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Law Digest — Court of Appeals, Court of Special Appeals — Aug. 27, 2020

 

Maryland Court of Appeals

Criminal Procedure; Ineffective assistance of counsel: Where the motions court held in abeyance the defendant’s motion to modify a sentence under Rule 4-345(e), which grants a court revisory power over a sentence up until the  expiration of five years from the date the sentence originally was imposed on the defendant, and the defendant’s attorney at the time of the filing of the Rule 4-345(e) motion subsequently failed to request a hearing on the motion within the five-year period, the defendant did not meet the burden of proving ineffective assistance of counsel because, by that time, the defendant was no longer represented by the attorney, and, moreover, the circuit court reasonably found that the defendant’s failure to ask the attorney to renew the request for a hearing was due to the fact that the defendant had not been affected by the convictions during the five-year period rather than because the defendant had not been informed of the five-year limitation period. Franklin v. State, No. 57, Sept. Term, 2019.

Family Law; Child in need of assistance: With regard to applicable standards of proof at various stages of proceedings in a child of need of a assistance (“CINA”) case, to decide whether to continue emergency shelter care of a child in a pending CINA case for a temporary period of up to 30 days, a juvenile court must find “reasonable grounds”: (1) that return of the child to the child’s home is contrary to the safety and welfare of the child and (2) either that removal of the child from the child’s home is necessary due to an alleged emergency situation and in order to provide for the safety of the child or that reasonable efforts were made but unsuccessful in preventing or eliminating the need to remove the child from the home, but any continuation of shelter care beyond 30 days must be based upon findings made applying a preponderance of evidence standard at the adjudicatory stage of the CINA case. In re: O.P., No. 26, Sept. Term, 2019.

Maryland Court of Special Appeals

Criminal Procedure; Flight jury instruction: Where the sole issue at trial was the identity of the criminal actor and the trial court reminded the jury that the State had the ultimate burden of proving that the burden was on the State to prove that the offense was committed and that the defendant was the person who committed it, the court did not err in giving a pattern jury instruction on flight, since the instruction, which accurately stated the law regarding flight and consciousness of guilt, did not imply to the jury that the court believed that the identity issue was settled. Wright v. State, No. 733, Sept. Term, 2019.

Criminal Procedure; Voir dire: Under Kazadi v. State, 467 Md. 1 (2020), a trial court must, on request, ask during voir dire whether any prospective jurors are unwilling or unable to comply with the jury instructions on the long-standing fundamental principles of the presumption of innocence, the State’s burden of proof, and the defendant’s right not to testify, and the circuit court’s failure to do so was cause for reversal where the issue was preserved for appeal. Hayes v. State, No. 500; Winston v. State, No. 556, Sept. Term, 2019.

Maryland Court of Appeals

Criminal Procedure

Ineffective assistance of counsel

BOTTOM LINE: Where the motions court held in abeyance the defendant’s motion to modify a sentence under Rule 4-345(e), which grants a court revisory power over a sentence up until the  expiration of five years from the date the sentence originally was imposed on the defendant, and the defendant’s attorney at the time of the filing of the Rule 4-345(e) motion subsequently failed to request a hearing on the motion within the five-year period, the defendant did not meet the burden of proving ineffective assistance of counsel because, by that time, the defendant was no longer represented by the attorney, and, moreover, the circuit court reasonably found that the defendant’s failure to ask the attorney to renew the request for a hearing was due to the fact that the defendant had not been affected by the convictions during the five-year period rather than because the defendant had not been informed of the five-year limitation period.

CASE: Franklin v. State, No. 57, Sept. Term, 2019 (filed August 13, 2020) (Judges Barbera, McDonald, Watts, Hotten, Getty, Booth & BIRAN).

FACTS: Shawn Franklin was convicted in the circuit court of reckless endangerment and illegally transporting a handgun in a vehicle in March 2010. The court sentenced Franklin to 14 days of active jail time and three years of probation. Immediately after pronouncing that sentence, the court said it would not rule out modifying Franklin’s sentence to probation before judgment after Franklin completed his period of probation, but that Franklin would have to “work for” such a modification.

Under Rule 4-345(e), upon a motion filed within 90 days after imposition of a sentence, the court has revisory power over the sentence except that it may not revise the sentence after the expiration of five years from the date the sentence originally was imposed on the defendant and it may not increase the sentence. A court considering a motion under Rule 4-345(e) may deny the motion without a hearing. However, the court may grant such a motion only on the record in open court, after hearing from the defendant, the State, and from each victim or victim’s representative who requests an opportunity to be heard.

In April 2010, Franklin’s attorney filed a timely motion for modification of sentence under Maryland Rule 4-345(e), asking that the court consider changing the sentence to probation before judgment. In this filing, Franklin’s attorney requested a hearing on the motion, but also asked the court to defer consideration of the motion until after the conclusion of Franklin’s probation. After receiving the motion, in keeping with the attorney’s request, the sentencing court noted that it was taking “no action” on the motion.

Franklin successfully completed his period of probation, but neither he nor his attorney asked the sentencing court to set the motion in for a hearing during the remainder of the five-year consideration period. That period expired in March 2015. Franklin subsequently sought to expunge the records of his criminal charges, but because he had not received probation before judgment, he was not entitled to expungement.

In 2017, after losing his job due to his convictions having come to light, Franklin sought a writ of error coram nobis that would allow the sentencing court belatedly to hold a hearing and decide his motion for modification of sentence. Franklin claimed that he was entitled to this relief because his attorney provided ineffective assistance of counsel, in violation of the Maryland and United States Constitutions. Specifically, Franklin claimed that his attorney performed deficiently by failing to notify the sentencing court within the applicable five-year period that Franklin was ready to have the court consider the motion for sentence modification.

The coram nobis court denied relief to Franklin, and the Court of Special Appeals affirmed. Franklin then appealed to the Court of Appeals, which affirmed the judgment of the Court of Special Appeals.

LAW: Franklin claimed that his counsel’s failure to renew the request for a hearing between the time Franklin that completed his period of probation and the expiration of the five-year period for consideration of a Rule 4-345(e) motion, constituted deficient performance under the Sixth Amendment and Article 21. Specifically, Franklin contended that an attorney provides constitutionally deficient representation per se where: (1) the attorney files a timely motion for modification of sentence; (2) the sentencing court takes the motion under advisement; and (3) the attorney fails to request (or renew a request for) a hearing on the motion within the five-year period under Rule 4-345(e) for the sentencing court to consider the motion. Franklin argued that State v. Flansburg, 345 Md. 694 (1997), compelled the conclusion that an attorney who fails to renew a request for a hearing on a Rule 4-345(e) motion, before the expiration of the five-year period for consideration of the motion, per se provides constitutionally deficient representation.

In Flansburg, the Court of Appeals held that a defendant has a right under Maryland law to the effective assistance of counsel in connection with a request to file a motion for modification of the sentence. Id. at 703. In that case, after Flansburg was sentenced, he sent his attorney two timely written requests that the attorney file a motion for sentence modification. The attorney failed to file the requested motion. Id. at 696. Flansburg sought postconviction relief, contending that, by failing to timely file the requested motion and thereby forfeiting the opportunity to have the court reconsider Flansburg’s sentence, his attorney provided ineffective assistance of counsel. Id. at 697. The Court of Appeals agreed that the attorney’s failure to comply with Flansburg’s express request constituted deficient performance. Id. at 705.

In the present case, however, after Franklin completed his period of probation, he did not ask or instruct his attorney at the time of the filing of the Rule 4-235(e) motion to renew the prior request for a hearing on the motion for modification of sentence. Indeed, Franklin never contacted the attorney, Kenneth Prien, during the five-year period after the sentencing hearing. Thus, Franklin’s situation was not analogous to that of Flansburg.

Franklin argued for a bright line rule that an attorney, on his or her own initiative, must make or renew a request for a hearing on a motion for modification of sentence being held under advisement, prior to the expiration of the five-year period. In support of his position, Franklin relied primarily on the opinion of the Court of Special Appeals in Moultrie v. State, 240 Md. App. 408, cert. denied, 466 Md. 208 (2019). In Moultrie, a 16-year-old defendant, Tevin Moultrie, pled guilty to second-degree murder. The court sentenced Moultrie to 30 years in prison. Id. at 413-14. Moultrie’s attorney then advised Moultrie on the record of several post-sentencing rights, including the right to move the sentencing court to modify the sentence that the court had just imposed.

Moultrie’s attorney filed a timely motion for modification of sentence under Rule 4-345(e). In the motion, counsel asked that the court hold it sub curia, and that the court grant a hearing upon petition of counsel. Id. at 415. Moultrie’s attorney did not file a “petition” for a hearing on the motion before the five-year deadline expired. Id. Moultrie subsequently filed a petition for post-conviction relief, alleging that his attorney provided ineffective assistance of counsel by failing to secure a ruling during the five-year period. At the post-conviction hearing, Moultrie introduced no evidence that he had asked his attorney to request a hearing or a ruling on the motion prior to the expiration of the five-year period. See id. at 422. After the post-conviction court denied Moultrie’s petition, the Court of Special Appeals reversed. The court found significant that Moultrie was a teenager at the time counsel filed the motion for modification of sentence. Id. at 423.

While the bright line rule established in Flansburg was appropriate because a defendant who requests that counsel file a Rule 4-345(e) motion reasonably relies upon counsel to do so, the bright line drawn in Moultrie that an attorney must, on his or her own initiative, make or renew a request for a hearing on a motion for modification of sentence being held under advisement, went too far. An attorney must ensure that his or her client knows there is a five-year period for consideration of a motion for modification of a sentence. Assuming, however, that a defendant is properly advised of the existence of the five-year period, it is not reasonable to require defense counsel, in every case where a court has taken a Rule 4-345(e) motion under advisement, to request (or renew a request) for a hearing within the five-year period on the attorney’s own initiative.

Under the specific circumstances of this case, Franklin did not meet his burden to prove that his attorney provided deficient representation. Although Franklin testified at the coram nobis hearing that his counsel did not tell him about the relevant five-year period and that he remained unaware of the five-year period as late as October 2015 (when he filed his petition for expungement), the coram nobis court did not make a finding crediting Franklin’s testimony on these points. Rather, the court indicated that it believed that Franklin’s failure to ask his attorney to renew the request for a hearing was due to the fact that Franklin had not been affected by the convictions during the five-year period. This finding was not clearly erroneous.

Further, after the 90-day period following Franklin’s sentencing, Franklin’s attorney no longer represented Franklin in the case by operation of law, and he was not required to track his former client’s progress through the five-year period. It was Franklin, not his former attorney, who was best positioned to know what Franklin had done to “work for” a potential probation before judgment. Franklin did not inform his former counsel at any point during the five-year period that he had successfully completed his probation. Notably, Franklin attempted pro se to have his charges expunged.

In these circumstances, the Sixth Amendment and Article 21 did not require Franklin’s former attorney, on his own initiative, to renew the request for a hearing on the motion for modification of sentence. In the absence of any effort on Franklin’s part to move forward with the pending motion while things were going well for him, it could not be said that his former attorney acted unreasonably by also not taking any further action on the motion during the five-year period on his own initiative. As such, Franklin failed to satisfy the first prong of the Strickland test.

Accordingly, the judgment of the Court of Special Appeals was affirmed.

COMMENTARY: In a case where a court finds deficient performance in the failure of an attorney to request a hearing on a Rule 4-345(e) motion that has been held in abeyance, a post-conviction or coram nobis court generally should find the requisite prejudice under Strickland v. Washington, 466 U.S. 668 (1984), and should provide the defendant with a reasonable opportunity to notify the court that the defendant wishes the court to rule on the motion. The postconviction or coram nobis court also should allow the sentencing court a reasonable opportunity to hold a hearing (if it chooses to hold a hearing) and to rule on the motion.

Family Law

Child in need of assistance

BOTTOM LINE: With regard to applicable standards of proof at various stages of proceedings in a child of need of a assistance (“CINA”) case, to decide whether to continue emergency shelter care of a child in a pending CINA case for a temporary period of up to 30 days, a juvenile court must find “reasonable grounds”: (1) that return of the child to the child’s home is contrary to the safety and welfare of the child and (2) either that removal of the child from the child’s home is necessary due to an alleged emergency situation and in order to provide for the safety of the child or that reasonable efforts were made but unsuccessful in preventing or eliminating the need to remove the child from the home, but any continuation of shelter care beyond 30 days must be based upon findings made applying a preponderance of evidence standard at the adjudicatory stage of the CINA case.

CASE: In re: O.P., No. 26, Sept. Term, 2019 (filed August 14, 2020) (Judges Barbera, MCDONALD, Watts, Hotten, Getty, Booth & Harrell (Senior Judge, Specially Assigned)).

FACTS: An infant, O.P., was hospitalized with serious unexplained brain injuries several days after an incident at home where he stopped breathing. Alleging that the injuries were the result of abuse or neglect, the Anne Arundel County Department of Social Services placed O.P. in emergency shelter care and immediately filed a petition seeking to have him declared a child in need of assistance, with a request for continued temporary shelter care pending resolution of the CINA petition. Pursuant to statute, the circuit court, sitting as a juvenile court, held a hearing on the request for continued temporary shelter care.

Conflicting evidence was presented as to whether O.P.’s brain injuries occurred at home or while he was in the neonatal intensive care unit for seven weeks after his birth. The juvenile court found that the Department had failed to establish the statutory criteria by a preponderance of the evidence and denied the Department’s request for continued shelter care. O.P. was returned to the custody of his parents.

The Department and the counsel appointed for O.P. appealed to the Court of Special Appeals, challenging the juvenile court’s use of a preponderance standard for determining whether to authorize continued shelter care. The Court of Special Appeals held that the juvenile court used the correct standard of proof. Concluding that the juvenile court’s fact findings were not clearly erroneous and that it did not abuse its discretion in denying continued shelter care, the intermediate appellate court affirmed the juvenile court’s decision.

The Department and counsel for O.P. appealed to the Court of Appeals. In the meantime, however, the parties reached a settlement in the CINA case under which O.P. was declared a CINA, but remained with his parents subject to the Department’s supervision. The settlement rendered moot the Department’s request to place him in shelter care.

Although the issue of shelter care was moot, the Court of Appeals exercised its discretion to decide the legal issues presented by the parties, the appealability of a shelter care decision and the appropriate standard of proof to be applied in a shelter care proceeding, as issues “capable of repetition, yet evading review. The Court of Appeals affirmed in part and reversed in part the judgment of the Court of Special Appeals.

LAW: The procedures governing proceedings when a child is alleged to be a child in need of assistance (“CINA”) are set forth in Maryland Code, Courts & Judicial Proceedings Article (“CJ”), §3-801 et seq. At issue in this case was the standard of proof to be applied by a juvenile court in determining whether to authorize continued temporary shelter care under CJ §3-815(d).

The juvenile court here applied a preponderance of the evidence standard, although it did not analyze the issue. The Court of Special Appeals concluded that it was appropriate to apply a preponderance standard of proof. The Department and O.P. argued that the juvenile court erred in applying a preponderance standard when it assessed whether the criteria in CJ §3-815(d) for continued shelter care were satisfied in this case.

CJ §3-815(d) states that a juvenile court may authorize continued shelter care for a child up to an additional 30 days after the child is removed from the home only if it “finds” certain criteria: (1) that return of the child to his or her home is “contrary to the safety and welfare of the child”; and (2) either that removal from the home is “necessary due to an alleged emergency situation and in order to provide for the safety of the child,” or that reasonable efforts were made but were unsuccessful to eliminate the need to remove the child from the home. While the text of CJ §3-815(d) does not specify a particular standard of proof, related provisions do state standards of proof or levels of confidence. The standard of proof to be applied at a hearing on the temporary continuation of emergency shelter care must make sense in that context.

The statutory provisions that authorize a local department or law enforcement officer to remove a child from the home and place the child in emergency shelter care in an emergency situation when the child is believed to be in serious, immediate danger use phrases such as “probable cause,” “reasonable grounds,” and “reasonable under the circumstances.” The CINA statute also specifies a standard of proof when the juvenile court holds a more formal hearing on the allegations of the CINA petition and makes findings related to any request for continued shelter care beyond 30 days at the adjudicatory hearing. That standard is preponderance of the evidence.

In arguing for a preponderance standard of proof, the Court of Special Appeals relied on Volodarsky v. Tarachanskaya, 397 Md. 291 (2007). Volodarsky did not concern a temporary continuation of shelter care, but rather the resolution of a custody dispute. The pertinent statute – FL §9-101 – provides that, if a court has “reasonable grounds to believe” that a child has been abused or neglected, it is to determine whether the abuse or neglect is “likely to continue” if custody or visitation is awarded to the parent accused of that conduct. FL §9-101(a). The Court of Appeals concluded that, despite the use of the phrase “reasonable grounds,” this statute required proof of abuse or neglect by a preponderance of the evidence to deny custody and visitation to a parent. Id. at 304-6.

At the shelter care hearing, the juvenile court is not determining whether the allegations of abuse or neglect in the CINA petition are true; that happens later at the adjudicatory hearing in the CINA case. Rather, the inquiry focuses on whether a return to the home is contrary to the child’s immediate safety and whether removal from the home is necessary to protect the child because of the alleged emergency. A shelter care hearing conducted under CJ §3-815(d) is, in the general scheme of the statute, an initial preliminary judicial consideration of the issue. It might be characterized as the second stage of a three-stage process.

In the initial stage, a shelter care proceeding begins when a local department determines that a child is in “serious immediate danger,” also finds that the other criteria for emergency shelter care exist and places the child in emergency shelter care. CJ 3-815(a)-(b). The court is not involved at this stage. That initial stage is followed, more or less immediately, by a second stage. The local department files a petition seeking to continue emergency shelter care for a period of up to 30 days and the juvenile court holds a prompt hearing to determine whether the criteria in CJ §3-815(d) are met. A decision made at that hearing to continue shelter care establishes a 30-day deadline for holding the adjudicatory hearing in the CINA case. Maryland Rule 11-114(b). Shelter care is meant only to provide interim protection for a child pending further proceedings in the CINA case and is, by definition, temporary. CJ §3-801(bb).

The third stage of the temporary shelter care process is the adjudicatory hearing in the CINA case. If the local department seeks to extend shelter care beyond an initial 30 days, it can obtain an extension for an additional 30 days only if the necessary findings are made at the adjudication hearing in the CINA case. Based on its findings at that hearing, a juvenile court may commit the child to the custody of someone other than the parent, whether that be a relative, the local department, or some other person. CJ §§3-817(c), 3-819(b). This deprivation of parental rights is necessarily of a greater magnitude than the temporary deprivation of custody that results from the initial order of shelter care. At that hearing, the rules of evidence do apply, and the juvenile court is required by statute to make any findings using a preponderance standard. CJ §§3-815(c)(4), (d), 3-817.

The silence in CJ §3-815(d) as to a standard of proof at the second stage contrasts with the express statement in CJ §3-817(c) that a preponderance standard applies at the third, or adjudication, stage. Given the relationship of the two proceedings, the implication is that the preponderance standard does not apply at the earlier proceeding. An order to continue emergency shelter care as a result of a shelter care hearing is preliminary and temporary. The hearing happens at the very outset of the CINA case, when the parties may still be marshalling evidence. It is conducted informally and immediately to deal with a perceived emergency situation.

Any shelter care order resulting from that hearing lasts for no more than 30 days and may accelerate the timing of an adjudicatory hearing. In similar contexts, the law generally allows for decisions to be based on standards such as probable cause, reasonable grounds, or reasonable likelihood. Such a standard is applied for similar preliminary temporary orders in CINA cases in most states that have expressed a standard of proof in statute. It is the adjudicatory hearing, which happens within 30 days of the initial shelter care order, that is the full evidentiary hearing in a CINA case. By the time of that hearing, the local department presumably has time to investigate the facts more fully, and the parents have time to prepare a defense. The rules of evidence apply, and the juvenile court is expressly tasked with assessing whether the local department has met its burden of proving allegations by a preponderance of the evidence.

In sum, a juvenile court may continue temporary emergency shelter if it has reasonable grounds to find that: (1) return of the child to the child’s home is contrary to the safety and welfare of the child; and (2) either removal from the home is necessary due to an alleged emergency situation and in order to provide for the safety of the child, or reasonable efforts were made but were unsuccessful to eliminate the need to remove the child from the home. Any continuation of shelter care beyond 30 days must be based upon findings made applying a preponderance of evidence standard at the adjudicatory stage of the CINA case. Accordingly, the judgement of the Court of Special Appeals was affirmed in part and reversed in part.

COMMENTARY: O.P.’s mother raised the threshold question of whether the juvenile court order denying the Department’s petition for continued shelter care was appealable. The shelter care determination was not a “step toward the final disposition” of a CINA proceeding. Shelter care runs its course not in the path of the CINA adjudication, but collaterally, without advancing or hindering the final CINA decision. That, combined with its conclusive resolution of an important issue effectively unreviewable on direct appeal, rendered it among the narrow class of orders reviewable under the collateral order doctrine. Therefore, the juvenile court’s order denying the Department’s request for continued shelter care was reviewable under the collateral order doctrine.

 

PRACTICE TIPS: Although an appellate court typically dismisses a moot appeal without addressing its merits, there are several exceptions to the mootness doctrine. Under one exception, even if a controversy no longer exists when the case is before the appellate court, the case will not be dismissed as moot if the controversy is “capable of repetition, yet evading review.” An appellate court may justifiably decide an otherwise moot issue if the public interest clearly will be hurt if the question is not immediately decided, if the matter involved is likely to recur frequently, and its recurrence will involve a relationship between government and its citizens, or a duty of government, and upon any recurrence, the same difficulty which prevented the appeal at hand from being heard in time is likely again to prevent a decision.

Maryland Court of Special Appeals

Criminal Procedure

Flight jury instruction

BOTTOM LINE: Where the sole issue at trial was the identity of the criminal actor and the trial court reminded the jury that the State had the ultimate burden of proving that the burden was on the State to prove that the offense was committed and that the defendant was the person who committed it, the court did not err in giving a pattern jury instruction on flight, since the instruction, which accurately stated the law regarding flight and consciousness of guilt, did not imply to the jury that the court believed that the identity issue was settled.

CASE: Wright v. State, No. 733, Sept. Term, 2019 (filed July 31, 2020) (Judges Kehoe, Beachley & RAKER (Senior Judge, Specially Assigned)).

FACTS: D’Angelo Wright was indicted by a grand jury for attempted first-degree murder and other offenses arising from the shooting of Eric Tate on April 11, 2017. At the time of the shooting, Tate was playing a game of dice with some people. Surveillance video from a nearby Dollar Shop showed an altercation over the game between Tate and a man in a red hat, who Tate claimed was Wright. The man lost his hat during the altercation and ran away.

The video then showed two men approach Tate, one of whom shot him. Tate testified initially that he did not know the identity of the assailant because he was shot from behind, but later testified that it was Wright. The video showed the assailant flee after the shooting. Police did not recover a weapon, gun residue, or fingerprints from the scene.

Prior to trial, defense counsel moved in limine to exclude the testimony of Detective Eric Greenfield, who had identified Wright as the suspect in the shooting after recognizing Wright’s face in the still images attached to an “attempt to identify” (BOLO) email flyer circulated by Detective Andre Parker. The State wanted Greenfield to testify because of concerns with Tate’s credibility. Defense counsel argued that Greenfield was not a witness to the crime and was not familiar enough with Wright to identify him. The court denied the motion in limine.

During a discussion on jury instructions, defense counsel objected to the State’s proposed instruction on flight of a defendant on the grounds that it implied improperly that Wright was the person who ran from the scene. The court denied the objection. Using the Maryland Pattern Criminal Jury Instruction (“MPJI-Cr”) 3:24, the court instructed the jury on flight of a defendant.

In the instruction, the court stated, “Flight or concealment of a defendant. A person’s flight immediately after the commission of a crime or after being accused of committing a crime is not enough by itself to establish guilt, but it is a fact that may be considered by you as evidence of guilt. Flight under these circumstances may be motivated by a variety of factors, some of which are fully consistent with innocence. You must first decide whether there is evidence of flight. If you decide there is evidence of flight you then must decide whether this flight shows a consciousness of guilt.” Shortly afterward, the court instructed the jury, “The burden is on the State to prove beyond a reasonable doubt that the offense was committed and that the Defendant was the person who committed it.” After the court gave these instructions, defense counsel renewed her objection.

During closing arguments, the State Detective Greenfield’s identification of Wright through the use of the surveillance footage and the “attempt to identify” flyer. Defense counsel did not object to the closing statement. The jury convicted Wright of attempted first-degree murder, use of a firearm in a crime of violence, and wear, carry, and transport of a handgun.

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

LAW: Wright argued that the trial court erred in giving a flight instruction where the sole contested issue was the identity of the person who had committed the crime and fled the scene. Maryland Rule 4-325(c) provides that a trial 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. The Rule requires the trial court to give a requested instruction when: (1) the instruction is a correct statement of law; (2) the instruction is applicable to the facts of the case; and (3) the content of the instruction was not fairly covered elsewhere in instructions actually given.” Dickey v. State, 404 Md. 187, 197–98 (2008).

Maryland courts have upheld consistently the propriety of a flight instruction and have approved the MPJI-Cr on flight, the exact instruction the trial court used in this case. See, e.g., Thompson v. State, 393 Md. 291 (2006). No Maryland court has held that where identity is the sole issue in the case, a flight instruction is improper or prejudicial. The Court of Appeals has consistently held that although flight by itself is not sufficient to establish the guilt of the defendant, it is a factor that may be considered in determining guilt. Moreover, flight may be indicative of a consciousness of guilt by the defendant. Concomitantly, Maryland appellate courts have recognized that a defendant’s flight may be motivated by reasons unconnected to the offense at issue in the case and that the determination as to the motivation for flight is properly entrusted to the jury. See id. Thus, based on the relevant case law, the flight instruction issued in the present case was substantively accurate with respect to the law of the State of Maryland.

In Thomas v. State, the Court of Appeals adopted a four-part inference test that must be satisfied before a trial court may instruct on flight. Thomas v. State, 372 Md. 342, 352 (2002). Under this test, circumstantial evidence of guilt depends upon the degree of confidence with which four inferences can be drawn: (1) from the defendant’s behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged. Id. Here, Wright contended that the evidence did not satisfy the first necessary inference, which requires that the conduct of the defendant indicated flight.

To satisfy that Thomas factor, the State need only produce some evidence that the criminal actor fled. The State satisfied that factor by producing evidence that the criminal actor – the shooter – fled the scene. No Maryland court has held that a flight instruction is per se inappropriate when the sole issue at trial is the identity of the criminal actor. It is not the law in Maryland that a flight instruction is categorically impermissible when identity is the sole issue at trial.

The trial court, using MPJI-Cr 3:24, stated correctly the law regarding flight and consciousness of guilt. The instruction, which referred to flight of “a defendant” and not “the defendant,” did not imply to the jury that the court believed that Wright was the assailant. Unlike in the Massachusetts case cited by Wright, the court avoided telling the jury that the issue of identity was settled. See Commonwealth v. Groce, 517 N.E.2d 1297, 1300 (Mass. App. Ct. 1988), It was reasonable to infer that the jury was aware of one of the most fundamental distinctions in the English language – that between “a” person or thing and “the” person or thing. If the jury had concluded that Wright was not the person in the surveillance video, it would not have then concluded that he must be guilty because someone fled the scene.

In addition, immediately following the instruction, the court reminded the jury that the State had the ultimate burden of proving that Wright was the assailant. The court instructed the jury that the burden was on the State to prove that “the offense was committed and the Defendant was the person who committed it.” The court also told the jury that it was not required to draw an inference of guilt. Viewing the instructions as a whole and the evidence in the case, the trial court did not err in instructing the jury on flight.

Accordingly, the judgments of the circuit court were affirmed.

COMMENTARY: Wright also argued that the trial court abused its discretion by allowing Detective Greenfield to identify him in photographs and surveillance footage even though Greenfield was not substantially familiar with Wright. Wright contended that, because Detective Greenfield’s testimony was “paramount” to the State’s case by linking Wright to the shooting, admitting this evidence was not harmless. However, defense counsel failed to object specifically to Greenfield’s testimony regarding the identity of the man in the photo and surveillance video.

Without such contemporaneous objection and without any indication that an objection would have been futile, Wright failed to preserve his appellate claim regarding Detective Greenfield’s identification testimony. See Hyman v. State, 4 Md. App. 636, 642 (1968). Conceding that he did not object, Wright requested plain error review. However, there was no basis for exercising plain error review because the trial court’s failure to sua sponte interject itself into the prosecutor’s closing argument was not a “compelling, extraordinary, exceptional or fundamental” error and did not deprive Wright of a fair trial. See State v. Hutchinson, 287 Md. 198, 203 (1980). As such, plain error review was not warranted.

 

PRACTICE TIPS: Under Maryland Rule 5-701, lay witnesses may testify to such things as the appearance of persons or things, identity, the manner of conduct, competency of a person, degrees of light or darkness, sound, size, weight, distance, and an endless number of terms that cannot be described factually in words apart from other inferences.

Criminal Procedure

Voir dire

BOTTOM LINE: Under Kazadi v. State, 467 Md. 1 (2020), a trial court must, on request, ask during voir dire whether any prospective jurors are unwilling or unable to comply with the jury instructions on the long-standing fundamental principles of the presumption of innocence, the State’s burden of proof, and the defendant’s right not to testify, and the circuit court’s failure to do so was cause for reversal where the issue was preserved for appeal.

CASE: Hayes v. State, No. 500; Winston v. State, No. 556, Sept. Term, 2019 (filed August 3, 2020) (Judges NAZARIAN, Beachley & Battaglia (Senior Judge, Specially Assigned)).

FACTS: On November 14, 2017, a popular bartender, Alex Wroblewski, was shot and killed at a Royal Farms store in Locust Point, where he had stopped on his way home after a shift. Tonya Hayes and Marquese Winston were charged with crimes relating to the shooting. They were tried jointly in the circuit court.

Prior to the start of the trial, Winston’s counsel requested that the circuit court ask two questions regarding the State’s burden of proof and the defendant’s right not to testify. The court declined to ask these questions. The jury found Hayes guilty of transporting a handgun in a vehicle and conspiracy to transport a handgun in a vehicle and Winston guilty of second-degree murder, use of a handgun in the commission of a crime of violence, transporting a handgun in a vehicle, conspiracy to transport a handgun in a vehicle, and carrying a handgun on his person.

Hayes and Winston appealed to the Court of Special Appeals, which affirmed Hayes’s convictions but reversed Winston’s conviction and remanded his case for further proceedings.

LAW: Winston and Hayes argued that the court abused its discretion in declining to ask the requested voir dire questions regarding the State’s burden of proof and the defendant’s right not to testify. They contended that reversal was required in light of the recent Court of Appeals decision in Kazadi v. State, 467 Md. 1 (2020), which reversed Twining v. State, 234 Md. 97 (1964). Because Kazadi was decided in the midst of the briefing in these cases, the parties filed supplemental briefs addressing the impact and application of that decision to these defendants. The State acknowledged that Kazadi, by its own terms, applied to “any other cases that are pending on direct appeal” when the opinion was filed, where the relevant question has been preserved for appellate review. From there, the State conceded that both Winston and Hayes were entitled to reversal and a new trial under Kazadi.

During voir dire, Winston’s counsel requested that the court ask the jury, “In a criminal case like this one, each side may present arguments about the evidence but only the State has the burden of proof. The defendant need not testify on his own behalf nor present any evidence. Would you hold it against the defendant if he were to exercise his Constitutional right to remain silent and/or his right to not present evidence?” Winston’s counsel also requested that the court ask the jury, “You must presume the defendant innocent of the charges now and throughout the trial unless and until after you have heard all of the evidence, the State convinces you of his guilt beyond a reasonable doubt. If you do not consider the defendant innocent now or if you are not sure you will require the State to convince you of his guilt beyond a reasonable doubt, please stand.” Over the objection of Winston’s counsel, the trial court declined to ask these questions.

By his objection, Winston preserved this issue for appeal, and Kazadi addressed it squarely: on request, during voir dire, a trial court must ask whether any prospective jurors are unwilling or unable to comply with the jury instructions on the long-standing fundamental principles of the presumption of innocence, the State’s burden of proof, and the defendant’s right not to testify. Kazadi, 467 Md. at 48. Failure to ask the question on request is an abuse of discretion. Id. Therefore, reversal of Winston’s convictions was required.

Hayes, however, failed to preserve this issue for appellate review. The trial transcript indicated that, during the court’s review of proposed voir dire questions, Winston’s counsel objected to the court’s refusal to ask the two requested questions, but Hayes’s counsel did not. Because Hayes did not meet the preservation requirement identified in Kazadi, she was not entitled to relief under Kazadi.

Maryland Rule 8-131 states that the appellate court will not decide any issue unless it plainly appears by the record to have been raised in or decided by the trial court. Rule 4-323(c), which governs objections made during voir dire and jury selection, states that “it is sufficient that a party, at the time the ruling or order is made or sought, makes known to the court the action that the party desires the court to take or the objection to the action of the court.” On the other hand, if an opportunity to object presents itself and a defendant fails to object to a court’s refusal to read a proposed question, the objection is waived. Brice v. State, 225 Md. App. 666, 679 (2015).

In cases involving multiple defendants, each defendant must lodge his own objection in order to preserve it for appellate review and may not rely, for preservation purposes, on the mere fact that a co-defendant objected. Williams v. State, 216 Md. App. 235, 254 (2014). A defendant may expressly join in an objection made by a co-defendant but he must expressly do so. Id. And, while Hayes claimed that her counsel joined Winston’s request for the two voir dire questions, the transcript revealed no joining or objection or statement of any kind at the time Winston asked the court to read the questions. As such, Hayes did not preserve this issue for appellate review and was not entitled to relief under Kazadi.

Accordingly, Hayes’s convictions were affirmed, and Winston’s convictions were reversed and his case was remanded for further proceedings.

COMMENTARY: Both Hayes and Winston raised challenges to certain jury instructions the court gave, or declined to give, before deliberation. Hayes asserted that she was entitled to a defense of necessity instruction and that the circuit court should not have instructed the jury on flight. Winston argued that he was entitled to an imperfect self-defense instruction.

With regard to Hayes’s requested instruction on the defense of necessity, there was no testimony to support a finding that Hayes was in imminent danger of serious bodily harm or death if she did not perform the criminal acts with which she was charged. As such, the circuit court did not abuse its discretion in refusing to instruct the jury on the duress/necessity defense. Likewise, given that Hayes was at the scene when the shooting occurred and then drove away in her vehicle, the circuit court did not err in giving a flight instruction. Hers was a “classic case of flight.” See Hoerauf v. State, 178 Md. App. 292, 323-26 (2008).

Finally, the circuit court concluded correctly that there was insufficient evidence to generate a jury instruction of imperfect self-defense as requested by Winston. Winston himself testified that he went to confront Wroblewski because he felt “disrespected” by Wroblewski. The circuit court seemed to conclude that Winston was the initial aggressor, which alone would preclude an instruction on imperfect self-defense. Moreover, there was no evidence that Winston ever had a genuine belief that he was in imminent danger. Therefore, the circuit court did not abuse its discretion in declining to give the instruction on imperfect self-defense.

 

PRACTICE TIPS: The right to a speedy trial advances three interests: preventing an oppressive pretrial incarceration; minimizing the anxiety and concern of the accused; and limiting the possibility that the defense will be impaired. A defendant bears the responsibility to assert his right to a speedy trial. The strength of a defendant’s assertion, and not just its occurrence, may indicate whether the delay has been lengthy and whether the defendant begins to experience prejudice from that delay.

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