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Opinions – 8/13/14: Maryland Court of Special Appeals

Criminal Procedure

Competency 

BOTTOM LINE: Circuit court did not err in finding defendant was competent to stand trial, where, despite his refusal to participate in competency evaluations and his assertions that he did not understand the proceedings, there was significant evidence of competency in the record and the defendant’s assertions of incompetency were consistent with his “flesh and blood” defense strategy.

CASE: Stewart-Bey v. State, No. 2525, Sept. Term, 2012 (filed July 31, 2014) (Judges BERGER, Arthur & Kenney (Retired, Specially Assigned)). RecordFax No. 14-0731-02, 32 pages.

FACTS: Nathaniel Stewart-Bey, was charged with multiple counts of criminal conduct involving counterfeiting checks, issuing counterfeit instruments, theft, and attempted theft by the circuit court. On several instances, Stewart-Bey purchased or attempted to purchase goods using counterfeit checks at two different stores, Sam’s West, Inc. and Lowe’s Home Centers, Inc. The purchases and attempted purchases occurred between November 15 and November 27, 2009.

Prior to trial, Stewart-Bey was referred for multiple competency evaluations. The circuit court ruled, at two separate competency hearings on August 6, 2012 and August 24, 2012, that he was competent to stand trial. The circuit court also determined that Stewart-Bey knowingly and voluntarily waived his right to counsel.

At trial, Stewart-Bey represented himself. During his trial, Stuart-Bey utilized a defense colloquially referred to as the “flesh and blood” defense, which is based upon an assertion that the courts lack jurisdiction over a defendant. Generally, individuals invoking the “flesh and blood” defense claim that they are “sovereign citizens,” which they distinguish from “federal citizens” or “corporate citizens” under the 14th Amendment. Such defendants claim that American citizenship granted by the 14th Amendment is a ploy by corporations to financially enslave the masses and destroy the republican union.

In proceedings before the trial court, Stewart-Bey conducted himself in a manner characteristic of the “flesh and blood” defense. When the court attempted to ask Stewart-Bey whether he wanted a jury or court trial, Stewart-Bey asked the court if it was attempting to force him into some type of commercial contract, against his will. Throughout the proceedings, Stewart-Bey repeatedly stated that he was not accepting any benefits from the court and that he reserved his rights not to be forced or compelled into any type of agreement that he did not knowingly, willingly, or voluntarily enter into.

Stewart-Bey stated that he did “not consent to this hearing” and repeatedly stated that he did not understand the proceedings or the charges. Stewart-Bey explicitly challenged the court’s jurisdiction. He refused to receive various documents handed to him by the State or by the court. He refused to take a copy of his indictment, a copy of an order to participate in a competency evaluation, and a copy of the State’s proposed voir dire questions, asserting that he did not receive any benefits from the State. He also declined to dress in civilian clothing, which were provided to him by a correctional officer, explaining that he did not accept benefits from the court or any other agency of the government.

Stewart-Bey was subsequently convicted of 32 two counts of criminal conduct involving counterfeiting checks, issuing counterfeit instruments, theft, and attempted theft. He appealed to the Court of Special Appeals, which affirmed the judgment of the circuit court.

LAW: Stewart-Bey argued that the circuit court erred when it determined that he was competent to stand trial and that he was competent to dismiss his counsel. The issue of Stewart-Bey’s competency was first raised at his initial appearance on June 22, 2012. When defense counsel announced that he was appearing on behalf of Stewart-Bey, Stewart-Bey objected, stating that he did not wish to be represented by defense counsel. Defendant counsel then informed the court that it would raise the issue of competency.

Because the issue of competency was raised, the circuit court explained that it would order a competency evaluation. The court also advised Stewart-Bey of the 36 charges against him and the maximum penalty for each charge. At the competency hearing, the circuit court considered the issues of Stewart-Bey’s competency as well as his request to waive counsel. The State called licensed psychologist Dr. Andrew Good as a witness. The court accepted Dr. Good as an expert in forensic psychology.

Dr. Good testified that because Stewart-Bey was unwilling to participate in the competency evaluation, he couldn’t actually provide an opinion with regard to Stewart-Bey’s competence to stand trial. However, Dr. Good noted the absence of any overt symptoms of mental illness, and that he had not seen anything to indicate the presence of a mental illness. Based upon Dr. Good’s testimony, the court found that there was no evidence that Stewart-Bey suffered from any mental illness and that Stewart-Bey was competent. The court provided Stewart-Bey with a copy of the indictment and, for a second time, explained the 36 charges against him and the maximum penalties for each.

On September 5, 2012, Stewart-Bey appeared in court for his scheduled jury trial, without counsel. The court informed explained the jury trial process and reasonable doubt standard to Stewart-Bey, and explained the difference between a jury trial and court trial. The court asked Stewart-Bey, if he wished to go forward with a jury trial or with a judge trial. Stewart-Bey responded that he objected to proceeding in any way, and refused to choose between a jury trial or court trial. Stewart-Bey stated, “I do not understand the charges or the nature of this proceeding” and “I do not understand the charges.”

The court again provided Stewart-Bey with a copy of the indictment. The court read the statement of probable cause aloud and explained to Stewart-Bey, “That is what is alleged. Do you understand that, sir?” Stewart-Bey responded, “I do not understand because I reserved all my rights under U.C.C. 1-308.” The circuit court again ordered that Stewart-Bey be evaluated by the Department of Health and Mental Hygiene to determine whether he was competent to proceed to trial. The court explicitly explained to Stewart-Bey that it was ordering him to participate in the competency evaluation.

At the second competency hearing, held on September 24, 2012, the circuit court provided an outline of the steps that had already been taken in an attempt to determine whether Stewart-Bey was competent to stand trial. The court referred to a report prepared by Dr. Teresa Grant on July 3, 2012. Dr. Grant wrote, in part, that Stewart-Bey refused to participate in the evaluation, and that he verbalized that he was representing himself via “sui jurist.” Dr. Grant further stated that, in her experience, Stewart-Bey subscribed to a rigid thought process based upon a system of learned beliefs regarding the criminal justice system, held by many African- American men, and that his belief system was an eccentric way of perceiving his rights and the criminal justice system, albeit not highly favored.

A subsequent competency evaluation order was generated on July 6, 2012, which resulted in the creation of Dr. Good’s report on August 2, 2012. The court read from Dr.Good’s report that Stewart-Bey did not demonstrate any symptoms to suggest the presence of a mental illness, that there was no available documentation that supported the presence of a mental illness, and that his refusal to cooperate in the evaluation was considered to be a product of choice, rather than a function of mental illness. Ultimately, the court found Stewart-Bey competent to stand trial. After making its competency finding, the circuit court again advised Stewart-Bey of the charges against him and the maximum penalties for each.

A defendant is considered incompetent to stand trial if he or she is not able: (1) to understand the nature or object of the proceeding; or (2) to assist in one’s defense. Md. Code (2001, 2008 Repl. Vol.), §3-101(f) of the Criminal Procedure Article. A person accused of a crime is presumed to be competent to stand trial. Ware v. State, 360 Md. 650, 703 (2000). Once the issue of competency is raised, the General Assembly places the duty to determine the defendant’s competency on the trial court, in order to ensure that the requirements of due process are satisfied. Roberts v. State, 361 Md. 346, 363–64 (2000).

In the present case, there was significant evidence in the record upon which the circuit court based its competency findings on both August 6, 2012 and August 24, 2012. Before the court made its initial competency finding on August 6, 2012, the court considered the testimony of Dr. Good, Dr. Good’s written report, and the court’s own observations of Stewart-Bey’s conduct. After concerns were expressed about Stewart-Bey’s competency a second time, the court – out of an abundance of caution – ordered a second competency evaluation. At the September 24, 2012 hearing, prior to making a competency finding, the court considered two reports prepared by Dr. Grant, one report prepared by Dr. Good, as well as its own observations of Stewart-Bey’s conduct.

All of the reports described Stewart-Bey’s refusal to cooperate with competency evaluations. Furthermore, the court considered the psychologists’ testimony and reports, as well as its own observations of Stewart-Bey, when concluding that Stewart-Bey’s refusal to participate was based on his own obstinacy. As such, the court’s competency determination was supported by evidence in the record.

The necessary competence to choose self-representation over the right to counsel requires the same degree of competence that is required to stand trial, no more and no less. Muhammad v. State, 177 Md. App. 188, 257 (2007). As discussed, the circuit court’s determination that Stewart-Bey was competent to stand trial was supported by evidence in the record and was not clearly erroneous. Therefore, the circuit court’s determination that Stewart-Bey was competent to discharge counsel was similarly supported by evidence in the record and not clearly erroneous.

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: A defendant’s refusal to participate in a competency evaluation does not preclude a court from finding the defendant competent. See Peaks, 419 Md. at 261. Here, as in Peaks, the trial court was able to observe that Stewart-Bey was competent and that his refusal to cooperate was based upon his desire to manipulate or disrupt the evaluation process, and not “sufficient or credible evidence of incompetence.” See id. Indeed, the record reflected that Stewart-Bey’s refusal to cooperate was consistent with the “flesh and blood” defense strategy. His conduct did not indicate that Stewart-Bey was unable to understand the nature of the proceedings. Accordingly, Stewart-Bey’s contention that the circuit court erred by failing to make its competency determination beyond a reasonable doubt and was without merit.

PRACTICE TIPS: A contemporaneous general objection to the admission of evidence ordinarily preserves for appellate review all grounds which may exist for the inadmissibility of the evidence. An objection loses its status as a general one where a rule requires the ground to be stated, where the trial court requests that the ground be stated, and where the objector, although not requested by the court, voluntarily offers specific reasons for objecting to certain evidence.

Criminal Procedure

Maryland Wiretap Act 

BOTTOM LINE: Police did not unlawfully “intercept” text messages from defendant’s cell phone in violation of Maryland Wiretap Act where those messages were, at the time of their seizure, already stored in that phone, having already been sent and received before police gained access to them; the term “intercept” requires acquisition contemporaneous with transmission of the messages.

CASE: Martin v. State, No. 2413, Sept. Term, 2010 (filed July 30, 2014) (Judges KRAUSER, Graeff & Hotten). RecordFax No. 14-0730-03, 51 pages.

FACTS: The defendant, Charles Martin, was charged in the circuit court with the attempted murder of Jodi Torok. On October 27, 2008, Torok was found at her home in Crofton, Maryland, with a gunshot wound to her head. Having survived that wound, Torok testified that she had been in a romantic relationship with the Martin, who was married to someone else. Torok stated that about eight or nine weeks before the shooting, she had become pregnant with Martin’s child.

After Torok informed Martin of her condition, he angrily demanded that she obtain an abortion. Although she at first agreed to do so, Torok later decided to have the baby. She advised Martin of her intention to seek child support from Martin.

Subsequently, on the day of the shooting, at about 3:00 p.m., Torok was talking on the phone, at her home, with her friend Blair Wolfe when a man purporting to be a salesman knocked on her front door. She ended the call to respond to the “salesman,” but thereafter never called Wolfe back or answered any of Wolfe’s subsequent telephone calls. Growing increasingly concerned but unable to take any action on her own, Wolfe phoned Torok’s roommate, Jessica Higgs, and requested that she leave work and return home to make sure that Torok was safe.

Upon arriving at the residence that she shared with Torok, Higgs found the front door unlocked and Torok lying on thefoyer, unconscious and bleeding from a gunshot wound to her head. Higgs called 911. Police arrived and secured the scene. Paramedics then transported Torok to the hospital, where she remained for nearly a month. As a result of the gunshot wound, Torok’s pregnancy was terminated, and she suffered severe and disabling injuries. Neither during that time nor thereafter could she recall the events that took place, from the end of her telephone conversation with Blair Wolfe on October 27th until Thanksgiving, one month later.

The evidence recovered by the police at the scene of the shooting included a Gatorade bottle, which appeared to be fashioned into a home-made silencer; a spent projectile and a spent shell casing; and Torok’s Blackberry cell phone. From the Gatorade bottle, police evidence technicians extracted a human hair and saliva. DNA testing of both linked the bottle to Martin. Torok testified that neither she nor her roommate drank Gatorade, but that Martin did, and often.

Granted immunity from prosecution for the shooting and possibly for other unrelated charges, Michael Bradley testified that, on the day of the shooting, he, Frank Bradley (his brother), Martin, and Martin’s acquaintance Jerry Burks, were together at Maggie McFadden’s house at around noon. Michael Bradley testified that he observed Frank Bradley carrying white medical tape and a Gatorade bottle upstairs to McFadden’s bedroom, where he was joined by Martin. Then, according to Michael Bradley, Martin and Burks left together at approximately 1:30 or 2:00 p.m., and returned after 3:00 p.m. but before 6:30 p.m. the same day.

According to a State’s expert witness, the bullet recovered by police, a .380 caliber bullet, and the shell casing that was found, could have been fired from a semi-automatic firearm. Such a firearm could have been manufactured by any one of 16 different manufacturers, including Bryco Arms, the manufacturer of two .380 caliber semi-automatic handguns purchased by Martin in 2003. Sheri Carter testified that, in September and October of 2008, the time period just before the shooting, she had observed Martin carrying a semi-automatic handgun.

The firearm itself was never found. However, Michael Bradley testified that when Martin returned to McFadden’s home the evening of the shooting, he saw Martin give a brown paper bag to Frank Bradley and tell Bradley to “get rid of this.” Finally, at Torok’s residence, police found her Blackberry cell phone. Text messages extracted from that phone by police confirmed that Martin had exchanged several text messages with Torok on the day of the shooting.

Prior to trial, Martin filed a “motion to suppress wiretap,” contending that the police had violated the Maryland Wiretap Act by unlawfully intercepting the text messages from

Torok’s cell phone and requesting that the court suppress the contents of any intercepted wire, oral or electronic communication and evidence derived therefrom. The circuit court declined to suppress the text messages recovered from Torok’s cell phone or any derivative evidence. Martin was subsequently convicted of attempted first-degree murder.

He appealed to the Court of Special Appeals, which affirmed the judgment of the circuit court.

LAW: Martin argued that the circuit court erred in failing to suppress text message evidence obtained by law enforcement officers from Torok’s cell phone, in violation of the Maryland Wiretap Act, Maryland Code (1974, 2006 Repl. Vol.), §10-401 et seq. of the Courts & Judicial Proceedings Article (“CJP”). Specifically, Martin claimed that, in reading and, later, recording the text messages from Torok’s Blackberry cell phone, the police had “intercepted” those text messages and were therefore required, in accordance with the strictures of the Maryland Wiretap Act, to apply for a court order before doing so, which they did not do. CJP §10-406(a). Furthermore, maintained Martin, the State’s use of evidence derived from those text messages violated the Maryland Stored Communications Act, CJP §10-4A-01 et seq.

When the police arrived at Torok’s residence, they found her cell phone. Text messages that were later extracted from that phone by law enforcement personnel showed that Martin and Torok had exchanged several text messages on the day of the shooting. Based in part on the text messages retrieved from Torok’s cell phone and in part on Martin’s own cell phone text messages, search warrants were obtained for Martin’s home and vehicle, for Maggie McFadden’s home, for Jerry Burks’s home and computer, and for samples of Martin’s saliva and hair. Among the items recovered upon the execution of those warrants were Martin’s saliva and hair samples, as well as a roll of white medical tape with the same characteristics as the medical tape found on the home-made Gatorade silencer.

The Maryland Wiretap Act states that it is unlawful for any person to willfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication. CJP §10-402(a)(1). It defines “intercept” as “the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.” CJP § 10-401(3). Although there are no Maryland appellate decisions that have specifically construed the term “intercept,” a number of federal appellate decisions have done so, under the Federal Wiretap Act, 18 U.S.C. §2510 et seq., the federal analogue of the Maryland Wiretap Act. Both acts define “intercept” and “electronic communication” in nearly identical terms. Compare 18 U.S.C. 20 §2510(4) and (12) with CJP §10-401(3) and (11).

The 5th Circuit held in Steve Jackson Games, Inc. v. United States Secret Service that the seizure of a computer, in which were stored private e-mail messages sent from remote computers but not yet read by their intended recipients, was not an “intercept” of those messages under the federal act, though they were clearly “electronic communications.” Steve Jackson Games, Inc. v. United States Secret Service, 36 F.3d 457 (5th Cir. 1994). The 5th Circuit found a Congressional intent that the term “intercept” be applied to “electronic communications” only when those communications are in transit and not when they are in electronic storage. Id. at 461-62. Because the electronic communications at issue in Steve Jackson Games were in storage when Secret Service agents obtained them, the 5th Circuit held that there had been no “interception” of them. Id.; see also Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002).

In 2002, the General Assembly enacted the Maryland Security Protection Act of 2002, which, among other things, altered the definition of “wire communication” in the Maryland Wiretap Act so that it would no longer include electronic storage, thereby tracking the change in definition adopted in the PATRIOT Act and, in effect, narrowing the scope of the term “intercept.” 2002 Md. Laws, ch. 100, at 1271-72. In light of the nearly identical definitions of “intercept” and “electronic communication” in both the Federal and Maryland Wiretap Acts, as well as the fact that Maryland has adopted the same narrow definition of “wire communication” that first appeared in the PATRIOT Act, the term “intercept” is properly construed as requiring “acquisition contemporaneous with transmission” of the messages. Konop, 302 F.3d at 878. Thus, an “intercept” does not occur when, conversely, the electronic communication was in storage at the time of acquisition.

As such, in the present case, the police did not unlawfully “intercept” text messages from Torok’s cell phone, as those messages were, at the time of their seizure, already stored in that phone, having already been sent and received before police gained access to them. Finally, contrary to Martin’s claim, the Maryland Stored Communications Act did not provide a remedy for excluding as evidence the information obtained from Torok’s cell phone because the prohibition in the Act did not apply to Torok’s cell phone, which was not a “facility through which an electronic communication service is provided.” Moreover, even if there were a violation of the Maryland Stored Communications Act, exclusion of evidence, obtained by that violation, is not an appropriate remedy. See Upshur v. State, 208 Md. App. 383, 399 (2012), cert. denied, 430 Md. 646 (2013).

Accordingly, because Martin’s additional arguments were also without merit, the judgment of the circuit court was affirmed.

COMMENTARY: Martin, relying on the decision Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), additionally contended that the circuit court’s admission of the testimony of Dr. Terry Melton, one of the State’s DNA experts, regarding the results of mitochondrial DNA testing, violated the Confrontation Clause of the Sixth Amendment because Dr. Melton had not personally performed that testing. According to Maryland Rule 5-103(a)(1), error may not be predicated upon a ruling that admits evidence unless the party is prejudiced by the ruling, and a timely objection or motion to strike appears of record. Here, after the State had completed its direct examination of Dr. Melton, Martin, during cross-examination of the doctor, objected to the admissibility of her testimony on Confrontation Clause grounds and moved “to strike all of it.” This objection led to an extended bench conference.

Following a brief recess, the State propounded a new claim, namely, that Martin’s belated objection had resulted in waiver of his Confrontation Clause claim. That claim prompted a shift in the focus of the bench conference from issue of the applicability of Melendez-Diaz to the discovery materials that had been provided to Martin. After examining those materials, the circuit court made a preliminary finding that those documents had put Martin on notice that there was a technician other than Dr. Melton involved in the case. The court subsequently found that Martin’s counsel had “received in discovery,” and well before trial had begun, “a clear indication” that Dr. Melton was not the technician who had done the original work, and, furthermore, that Martin had been put on notice by Dr. Melton’s earlier testimony that others had performed that work, and yet did not object.

The court therefore concluded that Martin had waived his objection and, accordingly, denied his motion to strike Dr. Melton’s testimony. That ruling was not clearly erroneous. As such, this issue was not preserved for appellate review.

PRACTICE TIPS: Under the Criminal Law Article, a defendant, on timely demand, is entitled to a bill of particulars. This statutory entitlement is intended to provide such a description of the particular act to have been committed as to inform the accused of the specific conduct with which he is charged. Moreover, it is constitutionally required to apprise the defendant of the crime with which he is accused, as well as the particular conduct to which that accusation relates and refers.

Criminal Procedure

Rule of lenity 

BOTTOM LINE: Under the rule of lenity, defendant’s convictions for possession of a regulated firearm merged into his conviction for possession of a regulated firearm after conviction of a crime of violence, which was the conviction carrying the greatest penalty.

CASE: Clark v. State, No. 701, Sept. Term, 2013 (filed July 31, 2014) (Judges EYLER, Graeff & Raker (Retired, Specially Assigned)). RecordFax No. 14-0731-05, 29 pages.

FACTS: The defendant, Brian Clark, was charged in the circuit court with multiple offenses arising from the armed robbery of Thomas Gant, a transgender person who went by the name Tiffany. On the night of July 9, 2011, Gant was standing at a bus stop waiting for the rain to stop so that she could finish walking to the train station. A four-door gold-colored car pulled up, and two men got out and robbed her at gunpoint. At trial, Gant identified Clark as the man who held the gun pointed at her back. She also identified photographs of the car and the gun. The photographs were admitted into evidence.

Gant testified that Clark Clark wore a mask over his face, but she was able to identify him by his clothing and skin tone. During the robbery, Clark ordered her to surrender her possessions, and he and the other man took her purse and bag, jumped back into the car, and drove away. After the men left, Gant ran across the street to the police station. No one was there, and she called 911. A tape of the 911 call was admitted into evidence and played for the jury.

Police Officer Bryan Stevens was responding to the robbery call when he saw the vehicle described in the police broadcast drive past him. He stopped it and attempted to conduct a traffic stop. Two men, including Clark, jumped out of the vehicle and fled. Officer Stevens gave chase and apprehended Clark in front of a nearby high school. He saw that Clark was missing a shoe.

The missing shoe was recovered by a police K-9 dog. The shoe was in close proximity to a handgun. The K-9 dog continued tracking Clark’s path, which ended at the high school. Police responded to the scene, met with Gant, and took her to two locations for “show-ups.” At the first location, the high school, Gant identified Clark. At the second location a few hundred yards away, Gant identified the other man and the gold car used in the robbery. The items the men had taken from Gant were recovered from the gold car and were identified by Gant.

The gold car was processed, and DNA swabs were obtained from the interior passenger front door and armrest and the driver’s side door. DNA swabs also were obtained from Clark and from the handgun. The swabs were packaged, sealed, and sent to the DNA lab for testing. The DNA test results, which were admitted at trial over defense counsel’s objection, were inconclusive.

At the conclusion of the trial, the jury found Clark guilty of robbery, wearing or carrying a handgun on his person, transporting a handgun in a vehicle, possession of a regulated firearm by a person under the age of 21, and theft under $1,000. Thereafter, the court found Clark guilty of possession of a regulated firearm after conviction of a crime of violence and possession of a regulated firearm by a prohibited person. Clark was sentenced to a total of 66 years, with all but 30 years suspended, which included a mandatory minimum of 20 years.

Clark appealed his convictions and sentencing to the Court of Special Appeals, which vacated his convictions for possession of a regulated firearm by a prohibited person and possession of a regulated firearm by a person under 21, vacated his sentence for transporting a handgun in a vehicle, vacated his sentence for possession of a regulated firearm after conviction of a crime of violence and remanded for resentencing on that conviction, and otherwise affirmed the judgments of the circuit court.

LAW: Clark contended that his convictions for possession of a regulated firearm should merge into Count 8 (Possession of a Regulated Firearm After Conviction of a Crime of Violence), which of those convictions was the one carrying the greatest penalty. He also argued that, under the rule of lenity, his convictions for wearing or carrying a handgun on his person and transporting a handgun in a vehicle should merge. In support of these assertions, Clark relied on the holding in Wimbish v. State, 201 Md. App. 239 (2011).

Clark was convicted under the following subsections of Maryland Code (2003, 2011 Repl. Vol.), §5-133 of the Public Safety Article (“PS”): (b) Possession of regulated firearm prohibited Subject to §5-133.3; (c) Penalty for possession by convicted felon; and (d) Possession by person under age of 21 years prohibited. The defendant in Wimbish was convicted under PS §§5-133(c)(1) and 5-133(d). The Wimbish Court concluded that when the defendant 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. Wimbish, 201 Md. App. at 272; see also Melton v. State, 379 Md. 471, 474 (2004)).

Likewise, in this case Clark was convicted under three subsections of PS §5–133, each involving the illegal possession of the same regulated firearm. Applying the holdings in Melton and Wimbish, only one of Clark’s convictions under PS §5–133 could stand. Accordingly, the conviction with the greater penalty, possession of a regulated firearm after conviction of a crime of violence was affirmed, and the convictions for possession of a regulated firearm by a person under 21 years of age and possession of a regulated firearm by a prohibited person were vacated.

Maryland Code (2002, 2012 Repl. Vol.), §4-203(a) of Criminal Law Article (“CL”) provides, in relevant part, that a person may not wear, carry, or transport a handgun, whether concealed or open, on or about the person, or in a vehicle traveling on a road or parking lot generally used by the public, highway, waterway, or airway of the State. In addition, §4-203(a)(iii) and (iv) state that a person may not violate these provisions while on public school property in the State. The penalty provisions for a conviction include minimum mandatory sentences for convictions under CL §4-203 when the defendant previously has been convicted under CL §4-203 or other enumerated statutes.

Clark was convicted of violating CL §4-203(a)(1)(i) (wearing, carrying, or transporting a handgun on or about his person) and §4-203(a)(1)(ii) (wearing, carrying, or knowingly transporting a handgun in a vehicle traveling on a road). He contended that, under the rule of lenity the court was prohibited from imposing separate sentences for these convictions. While the convictions did not merge under the required evidence test, the rule of lenity indeed applied.

The rule of lenity is a common law doctrine that directs courts to construe ambiguous criminal statutes in favor of criminal defendants. Two crimes created by legislative enactment may not be punished separately if the legislature intended the offenses to be punished by one sentence. Alexis v. State, 437 Md. 457, 484-85 (2014). The State maintained that Clark’s convictions under §§ 4-203(a)(1)(i) and (ii) did not arise out of the same act or transaction and were for two separate offenses because Clarks’ acts of transporting the gun in the vehicle to the robbery and fleeing the car on foot while holding the gun were two separate acts that did not adjoin or overlap in time.

However, the acts were part of a single transaction in that they were the beginning, middle, and end of the robbery. In this situation, even though two distinct offenses were committed, it could not be said that the legislature intended that more than one sentence be imposed. The court imposed the same sentence (three years suspended) for each crime. In accordance with the rule of lenity, the sentence for transporting a handgun in a vehicle was vacated.

Finally, Clark contended that the circuit court erred by sentencing him to 15 years, with all but a mandatory ten years suspended, on Count 8, under a mistaken belief that the statute mandated a minimum of ten years to be served. In fact, the penalty provision for possession of a regulated firearm after conviction of a crime of violence, PS §5-133(c)(2) names a minimum penalty of five years’ imprisonment and a maximum of 15 years’ imprisonment. It appeared from the record that the court thought, incorrectly, that Clark was subject to a mandatory minimum sentence of ten years without parole for his conviction under Count 8, and sentenced him accordingly. That sentence was contrary to law.

Accordingly, the sentence was vacated and remanded for resentencing on Count 8 in accordance with PS §5-133(c)(2).

COMMENTARY: Clark also contended that the trial court erred by admitting inconclusive and therefore irrelevant DNA results from the gun. After the court denied defense counsel’s motion in limine to exclude the DNA evidence found on the gun, Christina Tran was accepted as an expert in the field of forensic serology and DNA analysis. During her testimony the DNA report and the DNA swabs were admitted into evidence without objection.

Tran testified that the swabs from the interior front passenger door yielded a partial-mixed DNA profile; she was unable to reach any further conclusions. The swabs from the handgun also yielded a mixed DNA profile from at least two contributors. Clark was neither included nor excluded as a possible contributor. Finally, Tran testified that the swabs tested from the recovered shoe were consistent with Clark’s DNA profile.

The inconclusive DNA test result on the gun may well have been relevant to show that the State performed a DNA test at all. Without that evidence the defense could argue that the State had not performed a DNA analysis of the gun that, if performed, could have ruled out Clark. In any event, even if the evidence were not relevant, its admission was harmless beyond a reasonable doubt because the DNA results were evidence of nothing vis-à-vis Clark’s criminal agency. See Dionas v. State, 436 Md. 97, 108 (2013). The DNA results and Tran’s testimony did not provide the jury with any information about who might have held the gun. Thus, the trial court’s ruling on the DNA gun evidence, if erroneous, was of no importance at all in relation to what the jurors had before them to consider in reaching their verdict. Accordingly, any error was harmless beyond a reasonable doubt.

PRACTICE TIPS: In Maryland, a jury trial waiver cannot be accepted without an examination of the defendant on the record in open court. The examination may be conducted by the court, the State’s Attorney, defense counsel, or any combination thereof.

Criminal Procedure

Rule of lenity 

BOTTOM LINE: Under the rule of lenity, defendant’s sentence for possession with intent to distribute cocaine and cocaine base merged into his sentences for volume dealing of more than 448 grams of cocaine and more than 50 grams of cocaine base, because legislative history indicated that the General Assembly did not intend that volume of dealing to be punished separately from the offense of possession with intent to distribute.

CASE: Kyler v. State, No. 0142, Sept. Term, 2013 (filed July 31, 2014) (Judges Krauser, GRAEFF & Hotten). RecordFax No. 14-0731-04, 37 pages.

FACTS: Detectives in the Calvert County Sheriff’s Department, who worked undercover in the Drug Enforcement Unit, began investigating the defendant, William Kyler, in the summer of 2010. They conducted surveillance of Kyler and used confidential informants to assist in investigating Kyler’s drug activity. An undercover police office, Detective B., conducted several controlled buys from Kyler with the assistance of an informant. The informant purchased narcotics from Kyler at various locations: Kyler’s residence; the King office building, where Kyler’s business, Kyler Photo Inc., was located; a barbershop; and a wireless telephone store, adjacent to the barbershop.

The police investigation culminated in Kyler’s arrest for multiple drug offenses. Following a jury trial in the circuit court, Kyler was found guilty of two counts of being a drug kingpin, one count of possession with intent to distribute more than 448 grams of cocaine, one count of possession with intent to distribute more than 50 grams of cocaine base, one count of possession of cocaine with intent to distribute, one count of possession of cocaine base with intent to distribute, one count of concealing the proceeds of a controlled dangerous substance (“CDS”) offense, and one count of conspiracy to distribute cocaine. The court sentenced Kyler to a term of imprisonment totaling 65 years: 25 years for the conviction of possession with intent to distribute cocaine; 20 years, consecutive, for the conviction of possession with intent to distribute cocaine base; and 5 years, concurrent, for each of the volume dealer convictions.

Kyler appealed his convictions and sentence to the Court of Special Appeals, which vacated the volume dealing sentences and otherwise affirmed the judgment of the circuit court.

LAW: Kyler argued that his sentences for possession with intent to distribute cocaine and cocaine base (Counts 5 and 6) should merge into the sentences for volume dealing of more than 448 grams of cocaine and more than 50 grams of cocaine base (Counts 3 and 4). Previously, the Court of Special Appeals held that a conviction for possession with the intent to distribute merged into a conviction for possession of CDS in a designated amount. See Simpson v. State, 121 Md. App. 263, 290 (1998); see also Anderson v. State, 89 Md. App. 712, 727 (1991). Those cases, however, addressed a different statutory scheme.

In 2005, the General Assembly revised Maryland Code (2012 Repl. Vol.) §5-612 of the Criminal Law Article (“CL”) and other sentencing enhancing provisions. This revision was in response to the Supreme Court’s decision in Blakey v. Washington, 542 U.S. 296 (2004). In Blakey, the Supreme Court held that a sentencing judge’s imposition of an enhanced penalty, based on facts that were not admitted by the defendant or found by a jury, violated the defendant’s right to a trial by jury. S.B. 429, Fiscal and Policy Note (Feb. 15, 2005).

The Double Jeopardy Clause of the 5th Amendment of the United States Constitution prohibits the State from punishing a defendant multiple times for the same offense. Sifrit v. State, 383 Md. 116, 137 (2004), cert. denied, 543 U.S. 1056 (2005). Separate sentences are prohibited when a defendant is convicted of two offenses based on the same act or acts and one offense is a lesser-included offense of the other. Id. at 137. In determining whether one offense merges with another, courts initially apply the “required evidence test.” Id. The required evidence test focuses upon the elements of each offense; if all the elements of one offense are included in the other offense, so that only the latter offense contains a distinct element or distinct elements, the former merges into the latter. Kelly v. State, 195 Md. App. 403, 440 (2010).

CL §5-602, titled “Manufacturing, distributing, possession with intent to distribute, or dispensing controlled dangerous substance” (“CDS”), provides, in pertinent part, that a person may not “possess a controlled dangerous substance in sufficient quantity reasonably to indicate under all circumstances an intent to distribute or dispense a controlled dangerous substance.” Pursuant to the statute, the elements of possession with intent to distribute cocaine or cocaine base include: (1) possession of CDS; and (2) circumstances indicating an intent to distribute the CDS. CL §5-612, titled “Volume Dealer,” provides that a person may not manufacture, distribute, dispense, or possess 448 grams or more of cocaine, or 50 grams or more of cocaine base, commonly known as “crack.” Pursuant to CL §5-612, the elements of a volume dealer charge include: (1) manufacturing, distributing, dispensing or possessing CDS; and (2) in the requisite quantity.

Thus, each of these offenses contains an element that the other does not. CL §5-602 requires an intent to distribute, which is not required by CL § 5-612. CL §5-612 requires a minimum quantity of drugs, which is not required by CL §5-602. As such, the offenses did not merge under the required evidence test. See State v. Lancaster, 332 Md. 385, 391 (1993)).

Nevertheless, Kyler argued that, even if his sentences did not merge under the required evidence test, merger was still required under the rule of lenity. In that regard, he asserted that the Maryland legislature did not intend to authorize multiple punishments based on a single act of possession of a controlled dangerous substance, or, at the very least, the legislative intent was unclear. According to the rule of lenity, two crimes created by legislative enactment may not be punished separately if the legislature intended the offenses to be punished by one sentence. If a court is unsure of the legislative intent in punishing offenses as a single merged crime or as distinct offenses, it should give the defendant the benefit of the doubt and hold that the crimes do merge. Moore v. State, 198 Md. App. 655, 686 (2011).

The legislative history establishes that, when Article 27 §286(f) was enacted, possession of a certain quantity of drugs was not intended to result in a sentence additional to that for possession with the intent to distribute. Rather, it was intended to distinguish the volume drug dealer from the street corner dealer by establishing a mandatory minimum penalty of 5 years in jail for the possession of certain threshold quantities of a controlled dangerous substance. State v. Wheeler, 118 Md. App. 142, 148 (1997). Although the General Assembly subsequently changed CL §5-612 to make it a separate offense from § 5-602, it did so to avoid a constitutional issue. There is no language in the amended statute, as there is in CL §5-613, the drug kingpin statute, providing that a conviction under §5-612 does not merge with other crimes. And CL §5-612 continues to refer to the penalty as an “enhanced penalty.”

Given these circumstances, the General Assembly apparently did not intend that volume dealing be punished separately from the offense of possession with intent to distribute. At the very least, the intent was ambiguous, requiring resolution of that ambiguity in Kyler’s favor. See Quansah v. State, 207 Md. App. 636, 653 (2012), cert. denied, 430 Md. 13 (2013). In applying the rule of lenity, however, the lesser penalty merges into the greater penalty. See Spitzinger v. State, 340 Md. 114, 125 (1995).

Here, as indicated, Kyler received 25 years for the conviction of possession with intent to distribute cocaine, 20 years, consecutive, for the conviction of possession with intent to distribute cocaine base, and 5 years, concurrent, for each of the volume dealer convictions. Thus, for sentencing purposes, Kyler’s convictions for volume dealing merged into his convictions for possession with intent to distribute. Accordingly, the sentences imposed pursuant to CL §5-612 were vacated; the judgment of the circuit court was otherwise affirmed.

COMMENTARY: Kyler additionally argued that the evidence was insufficient to support his drug kingpin conviction. CL §5-613(a) defines a “drug kingpin” as an organizer, supervisor, financier, or manager who acts as a coconspirator in a conspiracy to manufacture, distribute, dispense, transport in, or bring into the State a controlled dangerous substance. When a drug kingpin “conspires to manufacture, distribute, dispense, transport in, or bring into the State,” a CDS in an amount listed in CL §5-612 (which for purposes of this case includes 448 or more grams of cocaine or 50 or more grams of “crack”), he or she is subject to a mandatory minimum sentence of 20 years, without the possibility of parole. CL §5-613(b)(1).

As used in the drug kingpin statute, the terms “organizer,” “supervisor,” “financier,” and “manager” have been determined to be “common words with well understood meanings.” Williams v. State, 329 Md. 1, 14 (1992). The phrase “drug kingpin” was intended by the legislature to apply to a leader of a drug trafficking network. To qualify as a drug kingpin, a defendant must be more than a “mere player” or an “important cog” in a trafficking scheme. Williams, 329 Md. at 20. Rather, there must be evidence that the accused acted as “a leader of a drug trafficking network,” and that he or she exercised a measure of control over the drug conspiracy. Id.

Here, the circumstantial evidence was sufficient to support the jury’s verdict that Kyler acted as a drug kingpin, i.e., leader of the drug operation. In addition to being in possession of large quantities of CDS, and quantities of cocaine indicating a dealer who had staff to give large quantities of cocaine to sell, the evidence supported a finding that Kyler was the person responsible for retaining large quantities of cash, as well as the means to count and track that cash. This evidence supported the jury’s finding that Kyler was a leader of a large drug operation, and that he managed the operation. Accordingly, the evidence was sufficient to support the drug kingpin conviction.

PRACTICE TIPS: When a court imposes a sentence that is not authorized by law, the sentence is illegal. An illegal sentence claim is not subject to waiver. Therefore, the issue of merger was properly before the appellate court even in the absence of an objection below.

Criminal Procedure

Search and seizure 

BOTTOM LINE: In a burglary case in which the charges against defendant were based solely on DNA evidence from a sample he voluntarily gave in an earlier, successful effort to clear himself of an unrelated rape charg, the state’s retention and subsequent examination of the sample did not itself amount to a search and, therefore, the state had no obligation to obtain a warrant before using the sample in its subsequent investigation.

CASE: Varriale v. State, No. 1261, Sept. Term, 2013 (filed July 30, 2014) (Judges Zarnoch, Hotten & Arthur). RecordFax No. 14-0730-05, 15 pages.

FACTS: On July 10, 2012, while Detective David Wood of the Anne Arundel County Police Department was looking for a suspect in an alleged rape, the detective encountered a homeless man, George Varriale, in a tent in a wooded area behind a liquor store. Detective Wood identified himself to Varriale, explained why he was in the area, and asked Varriale if he would sign a form consenting to be searched. Varriale signed the form, which provided, in part, that he agreed to furnish evidence in the form of “saliva” and “penile swabs.”

Shortly thereafter, the police collected a sample of Varriale’s saliva and a swab of his penis. Detective Wood did not arrest Varriale or contact him again after that day. The detective did, however, submit the evidence collected from Varriale to the Anne Arundel County crime laboratory for serological and DNA analysis. Five months later, Ashley Hayes, a forensic DNA analyst at the Anne Arundel County Police Department Crime Laboratory, reported to Detective Wood that a partial DNA profile collected from the alleged rape victim excluded Varriale. Additionally, Hayes stated that she could not draw a conclusion from a partial DNA profile that was obtained from the swabs of Varriale’s penis.

Without consulting with Detective Wood or informing Varriale, Hayes uploaded Varriale’s DNA profile into the “suspect index” of the County and state DNA databanks. In doing so, Hayes performed an automatic search of the County databank that compared the DNA profiles of known persons to DNA profiles developed from crime scene evidence. A few days later, Ms. Hayes generated a report that a match had been established between Varriale’s DNA profile and a DNA profile associated with a burglary. The police had created that profile from a DNA sample that they took from a Coke can at the scene of the burglary.

Varriale was subsequently charged with the burglary based on the DNA evidence. In pre-trial proceedings in the burglary prosecution, Varriale moved to suppress the DNA evidence. The trial court denied the motion. Thereafter, Varriale entered a conditional guilty plea to burglary in the second degree. The circuit court sentenced Varriale to four years’ imprisonment, with the entirety of the sentence suspended, except for time served. The circuit court also placed Varriale on probation for two years. The State entered a nolle prosequi for the remaining counts of the indictment.

Varriale appealed to the Court of Special Appeals, which affirmed the judgment of the circuit court.

LAW: Varriale first argued that the County exceeded the scope of his consent to a search, which he claimed was limited to the use of his DNA in the rape investigation alone, thereby rendering its retention and use of his DNA after he was cleared of suspicion an unreasonable search and seizure.

A search occurs when an expectation of privacy that society is prepared to recognize as reasonable is infringed. United States v. Jacobsen, 466 U.S. 109, 113 (1984). A person has a reasonable expectation of privacy in the physical integrity of his or her body. See, e.g., Maryland v. King, 569 U.S. ___, ___, 133 S. Ct. 1958, 1969 (2013). Thus, when the police collected a sample of Varriale’s saliva and a swab of his penis, they engaged in a search. Id.

A search, however, does not violate the Fourth Amendment if a person consents to it. See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). Here, Varriale signed a form consenting to provide a sample of his saliva and a swab of his penis to police. Although consent must be voluntary in order to be valid, Varriale contended that the scope of his consent was limited to the initial rationale for the gathering of his DNA: the police’s investigation into the alleged rape.

The consent form was not a model of clarity. While the form stated that that Varriale’s DNA could be used in any future criminal prosecution, it did not clearly specify whether the State could use the DNA only in a “criminal prosecution” for the alleged rape that the police were actually investigating, as opposed to some other “criminal prosecution” that is entirely unrelated to the alleged rape. Construing this ambiguity against the State as the drafter, the consent form did not contain Varriale’s consent to the use of his DNA in criminal prosecutions that were unrelated to the alleged rape.

Nevertheless, if the State lawfully obtains a DNA sample, the retention and subsequent examination of the sample ordinarily does not itself amount to a search. See Maryland v. King, 569 U.S. at ___, 133 S. Ct. at 1979. Thus, when the State lawfully obtained a paper cup that the defendant had discarded, it had no obligation to obtain a warrant before extracting a DNA sample from the saliva on the cup. Williamson v. State, 413 Md. 521, 547 (2010). Similarly, when the State lawfully obtained the defendant’s blood sample in one criminal investigation, it had no obligation to obtain a warrant before extracting a DNA sample from the blood in a subsequent investigation. Wilson v. State, 132 Md. App. 510, 550 (2000).

For that reason, the ambiguity in the consent form was ultimately immaterial. Even if Varriale did not unambiguously consent to the use of his DNA in criminal prosecutions unrelated to the alleged rape, he unquestionably consented to the taking of a DNA sample at least for the purpose of the rape investigation itself. Furthermore, once the State had validly obtained the sample, as it did when Varriale consented to the taking of the sample in connection to the rape investigation, it had no obligation to obtain a warrant before using the sample in a subsequent investigation. Williamson, 413 Md. at 547. As such, Varriale’s 4th Amendment challenge to the use of his DNA sample was without merit.

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: Varriale additionally argued that Maryland’s DNA Collection Act does not permit the retention of a person’s DNA if he or she has been cleared of suspicion in the investigation in which the sample was obtained. Varriale predicated his argument on Md. Code (2003, Repl. Vol. 2011) § 2-511(c) of the Public Safety Article. In pertinent part, that statute provides that any DNA samples and records generated as part of a criminal investigation or prosecution shall be destroyed or expunged automatically from the State DNA database if a criminal action begun against the individual relating to the crime does not result in a conviction of the individual.

Parsing the words of this particular statute, two requirements must be met to trigger the expungement of the DNA records: (1) a “criminal action” must have begun against a person, and (2) the person must not have been convicted of the crime with which he or she was charged. Here, Varriale certainly met the second criterion, as he was never convicted of the alleged rape. He did not, however, meet the first, as the State never began a “criminal action” against him as a result of the rape investigation. He was never charged with the alleged rape nor arrested for it. Thus, he did not meet the criteria that triggers the expungement required by this Act.

Even if the term “criminal action” were interpreted to cover a mere criminal investigation, as Varriale urged, it would remain unclear when the actual expungement would have to occur. Md. Code (2003, Repl. Vol. 2011) §2-511(d) of the Public Safety Article dictates that expungement “shall occur within 60 days” of when a “criminal action begun against the individual relating to the crime does not result in a conviction of the individual.” Id. §2-511(a). If, however, an investigation never leads to formal criminal charges, it would be challenging to ascertain precisely when a conviction failed to occur and thus when the 60-day period would begin to run. The administrative difficulty in ascertaining the answer to that question strongly suggests the term “criminal action,” in §2-511(d), cannot mean a mere criminal investigation, but must instead mean the initiation of formal criminal charges. Thus, because Varriale did not face formal criminal charges as a result of the investigation in which he consented to the taking of his DNA sample, he could not claim the benefit of the expungement provisions of §2-511(d).

PRACTICE TIPS: While it may seem anomalous that one who volunteers to provide DNA evidence would have fewer statutory protections than someone who had been charged with or even convicted of a serious criminal offense, the anomaly is a result of the history and structure of the DNA Collection Act itself. When enacted in 1994, the Act authorized the collection, retention, and (in some cases) expungement of DNA only from persons who had been convicted of felonies or of other enumerated crimes. In 2008, the General Assembly amended the Act to extend its provisions, including the expungement provisions, to persons who had been charged with a crime of violence, an attempt to commit a crime of violence, burglary, or an attempt to commit a burglary. The General Assembly has yet to extend the expungement provisions to persons who voluntarily consent to the taking of a DNA sample.

Criminal Procedure

Statements made in settlement 

BOTTOM LINE: Circuit court did not commit plain error in admitting defendant’s statements to the police regarding events surrounding a shooting death, and, moreover, did not commit an error at all, because the statements were not made to an attorney for the prosecuting authority but to two police detectives and, thus, were not, as defendant claimed, statements made in the context of settlement negotiations.

CASE: Savoy v. State, No. 2612, Sept. Term, 2012 (filed July 31, 2014) (Judges Zarnoch, Graeff & RAKER (Retired, specially assigned)). RecordFax No. 14-0731-03, 32 pages.

FACTS: During the evening of August 1, 2011, at approximately 11:15 p.m., Sean Ames was shot and killed in Baltimore City outside of the residence of Troy Harkless and his then-girlfriend, Amber Buschman. The defendant, Ottus Savoy, had been staying at the residence temporarily. According to the two eyewitnesses at the scene, Janice Jay and Buschman, Savoy emerged from a taxi and demanded to know why Ames was on the steps.

When Ames replied that he was selling DVDs and awaiting Mr. Harkless’ return, Savoy ran into the house, retrieved a handgun, and returned outside. Savoy then shot Ames on the steps, and when Ames attempted to flee, Savoy chased him up the street and shot him several more times, killing him. The police recovered the gun from the roof of a garage adjoining the Harkless residence.

On August 25, 2011, the police arrested Savoy and brought him to the homicide unit. The police interviewed him at two different times. Detective Moynihan testified that when Savoy was questioned after his arrest, he wrote on a piece of paper, “If you all can get me 20 to 25 years with a lawyer I will take the plea.” When told by a detective that they would need more information to take to the State’s Attorney, Savoy replied, “The [blank] flinched, acted like he was reaching. I will tell you all how the whole situation happened in front of the State’s attorney.”

Savoy was indicted by a grand jury with first degree murder, use of a handgun in the commission of a crime of violence, and wearing, carrying, and transporting a handgun. Prior to his trial in the circuit court, Savoy filed a motion to suppress these incriminating statements, arguing that the statements were involuntary because they were the product of coercive tactics. The court rejected this argument and denied the motion to suppress.

Savoy proceeded to trial before a jury in the circuit court. Although the defense called no witnesses in the case, the defense’s theory of the case was that Harkless, not Savoy, killed Ames. Harkless testified for the State that he had arranged for Ames to sell him DVDs outside his residence. Harkless then walked to a neighborhood Seven-Eleven. Upon returning, he learned that Ames had been killed. Harkless found the murder weapon, which was his own gun wrapped in a towel, and tossed it from the window onto a nearby garage roof out of fear that he would be linked to the homicide.

Detectives testified that Harkless provided them with a receipt from the Seven-Eleven and that the surveillance video maintained by the store depicted Harkless before the murder occurred. It was unclear whether Harkless had sufficient time to travel from the store to his home to perpetrate the killing.

The jury convicted Savoy of second-degree murder and use of a handgun in the commission of a crime of violence. The court sentenced Savoy to a term of incarceration of 30 years for second-degree murder and a consecutive term of incarceration of 20 years for the use of a handgun.

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

LAW: Savoy first argued that the trial court erred in admitting Savoy’s statements to the police. Specifically, Savoy claimed that the trial court committed plain error in allowing the admission of the incriminating statements he made to the police because they were statements made in the context of settlement negotiations and Savoy offered to plead guilty in return for a specified sentence. Savoy abandoned the argument he made in the trial court that the statements were involuntary because of police coercion and instead argued that the statements were inadmissible because they were part of plea negotiations and taken in violation of Miranda.

With regard to the alleged Miranda violation, it was undisputed that Savoy did not preserve the issue for appellate review and waived the arguments he was raising on appeal. See Rule 8-131 and Rule 4-252. Absent good cause, Rule 4-252 prohibits a criminal defendant from raising a theory of suppression on appeal that was not argued in the circuit court. See Ray v. State, 435 Md. 1, 19 (2013). Rule 8-131(a) provides that, ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court. Savoy offered no reason for the failure to raise the issue below, other than possibly appellate after-thought, which was insufficient. Therefore, because Savoy did not raise his Miranda theory of suppression in the circuit court, that argument was affirmatively waived. See Carroll v. State, 202 Md. App. 487, 513 (2011), aff’d, 428 Md. 679 (2012).

Savoy’s other argument, that his statements were inadmissible at trial because they were made during plea negotiations within the purview of Rule 5-410, and therefore, nothing that transpired there was admissible in evidence, was not affirmatively waived in the same sense as Savoy’s Rule 4-252 argument was waived because Savoy’s 5-410 argument was a trial evidentiary one, not a mandatory motion falling within the ambit of Rule 4-252. He was required, however, to raise the issue below as required by Rule 8-131. He failed to do so. He was not barred, however, from seeking plain error review.

Plain error review is reserved for those errors that are compelling, extraordinary, exceptional or fundamental to assure the defendant of a fair trial. Robinson v. State, 410

Md. 91, 111 (2009). It involves four prongs: (1) the error must not have been “intentionally relinquished or abandoned”; (2) the error must be clear or obvious, not subject to reasonable dispute; (3) the error affected Savoy’s substantial rights, which means he must demonstrate that it affected the outcome of the court proceeding; (4) the appellate court has discretion to remedy the error, but this ought to be exercised only if the error affects the fairness, integrity, or public reputation of judicial proceedings. State v. Rich, 415 Md. 567, 578 (2010). Although Savoy’s argument was not procedurally barred from plain error review, it did not meet the threshold for plain error review; it was not compelling, extraordinary, exceptional or fundamental to assure a fair trial.

Moreover, the circuit court did not act in error. Savoy argued that both his statements to the detectives should have been excluded because they were made in the context of settlement negotiations. He cited Rule 5-410(a), which provides that except as otherwise provided in the Rule, evidence of any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or nolo contendere, or which result in a plea of guilty or nolo contendere which was not accepted or was later withdrawn and vacated, is not admissible against the defendant who made the plea or was a participant in the plea discussions.

Rule 5-410(a)(4) was inapplicable here. The statements at issue that Savoy made were not to “an attorney for the prosecuting authority” but to two police detectives. Thus, Savoy’s conduct did not come within the ambit of the Rule. Accordingly, there was no error.

Accordingly, because Savoy’s remaining arguments were also without merit, the judgment of the circuit court was affirmed.

COMMENTARY: Savoy additionally argued that he did not knowingly and intelligently waive the right to testify. Savoy’s attorney told him, erroneously, that if he testified, the State could impeach him with his prior conviction for first-degree assault. First-degree assault is not an impeachable conviction. See Christian v. State, 405 Md. 306, 320 (2008). Savoy argued that because the trial court erred in failing to correct the erroneous advice defense counsel provided him regarding his right to testify, his waiver of that right was not knowing and voluntary.

The defendant’s right to testify is a personal right which may be waived only by the defendant, and not by counsel. Tilghman v. State, 117 Md. App. 542, 553 (1997). In Maryland, when a defendant is represented by counsel, there is no obligation on the part of the court to advise the defendant of the right to testify. Id. at 554. Ordinarily, there is a presumption, premised on the permitted inference that an attorney, as an officer of the court, follows the law and performs his or her duties, that a represented defendant has been told by counsel of his or her constitutional rights. Id. at 554-55.

There are times, however, when a court has a duty to act, even when a defendant is represented by counsel. In the present case, given that trial counsel’s advice about impeachment with the first-degree assault conviction was facially incorrect, the trial court should have corrected the erroneous advice. However, Savoy was required to demonstrate on appeal that the incorrect advice influenced his election not to testify. There was no indication in the case at bar that Savoy relied detrimentally on his trial counsel’s advice. Savoy did not claim that he would have testified but for the erroneous advice given by his counsel but only that it was “highly likely” that his election was affected, which was mere speculation. Absent detrimental reliance, Savoy was not entitled to a reversal. See, e.g., Gilliam v. State, 320 Md. 637, 656 (1990).

Criminal Procedure

“Witness promised benefit” jury instruction 

BOTTOM LINE: Circuit court did not abuse its discretion in declining to give a “witness promised benefit” jury instruction despite the fact that an eyewitness received paid protective housing from the state, because credibility issues were fairly covered in general jury instructions and, moreover, eyewitness’s testimony was corroborated by other testimony.

CASE: Preston v. State, No. 1293, Sept. Term, 2012 (filed July 30, 2014) (Judges Eyler, Mattricciani & RAKER (Retired, Specially Assigned)). RecordFax No. 14-0730-04, 20 pages.

FACTS: Dontaya Preston was arrested and charged in the circuit court for multiple offenses relating to the shooting death of Keon Barnes on the evening of March 14, 2009. Barnes was shot and killed outside Nichelle Payton’s house in Baltimore City where he and the defendant, Dontaya Preston, were attending a “pajama party.” There were two eyewitnesses to the events.

The first eyewitness, Katrina Harrell, testified that when she was going to her car, she saw Barnes and Preston talking to each other on Payton’s porch. After entering her car, she heard gunshots, and when she looked up, she saw Barnes lying on the steps and Preston standing over him holding a gun. The second witness, Payton, testified that she heard gunshots when she was preparing for the party. She ran upstairs, and when she looked out her bedroom window she saw Barnes lying on the steps and Preston heading toward his car. Both Harrell and Payton selected Preston from a photo array. Harrell identified Preston as the person who shot Barnes, and Payton stated that Preston was at her party and that she saw him going to his car after Barnes was shot.

During Preston’s trial in the circuit court, defense counsel attempted to establish that Payton cooperated fully with the State only because the police agreed to move her to free, protective housing for several months. Defense counsel told the court that the State paid $13,530 to move and house Payton rent-free from July 2009 through February 2010. Payton testified that some days after the murder, Preston came to her house and knocked on the door, but that she did not answer because she was scared. Sometime after, she called the police and asked to be moved. Payton testified on direct examination that when she provided her statement to the police and identified Preston in the photo array, the police had not yet promised to move her.

On cross-examination, Payton admitted that she did not tell the police initially that she witnessed a portion of the shooting. In response to defense counsel’s questioning, Payton confirmed that she did not cooperate or talk to the police until after Preston came and knocked on her door, and that that was when she said that she wanted to be moved. When defense counsel asked Payton to confirm that it was only after she received assurances that she would be moved that she gave a taped statement to police, Payton responded, “Correct. No.”

Detective Michael Moran testified that he spoke to. Payton on several different occasions during the course of his investigation because she was scared and only volunteered small amounts of information at each interview. He acknowledged that no statement was taken from Payton on the night of the murder or shortly thereafter. On April 8, Payton came to the Homicide

Department, provided a taped statement in which she stated that she witnessed a portion of the shooting, and picked out Preston from a photo array. On April 14, Detective Moran requested to have Ms. Payton moved to protective housing.

Defense counsel requested the MSBA Criminal Pattern Jury Instruction 3:13, “Witness Promised Benefit,” as an interim instruction before Payton testified based on the protective housing provided to Payton. The court declined to give the instruction at that time. Later, when the court and parties discussed the jury instructions to be used at the end of the case, defense counsel objected to the omission of the “witness promised benefit” instruction. The court denied the requested instruction. Defense counsel did not argue to the jury in closing that Payton provided evidence for the State because she received free, protective housing in return, and that her testimony might be less credible because of this benefit.

The jury convicted Preston of first-degree murder, use of a handgun in the commission of a crime of violence, and wearing, carrying, and transporting a handgun. The court sentenced Preston for the murder to a term of incarceration of life, for the use of a handgun, to a consecutive term of incarceration of twenty years, and for the carrying conviction, to a concurrent term of incarceration of three years.

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

LAW: Preston argued that he was entitled to the “witness promised benefit” instruction because Payton provided some evidence in her testimony that she expected to be moved to free housing in exchange for her cooperation with Detective Moran’s investigation. According to Preston, the fact that Ms. Payton provided a statement only after she was promised the housing benefit was significant.

Rule 4-325, which governs jury instructions in criminal cases, provides, in part, that the court need not grant a requested instruction if the matter is fairly covered by instructions actually given. The Rule has been interpreted to require the court to give an instruction requested by a party when a three-part test is met: (1) the instruction correctly states the law; (2) the instruction applies to the facts of the case, or in other words, is generated by the evidence; and (3) its content is not fairly covered in another instruction. Dickey v. State, 404 Md. 187, 197-98 (2008). For an instruction to be generated by the evidence, the defendant need only show that “some evidence” supports the giving of the instruction. McMillan v. State, 428 Md. 333, 355 (2012).

Nonetheless, Rule 4-325(c) is not absolute. Gunning v. State, 347 Md. 332, 347 (1997). The decision whether to give an instruction should be left to the sound discretion of the trial court. Id. at 348. In particular, an eyewitness identification instruction need not be given when other instructions “fairly cover” the subject matter of the instruction requested. Id.

In the present case, defense counsel requested the MSBA Criminal Pattern Jury Instruction 3:13, “Witness Promised Benefit.” This instruction advises the jury that it may consider the testimony of a witness who provided evidence for the state “as a result of” an “expectation of a benefit,” but that such testimony should be considered “with caution” because it may have been influenced by a desire to gain the benefit. Arguments in favor of “witness benefit” instructions assume that a witness promised a benefit by the State has greater motivation to lie than the typical witness. See United States v. Cook, 102 F.3d 249, 251 (7th Cir. 1996). Maryland’s “witness promised benefit” instruction, like similar instructions, advises the jury of these credibility considerations.

No known Maryland case had addressed whether a trial court must provide the “witness promised benefit” instruction in applicable circumstances, or if instead it is within the sound discretion of the court. In the present case, however, the jury could have drawn the inference that Payton provided her statement to the police with the expectation that she would receive protective housing in return. In comparable cases considering questions of witness creditability, the Supreme Court did not affirmatively require trial courts to provide an informer instruction, nor did the Court suggest that the matter was outside the discretion of the trial court. See Lee v. United States, 343 U.S. 747, 757 (1952). Likewise, several jurisdictions have held that a trial court does not abuse its discretion in declining to instruct the jury as to the “witness benefit” instruction, reasoning that the general credibility instruction given in the case fairly covered the issue. See, e.g., State v. Knight, 13 A.3d 244, 249 (N.H. 2011).

For these reasons, an instruction singling out paid informants’ testimony as especially untrustworthy need not and should not be given as a matter of course. Such an instruction may be appropriate when a particular informant appears to present unusually great risks, which the judge fears the jury might underestimate unless the subject is drawn to its attention. This in turn implies that the decision either to give or to refrain from giving an instruction on the subject is committed to the discretion of the district court, which is best situated to detect and deal with threats of unreliable testimony, and that appellate review is deferential. Given the pervasiveness of reliability problems, it is adequate, in the main, to give a general credibility instruction referring to the possibility of bias, which coupled with cross-examination and closing argument by counsel will put the subject before the jury for decision.

Here, the standard credibility instructions provided by the court “fairly covered” the credibility concerns regarding Payton’s testimony. The court gave the MSBA Criminal Pattern Jury Instruction 3:10, “Credibility of Witnesses,” which instructs the jury to consider “whether the witness has a motive not to tell the truth” and “whether the witness has an interest in the outcome of the case.” Additionally, defense counsel had a full opportunity to cross-examine Payton and to bring out any potential inconsistencies in her testimony. As such, the circuit court did not abuse its discretion in declining to give the “witness promised benefit” instruction.

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: All jurisdictions acknowledge that a trial court does not commit reversible error in refusing to provide the instruction when the testimony of the informer is corroborated by other evidence. See United States v. Holmes, 229 F.3d 782, 788 (9th Cir. 2000). If an informer’s testimony is not corroborated, courts have been concerned that the informer manufactured the allegations against the defendant. See State v. Draughn, 602 N.E.2d 790, 796 (Ohio Ct. App. 1992). When, on the other hand, the testimony of an informer is corroborated, there is little or no danger that the jury will base its verdict solely on the testimony of a witness who may have had good reason to lie. See United States v. Williams, 59 F.3d 1180, 1183 (11th Cir. 1995).

If the informer’s testimony is not the only strong evidence of guilt, courts have held that a general credibility instruction is sufficient. See Holmes, 229 F.3d at 788. Here, Payton’s testimony was corroborated by Harrell’s testimony. Harrell saw everything Payton did, and more. For this reason as well, the court did not abuse its discretion in declining to provide the “witness promised benefit” instruction to the jury.

PRACTICE TIPS: Some courts have noted that a witness promised a benefit by the State has an incentive to implicate the accused falsely, and thus that witness’s testimony is no less suspect than that of an accomplice who expects leniency from the State. Other manuals state that testimony of an informer should be given the weight it deserves, but must be considered with caution and care. Oftentimes courts refer to the portion of these instructions which require the jury to scrutinize the credibility of the informant witness, typically found at the end of the instruction, as the “cautionary tail.”

Family Law

Child abuse by mental injury 

BOTTOM LINE: The record supported administrative law judge’s factual findings that the mother’s actions constituted child abuse by mental injury, where the mother made multiple allegations that the child had been sexually abused by her father and subjected the child to repeated sexual abuse exams.

CASE: McClanahan v. Washington County Department of Social Services, No. 737, Sept. Term, 2013 (filed July 31, 2014) (Judges Eyler, WOODWARD & Reed). RecordFax No. 14-0731-00, 33 pages.

FACTS: Raven H. was born to Lauren McClanahan and her then-husband, John H., on May 6, 2005. On August 2, 2006, McClanahan and Mr. H. separated after 19 years of marriage, and they legally divorced on February 25, 2008. After her parents’ divorce, Raven lived with McClanahan, who had primary physical custody, and had unsupervised visitation with her father three weekends per month and one weeknight per week. Mr. H. remarried, as did McClanahan. McClanahan’s second husband, Michael M., died in December 2009. As of the time of the present appeal, McClanahan resided had been residing with a live-in partner.

During the approximately three-and-a-half year period from June 2007 to November 2, 2010, McClanahan took Raven to the hospital nine times for physical examinations related to sexual abuse allegations. The examinations shared two common features: first, the evaluations occurred after Raven made sexual abuse allegations following visitation at her father’s home; second, Raven presented with physical symptoms immediately prior to each examination. None of these examinations, however, confirmed that Raven had been sexually abused.

At first, Raven alleged that her father or step-brother had molested her or penetrated her with small objects, and later described assaults involving a needle, cream, or the family’s companion animals. Raven generally made these accusations in the presence of her mother. Raven displayed very similar physical symptoms at the time of each appointment, including genital redness and swelling, and occasionally vaginal discharge, which indicated a urinary tract infection. At the second forensic examination, on February 21, 2008, Dr. Ruth Dwyer diagnosed Raven with “vulvitis–normal variant in pre-pubertal female,” and the terms “vulvitis” and “vaginitis” were often used to describe the irritation experienced by Raven.

Both the irritation and the infections observed in Raven were common in children her age, and could often be attributed to poor hygiene. At the February 2008 visit, Dr. Dwyer noted toilet paper on Raven’s genitals, an indication of poor hygiene, and discussed “routine good hygiene care” with McClanahan. Dr. Dwyer also reported in Raven’s medical chart that a history of sexual abuse had not been excluded. However, no examination revealed definitive signs of sexual abuse. In addition, and importantly, from February 2008 until May 2010, the Department conducted 14 sexual abuse investigations, all of which ruled out sexual abuse.

On May 14, 2010, the Department began an investigation into McClanahan for causing mental injury to Raven. Dr. Carlton Munson, a licensed certified social worker with a Ph.D. in clinical social work, evaluated Raven for mental injury on July 16 and August 4, 2010, after receiving a referral from Bruce McCarthy, an investigator from Child Protective Services (“CPS”). In his final report on October 29, 2010, Dr. Munson diagnosed the child as having indications of mental injury. Dr. Munson categorized her disorder under Axis I of the Diagnostic and Statistical Manual of Mental Disorders (DSM) as “Parent-Child Relational Problem.”

This finding echoed the diagnosis made by Raven’s therapist, Amy Hershey, whom Dr. Munson interviewed. Hershey diagnosed Raven under Axis I as having an “Adjustment Disorder with Mixed Anxiety and Depressed Mood,” related to “dealing with parental conflict and disagreement between households.” Dr. Munson further observed that Raven’s mental injury had impaired Raven’s emotional, social, and intellectual function.

In addition to at McCarthy’s request, Ronald Zuskin, a licensed certified social worker-clinical conducted an assessment of Raven. From August 2010 to October 2010, Zuskin reviewed Dr. Munson’s report and interviewed McClanahan, Hershey, Mr. H., and Mr. H.’s second wife, but did not interview Raven. Zuskin adopted Hershey’s diagnosis of “Adjustment Disorder with Mixed Anxiety and Depressed Mood.” Zuskin also concluded that McClanahan exploited Raven through making repeated sexual abuse allegations, and that such exploitation caused Raven’s impairment.

In December 2010, the Washington County Department of Social Services found Lauren McClanahan responsible for indicated child abuse by mental injury of Raven, who was then five years old. The finding of child abuse stemmed from McClanahan’s repeatedly making sexual abuse allegations against Raven’s father and taking the child to multiple sexual abuse examinations. McClanahan appealed the Department’s finding to the Office of Administrative Hearings (“OAH”) in January 2011, and an administrative law judge (“ALJ”) affirmed the Department’s finding in October 2011. McClanahan then sought judicial review of the ALJ’s determination in the circuit court, which affirmed the ALJ’s decision.

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

LAW: McLanahan argued that the OAH decision was not supported by competent, material, and substantial evidence in light of the entire record, or was otherwise arbitrary or capricious. The ALJ concluded that McClanahan’s act of making multiple allegations of sex abuse of Raven by her father and subjecting Raven to repeated sexual abuse exams constituted child abuse mental injury. The ALJ supported this conclusion with a lengthy review of the evidence, in which she heavily relied upon the evaluations of Drs. Munson and Zuskin.

Under Md. Code (1984, 2012 Repl. Vol.), §5-701(b) of the Family Law Article (“FL”), a finding of indicated child abuse with mental injury is appropriate if there is credible evidence, which has not been satisfactorily refuted, that the following four elements are present: (a) A current or prior mental injury characterized by an observable, identifiable, substantial impairment to the child’s mental or psychological ability to function, which may be shown by the need for specific psychiatric, psychological, or social work intervention; (b) The mental injury was caused by a parent, a caretaker, or household or family member; (c) The alleged victim was a child at the time of the incident; and (d) The nature and extent of the mental injury indicate that the child’s health or welfare was harmed or was at substantial risk of harm. FL §5-706 requires that any investigation into mental injury include two assessments by licensed physicians, licensed psychologists, or licensed social workers. FL §5-706(d)(2).

Here, experts presented evidence establishing that the abusive pattern did in fact exist and that it caused Raven’s injury. In the process, the assessments made references to specific acts performed by McClanahan. Dr. Munson described the exact nature of Raven’s mental impairment, which McClanahan did not dispute. He described her as suffering from anxiety and from “positive insecure attachment to her mother.” Dr. Munson based this assessment on clinical evaluations and interviews, and described how Raven had multiple meltdowns in which she exhibited anxiety and protective behavior. Dr. Munson further observed that Raven’s emotional distress was generally more apparent when the child interacted with McClanahan than it was when she visited with her father.

Zuskin provided the best explanation of the mechanism that caused Raven’s impairment, what is known as “exaggerated positive feedback.” In such instances the child senses the parent’s need to hear certain things said, and the parent responds with animated closeness and protectiveness, inadvertently reinforcing such behavior in the child. Zuskin categorized this pattern of behavior as a form of “exploitation,” manifesting in this case as “extreme over-involvement, intrusiveness and dominance” on the part of McClanahan.

The positive feedback loop described by Zuskin also explained how McClanahan’s behavior caused Raven’s symptomatic anxiety and inappropriate protectiveness. The experts pointed to evidence demonstrating that the positive feedback loop existed between McClanahan and Raven. The positive feedback loop was also indicated as a cause of Raven’s mental injury, because Dr. Munson and Zuskin excluded other possible sources of injury. Finally, the assessments of Dr. Munson and Zuskin provided specific examples of McClanahan’s misconduct, such as McClanahan’s making allegations of abuse and taking Raven to exams. As such, the reports of Dr. Munson and Zuskin provided sufficient evidence of what acts McClanahan committed and how those acts caused Raven’s mental injury.

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: McClanahan also contended that the assessments of Drs. Munson and Zuskin improperly encroached on the judge’s function to adjudicate credibility, and, therefore, were inadmissible. In addition, she argued that neither Dr. Munson nor Zuskin provided the foundation of scientific acceptance for their opinions as required by Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). However, McClanahan never raised these issues before the ALJ. In fact, she accepted Drs. Munson and Zuskin as experts and allowed their reports and expert opinions to be admitted into evidence without objection. As such, McClanahan’s arguments regarding the experts’ improper credibility assessments and the Frye standard were waived. See Delmarva Power & Light Co. v. Pub. Serv. Comm’n of Md., 370 Md. 1, 32, aff’d on other grounds, 371 Md. 356 (2002).

Likewise, McClanahan failed to raise before the ALJ her claim that she should be granted immunity because she was required to report child abuse to the Department. A legal defense, such as immunity, that does not appear in the statute or in the implementing regulations does not qualify as integral and can be waived. Therefore, McClanahan’s immunity claim was not preserved.

PRACTICE TIPS: The statute and regulations pertaining to indicated child abuse by mental injury do not include a scienter element. Thus, no scienter requirement is required for a finding of indicated child abuse by mental injury; rather, a parent must simply have “caused” the mental injury.

Torts

Nuisance 

BOTTOM LINE: In private nuisance action by a drive-in movie theater, against a neighboring convenience store and service station, in which plaintiff alleged that the defendant’s lighting interfered with plaintiff’s drive-in movie business, circuit court correctly granted defendant’s motion for judgment notwithstanding the jury verdict, as the evidence was not sufficient to show that defendant’s lighting was unreasonable and substantial to a business no more than ordinarily susceptible to light.

CASE: Blue Ink., Ltd. v. Two Farms, Inc. d/b/a Royal Farms, Inc., No. 01487, Sept. Term, 2012 (filed July 30, 2014) (Judges Zarnoch, Kehoe & LEAHY). RecordFax No. 14-0730-06, 26 pages.

FACTS: Bengies Drive-In Movie Theatre, a family-owned business, was constructed by Jack Vogel and his three brothers in the late 1950s. Eventually, D. Edward Vogel began operating the drive-in and in 2000, negotiated a buy-lease agreement to purchase Bengies from his parents, Jack and Aileen Vogel. In order to facilitate a commercial loan in connection with the transfer, Mr. Vogel needed to ensure that the property was accurately zoned.

During the re-zoning process, Mr. Vogel entered into a Restrictive Covenant Agreement, dated August 25, 2004, with a community group called Bowleys Quarters Improvement Association. The Association agreed to forego opposition to the zoning reclassification in exchange for Bengies’ agreement limiting future expansions on the property. Mr. Vogel officially acquired the property in December 2007, but apart from a cell communications tower, none of the other improvements were constructed.

Bengies was located at 3417 Eastern Boulevard in an area that had been commercially developed for many years. Peppermint Woods, Ltd. owned the property at 3300 Eastern Boulevard, on the opposite side of Eastern Boulevard across from Bengies. In 2003, Peppermint Woods, Ltd. filed a petition for special exception with the Zoning Commissioner of Baltimore County for the construction of a service station and accompanying carryout restaurant and rollover car wash.

Mr. Vogel attended the public hearing on special exception to represent Bengies’ interests. The Zoning Commissioner granted the petition, subject to submission of “a landscape and lighting plan for review and approval by the Office of Planning and Avery Harden, Landscape Architect for Baltimore County” that provided sufficient screening so that security lights, permanent lighting and vehicle headlines did not inappropriately spill onto adjacent properties, particularly Bengies. Avery Harden and the Office of Planning thereafter approved the plans for the construction of a convenience store, gas pumps, and a car wash.

The Royal Farms opened its doors for business in December 2008. The gas station aspect of the facility consisted of a number of gasoline pumps located below a canopy of the type designed to protect those pumping gas from inclement weather. The pumps were illuminated by lights. Parking spaces around the convenience store were illuminated by lighting mounted on poles. There were also several lighted signs that could be seen from the drive-in.

Mr. Vogel filed an official complaint about the Royal Farms lights with Baltimore County Department of Code Enforcement. When the Department declined to issue a citation for the lights, Mr. Vogel sought a Writ of Mandamus from the circuit court, requesting that the court compel the Department to issue a citation. The circuit court dismissed the complaint.

On June 28, 2010, Bengies, by and through Blue Ink, Ltd. and The Last Picture Show, LLC (the landowner), filed a lawsuit against Peppermint Woods, Ltd. and Two Farms, Inc. in the circuit court, alleging claims of negligence, trespass, and private nuisance relating to the lights emanating from the Royal Farms premises onto Bengies’ property. At the close of evidence, the circuit court granted Royal Farms’ Motion for Judgment as to the negligence claim, but denied its Motion as to the private nuisance claim. The jury found in favor of Bengies and awarded $838,000 in damages, valuing the cost of constructing a fence to shield Bengies from Royal Farms’ lights and an insurance policy.

Royal Farms filed a Motion for JNOV or, in the alternative, Motion for New Trial. The circuit court granted the Motion for JNOV and set aside the judgment in favor of Bengies and entered judgment in favor of Royal Farms.

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

LAW: Bengies argued that the circuit court erred in granting the Motion for JNOV filed by Royal Farms. The doctrine of nuisance, which originally aimed to safeguard private landowners from being dispossessed of their property, evolved to protect private landowners from “substantial interferences” with the possession of land. Wietzke v. Chesapeake Conference Ass’n, 421 Md. 355, 373-74 (2011). Maryland courts have adopted §821D of the Restatement (Second) of Torts (1965), which more narrowly defines a private nuisance as “a nontrespassory invasion of another’s interest in the private use or enjoyment of land.” See, e.g., Rosenblatt v. Exxon Co., U.S.A., 335 Md. 58, 80 (1994). Nuisance is not confined to physical intrusions onto another’s property; rather, it broadly encompasses all tangible invasions, including noise, odor, and light. Exxon Corp. v. Yarema, 69 Md. App. 124, 147 (1986).

Although there is no requirement that a plaintiff demonstrate physical injury from an alleged nuisance, a plaintiff must demonstrate that the defendant’s interference with the plaintiff’s property rights is both unreasonable and substantial in order to recover for nuisance. Exxon Mobil Corp. v. Albright (Albright I), 433 Md. 303, 409-11, modified on other grounds, Exxon Mobil Corp. v. Albright (Albright II), 433 Md. 502 (2013). The present case involved an action for a private nuisance “in fact” as opposed to a nuisance per se. A nuisance per se is an act, occupation, or structure which is a nuisance at all times and under any circumstances, whereas a nuisance in fact is an act, occupation, or structure, not a nuisance per se, but one which becomes a nuisance by reason of the circumstances, location, or surroundings. Adams v. Comm’rs of Trappe, 204 Md. 165, 170 (1954).

Not all interference to neighboring landowners will justify limiting the reasonable use of property. A finding of nuisance involves a balance of the competing property interests at stake. Wietzke v. Chesapeake Conference Ass’n, 421 Md. 355, 382-83 (2011). The nuisance must, in the judgment of reasonable individuals, create a condition that is naturally productive of actual physical discomfort to persons of ordinary sensibilities, tastes, and habits and, in light of the circumstances, is unreasonable and in derogation of the rights of the party. Meadowbrook Swimming Club v. Albert, 173 Md. 641, 645 (1938).

In the present case, the parties did not dispute that light may, under certain circumstances, amount to nuisance. Instead, the parties disputed whether Bengies, as an establishment that required darkness to operate, could demand that Royal Farms modify the lighting on its property so that it could not be seen at night from Bengies’ property. A finding of private nuisance requires a two-part analysis: first, viewing the defendant’s activity, the interference must be unreasonable and substantial; and second, viewing the plaintiff’s alleged harm, the inconvenience or harm caused by the interference must be objectively reasonable.

In the present case, the circuit court properly concluded that a reasonable fact-finder could not have found a private nuisance under Maryland law by a preponderance of the evidence presented at trial. The court observed that, overall, there was little objective evidence presented as to the intrusive or non-intrusive effect of the Royal Farms’ lighting on the drive-in. The Royal Farms lighting was not directed at or oriented toward the drive-in, and no testimony was presented to demonstrate that the Royal Farms lights were unreasonable based on its location. Under the objective test applied in Albright I, the court correctly found that the Royal Farms lights were not unreasonable and substantial. See Schuman v. Greenbelt Homes, Inc., 212 Md. App. 451, 456 (2013).

Bengies established that it is uniquely sensitive to light, but, as discussed, a private nuisance action cannot be maintained based solely on the special sensitivities of a plaintiff. Schuman, 212 Md. App. at 470. The evidentiary record in this action did not support a conclusion that light emanating from Royal Farms would constitute a nuisance to a business “no more than ordinarily susceptible to light.” Because Maryland requires that a plaintiff demonstrate that the defendant’s interference with the plaintiff’s property rights is both unreasonable and substantial in order to recover for nuisance, and that the inconvenience created by the interference be one that is “objectively reasonable” to the ordinary person, the evidence presented at trial was not legally sufficient to support a jury verdict in favor of Bengies against Royal Farms for a private nuisance.

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: Other state jurisdictions, in accord with Maryland’s objective nuisance standard, have applied the standard in cases addressing whether a drive-in movie theatre can maintain a private nuisance claim based on an adjacent property owner’s lights. For instance, in Amphitheaters, Inc. v. Portland Meadows, the Oregon court held, as a matter of law, that the loss sustained by the plaintiff drive-in from light from a neighboring racetrack that was reflected onto the highly sensitized moving picture screen from the defendant’s property was a loss without injury. Amphitheaters, Inc. v. Portland Meadows, 198 P.2d 847 (Or. 1948). The private nuisance light cases, considered as a whole, seem to warrant the generalization that if the intensity of light shining from adjoining land is strong enough to seriously disturb a person of ordinary sensibilities, it is a nuisance; if not, there is no cause of action. 5 A.L.R.2d 705. The courts will not afford protection to hypersensitive individuals or industries. Id.

Zoning

Judicial review 

BOTTOM LINE: The enactment of a statutory text amendment by the city council and planning commission was a purely legislative act not subject to judicial review by the circuit court because the action did not decide the use of the specific parcel in question and was initiated by the mayor and city council rather than by a property owner and, therefore, was not a quasi-judicial zoning action.

CASE: Mayor and Council of Rockville, et al. v. Pumphrey, No. 0599, Sept. Term, 2013 (filed July 31, 2014) (Judges EYLER, Wright & Rodowsky (Retired, Specially Assigned)). RecordFax No. 14-0731-01, 40 pages.

FACTS: This appeal arose from two actions for judicial review filed in the circuit court. In each case, William Pumphrey, on behalf of the Robert Pumphrey Funeral Home, and RAP Leasing Corporation (“RAP”) (collectively “Pumphrey”), was the petitioner. Since 1930, the Robert Pumphrey Funeral Home, f/k/a Pumphrey’s Colonial Funeral Home, a family-run business, had operated out of a three-story house located at the corner of West Montgomery Avenue and Williams Street in the Rockville, Maryland. The funeral home’s address was 300 West Montgomery Avenue, and it fronted that road. In 1977, RAP, a corporate entity owned and operated by the Pumphrey family, purchased the property.

The lot next door, 304 West Montgomery Avenue, was purchased by the Pumphrey family in 1961. RAP also was the record owner of 304 West Montgomery Avenue. The funeral home had been a nonconforming use since August 3, 1932, when the first zoning ordinance governing the property was adopted. It and the adjoining parcel were zoned R-90 HD, Single Unit Detached Dwelling Restricted Residential, Historic District. The funeral home had 17 off-street parking spaces available for visitors, all located in its backyard. When, as often happened, the parking lot was full, visitors parked on Williams Street and other nearby residential streets. For some time, this practice had resulted in complaints from neighbors.

In 2010, Pumphrey began to investigate expanding the existing parking lot for the

Funeral Home onto the adjoining parcel. City officials informed him that the zoning ordinance prohibited the expansion of nonconforming uses except in very limited circumstances not applicable to the expansion of a parking lot. City officials also informed Pumphrey that he could pursue a text amendment to the zoning ordinance to permit such an expansion.

In June 2010, Pumphrey filed with the City’s Department of Community Planning and Development Services an “Application for Text Amendment.” The application sought to amend §25.08.05 of Article 8 of the Ordinance, which governs nonconforming uses in Single Dwelling Unit Residential Zones, adding a new subsection “d” which would allow expansion of parking of a long standing nonconforming use in a single dwelling unit residential zone. Ultimately, the Mayor and Council voted to support the amendment, adopting Ordinance 22-10 to do so.

After the application was granted, Pumphrey began the process to combine the two lots and to seek approval for a nonconforming alteration, i.e., to expand the parking lot. By November 2011, Pumphrey had filed with the planning division a pre-application and had completed the pre-application meeting. While the pre-application process was ongoing, however, the City’s municipal elections were held. Two council members who had voted in favor of the 2010 Text Amendment were defeated, one by a new council member who had campaigned on his opposition to that text amendment.

In November 2011, Pumphrey filed with the Planning Department a site plan application, which was for review by the Development Review Committee (“DRC”) on December 15, 2011. On January 9, 2012, the Mayor and Council convened at a public hearing to discuss the memorandum. The Mayor and Council voted to direct planning staff to file a new text amendment to delete the language inserted in the Ordinance by the 2010 Text Amendment. On April 16, 2012, the Mayor and Council voted to adopt the text amendment deleting §25.08.05.d (the 2010 Text Amendment). On May 7, 2012, the Mayor and Council adopted Ordinance 06-12, which had the effect of deleting §25.08.05.d.

On June 6, 2012, Pumphrey filed in the circuit court a petition for judicial review and for a writ of administrative mandamus, under Rule 7-401 et seq. Although the enactment of the 2012 Text Amendment prevented Pumphrey from going forward with his request to alter a nonconforming use to expand the parking lot, it did not prevent the completion of his request to consolidate 300 West Montgomery Avenue and 304 West Montgomery Avenue into one record lot. On May 16, 2012, planning staff recommended approval of Pumphrey’s proposed record plat. By letter dated June 6, 2012, the Chief of Planning informed Pumphrey in writing that the plat application was denied.

On June 27, 2012, Pumphrey petitioned the circuit court for judicial review of the Planning Commission’s decision. On August 6, 2012, the City moved to dismiss the petition for judicial review and for administrative mandamus review in the text amendment case, asserting that the enactment of the 2012 text amendment by the Mayor and Council was a legislative act not subject to judicial or administrative mandamus review. The court subsequently granted Pumphrey’s motion to consolidate the judicial review action in the text amendment case and the judicial review action in the plat case.

The court denied the City’s motion to dismiss the petition for judicial and administrative mandamus review in the text amendment case, holding that the enactment of the text amendment was a quasi-judicial act subject to judicial review. The circuit court reversed and vacated the text amendment enacted by the City; ordered the prior text amendment to be reinstated, and reversed the Planning’s Commission’s order denying the final plat application.

The City and the Planning Commission appealed to the Court of Special Appeals, which vacated the circuit court judgment and remanded with instructions that it enter orders dismissing the text amendment case and affirming the decision of the Planning Commission.

LAW: The City and Planning Commission first argued that the circuit court erred by concluding that the enactment of the text amendment was a quasi-judicial act, and not a purely legislative act, and in denying the City’s motion to dismiss on that basis. Specifically, the City asserted that the Mayor and Council were acting in a purely legislative capacity when they enacted Ordinance 06-12, which had the effect of granting the 2012 Text Amendment and reversing the effect of Ordinance 22-10, which had granted the 2010 Text Amendment. The circuit court denied the motion because it concluded that enactment of the 2010 Text Amendment and the 2012 Text Amendment were quasi-judicial acts subject to judicial review pursuant to §4.08(a) of art. 66B or under the rules governing administrative mandamus review.

For non-charter counties and certain municipal corporations, including the City, §4.08(a) of art. 66B creates the right to challenge, in the circuit court, certain zoning and land use decisions. Rule 7-401 provides that an action for judicial review of a quasi-judicial order or action of an administrative agency may be pursued as an action for writ of administrative mandamus. Md. Rule 7-401(a). The question of what constitutes a “zoning action” §4.08(a) and its counterpart at §2.09(a)(1)(ii), which governs Baltimore City, has generated numerous appellate opinions by the Court of Appeals and Court of Special Appeals.

Before 2006, the prevailing rule was that only zoning reclassifications constituted “zoning actions” as that term is used in Art. 66B. University of Maryland Overpak Corp. v. Mayor & City Council of Baltimore, 395 Md. 16, 32 (2006). When a legislative body comprehensively zones, comprehensively rezones, or adopts a text amendment to a zoning ordinance, it is not “zoning action.” MBC Realty, LLC v. Mayor and City Council of Baltimore, 160 Md. App. 376, 387 (2004), vacated on other grounds, 403 Md. 216 (2008). When a legislative body changes the zoning classification of a particular property, it is a “zoning action” subject to administrative appeal. Id.

Since MBC Realty, courts have clarified that a local legislative body may engage in “zoning action” beyond the realm of zoning classification (or reclassification) of a particular property. In Maryland Overpak, the Court of Appeals found that the Baltimore City Council had engaged in a “zoning action” subject to judicial review when it adopted an ordinance amending an approved 67.5-acre planned unit development (“PUD”) in an area of Canton in Baltimore City that was zoned for heavy industry, finding that amendment of the PUD did “not amount to a reclassification of the zoning district of the subject property” and thus was not a “zoning action.” Maryland Overpak, 395 Md. at 26. The Court further held that the ordinance in question was enacted as the result of a quasi-judicial process because its “prevailing purpose” was “to define the permissible uses of the specific parcel, and because the City Council approved the amendment after holding a hearing, receiving evidence, and making required statutory findings. Id. at 53.

The subsequent case Talbot County v. Miles Point Property involved consolidated appeals, both challenging actions by the Talbot County Council to deny a property owner’s application to amend the sewer classifications for the subject property from S-2 (“contemplated for improvements, extensions, or construction of shared sanitary facilities within three to five years”) to S-1 (“‘immediate priority status’ for the purposes of extending shared sanitary facilities”). Talbot County v. Miles Point Property, LLC, 415 Md. 372, 378 (2010). In deciding whether the local board of appeals had jurisdiction to review the County Council’s action or whether the circuit court had jurisdiction to grant mandamus relief, the Court concluded that the key inquiry was whether the County Council was acting in a legislative or quasi-judicial capacity when it considered and denied the applications to amend the sewer classifications for the two properties. The Court found that the County Council’s action in each case was legislative and not quasi-judicial, and that, therefore, neither the board of appeals nor the circuit court had jurisdiction to hear a challenge of the denial of the requests. Miles Point, 415 Md. at 398.

In the present case, it was the 2012 Text Amendment, not the 2010 Text Amendment, that required assessment. Under the first prong of the test set forth in Overpak, the action by the local legislative body must decide the use of a specific parcel or assemblage of parcels of land. Overpak, 395 Md. at 50. Here, unlike in Overpak, the Mayor and Council did not decide the use of Pumphrey’s property when it enacted the 2012 text amendment deleting the language added by the 2010 text amendment that had created a means for certain property owners to seek approval of the expansion of parking accessory to a nonconforming use. The 2012 Text Amendment did not change the zoning for the Funeral Home property, which at all times remained R-90 HD. It did not alter the site plan for the Funeral Home or grant a variance or a special exception. The 2012 Text Amendment deleted language from the Ordinance that had provided a means of expanding nonconforming uses. Thus, the first prong of the Overpak test was not satisfied.

The second prong of the Overpak test was likewise not satisfied. The 2012 Text Amendment was initiated by the Mayor and Council, not “by an individual application by a property owner or its representative.” Overpak, 395 Md. at 50. The third and fourth prongs of the Overpak test require that the decision in question be based on fact-finding adduced through governmental agency analysis of the proposal and through a public hearing and that it create or modify substantively the governing zoning classification or define the permissible uses and other characteristics of a specific parcel or assemblage of parcels of land by exercising some discretionary judgment after the consideration of the unique circumstances of the affected parcels and buildings. Id. Here, the Mayor and Council did not make any factual findings before granting the 2012 Text Amendment. Finally, the legislative acts of the Mayor and Council did not become adjudicative acts merely because the 2010 Text Amendment was drafted in such a way as to affect only Pumphrey’s properties and the 2012 Text Amendment, by deleting the language previously added, negatively affected only his properties.

For all these reasons, the circuit court lacked jurisdiction pursuant to art. 66B, §4.08(a) to undertake judicial review of the enactment of the 2012 Text Amendment, because the enactment was not a zoning action. The circuit court also lacked jurisdiction to undertake administrative mandamus review in the text amendment case because the enactment was not a “quasi-judicial act.” Therefore, the circuit court erred by denying the City’s motion to dismiss on these grounds.

Accordingly, the judgment of the circuit court was vacated and the case remanded with instructions that the circuit court enter orders dismissing the text amendment case and affirming the decision of the Planning Commission.

COMMENTARY: The Planning Commission contended the circuit court erred by reversing its decision to deny Pumphrey’s final record plat. In denying the final record plat, the Planning Commission relied in large part on its conclusion that the proposed plat failed to comply with RCC section 25.21.22.b, which addresses the resubdivision of existing lots. The staff report in evidence before the Planning Commission stated that the intent of this regulation is to maintain the character of the neighborhood by not allowing subdivisions that create unusual or different lots associated with the existing and surrounding neighborhood.

There was no dispute that the final record plat, if approved, would have resulted in a lot that far exceeded the average area and frontage of existing lots within 500 feet. The Planning Commission decided to deny the final record plat on the basis that it failed to maintain, to the extent feasible, the average area and frontage of existing lots in the neighborhood. This finding was supported by substantial evidence in the record and was not legally erroneous.

PRACTICE TIPS: Review of a final administrative agency decision is highly deferential and 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 decision is premised upon an erroneous conclusion of law.