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Md. high court opens term with Fourth Amendment, due-process cases on docket

10.15.13 BALTIMORE, MD- Chief Judge Mary Ellen Barbera, Maryland Court of Appeals. (Maximilian Franz/The Daily Record)

10.15.13 BALTIMORE, MD- Chief Judge Mary Ellen Barbera, Maryland Court of Appeals. (Maximilian Franz/The Daily Record)

Maryland’s top court on Wednesday opens the public sessions of its 2017-2018 term in which it will consider among its approximately 150 appeals the constitutional rights of individuals who flee from the police and of convicted criminals at sentencing.

On its first public day, the Court of Appeals will hear a request that it reinstate a Howard County judge’s conclusion that police violated the petitioner’s constitutional Fourth Amendment right to be free from unreasonable searches and seizures when they chased him in Columbia, patted him down and allegedly found a handgun on him. In Jamal Sizer v. Maryland, prosecutors want to introduce the weapon into evidence at his pending trial on a charge of illegal gun possession.

Next month, in Curtis Lopez v. Maryland, the high court will weigh whether a videotaped, set-to-music victim-impact statement designed to stir a sentencing judge’s emotions violated a criminal defendant’s federal constitutional rights to due process and to be free from arbitrary and capricious punishment. Counsel for Lopez will argue on Oct. 6 his appeal of the double life-without-parole sentence he received for the 2011 beating deaths of his estranged wife, Jane McQuain, and her 11-year-old son, William, in Germantown.

The seven-member court will issue its decisions in these cases — as well as the others it will hear between September and June — by Aug. 31, the final day of what history will record as September Term 2017.

The coming term also marks the beginning of the second half of Mary Ellen Barbera’s expected eight-term tenure as chief judge. Barbera, who took the helm of the high court shortly before the September 2013 session, will reach the mandatory judicial retirement age of 70 shortly after the September 2021 begins.

Criminal-procedure professor Byron L. Warnken praised Barbera at the midpoint of her tenure, saying “she has done a very good job as chief.”

Warnken said he is particularly impressed with how she has selected which opinions to assign to other judges and which to write herself when she has been in the majority – even her pro-prosecution decisions with which the self-proclaimed “liberal” professor has disagreed.

“Sometimes her decisions are more conservative than I would like,” said Warnken, who was one of Barbera’s professors at the University of Baltimore School of Law in the early 1980s.

Barbera, through an aide, declined to comment Tuesday.

Last week, Barbera wrote the court’s majority opinions upholding search warrants for the cellphones of suspected criminals, a Fourth Amendment ruling that the Maryland public defender’s office will discuss appealing to the U.S. Supreme Court.

As in the cellphone cases, the Court of Appeals might not have the final word in Sizer and Lopez, as the the loser in these cases – whether the defendant or state – could seek Supreme Court review of the federal constitutional issue.

Unprovoked flight

In Sizer’s case, defense counsel must try to distinguish the circumstances of the case from Illinois v. Wardlow in which the Supreme Court held in 2000 that police were justified in stopping and frisking an individual who ran from them in a high-crime area on Chicago’s south side.

In papers filed with the high court, attorney Helki Philipsen stated the Howard County police officers who chased and caught Sizer spoke not of high-crime surveillance but of being on a bike patrol in response to recent crime in the area. The officers never said in pretrial testimony that they suspected Sizer of being involved in the crime when they approached him and the people with whom he was standing before he fled, Philipsen wrote.

“In Wardlow, the Supreme Court held that unprovoked flight upon noticing police is a pertinent factor in determining reasonable suspicion for a Terry stop (for weapons), as is an individual’s presence in an area of expected criminal activity,” wrote Philipsen, an assistant Maryland public defender. “Notably, the Supreme Court declined to adopt a per se rule regarding ‘unprovoked flight upon seeing a clearly identifiable police officer’ – something which Illinois had argued for – instead engaging in a fact-bound analysis and finding reasonable suspicion based on the totality of the circumstances.”

Philipsen urged the Court of Appeals “to clarify the meaning of ‘unprovoked flight’ and decide whether Maryland has a per se rule that allows the police to stop anyone who runs away from a consensual police encounter, or whether … additional facts supporting a reasonable, individualized, articulable suspicion – beyond a generalized concern about past crime in the area – are needed to justify a Terry stop.”

But Assistant Maryland Attorney General Carrie J. Williams responded that clarification of “unprovoked flight” is not needed because the Supreme Court stated in Wardlow that “headlong flight – wherever it occurs – is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.”

As in Wardlow, Sizer’s unprovoked flight created “reasonable suspicion in the minds of police that criminal activity (was) afoot,” Williams wrote in papers filed with the Court of Appeals.

In November 2015, the police bike patrol was near the Owen Brown Village Center in Columbia after local business owners voiced concern about recent crime.

Sizer was among at least five people standing near a minivan in the parking lot when one of them threw a beer bottle at the ground, according to police testimony.

The officers approached the group, saying, “Police. Stop. Don’t run.”

Sizer ran and two officers gave chase on their bikes.

As the officers caught up with Sizer, he raised his hands and acknowledged having a gun. The officers then wrestled him to the ground, found the gun and arrested him, according to court papers.

Sizer was facing a charge of unlawful possession of a firearm when Howard County Circuit Judge Lenore R. Gelfman ruled in May 2016 that the gun could not be introduced as evidence due to the unconstitutional search and seizure. The Court of Special Appeals overturned that ruling in December, prompting Sizer’s appeal.

‘Jane and William’

In Lopez’ case, Montgomery County Circuit Judge Mary Beth McCormick sentenced him in June 2013 after prosecutors showed her a six-minute video that featured about 115 photographs chronicling the lives of McQuain and William set to the sound of church bells, instrumental music and a soft-rock song. The video also had a title screen, “The Story of Jane and William,” and closing credits, according to court papers.

Lopez’s attorney argued in a brief filed with the high court that the video’s appeal to the judge’s heart rather than her mind deprived Lopez of his 14th Amendment right to due process and Eighth Amendment right to an individualized determination of sentence that would not be cruel and unusual.

“Setting the presentation of photographs to emotionally-stirring music added no probative value to the video but significantly enhanced the risk of prejudice,” Brian L. Zavin wrote. “Film composers have long known of the power of music to appeal to – and even subconsciously manipulate – an audience’s emotions. Such tactics have no place in the courtroom.”

The video “was a well-produced eulogy for the victims that is appropriate for a memorial service, not a trial,” added Zavin, an assistant Maryland public defender.

He cited the U.S. Supreme Court’s 1991 decision Payne v. Tennessee, in which the justices held that a victim-impact statement is generally constitutional unless it is “so unduly prejudicial that it renders the trial fundamentally unfair.”

An attorney for the state argued in court papers that the victim-impact video did not “unduly” prejudice Lopez.

Quoting from the Payne decision, Assistant Maryland Attorney General Mary Ann Ince added that “the state has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.’”

Lopez, in his circuit court plea, did not contest the state’s evidence that he killed McQuain in October 2011 by bludgeoning her with a 30-pound dumbbell and stabbing her with a knife as she slept and then took her car and other belongings. That same morning, Lopez picked William up from a friend’s house, drove him into the woods and beat him to death with a baseball bat, according to the evidence presented before Lopez’s Alford plea.

The intermediate Court of Special Appeals uphold Lopez’s sentence in a reported opinion in February, prompting him to seek review by the high court.

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