaining question is whether the statement is admissible under the relevant rules of evidence. Id. at 68. Thus, following Crawford, whether a statement was considered “testimonial” became critically important to the Confrontation Clause analysis.
Expanding on the principles set forth in Crawford, the Supreme Court explained in a later decision that statements are non-testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. Statements are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the interrogation’s primary purpose is to establish or prove past events potentially relevant to later criminal prosecution. Davis v. Washington, 547 U.S. 813 (2006).
In a pre-Crawford case, Dutton v. Evans, the Supreme Court found there was no violation in the admission of a statement made by a co-conspirator to another inmate. Dutton v. Evans, 400 U.S. 74, 87–89 (1970).
Although the reasoning employed in Dutton is no longer valid, the facts of Dutton were quite similar to those in the present case. Thus, it was significant that later Supreme Court opinions refer to the Dutton statements as “clearly non-testimonial.” See Davis v. Washington, 547 U.S. 813. In the present case, as in Dutton, it did not appear that the witness was acting as a law enforcement agent at the time the incriminating statements by the co-conspirator were made. In both cases, it was purely coincidental that the witness and the co-conspirator were in the same jail at the same time. Likewise, in both cases, the witnesses’ statements arose purely out of casual conversation.
In addition, in Michigan v. Bryant, 562 U.S. ––––, (2011), the United States Supreme Court elaborated on its earlier holdings and provided a broader framework for determining whether a statement is testimonial. When, as in Davis, the primary purpose of an interrogation is to respond to an ongoing emergency, rather than to create a record for trial, it is not within the scope of the Clause. Bryant, 562 U.S. at ––––.
The relevant inquiry is not the subjective or actual purpose of the individuals involved, but rather the purpose that reasonable participants would have had, as ascertained from their statements and actions and the circumstances of the encounter. Id.
Applying Crawford, Davis, and Bryant to the present case, the Court of Special Appeals was correct in holding that Johnson’s statements were non-testimonial because they were not made under circumstances in which a reasonable person would believe that the statements would be available for use at a later trial. Cox v. State, 194 Md.App. 629 (2010).
Under the objective primary purpose test laid out in Bryant, when the State seeks to introduce an out-of-court statement against a criminal defendant, the proper inquiry is to determine whether a reasonable person in the declarant’s situation would have made the statement with a primary purpose of creating an out-of-court substitute for trial testimony. Bryant, 562 U.S. at ––––.
In this case, West testified that the conversation between Johnson and Cox began because West and Johnson had known each other for approximately 15 years. West was not acting as a law enforcement agent; rather, the interaction was a casual conversation between private acquaintances. Further, it was unlikely that Johnson would have made the statements to West if he believed the statements would be used in a later trial. Like the casual conversation between cell mates in Dutton, which the Supreme Court referred to as “clearly non-testimonial” in Davis, Johnson’s statements were spontaneous, and it was against his penal interest to make them. Dutton, 400 U.S. at 89. Therefore, the casual statements between acquaintances were not made for the primary purpose of creating a substitute for trial testimony. Thus, the statements did not violate Cox’s rights under the Confrontation Clause.
Accordingly, the judgment of the Court of Special Appeals was affirmed.
COMMENTARY: Cox additionally argued that West’s testimony should have been suppressed as the “poisonous fruit” of the illegal detention and search that put them in jail.
The “fruit of the poisonous tree” doctrine excludes direct and indirect evidence that is a product of police conduct in violation of the Fourth Amendment. Myers v. State, 395 Md. 261, 291 (2006). However, although evidence derived from illegal police activity is generally inadmissible, some derivative evidence can be introduced. Wong Sun v. United States, 371 U.S. 471 (1963). There are three ways to “purge the taint” of the illegality. Miles v. State, 365 Md. 488, 520–21 (2001). One such way is through attenuation. Under the attenuation exception, the use of illegally obtained evidence is permitted where it can be shown that the so-called poison of the unlawful governmental conduct is so attenuated from the evidence as to purge any taint resulting from said conduct. See Wong Sun, 371 U.S. at 488.
In the present case, West’s testimony was indeed “purged” of the taint of the illegal search and arrest. For one, Cox and Johnson’s statements were made approximately 20 hours after Cox’s illegal arrest, an amount of time that favors a finding of attenuation. In addition, Johnson’s statements, and Cox’s acceptance of them, were purely voluntary, unprompted by police interrogation or action, constituted an intervening circumstance. Finally, there was no indication that West was serving as an inserted informant. As such, all factors in the attenuation analysis weighed in favor of admitting the evidence, and the trial court did not err in denying Cox’s motion to suppress.
PRACTICE TIPS: An extrajudicial confession of guilt, unsupported by other evidence, is not sufficient to warrant a conviction. Rather, the extrajudicial confession must be supported by independent evidence that relates to and tends to establish the corpus delicti. It is not necessary, however, that the independent evidence be full and complete or that it establish the truth of the corpus delicti beyond a reasonable doubt or by a preponderance of proof; the supporting evidence is sufficient to establish the corpus delicti if, when considered in connection with the confession or admission, it satisfies the trier of facts beyond a reasonable doubt that the offense charged was committed by the accused.
Constitutional Law
Judicial age limit
BOTTOM LINE: In answering questions certified to it from the district court, the Court of Appeals held that the Maryland constitution prohibits all persons over the age of 70 from holding judicial office.
CASE: Bernstein v. State, Misc. No. 1, Sept. Term 2010 (filed Sept. 22, 2011) (Judges BELL, Harrell, Battaglia, Greene, Murphy, Adkins & Barbera). RecordFax No. 11-0922-20, 34 pages.
FACTS: Charles G. Bernstein was appointed on October 10, 2006, by Governor Robert L. Ehrlich, as an associate judge of the circuit court for Baltimore City. As required by Article IV, §3 of the Maryland Constitution, Judge Bernstein stood for election in November 2008 and was elected for a fifteen-year term of office as an elected circuit court judge. Nevertheless, just over a year into his term, on the date of his seventieth birthday, Judge Bernstein was required to retire.
Prior to his retirement, Judge Bernstein filed a complaint in federal district court, seeking a declaratory judgment that the State’s mandatory retirement scheme for judges violated equal protection, and a preliminary and permanent injunction prohibiting state officials from requiring him to retire from his office as an associate circuit court judge. The State moved to dismiss the complaint.
Noting that there is no Maryland case which provides a “definitive interpretation” of Article IV, §3, the federal district court certified to the Court of Appeals certain questions.
In response to the certified questions, the Court of Appeals advised: (1) The Maryland Constitution (i) requires a sitting judge to retire upon reaching age seventy, (ii) prohibits the Governor from appointing a person seventy years of age, or older, to the bench, and (iii) prohibits a person seventy years of age, or older, from running for a judicial office and (2) The Maryland Constitution does not permit a person seventy years of age, or older, to run for a judicial office and, if elected, to serve out the entire term.
LAW: Pursuant to Article IV, §3 of the Maryland Constitution, “except for the judges of the district court, the Judges of the several Courts other than the Court of Appeals or any intermediate courts of appeal, shall … hold office for the term of fifteen years from the time of his election, and until his successor is elected and qualified, or until he shall have attained the age of seventy years, whichever may first happen, and be re-eligible thereto until he shall have attained the age of seventy years, and not after.” Md. CONST. art. IV, §3.
Article IV, §2 prescribes the qualifications for judicial service and prescribes a minimum age of 30 for judicial service, but not a maximum one.
Article IV, §5 expressly prevents the governor from appointing a person whose seventieth birthday precedes the next judicial election.
“It is a cardinal rule of construction that where the text of a constitutional provision is not ambiguous, the Court, in construing it, is not at liberty to search for its meaning beyond the Constitution itself.” Reed v. McKeldin, 207 Md. 553, 560 (1955). Furthermore, “[o]ne cannot view the Constitution as made up of separate and unrelated parts. The entire Constitution must be regarded as a whole. Each part must be construed, not by itself, but with reference to the whole.” County Comm’rs for Montgomery County v. Supervisors of Elections, 192 Md. 196, 208 (1949).
Judge Bernstein asserted that the language, “[e]ach of the said judges shall hold his office … until he shall have attained the age of seventy years,” in Article IV, §3 is a restriction solely on those circuit court judges reaching the age of seventy while simultaneously holding their judicial office. He argued that the plain meaning of the phrase “[e]ach of the said Judges” refers only to presently serving circuit court judges.
Among the qualifications found in Article IV, §2, for example, is the requirement that judicial candidates “be selected from those who have been admitted to practice law in this State.” Applying Judge Bernstein’s approach and logic, a technically plausible, yet legally incorrect, plain-language reading of the section could be that judicial candidates need not currently be admitted to the Maryland Bar if they “have been admitted to practice law in Maryland” at some point.
Taken out of context, reading Article IV, §2 to permit disbarred judicial candidates is not altogether implausible: it may be supposed that the Legislature could have been concerned only that a judge have some legal experience. Such a construction, while possible if viewed in isolation, defies common sense when viewed in context and in light of the constitutional scheme.
“In construing statutes, results that are unreasonable, illogical or inconsistent with common sense should be avoided whenever possible consistent with the statutory language, with the real legislative intention prevailing over the intention indicated by the literal meaning.” Comptroller of Treasury v. Mandel, Lee, Goldstein, Burch Re–Election Committee, 280 Md. 575, 579 (1977).
The phrase in §3, “[e]ach of the said judges,” does not refer to specific persons but rather, in context, references an entire category. The “said judges” are all judges “[e]xcept for Judges of the District Court, the Judges of the several Courts other than the Court of Appeals or any intermediate courts of appeal.” In excluding to whom the section was to be applied, the framers set out what categories of judges were not to be affected, and there is no reason to believe that they deviated from this path, within the same section, when prohibiting service after the age of seventy.
Therefore, the provision prescribes a maximum age requirement on the entire category of circuit court judges, which is determinative of an individual’s eligibility to serve.
Against the notion of a maximum age, Judge Bernstein argued that particularly relevant is the fact that Article IV, §2 imposes a mandatory minimum age, but no maximum age limitation. He contended that if the framers intended to set a maximum age, it would have been set forth in §2, where other eligibility requirements are found. Judge Bernstein cited, however, no support for this contention. There is no obligation that all required qualifications for active judicial service be located within the same section of the Constitution.
Reading Article IV, §3 in the context of other related provisions in the Maryland Constitution provides further evidence that the section prohibits all persons over the age of seventy from holding judicial office.
Article IV, §5, by reference, prescribes that those who are not of a certain age are not qualified, and precludes the governor from appointing persons above a certain age. To be sure, the section does not specify what the age of disqualification is. To determine what that specific age is, §5 refers back to Article IV, §3. This interdependence of §3, which pertains to the election of circuit court judges, and §5 of the Article, which pertains to the appointment of those judges, is clear evidence that the age restriction of seventy is an age qualification or eligibility requirement that must be met by all sitting and potential judges.
By reading §3 in context with §5, it is obvious that the maximum age in §3 cannot apply solely to sitting judges, for to do so would render §5 meaningless. Section 5 places a prohibition on the governor, prohibiting the governor from appointing a candidate “who will become disqualified by reason of age” prior to the “first biennial general election.” An exception to this restriction is provided when reappointing sitting judges. That exception, if read in conjunction with Judge Bernstein’s interpretation of Article IV, §3, excludes the appointment of those between the ages of sixty-eight and seventy and no one else; it would render Article IV, §5 a needless and nonsensical prohibition against the Governor appointing a judge who will become too young to serve.
Thus, the text of Article IV, §3 is unambiguous. Moreover, when read in context and with the other provisions of Article IV, it precludes the retention, appointment or election of a person over the age of seventy as a circuit court judge in Maryland.
Even if the text of the Article IV, §3, considered in the context of the constitutional scheme established by Article IV, were ambiguous, Judge Bernstein’s construction of the section conflicts with the clearly expressed intent of its framers.
“In determining the true meaning of the language used, the courts may consider the mischief at which the provision was aimed, the remedy, the temper and spirit of the people at the time it was framed, the common usage well known to the people, and the history of the growth or evolution of the particular provision under consideration. In aid of an inquiry into the true meaning of the language used, weight may also be given to long continued contemporaneous construction by officials charged with the administration of the government, and especially by the Legislature.” Johns Hopkins Univ. v. Williams, 199 Md. 382, 386–87 (1952).
The State judicial department was considered and reviewed at Constitutional Conventions three times in less than two decades in the middle of the nineteenth century before the ratification of Maryland’s current Constitution. The debates involving the Judiciary at these Conventions focused primarily upon the relative merits of judicial appointment and life tenure.
The specific language, “a judge … shall hold his office … until he shall have attained the age of seventy years … and be re-eligible thereto until he shall have attained the age of seventy years and not after” first appeared in the Maryland Constitution of 1851. At that time, the provision applied only to judges sitting on the Court of Appeals. There was no maximum age for circuit court judges.
At all three Conventions, delegates debated the relative merits of an elected judiciary and lengthy tenure. Throughout these debates, the language of Article IV, §3 was discussed as a means of keeping the bench free of judges rendered incompetent by advanced age. At no point in any of the three Constitutional Conventions was the language of Article IV, §3 discussed in the context of ensuring judicial turnover for the sake of harnessing fresh judicial talent or for any purpose other than ensuring that the bench was not populated by people over a certain age.
Maryland has a longstanding practice of not permitting judges to remain regular members of the bench after attaining the age of seventy. See Hornbeck v. Somerset County Bd. of Educ., 295 Md. 597, 620 (1983).
The Maryland practice and policy of retiring all judges at age seventy has been premised on the perception that it has been a constitutionally mandated aspect of the Maryland judiciary since 1851. The only major change to the relevant portion of Article IV, §3 was a constitutional amendment, ratified in 1932, that removed an exception to the seventy years of age requirement, thus precluding the Legislature from continuing judges in office after they attained age seventy.
Since the adoption of the language in Article IV, §3, no judge in the State has been appointed or elected to the bench following his or her seventieth birthday. These longstanding practices provide further evidence that the intent of the framers of Article IV, § 3 was to ensure that there were no active judges over the age of seventy in Maryland’s judiciary.
Accordingly, in response to the certified questions the Court advised: (1) The Maryland Constitution (i) requires a sitting judge to retire upon reaching age seventy, (ii) prohibits the Governor from appointing a person seventy years of age, or older, to the bench, and (iii) prohibits a person seventy years of age, or older, from running for a judicial office and (2) Conversely, the Maryland Constitution does not permit a person seventy years of age, or older, to run for a judicial office and, if elected, to serve out the entire term.
PRACTICE TIPS: It is well established, that while having been admitted to practice law in Maryland is a requirement for selection as a judge, Md. CONST. art. IV, §2, it is “not necessary for a judge of an orphans’ court to be a member of the bar.” Kadan v. Board of Supervisors of Elections, 273 Md. 406, 407 (1974). Md. CONST. art. IV, §40. Recently, however, the General Assembly passed a Constitutional Amendment, requiring judges of the Orphans’ Court for Baltimore City to be “admitted to practice law in this State and [be] members in good standing of the Maryland Bar”; the amendment was ratified by the electorate soon after. Article IV, §40, cl. (b) (ratified Nov. 2, 2010).
Accomplice liability
BOTTOM LINE: Where the evidence of complicity was not so clear and decisive, the trial court properly denied defendant’s request that the jury be instructed that two key state’s witnesses were accomplices as a matter of law.
CASE: Silva v. State, No. 126, Sept. Term, 2010 (filed Sept. 21, 2011) (Judges Bell, Harrell, Battaglia, Greene, Murphy, Adkins & BARBERA). RecordFax No. 11-0921-23, 20 pages.
FACTS: On January 7, 2006, a group of MS-13 gang members, including Enrique Silva and William Salmeron, encountered Alverez Salmaron and Hever Joel Gonzalez Garcia (the victims) at a nightclub. Also among the group were Jose Castillo and William Flores, neither of whom was an MS-13 member.
Believing that the victims were members of a rival gang, one of the MS-13 gang members reminded Silva that, according to gang rules, they were required to attack all 18th Street gang members on sight, so they had an obligation to make the victims “disappear.”
Around closing time, the MS-13 members, together with Castillo and Flores, left the club with the two victims. Both victims were heavily intoxicated. Castillo rode in Salmeron’s car and Flores drove his car with Silva and the two victims as passengers. Salmeron parked his car next to the athletic field at Arbutus Middle School. Flores parked his car on the opposite side of the street, facing the other direction.
According to Salmeron, everyone in his car, including Castillo, walked to the athletic field. Meanwhile, Silva and another gang member removed the first victim from Flores’s car, taking him by the hand and leading him down some steps onto the field. Flores testified that he and an unidentified person remained in his car with the second victim, who, apparently still intoxicated, was asleep in the back seat.
Salmeron testified that, as soon as the first victim was brought to the field, Silva and another gang member began stabbing him. Shortly after, they returned to Flores’s car, awoke the second victim, pulled him out of the car and dragged him onto the field, where he too was stabbed to death.
Salmeron initially testified that Castillo stabbed the second victim, but later retracted that statement, testifying that he did not know if Castillo had stabbed somebody or not. Toward the end of his testimony, Salmeron stated that neither Castillo nor Flores participated in the actual stabbings.
When questioned on direct and cross-examination about their participation in the murders, both Castillo and Flores denied having knowledge of the plan to murder the two victims or participating in the murders. Castillo repeatedly testified that, despite hearing talk, both in the nightclub and in the car, about making the two victims “disappear,” he did not think that Silva and the other MS-13 members would kill the victims.
Finally, both Castillo and Flores testified that they had not seen Silva before the night of the murders. Castillo testified that he did not know Silva’s name. Flores testified that he knew Silva as “El Diablo,” but he could not positively identify Silva when the police showed him a photo line-up.
At the close of the State’s case, Silva’s counsel made a motion for judgment of acquittal. He argued that Salmeron, Castillo and Flores were accomplices as a matter of law whose testimony had not been corroborated. The State conceded that Salmeron was an accomplice as a matter of law because Salmeron previously admitted his participation in the murders.
As to Castillo and Flores, however, the trial court denied the motion for judgment of acquittal because the evidence regarding Castillo’s and Flores’s complicity was not clear enough to decide the issue as a matter of law.
Silva rested without putting on a defense case. He then renewed the motion for judgment of acquittal, which the trial court again denied.
The court instructed the jury that Salmeron “was an accomplice,” and, that Castillo and Flores “may have been accomplices.” The court further instructed the jury that they must decide whether Silva proved by a preponderance of the evidence that Castillo and Flores were accomplices, and, if so, whether their testimony was corroborated.
The jury found Silva guilty on both counts of first-degree murder. The court sentenced Silva to two concurrent life sentences without the possibility of parole. The Court of Special Appeals affirmed.
Silva appealed to the Court of Appeals, which affirmed.
LAW: “‘To be an accomplice a person must participate in the commission of a crime knowingly, voluntarily, and with common criminal intent with the principal offender, or must in some way advocate or encourage the commission of the crime.’” State v. Raines, 326 Md. 582, 597 (1992) (quoting Watson v. State, 208 Md. 210, 219 (1955)). “‘[T]he mere fact that a person witnesses a crime and makes no objection to its commission, and does not notify the police, does not make him a participant in the crime.’” State v. Foster, 263 Md. 388, 394 (1971). Instead, the person must actually participate by “‘assist[ing], support[ing] or supplement[ing] the efforts of another,’” or, if not actively participating, then the person must be present and “‘advise or encourage the commission of a crime’” to be considered an accomplice. Id. at 393.
Under Maryland’s complicity law, “the spectrum of proof” contains “three distinct bands” — accomplices as a matter of fact, as determined by a jury (or a judge, acting in his or her fact-finder role, at a bench trial), or accomplices as a matter of law vel non, as determined by a judge. Trovato v. State, 36 Md.App. 183, 188 (1977).
For a judge to take the question of complicity from the jury and make a finding as a matter of law, “the proof must be so clear and decisive that reasonable minds could not differ in coming to the same conclusion.” See In re Anthony W., 388 Md. 251, 278 (2005). When, however, “evidence relating to whether a witness is an accomplice is capable of being determined either way and justifies different inferences in respect thereto, the question is for the determination of the trier of fact and in a jury case should be submitted to the jury with proper instructions.” Foster, 263 Md. at 394.
Someone serving as a lookout could be considered an accomplice to a crime. But, evidence suggesting that someone acted as a lookout is a far cry from evidence that is so “clear and decisive that reasonable minds could not differ in coming to the same conclusion.” In re Anthony W., 388 Md. at 278.
In Foster, the petitioner appealed the trial court’s denial of his motion for judgment of acquittal, claiming that “the record clearly indicated that both [witnesses,] Smoot and Simms[,] were accomplices and the State presented no corroborative evidence sufficient to find him guilty.” 263 Md. at 393. The evidence adduced at trial indicated that Smoot knew the petitioner was angry with the victim for “putting the police on his trail,” but she did not participate in the murder because she was asleep in the car. Id. at 392. With regard to Simms, who was also under indictment for the murder of the victim, the evidence indicated that, although he handed the gun to the petitioner when the petitioner asked to see it, he remained in the car during the shooting. Id.
Based on the evidence, the Court of Appeals rejected the petitioner’s claim that the trial court erred in denying his motion for judgment of acquittal. Id. at 395. The Court stated that, from “the testimony of Simms which exculpated Smoot and Smoot’s testimony (which) exculpated Simms, the jury could conversely decide that either or both, were not accomplices. Therefore, the trial judge was correct in denying the [petitioner’s] motion for judgment of acquittal.” Id.
The evidence adduced at trial regarding Castillo’s knowledge and participation in the murders of the two victims, like the evidence in Foster, is open for interpretation by the jury, particularly given its inconsistencies. At one moment in his testimony, Castillo admitted that he overheard gang members discuss the plan to “disappear” the two victims; at the next, Castillo denied knowledge that the group would actually harm the two men. Castillo explicitly denied that he acted as a lookout, but he also described how he stood at the bottom of the steps when the group told him to look out for cars.
Although a reasonable jury may well find that Castillo participated in the murders a reasonable jury may conclude otherwise. Therefore, the trial court properly denied Silva’s request that Castillo be deemed an accomplice as a matter of law.
With respect to Flores, Flores testified that he did not drive away when he realized that the group intended to murder the victims because there was another person in the car and they were going to kill him anyway. Flores testified that, after the murder of the second victim, Flores heard the gang members decide to let him live only because the group mistakenly believed that Flores was Salmeron’s cousin.
The jury was free to credit Flores’s testimony about his lack of knowledge and fear, and thereby decide that Flores was not an accomplice to the murders. Likewise, the jury could decide that Flores lied.
When the evidence that a witness is an accomplice can go either way, it is the role of the fact-finder, in this case the jury, to decide whether to believe the witness. Foster, 263 Md. at 394.
Consequently, the trial court properly denied Silva’s request that Flores be identified as an accomplice as a matter of law.
COMMENTARY: Silva argued that Castillo and Flores were accomplices as a matter of law because MS-13 would not allow persons with potential to furnish evidence against them to help with murders unless they were also involved in the gang. To support that notion, Petitioner directs us to Detective Saa’s expert testimony that MS-13 uses new recruits as lookouts and getaway drivers during the indoctrination process.
Although the Detective’s testimony informed the issue, it was not dispositive. The Detective’s testimony supported the notion that Castillo’s and Flores’s complicity vel non should be for a jury to decide, but it did not provide evidence clear enough to have compelled a determination by the trial court that the witnesses were accomplices as a matter of law.
Criminal Procedure
Petition for DNA testing
BOTTOM LINE: The trial court erred in denying defendant’s post-conviction petition seeking DNA testing of evidence two days after the State filed an affidavit from a key witness without providing defendant an opportunity to respond to and challenge the representations in the affidavit.
CASE: Arey v. State, No. 104, Sept. Term, 2010 (filed Sept. 22, 2011) (Judges Harrell, GREENE, Adkins, Barbera, Eldridge (retired, specially assigned), Rodowsky (retired, specially assigned) & Raker (retired, specially assigned)). RecordFax No. 11-0922-22, 22 pages.
FACTS: In 1973, Baltimore City police officers contacted Douglas Arey and requested that he come into the station for questioning regarding the death of his former employer, Samuel Shapiro. After voluntarily submitting to questioning, Arey confessed to the police that he shot Shapiro and was charged with first-degree murder and other related crimes.
Among the evidence presented by the State at the original trial was a blue denim shirt which Arey had been wearing when he arrived at the police station for questioning. There was a small amount of blood on the right shoulder area of the shirt, which Arey claimed was his own blood. At a pretrial hearing, Arey asserted that he had been nervously picking at pimples on his face during interrogation and had wiped the blood on the back of his shirt. A detective testified that he had observed this occur.
The State presented expert testimony from Robert Davis, the police department’s crime laboratory technician, who testified that scientific analysis showed that the shirt contained type AB blood, which matched the victim’s blood type, and did not match Arey’s type O blood.
The results of the scientific analysis of the blood on Arey’s shirt were admitted into evidence, along with the testimony of Dennis Moon, who claimed to have assisted Arey with the murder, and the confession from Arey himself.
Arey was convicted of first-degree murder and use of a handgun in the commission of a felony, and sentenced to life imprisonment plus ten years concurrent. The Court of Special Appeals affirmed.
In 2002, Arey filed a pro se petition in the circuit court under CP §8–201, seeking postconviction DNA testing of evidence. The State produced an affidavit of a police sergeant averring that the evidence no longer existed after the sergeant searched the database and records of the Baltimore City Police Department’s Evidence Control Unit (ECU) and found no reference to the evidence. On the basis of the affidavit, the circuit court dismissed the petition.
In 2007, the Court of Appeals reversed and remanded, holding that the State’s affidavit was not sufficient to constitute a reasonable search for the evidence requested. See Arey v. State, 400 Md. 491, 503–04 (2007) (Arey I).
On remand, the circuit court held four separate hearings between November 2007 and April 2010.
At the first hearing, the State contended that a large amount of evidence was damaged or destroyed when the basement of the Baltimore City Police Department building was flooded by Hurricane Isabel in 2003.
At the second hearing, the commanding officer of the Police Department’s Evidence Control Unit, or ECU, testified that a contractor had inventoried 417,000 pieces of evidence recovered from the flood and found no evidence related to Arey’s case. However, a warehouse containing a mass of unidentifiable clothing damaged in the flood was not searched.
At the third hearing, the State provided the logbook from the Police Department’s crime laboratory which showed that the evidence in Arey’s case was examined in May 1973 by someone with the initials “R.S.D.”
At the fourth hearing, held on April 19, 2010, the State filed an affidavit from Robert S. Davis, the crime laboratory technician who testified at Arey’s original trial, in which he averred that he did not recall the shirt or any work he may have performed upon it. Davis did recall that he did not personally keep any physical evidence after testing and that items, such as a shirt, were ordinarily returned to the ECU after laboratory work was completed.
Two days later, on April 21, 2010, the circuit court dismissed the petition for DNA testing on the ground that, with the submission of Davis’s affidavit, the State conducted a reasonable search for the evidence under CP §8–201. Arey filed a direct appeal to the Court of Appeals pursuant to CP §8–201(j)(6).
The Court of Appeals reversed and remanded.
LAW: CP §8–201(b) grants a right to a person convicted of one or more specified crimes to file a petition for DNA testing of evidence in the possession of the State that relates to a conviction. See Blake v. State, 395 Md. 213, 218–19 1023 (2006) (Blake I). When reviewing a circuit court’s ruling that the State’s search was reasonable under §8–201, the Court will uphold findings of fact unless they are clearly erroneous. Blake v. State, 418 Md. 445, 460 (2011) (Blake II).
In Blake I, the Court of Appeals held that the circuit court erred in summarily dismissing Blake’s petition for testing before Blake had an opportunity to respond to the State’s allegation that the evidence related to Blake’s conviction was no longer in its possession.
“Fundamental fairness requires that a petitioner be given an opportunity to respond and to challenge the State’s representation. When it is the State’s position that the evidence sought to be tested no longer exists, the circuit court may not summarily dismiss the petition requesting DNA testing. The court must give a petitioner notice of and an opportunity to respond to the State’s allegation.” Blake I, 395 Md. at 460.
In addition, Blake’s rights to due process entitled him to notice of the court’s impending ruling and an opportunity to respond. “Appellant had a liberty interest at stake, and was, at a minimum, entitled to notice of the impending action, even if he did not have the right to an oral hearing. Consequently, the failure of the Circuit Court to provide any notice to appellant that the State had filed the motion to dismiss and that the court intended to rule upon it, and its dismissal of the petition without affording appellant any opportunity to respond, violated his rights to due process.” Blake I, 395 Md. at 230.
Similarly, Arey was not given adequate opportunity to respond to the affidavit before the hearing judge dismissed his petition. Arey’s due process rights entitled him to notice and a reasonable opportunity to respond to the averments in Davis’s affidavit before a ruling was made.
In Horton v. State, 412 Md. 1 (2009), the hearing judge dismissed Horton’s petition under §8–201 for DNA testing of evidence related to his conviction on the ground that the evidence did not exist. Id. at 3. The Court of Appeals held that the circuit court erred in dismissing Horton’s petition for DNA testing two days after the State made available a document authorizing destruction of the evidence related to Horton’s conviction, and less than one month after the State filed affidavits, because the petitioner did not have a reasonable amount of time to examine the document or to respond to the affidavits by arranging for depositions or interviews with the affiants. Id. at 17–18. The Court reversed the dismissal despite the fact that the State had recovered the document authorizing destruction of the evidence related to Horton’s conviction. See Horton, 412 Md. at 12–13.
Like Horton, Arey’s counsel expressed a desire to interview Davis and was not afforded a reasonable opportunity to arrange for his interview or to respond to the State’s representations when the trial judge dismissed the petition within two days of the State’s filing.
While the possibility exists that no further information would come from an interview with Davis, Arey still must be given the opportunity to probe, challenge, or otherwise respond to the statements in the affidavit before a decision can be rendered.
Accordingly, the hearing judge erred in ruling on Arey’s petition for testing only two days after the State submitted an affidavit from a key witness.
COMMENTARY: Arey contended that the hearing judge erred in holding that the State performed a reasonable search for evidence. According to Arey, the State’s search for evidence was not reasonable because it consisted only of a search by property number when the property number associated with Arey’s case was either undisclosed or unknown.
These issues were best left for the hearing judge to resolve in the first instance, on remand, and, therefore, the Court declined to address them.
Criminal Procedure
Unfair prejudice
BOTTOM LINE: At defendants’ joint murder trial, defendants were unfairly prejudiced by trial court’s failure to take any corrective action when defense counsel made an overruled objection to prosecutor’s improper appeals to jury in opening statement and closing argument, and defendants were therefore entitled to a new trial.
CASE: Beads v. State, No. 83, Sept. Term, 2010 (filed Sept. 21, 2011) (Judges Bell, Harrell, Battaglia, Greene, MURPHY, Adkins & Barbera). RecordFax No. 11-0921-22, 18 pages.
FACTS: On June 7, 2005, a person was killed and two others were injured in a shooting in Baltimore. Defendants Cyrus Beads and Joseph Smith were charged with crimes in relation to the shooting. At defendants’ joint trial, the prosecutor, during her opening statement, appealed to the jury to protect the community, urging them to “say, ‘Enough.’” Smith’s counsel objected, but the objection was overruled. The prosecutor also implied that witness intimidation had been involved, suggesting to the jury that a key witness had moved because she and her family had been threatened by one of the defendants.
Smith’s counsel moved for a mistrial after the circuit court overruled his objection to evidence that Smith had been “incarcerated.” The circuit court denied the motion. Immediately thereafter, Smith’s attorney asked the court to strike the witness testimony regarding Smith’s incarceration and to instruct the jury to disregard it, but the court denied the request.
At the end of the prosecutor’s closing argument, the prosecutor stated, “You’re now going to hear from the Defense attorneys, both of whom are fine attorneys. I caution you, that unlike the State, the Defense’s specific role in this case is to get their Defendants off.…It is their job, and they do it well, to throw up some smoke, to lob a grenade, to confuse…” Smith’s attorney objected to several of the prosecutor’s closing statements, but the objections were overruled.
At the conclusion of the trial, both defendants were convicted of several crimes against the person of the three victims and of several related offenses, including use of a handgun in the commission of a crime of violence. Defendants appealed to the Court of Special Appeals, which affirmed the convictions.
Defendants appealed to the Court of Appeals, which reversed the judgment of the Court of Special Appeals and remanded the case.
LAW: On appeal, defendants first argued that the trial court erroneously overruled objections to the unfairly prejudicial comments made by the prosecutor during her opening statement, closing argument, and rebuttal argument. The Court of Appeals agreed that the comments at issue were inappropriate.
It is well settled, however, that not every improper remark made by a prosecutor during closing argument necessarily mandates reversal. What exceeds the limits of permissible comment depends on the facts in each case. Reversal is required only where it appears that the remarks of prosecutor actually misled the jury or were likely to have misled or influenced the jury to the prejudice of the accused. Degren v. State, 352 Md. 400, 430–31 (1999).
In this case, the prosecutor’s comments about the role of defense counsel, although inappropriate, were unlikely to have misled or influenced the jury to the prejudice of the accused. By contrast, appeals to jurors to convict a defendant in order to preserve the safety or quality of their communities are improper and prejudicial. Hill v. State, 355 Md. 206, 225 (1999). Here, the prosecutor’s plea to the juror to, “say, ‘Enough’” implored the jurors to consider their own personal safety and therefore violated the prohibition against the “golden rule” argument.
Reversal would not have been required if the danger of unfair prejudice resulting from this argument had been removed by the prompt and decisive action of the circuit court. However, the record showed that the circuit court erroneously overruled the objections interposed by defendants’ attorneys.
As to defendants’ argument that they were unfairly prejudiced by the prosecutor’s rebuttal, which (in the words of their brief) “introduced the specter of witness intimidation into the case,” the Court of Special Appeals found that the suggestions were made in response to defense counsel’s argument that the case rested solely upon the testimony of two convicted felons, with the implied argument that there were other, more credible witnesses that were not called. However, the “invited response” doctrine applies only when defense counsel first makes an improper argument. Mitchell v. State, 408 Md. 368, 382 (2009). In this case, neither of defendants’ trial counsel made an improper closing argument. Therefore, the “invited response” doctrine was not applicable to the unfairly prejudicial comments made during the State’s rebuttal argument. Under these circumstances, the circuit court should have sustained defense counsel’s objection to the improper rebuttal argument.
When assessing whether improper statements during closing argument constitute reversible error, a reviewing court may consider several factors, including the severity of the remarks, the measures taken to cure any potential prejudice, and the weight of the evidence against the accused. U.S. v. Melendez, 57 F.3d 238, 241 (2nd Cir.1995). Here, the record clearly showed that the case at bar was not one in which the danger of unfair prejudice resulting from an improper argument was removed by a ruling that sustained a timely objection and/or by a “curative” instruction. Moreover, because the circuit court erroneously overruled objections to the improper arguments that created the danger of unfair prejudice, those erroneous rulings may well have added greater impact to the improper arguments.
In deciding whether the prosecutor’s unfair remarks require a new trial, the reviewing court must determine, upon its own independent review of the record, whether it is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict. Donaldson v. State, 416 Md. 467 (2010). In its “harmless error” analysis, a court must consider the “cumulative effect” of the improper comments. Lawson v. State, 389 Md. 570, 600 (2005).
As to “the closeness of the case,” the case at bar was not one in which the State’s evidence was overwhelming. Neither of the defendants’ fingerprints were found on the gun seized from the taxicab in which Beads was riding, and a firearms expert was unable to conclude that the gun seized from under Smith’s bed was the gun that fired any bullet recovered at the crime scene. Several key witnesses were vulnerable to impeachment that attacked their character for veracity as well as their motivation to testify for the State. Under these circumstances, the Court was unable to declare that it was persuaded beyond a reasonable doubt that the erroneous rulings preserved for appellate review by defendants’ trial counsel “in no way influenced the verdict.”
Accordingly, the judgment of the Court of Special Appeals was reversed and the case remanded for a new trial.
COMMENTARY: The circuit court also erred in concluding that cross-examination of Smith’s trial counsel “opened the door” to witness testimony that Smith had been incarcerated. Although the Court of Special Appeals correctly noted that the denial of the motion to strike Peterson’s testimony was not appealed, the fact that this motion was denied was of significant consequence.
In the case at bar, the record showed that the trial court: (1) erroneously concluded that the cross-examination of Ms. Peterson “opened” the door to her non-responsive answer; and (2) denied the mistrial motion based upon that erroneous conclusion. In Colter v. State, 297 Md. 423 (1983), and Watson v. State, 311 Md. 370 (1988), the Court ordered new trials on the ground that the trial court did not exercise discretion in resolving an issue that required the exercise of discretion. In Colter, the trial court erroneously applied Rule 741 as a mandatory rule excluding the testimony of an undisclosed alibi witness upon the failure of the defendant to comply with the notice requirement. 297 Md. at 430. In Watson, the trial court erroneously concluded that, because attempted rape is an “infamous crime,” the court did not have discretion to prohibit the State from cross-examining the defendant about the defendant’s prior conviction for attempted rape. 311 Md. at 372.
The Colter and Watson holdings were fully applicable to the issue of whether Smith was entitled to a new trial on the ground that the circuit court’s denial of his motion for mistrial was based on its erroneous conclusion that the question asked by his trial counsel “opened the door” inadmissible testimony, rather than on the exercise of discretion. Because it was clear that the circuit court did not exercise the discretion it was required to exercise, Smith was entitled to a new trial.
Accordingly, the judgment of the Court of Special Appeals was reversed.
PRACTICE TIPS: The rule requiring objections to testimony to be made promptly is for the purpose of facilitating rather than retarding the administration of justice. For this reason, this rule is given a reasonable interpretation. As such, even when the objection comes after a question has been answered, if it appears that the delay was inadvertent and unintentional, and what under all the circumstances reasonable diligence was exercised, or that no sufficient opportunity had been given to make it sooner, the objection will be considered to have been taken in time.
Evidence
Handwriting analysis
BOTTOM LINE: The trial court did not err in admitting the testimony of a handwriting expert, which did not conclusively identify the defendant as the writer of the questioned document but did state that the defendant could not be eliminated as a suspect in the case.
CASE: Miller v. State, No. 77, Sept. Term, 2009 (filed Sept. 20, 2011) (Judges Bell, Harrell, Battaglia, Greene, MURPHY, Adkins & Barbera). RecordFax No. 11-0920-21, 25 pages.
FACTS: Anthony Jerome Miller was convicted of murdering Jason Convertino and a second victim whose bodies were found in Convertino’s apartment on April 16, 2003.
The State presented evidence that (1) Miller’s DNA “matched” the DNA on latex gloves found in close proximity to Convertino’s body; (2) on April 17, 2003, Miller pawned Convertino’s laptop computer, (3) on April 9, 2003, Miller requested that the travel agency making arrangements for his honeymoon trip to Cancun Fax to him an “authorization to charge” form so that the $2,015 he owed the agency could be charged to the credit card of an unnamed friend, (4) during the late evening of April 11, 2003 and during the early hours of April 12, 2003, Miller placed more than twenty phone calls to one Earl Fowlkes, claiming to be “in trouble,” and requesting that Fowlkes pick him up on the east side of Baltimore; and (5) on April 12, 2003, the travel agency received a Fax transmission of the authorization form, purportedly signed by Convertino on April 10, 2003, that allowed the agency to obtain the funds owed by Miller from Convertino’s account.
In support of its contention that Miller forged Convertino’s signature on the authorization to charge form, the State presented the testimony and written report of Robert J. Verderamo, a Baltimore City Police Department questioned document expert.
On direct examination, Verderamo testified that he did a comparison between a copy of the “authorization to charge” form and index cards with the knowing writing of Miller. Verderamo further testified that he first looked at the questioned document, looking for repetitive characteristics that are identified to a particular individual’s writing. He then went to the index cards to see what characteristics were presenting in the index cards.
Having compared the “authorization to charge” form with the index cards, Verderamo concluded that due to unexplained variations in the “authorization to charge” form, there was not a basis for identifying Miller as the writer of this document. Verderamo stated “there are characteristics of [Miller’s writing] … in the [‘authorization to charge form’] which prevents his elimination as a suspect in this case.”
On cross-examination, Verderamo testified that he was never asked to compare a number of known signatures of Convertino with the exhibit.
On Verderamo’s redirect examination, he was shown the signature card from the Chevy Chase Bank records and asked to compare it to the Jason Convertino signature on the travel voucher. Verderamo testified that there was a general appearance difference between the two documents.
The jury convicted Miller of two counts of second-degree murder. The Court of Special Appeals affirmed.
Miller appealed to the Court of Appeals, which affirmed.
LAW: The history of Rule 5-901(b)(3) makes it clear that (1) the jurors themselves were entitled to compare the signature on the “One Travel Concepts Authorization To Charge Form” with the specimens that had been provided by Miller, and (2) the State had the right to present expert testimony on that issue. Rule5-901(b)(3) provides that the requirement of authentication may be satisfied by “[c]omparison by the court or an expert witness with specimens that have been authenticated.”
Miller argued that he was unfairly prejudiced by the opinion that he could not be “eliminated as a suspect” because Verderamo was unable to express the opinion that Miller had forged Convertino’s signature on that document.
This argument is identical to the argument presented to the 9th Circuit in United States v. Fleishman, 684 F.2d 1329 (9th Cir.1982), in which that court affirmed the convictions of three defendants who had been found guilty of conspiring to distribute cocaine. The government’s evidence included “a piece of paper with a series of numerals inscribed on it [that] were later linked to the cocaine negotiations over price and quantity.” Id. at 1334. One of the defendant/appellants, Combs, argued that he was unfairly prejudiced by “inconclusive” opinion testimony that he was the person who had written the numerals.
While rejecting that argument, the Fleishman Court stated: “The requisites of Fed.R.Evid. 702 were met. The expert [Greenwood] was properly qualified as a handwriting expert, and his testimony, regardless of the level of certainty as to his conclusions, was helpful in assisting the jury in its deliberation of the relevance, if any, of the note found in Room 1021. Greenwood provided the jurors with an extensive review of the principles of handwriting analysis he used while making the comparisons he made. The jury could, therefore, properly apply the principles to the facts of the case in order to reach their own conclusion regarding the suggested authorship of the note.” Id. at 1336-37.
The Court continued: “To the extent that Greenwood’s testimony lacked certainty, that uncertainty was probed extensively during cross-examination. Absolute certainty of result is not required for admissibility. Combs’ issue with the certainty of Greenwood’s testimony, therefore, goes to the weight given the testimony; the district court did not abuse its discretion in admitting it.” Id. See also United States v. Jolivet, 224 F.3d 902 (8th Cir.2000).
In United States v. Herrera, 832 F.2d 833 (4th Cir.1987), the 4th Circuit was presented with an argument that the trial court “improperly allowed a handwriting expert to offer an unduly speculative opinion based upon ‘a high degree of belief.’” Id. at 835. The Herrera Court stated: “An expert opinion regarding handwriting need not be based upon absolute certainty in order to be admissible. It was well within the bounds of sound discretion for the court to allow the jury to weigh the probative value of the somewhat equivocal opinion.” Id. at 837.
These opinions are consistent with medical “causation” opinions approved by the Court of Appeals and by the Court of Special Appeals. In Langenfelder v. Thompson, 179 Md. 502 (1941), the Court of Appeals stated: “The opinion of an expert as to the probability, or even the possibility, of the cause of a certain condition may frequently be of aid to the jury; for when the facts tend to show that an accident was the cause of the condition, the assurance of an expert that the causal connection is scientifically possible may be helpful in determining what are reasonable inferences to be drawn from the facts.” Id. at 507. See also Ali v. State, 314 Md. 295 (1988).
Accordingly, the circuit court did not abuse its discretion when it overruled Miller’s objection to Verderamo’s opinion that “there are characteristics of [Miller’s writing] … in the [‘authorization to charge form’] which prevents his elimination as a suspect in this case.”
COMMENTARY: Miller also argued that he was unfairly prejudiced by what occurred during Verderamo’s redirect examination.
Over an interposed by Miller’s trial counsel, Verderamo opined that he was able to “see a general appearance difference between” the signature on the authorization to charge form and the signature on a Chevy Chase Bank record that had been signed by Convertino.
It was clear, however, that based on what Verderamo was asked on cross-examination, it “opened the door” to the opinion that was elicited on redirect examination. The “opening the door” doctrine is applicable to cross-examination that has “expanded the scope” of a witness’s testimony. Trimble v. State, 300 Md. 387, 402-03 (1984).
Thus, the circuit court did not abuse its discretion in admitting that opinion.
PRACTICE TIPS: Handwriting analysis should not be scrutinized under the reliability standards of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). “[I]f we were to hold that handwriting analysis is not a field of expertise under the Federal Rules of Evidence, there would be no place for expert witnesses to compare writing on one document with that on another in order to authenticate a document, … [which] would render Rule 901(b)(3) meaningless.” United States v. Jones, 107 F.3d 1147 (6th Cir.1997).
Evidence
Prior convictions
BOTTOM LINE: The trial court did not err in refusing to allow defendant to impeach the State’s witness with a prior theft conviction, where the conviction was based on an unconstitutional guilty plea; however, the trial court did err in refusing to allow defendant to impeach the witness by questioning her about the conduct underlying the conviction.
CASE: Thomas v. State, No. 88, Sept. Term 2010 (filed Sept. 22, 2011) (Judges Bell, Battaglia, Greene, Murphy, Adkins, BARBERA & Eldridge (retired, specially assigned)). RecordFax No. 11-0922-21, 15 pages.
FACTS: Robert Lee Thomas was charged with carrying a handgun. The State’s lead witness at Thomas’ trial was Timika Williams.
Before trial, the State moved in limine to prohibit Thomas from impeaching Ms. Williams’ testimony by asking her about a March 2007 conviction of theft of a motor vehicle. That conviction resulted from Ms. Williams’ pleading guilty in the circuit court. According to the State, Ms. Williams’ guilty plea was unconstitutional because she was not represented by counsel when she entered her plea and had not waived her Sixth Amendment right to counsel.
The trial court granted the State’s motion over Thomas’ objection, prohibiting Thomas from impeaching Ms. Williams by asking about the prior conviction or the conduct underlying it.
The jury found Thomas guilty of carrying a handgun. The court imposed a sentence of three years imprisonment. The Court of Special affirmed the judgment of conviction.
Thomas appealed to the Court of Appeals, which reversed in part and affirmed in part.
LAW: Rule 5–609(a) allows the use of a prior conviction to impeach a witness if “(1) the crime was an infamous crime or other crime relevant to the witness’s credibility and (2) the court determines that the probative value of admitting this evidence outweighs the danger of unfair prejudice to the witness or the objecting party.” Further, “evidence of a conviction is not admissible under this Rule if a period of more than 15 years has elapsed since the date of the conviction.” 5–609(b).
Motor vehicle theft is an “infamous crime or other crime relevant to the witness’s credibility,” for purposes of the Rule. See Beales v. State, 329 Md. 263, 270 (1993). The conviction occurred in March 2007, well within the 15-year limit.
The only remaining inquiry under Rule 5–609(a), then, was whether the probative value of the conviction outweighs the risk of unfair prejudice to Ms. Williams or the State. The conviction at issue, however, did not call for that analysis, because the conviction was the product of a constitutionally infirm guilty plea. Such convictions cannot be used for impeachment purposes.
In von Lusch v. State, 279 Md. 255, 258–59 (1977), the Court of Appeals cited Loper v. Beto, 405 U.S. 473, 483 (1972) as “directly govern[ing]” the issue. In Loper, the Supreme Court explained that the “rule against use of uncounseled convictions ‘to prove guilt’ was intended to prohibit their use ‘to impeach credibility’” because “[t]he absence of counsel impairs the reliability of such convictions just as much when used to impeach as when used as direct proof of guilt.” Id. at 483 (quoting Gilday v. Scafati, 428 F.2d 1027, 1029 (1st Cir.1970)). That reasoning applies equally whether the prior conviction is that of the defendant or of a third-party witness.
Here, it was undisputed that Ms. Williams’ prior conviction was achieved without counsel or a waiver of counsel and was therefore unreliable, under Loper, for purposes of attacking Ms. Williams’ credibility. Thus, the trial court did not err in refusing to allow Thomas to impeach Ms. Williams with evidence of that conviction.
COMMENTARY: Under Rule 5–608(b) (impeachment by prior conduct), in order to allow questions about the conduct underlying a conviction, the questioner (1) must show that the witness’s prior conduct sheds light on the witness’s personal credibility, and (2) if the opposing party objects, establish “a reasonable factual basis for asserting that the conduct of the witness occurred.” Rule 5–608(b). Additionally, “[t]he conduct may not be proved by extrinsic evidence.” Id.
Thomas sought to question Ms. Williams about the conduct underlying her conviction for motor vehicle theft. A theft conviction is relevant to a witness’s credibility under Rule 5–609(a). Beales, 329 Md. at 270. If a conviction of a crime is “relevant to the witness’s credibility” under Rule 5–609(a), then the conduct underlying the conviction is likewise “probative of a character trait of untruthfulness” for purposes of Rule 5–608(b). Accordingly, the act of theft satisfies the first prong of Rule 5–608(b).
In Pantazes v. State, 376 Md. 661, 683 (2003), the defendant’s wife had been killed and the defendant was alleged to have hired a prostitute he frequented to commit the murder. After hearing about the murder, a witness contacted police and reported that the defendant had propositioned the witness about committing the same crime. At trial, defense counsel attempted to impeach the witness’s testimony by questioning her about a previous incident in which she supposedly participated in a robbery that resulted in murder, and later falsely identified an innocent man as the killer.
During a hearing outside the presence of the jury, counsel for the defendant attempted to establish a “reasonable factual basis” for asking about the alleged prior incident by presenting two affidavits, one from a police officer who investigated the prior incident and one from defense counsel’s private investigator. The police officer’s affidavit stated that the witness identified one man as the killer and that man was charged with murder, but the charges were later dismissed after the police arrested a different suspect. The private investigator’s affidavit stated the same. The trial court refused to allow the incident to be raised on cross-examination. Id. at 672.
The Court of Appeals affirmed the trial court’s ruling that a “reasonable factual basis” had not been established to show that the witness’s prior conduct actually occurred. Specifically, the affidavits did “not establish that [the witness] was involved in the botched robbery or that [the witness] lied about an identification.” Id. at 690. In other words, defense counsel’s “proffer of evidence amounted to little more than mere accusations.” Id. at 691.
The Pantazes Court then quoted State v. Cox, 298 Md. 173 (1983), which instructs “that when impeachment is the aim, the relevant inquiry is not whether the witness has been accused of misconduct by some other person, but whether the witness actually committed the prior bad act. A hearsay accusation of guilt has little logical relevance to the witness’ credibility.” Pantazes, 376 Md. at 69 (quoting Cox, 298 Md. at 181).
The State asserted that the only support for the accusation that Williams was a thief was a record showing that she had once been accused of theft. Unlike the affidavits in Pantazes, which merely established that the witness in that case was claimed to have been involved in prior criminal conduct, the State’s undisputed proffer established that Ms. Williams pleaded guilty to the crime of motor vehicle theft, thereby formally “admitting” in open court to having committed that offense. The State’s proffer of Ms. Williams’s formal admission of guilt provided for Thomas the “reasonable factual basis” required by Rule 5–608(b).
Therefore, the trial court erred in refusing to allow Thomas to impeach Ms. Williams’ testimony at trial by questioning her about the conduct underlying the conviction.
Accordingly, Thomas was entitled to a new trial.
PRACTICE TIPS: “[A]ccusations of misconduct are still clothed with the presumption of innocence and receiving mere accusations for this purpose would be tantamount to accepting someone else’s assertion of the witness’ guilt and pure hearsay.” Cox, 298 Md. at 181.
Professional Responsibility
Indefinite suspension
BOTTOM LINE: Indefinite suspension was the appropriate sanction for attorney who violated multiple rules of professional conduct stemming, in general, from mismanagement of his IOLTA account, incompetence, poor communication with clients, and charging excessive fees.
CASE: Attorney Grievance Commission of Maryland v. Patterson, Misc. Docket AG No. 22, Sept. Term 2010 (filed Sept. 21, 2011) (Judges Bell, Harrell, Battaglia, Greene, Murphy, Adkins &. BARBERA). RecordFax No. 11-0921-21, 34 pages.
FACTS: The Attorney Grievance Commission, acting through Bar Counsel, filed a petition for disciplinary or remedial action against Roland N. Patterson. The petition addressed Patterson’s conduct in three matters: his management of an interest on lawyer trust account (IOLTA); an appeal in a landlord-tenant case in which he represented Denver Moten; and a tort claim in which he represented Rachelle Lewis and her son.
Pursuant to Rule 16–752, the Court of Appeals designated the Honorable Susan Souder of the circuit court to hear the matter and make findings of fact and conclusions of law in accordance with Rule 16–757. Judge Souder found by clear and convincing evidence that Patterson violated Maryland Rules of Professional Conduct (MRPC) 1.1 (competence), 1.3 (diligence), 1.4 (communication), 1.5(a) and (b) (fees), 1.15(a) and (d) (safekeeping of client property), 1.16(d) (declining or terminating representation), 3.2 (expediting litigation), 8.1(b) (cooperation with bar counsel), and Rules 16–606.1 and 16–609(c) governing attorney trust accounts.
Patterson filed exceptions to Judge Souder’s findings of fact and conclusions of law.
The Court of Appeals imposed an indefinite suspension with the right to apply for readmission no sooner than six months after the imposition of the suspension.
LAW: In attorney discipline proceedings, the Court of Appeals “has original and complete jurisdiction and conducts an independent review of the record.” Attorney Grievance Comm’n v. Bleecker, 414 Md. 147, 167 (2010). The hearing judge is required to apply the clear and convincing standard of proof when weighing the evidence, in order to establish the facts. Rule 16–757(b); Attorney Grievance Comm’n v. Siskind, 401 Md. 41, 54 (2007). “‘We accept a hearing judge’s findings of fact unless we determine that they are clearly erroneous.’” Attorney Grievance Comm’n v. Edib, 415 Md. 696, 706 (2010).
Patterson maintained a Maryland IOLTA trust account ending in 7646 at the Bank of America. On November 1, 2008, a Saturday, he wrote check 1089 in the amount of $5,140 to close his IOLTA account ending in 7646. On November 3, 2008, a Monday, Patterson wrote check 1090 in the amount of $500 on the same account, the account ending 7646.
Rule 16–609(c) prohibits an attorney from disbursing funds from a trust account “if the disbursement would create a negative balance.” Rule 16–609 does not contain an intent requirement. See Attorney Grievance Comm’n v. Awuah, 346 Md. 420, 435 (1997). Consequently, for purposes of Rule 16–609, it did not matter whether Patterson intentionally overdrew the IOLTA account. See id. at 435.
Patterson argued that he was told by a bank teller on November 3 that the 7646 account balance had not yet been transferred. Even if true, that fact does nothing to undermine Judge Souder’s finding that Patterson knew that the account lacked sufficient funds to cover the checks. Therefore, Patterson knowingly created a negative balance in his trust account, in violation of Rule 16–609(c).
Furthermore, attorneys are required to keep a record of their trust accounts “that chronologically shows all deposits and disbursements” and that every disbursement record include “the payee and the check number or other payment identification[.]” Rule 16–606.1(a)(2) and (a)(3)(A)(iv). The evidence produced at Patterson’s hearing demonstrated that he failed to keep his trust account records showing all deposits and disbursements. Therefore, Patterson violated Rule 16–606.1.
Insofar as Rule 1.15 refers to the obligation for attorneys to comply with Title 16, Chapter 600 of the Maryland Rules, create and maintain records in accordance with those rules, Patterson’s violations of Rules 16–609(c) and 16–606.1 constituted a violation of MRPC 1.15(a).
With respect to the Moten case, Mr. Moten retained Patterson to handle a district court appeal. Patterson accepted a retainer in December 2008 in the amount of $2,500, which by December 31, 2008, had been paid in full. Judge Souder found that, at the initial meeting with Patterson to discuss the circuit court appeal, Moten provided Patterson with the names of several witnesses who testified on his behalf in the district court, and he conveyed his desire to have those witnesses called again at the circuit court de novo trial.
Furthermore, Judge Souder found that it was Moten who kept himself apprised of the status of the matter, and he advised Patterson of the February 27, 2009, trial date. Even when Patterson was advised of the hearing date for this de novo appeal, Patterson still did not enter his appearance. He didn’t seek to continue the matter or postpone it because he hadn’t had time to get ready.
Judge Souder further found that Patterson did not advise Moten before the trial date that Patterson would be seeking a default judgment on February 27; instead, Patterson advised Moten that a postponement would be sought.
Based on these facts, Judge Souder did not err in finding that Patterson did not subpoena witnesses, did not promptly enter his appearance in the case, and did not communicate accurate information to Moten about the case, constituting violations of MRPC 1.1 (competence), 1.3 (diligence), and 1.4(b) (communication).
Under MRPC 1.5(a), “a lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses.” One of the factors to be considered in determining the reasonableness of a fee is the amount involved and the results obtained. In light of Judge Souder’s findings concerning Patterson’s lack of competence and diligence in representing Moten and the result obtained, it was not unreasonable for Judge Souder also to find that the $2500 fee became excessive and that, therefore, Patterson violated MRPC 1.5(a).
Under MRPC 1.5(b), a lawyer must communicate to his client the scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible. Thus, Patterson also violated MRPC 1.5(b) by failing to communicate to Moten the terms of the fee agreement.
“Funds given in anticipation of future legal services qualify as trust money and, accordingly, are to be deposited in trust accounts separate from the attorney’s property, to be removed promptly by the attorney as earned. To deposit such trust money into the attorney’s personal or operating accounts before the fees are earned constitutes a violation of MRPC 1.15(a).” Guida, 391 Md. at 53.
According to Patterson’s “Client Escrow Ledger” for Moten’s case, on December 2, 2008, Patterson deposited a $1,400 payment from Moten. On the same day, Patterson withdrew $1,200 for “file and transcript review.” On January 5, 2009, Patterson deposited a $1,100 payment from Moten, and on the same day withdrew $1,300 for “pleadings prep.”
In his testimony, Patterson asserted that he had done “file and transcript review” before he received the first payment of $1,400. Thus, Patterson argued that, when he withdrew $1,200 on the same day he deposited Moten’s $1,400 payment, he had earned the $1,200 fee.
Bar Counsel “has the burden of proving the averments of the petition by clear and convincing evidence.” Rule 16–757(b). There was no evidence in the record demonstrating, to a clear and convincing standard of proof, that Patterson failed to perform the “file and transcript review” on Moten’s case before withdrawing $1,200 on December 2, 2008. Likewise, the record was devoid of any evidence or testimony that Patterson did not perform “pleadings prep” prior to that date. Accordingly, Judge Souder erred in finding, by clear and convincing evidence, that Patterson violated MRPC 1.15(a) by failing to earn the fees of $1,200 and $1,300 prior to withdrawing those amounts from his trust account.
Because Patterson performed no meaningful services of any kind with respect to the $600 fee he collected from Moten for the execution of judgment, when Patterson understood that he was terminated, he was clearly obligated to refund the $600 to Moten. When he failed to do so, he violated Rule 1.16(d).
In the Lewis matter, the complaint alleged that Rachelle Lewis’s son, a minor at the time of the complaint, was injured while in the custody of the Department of Juvenile Services, and the Department and the Juvenile Court had previously been warned about the risk of injury, yet no action was taken to prevent such injury. The complaint asserted claims for negligent entrustment and negligent supervision.
Patterson filed the complaint on February 19, 2008. Over a year later, the complaint was dismissed for lack of prosecution. Accordingly, Patterson violated MRPC 1.1 and 1.3 in that he neither competently nor diligently pursued Lewis’s case.
Patterson did not except to Judge Souder’s finding that he violated MRPC 3.2, which provides: “A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.”
Similarly, Patterson did not take exception to Judge Souder’s finding that he violated MRPC 1.15(d) when, after Ms. Lewis demanded a refund of the fee that had been paid, Patterson failed to provide a full accounting of the money that he had received and that he had deposited in his trust account and then dispersed to himself.
Judge Souder found that, Patterson violated Rule 1.16(d) when he did not take any steps to strike his appearance if, in fact, he understood that he was being terminated by Ms. Lewis. Because Judge Souder did not address whether Patterson, in fact, “understood that he was being terminated,” the finding did not provide a sufficient basis to conclude that Patterson violated MRPC 1.16(d). Thus, Patterson’s exception was sustained only to the extent that Judge Souder’s statement was an actual finding of a rule violation.
Finally, Patterson did not except to Judge Souder’s conclusion that he violated MRPC 8.1 when he knowingly failed to respond to a lawful demand for information from Bar Counsel.
Thus, between the three cases, Patterson violated Rules 16–606.1 and 16–609(c), and MRPC 1.1, 1.3, 1.4(b), 1.5(a) and (b), 1.15(a) and (d), 1.16(d), 3.2, and 8.1(b).
The primary mitigating factor raised by Patterson was that he suffered from multiple sclerosis (MS). Judge Souder did not address any mitigating factors. Bar Counsel conceded that Patterson’s MS is a mitigating factor for purposes of the 8.1(b) violation. That mitigating factor was established and, therefore, Patterson’s requested remand for findings regarding mitigation was unnecessary.
COMMENTARY: The goal of attorney discipline is protection of the public, rather than the punishment of the erring attorney. Bleecker, 414 Md. at 176. The public is protected when the sanction imposed is commensurate with the nature and gravity of the violations and the intent with which they were committed. Id.
In Attorney Grievance Comm’n v. David, 331 Md. 317 (1993), the respondent attorney violated multiple rules of professional conduct. The Court of Appeals imposed an indefinite suspension with a right to apply for reinstatement and any such reinstatement would be conditioned on the respondent’s practice being monitored for a period of at least two years. Id. at 323–24.
In Attorney Grievance Comm’n v. Lee, 393 Md. 385 (2006), the respondent attorney violated MRPC 1.3, 1.4(a), 8.1(a), and 8.4(c) in his representation of a client in a post-conviction matter and during a resulting investigation by Bar Counsel. The attorney did not pursue diligently the case over a two-year period; he did not respond to numerous requests by the client for information; and he misled Bar Counsel by asserting that his inactivity in the case was caused by the “unavailability of transcripts and that the Complainant was tardy in delivering case materials to” the attorney. Id. at 409. The Court of Appeals imposed an indefinite suspension. Id. at 415.
In Grievance Comm’n v. Granger, 374 Md. 438, 460 (2003), the attorney represented a client facing foreclosure. After an initial consultation with the client, the attorney agreed to file promptly a bankruptcy petition on the client’s behalf to delay or prevent the foreclosure. The attorney did not file the bankruptcy petition in time, but he told his client that it had been filed and that her home was safe from foreclosure. Because the petition was not filed in time, the client’s house was sold through foreclosure. The attorney subsequently misrepresented to Bar Counsel, during its investigation, that his delay in filing the petition was due to his client not bringing him documents that he specifically requested from her. Id. at 443. The Court of Appeals imposed an indefinite suspension with the right to apply for reinstatement no sooner than six months. Id. at 462.
Like the attorney in David, Patterson committed numerous MRPC violations in the course of representing clients in several cases. Moreover, like the attorneys in Lee and Granger, Patterson did not diligently pursue his clients’ cases; he did not respond to his clients’ repeated requests for information about the status of their cases; he blamed his delay on his alleged clients’ failure to supply certain documentation rather than on his own idleness; and he did not respond to Bar Counsel’s inquiries.
Considering the totality of Patterson’s misconduct, the proper sanction was an indefinite suspension with the right to apply for readmission no sooner than six months after the imposition of the suspension.
PRACTICE TIPS: “Claimed ignorance of ethical duties and bookkeeping requirements is not a defense in disciplinary proceedings” Awuah, 346 Md. at 435.
