Court of Appeals
Administrative Law; Land annexation: Based on its interpretation of the ambiguous language of Local Government Article §4-403(b)(2), stating that before an annexation resolution is introduced, the legislative body shall obtain consent from: (1) at least 25 percent of the registered voters who are residents in the area to be annexed; and (2) the owners of at least 25 percent of the assessed valuation of the real property in the area to be annexed, the Court of Appeals held that a municipal corporation was not required to obtain consent from owners of tax-exempt property within the proposed annexation area in order to effectuate such an annexation. Town of Forest Heights v. Maryland National Capital Park and Planning Commission, No. 21, Sept. Term, 2016.
Civil Procedure; Judgments: In a class-action suit where individuals against whom an unlicensed debt buyer obtained judgments in the district court sought to have the judgments declared void and sought monetary damages on the basis that the debt buyer was unlicensed, the Court of Special Appeals erred in holding the district court judgments void because collateral attacks on enrolled judgments are not allowed unless the court that entered the judgment had no fundamental jurisdiction to do so, which was not the case with respect to the judgments in question. LVNV Funding LLC v. Finch, No. 46, Sept. Term, 2018.
Civil Procedure; One satisfaction rule: Where, before filing a medical malpractice lawsuit against the hospital that treated her car accident injuries, the plaintiff received settlements from the driver and owner of the automobile that struck her vehicle and from her uninsured/underinsured motorists carrier, the plaintiff’s medical malpractice claim against the hospital was barred by the one satisfaction rule because the plaintiff’s settlement with the insurance carrier encompassed her evaluation as to the same injuries that she sought to recover from the hospital. Gallagher v. Mercy Medical Center, No. 44, Sept. Term, 2018.
Evidence; Impeachment: Although the circuit court erred in excluding a witness’s prior conviction under Violent Crimes in Aid of Racketeering Activity, 18 U.S.C. §1959, which involved criminal acts that relevant to the witness’s credibility and therefore was admissible for impeachment purposes, this error was harmless where the jury had the benefit of sufficient information to evaluate the witness’s credibility and there was not a reasonable possibility that excluding this impeachment evidence contributed to the guilty verdict against the defendant. Rosales v. State, No. 6, Sept. Term, 2018.
Court of Special Appeals
Criminal Procedure; Alibi jury instruction: Circuit court properly granted defendant’s post-conviction petition based on ineffective assistance of counsel because, where defendant, who was convicted of kidnapping and murder, produced alibi evidence to show that he could not have committed the crimes, defense counsel’s unintentional failure to request an alibi jury instruction constituted deficient performance because there was no strategic reason not to request such instruction. State of Maryland v. Christopher Mann, No. 80, Sept. Term 2018.
Court of Appeals
BOTTOM LINE: Based on its interpretation of the ambiguous language of Local Government Article §4-403(b)(2), stating that before an annexation resolution is introduced, the legislative body shall obtain consent from: (1) at least 25 percent of the registered voters who are residents in the area to be annexed; and (2) the owners of at least 25 percent of the assessed valuation of the real property in the area to be annexed, the Court of Appeals held that a municipal corporation was not required to obtain consent from owners of tax-exempt property within the proposed annexation area in order to effectuate such an annexation.
CASE: Town of Forest Heights v. Maryland National Capital Park and Planning Commission, No. 21, Sept. Term, 2016 (filed April 15, 2019) (Judges Barbera, Greene, McDonald & GETTY) (Judges Adkins, Watts & Hotten, dissent).
FACTS: The Town of Forest Heights, a municipal corporation located within Prince George’s County, spanned 306 acres of land southeast of Maryland’s border with the District of Columbia. Since its incorporation in 1949, Forest Heights had extended its corporate limits five times. On April 20, 2016, the Town Council of Forest Heights introduced two annexation resolutions titled annexation resolutions No. 01-2016 and 02-2016. The proposed extensions comprised several tax-exempt properties owned by the Maryland National Capital Park and Planning Commission (“MNCPPC”), Prince George’s County, the Board of Education of Prince George’s County, the State of Maryland, the United States, and the Oxon Hill Methodist Church.
Annexation resolution No. 01-2016 encompassed 446.88 acres of land located west of Forest Heights that extends to the boundary line of Washington, D.C. The proposed annexation area of resolution No. 01-2016 included land owned by the federal government, under the jurisdiction of the National Park Service, and land owned by MNCPPC. Annexation resolution 02-2016 encompassed 289.97 acres of land located to the south of Forest Heights. The land falling within the proposed annexation area was owned by Prince George’s County, the Board of Education of Prince George’s County, MNCPPC, the State of Maryland, the federal government, and the Oxon Hill Methodist Church.
Together, the two annexation resolutions encompass an area of 736.85 acres which would more than double the corporate limits of Forest Heights. The proposed annexation area contained no residential properties and no registered voters reside therein. Forest Heights did not obtain consent from any of the property owners because the Town believed that, pursuant to Local Government Article (“LG”) §4-403, such consent was not required because all of the property owners enjoyed tax-exempt status.
MNCPPC owned seven properties within the proposed annexation area, and Prince George’s County owned one. All properties involved in the proposed annexations were located within a special district for planning and zoning demarcated as the “Maryland-Washington Regional District.” In addition, the properties also fell within a largely overlapping special district for managing parklands known as the “Maryland-Washington Metropolitan District.”
On April 20, 2016, Forest Heights adopted annexation plans for annexation resolutions No. 01-2016 and 02-2016. A public hearing regarding the two resolutions was held on June 6, 2016, and the resolutions were passed. On the same day, MNCPPC and Prince George’s County submitted letters of opposition to Jacqueline Goodall, the Mayor of Forest Heights, requesting that the properties under their jurisdiction be removed from the annexation areas.
Over a month later, MNCPPC and the County filed a complaint for declaratory judgment in the circuit court, challenging both annexations and seeking a declaratory judgment that the annexation resolutions were a nullity. The complaint against Forest Heights joined as parties the State of Maryland and the federal government. The State of Maryland and the United States government subsequently filed notices of voluntary dismissal pursuant to Maryland Rule 2-506(a) to be excluded from the matter. The circuit court granted both motions for dismissal.
Forest Heights filed a motion to dismiss or for summary judgment. MNCPPC also filed a
motion for summary judgment. Following a hearing, the circuit court issued a written opinion and order finding the annexation resolutions to be null and void. Specifically, the court found the Town’s failure to obtain consent from the property owners fatal to the annexation and held that the annexation plan impermissibly attempted to divest law enforcement jurisdiction from MNCPPC.
Forest Heights appealed the circuit court order. While the appeal was pending before the Court of Special Appeals, Forest Heights filed a petition for writ of certiorari with the Court of Appeals, which was granted. The Court of Appeals reversed the judgment of the circuit court and remanded the case.
LAW: On appeal, the Town of Forest Heights and Amicus Curiae, Maryland Municipal League (“MML”), argued that the circuit court erred in concluding that the Town was required to obtain consent from the property owners in order to effect its propose annexation plans. The Town asserted that that the statutory language of LG §4-403 was ambiguous. Relying in part on the decision in City of Salisbury v. Banker’s Life, 21 Md. App. 396 (1974), the Town contended that such consent was not required.
Article 11E of the Maryland Constitution, commonly referred to as the “Municipal Home Rule Amendment” was enacted by act of the General Assembly and ratified by voters in November 1954. After the ratification of Article 11E, it was necessary for the General Assembly to pass new legislation to create a statutory scheme to implement this home rule authority. Legis. Council of Md., Report to the General Assembly of 1955, 308. In 1955, the General Assembly enacted the predecessor to the current Subtitle 4 of the Local Government Article. Article 23A §19, (1955 Md. Laws ch. 423; Legis. Council of Md., Report to the General Assembly of 1955, 3, 217). Although the power of annexation was not constitutionally granted to municipalities by the 1954 Constitutional Amendment, the statute passed the following year granted municipalities the authority to annex real property to expand their corporate limits. 1955 Md. Laws ch. 423. See generally LG §4-401.
Primarily, there are two ways through which a municipality may initiate an annexation – by petition or through municipal legislative enactment. LG §4-415(d). First, an annexation may be initiated by petition if it is signed by a certain percentage of registered voters residing within the proposed annexation area and a certain percentage of those owning property within the area. LG §4-404(a). Next, the presiding officer of a municipality’s legislative body must verify that the petition meets the statutory requirements and then must introduce a related annexation resolution before the municipal legislative body. LG§ 4-404(b), (c).
The second method, which was used by Forest Heights in this case, commences with an annexation resolution introduced before the appropriate municipal legislative body. Such resolution must be filed in accordance with the procedure for municipal legislative enactments and amendments applicable to the municipality’s charter. LG §4-403(a). A municipality’s ability to annex territory is limited by certain consent requirements, which, in some circumstance, require the municipality to obtain a certain level of consent from any registered voters residing within the area and from those who own property within the area. See LG §4-403(b). An annexation resolution must describe the area intended to be annexed and provide a “detailed description of the conditions and circumstances that apply to: (i) the change in boundaries; and (ii) the residents and property in the area to be annexed.” LG §4-403(c).
While LG §4-401 is the primary source of authority through which a municipality
may annex territories and expand its corporate boundaries, LG §4-403(b) limits such annexation powers by requiring the consent of both registered voters and property owners in the manner provided by the statute. Under this provision, before an annexation resolution is introduced, the legislative body shall obtain consent from: (1) at least 25 percent of the registered voters who are residents in the area to be annexed; and (2) the owners of at least 25 percent of the assessed valuation of the real property in the area to be annexed. LG. §4-403(b). For the annexation proposed by Forest Heights, no registered voters resided within the areas encompassed by annexation resolutions 01-2016 and 02-2016. Therefore, the concern in the present appeal was solely the 25 percent consent requirement of LG §4-403(b)(2) and whether the consent of tax-exempt property owners was mandated.
There were potentially two different interpretations of the provision at issue. Forest Heights and MML interpreted the term “assessed valuation” as excluding tax-exempt property and, therefore, contended that the consent of tax-exempt property owners was not required under the statute. Conversely, MNCPPC argued that the statutory language was clear on its face and “assessed valuation” encompassed tax-exempt property and mandated that an annexation requires consent from such property owners.
The purpose of the legislation was to enhance the role of the counties without abandoning the policy against a county-wide referendum or county government approval requirement. 87 Md. Att’y Gen. Op. 161 (2002). The policy underlying this enactment, as explained by the Attorney General, underscores that a county or other similarly situated tax-exempt entity was never intended to have the ability to block or veto a municipal annexation and supported the position that the 25 percent consent requirement of LG §4-403(b)(2) excludes the owners of tax-exempt property. In Banker’s Life, the Court of Special Appeals considered a proposed annexation by the City of Salisbury that encompassed both publicly and privately-owned lands. Banker’s Life, 21 Md. App. at 400.
Of primary import, the decision in Banker’s Life considered whether the present day 25 percent consent requirement of LG §4-403(b)(2) required municipalities to obtain consent from the owners of tax-exempt lands. Id. at 400-01. Ultimately, after determining that Art. 81, §232B (currently LG § 4-403) was ambiguous, the Court of Special Appeals briefly considered the legislative history and concluded that the General Assembly did not intend the 25 percent property owner consent requirement to require consent from the owners of tax-exempt properties contained within a proposed annexation area. Id. at 404-05. It concluded that “the Legislature never departed from an intent that only those who were to bear the financial burdens of a city government by the payment of real property taxes were to be allowed a voice in the annexation of real property to the municipal corporation.” Id. at 404.
In summary, the General Assembly did not express an intention to modify the statutory framework surrounding municipal annexations The legislative history was likewise devoid of any indication that the General Assembly intended to alter the 25 percent consent requirement or amend municipal annexations generally. Finally, the decision in Banker’s Life concluding that the General Assembly did not intend the 25 percent property owner consent requirement to require consent from the owners of tax-exempt properties contained within a proposed annexation area was directly applicable in the present case. City of Salisbury v. Banker’s Life, 21 Md. App. at 404-05.
Thus, based the statute’s legislative history and relevant sources, the General Assembly did not intend LG §4-403(b)(2) to require consent from the owners of tax-exempt properties. For these reasons, the 25 percent consent requirement of LG §4-403(b)(2) was not applicable to the owners of tax-exempt properties, and the circuit court erred in concluding otherwise. Accordingly, the judgment of the circuit court was reversed and the case was remanded for further proceedings.
COMMENTARY: The circuit court additionally found certain provisions of the Town’s annexation plan invalid as an improper usurpation of MNCPPC’s law enforcement jurisdiction over lands that it owned and operated. However, the Town’s annexation plan only specified the exercise law enforcement jurisdiction over the lands “as permitted by law” that could be accomplished through a mutual aid agreement. Thus, the annexation plan did not attempt to divest or duplicate law enforcement jurisdiction over lands owned and managed by MNCPPC.
Furthermore, the circuit court’s decision failed to recognize the distinction between annexation resolutions and annexation plans. Assuming arguendo that the Town’s annexation plan impermissibly attempted to divest or duplicate law enforcement jurisdiction from MNCPPC, the annexation plan could simply be amended, which would not necessitate amendment of the underlying annexation resolution. See LG § 4-415. As such, the circuit court erred with respect to its determination that the Town’s annexation plan sought to divest, usurp or duplicate law enforcement jurisdiction over the MNCPPC’s lands.
DISSENT: The phrase “assessed valuation of the real property in the area to be annexed” in LG §4-403(b)(2) is not ambiguous and it is not subject to more than one reasonable interpretation. The plain language of LG §4-403(b)(2) requires a municipality, prior to propounding an annexation resolution, to obtain the consent of the owners of at least 25 percent of all real property in the area to be annexed, regardless of whether the real property is tax-exempt. Therefore, the circuit court was correct in concluding that the statute requires municipalities to obtain the consent of the owners of taxable real property and the owners of tax-exempt real property alike.
PRACTICE TIPS: A “special district” is a special tax area or district, sanitary district, park, or planning district or public agency exercising specific powers in a defined area that does not exercise general municipal functions. Special districts are generally protected from certain municipal action, including but not limited to municipal tax exemption and zoning.
BOTTOM LINE: In a class action suit where individuals against whom an unlicensed debt buyer obtained judgments in the district court sought to have the judgments declared void and sought monetary damages on the basis that the debt buyer was unlicensed, the Court of Special Appeals erred in holding the district court judgments void because collateral attacks on enrolled judgments are not allowed unless the court that entered the judgment had no fundamental jurisdiction to do so, which was not the case with respect to the judgments in question.
CASE: LVNV Funding LLC v. Finch, No. 46, Sept. Term, 2018 (filed April 22, 2019) (Judges Barbera, Greene, McDonald, Hotten, Getty, Adkins (Senior Judge, Specially Assigned) & WILNER (Senior Judge, Specially Assigned)).
FACTS: LVNV Funding LLC was a limited liability company that was organized in Delaware in 2005 and headquartered in Las Vegas, Nevada. LVNV claimed to have no employees of its own. Its only business was to purchase consumer debts that are in default, mostly from affiliated entities that purchased the debts from others, and attempt to collect those debts through litigation. As determined by the Maryland Commissioner of Financial Regulation in a 2011 enforcement action, LVNV was part of an integrated conglomeration of affiliated entities that included Sherman Capital, LLC and Meeting Street Partners II, Inc., as well as multiple other entities.
What the Federal Trade Commission referred to as “Sherman Financial” was the largest buyer of charged-off credit card debt directly from credit card issuers from 2005 to 2011, except for 2010, when it was the second-largest buyer. During an overlapping period, LVNV played an active role in Maryland with respect to some of those accounts. Between 1996 and 2011, LVNV was the named plaintiff in nearly 26,000 actions in the Maryland district court seeking affidavit judgments. In the great majority of those cases, no response was filed by the defendant, no trial was held, and judgments were entered on LVNV’s affidavit.
Three Maryland consumer protection statutes govern debt collection activity: (1) the Maryland Collection Agency Licensing Act (“MCALA”) (Md. Code, Business Regulation Article (“BR”), §§7-101 through 7-502); (2) the Maryland Consumer Debt Collection Act (“MCDCA”) (Md. Code, Commercial Law Article (CL), §§14-201 through 14-204); and (3) the State Consumer Protection Act (“CPA”) (Md. Code, CL §§13-101 through 13-501). Under the MCALA, BR §7-301(a), a person must have a license issued by the State Collection Agency Licensing Board whenever the person does business as a collection agency in the State. Section 7-401 adds that, except as provided in that title, a person may not knowingly and willfully do business as a collection agency in the State unless the person has a license.
MCDCA also deals with consumer debt collection, stating that that, in attempting to collect an alleged debt, a collector may not claim, attempt, or threaten to enforce a right with knowledge that the right does not exist. Finally, under CL §13-303, which is part of the CPA, a person is prohibited from engaging in an “unfair or deceptive trade practice” in “the collection of consumer debts.” Section 13-408 permits a person to bring an action to recover for injury or loss sustained as the result of a practice prohibited by CPA and, if the person prevails, to be awarded attorneys’ fees.
Although LVNV began its debt collecting activity upon its founding in 2005, it did not obtain a collection agency license until February 18, 2010. The present case was preceded by another class action suit filed against LVNV in the circuit court by Jason Hauk and Freddy Velazquez in October 2009, alleging that LVNV, acting as an unlicensed debt collector, had pursued consumer debt collection actions against the defendants in violation of MCALA and that it threatened or took action it had no right to take in violation of MCDCA and its Federal counterpart, the Federal Debt Collection Practices Act (15 U.S.C. §1692). The action against Hauk ended with a verdict for Hauk, and LVNV dismissed the action against Velazquez when he filed a notice of intent to defend.
Subsequently, the Commissioner of Financial Regulation commenced an enforcement action against LVNV and its various affiliates in July 2011. On October 25, 2011, a Summary Order was entered requiring LVNV to cease its collection activities and suspending LVNV’s belatedly obtained collection agency license. The Summary Order directed LVNV to cease and desist its efforts and suspended the collection agency license that it had obtained in 2010. The Enforcement Action ended on June 28, 2012, with a Settlement Agreement.
The present action, initially by Larry Finch and Kurt Dorsey as representative plaintiffs, was filed on November 9, 2011. LVNV had filed collection suits against Finch and Dorsey in the district court in 2008. It obtained default judgments against them and had garnished Finch’s wages. The class consisted of those persons sued by LVNV in Maryland courts from October 30, 2007, through February 17, 2010 against whom LVNV obtained a judgment in its favor in an attempt to collect a consumer debt. The complaint sought the disgorgement of all sums LVNV received as a result of the judgments it improperly obtained and an injunction against any attempt to collect further amounts on those judgments.
On LVNV’s motion, the circuit court dismissed that complaint on the ground that it amounted to an impermissible collateral attack on enrolled district court judgments. The Court of Special Appeals reversed that judgment and remanded the case. Upon that ruling and the denial of certiorari by the Court of Appeals, the case returned to the circuit court, where a six-count amended complaint was filed. Ronald Jackson, whom LVNV had sued in 2008, was added as a representative plaintiff. The amended class action complaint proposed a class consisting of those persons sued by LVNV in a Maryland court between October 30, 2007 through February 17, 2010 against whom LVNV obtained a judgment in its favor in an attempt to collect a consumer debt, and a subclass consisting of all members of the class who had paid any amounts to LVNV. The plaintiffs sought, among other counts, a declaratory judgment that the district court judgments against the class members were void because the judgments were obtained when LVNV was acting unlawfully as an unlicensed collection agency.
The circuit court ruled that these judgments obtained by LVNV were void, and certified the class and subclass, the latter consisting of all members of the class who paid any amounts to LVNV. The jury awarded specific amounts of damages to Finch and Jackson and $38,630,344 to the class. Judgments were entered in accordance with those verdicts, but, pursuant to a motion for JNOV, the court granted a remittitur and reduced the judgment in favor of the class (or subclass) to $25 million.
Another appeal ensued. The Court of Special Appeals affirmed the finding of liability on the part of LVNV for violating MCDCA but remanded the case for a new trial on damages. Both sides filed appeals to the Court of Appeals, which vacated the judgment of the Court of Special Appeals and remanded the case to that court with instructions to remand to the circuit court for further proceedings.
LAW: LVNV first raised the issue of whether a judgment in favor of an unlicensed collection agency is void. In their initial complaint, the plaintiffs did not claim that the judgments obtained by LVNV were void but only that LVNV, as an unlicensed consumer debt collector, had no right to pursue collection activity and should be made to disgorge any amounts collected. LVNV argued that such a claim amounted to an impermissible collateral attack on those judgments, and the circuit court agreed. The Court of Special Appeals held to the contrary, that “a judgment obtained by an unlicensed collection agency is void.”
Judgments, by and large, are meant to be final. Even the court that rendered them has but a limited ability to open and revise them. Abell v. Simon, 49 Md. 318, 324 (1878). In furtherance of that principle, the ability to challenge a civil judgment, other than by an appeal, is limited, even in the court that entered it. The court that rendered the judgment has discretionary revisory power over it for only 30 days. On the 30th day, the judgment becomes “enrolled,” and after that time, the court may revise it only upon a finding of fraud, jurisdictional mistake, or irregularity, which are narrowly construed. Md. Rules 2-535 and 3-535.
Collateral attacks, whether in the court that entered the judgment or in any other court, are even more severely limited and are permitted only when the court that rendered the judgment had no jurisdiction to do so. Indeed, there are few principles of law that are so firmly and consistently entrenched in our jurisprudence, and for good reason. See, e.g., Ranoul v. Griffie, 3 Md. 54, 60 (1852). With regard to the present case, no case law justified departing from the principle adhered to for well over a century stressing the importance of preserving enrolled civil judgments from collateral attack on any ground other than the lack of fundamental jurisdiction to render those judgments. The district court clearly had fundamental jurisdiction over the collection actions filed by LVNV, notwithstanding that LVNV had no legal authority to file them, and the two lower courts in this case erred in declaring them void.
However, because LVNV was correct in asserting that this case went to the jury on the mistaken theory that the underlying debts owned by LVNV were void, remand was necessary, for a reassessment of damages as permitted under CL §14-203 which, as happened in the earlier remand, might involve the filing of an amended complaint and, absent a settlement, would require a retrial on the damages issues. Although the district court judgments could not be collaterally attacked, BR §7-401, read in conjunction with § 7-101(c), would permit declaratory and injunctive relief precluding LVNV from taking any action to enforce those judgments and for any damages incurred by the plaintiffs as the result of LVNV’s collection efforts.
Accordingly, the judgment of the Court of Special Appeals was vacated, and the case was remanded to that court with instructions to remand to the circuit court for further proceedings.
COMMENTARY: LVNV continued to argue that, because it was a “passive” debt buyer and owner, because it had no employees, and because it did nothing more than refer debts to another entity for collection, it did not constitute a collection agency for purposes of MCALA and therefore was never required to obtain a collection agency license, even though it eventually did so in 2010. This claim was without merit.
As pointed out in Blackstone v. Sharma, 461 Md. 87 (2018), regulators and ultimately the General Assembly recognized the impact of the new business model of creating companies that, instead of collecting debt for the creditor, usually on a contingent fee basis, purchased that debt. The impact was that these debt buyers were not required to be licensed and thus were free to engage, at least on a State level, in activities that were largely unregulated and often bordered on fraud. To deal with this phenomenon, the General Assembly added to the definition of “collection agency” a person “who engages directly or indirectly in the business of . . . collecting a consumer claim the person owns, if the claim was in default when the person acquired it.” Id. at 129. The plain language of the amendment, coupled with the its legislative history, unmistakably showed an intent to include entities like LVNV.
LVNV further claimed that it was not engaging in that business because it had no employees and did nothing more than turn accounts over to affiliated entity Resurgent Capital Services Limited Partnership, a/k/a Resurgent Capital Services LP, f/k/a Alegis Group Limited Partnership, which acted as the master servicer for charged-off consumer debt owned by LVNV, which was a licensed collection agency and was the entity that did the collection work. However, LVNV and Resurgent were integral parts of a composite corporate structure that sought to avoid regulation of the very kind of activity that the General Assembly believed needed regulation. As such, neither the circuit court nor the Court of Special Appeals erred in concluding that, as of October 1, 2007, LVNV was required to be licensed before engaging in its collection activities.
PRACTICE TIPS: The term “jurisdiction” can have different meanings depending on the context in which it is used. It can refer to either the power of the court to render a valid decree, or the propriety of granting the relief sought. It is only when the court lacks the first kind of jurisdiction, termed “fundamental jurisdiction,” that its judgment is void.
One satisfaction rule
BOTTOM LINE: Where, before filing a medical malpractice lawsuit against the hospital that treated her car accident injuries, the plaintiff received settlements from the driver and owner of the automobile that struck her vehicle and from her uninsured/underinsured motorists carrier, the plaintiff’s medical malpractice claim against the hospital was barred by the one satisfaction rule because the plaintiff’s settlement with the insurance carrier encompassed her evaluation as to the same injuries that she sought to recover from the hospital.
CASE: Gallagher v. Mercy Medical Center, No. 44, Sept. Term, 2018 (filed April 29, 2018) (Judges Barbera, GREENE, McDonald, Watts, Getty & Wilner (Senior Judge, Specially Assigned)).
FACTS: In January 2009, Michele Gallagher was injured when her automobile was struck from behind by an automobile driven by Phuong Nguyen. Gallagher underwent two reconstructive breast surgeries, which were performed at Mercy Medical Center on April 28, 2011 and October 18, 2012. Following the surgical procedures, Gallagher developed an infection identified as cellulitis. She was admitted to Mercy Medical Center to treat the infection with intravenous antibiotics on November 9, 2012.
After attempts to administer the antibiotics failed, Gallagher received the antibiotics through a Peripherally Inserted Central Catheter (“PICC line”). While the PICC line was being inserted into Gallagher’s left arm, it accessed or punctured her brachial artery. Gallagher underwent vascular surgery to repair her brachial artery. On November 16, 2012, Gallagher was discharged from Mercy. Thereafter, she received out-patient treatment at Mercy for pain and Reflex Sympathetic Dystrophy in her left arm.
On December 16, 2011, Gallagher filed a complaint in the circuit court, naming Nguyen, Jenny Le Phan, and State Farm as defendants. In Count One, Gallagher alleged negligence against Nguyen and Phan, the owner of the vehicle Nguyen was driving. She sought $2 million for her injuries, which she alleged included emotional pain and suffering, past and future medical expenses, and the inability to engage in her usual employments, activities, and pursuits. In Count Two of the Automobile Accident Complaint, Gallagher alleged a breach of contract by State Farm Mutual Automobile Insurance Company, her uninsured/underinsured motorists carrier. She alleged that, under the terms of her policy, State Farm stood in breach of contract when it refused her demand for insurance proceeds. Gallagher sought $1 million in damages from State Farm.
On April 17, 2012, Gallagher settled her negligence claim against Nguyen and Phan. As part of the settlement agreement, Gallagher accepted $25,000, which represented the full policy limit of Nguyen’s liability insurance coverage with Nationwide Mutual Fire Insurance Company. In exchange, Gallagher signed a Release of All Claims. Therein, Gallagher released her claims against Nguyen, Phan, and Nationwide, but expressly reserved her claim against State Farm. The Release made no mention of Mercy. On May 15, 2012, Gallagher filed a “Stipulation of Dismissal with Prejudice,” dismissing her claims against Nguyen and Phan.
Gallagher pursued her breach of contract claim against State Farm, and the parties proceeded to discovery. In her initial responses to State Farm’s interrogatories, sent on May 16, 2012, Gallagher claimed that she sought to recover from State Farm for her first breast surgery, pain and suffering, and related bills. Subsequently, in letters dated February 18 and May 22, 2014, Gallagher supplemented her discovery responses. She included bills related to her second breast surgery, cellulitis treatment, PICC line procedure, vascular surgery, and other treatment following the PICC line procedure.
On March 6, 2015, Gallagher sent State Farm a letter supplementing her answers to State Farm’s interrogatories. Additionally, two of the physicians who treated Gallagher at Mercy, David Maine, Jr., M.D., and Bernard Chang, M.D., were deposed. Upon questioning by Gallagher’s counsel, the doctors affirmed that the breast surgeries, cellulitis, and PICC line procedure and injuries sustained therefrom were causally connected to the 2009 motor vehicle accident. Both doctors’ statements were slated for use by Gallagher at her trial.
State Farm filed a motion to strike discovery materials that Gallagher had belatedly produced. The trial court granted State Farm’s motion to strike. As a result, the documents that Gallagher produced belatedly were excluded from evidence at trial. On January 5, 2015, Gallagher’s trial against State Farm commenced. After opening statements, the parties settled for $125,000. The trial judge ordered the case settled and dismissed with prejudice.
On November 9, 2015, Gallagher filed a claim against Mercy in the Health Care Alternative Dispute Resolution Office (“HCADRO”). She ultimately waived arbitration and filed a medical malpractice complaint against Mercy in the circuit court, asserting that Mercy was vicariously responsible for the negligent medical care that she received during the PICC line procedure. She sought damages for personal injuries, present and future medical expenses, emotional pain and suffering, and inability to engage in her usual duties, employments, and activities.
Thereafter, Mercy filed a motion for summary judgment, arguing that Gallagher’s claim was barred by the one satisfaction rule. Finding that the damages Gallagher sought from Mercy were the same damages for which she had accepted a settlement in the automobile accident case, the trial court granted Mercy’s motion for summary judgment. The Court of Special Appeals affirmed the trial court’s ruling. Gallagher then appealed to the Court of Appeals, which affirmed the judgment of the Court of Special Appeals.
LAW: Gallagher argued that the circuit court and Court of Special Appeals erred in finding that the one satisfaction rule barred recovery in his lawsuit against a subsequent tortfeasor when no judgment was entered in the prior lawsuit, and the prior lawsuit was resolved by settlement and release that did not release claims against the subsequent tortfeasor. It is a well-settled principle of tort law that a negligent actor is liable not only for the harm that he directly causes but also for any additional harm resulting from normal efforts of third persons in rendering aid, irrespective of whether such acts are done in a proper or a negligent manner. Underwood-Gary v. Mathews, 366 Md. 660, 668 (2001). However, although liability for a particular harm may be shared by multiple tortfeasors, the plaintiff is entitled to one compensation for his or her injuries. Id. at 667-69.
The one satisfaction rule establishes that a plaintiff is entitled to one compensation for his or her loss, and satisfaction of the plaintiff’s claim prevents the plaintiff from pursing another who may be liable for the same damages. Id. at 667. The rule applies when an individual seeks to be compensated for injuries that he or she sustained, yet, in prior litigation, that individual was already compensated for the same injuries by a joint tortfeasor, concurrent wrongdoer not acting in concert, or a paying party who has “no connection with the tort at all.” Morgan v. Cohen, 309 Md. 304, 312 (1987). Under such circumstances, the equitable one satisfaction rule applies to prevent double recovery for the same injuries. Id. at 320.
“Satisfaction” has been defined as “an acceptance of full compensation for an injury.” In order to decide whether a plaintiff’s claim is barred by the one satisfaction rule, the court must “study and compare” the injuries for which the plaintiff received recovery in his or her initial action, and the injuries for which the plaintiff seeks recovery in his or her subsequent action. Underwood-Gary v. Mathews, 366 Md. at 716. The injuries for which the plaintiff was compensated in the initial action are to be ascertained from an examination of the pertinent portions of the record, including plaintiff’s answers to interrogatories, the pretrial order, the testimony, the charge of the court and the opening and closing statements of counsel. Id. at 673.
In the present case, Gallagher contended that Mercy was liable for medical malpractice, while Mercy contended that her claim was barred by the one satisfaction rule because of Gallagher’s recovery in the automobile accident case. Accordingly, the dispositive question was whether the satisfaction from the automobile accident action encompassed all of the injuries sustained by Gallagher, including those injuries, in the subsequent proceeding, alleged to be attributable to medical malpractice. See Underwood-Gary, 366 Md. at 672. If the satisfaction only compensated Gallagher for the injuries she initially sustained from the automobile accident, her claim for injuries that resulted from the subsequent malpractice was not barred. See id. This question was one of fact.
Gallagher’s alleged “satisfaction” consisted of the settlement that she received from State Farm. There was sufficient information before the trial court to compare the injuries that were satisfied by the State Farm settlement with the injuries that Petitioner claimed in the medical malpractice claim against Mercy. Underwood-Gary, 366 Md. at 673-74. These facts, derived from the complaints, discovery responses, hearings, and depositions, were not in dispute. See Kennedy Krieger Institute v. Partlow, 460 Md. 607, 632 (2018). A review of the records from the automobile accident case indicated that Gallagher’s settlement with State Farm covered her evaluation as to all of the injuries that she later claimed in the medical malpractice action. Namely, the settlement compensated Gallagher for her injuries resulting from the PICC line procedure, which she now sought to recover from Mercy. Therefore, Gallagher’s claim against Mercy was barred by the one satisfaction rule.
Accordingly, the judgment of the Court of Special Appeals was affirmed.
COMMENTARY: Gallagher argued that her decision to settle was based in part on the trial court’s “adverse pretrial ruling” (i.e., the discovery sanction) and on State Farm’s assertion that the accident was not a proximate cause of her PICC line injuries. She contended that her settlement, for “a fraction of the $2 million” that she had claimed, could not be a full satisfaction because it was the result of a compromise. However, by accepting a settlement, Gallagher evaluated – for herself – her claim against State Farm, weighing the claim’s value against the risk of placing her fate in the hands of the jury. That claim encompassed her PICC line injuries, for which she now sought recovery from Mercy. Where, as here, a plaintiff enters into an entirely voluntary settlement for all of the injuries that she sustained, she cannot ask the court to conduct a post hoc appraisal of the value of her claims.
PRACTICE TIPS: The collateral source doctrine prohibits the admission of evidence that the plaintiff or victim has received compensation from some source other than the damages sought against the defendant. Importantly, however, the collateral source doctrine applies only when the plaintiff has been compensated for his or her injuries from a source unrelated to the tortfeasor.
BOTTOM LINE: Although the circuit court erred in excluding a witness’s prior conviction under Violent Crimes in Aid of Racketeering Activity, 18 U.S.C. §1959, which involved criminal acts that relevant to the witness’s credibility and therefore was admissible for impeachment purposes, this error was harmless where the jury had the benefit of sufficient information to evaluate the witness’s credibility and there was not a reasonable possibility that excluding this impeachment evidence contributed to the guilty verdict against the defendant.
CASE: Rosales v. State, No. 6, Sept. Term, 2018 (filed April 17, 2019) (Judges Barbera, Greene, Adkins, McDonald, Watts, Hotten & GETTY).
FACTS: On September 26, 2012, Hector Hernandez-Melendez, a.k.a. “Scrappy,” a former member of the Mara Salvatrucha (“MS-13”) gang, was walking to his girlfriend’s home in Langley Park, Maryland, when he was approached by a group of current MS-13 members, which included Wilfredo Rosales and six other men. The men asked Hernandez-Melendez if he was Scrappy, and he replied that he was not. The group then asked him to lift his shirt. When he refused, he was thrown to the ground and stabbed by someone in the group.
An ambulance transported Hernandez-Melendez to Washington Hospital Center. After Hernandez-Melendez received care for his injuries, detectives arrived and questioned him. He told the detectives that he did not recognize any of his attackers except for Rosales. He knew Rosales did not stab him but he believed that Rosales removed $150 from his wallet. He also believed that Rosales was the instigator of the attack because Rosales was the only one in the group who would have recognized him.
According to Hernandez-Melendez, he “walked through” Rosales in 2006, as part of Rosales’s initiation into MS-13. Prior to the incident in the park, Hernandez-Melendez had not had any contact with Rosales since 2006. Hernandez-Melendez confirmed the identity of Rosales through photo identification. Based upon this identification, Rosales was arrested and charged Rosales with nine counts related to the assault of Hernandez-Melendez.
On May 30, 2013, a jury trial began in the circuit court. During direct examination, Hernandez-Melendez testified about his prior experience as a member of MS-13. He stated that in his opinion, he was attacked as retaliation for testifying as a government witness against three MS-13 members in a federal homicide trial in Washington, D.C. in 2009.
Prior to Rosales’s cross-examination of Hernandez-Melendez, the trial court heard argument on the State’s motion in limine to preclude Rosales from questioning Hernandez-Melendez about his 2011 conviction in the United States District Court for the District of Columbia for conspiracy to commit assault with a dangerous weapon in aid of racketeering and threatening to commit a crime of violence in aid of racketeering in violation of the federal statute, Violent Crimes in Aid of Racketeering Activity (“VICAR”), 18 U.S.C. §1959. The trial court granted the State’s motion.
At the conclusion of the trial, the jury found Rosales guilty of two of the nine counts: retaliation against a witness and participation in a criminal gang. The trial court sentenced Rosales to 12 years of imprisonment with six years suspended on the conviction for retaliation against a witness and a consecutive sentence of ten years with five years suspended on the conviction for participation in a criminal gang. Rosales filed an initial notice of appeal on October 16, 2013 and a motion to permit a notice of appeal past the filing date. The circuit court granted the motion. The initial appeal was docketed in the Court of Special Appeals as No. 1835, September Term 2013. Rosales voluntarily dismissed this appeal in October 2014.
On September 27, 2016, Rosales filed a Petition for Postconviction Relief, alleging, in part, ineffective assistance of counsel because he had requested that trial counsel file an appeal and trial counsel did not timely file the appeal. Prior to the start of the hearing on the matter, the State agreed that Rosales was entitled to file a belated appeal. The postconviction court agreed to sign the proposed consent order, and Rosales subsequently filed the belated appeal.
The Court of Special Appeals affirmed the judgment of the trial court, holding that the trial court properly concluded that Hernandez-Melendez’s prior convictions involved violent crimes that were not relevant to credibility and were non-impeachable crimes under Maryland Rule 5-609. Rosales filed a Petition for Post-Conviction Relief based on his counsel’s failure to note a timely appeal, and he was given the right to file a belated notice of appeal.
Rosales petitioned the Court of Appeals for a writ of certiorari, which was granted. The Court of Appeals entered an order affirming the judgment of the Court of Special Appeals.
LAW: The sole issue was whether Hernandez-Menendez’s prior convictions for committing violent crimes in aid of racketeering activity, i.e., for conspiracy to commit assault with a dangerous weapon in aid of racketeering activity and threatening to commit a crime of violence in aid of racketeering activity, were admissible for purposes of impeachment under Maryland Rule 5-609. Maryland Rule 5-609(a) states that for the purposes of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during examination of the witness, but only if: (1) the crime was an infamous crime or other crime relevant to the witness’s credibility; and (2) the court determines that the probative value of admitting this evidence outweighs the danger of unfair prejudice to the witness or the objecting party. Section (b) states that evidence of a conviction is not admissible under this Rule if a period of more than 15 years has elapsed since the date of the conviction, except as to a conviction for perjury, for which no time limit applies.
Finally, Rule 5-609(c) states that evidence of a conviction otherwise admissible under section (a) shall be excluded if: (1) the conviction has been reversed or vacated; (2) the conviction has been the subject of a pardon; or (3) an appeal or application for leave to appeal from the judgment of conviction is pending, or the time for noting an appeal or filing an application for leave to appeal has not expired. Thus, Rule 5-609 requires a three-part analysis before a court determines whether a witness’ prior conviction is admissible. First, the court must determine whether the crime is an “infamous crime or other crime relevant to the witness’s credibility.” Md. R. 5-609. If a crime does not fall within one of the two categories, then it is inadmissible, and the analysis ends. Cure v. State, 421 Md. 300, 324 (2011).
Infamous crimes include treason, common law felonies, and other offenses classified generally as crimen falsi. State v. Giddens, 335 Md. 205, 213 (1994). Crimen falsi includes crimes that have an element of deceitfulness, untruthfulness, or falsification and so bear directly on the witness’ propensity to testify truthfully, such as perjury, false statement, criminal fraud, embezzlement, or false pretense. Id. at 213 n.5. Statutory felonies are not infamous crimes. State v. Westpoint, 404 Md. 455, 476 (2008).
To fall into the category of “other crimes relevant to credibility,” the crime itself, by its elements, must clearly identify the prior conduct of the witness that tends to show that he is unworthy of belief. Moreover, a crime tends to show that the offender is unworthy of belief, if the perpetrator “lives a life of secrecy” and engages in “dissembling” in the course of the crime, being prepared to say whatever is required by the demands of the moment, whether the truth or a lie. Anderson v. State, 227 Md. App. 329, 339 (2016). After the classification of the conviction, the court determines whether the conviction is more than fifteen years old. Cure, 421 Md. at 324. Finally, the court balances the probative value of the conviction against its potential for unfair prejudice. Id. at 325. If the conviction is admissible, the name of the conviction, the date of the conviction, and the sentence imposed is introduced. Giddens, 335 Md. at 222.
In this matter, the trial court excluded the convictions based on the initial step, finding that the underlying substantive offense of Hernandez-Melendez’s prior convictions were general crimes of violence that were inadmissible for impeachment purposes. As a matter of first impression, it was necessary to determine whether one who “murders, kidnaps, maims, assaults with a dangerous weapon,” or “commits assault resulting in serious bodily injury,” or threatens, attempts, or conspires to do so, in order to gain entrance to or increase standing in an enterprise he or she knows to be engaged in racketeering activity, is an impeachable offense. Rosales argued that, like narcotics distribution, all individuals involved in racketeering enterprises would also be prepared to say whatever is required of the moment, whether a truth or a lie.
This argument was persuasive. VICAR offenses strike at the heart of what it means to live a life of secrecy and dissembling, “being prepared to say whatever is required by the demands of the moment, whether the truth or a lie.” Giddens, 335 Md. at 217. The criminal enterprises central to any VICAR offense are specifically formed to subvert and replace societal norms, reshape existing power structures to be under the control of criminal bodies, and engage in furtive criminal activity that, in turn, destabilizes the very communities in which they operate. Moreover, the requisite mens rea of VICAR offenses is unlike that of typical acts of violence. It is the association with others in the enterprise in a concerted effort to advance or cover up racketeering activity, not the predicate offense, that makes VICAR crimes inherently deceitful. Therefore, pursuant to the standard enumerated in Giddens, VICAR offenses are within the “eligible universe” of offenses which may be used to impeach a witness’s credibility.
Moving on to the second and third steps of the Maryland Rule 5-609 analysis, the conviction in question was less than 15 years old, had not been reversed or vacated, was not the subject of a pardon, and no appeal from the judgment was pending. See Md. R. 5-609(b)-(c). Under the third step, the probative value of the conviction, on balance, outweighed its prejudicial impact, in that Hernandez-Melendez was the victim of the attack and the only witness, and he recognized Rosales as one of his attackers only because of their previous interaction in the MS-13 gang. Therefore, the factors weighed in favor of admission.
However, the trial court’s error in refusing allow impeachment with the criminal convictions was harmless beyond a reasonable doubt. Rosales’s jury had ample opportunity to learn of Hernandez-Melendez’s suspect credibility. The jury already knew that Hernandez-Melendez was involved with an enterprise engaged in racketeering (the MS-13 gang) and that he was incarcerated for this association. Knowing the name, date, and sentence imposed would add little value to the jury’s consideration of the witness’ credibility. Therefore, although the Court of Special Appeals erred in affirming the trial court’s exclusion of this impeachment evidence, Rosales was not granted a new trial.
Accordingly, the judgment of the Court of Special Appeals was affirmed.
COMMENTARY: After certiorari was granted, the State raised for the first time the issue of jurisdiction and contended that the Court of Appeals did not have jurisdiction to reach the merits of the appeal. However, given the unique history of these proceedings and the apparent consent of all parties, this case presented a narrow circumstance in which it was appropriate for the Court of Appeals to consider the merits without the filing of a timely appeal or without the postconviction court following the appropriate postconviction process. Otherwise, a remand would inevitably result in the postconviction court’s making the appropriate findings under the Postconviction Act to permit Rosales to file a belated appeal, and the appeal would then work its way up the appellate ladder, culminating with the Court of Appeals addressing the exact issue that had already been briefed and argued before the Court of Appeals. Therefore, it was proper for the Court of Appeals to reach the merits of this matter.
PRACTICE TIPS: In determining whether a conviction is admissible for purposes of impeachment, there is an important boundary line between the dishonesty inherent in all violations of the law and the extraordinary dishonesty that is a crucial characteristic of those engaging in particular offenses. The latter is demarcated by those acts which pose grave danger to the pose grave danger to the fabric of society, could only have been carried on furtively, required great pains to conceal, necessitate “a life of secrecy and dissembling”; and involve being “prepared to say whatever is required by the demands of the moment.”
Court of Special Appeals
Alibi jury instruction
BOTTOM LINE: Circuit court properly granted defendant’s post-conviction petition based on ineffective assistance of counsel because, where defendant, who was convicted of kidnapping and murder, produced alibi evidence to show that he could not have committed the crimes, defense counsel’s unintentional failure to request an alibi jury instruction constituted deficient performance because there was no strategic reason not to request such instruction.
CASE: State of Maryland v. Christopher Mann, No. 80, Sept. Term 2018 (filed May 1, 2019) (Judges Meredith, Friedman & BEACHLEY)
FACTS: Ricky Prince was murdered on April 22, 2004, between 7:00 p.m. and midnight. Following a five-day jury trial, Christopher Mann was convicted by a jury in the Circuit Court for Baltimore City of felony murder, kidnapping, and conspiracy to commit kidnapping.
The State’s theory of the case was that Mann and an accomplice kidnapped and murdered Prince in retaliation for Prince’s cooperation with police and prosecutors in two other criminal prosecutions. At trial, Mann called four “alibi” witnesses who testified to his whereabouts on April 22, 2004 in an effort to show that he was not present when Prince was kidnapped and murdered. Despite the fact that four alibi witnesses testified in Mann’s defense, Mann’s trial counsel did not request an alibi jury instruction.
Mann appealed to the Court of Special Appeals, which affirmed. Mann subsequently filed a post-conviction petition, alleging, among other things, that his trial counsel rendered ineffective assistance of counsel by failing to request an alibi jury instruction. At the hearing on the petition, Mann’s trial counsel conceded that there was no reason not to request the alibi instruction. Indeed, as the State conceded, there was no dispute of the fact that Mann’s counsel simply overlooked requesting the alibi jury instruction, notwithstanding his presentation of an alibi defense.
The post-conviction court granted Mann’s motion and ordered a new trial on the basis that Mann’s trial counsel rendered ineffective assistance by failing to request an alibi jury instruction.
The State appealed to the Court of Special Appeals, which affirmed.
LAW: The Sixth Amendment of the United States Constitution and Article 21 of the Maryland Declaration of Rights guarantee all criminal defendants the right to the effective assistance of counsel. Duvall v. State, 399 Md. 210, 220-21 (2007). In order for a criminal defendant to successfully vacate his conviction on this basis, he must satisfy a two-prong test established in the landmark Supreme Court case Strickland v. Washington, 466 U.S. 668, 687 (1984).
The two-part test is as follows: “First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.” Id.
Maryland Rule 4-325(c) states that “The court may, and at the request of any party shall, instruct the jury as to the applicable law and the extent to which the instructions are binding.” Regarding when the court must instruct the jury as to the applicable law, the Court of Appeals has held that “[a] requested jury instruction is applicable if the evidence is sufficient to permit a jury to find its factual predicate.” Bazzle v. State, 426 Md. 541, 550 (2012). As to the burden of establishing that predicate, “the threshold is low, as a defendant needs only to produce ‘some evidence’ that supports the requested instruction[.]” Id. at 551.
In assessing Strickland’s deficiency prong, “the proper standard for attorney performance is that of reasonably effective assistance. Prevailing professional norms define what constitutes reasonably effective assistance, and all of the circumstances surrounding counsel’s performance must be considered. Because it is tempting for both a defendant and a court to second-guess a counsel’s conduct after conviction, courts must be highly deferential when they scrutinize counsel’s performance. Reviewing courts must thus assume, until proven otherwise, that counsel’s conduct fell within a broad range of reasonable professional judgment, and that counsel’s conduct derived not from error but from trial strategy.” Mosley v. State, 378 Md. 548, 557-58 (2003). In other words, the deficiency prong depends upon whether counsel’s conduct was reasonable, and, in that analysis, a reviewing court will not assume error in counsel’s performance.
In Schmitt v. State, 140 Md. App. 1, 26 (2001), Schmitt was charged with first-degree murder for a shooting that occurred at a motel between 1:45 and 2:00 a.m. Id. at 32. At trial, Schmitt’s alibi witness testified that he and Schmitt arrived at the motel between 1:30 and 2:00 a.m., but that Schmitt “was inside the motel rather than outside when the fatal shots were fired.” Id. It was noted, however, that Schmitt’s alibi witness “was in the bathroom of their motel room when he heard shots. [The alibi witness] testified that [Schmitt] was in the motel room when he, [the alibi witness], came out of the bathroom. He never said how long he was in the bathroom.” Id. at 32-33.
Schmitt’s counsel intentionally chose not to request an alibi jury instruction because he believed that an alibi instruction says you are to consider and apply the evidence along with any other evidence in the case. The Court vindicated that strategic decision, holding that, “With respect to the disinclination (not the failure but the disinclination) of trial counsel to request a special alibi instruction, we see no deficiency in terms of his trial performance.” Id. at 37.
Schmitt is clearly distinguishable from the instant case. First, there was no question here that Mann generated an alibi defense. According to the State’s case, Prince was in an altercation with Mann and others at a McDonald’s shortly before 7:00 p.m. Following this altercation, Mann and a friend allegedly left the McDonald’s with Prince and ultimately killed him. Mann’s own statements to police confirmed that he was present at the McDonald’s and had an argument with Prince that evening. Mann told police, however, that after someone stole Prince’s car, Mann went to his father’s house and then to the home of his friend before ultimately spending the rest of the evening with his girlfriend.
Turning to the strategy in not requesting the instruction, the State conceded that there was none, and there was no dispute that defense counsel simply overlooked requesting the alibi jury instruction, notwithstanding his presentation of an alibi defense. In fact, Mann’s trial counsel testified at the post-conviction hearing that “If it’s an alibi defense, you ask for an alibi instruction.”
Unlike in Schmitt, the record here was devoid of any strategic reason for not requesting an alibi instruction. Therefore, counsel’s non-strategic failure to request the alibi jury instruction fell below the “broad range of reasonable professional judgment” standard recognized in Strickland and its progeny, and therefore constituted deficient performance. Mosley, 378 Md. at 558.
Accordingly, the judgment of the post-conviction court was affirmed.
COMMENTARY: Having established that counsel’s failure to request an alibi instruction constituted deficient performance, it was also necessary to determine whether that performance constituted prejudice. Regarding Strickland’s prejudice prong, the Supreme Court has provided that “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. The Court of Appeals has interpreted the language “reasonable probability” to mean “there was a substantial or significant possibility that the verdict of the trier of fact would have been affected.” Bowers v. State, 320 Md. 416, 426 (1990).
There is a strong concern that a jury will assume that a criminal defendant bears some burden of proof by introducing alibi evidence, even if the word “alibi” is never uttered in the courtroom. Schmitt, 140 Md. App. at 30. Also, if a defendant introduces alibi evidence, the State must overcome that evidence and prove beyond a reasonable doubt that the defendant committed the charged crime. Pulley v. State, 38 Md. App. 682, 686-91 (1978). By providing an alibi instruction, the trial court sufficiently relieves these concerns.
Here, where an alibi instruction was not given because trial counsel failed to request it, there was “a substantial or significant possibility that the verdict of the trier of fact [was] affected.” Bowers, 320 Md. at 426. Thus, Mann was prejudiced because he did not receive the benefit of the alibi instruction as a result of his counsel’s failure to request it.
PRACTICE TIPS: “The entitlement to an instruction if you want one does not imply that you are derelict for not wanting one. By analogy, a defendant is constitutionally entitled to an instruction that his failure to take the stand will not be held against him. It is perfectly sound trial strategy, however, to wish to forego such an instruction so as not to draw the jury’s attention to the inevitably suspicious failure to take the stand[.]” Schmitt v. State, 140 Md. App. 1, 34 (2001).
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