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Opinions – Maryland Court of Appeals: 12/5/11

Criminal Procedure

Due Process

BOTTOM LINE: A defendant has the right to wait until all the evidence has been presented before deciding whether to testify, and the trial court’s demand to the contrary was error; however, it was harmless error in this case.

CASE: Stoddard v. State, No. 105, Sept. Term, 2010 (filed Nov. 3, 2011) (Judges Bell, Harrell, Battaglia, Greene, Eldridge (retired, specially assigned), Rodowsky (retired, specially assigned) & RAKER (retired, specially assigned)). RecordFax No. 11-1103-20, 29 pages.

FACTS: Erik Stoddard was charged with murder and child abuse resulting in death, with regard to the death of 3-year-old Calen DiRubbo on June 15, 2002. At the time of Calen’s death, Stoddard was the boyfriend of Calen’s mother, Cheryl DiRubbo, and had lived with them for several months. On the day that Calen died, Stoddard was the only adult watching her for much of the morning and parts of the afternoon.

Shortly after Calen’s death, Cheryl DiRubbo, under intense questioning, gave a statement to the police that implicated Stoddard. She indicated, among other things, that Stoddard had physically abused both her and Calen, and that she had spoken with Stoddard on the phone around noon on the day of Calen’s death, while Calen was still in his exclusive care, and that he had told her then that Calen had just vomited. At Stoddard’s subsequent criminal trial, however, Cheryl DiRubbo recanted this statement, testifying that she had lied to the police and that the police had pressured her into implicating Stoddard.

Prior to trial, the parties had anticipated that the case would be completed before Wednesday, April 23, 2008, which was the first day of a three-day judicial conference that the trial judge was scheduled to attend. On the afternoon of Tuesday, April 22, it became clear that the trial would run longer than expected, and the judge told the parties that she planned to adjourn proceedings until Monday, April 28. Defense counsel attempted to convince the court that the defense could finish presenting its case on Wednesday morning, stating that he had only four more witnesses to call, including an expert witness, Dr. Mihalakis. Defense counsel further stated that one of the witnesses, Stoddard himself, would probably take approximately two and a half hours to testify. The State suggested that they could “knock out the long witness” that evening, and hear testimony by the expert and the two brief witnesses the next day.

However, when the trial judge was adamant that that the court could not sit on Wednesday, April 23, defense counsel requested that the trial be continued until Wednesday April 30. The State objected and argued that testimony should resume on Monday April 28. Over the State’s objection, the circuit court agreed to hear the defense’s remaining witnesses that evening and adjourn until Wednesday April 30 when Dr. Mihalakis would testify. The defense’s two “brief” witnesses testified that evening, but took a longer than expected. At that point, Stoddard and both counsel approached the bench.

Defense counsel informed the judge that he did not have any more civilian witnesses to call, and that he would prefer to call his one remaining witness, who would probably take about two and a half hours to testify, on Wednesday, so as to avoid a break in the testimony. The court acquiesced, and asked whether the witness was present in the courtroom.

Defense counsel informed the court the witness was Stoddard himself, and the court instructed counsel to advise Stoddard on the record regarding his right not to testify, which defense counsel did. Stoddard stated that he understood. Then, defense counsel told the court that he had discussed the matter with his client and that Stoddard had, at that point in time, elected not to testify, but that Stoddard would reserve the right to take the witness stand before the close of the defense case.

The trial judge told defense counsel, “There’s no reservation. He will testify now or he will not testify.” After conferring with Stoddard, defense counsel told the trial judge that Stoddard had asked him to convey to the court that if, if his choice was to either testify at that time or not testify at all, he would testify now, but that he would be doing so over objection.

Defense counsel then called Stoddard as a witness, and at the close of direct examination, the court instructed the jury to return the following week. Upon returning on Wednesday, April 30, the jury heard the State’s cross-examination and defense counsel’s redirect examination of Stoddard, as well the testimony of the defense’s medical expert. The jury convicted Stoddard of second-degree murder and child abuse resulting in death. Stoddard appealed to the Court of Special Appeals, which affirmed the conviction. Stoddard then appealed to the Court of Appeals, which reversed and remanded.

On remand, Stoddard was convicted after a jury trial of child abuse resulting in the death of a child and manslaughter. He appealed to the Court of Special Appeals, which affirmed.

Stoddard appealed to the Court of Appeals, which affirmed the conviction.

LAW: The first issue was whether the trial court erred in requiring the Stoddard either to testify prior to the completion of the defense case or to forfeit the right to testify. Stoddard argued that the trial court’s requiring him to testify, if at all, prior to the last defense witness violated due process and the prohibition of compelled self-incrimination guaranteed by the United States Constitution, the Maryland constitution, and common law.

In Brooks v. Tennessee, the Supreme Court struck down a Tennessee statute that required a defendant wishing to testify in his own behalf to be the first witness called by the defense. Brooks v. Tennessee, 406 U.S. 605 (1972). The court held that this requirement violated a defendant’s right to effective assistance of counsel and to due process because it limited counsel’s ability to evaluate the need for such testimony. The Supreme Court explained the implication of this constitutional interest, noting that whether the defendant is to testify is an important tactical decision as well as a matter of constitutional right, and noted that by requiring the accused and his lawyer to make that choice without an opportunity to evaluate the actual worth of their evidence, the statute improperly restricted the defense (particularly counsel) in the planning of its case.

As such, the Brooks Court held, the accused and his counsel may not be restricted in deciding whether, and when in the course of presenting his defense, the accused should take the stand. Brooks v. Tennessee, 406 U.S. at 612-13. In the decades since the Brooks ruling, numerous courts have interpreted the language in Brooks to provide a wide scope of the protection and analyzed the circumstances before them to determine, first, if a Brooks violation occurred and, second, whether that violation was prejudicial or harmless error. See, e.g., United States v. Rantz, 862 F.2d 808, 812 (10th Cir.1988). Here, the Court of Appeals found this approach to be a more reasonable and faithful interpretation and application of the Brooks holding, and adopted it.

When Stoddard’s counsel requested that the trial adjourn early to avoid interrupting Stoddard’s testimony by the break in the trial, it was wholly within the trial court’s discretion to deny this request. However, once Stoddard declared that he had not yet made a final decision whether to testify and wanted to see the final defense witness prior to making this decision, the situation changed. The trial court’s refusal to accommodate the request for a delay based upon the rationale given by the court violated Brooks. The language in Brooks giving the defendant and defense counsel the prerogative to choose when in the course of presenting the defense the defendant will testify could hardly be clearer. Although the trial court does have broad discretion in scheduling trials and the order of proof, and preventing delay is an important goal, this discretion and goal must bow to constitutional limitations. See id. at 611.

Violations of Brooks are subject to harmless error analysis. In this case, although the trial court erred in requiring Stoddard to make his election to testify prior to the end of the defense case, there was nothing in the record to suggest that anything in the final witness’s testimony would have altered Stoddard’s decision to testify or that the content of Stoddard’s testimony would have been different.

The trial court’s erroneous order denying Stoddard the right to testify last neither compelled Stoddard to testify nor undermined the efficacy of his testimony. As such, Stoddard was not prejudiced by the trial court’s error, and the error, therefore, was harmless.

Accordingly, the judgment of the Court of Special Appeals was affirmed.

COMMENTARY: The Court of Appeals also considered whether the trial court erred in admitting evidence of prior bad acts and a question implying that Stoddard posed a threat to another child. Stoddard’s objections related specifically to the court’s admission of the testimony of witnesses Nick Dieter, Cheryl DiRubbo, and a question asked by the State of Cheryl DiRubbo.

Deiter’s testimony was admitted properly to rehabilitate the witness, not to show other crimes, wrongs or acts of Stoddard. Therefore, the trial court did not err in admitting the testimony. Stoddard next argued that his objection to the admission of Cheryl DiRubbo’s statements should have been sustained because these statements constituted inadmissible “other crimes” evidence. However, this evidence was also admitted properly, as extrinsic impeaching evidence under Rule 5–616(b). Finally, the State played a portion of Cheryl DiRubbo’s testimony recanting her prior statements, in which she explained her belief that, if someone testified against Stoddard, Stoddard would find and hurt the person or his family. The State then asked, “And you sure wouldn’t want anything to happen to [your son], would you?” Stoddard argued that his objection to this question should have been sustained on the basis that it suggested Stoddard was a threat to Cheryl’s son.

However, considered in context, the State’s question was an extension of the State’s proper impeachment of the witness’s recantation of her statement. In the same way that the State was pointing out Cheryl’s motive to testify falsely because she had stated that she believed Stoddard would harm the loved ones of anybody who testified against him, the State also sought, through the question at issue, to demonstrate that this motive could be very strong and this fear very real for the witness because of her concern for her son. Thus, this question was not improper, and the trial court did not err in allowing it.

PRACTICE TIPS: Errors that are “trial errors,” as opposed to “structural errors,” are ordinarily subject to harmless error analysis. A trial error is an error which occurred during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless. A structural error is an error that affects the framework within which the trial proceeds, rather than simply an error in the trial process itself.

Premises Liability

Slip-and-fall

BOTTOM LINE: In action filed by tenant, who slipped and fell on black ice on the sidewalk outside her apartment building, against landlord and management company, the questions of whether tenant voluntarily chose the more dangerous route from apartment building and whether tenant assumed the risk of slipping on black ice were questions of fact for the jury.

CASE: Thomas v. Panco Management of Maryland, LLC, No. 133, Sept. Term, 2010 (filed Oct. 31, 2011) (Judges Bell, Harrell, Battaglia, GREENE, Murphy, Adkins & Barbera). RecordFax No. 11-1031-20, 37 pages.

FACTS: Mary Thomas lived with her daughter and granddaughter in an apartment complex owned by Foxfire Associates Limited Partnership d/b/a Foxfire Apartments, and managed by Panco Management of Maryland, LLC. The primary means of egress from the apartment complex to the parking lot where Thomas kept her car was a central, covered flight of stairs, followed by four additional stairs that led to a sidewalk. There was also a separate, back exit from the central stairway that led to an unpaved, dirt area.

On Feb. 21, 2007, at approximately 8:30 a.m., Thomas left her apartment to go to work. Thomas walked down the steps of the primary exit and along the sidewalk to the parking lot, where she noticed patches of ice and snow. When she arrived at her vehicle, she had to hold onto it for support due to the surrounding conditions. When Thomas returned from work between 2:30 and 3:00 p.m., she noticed that the ice and snow had melted but that the sidewalks were wet. That evening, Thomas left her apartment again at approximately 6:00 p.m. to drop off her granddaughter at a youth group meeting. Thomas returned home at approximately 6:15 p.m.

When she arrived home, Thomas again noticed that the sidewalk in front of her apartment was wet, but she saw no sign of salt on the sidewalk or walkway. At approximately 8:00 p.m., Thomas left her apartment to pick up her granddaughter from the meeting. Thomas had just stepped down from the last step of the stairway onto the sidewalk when she slipped and fell on ice, which she could not see and did not know was on the stairway. After the fall, Thomas’s neighbor came outside to assist Thomas. As the neighbor stepped off of the last step onto the sidewalk she too slipped, but did not fall, on what she described as “black ice.” As a result of the incident, Thomas suffered a compound fracture in her right leg.

Thomas filed a negligence action in circuit court against Foxfire Associates Limited Partnership and Panco Management of Maryland, LLC. At the conclusion of Thomas’s presentation of her case, the defendants moved for judgment, asserting the defenses of contributory negligence and assumption of the risk. The trial judge denied the motion as to contributory negligence, but granted the motion for judgment on the basis that Thomas had assumed the risk of her injury as a matter of law. Thomas appealed to the Court of Special Appeals, which affirmed.

Thomas then appealed to the Court of Appeals, which reversed and remanded for trial.

LAW: In Maryland, in order to establish the defense of assumption of the risk, a defendant must establish that: (1) the plaintiff had knowledge of the risk of the danger; (2) the plaintiff appreciated that risk; and (3) the plaintiff voluntarily confronted the risk of danger. ADM P’ship, 348 Md. at 90–91. The question of whether the plaintiff had knowledge and appreciation of the particular risk at issue is ordinarily a question for the jury, unless the undisputed evidence and all permissible inferences therefrom clearly establish that the risk of danger was fully known to and understood by the plaintiff. Schroyer v. McNeal, 323 Md. 275, 283 (1991). Where it is clear, however, that a person of normal intelligence in the position of the plaintiff must have understood the danger, the issue is for the court. Id. at 283.

During the course of the trial in the instant case, the case Allen v. Marriott Worldwide Corp., 183 Md.App. 460, 961 A.2d 1141 (2008), was decided. In Allen, the Court of Special Appeals affirmed the trial judge’s grant of summary judgment in favor of the defendant, Marriott Corporation, on the ground that a guest, David Allen, assumed the risk of slipping and falling on black ice while walking across the parking lot from the hotel entrance to his wife’s car. Allen, 183 Md.App. at 462, 478–80. Both the trial court and the intermediate appellate court relied on Allen to conclude that Thomas had knowledge of the risk of slipping on ice as a matter of law.

However, Allen was subsequently disavowed by the Court of Appeals in Poole v. Coakley & Williams Constr., Inc., ––– Md. –––– (2011). Poole presented similar facts and legal questions to those in the instant case, the main issue for resolution being whether the plaintiff in that case knew of the risk of slipping and falling on black ice as a matter of law. Id. The Poole Court held that it was error for the trial court to rule, as a matter of law, that the plaintiff had knowledge of the risk. Specifically, the Poole Court stated that the doctrine of assumption of risk will not be applied as a matter of law unless the undisputed evidence and all permissible inferences therefrom clearly establish that the risk of danger was fully known to and understood by the plaintiff. Id. In order for a defendant to prevail on the basis that the plaintiff assumed the risk of his or her injuries as a matter of law, the defendant must show that the plaintiff knew that the risk was actually present, not merely that the plaintiff would, should, or could have known that the risk might be present. Id.; see also Kasten Constr. Co. v. Evans, 260 Md. 536, 544–45.

As the Poole court noted, the Allen Court’s formulation incorrectly diminished the requirement that a plaintiff actually and fully know and understand the risk he or she is confronting and proposes that a plaintiff may be judicially charged with knowledge in a circumstance where he or she should infer the existence of a dangerous condition. Maryland jurisprudence directs that courts may impute knowledge to the plaintiff, as a matter of law, only when there is undisputed evidence of awareness (e.g., physical interaction with or sensory perception of the dangerous condition), or where the risk of danger is so obvious that any person of normal intelligence will be taken to comprehend it. See Schroyer; see also Gibson.

Where there is a dispute as to whether the risk is assumed or not, that question is usually left to the jury, because the role of the fact finder is to assess the credibility of the evidence and to draw a conclusion from among the inferences which may be reasonably drawn from that evidence. Bull S.S. Lines, 196 Md. at 526; see also American Law of Torts, §12:53, at 433.

In this case, there was no dispute as to the underlying facts. It was clear that the sidewalk outside the apartment complex was wet, and Thomas observed it to be wet and knew it to be wet on the four other occasions that she had traversed it that day. Thomas saw no salt or any evidence of any salting, and was aware, as were all of her neighbors, that melting snow made the sidewalks wet; for this reason, they all took due care being cautious and looking for ice. Nonetheless, Thomas did attempt to traverse that wet area and fell.

Contrary to the trial judge’s ruling, however, the facts did not point only to the conclusion that Thomas assumed the risk of her injuries. See C & M Builders, 420 Md. at 29. Likewise, the permissible inferences from the undisputed evidence did not clearly establish that the risk of danger was fully known to and understood by the Thomas. Schroyer, 323 Md. at 283. Indeed, several of the facts relied upon by the trial court in granting the defendants judgment as a matter of law, such as the fact that Thomas did not see any maintenance activity or salt on the walkway, could lead just as easily to the inference that Thomas did not have knowledge of the “essentially invisible” ice. Allen, 183 Md.App. at 469–70.

Other facts, selectively disregarded by the court, further supported this position. For instance, the weather in the days leading up to the accident was warm and dry, there was a high temperature of 51 degrees on the day of the accident, and the temperature had just fallen below freezing in the hour before the accident occurred. Thomas had traversed the sidewalk previously that day without incident, and there was no visible accumulation or puddles of water on the walkway. Thomas’s neighbor testified that she did not see ice on the walkway in the vicinity of Thomas’s fall. Thomas also presented the testimony of a forensic architect, who testified that it was possible for there to be ice in a very thin layer on a concrete sidewalk “that will not appear slippery because it’s not thick enough to overcome the natural traction of a rough sidewalk.”

Because the evidence and reasonable evidentiary inferences, viewed in a light most favorable to the non-moving party, did not lead only to the conclusion that Thomas assumed the risk of her injuries, the question of whether Thomas assumed the risk of her injuries was a question of fact inappropriate for summary judgment.

Accordingly, the judgments of the trial court and Court of Special Appeals were vacated and the case remanded for trial.

COMMENTARY: Thomas also contended that the grant of the defendants’ motion for judgment was improper because she did not encounter the danger voluntarily, and thus did not assume the risk of her injuries. Relying on Rountree v. Lerner Dev. Co., Thomas argued that the defendants, by failing to provide her with a reasonably safe means of ingress to and egress from her apartment, constrained her freedom of choice and coerced her into encountering the risk of slipping on black ice. Rountree v. Lerner Dev. Co., 52 Md.App. 281 (1982).

In ADM P’ship, the Maryland Court of Appeals endorsed the principle relied upon by the intermediate appellate court in Rountree that, in order for the defense of assumption of the risk to apply, there can be no restriction on the plaintiff’s freedom of choice either by the existing circumstances or by coercion emanating from the defendant. Rountree is an example of a landlord-tenant situation in which the plaintiff may have acted under the compulsion of circumstances created by the tortious conduct of the defendant, and therefore the plaintiff could not be held to have assumed the risk of her injuries as a matter of law. ADM P’ship., 348 Md. at 93. Post-Rountree case law has not implicitly overruled Rountree, as suggested by the trial court and intermediate appellate court in this case. In the present case, the defendants did not demonstrate that Thomas had a reasonably safe alternative exit.

As such, the trial court erred in granting the defendants’ motion for judgment based, not on the existence of a safe alternative exit, but, instead, upon the existence of “alternatives” and its interpretation that Rountree was “not the law in Maryland any longer.”

PRACTICE TIPS: The overlap between assumption of risk and contributory negligence is a complete one where the plaintiff’s conduct in voluntarily encountering a known risk is itself unreasonable. However, the facts may warrant conflicting results under the theories; for example, a plaintiff who proceeds reasonably, and with caution, after voluntarily accepting a risk that is not unreasonable in itself, may not be contributorily negligent but may have assumed the risk.