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Opinions – 1/9/12: Maryland Court of Special Appeals

Civil Rights

Fair Housing Amendments Act

BOTTOM LINE: During mediation of dispute between disabled tenant and building management company, management company could not have violated Maryland Code, Article 49B §22(a)(9) by holding mediation meeting in a wheelchair-inaccessible location because tenant never made a request for reasonable accommodation for his wheelchair.

CASE: Wallace H. Campbell & Company, Inc. v. Maryland Commission on Human Relations, Nos. 291, 1310, Sept. Term, 2010 (filed Dec. 22, 2011) (Judges Meredith, HOTTEN & Rodowsky (Retired, Specially Assigned)). RecordFax No. 11-1222-02, 23 pages.

FACTS: Austin Scarlett lived in Greenhill Housing, a federally subsidized apartment complex in Baltimore City. He suffered from several maladies, including hypertension, depression, morbid obesity, and diabetes, the last of which necessitated the amputation of his left leg above the knee. As a result, Scarlett used a motorized wheelchair for mobility, and the facilities at Greenhill Housing were fully accessible to him.

Wallace H. Campbell & Company, Inc. managed Greenhill Housing, in addition to approximately 110 other apartment and condominium complexes. R. Bruce Campbell was the president, chair, and chief executive officer of the Campbell Company. Frank Stromyer was a vice president of the Campbell Company and local site manager of Greenhill Housing.

Scarlett had several conflicts with his neighbors in Greenhill Housing, including an 80-year old woman who lived directly above his apartment. Scarlett met with Stromyer on at least three occasions at Greenhill Housing to discuss Scarlett’s complaints. Scarlett eventually contacted the Baltimore City Community Relations Commission (“BCCRC”) to mediate and resolve the dispute between Scarlett and Greenhill Housing. BCCRC referred Scarlett’s case to Wanda Belle, who was a graduate student in negotiation and conflict management at the University of Baltimore and was interning at BCCRC as a volunteer mediator.

Scarlett told Belle that he preferred to conduct the mediation at Greenhill Housing because it was convenient for him. Belle sent a letter to Campbell, inviting him to mediate Scarlett’s complaints through BCCRC. Belle sent the letter to the Campbell Company’s original office, which was fully handicapped accessible. The Campbell Company advised that Stromyer, but not Campbell, would mediate with Scarlett, but Scarlett wanted only to mediate with Campbell.

As it happened, the new Campbell office was not wheelchair accessible. A Maryland Transit Administration Mobility van dropped Scarlett off at the Campbell building at around 5:30 p.m., and upon learning that the building was not wheelchair accessible, Scarlett had the driver drop him off and approached the steps to the building in his wheelchair. Campbell, his son, and Stromyer helped carry Scarlett, who weighed 335 pounds, and his 100-pound wheelchair, into the building.

The mediation was ultimately unsuccessful. After the meeting, Scarlett, unaware that there was a wheelchair-accessible restroom in the building, used a restroom that was not wheelchair-accessible. Scarlett had difficulty exiting the building, and was again assisted by Campbell and Stromyer. Scarlett did not complain about the means of entering and exiting the building, nor did he request special accommodations.

Based on events arising from the mediation, Scarlett filed a complaint with the Maryland Commission on Human Relations, alleging that the Campbell Company, in violation of Maryland Code, Article 49B §22(a)(9), discriminated against Scarlett by holding the mediation at a wheelchair-inaccessible location. The Commission ultimately ordered the Campbell Company to pay $7,500 in damages and $5,000 as a civil penalty. The Campbell Company filed in a petition for judicial review in circuit court.

On April 6, 2010, the circuit court affirmed the Commission’s final decision. On July 27, 2010, the circuit court granted the Commission’s petition for judicial enforcement and entered judgment against the Campbell Company for $7,500 in damages and $5,000 as a civil penalty. The Campbell Company appealed both circuit court decisions to the Court of Special Appeals, which ordered that the appeals be consolidated. The Court of Special Appeals held that Article 49B §22(a)(9)1 requires a request before there can be a refusal to provide a reasonable accommodation, and reversed the judgment of the circuit court and remanded the case.

LAW: Article 49B §22(a)(9) makes it unlawful to refuse to make reasonable accommodations in rules, policies, practices, or services when the accommodations may be necessary to afford an individual with a disability equal opportunity to use and enjoy a dwelling. In this case, the relevant analysis centered on the statutory interpretation of the word “refuse.”

The goal when undertaking to interpret a statute is to ascertain and effectuate the intention of the legislature. Johnson v. Mayor of Balt. City, 387 Md. 1, 11 (2005). To determine that purpose or policy, a court looks first to the language of the statute, giving it its natural and ordinary meaning. State Dept. of Assessments and Taxation v. Md.-Nat’l Capital Park & Planning Comm’n, 348 Md. 2, 13 (1997). When the statutory language is clear, a court need not look beyond the statutory language to determine the Legislature’s intent. Marriot Emp. Fed. Credit Union v. Motor Vehicle Admin., 346 Md. 437, 445 (1997). If, however, the statutory language is ambiguous, then a court will consider not only the literal or usual meaning of the words, but their meaning and effect in light of the setting, the objectives and purpose of enactment. FOP, Montgomery Cnty. Lodge No. 35 v. Mehrling, 343 Md. 155, 173-74 (1996).

Black’s Law Dictionary defines a “refusal” as the denial or rejection of something offered or demanded. Black’s Law Dictionary 1394 (9th ed.2009). Similarly, Merriam-Webster’s Collegiate Dictionary defines “refuse” as “to express oneself as unwilling to accept.” Merriam-Webster’s Collegiate Dictionary 1047 (11th ed.2005). Thus, the plain meaning of “refuse” apparently seems to require an underlying request.

Nevertheless, in its analysis, the Court determined to delve further into the statutory history and legislative intent behind Article 49B §22(a)(9). The legislature enacted Article 49B §22(a)(9) with the purpose of altering the laws prohibiting discriminatory housing practices to include the provisions of the federal Fair Housing Amendments Act of 1988, and to prohibit discriminatory housing practices in a manner substantially equivalent or similar to the federal Fair Housing Amendments Act of 1988 (“FHAA”). Chapter 571 of the 1991 Acts. Where the purpose and language of a federal statute are substantially the same as that of a later state statute, interpretations of the federal statute are ordinarily persuasive. Montgomery v. E. Corr. Inst., 377 Md. 615, 629 (2003).

Federal cases interpreting the FHAA are consistent in holding that to establish a prima facie case of failure to accommodate under the FHAA, a claimant must show that he is handicapped within the purview of 42 U.S.C. §3602(h), that the party charged knew or should reasonably have known of his handicap, and that he requested a particular accommodation that is both reasonable and necessary to allow him an equal opportunity to use and enjoy the housing in question. See, e.g., Astralis Condo. Ass’n v. Sec’y, United States Dept. of Hous. & Urban Dev., 620 F.3d 62, 67 (1st Cir.2010).

State appellate courts, interpreting their statutes that follow the FHAA, likewise concur that the claimant must make a request. See, e.g., Lucas v. Riverside Park Condos. Unit Owners Ass’n, 776 N.W.2d 801, 808 (N.D.2009). The District of Columbia Court of Appeals summarized the requirements for a FHA violation, stating that under the Fair Housing Act, a landlord is obligated to provide a reasonable accommodation to a tenant only if a request for the accommodation has been made. Douglas v. Kriegsfeld Corp., 884 A.2d 1109, 1129 (D.C.2005)). Moreover, a tenant who requests a “reasonable accommodation” should make clear to the landlord that he or she is requesting an exception, change, or adjustment to a rule, policy, practice, or service because of her disability, and should explain what type of accommodation is he or she is requesting. Id.

In the present case, the record reflected that Scarlett never asked the Campbell Company for any special accommodation. Neither Scarlett nor Belle requested a reasonable accommodation for Scarlett’s wheelchair prior to the meeting at the Campbell building. Scarlett did not request a special accommodation when he arrived at the Campbell building and saw the lack of a handicapped accessible entrance, and he did not ask whether there was a wheelchair-accessible restroom, even after Stromyer, who was unaware of the existence of a handicapped accessible restroom in the Campbell Building, showed Scarlett to an inaccessible one. Finally, Scarlett did not ask for an accommodation when he exited the Campbell building.

Thus, it was clear that no request for accommodation, in any form, was ever made by Scarlett. And, while the Commission contended that the Campbell Company’s mere knowledge of Scarlett’s handicap satisfied the requirements of the FHAA or the Maryland equivalent in Article 49B §22(a)(9), the Commission cited no case law to support this proposition. Therefore, given the lack of any underlying request for a reasonable accommodation, the Campbell Company could not have violated Article 49B §22(a)(9).

Accordingly, the circuit court judgment against the Campbell Company was reversed. The case was remanded to the circuit court with instructions to reverse the order of the Maryland Commission on Human Relations, and to remand the case to the Commission with instructions to dismiss the charges.

COMMENTARY: The Campbell Company also presented the question of whether the Campbell Company’s participation, as one of the two disputants, constituted a “practice” or “service” within the ambit of 49B §22(a)(9). However, as discussed, because there was never a request for reasonable accommodation made of the Campbell Company, there could have been no “refusal” in violation of Article 49B § 22(a)(9). Therefore, the Court of Special Appeals did not reach the Campbell Company’s second question.

PRACTICE TIPS: Congress enacted the Fair Housing Amendments Act in 1988 to add a prohibition against discrimination on the basis of disability in the federal Fair Housing Act, which originally barred discrimination in housing on the basis of race, color, religion, or national origin. Unlawful discrimination now includes a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.

Criminal Law


BOTTOM LINE: Court properly denied defendant’s motion to correct illegal sentence, in which defendant argued that merger of his separate, consecutive sentences for first-degree assault, false imprisonment, and unlawful taking of a motor vehicle was required under the double jeopardy clause, because each offense required proof of an element that the other offenses did not, and offenses were therefore separate offenses for double jeopardy purposes.

CASE: Pair v. State, No. 1396, Sept. Term, 2010 (filed Dec. 22, 2011) (Judges Eyler, J., Watts & MOYLAN (Retired, Specially Assigned)). RecordFax No. 11-1222-03, 33 pages.

FACTS: Following a jury trial in circuit court, Daniel Pair was convicted of first-degree assault, robbery, false imprisonment, and the unlawful taking of a motor vehicle. The victim of all of the crimes was Pair’s fiancée, Allison Gilbert. Pair was sentenced to a term of 25 years’ imprisonment for the first-degree assault, a consecutive term of 10 years’ imprisonment for the robbery, a consecutive term of 5 years’ imprisonment for the false imprisonment, and a concurrent term of 5 years’ imprisonment for the unlawful taking of a motor vehicle.

Pair appealed his convictions to the Court of Special Appeals, raising four separate contentions including the sufficiency of the evidence to support the convictions. One of the Pair’s other contentions was that the conviction for the unlawful taking of a motor vehicle should have merged into the conviction for robbery, because the motor vehicle was one of several items of property taken in the course of the robbery. The Court of Special Appeals agreed that the unlawful taking charge should have merged into the robbery conviction. In all other respects, however, the unpublished opinion by Judge Meredith affirmed the judgments of conviction.

Following the first appeal, Pair, filed in circuit court a motion to correct an illegal sentence pursuant to Maryland Rule of Procedure 4–345(a). The posited illegality was that three sentences had not been merged. The circuit court denied the motion. Pair appealed to the Court of Special Appeals, which affirmed the judgment of the circuit court denying Pair’s motion.

LAW: Pair was correct in noting that under the rule of lenity, the crimes of theft and robbery merge. See Spitzinger v. State, 340 Md. 114, 124–25 (1995). However, in his Rule 4–345(a) motion before the circuit court, Pair pushed for additional mergers. Specifically, Pair first contended that, under the prohibition against double jeopardy, his first-degree assault conviction merged into his robbery conviction.

A failure to merge a sentence is considered to be an “illegal sentence” within the contemplation of the rule. Britton v. State, –––Md.App. –––– (2011). The coverage of Rule 4–345, however, is not totally free of ambiguity. Rule 4–345’s exemption from the normal preservation requirements and the normal filing deadline is based upon the premise that the inherent “illegality” of the sentence enjoys open-ended and timeless review. Thus, when the trial court is required to merge convictions for sentencing purposes but, instead, imposes a separate sentence for each unmerged conviction, it commits reversible error. Britton v. State, –––Md.App. at ––––.

The present case involved not one merger issue but with three distinct merger issues. When a sentencing judge fails to merge multiple convictions for the “same offense” pursuant to the required evidence test of Blockburger v. United States, the unmerged sentence is unconstitutional, as a matter of law. Blockburger v. United States, 284 U.S. 299, 304 (1932). That constitutes an “illegal sentence” within the contemplation of Rule 4–345(a). When a sentencing judge imposes multiple sentences where it is established, as a matter of law, that the Legislature intended that multiple sentences not be imposed, that legislatively prohibited sentence is also an “illegal sentence” within the contemplation of Rule 4–345(a). A violation of the Double Jeopardy Clause is a matter that is decided as a matter of law.

Assault is a protean crime, and is frequently is a significant and autonomous crime in its own right. In the present case, the first-degree assault charge was the flagship count of the entire prosecution. The first-degree assault charge, for instance, carried the greatest maximum penalty of the three crimes of which Pair was convicted, and it was for the first-degree assault that the circuit court judge imposed the harshest penalty. Assault, on the other hand, can sometimes be simply nothing more than a constituent element in a crime such as robbery.

The question of whether a particular crime, such as the first-degree assault in the present case, is the centerpiece of the prosecution or a mere incident of some other crime is intensely fact-specific. There is no automatic or mechanistic answer as a matter of law. The answer, rather, depends upon the particular facts and circumstances of each individual case and can readily go in either direction. See, e.g., Lamb v. State, 93 Md.App. 422 (1992). The issue in Lamb was whether the conviction for assault merged into the conviction for false imprisonment.

Assault is one of the elements of false imprisonment. An assault that serves that instrumental function and nothing more is, therefore, a lesser included offense within the greater inclusive offense of false imprisonment; the two are the “same offense.” In the Lamb case, however, the assault did not serve that merely ancillary function; it did a great deal more. In Lamb, as in the present case, it was, indeed, the flagship or centerpiece of the entire prosecution. As the Lamb court noted, the assault was no mere instrumentality in bringing about an unlawful confinement; it was rather the case that the false imprisonment was a mere incident of it. Lamb v. State, 93 Md.App. at 473–74. Similarly, under certain circumstances, a particular assault might be nothing more than a lesser included offense with the greater inclusive offense of kidnapping. However, in certain cases, assault may have an autonomous and non-merging status of its own. See Hunt v. State, 12 Md.App. 286, 310 (1971).

Thus, in the present case, it was critical to determine whether the assault was a mere incident of robbery or whether it had a life and an energizing purpose of its own, and the circuit court judge’s opinion reflected the heavily fact-specific nature of this analysis. As clearly indicated by the lurid facts and details of the incident involving Pair and Allison Gilbert, the dominant criminal offense perpetrated on Allison Gilbert by Pair and his accomplice was a vicious and sadistic assault (actually, a continuing series of varied assaults) over a period of almost three hours. It was an assault, moreover, aggravated for sentencing purposes up to the first degree.

One of the twin evils traditionally guarded against by the prohibition against double jeopardy, pursuant to either the Double Jeopardy Clause of the federal Fifth Amendment or to the common law of Maryland, is that of multiple punishment for the “same offense.” The necessary inquiry is that of whether separate punishments are being imposed for the “same offense. The required evidence test focuses on the elements of each crime in an effort to determine whether all the elements of one crime are necessarily in evidence to support a finding of the other, such that the first is subsumed as a lesser included offense of the second. Monoker v. State, 321 Md. 214, 219–20 (1990).

Required evidence is that which is minimally necessary to secure a conviction for each offense. If each offense requires proof of a fact which the other does not, or in other words, if each offense contains an element which the other does not, the offenses are not the same for double jeopardy purposes, even though arising from the same conduct or episode. But, where only one offense requires proof of an additional fact, so that all elements of one offense are present in the other, the offenses are deemed to be the same for double jeopardy purposes. Id.

Thus, here, what was dispositive of the double jeopardy inquiry was that the crimes for which Pair was sentenced in this case (first-degree assault, robbery, and false imprisonment) were not the “same offense.” First-degree assault requires the infliction or attempted infliction of serious bodily injury, while the other two crimes do not. Robbery requires the theft of property, while the other two crimes do not. False imprisonment requires the actual detention of the victim, while the other two crimes do not. As such, in this case, no merger was required by virtue of double jeopardy law.

Accordingly, the circuit court judgment denying Pair’s motion to correct an illegal sentence was affirmed.

COMMENTARY: Next, the Court addressed the question of whether merger of the sentences was required under the rule of lenity. Merger based on the rule of lenity is a different creature entirely from merger under double jeopardy law. Even when the merger of sentences is not compelled by the “required evidence” test, it may nonetheless be compelled by the rule of lenity. See State v. Jenkins, 307 Md. 501, 518 (1986). Thus, even though offenses may be separate and distinct under the required evidence test, courts occasionally find as a matter of statutory interpretation that the Legislature did not intend, under the circumstances involved, that a person could be convicted of two particular offenses growing out of the same act or transaction. Brooks v. State, 284 Md. 416, 419–23 (1979).

However, the rule of lenity has very limited utility. Monoker v. State, 321 Md. at 223. Specifically, the rule of lenity was formulated as an aid to statutory construction. As such, the rule applies only to statutory offenses, and has never been applied to common-law crimes. Id. The rule of lenity is, from start to finish, a rule of statutory construction.

For this reason, in the present case, the rule of lenity clearly did not apply. Robbery, false imprisonment and assault (whatever its degree) are common-law crimes, not offenses created by the Maryland General Assembly. Phenious v. State, 11 Md.App. 385, 391 (1971). With respect to the three common law crimes before us in this case, there were no statutes to construe, and the rule of lenity was not remotely pertinent, and certainly did not require the merger of Pair’s sentences for the common-law crimes of which he was convicted.

PRACTICE TIPS: Under both federal double jeopardy principles and Maryland merger law, the test for determining the identity of offenses is the “required evidence test,” which holds that if each offense requires proof of a fact which the other does not, the offenses are not the same and do not merge. Maryland courts have specifically rejected the “actual evidence” test, which holds that charged offenses should merge if the evidence actually produced at trial on both offenses is substantially the same.

Criminal Procedure

Voir dire

BOTTOM LINE: In defendant’s criminal trial, where trial judge advised attorneys that they could ask individual questions of jurors and permitted individual questioning of jurors, and defendant failed to ask additional questions of a particular member of jury panel, failed to object in any manner to the court’s alleged oversight in not asking the member additional follow-up questions, and agreed that the subsequently empanelled juror was acceptable to the defense, defendant failed to preserve issue of juror’s empanelment for appellate review.

CASE: Alford v. State, No. 2459, Sept. Term, 2010 (filed Dec. 22, 2011) (Judges Meredith, Graeff, & WATTS). RecordFax No. 11-1222-04, 37 pages.

FACTS: Melvin Alford was arrested and charged with various crimes related to the armed robbery of a Rite Aid store, which occurred in January of 2009. At his criminal trial, Alford testified in his own defense and denied that he robbed the Rite Aid. Prior to the jury selection process, the trial judge advised the attorneys that, once the judge completed his exhaustive list of questions, he would continue to ask the attorneys if they had additional questions for the jurors.

During jury selection, the judge asked the jurors as a group a number of questions, including whether any member of the jury panel had ever been connected with a law enforcement agency. The judge also asked whether any member of the jury panel had ever been the victim of a crime, accused of a crime, convicted of a crime, or had charges pending. Juror 753 responded affirmatively (by standing) to both questions. Juror 753 was not asked individual or follow-up questions regarding either question. During the juror selection process, when the courtroom clerk asked whether Juror 753 was acceptable to the State and defense, both attorneys responded, “Acceptable.” Juror 753 was empaneled as Juror Number Four.

After jury selection, but prior to opening statements, Alford sought to discharge his counsel. After the trial judge questioned Alford and Alford’s attorney to determine whether Alford was capable of representing himself and whether his attorney was capable of zealously representing Alford despite any tension in their attorney-client relationship, Alford remained represented by his attorney, but told the trial judge that he wished to preserve for appeal the issue of his objection to being represented by his attorney.

At the conclusion of trial, the jury convicted Alford of robbery with a dangerous weapon, two counts of first-degree assault, two counts of second-degree assault, two counts of using a handgun in the commission of a crime of violence or a felony, two counts of false imprisonment, theft over $500, and possession of a regulated firearm.

Alford appealed to the Court of Special Appeals, which affirmed the convictions.

LAW: On appeal to the Court of Special Appeals, Alford first contended that that the trial court erred and defense counsel rendered ineffective assistance of counsel in failing to ask follow-up questions of Juror 753, who responded affirmatively to voir dire questions that would have demonstrated bias or would have disqualified the juror from serving.

A criminal defendant has the right to trial by an impartial jury. U.S. Const. amend. VI, XIV; Owens v. State, 399 Md. 388, 405 (2007). Voir dire is the means by which to “identify and challenge unqualified jurors.” Owens, 399 Md. at 402. The purpose of voir dire is to ensure and secure a defendant’s right to a fair and impartial trial by permitting the selection of a jury comprised of venirepersons who do not hold preconceived notions or biases that would affect the outcome of the trial. Moore v. State, 412 Md. 635, 664 (2010). Bias is a question of fact, the existence of which is a matter left to the trial judge, the focal point in the process, whose predominant function in determining juror bias involves credibility findings whose basis cannot be discerned from an appellate record. Williams v. State, 394 Md. 98, 113 (2006). Prospective jurors are presumed to be unbiased, and the challenging party has the burden of proof to overcome that presumption. Hunt v. State, 345 Md. 122, 146 (1997). If a criminal defendant undertakes to challenge a juror on grounds of bias, the attack must be affirmatively advanced at the time of trial. Id. at 146.

In this case, Alford failed to preserve for appellate review an issue as to the selection of Juror 753, who was empanelled as the fourth juror. Juror 753 answered two voir dire questions affirmatively but was not asked follow-up questions by the trial judge or Alford’s counsel. The record reflected that after responding affirmatively to general voir dire questions, certain jurors were called to the bench for individual or follow-up questions, but Juror 753 was not among the jurors called to the bench. Alford’s counsel failed to object to the fact that Juror 753 not being called for individual questioning. And, after the individual questioning was completed, counsel for both parties accepted Juror 753 without objection upon request from the courtroom clerk to empanel the juror. Given that Alford failed to object that no individual questions were asked of Juror 753, failed to request that such questions be asked, and affirmatively accepted Juror 753 for empanelling on the jury, Alford waived appellate review of this issue.

Nonetheless, the Court of Special Appeals briefly addressed Alford’s argument that the circuit court erred in failing to ask, sua sponte, follow-up questions of Juror 753.

In Dingle v. State, the Maryland Court of Appeals held that the trial court erred in asking two-part voir dire questions in which the court first asked the jury panel whether any juror had had experiences, such as having been a victim of a crime, or associations, such as being associated with police officers, and, second, whether these experiences or associations would affect the juror’s ability to be a fair and impartial juror. Dingle v. State, 361 Md. 1, 3-4 (2000). The Court of Appeals held that the voir dire procedure usurped the court’s responsibility to ascertain the existence of cause for disqualification because the procedure allowed the individual venire person to decide his or her ability to be fair and impartial. Id. at 9-10, 21. Specifically, the Dingle Court stated that the trial judge is charged with impaneling of the jury and must determine, in the final analysis, the fitness of the individual venire persons. Id. at 8.

In the present case, however, the trial judge did not employ the compound question format used in Dingle. Instead, the trial judge specifically asked jurors to stand if they had had certain associations or experiences. Prior to beginning the selection process, the trial judge advised the attorneys that they could ask individual questions of the jurors, and the judge permitted individual questioning of jurors. The judge provided the opportunity for Alford to ask individual questions of Juror 753, to explore the juror’s qualifications and potential bias, and to challenge the juror.

Therefore, Dingle was obviously distinguishable, and there was no merit in Alford’s contention that the circuit court had an obligation to sua sponte question Juror 753 under the circumstances in this case. More importantly, Alford failed to object in any manner to the court’s alleged oversight in not questioning the juror, agreed that Juror Number Four was acceptable to the defense, and failed to preserve the issue for appellate review.

Alford’s related argument that, in failing to ask follow-up questions of Juror 753, defense counsel rendered ineffective assistance of counsel, was likewise without merit. In Maryland, a defendant’s attack of a criminal judgment on the basis of ineffective counsel generally takes place at post-conviction review, where the opportunity for further fact-finding exists. Mosley v. State, 378 Md. 548, 558-59 (2003). The desirable procedure for presenting claims of ineffective assistance of counsel is through post-conviction proceedings. Johnson v. State, 292 Md. 405, 434 (1982).

Here, Alford sought to raise an ineffective assistance of counsel claim for the first time on direct appeal, where the opportunity for further fact-finding did not exist. It was unclear from the record why Alford’s counsel failed to ask follow-up questions of Juror 753 or to object to Juror 753’s empanelment as Juror Number Four. Alford’s counsel’s failure to object could have been part of a strategy to obtain Juror 753 in lieu of other members of the panel, and it was impossible to discern whether this was a decision based on trial strategy. Because the validity of the ineffective assistance of counsel claim could not be determined without the opportunity for fact finding, the Court refused to review the issue for the first time on direct appeal.

Accordingly, the circuit court judgment was affirmed.

COMMENTARY: Alford further contended that the trial court erred in refusing to allow him to discharge counsel after he provided meritorious reasons for doing so.

A defendant in a criminal prosecution has a constitutional right to the effective assistance of counsel and the corresponding right to reject that assistance and represent himself. Gonzales v. State, 408 Md. 515, 529-30 (2009). Under Md. Rule 4-215(e), if a defendant requests permission to discharge an attorney whose appearance has been entered, the court shall permit the defendant to explain the reasons for the request, and, if the court finds that there is a meritorious reason for the defendant’s request, the court shall permit the discharge of counsel. If, however, the court finds no meritorious reason for the defendant’s request, the court may not permit the discharge of counsel without first informing the defendant that the trial will proceed as scheduled with the defendant unrepresented by counsel if the defendant discharges counsel and does not have new counsel.

In this case, the trial judge properly followed the requirements of Md. Rule 4-215(a)(1)-(4) and (e) in evaluating Alford’s request to discharge his attorney. The trial judge considered the reasons for the request and found them to be unmeritorious. The trial judge informed Alford that he could proceed pro se, and asked Alford if he had received a copy of the charging document, and the judge complied with the additional requirements of Md. Rule 4-215(a)(l-4) and (e) and relevant case law stated. As such, the trial judge committed no error.


Prior inconsistent statement

BOTTOM LINE: In defendant’s criminal trial, the circuit court erred in admitting police detective’s prior inconsistent statement as substantive evidence rather than for purposes of impeachment alone; however, because the critical content of the statement was introduced, without objection, at various other times during trial, the admission of the detective’s statement was harmless error.

CASE: Yates v. State, No. 2399, Sept. Term, 2009 (filed Dec. 22, 2011) (Judges GRAEFF, Kehoe & Rubin (Retired, Specially Assigned)). RecordFax No. 11-1222-02, 33 pages.

FACTS: On January 7, 2009, Sherry Worcester was shot and killed outside of her home in Middle River, Maryland. Warren Yates and his co-defendant, Donald Kohler, were arrested and charged with her murder.

At the defendants’ criminal trial, the State presented testimony from 19 witnesses. Four of these witnesses, Stephanie Foltz, William Griffin, Chris Jagd, and Justin Wimbush, testified that they were present at a home in Middle River, Maryland on January 7, 2009, when Kohler purchased four pounds of marijuana. Although details of the transaction varied, the witnesses’ testimony was consistent that the drugs ultimately were given to Kohler in exchange for money, which was wrapped in a bag.

Various witnesses testified that after Kohler took the drugs and left the house, Yates opened the bag and noticed that the money was fake. The witnesses testified that Yates ran out of the house after Kohler. Three witnesses testified regarding the events that took place after that point: Wimbush, Jagd, and Griffin. Wimbush testified that he saw Yates run after Kohler into an alley, that he heard gunshots, and that he then saw Yates running back toward the house from the top of the alley. Wimbush saw Yates get into a car with Griffin and leave.

Jagd also testified that he saw Yates chase Kohler. Jagd initially testified that he did not see Yates shoot a gun, but that he saw a gun in Yates’s hand when Yates ran out the front door after Kohler. Kohler’s counsel then questioned Jagd about his statement to Detective Sekou Hinton that he saw Yates “aim the pistol, pause, aim like he was trying to hit him, pause, and then move the gun to the side and then fire.” Jagd stated that he had “just remembered” that he did see Yates fire six shots with a “revolver.” When questioned about his statement to the police that the gun was a “semi-automatic” handgun, Jagd admitted that he did not know the difference between an automatic and a revolver. Jagd testified that he spoke with Yates after the shooting, stating that he could not recall exactly what Yates had said but that he thought Yates had said, “I don’t know if I got him,” or, “I think I got him.”

Griffin testified that he saw Yates run out the front door and that he then heard two gunshots. Griffin stated that he met Yates at Yates’s car and asked Yates what had happened with the gunshots. Griffin further testified that Yates replied that he had fired the gun.

At the conclusion of the State’s case, counsel for both defendants moved for judgment of acquittal on all counts. The court denied the motions. Yates then rested without introducing any evidence. Kohler introduced some evidence on his behalf, but did not testify. The defendants renewed their motions for judgment of acquittal, which the court denied. The jury convicted Yates of second-degree felony murder, use of a handgun in the commission of a crime of violence, use of a handgun in the commission of a felony, drug trafficking with a firearm, distribution of marijuana, and other offenses.

Yates appealed to the Court of Special Appeals, which affirmed the convictions.

LAW: On appeal, Yates first asserted that the circuit court erred in admitting hearsay evidence as a prior inconsistent statement. Specifically, Yates’s contention involved Detective Hinton’s testimony regarding his interview with Jagd after the murder. Detective Hinton testified, over objection, about a statement Jagd made to him after the murder. Jagd advised that, as Yates was leaving the scene, Yates stated, “I popped that [N … ].” Yates argued that this testimony was inadmissible hearsay, which severely prejudiced him. The State countered that, even assuming that the trial court erred, reversal was not warranted because the essential content of Jagd’s statement (that Yates admitted that he shot the gun) was elsewhere properly admitted without objection, thereby obviating any unfair prejudice.

The testimony at issue was elicited by counsel for Yates’s co-defendant, Kohler. During the State’s direct examination of Jagd, Jagd testified that he could not remember what Yates said to him after the shooting. On cross-examination, Kohler’s attorney followed up on this questioning, asking again if Jagd remembered what Yates said to him when Yates was running back to the house after the shooting. Jagd replied that he could not recall exactly what Yates had said, but that he thought Yates had said, “I don’t know if I got him,” or, “I think I got him.”

Kohler’s counsel subsequently revisited the issue with Detective Hinton. Detective Hinton testified that Mr. Jagd told him, during an interview shortly after the shooting, that Yates, while running back to the house, said, “I popped that [N … ].” The court permitted the testimony as a “prior inconsistent statement.”

A prior statement by a witness that is inconsistent with the witness’s testimony in court generally is admissible to impeach the credibility of the witness. Stewart v. State, 342 Md. 230, 236 (1996). Here, however, Kohler’s counsel did not use the statement to show that Jagd was an incredible witness; rather, he used the evidence as substantive evidence. Kohler’s counsel stated in closing argument that this statement showed that Kohler, a white man, was not the purported buyer in the drug deal. When prior inconsistent statements are offered to prove the truth of the matter asserted, the statements are hearsay. Stewart, 342 Md. at 236. Generally, hearsay is inadmissible. Md. Rule 5-802.

Pursuant to Md. Rule 5-802.1(a), prior inconsistent statements are admissible as substantive evidence if certain requirements are met, including that the prior statement was given under oath and reduced to writing. In this case, however, there was no evidence that Jagd’s statement to Detective Hinton was given under oath, reduced to writing and signed by the declarant, or recorded in a substantially verbatim fashion. Therefore, the prior inconsistent statement was not admissible as substantive evidence, and the trial court erred in failing to limit its use to impeachment, either at the time the statement was admitted or during jury instructions.

Nevertheless, even if the admission of the statement was error, it was not reversible error because there was no unfair prejudice. The Maryland appellate courts have set forth the standard for assessing harmless error, holding that when, in a criminal case, an appellant establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed “harmless” and a reversal is mandated. Perez v. State, 420 Md. 57, 66 (2011). Maryland courts have deemed the erroneous admission of evidence to be harmless if evidence to the same effect was introduced, without objection, at another time during the trial. See Robeson v. State, 285 Md. 498, 507 (1979).

In the present case, the critical content of the objectionable statement, that Yates fired the gun that killed the victim, was admitted without objection on three other occasions: twice during Jagd’s testimony, and once during Griffin’s testimony. Thus, two witnesses testified that Yates admitted that he fired the gun. Detective Hinton’s testimony, although characterizing Yates’s admission of the shooting in a more provocative manner, merely relayed what another witness had told him, and was cumulative to the prior testimony on this issue. Moreover, the State did not mention the objected-to testimony of Detective Hinton in its closing argument, thereby demonstrating the relative lack of importance of the testimony.

Given that the State did not rely on the evidence in closing argument, and that it was cumulative to other evidence that Yates fired the gun he was holding after he ran after Kohler, the admission of Detective Hinton’s testimony was harmless error, and Yates was entitled to no relief in this regard.

Accordingly, the circuit court judgment was affirmed.

COMMENTARY: Yates additionally contended that the evidence was insufficient to support his conviction for second-degree murder because the State failed to prove all of the elements of felony murder. Specifically, Yates argued that because the underlying felony of distribution of marijuana was complete prior to the shooting, the State failed to prove that the murder occurred during the commission of the felony.

The Court of Appeals has explained that, under Maryland common law, a felony-murder conviction is appropriate only if the State proves that the defendant committed the underlying felony and that the death occurred in the perpetration of that felony. Metheny v. State, 359 Md. 576, 623 (2000). Several courts have rejected the argument advanced by Yates, that a felony is “complete” when the definitional elements of an offense have been satisfied. See Bissot v. State, 53 Ind. 408, 413-19 (1876). Thus, a killing committed after the definitional elements of the predicate felony have been completed can qualify as felony murder. Id.; see also People v. Gillis, 712 N.W.2d 419, 426 (Mich.2006); People v. Taylor, 169 Cal.Rptr. 290 (Cal.Ct.App.1980). As such, the fact that Yates had distributed the drugs to Kohler prior to the shooting did not automatically preclude a finding of felony murder.

A killing that follows a felony constitutes felony murder if the homicide and the felony were parts of one continuous transaction, and they were closely related in time, place, and causal relation. Application of these factors here supported Yates’s conviction of second-degree felony murder. The shooting occurred immediately after the drug deal, as the buyer fled after giving fake money in exchange for the drugs. The close relation in time and place between the two events was clear, and the factors of continuity of action and causal connection also were established. Given that the evidence showed that Yates ran after Kohler because Kohler did not provide the money agreed upon for the drugs, the shooting was a continued part of the drug deal, and it was causally related to the felony. As such, the evidence was sufficient to support Yates’s conviction for second-degree felony murder.

PRACTICE TIPS: A crime is elevated to murder in the first degree if it is committed in the perpetration of or an attempt to perpetrate any of 12 enumerated felonies, including arson, burning an outbuilding, burglary in the first, second, or third degree, carjacking, escape in the first degree from a correctional facility, kidnapping, mayhem, rape, robbery, sexual offense in the first or second degree, sodomy, or the manufacture or possession of destructive devices.

Real Property

Adverse possession

BOTTOM LINE: In plaintiff’s action to quiet title to a water well on plaintiff’s land, where plaintiff’s neighbor had previously used the well with permission from the previous owner of the land and now sought to establish an easement by prescription, circuit court circuit court properly granted summary judgment in favor of plaintiff on the issue of adverse possession because neighbor failed to offer evidence sufficient to rebut the presumption of permissive use of the property in question.

CASE: Rupli v. South Mountain Heritage Society, Inc., No. 2555, Sept. Term, 2009 (filed Dec. 22, 2011) (Judges Eyler, D., Meredith & Kenney (Retired, Specially Assigned)). RecordFax No. 11-1222-01, 26 pages.

FACTS: At issue in this case was the continued use of a well that had supplied water to a neighboring property since before 1973. In 1965, Moran Enterprises, Inc., purchased property (the “Rupli property”) located in Burkittsville. The property adjacent to the Rupli property was at that time owned by Resurrection Reformed Church of Burkittsville (“RRCB”).

Some time prior to 1973, because the well on the Rupli property was contaminated, RRCB granted Moran permission to use a well on the church property and to run piping between that well and the house on the Rupli property. This well provided water to the Rupli property throughout Moran’s ownership of the Rupli property.

Brenda Rupli and her former husband purchased the Rupli property from Moran in 1973. At that time, Moran advised them that the well was used with permission from RRCB.

In 1979, the Southern Mountain Heritage Society (“SMHS”), a not-for-profit corporation, purchased the church property. At this time, SMHS knew of the Ruplis’ use of the well, which continued after SMHS purchased the property.

In 1998, Brenda Rupli approached SMHS with a deed of easement to the well on the Church property, which she later described as an attempt to document “something she already had.” SMHS did not sign the deed of easement and, on November 16, 2005, SMHS directed Rupli to disconnect from the well because it had decided to hold events at the church which would require indoor plumbing. Rupli refused.

On September 14, 2009, SMHS filed an amended complaint in circuit court, seeking declaratory relief with respect to use of the well (Count I), and to quiet title to the well (Count II). The parties filed cross-motions for summary judgment on both counts. Following a hearing, the circuit court issued its “opinion and order” on the motions, and granted summary judgment in favor of SMHS.

Brenda Rupli appealed to the Court of Special Appeals, which affirmed the grant of summary judgment to SMHS.

LAW: Rupli argued that the circuit court ruled improperly with regard to the issue of whether Rupli had established an easement by prescription.

An easement by prescription arises when a party makes an adverse, exclusive, and uninterrupted use of another’s real property for 20 years. Kirby v. Hook, 347 Md. 380 (1997). In her motion for summary judgment, Rupli stated that there was no genuine dispute that she had used the church property exclusively for at least 20 years, that she used the church property during this period, or that she used the property “adversely” during this period.

SMHS did not dispute Rupli’s claims of actual exclusive and uninterrupted use, but stated that Rupli failed to put SMHS on notice prior to November 1998 that her use was adverse, and that, therefore, her adverse use began as early as 1998, but did not continue for the requisite 20-year period.

In the absence of an express grant, the burden is on the party seeking the easement to establish the elements of prescriptive use. Cox v. Forrest, 60 Md. 74, 79 (1883). However, where one has used a right of way for 20 years unexplained, it is generally fair to presume that the use is under a claim of right, and the burden is upon the owner of the land to show that the use was by license or contract inconsistent with a claim of right. Id. at 79-80.

In a situation where use begins adversely, the servient owner’s mere failure to protest is not permission but acquiescence. Mavromoustakos v. Padussis, 112 Md.App. 59, 73-74 (1996). To establish permission, failure to protest must be combined “with other indications of permission.” Id. at 74.

However, a presumption of adversity will not arise if the use appears to have been by permission. Banks v. Pusey, 393 Md. 688, 700 (2006). In the absence of a presumption of adverse use, the burden of establishing such use is on the party claiming it. This principle logically follows the general rule that the creation of an easement by prescription is not favored by the law. Id.

The Banks court stated that the character of the initial use, whether originally permissive or of right, is presumed to continue. Id. at 709. For use which is permissive in its inception to become adverse, there must be affirmative evidence of change offered by the party seeking the prescriptive easement. Feldstein v. Segall, 198 Md. 285, 295 (1951)).

Here, Rupli argued that the principle that originally permissive use of land is presumed to continue until there is affirmative evidence of change to adverse use holds true only when dealing with the original parties to the permissive use agreement. Thus, in Rupli’s view, the presumption of permissive use would terminate upon the sale of either the dominant or servient estate. In this case, both estates were sold (the dominant estate in 1973 and the servient estate in 1979) subsequent to the permissive use agreement between Moran, Inc. and RRCB. Therefore, according to Rupli, SMHS had the burden of rebutting the presumption of her adverse use of the Church Property.

SMHS countered that Banks, which cited heavily from the cases Feldstein v. Segall, 198 Md. 285, 295 (1951), and Hungerford v. Hungerford, 234 Md. 338, 341 (1964), did not make any distinction between whether the actual claimant or the claimant’s predecessor initiated the use, nor did it impose any requirement that the original user of the servient estate be the ultimate claimant. Banks, Hungerford, and Feldstein did not expressly address whether the transfer of the dominant or servient estate, or both, would convert a permissive use into an adverse use. In Banks and Feldstein the original licensees and licensors did not transfer their properties during the relevant 20-year period, and in Hungerford there was no transfer at all.

In some states, an implicit revocation alone by transfer of the servient or dominant estate triggers a presumption that subsequent use is adverse. Of these, some states have found that the conveyance of the servient property triggers a presumption. See First Nat’l Bank v. Vanden Brooks, 204 Mich. 164, 178 (1918). For instance, in Pennsylvania, conveyance of either estate will trigger the presumption of adverse use. See Orth v. Werkheiser, 305 Pa.Super. 576 (1982).

However, other states disagree that the transfer of either the servient or dominant estate, or both, triggers the presumption of adverse use; these states hold that the presumption of permissive use continues so long as the servient estate is used as it was before by the original licensee, sometimes referring to it as an implicit continuation of the license. See, e.g., Cooper v. Boise Church of Christ, 96 Idaho 45, 48 (1974).

Specifically, some states do not agree that the sale of the servient estate triggers a presumption of adverse use. See Bennett v. Biddle, 150 Pa. 420, 425 (1892). Other states do not agree that the sale of the dominant estate, or both estates, triggers a presumption of adverse use. See Branson v. Miracle, 111 Idaho 933, 937 (Idaho Ct.App.1986).

In those states where the transfer of either the servient or dominant estates, or both, does not trigger a presumption of adverse use, and the presumption of permissive use continues, the party seeking the prescriptive easement must provide the owner of the servient estate some notice that an adverse claim is being made, such as unequivocal conduct giving the owner of the property notice of hostility and adverseness. Branson, 111 Idaho at 936.

Thus, an overview of the relevant jurisprudence framed the appropriate question in this case: when a license is revoked by implication by the sale of the dominant or servient estate, or both, is the continued use of the property, when it is used as it was before, presumed to be adverse or presumed to be permissive? The Court of Special Appeals held that, notwithstanding the revocation by implication of the license following the conveyance of the servient or dominant estate, or both, if the original possession is not adverse, the presumption of permissive use continues in the absence of affirmative evidence that the character of the use has changed. See 1931 Herbert T. Tiffany, THE LAW OF REAL PROPERTY, §503 (enlarged ed. 1920).

Because Rupli failed to offer evidence sufficient to rebut the presumption of permissive use of the property in question, the circuit court properly granted summary judgment in favor of SMHS and properly denied Rupli’s motion for summary judgment on the issue of adverse possession.

COMMENTARY: Rupli additionally contended that the circuit court improperly acted as the trier of fact, inappropriately decided SMHS’s intent and motives in relation to permission, and incorrectly resolved inferences and factual disputes against Rupli, the non-moving party. In support of these contentions, Rupli offered the circuit court’s statement that SMHS “tolerated” Rupli’s use of the church well.

However, contrary to Rupli’s contention, the circuit court’s statements that SMHS “tolerated” Rupli’s use of the well did not constitute an impermissible finding of fact. See Eng’g Mgmt. Servs. v. Md. State Highway Admin., 375 Md. 211, 226 (2003). Rather, looking at the opinion as a whole, the court’s use of this term arose out of its legal conclusion that Rupli’s use of the well was presumptively permissive, and Rupli failed to proffer facts that would be legally sufficient to rebut this presumption. See Zimmerman v. Summers, 24 Md.App. 100, 106 (1975).

PRACTICE TIPS: The law encourages acts of neighborly courtesy. For this reason, an adverse claimant must provide notice of hostility sufficient to warn the servient owner that the latter’s property rights are at risk. Likewise, the rule that continued use of land following the conveyance of an estate is presumed to be permissive if the original use was permissive protects both the expectations of the property owner who grants permission and encourages cooperation between neighboring landowners.