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Opinions – 10/24/11: Maryland Court of Special Appeals

Criminal Procedure

Waiver of Miranda rights

BOTTOM LINE: Where defendant did not unequivocally invoke his right to counsel, he waived his Miranda rights and, therefore, the statement defendant made during his custodial interrogation by police was admissible at trial.

CASE: Wimbish v. State, No. 1672, Sept. Term, 2009 (filed Sept. 29, 2011) (Judges KRAUSER, Graeff & Hotten). RecordFax No. 11-0929-03, 38 pages.

FACTS: Early on May 17, 2008, Daymar Wimbish, a Bloods gang member, led members of that gang in an attempted armed robbery of the occupants of a vehicle driven by a Jason Batts. The attempted robbery ended in the shooting of Batts. However, Batts was not the intended target of the shooting. Elijah Jackson, who had purportedly given information to police about another member of the Bloods, was the target.

When Wimbish approached Batts’ vehicle, Lamont Johnson, another gang member, and Wimbish pointed a shotgun at Elijah Jackson through the open window. Johnson fired the shotgun twice. Missing Jackson, one of the two blasts struck Batts in the back. Wimbish and the other gang members fled the scene.

When police arrived, they found Batts dead and Elijah Jackson and his sister hysterical. Eventually, their investigation into the shooting led them to Wimbish.

Prior to trial, Wimbish moved to suppress a statement he made during his custodial interrogation by police. At the hearing on the suppression motion, the circuit court heard testimony from the interviewing officers and from Wimbish and watched a video recording of the interview. The court found that Wimbish had not invoked his right to counsel until three hours into the interview; at which point, the officers ended their interrogation. Wimbish had, therefore, waived his Miranda rights. The court denied the motion to suppress.

A jury found Wimbish guilty only of conspiracy to commit armed robbery, the attempted armed robbery of Elijah Jackson, and three weapons counts, including possession of a regulated firearm by a person under 21. The circuit court sentenced Wimbish to consecutive prison sentences of fourteen years for attempted armed robbery, fourteen years for conspiracy to commit armed robbery, and five years for each of the weapons offenses, for a total sentence of forty-three years.

Wimbish appealed to the Court of Special Appeals, which vacated the conviction and sentence for possession of a regulated firearm by a person under 21 and affirmed all other judgments.

LAW: In Miranda v. Arizona, 384 U.S. 436 (1966), the United States Supreme Court put into place “certain procedural safeguards that require police to advise criminal suspects of their rights under the Fifth and Fourteenth Amendments before commencing custodial interrogation.”  Lee v. State, 418 Md. 136, 149 (2011). If a suspect knowingly and intelligently waives his right to counsel during a custodial interrogation, “law enforcement officers are free to question him.” Davis v. United States, 512 U.S. 452, 458 (1994). “But, if a suspect requests counsel at any time during the interview, he is not subject to further questioning until a lawyer has been made available or the suspect himself reinitiates conversation.” Id.

In Davis, the Supreme Court considered whether a suspect had invoked his right to counsel when, in the course of a custodial interrogation and after waiving his Miranda rights, he stated, “Maybe I should talk to a lawyer.” Id. at 455. The interviewing agents did not cease the interrogation at that point. The subsequent statements made by Davis were, thereafter, admitted into evidence at trial. Id. The Supreme Court held that Davis had not invoked his right to counsel before giving the statements and, therefore, the statements were admissible. “Invocation of the Miranda right to counsel requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney. [T]he suspect must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” Davis, 512 U.S. at 459. In the absence of a clear statement invoking the right to counsel, the police are not required to ask “clarifying questions” as to the suspect’s intended meaning. Id. at 461. See also Braboy v. State, 130 Md.App. 220, 234–35 (2000).

In Freeman v. State, 158 Md.App. 402, 424–29 (2004), the Court of Special Appeals addressed the question of whether the Davis standard would apply to a pre-waiver invocation of counsel. In that case, Freeman went, on her own, to a police station and spontaneously admitted to having shot someone. When an officer advised her of her Miranda rights and asked if she wished to waive them, Freeman said nothing. Shortly thereafter, the officer asked Freeman “what happened,” and she replied that she “[didn’t] want to talk about it right now.” Only later did Freeman execute a waiver of her Miranda rights. Id. at 411.

The Court of Special Appeals concluded that the Davis standard, “requiring an unequivocal assertion of the right to counsel,” applied only in a “situation in which the defendant had previously waived his right and then, during the interrogation, arguably sought to exercise his rights.” Id. at 429. The Court, therefore, declined to apply the Davis standard when the invocation “occurred in a pre-waiver context.” Freeman, 158 Md.App. at 411.

In Berghuis v. Thompkins, 130 S.Ct. 2250, 2260 (2010), the police brought Thompkins, a murder suspect, to the police station and presented him with a Miranda waiver form, which he declined to sign. Id. at 2256. Thereafter, the police interrogated Thompkins. Although he remained “[l]argely silent” for nearly three hours, he answered “yes” when an officer asked him whether he prayed “to God to forgive [him] for shooting that boy down.” Id. at 2256–57. That response, Thompkins maintained, was obtained in violation of his Miranda rights. Applying Davis, the Supreme Court concluded that Thompkins’s “persistent silence” was an ineffective invocation of his right to remain silent, because it was not an unambiguous invocation of that right. Id. at 2258–60. In so holding, the Court, for the first time, applied the Davis standard, requiring an unambiguous invocation of a Miranda right, to a pre-waiver situation.

In Ballard v. State, ––– Md. ––––, No. 73, Sept. Term 2010, slip op. at 11–13 (filed July 12, 2011), the Court of Appeals contrasted a statement made by Ballard to an interrogating officer — “You mind if I not say no more and just talk to an attorney about this” — with statements in three cases in which the reviewing court had concluded that the suspect’s statement was ambiguous: Davis, 512 U.S. at 462 (“Maybe I should talk to a lawyer.”); Minehan v. State, 147 Md.App. 432, 444 (2002); (“Should I get a lawyer?”); and Matthews v. State, 106 Md.App. 725, 738 (1995) (“Where’s my lawyer?”). In the latter case, “[w]hen Matthews asked ‘Where’s my lawyer?’ a reasonable officer,” the Ballard Court observed, “could and likely would infer either that Matthews was wondering about his lawyer’s whereabouts or, perhaps, whether a lawyer had been provided for him.” ––– Md. at ––––, No. 73, Sept. Term 2010, slip op. at 12. Ballard’s statement, in contrast, “transmit[ted] the unambiguous and unequivocal message that he wanted an attorney” because his phrasing “express[ed] a desire…to…have something occur.” Id.

Here, approximately twenty seconds into the interview, Wimbish asked “What about my lawyer?” A reasonable police officer could infer, as in Matthews, that Wimbish was “wondering about his lawyer’s whereabouts or, perhaps, whether a lawyer had been provided for him.” Ballard, ––– Md. at ––––, No. 73, Sept. Term 2010, slip op. at 12. His statement was not an “unambiguous and unequivocal message that he wanted an attorney.” Id. Hence, the detective was not required to end the interrogation. See Davis, 512 U.S. at 459. Nor was he limited to asking clarifying questions to ascertain Wimbish’s intended meaning. Id. at 461.

Then, after the detectives read the Miranda warnings aloud, Wimbish made his second reference to a lawyer, asking “can I get a lawyer?” The detectives responded by simply clarifying what Wimbish meant and reiterating that it was “always [his] option” to have a lawyer present and that he could stop the interview by “ask[ing] for a lawyer.” Wimbish responded by acknowledging that he understood those options. And, after having his Miranda rights carefully explained, Wimbish waived those rights. Only then did the detectives ask questions that pertained to the attempted robbery and shooting. Thus, there was no constitutional violation even if were the Freeman rule limiting the detectives to clarifying questions only was applied.

Then, more than three hours into the interview, Wimbish made an unambiguous request for an attorney, stating “I’m not gonna talk no more. Where my lawyer at? Can I get a lawyer? Can I call my lawyer?”  Presented with what was an unambiguous invocation of the right to counsel, the detectives discontinued the interview. Consequently, the circuit court did not err in denying Wimbish’s motion to suppress the statements that he made during his custodial interrogation.

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: Wimbish was convicted of violating PS §5–133(c)(1), which prohibits a person from possessing a regulated firearm if the person was previously convicted of a crime of violence”; PS §5–133(d), which prohibits a person under the age of 21 years from possessing a regulated firearm”; and PS §5–203(a), which prohibits the possession of a short-barreled shotgun. Wimbish received consecutive five-year sentences for each conviction.

In Melton v. State, 379 Md. 471, 474 (2004), Melton was convicted of three offenses under the statutory predecessor to §5–133. Each involved the illegal possession of the same regulated firearm. Id. at 476. The Court of Appeals held that only one of his convictions could stand. Id. at 474.

Looking to the legislative history of the statute, the Court held that the “illegal possession of a regulated firearm, not the prior conviction, was the vice sought to be remedied” by the statute. Id. at 484–86. The “focus of the penalty [in §5–133], i.e., the ‘violation’ to be punished, is the act of possession.” Id. at 502. Hence, the “unit of prosecution for [§5–133]” was “the prohibited act of illegal possession of a firearm,” and only one of Melton’s three convictions under the act could stand. Id. at 486, 503.

Thus, when Wimbish possessed a single regulated firearm, which was illegal under §5–133 for two reasons (his age and his prior conviction for a crime of violence), he committed only one violation of that section. Only one of Wimbish’s convictions under §5–133 could stand.

Thus, the conviction for the offense with the greater penalty, that is, possession by a person previously convicted of a crime of violence, was affirmed, and the conviction for the offense with the lesser penalty, that is, possession by a person under the age of 21, was reversed.

In contrast, Wimbish’s possession of a short-barreled shotgun violated two different statutes, that is, illegal possession of a regulated firearm and possession of a short-barreled shotgun, respectively. For those two violations, Wimbish could, and did, receive two convictions.

In determining whether multiple convictions should merge, for sentencing purposes, for what is the same act, the required evidence test is applied. Dixon v. State, 364 Md. 209, 236–37 (2001). “If each offense requires proof of a fact which the other does not, the offenses are not the same and do not merge. However, if only one offense requires proof of a fact which the other does not, the offenses are deemed the same, and separate sentences for each offense are prohibited.” Id. at 237.

Wimbish’s conviction, under §5–133, for, did not merge under the required evidence test with his conviction, under §5–203, for possessing a short-barreled shotgun, even though the two offenses involve the same act, because those offenses do not share all the same elements. PS §5–133(c), possessing a regulated firearm after having been previously convicted of a crime of violence, requires proof of a fact that PS §5–203 does not, that is, a prior conviction for a crime of violence. Likewise, PS §5–203 requires proof of a fact that §5–133 does not, that is, that the gun possessed was a short-barreled shotgun. That the possession of the same gun supported both of Wimbish’s convictions for those two offenses, does not, under the required evidence test, compel merger.

Finally, because there is no ambiguity with respect to the legislative intent underlying the statutes, the convictions did not merge under the rule of lenity. See Alston v. State, 159 Md.App. 253, 271 (2004).

PRACTICE TIPS: Although, under Rule 5–404(b), evidence of “other crimes, wrongs, or acts,” is not admissible to “prove the character of a person in order to show action in conformity therewith,” such evidence is admissible “for other purposes, such as proof of motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, or absence of mistake or accident.” Rule 5–404(b). Evidence of gang membership falls within the definition of “other crimes, wrongs, or acts” in Rule 5–404(b) as proof of motive. Ayala v. State, 174 Md.App. 647, 658 (2007).

Administrative Law

Unauthorized practice of medicine

BOTTOM LINE: By delegating laser hair removal procedures to non-physicians, defendant physician aided an unauthorized person in the practice of medicine and engaged in the unlicensed practice of medicine, in violation of the Maryland Medical Practice Act.

CASE: Mesbahi v. Maryland State Board of Physicians, No. 2791, Sept. Term, 2009 (filed Sept. 30, 2011) (Judges ZARNOCH, Matricciani & Sharer (retired, specially assigned)). RecordFax No. 11-0930-00, 29 pages.

FACTS: Dr. Kathy Mesbahi was licensed to practice medicine in Maryland and was board-certified in obstetrics and gynecology. In 1999, Dr. Mesbahi began to perform laser hair removal.

Both of Dr. Mesbahi’s sisters, Mina Nazemzadeh, and Aghdas Rahmati, worked in Dr. Mesbahi’s office, as the business manager and the office receptionist. Neither sister was licensed as a physician, nurse practitioner, or physician’s assistant.

In 2002, Nazemzadeh and Rahmati were trained by the laser machine manufacturer’s representative and certified competent to perform laser hair removal procedures. Between early 2003 and August of 2005, Nazemzadeh performed approximately four to eight laser hair removal procedures a day. Rahmati performed one to two laser hair removal procedures per day between the summer of 2004 and August of 2005.

A patient (Patient A) filed a complaint with Maryland Board of Physicians (the Board) questioning whether Nazemzadeh was authorized to perform laser hair removal. The patient complained of “permanent scars and holes” in her body, as well as hypopigmentation, as a result of laser hair removal treatments performed by Nazemzadeh. According to Patient A, other professionals apparently took 2-3 hours to perform a treatment that Nazemzadeh completed in 15 minutes. She wrote that Nazemzadeh would use Dr. Mesbahi’s business cards to write appointments and she never saw any certifications or business cards with Nazemzadeh’s name.

Patient A began to question Nazemzadeh’s competence after one particular incident where the laser gun caused her skin to “pop,” leaving a “white hole” in the area. She was later told by other professionals, who used the same kind of laser as Nazemzadeh, that going over the same area of skin “over 20 times” as Nazemzadeh did was dangerous. Patient A reported that she was unsure of Nazemzadeh’s title or qualifications, but she assumed that she was a physician’s assistant. Patient A stated that she had met Dr. Mesbahi only once for a gynecological exam, never for laser hair removal.

Patient B told a Board investigator that she had received laser hair removal treatments from Nazemzadeh approximately twice a month for one and a half years. She stopped going because she was concerned about ongoing exposure to the laser and she heard about Patient A’s burns and scars. Patient B told the investigator that she has had laser treatments performed by other people. In comparison, Nazemzadeh’s technique was different and her sessions were much quicker. Patient B never sustained injuries as a result of her treatments. Patient B reported that she never met Dr. Mesbahi, even though she indicated a history of herpes simplex and accutane use on her intake form.

The Board concluded that Dr. Mesbahi aided an unauthorized person in the practice of medicine, in violation of the Maryland Medical Practice Act, HO §14-404(a)(2), (3) and (18), by inappropriately delegating laser hair removal procedures to Nazemzadeh and Rahmati. The Board also found that Dr. Mesbahi’s actions constituted unprofessional conduct in the practice of medicine.

As for Nazemzadeh and Rahmati, the Board concluded that both sisters engaged in the unlicensed practice of medicine, in violation of HO §§14-301, 14-601, 14-602(a) and 14-606, as well as Code of Maryland Regulations (COMAR) 10.32.02.06B(2).

The Board imposed the following sanctions on Dr. Mesbahi: (1) a reprimand; (2) one year probation; (3) an order to permanently cease and desist from the practice of laser hair removal; (4) an order to permanently cease and desist aiding unlicensed individuals in the practice of medicine; and (5) a $20,000 fine. The Board ordered both Nazemzadeh and Rahmati to cease and desist from engaging in the unauthorized practice of medicine. In addition, the Board imposed fines of $5000 on Nazemzadeh and $1000 on Rahmati.

The circuit court affirmed the Board’s final decision. However, the court vacated the fines imposed and the permanent cease and desist order against Dr. Mesbahi on the grounds that they were arbitrary and capricious because the Board did not sufficiently articulate its reasons for imposing these sanctions. The court remanded the case for further proceedings.

The Court of Special Appeals affirmed in part and reversed in part.

LAW: An appellate court’s review of an administrative agency’s decision “is limited to determining if there is substantial evidence in the record as a whole to support the agency’s findings and conclusions, and to determine if the administrative agency’s decision is premised upon an erroneous conclusion of law.” United Parcel Service, Inc. v. People’s Counsel, 336 Md. 569, 576 (1994). See SG §10-222.

The Board relied on Declaratory Ruling 00-1 in concluding that laser hair removal constitutes the practice of medicine. DR 00-1 was issued by the Board on October 30, 2002, in response to a petition from the Board of Electrologists, to address whether physicians may delegate laser hair removal to non-physicians. In DR 00-1, the Board of Physicians ruled that “[t]he use of lasers for hair removal is a surgical act. Only physicians, certified nurse practitioners, registered nurses pursuant to Board of Nursing Declaratory Ruling 97-1, and physician assistants may use lasers for hair removal.”

Declaratory rulings are binding on an agency, but are “treated more in the nature of contested case adjudications than the adoption of a regulation.” Baltimore City Board of School Commissioners v. City Neighbors Charter School, 400 Md. 324, 346 (2007). Administrative agencies do not need to strictly apply the principle of stare decisis when adjudicating contested cases, but “as a practical matter agencies frequently do use their prior decisions as precedents.” Balt. Gas & Electric Co. v. Public Svc. Comm’n, 305 Md. 145, 167 (1986).

The Board gave the appropriate weight to DR 00-1, treating it akin to a precedential adjudicatory ruling. Although the Board could have reconsidered DR 00-1, there was no evidence presented to the Board that the facts here were significantly different from the facts in the petition on which DR 00-1 was based, or that DR 00-1 should otherwise be reconsidered.

Furthermore, the Board could not disregard DR 00-1 altogether, and conduct a de novo evaluation of whether laser hair removal constitutes the practice of medicine. See SG §10-305(b); United States v. Heffner, 420 F.2d 809, 811 (4th Cir.1969).

Moreover, the Board was not required to address its laser hair removal policy through the formal rulemaking process. An administrative agency generally has discretion over whether to proceed by adjudication or by rulemaking in developing a particular policy. See Consumer Protection Div. v. Consumer Publishing Co., 304 Md. 731, 754-56 (1985). However, an agency must follow the formal rulemaking process when “a policy of general application, embodied in or represented by a rule, is changed to a different policy of general application.” CBS, Inc. v. Comptroller of Treasury, 319 Md. 687, 696 (1990). The Board’s reliance on DR 00-1 did not change prior policy of general application to a new policy of general application.

As defined in HO §14-101(l )(1), to “practice medicine” is “to engage, with or without compensation, in medical: (i) diagnosis, (ii) healing, (iii) treatment, or (iv) surgery.” The question here was whether laser hair removal constituted “surgery,” as suggested by DR 00-1.

Karen Wulff, a public policy analyst for the Board of Physicians, testified that the Practice of Medicine Committee (POMC) had made at least two public statements on the subject of laser hair removal prior to issuing DR 00-1. First, in 1997, the committee concluded that laser hair removal was a “non-delegable act,” meaning that it had to be performed by the physician. In 1998, the POMC reconsidered and concluded that a licensed Physician Assistant could perform laser hair removal under the supervision of a physician. When the Board received the petition for a declaratory ruling in 2000, it was referred to the POMC, which concluded that laser hair removal was a surgical act.

In DR 00-1, the Board adopted the Board of Nursing’s definition of an “ablative surgical procedure” as “a surgical procedure designed to destroy or excise by use of a laser.” Regarding laser hair removal, the Board concluded that “since the goal of the procedure is designed to destroy or damage the hair follicle … it is clear that the use of lasers for hair removal is an ablative procedure.” Wulff testified that DR 00-1 is consistent with the policy of the American Medical Association, which also defines laser hair removal as a surgical act.

Dr. Mesbahi testified at the hearing that she did not personally believe laser hair removal constituted surgery because the depth of skin penetration was less than 2 millimeters. There was no expert testimony on the issue.

It was reasonable for the Board to find that laser hair removal was a surgical act, encompassed in HO §14-101(l)(1)’s definition of the practice of medicine. The Board was entitled to treat DR 00-1 as precedent, and Mesbahi, Nazemzadeh and Rahmati presented no expert testimony or other evidence on which the Board could rely in finding that laser hair removal was not surgical, aside from the personal opinion of Dr. Mesbahi.

Moreover, Mesbahi, Nazemzadeh and Rahmati cited no authority supporting the proposition that Maryland law permits a layman, unlicensed in any health profession, to perform laser hair removal without any supervision.

Furthermore, the statutes that Mesbahi, Nazemzadeh and Rahmati were charged with violating do not contain a mens rea requirement. Other provisions within the same statutory scheme contain the language “willful” or “knowing” where the legislature intended to require a particular mens rea. See, e.g., HO §14-404(a)(12); §14-404(a)(17). Thus, this was not an accidental omission. See State Cent. Collection Unit v. Jordan, 405 Md. 420, 431 (2008).

Strict liability is common in the area of regulatory offenses. “Many violations of such [strict liability] regulations result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize. In this respect, whatever the intent of the violator, the injury is the same, and the consequences are injurious or not according to fortuity. Hence, legislation applicable to such offenses, as a matter of policy, does not specify intent as a necessary element.” Morissette v. United States, 342 U.S. 246, 255 (1952).

The Board did not err in relying on DR 00-1 in concluding that laser hair removal is a surgical procedure that constitutes the practice of medicine.

Thus, the Board properly concluded that Dr. Mesbahi violated HO §14-404(a)(2), (3) and (18), by inappropriately delegating laser hair removal procedures to Nazemzadeh and Rahmati and that Nazemzadeh and Rahmati engaged in the unlicensed practice of medicine, in violation of HO §§14-301, 14-601, 14-602(a) and 14-606 and COMAR 10.32.02.06B(2).

COMMENTARY:  An administrative agency has broad discretion to impose sanctions it deems appropriate, and the reviewing court must give great deference to the agency’s decisions on the issue of sanctions. Md. Transp. Auth. v. King, 369 Md. 274, 291 (2002). An agency’s sanction should not be disturbed on appellate review unless “the disproportionality or abuse of discretion was so extreme and egregious that the reviewing court can properly deem the decision to be ‘arbitrary or capricious.’” Id.

The circuit court exceeded the proper scope of judicial review of an administrative sanction. The issue was limited to whether the sanction was so grossly disproportionate to the conduct or such an extreme abuse of discretion as to be arbitrary and capricious. The court made no such finding before remanding the case, and seemingly placed the burden on the Board to justify its sanctions, rather than on Mebahi, Rahmati and Nazemzadeh to prove the sanctions were excessive.

Additionally, there is no legal support for the circuit court’s conclusion that the Board must articulate the reasons for its sanctions the same way it must make findings of fact. See Md. Aviation Admin. v. Noland, 386 Md. 556, 580 (2005).

Even if an articulation of reasons for the sanctions were required, the Board’s opinion and that of the ALJ attached as an exhibit to the Board’s opinion provided sufficient explanation.

Dr. Mesbahi, Rahmati and Nazemzadeh did not meet their burden of showing that the sanctions imposed against them were arbitrary and capricious.

PRACTICE TIPS: An individual has a legitimate property interest in the outcome of a regulatory board’s proceedings regarding a professional license, see Regan v. Board of Chiropractic Examiners, 120 Md.App. 494, 510 (1998), and due process requires that the interested party be afforded notice and the opportunity to be heard. See Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).

Civil Procedure

Removal

BOTTOM LINE: In a case against Baltimore City police officers, removal out of Baltimore City was justified on the basis of pervasive community prejudice, including widespread prejudicial publicity.
CASE: Dinkins v. Grimes, No. 2829, Sept. Term, 2009 (filed Sept. 30, 2011) (Judges ZARNOCH, Watts & Salmon (retired, specially assigned)). RecordFax No. 11-0930-01, 34 pages.

FACTS: On March 13, 2007, 7-year-old Gerard Mungo was sitting on a dirt bike outside his home in Baltimore City. Although the vehicle was turned off, it was not “securely locked or otherwise immobilized,” as required by the Baltimore City Code.

Baltimore City Police Officer Charles Grimes and Officer-Trainee Brian Chris approached the child and confiscated the dirt bike. Officer Donald Hayes arrived at the scene and the dirt bike was placed in the back of his police truck. According to a complaint filed by the boy’s mother, Lakisa Dinkins, these officers “maliciously and unreasonably grabbed Gerard by his shirt collar and dragged him off the bike.”

Dinkins confronted the officers and informed them that she planned to make a complaint to their supervisor. Officer Grimes called his supervisor, Sergeant William Colburn, to inform Colburn of Dinkins’ intentions. Dinkins called 311 to make a formal complaint about the conduct of the officers.

Later, Colburn, along with Grimes and Hayes, returned to Dinkins’ home. According to the complaint, the officers yelled at, taunted and bullied Gerard and followed the child into his house. The officers then arrested Gerard, handcuffed him, and placed him in the back of a police car. The child was then transported to the police station for processing and fingerprinting. According to the complaint, he was chained to a bench for hours, interrogated and detained without his parents’ consent.

Eleven days later, Officer Jermaine Cook, Detective Gene Bennett and Officer Calvin Moss were in an unmarked vehicle investigating illegal drug activity. Believing they had observed an unlawful drug transaction involving one Ernest Thompson, they confronted Thompson, who allegedly ran into a dwelling owned by Dinkins’ sister.

Ms. Dinkins alleged that Officers Moss, Cook and Bennett allegedly “barged” into the house and maliciously and unreasonably held a gun to the head of Ms. Dinkins’ 14 year-old-son, Devon Johnson, telling him to get off of the telephone. Cook, Bennett and/or Moss unreasonably and maliciously grabbed Ms. Dinkins by the back of her jacket, shoved her into a chair and arrested her for allegedly hindering an arrest. Thereafter, Ms. Dinkins was taken to the Baltimore Central Booking and Intake Facility where she was forced to be imprisoned and detained for several hours before being released.

By March 15, 2007, the story reached the media that police had pulled Gerard by the collar and dragged him off the dirt bike, yelled at the frightened child, handcuffed him and placed him under arrest. The next day the newspaper and television stations reported that Mayor Sheila Dixon criticized the officers’ actions. Police Commissioner Leonard Hamm promised an internal investigation. Local politicians echoed their dismay and the President of the Baltimore Chapter of the NAACP said his membership was angered by the arrest.

Throughout March and April, there was pervasive and intense media coverage of the story. A demonstration took place outside City Hall in a “call for justice” for Gerard. In November of 2007, Dinkins, individually, and as next friend of Gerard and of Devon Johnson, sued the Baltimore City Police Department and Officers Grimes, Hayes, Colburn, Moss. Cook; and Bennett (collectively, the Officers). The filing of the lawsuit stirred up a new round of media attention.

In June of 2008, the Officers filed a motion for removal, claiming that, because of the continuous coverage of the incidents, they could not be given a fair trial in Baltimore City. The circuit court denied the motion.

The Officers filed a motion for reconsideration of the motion for removal. The circuit court decided that removal was appropriate and the case was transferred to Howard County.

Dinkins filed a motion for removal, or in the alternative, motion for transfer of case back to Baltimore City. The trial judge denied the motion.

Just before voir dire began, Dinkins’ counsel renewed the motion to transfer the case back to Baltimore City. The court denied the renewed challenge. After the jury, which included one African American, was seated, Dinkins’ counsel again objected to the racial composition of the jury and the motion was again denied.

The trial court granted Dinkins’ motion for judgment against Colburn and Hayes with respect to the false imprisonment and false arrest of Gerard. The court also granted Detective Bennett’s motion for judgment as to all counts and dismissed two counts against Officer Grimes.

The remainder of the case went to the jury along with the damage claim with respect to Officers Colburn and Hayes. The jury found in favor of the City and its officers and awarded no damages against Officers Colburn and Hayes.

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

LAW: Removal of a civil case for local prejudice is governed by Article IV, §8(c) of the Maryland Constitution and Rule 2-505(a)(1) and (b).

The party seeking removal bears the burden to show that he or she “has been prejudiced by adverse publicity and that the voir dire examination … will not be adequate to assure…a fair and impartial trial by jury.” Id. at 284-85. In addition, the defendant “must show not only that there has been publicity about this case but also that there is reason to believe that the publicity about him will prejudice his rights.” Hoffman v. Stamper, 155 Md.App. 247, 287 (2004).

The publicity about this case was pervasive, negative, continuing and prejudicial. News stories themselves described the extent of media saturation and the public outrage stirred up by the police arrests of Gerard and Dinkins.

Although the officers were rarely, if ever, mentioned by name, the accounts and commentary were specific to the officers involved. Their actions spurred demonstrations, denunciations and demands for a City boycott, all duly reported in the media. High-ranking public officials, including the Mayor, criticized the officers’ conduct; and community activists called for their ouster. In various accounts, the arrests were portrayed as a symbol of deteriorating police/community relations and Gerard was described as traumatized and a victim of a civil rights violation.

The court’s decision to order removal of the case from Baltimore City relied on more than “extensive negative publicity.” It also explained that waiting for voir dire would not be appropriate in light of statements made by high-ranking city officials and because there were demonstrations held in the City demanding that the Officers be terminated and prosecuted.

This finding of a source of continuing local resentment is a reasonable ground to believe that the parties could not receive a fair trial in Baltimore City even with the assistance of voir dire. Clearly, a Howard County jury would not have been as affected by statements of public officials from another jurisdiction or the community reaction in the City. Thus, the circuit court did not err in removing the case from Baltimore City or in its decision not to return the case to its original venue.

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: Under the banner of due process, Dinkins argued that the true purpose of the Officers’ attempt to remove the case from Baltimore City was to unconstitutionally obtain a more racially favorable venue. Dinkins also contended that the Supreme Court’s decision in Batson v. Kentucky, 476 U.S. 79 (1986), applied to racially discriminatory venue transfers and that if a removal out of the City was to be ordered, Dinkins was entitled to venue in a jurisdiction comparable to the City’s racial demographics.

Although no Maryland case addresses these issues, out-of-state authorities and commentaries are plentiful, See e.g., House v. Hatch, 527 F.3d 1010 (10th Cir.2008); Mallett v. Bowersox, 160 F.3d 456 (8th Cir.1998); Brown, The Role of Race in Jury Impartiality and Venue Transfers, 53 Md. L.Rev. 107 (1994). Those state courts that have addressed the issue appear divided, although more decline to apply Batson to venue transfer decisions. Compare, House v. Hatch, 527 F.3d at 1022 with State v. House, 978 P.2d 967, 993 (1999).

If Batson were applicable here, once a prima facie case has been made by showing that members of the party’s race were substantially under-represented on a venire selected under a practice providing the opportunity for discrimination, U.S. v. Douglas, 837 F.Supp. 817, 822  (N.D.Tex.1993), then: “the burden shifts to the State to explain adequately the racial exclusion.” Batson, 476 U.S. at 94.

A race-neutral reason for the transfer clearly existed, here, the presence of highly prejudicial publicity and local prejudice that jeopardized the Officers’ right to a fair and impartial trial. See State v. House, 978 P.2d at 993-94. Moreover, the Officers could not have guaranteed that the case would be transferred to a majority white jurisdiction. The choice of Howard County was made by the Administrative Judge for Baltimore City, presumably based on racially neutral administrative concerns. Thus, Dinkins could not have made a case for purposeful discrimination by either the Officers or the circuit court for Baltimore City.

As for the discriminatory effect claim, which was made only in Howard County, Dinkins failed to show that selection of the transferee forum by the administrative judge provided an “opportunity for discrimination” or that it was not based on “permissible racially neutral selection criteria.” Ultimately, Dinkins’ discriminatory effect contention is reduced to an asserted right to a transferee court jury with a demographic or racial composition comparable to that of the transferor jurisdiction. Even courts that apply Batson to venue transfers have not recognized such a right. See State v. House, 978 P.2d at 995. Thus, there was no equal protection violation in the transfer of Dinkins’ case from Baltimore City or the trial of the case in Howard County.

Finally, Dinkins was not denied procedural due process by the lack of a hearing before the circuit court for Baltimore City on the selection of Howard County as the transferee venue.

This was a civil case. “Due process does not … require that the defendant in every civil case actually have a hearing on the merits.” Boddie v. Connecticut, 401 U.S. 371, 378 (1971). Second, while under certain circumstances a plaintiff in a civil case may have a “vested property right in a cause of action,” Dua v. Comcast, 370 Md. 604, 633 (2002), he or she cannot be said to have a property right deserving of due process protection in the composition of the jury in a transferee jurisdiction. See Mobile v. Bolden, 446 U.S. at 77, n. 24. Third, appellants’ primary purpose in seeking a hearing on the proposed venue would have been to argue their entitlement to transfer to a majority African-American jurisdiction, a right which has repeatedly been rejected by the courts. Thus, it was unclear what purpose would have been served by the hearing.

Finally, Dinkins did have a hearing in Howard County on the allegedly erroneous transfer and the inappropriateness of the Howard County venue.

Constitutional Law

DNA evidence

BOTTOM LINE: The trial court did not err in denying defendant’s motion to suppress DNA evidence because defendant had no reasonable expectation of privacy in the item from which his DNA was collected, nor in the identifying characteristics of the DNA evidence.

CASE: Raynor v. State, No. 1629, Sept. Term, 2009 (filed Sept. 29, 2011) (Judges KRAUSER, Matricciani & Salmon (retired, specially assigned)). RecordFax No. 11-0929-02, 34 pages.

FACTS: On April 2, 2006, after cutting the victim’s telephone line, Glenn Raynor broke into a woman’s home, went into her bedroom, pressed a pillow against her face, and threatened to kill her if she moved. Then he raped her and fled. During the attack, the victim noticed that her attacker had a wedding band on his hand and had a “metallic odor.”

When the police arrived at the victim’s house, they took swabs of blood stains that were found on a pillow case on the victim’s bed and on the floor of the back patio of the victim’s home, underneath a broken window. Later that day, swabs were taken of the victim’s vagina and anus.

Raynor did not become a suspect in the investigation of the rape until more than two years later, when the victim sent an email to the lead investigator in the case, Trooper First Class Dana Wenger, stating that she believed that Raynor was the man who had raped her. In her email, the victim explained that, two years after the attack, she had called Bruce Arthur, her former neighbor, for help with a tree on her property. Mr. Arthur owned a tree-trimming business. Arthur is partners with Raynor and Raynor used to live in the house in which the attack took place. The victim further explained to Trooper Wenger that Raynor has a body type that closely fit the body type of the attacker and Raynor is married.

Pursuing this lead, Trooper Wenger left a note at Raynor’s home asking him to call her. On July 28, 2008, Raynor telephoned Trooper Wenger and agreed to go to the police barracks that afternoon. During the interview that ensued, Trooper Wenger asked Raynor for a DNA sample to compare with the DNA recovered from the victim’s house and the victim’s body. Raynor agreed to provide a sample on the condition that it would be destroyed after the investigation was concluded. When the officers declined to give such an assurance, Raynor refused to provide a DNA sample.

At that time, Raynor was wearing a short-sleeved shirt. The trooper noticed a “metallic” odor emanating from Raynor and observed that he appeared “nervous” and provided “peculiar” answers during the interview.

After Raynor left the police barracks, the police swabbed the armrests of the chair on which Raynor had been sitting. The swabs were submitted to the Maryland State Police Forensic Lab. That DNA profile was found to match the DNA profile developed from the evidence taken from the scene of the rape.

Based on this evidence, Trooper Wenger obtained warrants to arrest Raynor, search his home, and collect an additional DNA sample. The DNA from the additional sample, gathered by swabbing Raynor’s cheek, also matched the DNA on the pillow case and the patio. An independent lab compared the DNA obtained from Raynor’s cheek with DNA from swabs of the victim’s anus and vagina and concluded that neither Raynor nor any of his male paternal relatives could be excluded as a potential contributor to that DNA sample, but that 99.57 percent of the male population in a country the size of the United States could be.

At trial, Raynor moved to suppress the DNA sample gathered from the chair. The circuit court denied the motion. A jury convicted Raynor of multiple degrees of rape, assault, burglary, and sexual offense, as well as malicious destruction of property.

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

LAW: There was no dispute that the officers had the right to swab their own chair without a warrant. It was the property of the police and not of Raynor, and thus he had no reasonable expectation of privacy in the chair itself. See Gamble v. State, 78 Md.App. 112, 116 (1989). But Raynor contended that he had a reasonable expectation of privacy in the DNA contained in his skin cells.

“The person invoking Fourth Amendment protections bears the burden of demonstrating his or her legitimate expectation of privacy in the place searched or items seized.”  Williamson v. State, 413 Md. 521, 534 (2010). The burden of demonstrating a “legitimate” or “reasonable” expectation of privacy includes both a subjective and an objective component. First, the individual invoking Fourth Amendment protection must “demonstrate an actual (subjective) expectation of privacy in the item or place searched.” Id. (citing Katz v. United States, 389 U.S. 347, 361 (1967)). A subjective expectation of privacy is demonstrated by a showing that the person “sought ‘to preserve something as private.’” Id. at 535 (quoting McFarlin v. State, 409 Md. 391, 404 (2009).).  Second, the expectation must be “objectively reasonable under the circumstances.” Id. at 534 (citing Laney v. State, 379 Md. 522, 545 (2004)).

In Williamson, in 1994, Kelroy Williamson entered an Alford plea to a charge of battery stemming from a rape investigation. Although swabs were collected from the victim in the investigation of that rape, they were not tested at that time. 413 Md. at 526.

In 2006, to obtain a DNA sample from Williamson, whom police suspected was involved in a rape committed in 2002, investigators arrested him on charges unrelated to the rape, took him to the police station, and provided him with a meal. Id. at 528. When Williamson, in a holding cell, left the cup from that meal on the cell floor, the cup was tested for DNA. Id. The resultant DNA profile matched the profile of the rapist in the 2002 rape, and Williamson was eventually convicted of that crime. Id.

The Court of Appeals declared that the Fourth Amendment did not apply to the seizure of the cup because Williamson had abandoned it when, after drinking from it, he tossed it to the floor and that he, therefore, retained no reasonable expectation of privacy in it. Id. at 536-37.

The Court rejected Williamson’s claim that, even if the cup had been lawfully seized, he retained a reasonable expectation of privacy in his DNA and that the police were therefore prohibited from analyzing the DNA without a warrant. Id. at 547. In so ruling, the Williamson Court emphasized that the DNA collection and use had been in conformity with the strictures of the Maryland DNA Collection Act. Id. at 542 (citing PS §2-505(b)).

Further, DNA profiles used in the database “consist of analyses of 13 ‘junk’ loci consisting of stretches of DNA, which do not presently recognize traits and were purposely selected because they are not associated with any known physical or medical characteristics.” Id. (citing United States v. Davis, 657 F.Supp.2d 630, 656 n. 6 (D.Md.2009)).

Thus, “the only information collected from testing and storage of DNA profiles,” was “the identity of the person whose DNA [was] being tested.” Id. at 543. Hence, the purpose of uploading DNA profiles to a DNA database was “akin to that of a fingerprint.” Id. See also State v. Raines, 383 Md. 1 (2004) (concurring opinion by Judge Raker).

Thus, DNA evidence, when used for identification purposes only, is akin to fingerprint evidence. And, although fingerprint evidence is suppressible if it is obtained in the course of an unlawful detention, see Hayes v. Florida, 470 U.S. 811, 816 (1985), the fingerprinting process itself “involves none of the probing into an individual’s private life and thoughts that marks an interrogation or search.” See United States v. Dionisio, 410 U.S. 1, 15 (1973).

Thus, like the analysis of a latent fingerprint, which involves no physical intrusion into the body and is used for identification purposes only, the analysis of the DNA evidence here, which was in the lawful possession of the police, was not a constitutionally protected search.

Even if Raynor could demonstrate a subjective expectation of privacy in his DNA profile, he nonetheless had no objectively reasonable expectation of privacy in it because it was used for identification purposes only. Therefore, the suppression court did not err in denying Raynor’s motion to suppress the DNA evidence.

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: Raynor contended that the circuit court abused its discretion in not granting a mistrial, first, because the State failed to disclose before trial eighty-nine emails between the victim and the police and, second, because the State failed to provide additional emails, the existence of which the State denied.

The remedy for a violation of the discovery rules is within the sound discretion of the trial judge. Williams v. State, 364 Md. 160, 178 (2001). See Rule 4-263(n). In exercising its discretion regarding sanctions for discovery violations, “a trial court should consider: (1) the reasons why the disclosure was not made; (2) the existence and amount of any prejudice to the opposing party; (3) the feasability of curing any prejudice with a continuance; and (4) any other relevant circumstances.” Thomas v. State, 397 Md. 557, 570 (2007).

The declaration of a mistrial “is an extraordinary act which should only be granted if necessary to serve the ends of justice.” Barrios v. State, 118 Md.App. 384, 396-97 (1997).

Although Raynor may have been surprised by the victim’s reference to her emails during her direct testimony, the delayed disclosure did not deny him the necessary time to prepare a full and adequate defense. Raynor learned of the emails during the victim’s direct examination but did not inform the circuit court that he did not have copies until after he had completed his cross-examination.

After Raynor brought the State’s failure to disclose the emails to the court’s attention, the court instructed the assistant state’s attorney that she had a duty to inquire as to the existence of the emails. Four days later, after having disclosed eighty-nine emails, the State represented to the circuit court that its prior failure was not a willful violation. Finding that representation credible and, consequently, that there had been no deliberate discovery violation, the circuit court denied Raynor’s motion for a mistrial.

The circuit court’s finding that there were not any more undisclosed emails was not clearly erroneous, and the court did not abuse its discretion in declining to declare a mistrial. Under the circumstances, even if there were additional undisclosed emails, the failure, by the State, to disclose those emails did not violate Brady v. Maryland, 373 U.S. 83 (1963).

A Brady violation occurs when the State withholds or suppresses evidence that is (1) favorable to the defense (because it was either exculpatory or impeaching) and (2) material to the guilt or punishment of the defendant. Wilson v. State, 363 Md. 333, 346 (2001). If the alleged Brady violation pertains to the failure to disclose favorable evidence, the evidence is “material” if “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Wilson, 363 Md. at 347.

Raynor contended that the undisclosed emails would have shown that the victim and the police had previously considered and rejected Raynor as a suspect. The evidence adduced at trial established that Raynor’s DNA matched the DNA found on the back patio of the victim’s home, on a pillow case on her bed and on swabs of her vagina and anus. Even without the emails, the jury heard the victim’s testimony that she provided Trooper Wenger with “multiple leads” and discussed with Trooper Wenger every person who it could have possibly been. And, although the victim testified that she believed Raynor was her attacker, she also testified that the rapist tied a shirt over her face, preventing her from seeing his face.

Thus, even if the undisclosed evidence was favorable to the defense because it demonstrated that Raynor, whose DNA matched that of the rapist, had been briefly considered as a suspect by the victim at an earlier point in the investigation, it was not material to his guilt because there was no “substantial possibility that … the result of [the] trial would have been any different” had the evidence been disclosed. See Wilson, 363 Md. at 347 n. 3.

PRACTICE TIPS: The Maryland DNA Collection Act provides for the collection of DNA samples from individuals who are either charged with or convicted of certain crimes. PS §2-504. The DNA records developed from such samples are maintained in a statewide DNA database, but “[o]nly DNA records that directly relate to the identification of individuals” may be collected and stored. Id. at § 2-502, 2-505(b), 2-506(a).

Contract Law

Breach of line of credit agreement

BOTTOM LINE: In an action for breach of plaintiffs’ line of credit agreement, defendant was entitled to attorneys’ fees actually incurred even though the agreement allowed defendant to collect as attorneys’ fees 15 percent of the principal plus accrued interest or reasonable fees as allowed by law.
CASE: SunTrust Bank v. Goldman, No. 803, Sept. Term, 2010 (filed Sept. 30, 2011) (Judges EYLER, J., Wright & Thieme (retired, specially assigned)). RecordFax No. 11-0930-03, 19 pages.

FACTS: Frank J. Goldman and Lisa B. Goldman, on February 20, 2007, entered into a line of credit agreement (the Agreement) with SunTrust Bank with a credit limit of $390,000.

The agreement stated that if the Goldmans defaulted, SunTrust could collect its costs of collection, including court costs and 15 percent of the principal plus accrued interest as attorneys’ fees or reasonable attorneys’ fees.

The Goldmans defaulted on the line of credit. SunTrust filed a complaint, claiming principal due in the amount of $401,373, interest in the amount of $14,259, and attorneys’ fees in the amount of $60,206 (15 percent of principal). The Goldmans did not answer.

The circuit court entered judgment by default against the Goldmans for the principal loan balance in the amount of $401,373 and accrued pre-judgment interest in the amount of $29,961. The court deferred ruling on SunTrust’s claim for attorneys’ fees.

SunTrust filed a motion to revise judgment, in which it requested that the judgment be revised to include attorneys’ fees in the amount of $60,206, being 15 percent of the principal balance or, in the alternative, attorneys’ fees in the amount of $3,094, the amount of fees incurred to date, plus costs incurred in the amount of $164.

The court granted SunTrust’s motion to revise judgment and awarded attorneys’ fees and costs to it in the amount of $3,258 ($3,094 plus $164).

The Court of Special Appeals affirmed.

LAW: An appellate court will disturb a trial court’s award of attorneys’ fees based on a contractual agreement between the parties only if the trial court abused its discretion. Monmouth Meadows Homeowners Ass’n v. Hamilton, 416 Md. 325, 332 (2010). In addition, a “trial court’s determination of the reasonableness of attorneys’ fees is a factual determination within the sound discretion of the court, and will not be overturned unless clearly erroneous.” Myers v. Kayhoe, 391 Md. 188, 207 (2006).

Attorneys’ fee provisions are in the nature of indemnity agreements. See Webster v. People’s Loan, Sav. & Deposit Bank of Cambridge, 160 Md. 57, 61 (1976).

In Mortgage Investors of Washington v. Citizens Bank & Trust Co. of Maryland, 278 Md. 5057 (1976), pursuant to the terms of the loan document, the debtor agreed that, in the event of post-default litigation, it would pay “all court costs and an attorney’s fee of 15 percent of the outstanding balance at the time of the suit.” Id. at 506. The creditor prevailed on summary judgment and was awarded the outstanding principal and interest as well as a separate judgment of $150,640.26 as attorneys’ fees, which was 15 percent of the debt owed at the outset of litigation. Id. at 508.

The Court of Special Appeals reduced the 15 percent award to $105,750.58, the amount the creditor actually owed to its attorneys. Id. The Court of Appeals affirmed, stating that “since the contract was one of indemnity, [the creditor] cannot collect from [the debtor] an amount greater than the $105,750.58 which it was required to pay under its agreement with its attorneys.” Id. at 510.

Thus, Maryland law limits the amount of contractual attorneys’ fees to actual fees incurred, regardless of whether the contract provides for a greater amount. The contract may provide that the amount of fees is determined by a percentage or some other method, but to comply with the indemnification requirement, the amount of fees paid pursuant to the agreement between the claimant and its attorneys must equal or exceed the amount provided for in the contract.

In addition to satisfying the principle of indemnification, the amount of a fee awarded must be reasonable. See Monmouth, 416 Md. at 333. In cases sounding in contract such as the one before us, the reasonableness of an attorneys’ fee award is to be measured using the factors in Rule 1.5(a) of the Maryland Lawyers’ Rules of Professional Conduct. See Monmouth, 416 Md. at 336-337.

The attorneys’ fee provision in the Agreement extends to post judgment collection efforts. The underlying point of law that SunTrust sought to circumvent by claiming unincurred fees, subject to later credit, is the doctrine of merger. “[U]nder the rule of merger, ‘a simple contract is merged in a judgment or decree rendered upon it, and that all its powers to sustain rights and enforce liabilities terminated in the judgement or decree.’” AccuBid Excavation, Inc. v. Kennedy Contractors, Inc., 188 Md.App. 214, 233 (2009).

In Maryland, the entry of final judgment on a contract case extinguishes any contract-based right to further attorneys’ fees because “attorney’s fees recoverable pursuant to a contract are part of the damages claim.” Id. at 233. As part of the damages claim, rather than as a collateral or ancillary matter that may be litigated separately, any lingering claims for attorneys’ fees have no legal ground upon which to stand after the underlying contract is merged into final judgment and ceases to exist as an independent cause of action. Absent an exception, therefore, after all appeal rights are exhausted and the judgment in this case becomes final, SunTrust’s contractual right to attorneys’ fees will be extinguished because the agreement will have merged into that judgment.

A merger can be avoided by legislative action, i.e., a legislative body may create a statutory remedy allowing parties to collect post-judgment legal expenses incurred when the underlying contract provides for the award of attorneys’ fees. See, e.g., Chinese Yellow Pages Co. v. Chinese Overseas Marketing Serv. Corp., , 88 Cal.Rptr.3d 250, 261 (Cal.Ct.App.2008). There is no such legislation in Maryland.

Merger may also be avoided because of public policy expressed in legislative enactments. The Maryland Court of Appeals has read into some statutes the availability of post-judgment fees and costs, if reasonable in amount. See Pak v. Hoang, 378 Md. 315, 335 (2003). There is no similar remedial statute at issue in this case.

Another possible method of avoiding the merger bar is for the parties to clearly state their intent in the contract that the fee provision shall not merge into the judgment. See Johnston v. Johnston, 297 Md. 48, 57 (1982) (non-merger clause in a separation agreement on the subsequent divorce decree). There are no other circumstance in Maryland in which merger has been avoided, based on the intent of the parties as expressed in the contract.

Nevertheless, in Monarc Constr., Inc. v. Aris Corp., 188 Md.App. 377 (2009), the Court of Special Appeals recognized that, under some circumstances, the parties to a contract may be able to expressly agree that a provision for shifting post judgment collection fees survives a final judgment on the underlying contract, but such agreements will be strictly construed. The first question is one of contract interpretation, i.e., does the contract provide for shifting of post judgment fees? The Agreement provided for collection costs, which necessarily refers to a time post judgment.

The second question is whether the language is sufficiently clear to avoid the effect of merger. The language in the Agreement was not sufficiently clear to exempt it from operation of the merger doctrine. Thus, if a contract calls for fees and costs incurred in pursuing a breach, as a matter of contract interpretation, there is no issue with respect to post judgment fees and costs. If a contract calls for the shifting of fees and costs incurred in post judgment collection efforts, and assuming that it does not avoid the doctrine of merger, a trial court should permit the requesting party to put on evidence of fees that will be incurred in addition to those actually incurred at that time.

Here, the Agreement required the Goldmans, in the event of default, to pay SunTrust 15 percent of the principal plus accrued interest as attorneys’ fees or reasonable attorneys’ fees as allowed by law. This disjunctive language, on its face, authorized the trial court to award either 15 percent of principal as legal fees or “reasonable legal fees.” In either event, the amount of the fee award had to be reasonable, regardless of the language in the agreement.

The court noted the reasonableness clause in the agreement, rejected the 15 percent requested by SunTrust, and awarded SunTrust attorneys’ fees incurred to the date of the judgment. Faced with no evidence as to any agreement to pay attorneys’ fees other than on an hourly rate basis and no evidence relating to fees certain to be incurred in the future, the trial court properly exercised its discretion in awarding only incurred attorneys’ fees determined to be reasonable as to amount.

COMMENTARY: In order to avoid the indemnification issue, SunTrust contended that Rules 2-626 and 3-626, governing satisfaction of money judgments in the circuit and district courts, respectively, may provide a procedural mechanism for determining post-judgment fee awards of the type SunTrust sought.

These Rules provide that, after a money judgment is entered, and the debtor satisfies the judgment, the creditor shall file a statement that the judgment has been satisfied. If the creditor does not file a notice of satisfaction, the debtor may file a motion for an order declaring that the judgment has been satisfied.

These rules were not intended to address the issue of crediting a judgment debtor with unpaid amounts of attorneys’ fees that were part of the judgment. There is no procedural mechanism for doing so. Judgments may exist for years without being satisfied. It would be impossible to determine if the attorneys’ fee portion of a judgment was excessive unless and until the judgment was satisfied because, until then, additional fees might be incurred.

Moreover, SunTrust’s position presupposes a debtor who will be active and will ultimately satisfy the judgment. There is simply no workable way to monitor the crediting of fees.

PRACTICE TIPS: Rule 2-611, amended in 2010, governs the procedure for confessed judgments, and now requires judicial review of confessed judgments at the outset, and accordingly, the reviewing court can make a preliminary determination as to the availability and reasonableness of attorneys’ fees to be entered as part of the confessed judgment.

Criminal Procedure

Double jeopardy

BOTTOM LINE: Defendant was not subject to double jeopardy when the district court sanctioned him for violating the terms of a DUI Court treatment agreement, entered into as a result of a prior incident of driving while under the influence, and then was sanctioned by the circuit court for a subsequent incident of driving while impaired by alcohol.

CASE: DiMeglio v. State, No. 2783, Sept. Term, 2009 (filed Sept. 29, 2011) (Judges Eyler, J., Hotten & SHARER (retired, specially assigned)). RecordFax No. 11-0929-05, 31 pages.

FACTS: On May 26, 2007, Joseph DiMeglio was arrested and charged in the district court with various offenses, including driving while under the influence. On January 30, 2008, prior to trial, this case was referred to the DUI Court for Anne Arundel County. In exchange for DiMeglio’s agreement to plead guilty to a violation of TP §21-902(b), the parties and the court entered into an agreement, under which DiMeglio was to undergo treatment and which set forth certain sanctions if he violated the agreement.

DiMeglio began treatment pursuant to the agreement, and appeared in the DUI court on a monthly basis. Then, on January 18, 2009, DiMeglio was again arrested and charged with various offenses, including, driving while impaired by alcohol.

Four days later, on January 22, 2009, as part of his scheduled review in the DUI Court, DiMeglio appeared before the district court. The court informed DiMeglio that he did not have to talk about the new charges. DiMeglio did, however, tell the court that he had been at his sister’s house earlier that day and had consumed a number of beers. He decided to drive home and “totaled” a company vehicle. Because drinking alcohol was a violation of the DUI agreement, the district court imposed a sanction of jail time on DiMeglio.

On July 27, 2009, DiMeglio prayed a jury trial in the case which occurred on January 18, 2009 and it was transferred to the circuit court. Approximately one month later, on August 20, 2009, DiMeglio was found guilty in the district court in the May 2007 case of driving a vehicle while impaired by alcohol. DiMeglio was sentenced to 120 days with credit for time served. DiMeglio immediately appealed to the circuit court. Sentence in that case was stayed pending the appeal.

On October 1, 2009, DiMeglio moved to dismiss the instant case on double jeopardy grounds. The court denied the motion. DiMeglio filed a motion for reconsideration, which was denied. The parties agreed to proceed on a not guilty plea on an agreed statement of facts and the circuit court found DiMeglio guilty of driving while impaired by alcohol. DiMeglio was sentenced to one year and 60 days, which was suspended in favor of probation, with conditions.

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

LAW: DiMeglio argued that the sanction imposed by the DUI Court -a weekend in jail — was, in fact, punishment for his act of drinking and driving in this case. Therefore, the court’s sentence in this case amounted to a violation of his right to be free from double jeopardy.

The Double Jeopardy Clause provides that no person shall “be subject to the same offence to be twice put in jeopardy of life or limb.” U.S. Const., Amend. V. This constitutional guarantee is made applicable to the states through the Due Process Clause of the Fourteenth Amendment. State v. Long, 405 Md. 527, 535-36 (2008).

The “double jeopardy analysis is a two-step process. It is first necessary to determine whether the charges arose out of the same act or transaction, and second, whether the crimes charged are the same offense.” Jones v. State, 357 Md. 141, 157 (1999). The Double Jeopardy Clause “prohibits three distinct abuses: 1) the second prosecution for the same offense after acquittal; 2) the second prosecution for the same offense after conviction for that offense; and 3) the imposition of multiple punishments for the same offense.” Taylor v. State, 381 Md. 602, 610 (2004).  It is the latter with which was at issue here.

“It is generally held that, with respect to a jury trial, a defendant is placed in jeopardy when the jury is selected and sworn. As to a non-jury trial, the normal rule is that the trial commences, and thus jeopardy attaches, when the judge begins to hear or receive evidence. Usually, this will be when the first witness begins to testify. However, it could be when documentary evidence is submitted, such as a stipulation or the record of prior proceedings,…,or when the defendant pleads guilty to the charges and thus establishes his guilt.” Blondes v. State, 273 Md. 435, 444-445 (1975).

Further, “[i]n order for jeopardy to attach, a defendant must risk a determination of guilt.” Odem v. State, 175 Md.App. 684, 700 (2007). And, “a defendant does not risk a determination of guilt when a trial court determines a preliminary matter without reaching the merits of the case.” Id. at 700.

DiMeglio was not in initial jeopardy when he appeared before the DUI Court on January 22, 2009. Neither the prosecutor nor defense counsel were then present. No evidence in the traditional sense was received by the court. Further, DiMeglio was never sworn or subject to cross-examination. Moreover, although DiMeglio volunteered information about the new and separate charge, the DUI Court made clear that it was not deciding DiMeglio’s guilt concerning the new charge. Therefore, DiMeglio was not placed in initial jeopardy for the charges in this case when he appeared before the DUI Court on January 22, 2009.

In In the Interest of O.F., 773 N.W.2d 206 (N.D.2009), relied on by the State, O.F. was adjudicated a delinquent child and placed into a drug court program. The order placing him in drug court required that he comply with the rules and conditions set for him by the court. Id. at 207.

While under the program, O.F. violated curfew. After the police cited him for a curfew violation and returned him to his home, O.F. killed the family kitten. As a result of this behavior, the drug court ultimately sanctioned O.F. by requiring that he complete an additional six hours of community service. Id. Several months later, the State filed a petition against O.F. in juvenile court alleging that he committed the delinquent act of mistreating animals, and that he was an unruly child for violating curfew. Id. O.F. filed a motion to dismiss, alleging that the sanction previously imposed by the drug court was for the same conduct and therefore the new charges violated double jeopardy. The juvenile court denied the motion. Id. The State dismissed the curfew violation charge, and O.F. pleaded guilty to the mistreating animals charge. Id. As a result, O.F. was dismissed from the drug court program and his custody was transferred to the Division of Juvenile Services for one year. Id.

On appeal to the Supreme Court of North Dakota, O.F. contended that double jeopardy barred the juvenile court from punishing him for mistreating animals when he was sanctioned by the drug court to additional community service for the same conduct. The Court disagreed. Id. at 209. “We perceive no substantive difference between a sanction imposed on a participant by a juvenile drug court for violation of the program’s rules and revocation of probation by a district court for a defendant’s violation of a condition of probation.” Id. at 208.

Likewise, there is no substantive distinction between a sanction imposed for a violation of probation and a sanction imposed in a DUI/Drug Court. Because probation revocation proceedings are considered civil proceedings, a sanction imposed by a circuit court in such case does not implicate a defendant’s double jeopardy rights. Gibson v. State, 328 Md. 687, 690 (1992).

The North Dakota court concluded: “It follows that a juvenile’s double jeopardy rights are not violated when the facts used to impose a sanction by a juvenile drug court are later used to support an adjudication of delinquency. Here, the juvenile drug court … did not adjudicate O.F. delinquent, but sanctioned him for violating program rules by requiring that he complete six additional hours of community service. Jeopardy did not attach to the sanction proceedings, and … upon revocation of probation, an extension of the probation period does not subject a defendant to multiple punishment for the same offense.” In the Interest of O.F., 773 N.W.2d at 209.

DiMeglio signed an agreement pursuant to which he agreed that one consequence of failure to comply with the DUI Court treatment agreement could be a “sanction” that included incarceration. When the DUI Court imposed such a sanction for DiMeglio’s non-compliance, the court was acting under the agreement. Thus, DiMeglio was not placed in jeopardy when he told the DUI Court that he had been drinking and driving on January 18, 2009, and was sanctioned as a result. The sanction imposed by the DUI Court was for his failure to comply with the terms of his 2007 pre-trial release under the DUI Treatment agreement. He was not punished by the DUI court in this case and therefore was not subject to double jeopardy.

Accordingly, the judgment was affirmed.

COMMENTARY: DiMeglio suggested that he did not waive his right to move to dismiss on double jeopardy grounds when he agreed to be subject to the DUI Court.

Because the merits of DiMeglio’s double jeopardy argument were rejected, there was no need to consider whether DiMeglio waived his right to be free from double jeopardy by agreeing to be subject to the DUI Court.

Moreover, to consider this issue the Court would be required to examine the record of the hearing held in the district court, when DiMeglio, his counsel, the prosecutor, and the court first entered into the DUI Treatment agreement. No such record was provided.

“It is incumbent upon the appellant claiming error to produce a sufficient factual record for the appellate court to determine whether error was committed, and he has not done that in this case.” Mora v. State, 355 Md. 639, 650 (1999); see also Rule 8-501(c).

PRACTICE TIPS: “[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304 (1932).

Criminal Procedure

Sentencing

BOTTOM LINE: The circuit court imposed an illegal sentence where, pursuant to defendant’s motion to modify, the court increased the length of defendant’s original sentence.

CASE: Tolson v. State, No. 0896, Sept. Term, 2010 (filed Oct. 3, 2011) (Judges KRAUSER, Meredith & Thieme (retired, specially assigned)). RecordFax No. 11-1003-03, 9 pages.

FACTS: After the entry of his Alford plea, see Alford v. North Carolina, 400 U.S. 25 (1970),  to three counts of second-degree assault and one count of attempt to disarm a law enforcement officer,  Ricky Calvin Tolson was sentenced, on November 3, 2005, to four concurrent ten-year terms of imprisonment. Five years of each sentence were then suspended and a term of five years probation was imposed. Because the four ten-year sentences were concurrent, they are referred to, in the singular, as a “ten-year sentence, with five years suspended.”

On November 9, 2005, Tolson filed a motion to modify his sentence under Rule 4-345(e). The motion was denied on August 16, 2006.

Almost two years later, Tolson filed a motion requesting reconsideration of the denial of his modification request. On December 9, 2008, the circuit court granted the motion to reconsider its August 16, 2006 ruling and granted the motion to modify sentence by increasing the original sentence of ten years, with all but five years suspended, to twenty years, with all but one year suspended. The five-year probation was continued.

Tolson was released on probation. He thereafter violated his probation. At a hearing on March 12, 2010, the circuit court terminated Tolson’s probation. Before imposing sentence, the court commented that it could order a sentence of up to nineteen years. It went on to say that, instead of imposing the full nineteen years, it was imposing only a ten-year sentence. Tolson filed a motion to correct an illegal sentence, which was denied.

Tolson appealed to the Court of Special Appeals, which vacated his sentences and remanded.

LAW: Tolson argued that the December 9, 2008 sentence was illegal because it was an increase of the original sentence.

The law does not permit a court, in ruling on a motion to modify a sentence filed, pursuant to Rule 4-345(e), to increase the sentence. Smith v. State, 31 Md.App. 310, 356 (1976). Indeed, a court is generally not permitted to increase a sentence, upon resentencing, unless certain conditions are satisfied, none of which were present here. CJ §12-702(b); North Carolina v. Pearce, 395 U.S. 711 (1969).

Thus, the December 9, 2008 sentence was illegal because it was an unauthorized increase of the original sentence.

Tolson also argued that the March 10, 2010 sentence at the revocation of probation hearing was illegal.

“When dealing with a split sentence, the court, in revoking probation, may direct execution of all or part of the previously suspended part of the sentence, but not of any part of the sentence that the court initially directed to be served in prison.” Benedict v. State, 377 Md. 1, 12 (2003). In other words, after a court revokes a probation, the only part of the original sentence which a court may order executed is the suspended portion.

In this case, the original sentence, which was imposed on November 3, 2005, was for ten years, five years suspended. On December 9, 2008, the court modified that sentence by increasing it to a sentence of twenty years, all but one year suspended. That sentence was illegal.

Thus, on March 12, 2010, when the court revoked Tolson’s probation, the only sentence lawfully in effect was the November 3, 2005 sentence of ten years, five years suspended. Thus, when the court sentenced Tolson on March 12, 2010, the maximum sentence the court could have imposed was five years. Consequently, the ten-year sentence imposed by the court, that day, was unlawful.

Accordingly, the March 12, 2010 sentence was vacated and the case was remanded for a re-sentencing.

COMMENTARY: Under Rule 4-345(e), a person wishing to challenge his sentence must file a motion to modify it within ninety days of imposition. If a court denies that motion, and more than ninety days have elapsed since the imposition of sentence, “the defendant is finished-he or she may not file another such motion for reconsideration,” Greco v. State, 347 Md. 423, 436 (1997), or a “motion to modify,” unless he can show fraud, mistake, or irregularity. Clark v. State, 348 Md. 722, 732 (1998).

On the other hand, if the motion is granted and a new sentence imposed, the ninety-day period for filing a motion to modify begins again, from the date the new sentence was imposed, and a second motion to modify, filed within that period, would be timely. Greco, 347 Md. at 433.

Once a court has lost jurisdiction, under Rule 4-345, after denying a motion to modify because ninety days have elapsed since the imposition of sentence, it may not consider a second motion to modify sentence and impose a new sentence. State v. Karmand, 183 Md.App. 480, 492-95 (2008).

Tolson’s November 9, 2005 motion to modify sentence was denied on August 16, 2006, more than ninety days after the original November 3, 2005 sentence of ten years, all but five years suspended, had been imposed. As of that date, Tolson had exhausted all of his rights under Rule 4-345(e). Because Tolson had no further rights under Rule 4-345(e), the court had no jurisdiction to act under the authority of that rule.

Because, on December 9, 2008, the court had no jurisdiction to modify Tolson’s original sentence, that modified sentence was a nullity. And, because that sentence was a nullity, his original November 3, 2005 sentence of ten years, with all but five years suspended, remained in effect.

PRACTICE TIPS:  An accused “may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.” Alford v. North Carolina, 400 U.S. 25, 37 (1970).

Tax Law

Reimbursement of attorneys’ fees

BOTTOM LINE: In a tax sale, plaintiff was not entitled to reimbursement of extraordinary legal fees and costs under either TP §14-843 or TP §14-848.

CASE: Deinlein v. Johnson, No. 788, Sept. Term, 2010 (filed Sept. 30, 2011) (Judges Eyler, D., Kehoe & BERGER (specially assigned)). RecordFax No. 11-0930-09, pages.

FACTS: On November 10, 1983, Andrew and Mattie Burno conveyed a 7.8-acre parcel (Original Tract), by deed, to Andrea Burno, mother of and former Trustee for Andrew Johnson, who was a minor at that time. Andrea lived in a one-story residence situated on the Original Tract.

In 1996, Andrea requested a homeowner’s tax credit from the State for the tax assessment on the residence. The Maryland Department of Assessment and Taxation (SDAT) administratively divided the Original Tract into two separate parcels based on two separate tax account numbers. One account referred to the 3.8-acre parcel on which the residence was located. The second number referred to a four-acre parcel (the subject property). The SDAT’s division of the Original Tract did not, however, include any legal descriptions of the properties’ boundaries.

In 1997, the taxes on both accounts were in arrears. Consequently, the two properties were sold at a tax sale on May 12, 1997. Frederick Deinlein purchased the certificate of tax sale for the subject property for $1,192.

On May 4, 1999, approximately two years after the tax sale, Deinlein filed a complaint to foreclose the right of redemption. While the action to foreclose the right of redemption was pending, the Original Tract was conveyed by Trustee’s Deed to Johnson on September 22, 2000.

On August 13, 2002, the court entered an order foreclosing the right of redemption regarding the subject property. Deinlein received a deed to the subject property on August 12, 2004, which was recorded September 9, 2004. The following year, Johnson redeemed the 3.8-acre property.

On October 10, 2007, Deinlein filed a complaint to quiet title in the subject property. In his suit, Deinlein asked the court to appoint a surveyor to determine and describe the location of the subject property, assess the costs thereof, and quiet title to the parcel in his name.

On October 23, 2008, Johnson filed a motion to vacate the judgment foreclosing Johnson’s right of redemption on the subject property, asserting that the court lacked subject matter jurisdiction to foreclose the right of redemption under TP §14-845(a) because the subject property lacked a legal description by metes and bounds. The circuit court vacated the order and reinstated the August 13, 2002 foreclosure order.

On May 6, 2010, the court voided the tax sale and vacated the order foreclosing the right of redemption. The court also ordered Prince George’s County to refund to Deinlein certain taxes and costs he paid concerning the sale.

Deinlein filed a motion for payment of extraordinary legal fees and costs or, in the alternative, for other relief. The circuit court denied the motion.

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

LAW: Tax sales are governed under TP §§14-808 through 14-854, and serve as a mechanism for local governments to collect unpaid property taxes. Scheve v. Shudder, Inc., 328 Md. 363, 369 (1992).

A tax sale proceeds according to a general outline: “[T]he tax collector for a county sells property on which real estate taxes are in arrears. § 14-808. The purchaser receives a certificate of sale. § 14-820. The purchaser must file a complaint to foreclose the owner’s right of redemption during a period beginning six months after the sale and ending two years after the sale. § 14-833. Until a final order of foreclosure, the owner retains the right to redeem. § 14-827. The amount to be paid to the collector on redemption is provided by § 14-828, while the amount to be reimbursed to the purchaser is governed by § 14-843.” Dawson v. Prince George’s County, 324 Md. 481, 485 (1991).

Once the right of redemption has been foreclosed, the purchaser holding the certificate of sale receives a deed from the local government conveying fee simple title to the property. TP §14-844.

Under TP §14-843, “[i]f an action to foreclose the right of redemption has been filed, the plaintiff or holder of a certificate of sale may be reimbursed for: … in exceptional circumstances, other reasonable attorney’s fees incurred and specifically requested by the plaintiff or holder of a certificate of sale and approved by the court, on a case by case basis.” TP §14-843(a)(ii)(4).

The Maryland General Assembly amended the Tax-Property Article in 2008 and adopted the above-quoted language. The 2008 Amendments became effective on the date of enactment, April 24, 2008. Section 2 of the 2008 Amendments specifically stated that the amendments shall apply only prospectively and shall not apply to any tax sale held before the effective date of the amendments.

Deinlein purchased the certificate of tax sale to the subject property on May 12, 1997. He filed a subsequent complaint to foreclose the equity of redemption in 1999, and initiated this quiet title action in 2007. These events all occurred prior to the enactment of the 2008 Amendments. Therefore, TP §14-843(a)(4)(ii) did not apply.

In addition, “redemption is a condition precedent to the obligation to pay the statutory attorney’s fees” enumerated under TP §14-843(a). Heartwood 88, Inc. v. Montgomery County, 156 Md.App. 333 (2004).

Here, there was no redemption of the subject property. Deinlein attempted to extinguish Johnson’s right of redemption in the subject property as early as 1999, when he filed a complaint to foreclose the equity of redemption. Deinlein succeeded, albeit temporarily, in August 13, 2002, nearly seven years before the court vacated its order foreclosing Johnson’s right of redemption concerning the subject property. Thus, Deinlein was not entitled to recover extraordinary attorney’s fees under TP §14-843.

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: Deinlein argued, in the alternative, that the circuit court should have granted his request for extraordinary attorney’s fees under TP §14-848, which governs repayment of expenses following a judgment to void and set aside a tax sale.

TP §14-848 applies only where a right of redemption exists and an action to foreclose the right has been filed. Howard County v. Heartwood 88, LLC, 178 Md.App. 491, 497 (2008). TP §14-848 “cannot cover a tax sale that is void from its inception due to an error in assessing any tax to begin with or due to there not being any tax arrearage for which to sell the property.” Id. at 502.

TP §14-848 provides that if a tax sale is declared void, the collector shall repay the holder of the certificate of sale certain costs and “all expenses properly incurred in accordance with this subtitle.”

Unlike TP §14-843, which contemplates payment of additional attorney’s fees in “exceptional circumstances,” redemption is not a condition precedent to reimbursement once a tax sale has been set aside judicially. Rather, upon entry of a judgment declaring the tax sale void, TP §14-848 requires the tax collector, among other things, to repay the tax certificate holder as specified under the statute. Id. at 501. Nevertheless, the reimbursement of certain expenses under TP §14-848 is necessarily related to TP §14-843.

Qualifying expenses incurred within the meaning of TP §14-848 are governed by TP §14-843. Montgomery, 156 Md.App. at 352. Since Montgomery, the legislature amended TP §14-843(a) to include a provision permitting claims for extraordinary attorney’s fees arising from, or in preparation for, an action to foreclose the right of redemption. Critically, reimbursement of such fees is confined to TP §14-843(a)(4)(ii) as “a holder of a certificate of sale is not entitled to be reimbursed for any other expenses or attorney’s fees that are not included in [the] section.” TP §14-843(a)(2).

Deinlein’s extraordinary fees were related to a tax sale that took place prior to the provision’s effective date, and there has been no redemption of the subject property to trigger repayment of the expenses incurred.

Thus, Deinlein was not entitled to exceptional relief under TP §14-848.

PRACTICE TIPS: A property owner seeking to challenge the foreclosure of the equity of redemption must first redeem or pay “the taxes and other relevant charges acknowledged to be due, either prior to the challenge or simultaneously with it.” Canaj, Inc. v. Baker & Div. Phase III, 391 Md. 374, 396 (2006).

Workers’ Compensation

Course of employment

BOTTOM LINE: The third-party assault that caused plaintiff’s injuries, which occurred while plaintiff was going home from work, was not directed at claimant in the course of his employment, and therefore did not constitute compensable accidental injuries within the meaning of the Workers’ Compensation Act.
CASE: Doe v. Buccini Pollin Group, Inc., No. 812, Sept. Term, 2010 (filed Oct. 3, 2011) (Judges Eyler, J. & DAVIS (retired, specially assigned)) (Judge Meredith, dissenting). RecordFax No. 11-1003-00, 34 pages.

FACTS: John Doe worked as a banquet houseman at the BWI Hilton Hotel. On the day in question, Doe had stocked a supply cart. After Doe took a break, he returned to find the cart missing. He then sought to retrieve the cart from Keya Gardner. Gardner refused to allow Doe to take the cart and, while he was taking the cart, Doe’s hand touched Gardner’s hand. Gardner then became enraged.

Gardner, still in a rage, used her cell phone to call a friend, Darryl Newsome. She told him that “[appellant] touched my hand and you should come get your thing and take care of him.”

Apparently in response to the argument between Doe and Gardner, Doe’s supervisor told Doe that, since his shift was just about over, he should clock out and go home. At about 9:38 p.m., signed out to go home. He offered a ride to a Mr. Wees, who lived in Baltimore. As they left the hotel lot, Doe saw Darryl Newsome. Gardner left the hotel lot in a separate vehicle.

Doe stopped in a dark alley behind Wees’ home, about thirteen miles from the hotel. Newsome arrived in his vehicle, pulled behind Doe’s car, emerged and shot Doe, rendering him a paraplegic.

Doe filed a claim for workers’ compensation benefits under Maryland Workers’ Compensation Act, LE §9-101 (the Act). The Workers’ Compensation Commission (Commission) awarded Doe temporary total disability benefits and associated medical expenses. The Commission denied the employer’s motion for rehearing 9 and the employer filed a petition for judicial review in the circuit court. See LE §9-737.

The circuit court reversed the Commission’s decision awarding benefits and this appeal followed. In overturning the Commission’s award, the circuit court determined that Doe’s injuries were not covered by the Act.

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

LAW: The “purpose of the Workers’ Compensation Act … is to ‘provide employees with compensation for loss of earning capacity, regardless of fault, resulting from accidental injury … occurring in the course of employment.’” Sanchez v. Potomac Abatement, Inc., 417 Md. 76, 82 n. 4 (2010) (quoting DeBusk v. Johns Hopkins Hospital, 342 Md. 432, 437 (1996)).

Because the “Act is essentially social legislation[,]” its “provisions thereof are to be liberally construed. It must be interpreted to effectuate its general purpose and not strictly construed.” Bethlehem-Fairfield Shipyard, Inc. v. Rosenthal, 185 Md. 416, 425 (1945).

The Act defines the term “accidental injury” at LE §9-101(b). In general, benefits are awardable to a covered employee who establishes by a preponderance of the evidence two elements of entitlement, that the claimant suffered an injury that both “arose out of” and occurred “in the course of” his or her employment. LE §9-101(b)(1). To satisfy the “arises out of” element, a claimant must establish that the injury “results from some obligation, condition, or incident of employment.” See Livering v. Richardson’s Restaurant, 374 Md. 566, 574 (2003). “Maryland has adopted the positional-risk test to determine whether an injury arose out of employment.” Id. at 575.

“An injury arises out of the employment if it would not have occurred but for the fact that the conditions and obligations of the employment placed claimant in the position where he was injured. LARSON & LARSON, WORKERS’ COMPENSATION LAW §3.05 at 3-6 (2011).

As to the second element in the definition set forth in LE §9-101(b)(1), the “‘course of employment’ test directs our attention to the time, place, and circumstances of the accident in relation to the employment.” Montgomery County v. Wade, 345 Md. 1, 9 (1997).

Doe’s injuries do not qualify as an “accidental injury” as defined in LE §9-101(b)(1) because his injury did not arise out of his employment. Although Doe suffered from his association with Gardner, the “causative danger” was not “incidental to the nature of his work” and was independent of his employment relationship. See Dep’t of Corr. v. Harris, 232 Md. 180, 183-84 (1963).

Although Doe could not prevail on a claim for an accidental injury as that term is defined in LE §9-101(b)(1), the issue became whether his injury constituted an “accidental injury” within the definition of LE §9-101(b)(2). A claim based on the intentional or negligent act of a third person that results in an injury is properly considered in light of the definition of “accidental injury” as set forth in LE §9-101(b)(2).

The Legislature relieved claimants, who had been injured by an intentional or negligent act of a third party, of the difficult burden of demonstrating the direct causative nexus between a sudden irrational act of a third party and the claimant’s employment.”

Accordingly, in the case of an injury inflicted by a third party, the Act provides that a claimant need only demonstrate that the willful act of that party was directed at the claimant “in the course of the employment.”

In Giant Food, Inc. v. Gooch, 245 Md. 160, 165 (1967), the claimant, a parking lot attendant for Giant Food Stores, was shot and wounded in the parking lot of his store shortly before he was to begin work. The Court of Appeals rejected the claim that Gooch was not entitled to an award, and concluded that a claimant who is injured as the result of the willful or negligent act of a third person need not establish that the injury “arose out of” his employment, but only that it be demonstrated that the injury occurred “in the course of” the employment. Id.

In See Edgewood Nursing Home v. Maxwell, 282 Md. 422 (1978), the employee was shot by her estranged paramour while she was at work. The employer challenged the compensation award made to her dependent on a number of grounds. The Court of Appeals rejected the employer’s challenge and concluded that the injury was compensable: “The injury is work-related in the sense that even though it arose for personal reasons not attributable to the working environment, it occurred within the course of employment on the employer’s premises at a time when the employee was obliged to be present and at work; in other words, the employee’s presence at the nursing home when the peril struck was a necessary part of her employment and the injury was inflicted in the course of that employment.” Id. at 430.

Here, Doe’s claim was precluded by operation of the “going and coming rule,” which takes a claimant’s injury out of the course of his or her employment. In general, injuries suffered by an employee traveling on the way to or from his place of employment are not compensable under the Act because they do not arise “out of and in the course of employment.” Bd. of County Comm’rs for Frederick County v. Vache, 349 Md. 526, 531 (1998).

This rule is subject to certain exceptions in the appropriate case. A single exception is relevant in this case: the “proximity” or “special hazard” exception.

“[T]he proximity rule has two components, both of which must be satisfied in order for the rule to apply. The first component is ‘the presence of a special hazard at the particular off-premises point.’ The second component ‘is the close association of the access route with the premises.’ With regard to the first component, we have described this special hazard as a ‘peculiar and abnormal exposure to a common peril beyond that to which the general public was subjected.’” Bd. of County Comm’rs for Frederick County v. Vache, 349 Md. 526, 538-39 (1998) (quoting Wiley Mfg. Co. v. Wilson, 280 Md. 200, 208 (1977)).

Doe was en route to his home when he was shot by Newsome. Thus, the time, place and circumstances of the injury in relation to his work indicated that the tragic wounds he suffered were not within the range of dangers associated with his employment, especially because Doe’s claim is subject to the “going and coming rule.”

Accordingly, Doe’s injury did not occur in the course of his employment and, therefore, he was not entitled to compensation for his injuries under the Act.

COMMENTARY: In “delayed injury” cases, the employee is assaulted some distance from the workplace, but the assault originated at the workplace or in the course of the claimant’s employment.

In Matter of Field v. Charmette Knitted Fabric Company, 156 N.E. 642 (N.Y.1927), the company general manager and superintendent, Mr. Field, discharged an employee, Magid, for performing unsatisfactory work. When Field ordered Magid off the premises, an argument followed. After intervention by other employees, Magid left. A few minutes later, Field went downstairs and out of the building. Magid was waiting and struck the latter in the face, causing Field to fall and suffer a fatal head injury.

The New York Court of Appeals upheld the award: “The rule is well settled that an employee, even after closing time, is in the course of employment until a suitable opportunity has been given to leave the place of work. Here, almost in the very act of putting his foot without the mill, the employee is confronted by a danger engendered by his work within. No reasonable opportunity had been offered the assaulted man to separate himself from the plant, its animosities and dangers. Continuity of cause has been so combined with contiguity in time and space that the quarrel from origin to ending must be taken to be one.” Matter of Field, 156 N.E. at 643.

In the majority of “delayed injury” cases, the nature of the employee’s work prompted the assailants to act. An assailant may have been a former criminal defendant, see Graybeal v. Supervisors of Montgomery County, 216 Va. 77, 216 S.E.2d 52 (Va.1975), a person who was discharged, someone who had been ejected from the claimant’s place of business, see Nat’l Union Fire Ins. Co. v. Britton, 187 F.Supp. 359 (D.D.C.1960), or a lunatic who felt aggrieved by actions taken in the employer’s name and for its purposes. See Travis Creek Fuel Co. v. Maggard, 293 S.W.2d 720 (Ky.1956). None of those situations was present here.

Doe also contended that Gardner was a workplace threat and that her presence constituted a hazard.

Injuries from assaults by a co-worker have been generally held to be compensable in the appropriate case. “If claimant is assaulted by a co-employee who becomes irresponsible because of insanity, the great majority of decisions hold that the injury arose out of the employment, and it is immaterial whether or not the employer had knowledge of the assailant’s condition or propensities.” LARSON, WORKERS’ COMPENSATION LAW §8.03[2][a] at 8-62. See Anderson v. The Sec. Bldg. Co., 123 A. 843, 844-845 (Conn.1924).

However, those cases involving demonstrably insane or delusional coworkers are distinguishable because the assaults largely took place near or at the place of the injured worker’s employment. See, e.g., Jennifer v. Dep’t of Pub. Safety & Corr. Servs., 176 Md.App. 211 (2007). Doe’s injuries occurred more than 13 miles from the workplace.

DISSENT: According to the dissent, given the remedial purpose of the Act, LE §9-101(b) includes within the scope of compensable accidental injuries the injury that occurred here. Under such circumstances, in the view of the dissent, there is such a clear nexus to the employment and the workplace that Doe’s injuries arose out of his employment, and were caused by a willful act of a third person directed against a covered employee in the course of the employment of the covered employee.

PRACTICE TIPS: Exceptions to the “going and coming rule” include: where the employer furnishes the employee free transportation to and from work, see Tavel v. Bechtel Corporation, 242 Md. 299, 304, (1966); where the employee is injured while traveling along or across a public road between two portions of the employer’s premises. Wiley Mfg., 280 Md. at 206; and where the employee is injured while traveling to or from work in performing a special mission or errand for the employer. Reisinger-Siehler Co. v. Perry, 165 Md. 191, 199 (1933).