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Law digest – 7/23/12

COURT OF SPECIAL APPEALS

Criminal Procedure, Jury instructions: The circuit court erred by refusing to submit the charge of fourth-degree burglary to the jury, where the evidence was legally sufficient for defendant to be convicted of either third-degree burglary or the lesser included offense of fourth-degree burglary. Bass v. State, No. 2971, Sept. Term, 2010. RecordFax No. 12-0628-03, 14 pages.

Criminal Procedure, Parolee’s diminished expectation of privacy: Where a parole retake arrest warrant for defendant was outstanding, the search of defendant’s hotel room, based on reasonable suspicion to believe that defendant was engaged in criminal activity, was not unreasonable under the Fourth Amendment. Feaster v. State, No. 408, Sept. Term, 2011. RecordFax No. 12-0629-00, 42 pages.

Criminal Procedure, Warrantless search of hotel room: Defendant did not have a subjective expectation of privacy in an unoccupied and locked-out hotel room he had previously rented, and the hotel could consent to the warrantless entry and search. Bordley v. State, No. 0464, Sept. Term, 2010. RecordFax No. 12-0627-04, 16 pages.

Evidence, Expert opinion on causation : The trial court abused its discretion under Rule 5-702 when it denied defendant’s motion to exclude plaintiffs’ expert opinion on “substantial contributing factor causation” where the expert’s testimony did not quantify the probability of causation. Dixon v. Ford Motor Company, No. 536, Sept. Term, 2011. RecordFax No. 12-0629-06, 27 pages.

Evidence, Gang-related evidence: The circuit court did not err by admitting gang-related evidence where the fact evidence demonstrated that the murder was gang-related, the evidence was relevant to explain inconsistencies between witnesses’ pretrial statements and trial testimony and the probative value of the evidence outweighed any danger of unfair prejudice. Burris v. State, No. 1970, Sept. Term, 2010. RecordFax No. 12-0628-01, 61 pages.

Family Law, Modification of custody : In light of the evidence of mother’s mental illness, among other things, the circuit court did not err in modifying the custody agreement, because there was sufficient evidence to demonstrate a material change in circumstance and that the modification was in the best interests of the children. Gillespie v. Gillespie, Nos. 960 and 2153, Sept. Term, 2011. RecordFax No. 12-0629-03, 36 pages.

Labor & Employment, Maryland Wage Payment & Collection Law: The circuit court applied an improper test in denying an award of attorneys’ fees and costs to plaintiff under the Maryland Wage Payment and Collection Law. Barufaldi v. Ocean City, Maryland Chamber of Commerce, Inc., No. 270, Sept. Term, 2011. RecordFax No. 12-0629-01, 28 pages.

Workers’ Compensation, Statute of limitations: Employee’s petition to reopen his workers’ compensation claim for worsening of condition was barred by the statute of limitations, because the employee’s withdrawal of supporting issues constituted withdrawal of his petition to reopen, and more than five years elapsed between his last indemnity payment and the filing of any new issues for worsening of condition. McLaughlin v. Gill Simpson Electric, No. 376, Sept. Term, 2011. RecordFax No. 12-0629-05, 20 pages.

Zoning, Agricultural preservation: Baltimore County properly granted a creamery’s petition for a special exception for a farm market or farmer’s roadside stand in an agricultural zone, because the creamery was an agricultural producer, it met the requirements regarding sales of farm produce and locally produced nonagricultural goods, and the special exception would not be detrimental to the health, safety or general welfare of the locality, would not tend to create congestion and would not create a potential hazard from fire, panic or other danger. Long Green Valley Association v. Prigel Family Creamery, No. 350, Sept. Term, 2011. RecordFax No. 12-0629-04, 19 pages.

U.S. 4TH CIRCUIT COURT OF APPEALS

Administrative Law, FINRA Arbitration : As a result of significant overlap in personnel and resource utilization between a financial adviser’s former and current investment firms, the adviser’s current firm “indirectly controlled” the adviser, making them “associated persons”; therefore, the investors’ dispute with the adviser’s current firm was covered by the FINRA Code of Arbitration Procedure for Customer Disputes. Waterford Investment Services v. Bosco, No. 11-2103. RecordFax No. 12-0621-60, 13 pages.

Criminal Procedure, Probable cause for traffic stop: A police deputy lacked probable cause to initiate a traffic stop based exclusively on his uncorroborated and unsupported belief that defendant was traveling five miles per hour above posted speed limit. U.S. v. Sowards, No. 10-4133. RecordFax No. 12-0626-60, 54 pages.

Workers’ Compensation, Federal Employees’ Compensation Act: A municipality constitutes a “person” for purposes of reimbursement under the Federal Employees’ Compensation Act; thus, the Department of Labor was entitled to reimbursement of FECA benefits it paid to an employee who sued the town in which she was injured and received a settlement. Hutchins v. U.S. Dept. of Labor, No. 11-1375. RecordFax No. 12-0621-61, pages.