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Law Digest — US 4th Circuit and Md. Court of Special Appeals — Sept. 2, 2021

U.S. Court of Appeals for the 4th Circuit

Criminal Procedure; Competency: Where defendant was convicted of the racially-motivated murders of nine people and sentenced to death, the district court properly upheld the jury verdict and sentence because defendant, who fired his attorneys and insisted on representing himself pro se during both trial and sentencing, participated in the proceedings and demonstrated a high level of competence and, despite findings of autism and other diagnoses, was fully able to participate in his defense. United States of America v. Dylann Storm Roof, No. 17-3 (Decided Aug. 25, 2021).

Maryland Court of Special Appeals

Evidence; Rape shield statute: At the defendant’s criminal trial for sexual abuse of a minor, the circuit court did not err by excluding evidence of the victim’s prior sexual abuse to rebut the jury’s natural presumption that the victim would not have possessed sufficient sexual knowledge to fabricate her allegations against him because this evidence was barred by Maryland’s Rape Shield Statute, which, in limiting the admission of evidence of specific instances of a victim’s prior sexual conduct, extends to both willing and unwilling prior sexual conduct, and the facts of this case did not raise a presumption of sexual innocence that this evidence was necessary to rebut. Westley v. State, No. 2474, Sept. Term, 2019.

Real Property; Landlord and tenant: Article 13, §5-4(a)(2) of the Baltimore City Code, which prohibits a landlord from charging, accepting, retaining, or seeking to collect rent for a rental property unless the property is properly licensed, does not provide tenants with a private right of action to collect a refund of rent and related fees already paid to a landlord who was unlicensed during the rental term but who otherwise complied fully with the lease agreement, and, therefore, tenants could not recover rental payments and related fees paid to the landlord based solely on the landlord’s lack of a license. Aleti v. Metropolitan Baltimore, LLC, No.459, Sept. Term, 2019.

U.S. Court of Appeals for the 4th Circuit

Criminal Procedure

Competency

BOTTOM LINE: Where defendant was convicted of the racially-motivated murders of nine people and sentenced to death, the district court properly upheld the jury verdict and sentence because defendant, who fired his attorneys and insisted on representing himself pro se during both trial and sentencing, participated in the proceedings and demonstrated a high level of competence and, despite findings of autism and other diagnoses, was fully able to participate in his defense.

CASE: United States of America v. Dylann Storm Roof, No. 17-3 (Decided Aug. 25, 2021) (Judges Benton (Circuit Judge of the Court of Appeals for the Eighth Circuit, sitting by designation), Jordan (Circuit Judge of the Court of Appeals for the Third Circuit, sitting by designation) & Gilman (Senior Circuit Judge of the Court of Appeals for the Sixth Circuit, sitting by designation)).

COUNSEL: Sapna Mirchandani, Greenbelt, MD, Margaret Alice-Anne Farrand, Office of the Federal Public Defender, Los Angeles, CA; Alexandra Wallace Yates, Concord, MA, for Appellant. Ann O’Connell Adams, Bonnie I. Robin-Vergeer, United States Department of Justice, Washington, for Appellee.

FACTS: On June 17, 2015, twelve parishioners and church leaders of Mother Emanuel—all African Americans—gathered in the Fellowship Hall for their weekly Bible-study. Around 8:16 p.m., Roof entered the Fellowship Hall carrying a small bag that concealed a Glock .45 semi-automatic handgun and eight magazines loaded with eleven bullets each. The parishioners welcomed Roof, handing him a Bible and a study sheet.

For the next 45 minutes, Roof worshipped with the parishioners. They stood and shut their eyes for closing prayer. Roof then took out his gun and started shooting. Parishioners dove under tables to hide. Roof continued shooting, reloading multiple times. After firing approximately seventy-four rounds, Roof reached one parishioner who was praying aloud. He told her to “shut up” and then asked if he had shot her yet. She said no. Roof responded, “I’m going to leave you here to tell the story.” Seven of the twelve parishioners were dead when Roof left, and two others died soon after.

Police began searching for Roof, publicizing photos and setting up a phone bank. Acting on a tip the next morning, officers in Shelby, North Carolina stopped Roof’s car. Roof complied with their directions, identified himself, admitted involvement in the shooting, and said that there was a gun in his backseat. Officers took Roof to the Shelby police station, where he agreed to speak with FBI agents.

After obtaining a written Miranda waiver, two agents interviewed Roof for about two hours. He confessed and laughingly stated, “I am guilty. We all know I’m guilty.” He explained that he shot the parishioners with a Glock .45 handgun he had bought two months earlier. Calling himself a “white nationalist,” he told agents that he “had to do it” because “black people are killing white people every day” and “rap[ing] white women.” Roof explained that he targeted Charleston for his attack because of its historic importance and, after researching African American churches in Charleston on the internet, he chose to attack parishioners at Mother Emanuel because of the church’s historic significance.

The state of South Carolina charged Roof with nine counts of murder, three counts of attempted murder, and one weapon-possession count. About a month later, Roof was indicted in the United States District Court for the District of South Carolina with the crimes at issue in this case: Counts 1 through 9, racially motivated hate crimes resulting in death, in violation of 18 U.S.C. §249(a)(1); Counts 10 through 12, racially motivated hate crimes involving an attempt to kill, in violation of §249(a)(1); Counts 13 through 21, obstructing religious exercise resulting in death, in violation of §247(a)(2) and (d)(1); Counts 22 through 24, obstructing religious exercise involving an attempt to kill and use of a dangerous weapon, in violation of §247(a)(2), (d)(1), and (d)(3); and Counts 25 through 33, use of a firearm to commit murder during and in relation to a crime of violence, in violation of §924(c) and (j). Both the state and the federal governments gave notice of their intention to seek the death penalty.

The district court appointed an attorney with extensive capital-case experience as lead counsel for Roof. Before trial, Roof moved to dismiss the indictment on several grounds. He argued that the religious-obstruction statute §247(a)(2), exceeds Congress’s Commerce Clause authority, and that the hate-crime statute, §249(a)(1), exceeds Congress’s Thirteenth Amendment power. He also argued that neither is a predicate “crime of violence” under the federal firearm statute, §924(c), and that the Attorney General had erroneously certified Roof’s prosecution under §249. The court denied the motion and rejected Roof’s alternative argument that the religious-obstruction charges were improper because he did not act in interstate commerce.

Roof offered to plead guilty in exchange for a sentence of life without parole, but the federal government declined. The court entered a not guilty plea on Roof’s behalf and set trial for November 7, 2016.

As trial approached, the court ruled on a number of issues, including, inter alia, (1) his competency to stand trial and issues relating to his competency hearings; (2) his self-representation.

Before trial, defense counsel gave notice of their intent to call an expert on Roof’s mental health at the penalty phase. The government then obtained permission to have its own expert, Dr. Park Dietz, examine Roof. During a visit with Dr. Dietz, Roof learned for the first time that his lawyers intended to call an autism expert to say that Roof was on the autism spectrum. The news upset him, and he later sent a letter to the prosecution, accusing his attorneys of misconduct. He believed that his lawyers were “extremely moralistic about the death penalty” and that they “have been forced to grasp at straws” because he “ha[s] no real defense,” or at least “no defense that my lawyers would present or that would be acceptable to the court.”

Following an ex parte hearing, the court delayed the first day of individual voir dire and ordered a competency hearing. To conduct a competency evaluation, it appointed Dr. James C. Ballenger—“one of the nation’s most renowned and respected psychiatrists,” and the chair of the Department of Psychiatry and Behavioral Sciences at the Medical University of South Carolina for seventeen years. According to Dr. Ballenger, Roof’s unwillingness to cooperate was not the result of “widespread psychosis,” but rooted in “a deep seated racial prejudice” that Roof did not want “blurred” by a mental health defense. (J.A. at 909, 913-15, 1346.) Dr. Ballenger testified that Roof likely suffers from social anxiety disorder and schizoid personality disorder and that Roof might have some autistic spectrum traits but does not suffer from a psychotic process.

Roof also met numerous times with defense experts, including a forensic psychiatrist who testified that Roof suffers from “autism spectrum disorder,” “other specified schizophrenia spectrum disorder and other psychotic disorder,” and “other specified anxiety disorder.” Dr. Stejskal, a psychologist, opined that Roof was “in the prodromal phase of an emerging schizophrenic spectrum disorder,” but was “not yet fully possessed of a delusional disorder.” Other experts found symptoms consistent schizophrenia, but did not opine on Roof’s competency.

Meanwhile, Roof himself confirmed his ability to communicate with his lawyers, clarifying that he limited communication because he disagreed with their mitigation strategy. He stated that he did not want to introduce mental health evidence because it would discredit his act, which he argued was an attempt to increase racial tension and contribute to a potential white nationalist revolution.

The district court determined that Roof was competent to stand trial. The jury convicted him on nine counts of racially motivated hate crimes resulting in death, three counts of racially motivated hate crimes involving an attempt to kill, nine counts of obstructing religion resulting in death, three counts of obstructing religion involving an attempt to kill and use of a dangerous weapon, and nine counts of use of a firearm to commit murder during and in relation to a crime of violence. The jury unanimously recommended a death sentence on the religious-obstruction and firearm counts.

After the guilt phase of the trial, Roof advised the court that he wished to represent himself during the penalty phase. That reaffirmed a position he took after jury selection, when he switched from self-representation to being represented by counsel but argued for a right to revert to self-representation for the penalty phase of the trial. Before the penalty phase began, standby counsel challenged Roof’s competency to stand trial or to represent himself during the penalty phase, stating that “facts developed since the [first] competency hearing” supported a finding that Roof was by then incompetent. Standby counsel expressed concern that Roof had decided to forego substantial mitigation evidence, and they believed that Roof would not defend himself during the penalty phase because he wanted to prevent the release of his mental health information. They described Roof’s preoccupation with his clothing and other odd behavior during trial. Their competency motion included exhibits from four experts, three of whom had testified or submitted affidavits at the first competency hearing but had since completed additional reports.

The district court ordered Dr. Ballenger to re-examine Roof, and a second competency hearing was later held. Defense counsel moved to submit the newly completed reports from their experts, none of whom had examined Roof since the first competency hearing. The court admitted the written reports but limited testimony to evidence arising after the first competency hearing.

The court also questioned Roof directly. He denied believing that he would be saved by white nationalists if he received the death penalty, and he acknowledged the high risk that he would be sentenced to death, and ultimately executed, if he presented no mitigation evidence. Roof further confirmed that, to prevent his lawyers from undermining his message with mental health evidence, he wanted to represent himself.

The court found Roof competent to stand trial because he fully understood that he faced a high risk of execution if he presented no mitigation witnesses. It concluded that Roof’s resistance to mental health evidence arose out of his political ideology, rather than any form of mental disease or defect and that his possible autism and other diagnoses did not prevent him from understanding the proceedings or assisting with his defense. Therefore, in accordance with the jury’s unanimous recommendation, Roof was sentenced to death.

Roof appealed the convictions and sentence to the 4th Circuit, which affirmed by per curiam opinion.

LAW: Roof argued, inter alia, that the district court should have denied his motion to dismiss counsel and proceed pro se because he did not have a Sixth Amendment right to represent himself during the penalty phase of his trial.

“[T]he right to self representation – to make one’s own defense personally – is…necessarily implied by the structure of the Sixth Amendment.” Faretta v. California, 422 U.S. 806, 819 (1975). Constitutionally significant issues of personal autonomy are at stake. Id. at 834. The right to defend is personal because “[t]he defendant, and not his lawyer or the State, will bear the personal consequences of a conviction.” Id. “[T]here simply was no long-respected right of self-representation on appeal.” Id. at 159. Additionally, it reasoned that the structure of the Sixth Amendment does not support an appellate right to self-representation because the Amendment grants “rights that are available in preparation for trial and at the trial itself.” Id. at 160.

In Martinez v. Court of Appeal of California, 528 U.S. 152, 163-64 (2000), the Supreme Court considered the right to self-representation in the context of appeals. It concluded that “there simply was no long-respected right of self-representation on appeal.” Id. at 159. Additionally, it reasoned that the structure of the Sixth Amendment does not support an appellate right to self-representation because the Amendment grants “rights that are available in preparation for trial and at the trial itself.” Id. at 160. The Court further said that no right to appellate self-representation exists under the Due Process Clause because “self-representation is [not] a necessary component of a fair appellate proceeding.” Id. at 161.

Although the right to self-representation does not have a long history of being applied to sentencing proceedings, there was no reason to exclude it from the holding in Faretta. Respect for the autonomy of the defendant should continue through all phases of trial. Faretta, 422 U.S. at 819-20, 832. There is ample reason to apply the same rights as are granted at the guilt phase of trial because penalty decisions were, as a matter of historical practice, made at essentially the same time as the decision on guilt. See United States v. Haymond, 139 S. Ct. 2369, 2379 (2019). The relatively recent separation of the guilt and penalty phases of capital trials should not bring about a change in rights.

It was concluded, therefore, that the autonomy-based right to self-representation, as expressed in Faretta, remains equally valid at the penalty phase. Accordingly, it was held that the district court did not err by allowing Roof to represent himself at the penalty phase of his trial.

Roof further contended that, even if he was competent to stand trial, he was not competent to represent himself because he is what the Supreme Court has called a “gray area defendant.” See Indiana v. Edwards, 554 U.S. 164, 173, 177-78 (2008) (“[T]he Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under…, but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.”).

The ability to stand trial without counsel requires a level of competence that exceeds that required to stand trial with counsel. See United States v. Barefoot, 754 F.3d 226, 233-34 (4th Cir. 2014) (distinguishing general competency from self-representation competency). To be a gray-area defendant, Roof would have had to lack the mental capacity to perform the basic tasks of self-representation. See United States v. Bernard, 708 F.3d 583, 589-90 (4th Cir. 2013). Although a high-IQ defendant could conceivably lack the mental capacity to perform such tasks by, for example, suffering from psychosis and hallucinations, the district court reasonably found that Roof—whose full-scale IQ of 125 places him in the 95th percentile of the general population, despite average processing speed—was not suffering from any such debilitating illnesses.

Perhaps the best evidence that Roof indeed had the mental capacity to perform the basic tasks of self-representation is that he did perform them. Indeed, the district court noted that his cross-examinations of Drs. Ballenger and Loftin demonstrated extraordinary aptitude for a pro se litigant. Furthermore, at the penalty phase, Roof delivered an opening statement, argued against aggravating factors, challenged the prosecution, and made a closing argument.

Roof argued that the need for heightened reliability in death penalty cases meant that the rule protecting gray-area defendants should apply more stringently. Assuming that is correct, however, the district court’s findings show Roof to be well outside the gray area. As the court said, “if [he] were incompetent to represent himself, almost no defendant would be competent to represent himself.” Roof’s argument, in effect, was that all criminal defendants in death penalty cases should have mandatory appointed counsel. That argument was properly rejected by the district court, and the judgment was accordingly affirmed.

Maryland Court of Special Appeals

Evidence

Rape shield statute

BOTTOM LINE: At the defendant’s criminal trial for sexual abuse of a minor, the circuit court did not err by excluding evidence of the victim’s prior sexual abuse to rebut the jury’s natural presumption that the victim would not have possessed sufficient sexual knowledge to fabricate her allegations against him because this evidence was barred by Maryland’s Rape Shield Statute, which, in limiting the admission of evidence of specific instances of a victim’s prior sexual conduct, extends to both willing and unwilling prior sexual conduct, and the facts of this case did not raise a presumption of sexual innocence that this evidence was necessary to rebut.

CASE: Westley v. State, No. 2474, Sept. Term, 2019 (filed July 2, 2021) (Judges FADER, Ripken & Moylan (Senior Judge, Specially Assigned)).

FACTS: Darrelled Westley was charged in the circuit court with multiple counts of sexual abuse of a minor, other sex offenses, and assault against his wife’s niece, who was 12 years old at the time of the relevant events. In May 2018, the victim’s mother had asked her sister, Jessica Westley, to care for her five children for two weeks that June, while the mother and her husband would both be incarcerated. After consulting with her husband, Darrelled Westley, Jessica Westley agreed to the two-week stay.        At the time, the Westleys were living in a small room in a boarding house in Salisbury, Maryland. The Westleys, the children, and an uncle (Ivan Conway, the brother of Jessica Westley and the mother) all slept together in the room. It was the mother’s understanding that the Westleys would care for the children during this time.

When the mother left prison after two weeks, she retrieved her children. At that time, Ivan Conway conveyed something that prompted her to contact Stephanie Fleming, a social worker at the Child Advocacy Center (“CAC”), with whom the family was already familiar. The mother then brought the victim to speak with Fleming. The accusations the victim made in those interviews led to Westley’s being arrested and charged with two counts of sex abuse of a minor and one count each of second-degree rape, sex offense in the third degree, sex offense in the fourth degree, and assault in the second degree.

In a criminal trial of a sex crime, Maryland’s Rape Shield Statute, §3-319 of the Criminal Law Article of the Maryland Code (2021 Repl.), precludes the introduction of evidence concerning a victim’s reputation for chastity or abstinence and limits the introduction of evidence concerning specific instances of a victim’s prior sexual conduct to evidence that is relevant, material, not more inflammatory or prejudicial than probative, and falls within one of four categories of evidence bearing special relevance to a defendant’s case. Before trial, the State moved in limine to preclude Westley from presenting evidence about prior sexual abuse of the victim by a different uncle, Charles Quails. The motions court granted the State’s motion and excluded the evidence.

The evidence at trial consisted of testimony by the victim, the mother, the brother, Conway, and Fleming, as well as redacted excerpts of two recorded interviews of the victim conducted by Fleming. The redacted excerpts from the interviews were played for the jury and transcripts were also provided. Westley did not call any witnesses.

The victim testified that during her stay with the Westleys, she, her brother, and another sibling attended a day camp but were otherwise in the care of the Westleys. Beginning a few days after their arrival, at night while everyone else was asleep, Westley took off her clothes, touched her “butt,” and used “his mouth” to touch her “private” and “boobs.” She also said that he used his penis to touch the “outside” of her “private,” his hand to touch the “inside” and “outside” of her “private,” and that sometimes the touching would occur when he followed her to the bathroom. In excerpts from the interviews with Fleming, the victim stated that the touching had occurred more than ten times, that Westley had touched her “butt” with his penis once, and that Westley’s penis was brown and white “stuff was coming out” of it.

At the conclusion of the State’s case, the court denied Westley’s motion for judgment of acquittal on all counts. The court determined, however, that there was insufficient evidence to instruct the jury that it could premise a conviction for second-degree rape on a use of force. The jury returned a verdict of guilty on all counts except for second-degree rape.

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

LAW: Westley argued that the circuit court erred by excluding evidence of the victim’s prior sexual abuse. Westley contended that this evidence was necessary to rebut the jury’s natural presumption that the victim would not have possessed sufficient sexual knowledge to fabricate her allegations against him. Westley challenged the court’s grant of the State’s motion in limine to exclude evidence about the victim’s prior abuse as well as the trial court’s continued refusal to admit this evidence after the State allegedly opened the door.

Maryland’s Rape Shield Statute, codified at §3-319 of the Criminal Law Article, establishes rules for the admission of certain types of evidence in criminal prosecutions for sex crimes. The statute addresses two types of evidence. First, subsection (a) provides an absolute bar on the admission of evidence relating to a victim’s reputation for chastity or abstinence and opinion evidence relating to a victim’s chastity or abstinence. Second, subsection (b) addresses evidence of a specific instance of a victim’s prior sexual conduct, which is admissible only if the judge finds that: (1) the evidence is relevant; (2) the evidence is material to a fact in issue in the case; (3) the inflammatory or prejudicial nature of the evidence does not outweigh its probative value; and (4) the evidence is: (i) of the victim’s past sexual conduct with the defendant; (ii) is of a specific instance of sexual activity showing the source or origin of semen, pregnancy, disease, or trauma; (iii) supports a claim that the victim has an ulterior motive to accuse the defendant of the crime; or (iv) is offered for impeachment after the prosecutor has put the victim’s prior sexual conduct in issue. Crim. Law §3-319(b).

Here, the determination of whether evidence of the victim’s prior abuse fell within the scope of subsection (b) of the Rape Shield Statute turned on whether it was evidence of her “prior sexual conduct.” The Rape Shield Statute does not define “prior sexual conduct.” Black’s Law Dictionary defines “conduct” as “personal behavior, whether by action or inaction, verbal or nonverbal.” Conduct, Black’s Law Dictionary 369 (11th ed. 2019). Dictionary definitions of “conduct” include actions engaged in both volitionally and in response to external stimuli, thus suggesting that the concept encompasses both willing and unwilling actions. See id. at 369-70.

Notably, the Rape Shield Statute addresses two different categories of evidence. Subsection (a) concerns general reputation or opinion evidence concerning a victim’s chastity or abstinence, which the General Assembly has determined to be categorically inadmissible. Subsection (b), by contrast, is concerned not with reputation or opinion evidence but with evidence of the occurrence of “a specific instance of a victim’s prior sexual conduct.” Section §3-319(b)(4)(ii) uses the phrase “sexual activity” to identify the scope of actions covered by that exception. Although that term is not separately defined in the statute, the term “sexual act” is defined to include acts that can be engaged in willingly or unwillingly. Id. §3-301(d); see also Shand v. State, 341 Md. 661, 676 (1996) (“Shand II”). In Shand II, the Court of Appeals observed that “sexual conduct” was a “more general concept” than “sexual activity. Id. Because the narrower term, “sexual activity” clearly can include nonconsensual activity, the “more general” term, “sexual conduct,” cannot be read as more restrictive when it comes to consent. Read in conjunction with the context and structure of §3-319, the plain language of the statute suggests that “prior sexual conduct” is not limited only to willing sexual conduct.

The legislative history supported the conclusion that the “specific instances” provision of the Rape Shield Statute applies to both willing and unwilling sexual conduct. The legislative history reflects that the General Assembly intended to protect victims of sexual offenses from the introduction of humiliating evidence about their past, except in the rare circumstances when such evidence was necessary to a defendant’s legitimate defense, for the purposes of: (1) encouraging victims of sex crimes to report them; (2) avoiding further trauma to victims who do report such crimes; and (3) avoiding confusing juries and diverting their attention from the defendant’s guilt or innocence with the introduction of evidence of limited or no probative value, but which is highly prejudicial or inflammatory. Report of Md. Senate Judicial Proceedings Committee on Senate Bill No. 399, at 1 (1976). Each of these purposes is served by interpreting the scope of “prior sexual conduct” to include unwilling sexual conduct.

Because evidence of the victim’s prior assault by Quails was evidence of “a specific instance of a victim’s prior sexual conduct,” and Westley sought to admit it in his prosecution for sexual abuse of a minor, the evidence should have been analyzed under the framework of the Rape Shield Statute. To be admissible under the statute, prior evidence of sexual conduct must: (1) be relevant; (2) be material; (3) have probative value that is not outweighed by its inflammatory or prejudicial nature; and (4) fit within one of four identified exceptions. See Crim. Law §3-319(b). In this case, the proffered evidence met none of those requirements.

Nonetheless, Westley contended that he had a constitutional right to present evidence of the victim’s prior sexual assault because that evidence was necessary to rebut a presumption of sexual innocence that the jury would naturally hold; that is, a presumption by the jury that the victim, at 12 years old, was too sexually innocent to fabricate the charges. No Maryland appellate court had previously addressed whether a defendant has a constitutional right to introduce evidence to rebut a child’s presumed sexual innocence. However, the majority of state courts that have considered this issue have held that a court must assess on a case-by-case basis whether the exclusion of such evidence would violate the defendant’s constitutional rights.

In Westley’s case, the facts did not give rise to a presumption of sexual innocence. The victim was 12 years old at the time of the abuse by Westley, and her allegations were of basic sexual conduct, including that Westley touched her private parts with his hands, mouth, and penis, and that white “stuff” came out of his penis. Westley did not present any basis of support for his claim that an ordinary juror would presume that a 12-year-old child would lack sufficient sexual knowledge to describe such actions, nor did the State introduce any evidence to suggest that this particular 12-year-old would lack such knowledge. As such, the trial court did not err by excluding evidence of the victim’s prior sexual abuse.

Westley further argued that even if the motions court did not err in excluding evidence of the victim’s prior abuse before trial, the State opened the door to evidence of the victim’s prior sexual abuse when the victim testified that she had previously met Fleming at the CAC and the State asked, but then promptly withdrew, a question about when they had previously met. This argument was without merit. The transcript supported the trial court’s conclusion that the victim’s acknowledgment that she had met Fleming previously was fleeting and unlikely to have caught the jury’s attention. The response also did not implicate Westley in any way. As a result, nothing beyond sheer speculation supported his contention that the jury might have concluded from it that the victim had previously made allegations of sexual abuse by Westley.

Westley also contended that when the court admitted a redacted video and transcript of a CAC interview, he should have been permitted to admit unredacted versions of those exhibits under the doctrine of verbal completeness. However, Fleming’s general references to prior familiarity with the victim did not suggest abuse by Westley, and the introduction of evidence of prior abuse by Quails was therefore unnecessary to explain them. Moreover, the danger of unfair prejudice and confusion from introduction of the prior abuse evidence was significant. Thus, the trial court did not err or abuse its discretion in declining to admit evidence of the victim’s prior sexual abuse at trial under the opening the door doctrine or the doctrine of verbal completeness.

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: Westley’s final contention was that the evidence was insufficient to convict him of sexual abuse of a minor based on the modality requiring that he had “temporary care or custody or responsibility for the supervision of a minor.” See Crim. Law §3-602(b)(1). However, the record, viewed in the light most favorable to the State, established that Westley and his wife agreed to, and did, take the victim and her four siblings into their care for two weeks while the mother and her husband were incarcerated. The evidence was sufficient for a jury to conclude that the mother had voluntarily entrusted both her sister and Westley with the care and supervision of the victim and that Westley had at least implicitly consented to the arrangement. For this reason, Westley’s conviction for child sexual abuse based on the modality of responsibility for supervision of a minor was affirmed. See Crim. Law § 3-602(b)(1).

  

PRACTICE TIPS: In certain circumstances, the doctrine of verbal completeness allows a party to respond to an opponent’s entry of a writing or conversation “by admitting the remainder of that writing or conversation.” Three requirements apply to evidence admitted as an additional part of a document under that the doctrine: (1) no utterance irrelevant to the issue is receivable; (2) no more of the remainder of the utterance than concerns the same subject, and is explanatory of the first part, is receivable and (3) the remainder merely aids in the construction of the utterance as a whole.

Real Property

Landlord and tenant

BOTTOM LINE: Article 13, §5-4(a)(2) of the Baltimore City Code, which prohibits a landlord from charging, accepting, retaining, or seeking to collect rent for a rental property unless the property is properly licensed, does not provide tenants with a private right of action to collect a refund of rent and related fees already paid to a landlord who was unlicensed during the rental term but who otherwise complied fully with the lease agreement, and, therefore, tenants could not recover rental payments and related fees paid to the landlord based solely on the landlord’s lack of a license.

CASE: Aleti v. Metropolitan Baltimore, LLC, No.459, Sept. Term, 2019 (filed July 6, 2021) (Judges FADER, Shaw Geter & Zarnoch (Senior Judge, Specially Assigned)).

FACTS: Karunaker and Chandana Aleti brought an action in the circuit court against Metropolitan Baltimore, LLC, the owner of 10 Light Street, an apartment building located in Baltimore City, and Gables Residential Services, Inc., the property manager for 10 Light Street, alleging that for a period of approximately ten months while they were tenants of 10 Light Street, Metropolitan did not hold an active rental license for the property as required by §5-4(a)(1) of Article 13 of the Baltimore City Code. The Aletis sought to recover the rental and other fees they had paid to Metropolitan while unaware of the lack of licensure. They also sought (1) certification as a class action to pursue recovery of rental and other fees that similarly situated tenants paid to Metropolitan during the same period, and (2) a declaratory judgment that Metropolitan could not collect unpaid rent and other fees that accrued during the time it was unlicensed.

Metropolitan moved to dismiss all counts of the complaint. Following a hearing, the circuit court granted the motion to dismiss all counts of the complaint. The court then declined to issue a declaratory judgment because, based on the dismissal of “the substantive counts, there remains no issue of justiciable controversy for which a declaratory judgment would be warranted.”

The Aletis appealed to the Court of Special Appeals, which affirmed in part and reversed in part the judgment of the circuit court and remanded the case for further proceedings.

LAW: The Aletis first contended that Real Property Article 13, §5-4(a)(2) afforded them an implied private right of action to recover payments made to Metropolitan while it did not hold an active rental license for 10 Light Street. Importantly, §5-4(a) contains two numbered subparts. Subpart (1) prohibits any person from renting or offering to rent to another any rental dwelling in the absence of “a currently effective license to do so.” Subpart (2) then prohibits any such person from charging, accepting, collecting, or retaining rent from another unless the person was licensed at the relevant times. Here, the Aletis sought only to enforce subpart (2), as they acknowledged that Metropolitan had rectified the lack of licensure of 10 Light Street before they filed their complaint. Thus, at issue was whether there is an implied private right of action for a tenant to enforce §5-4(a)(2) by seeking a refund of rent paid during a period in which the landlord was unlicensed.

A private right of action allows an individual to bring an action in his or her personal capacity to enforce a legal claim. State Ctr., LLC v. Lexington Charles Ltd. P’ship, 438 Md. 451, 517 (2014). Where, as here, a statute or ordinance does not explicitly provide a cause of action for claimants who have adequately alleged a violation, it must be determined whether there is an implied right of action. See Scull v. Groover, Christie & Merritt, P.C., 435 Md. 112, 121 (2013). To do so, courts consider three relevant factors: first, whether the plaintiff is “one of the class for whose especial benefit the statute was enacted”; second, whether there is any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one; and third, whether it is consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff. Baker v. Montgomery County, 427 Md. 691, 709 (2012)).

With regard to the first Baker factor, the Aletis contended that §5-4(a)(2) operates for the specific benefit of tenants by prohibiting landlords from charging rent to tenants residing in unlicensed properties. That contention, however, misapprehended the role §5-4(a)(2) plays in the statutory scheme. The apparent purpose of §5-4(a)(2) is to benefit the City and the public generally, including tenants, by forcing landlords to comply with the licensing requirement in §5-4(a)(1), not to benefit tenants with rent-free housing in unlicensed properties. The benefits the City Council intended to confer through §5-4(a) are those accompanying licensure. Nothing in the statutory scheme broadly or in §5-4(a)(2) specifically suggests an intent to specially benefit tenants by providing them with free, unlicensed housing. To the contrary, the apparent legislative intent was for there to be no unlicensed housing, and §5-4(a)(2) is a coercive mechanism to effectuate that intent.

The second Baker factor is whether there are any indications of legislative intent to either create or deny a private remedy under §5-4(a)(2). See Baker, 427 Md. at 709. The plain language of §5-4(a)(2) is a broad and sweeping prohibition against landlords not only charging, accepting, or seeking to collect rental payments, but also retaining such payments. Plainly, the City Council intended to create a strong financial disincentive for landlords to ignore the licensing requirement. Notably, the language employed by the City Council imposes a restriction on landlords; it does not purport to create a right or entitlement for tenants. Moreover, Subtitle 5 establishes several enforcement mechanisms, all of which require executive action. The existence of these public enforcement provisions, with no analogous private enforcement remedy, suggests that the City Council did not intend to authorize a private remedy. See, e.g., Erie Ins. Co. v. Chops, 322 Md. 79, 91 (1991).

Finally, the third Baker factor is whether a private right of action to enforce §5-4(a)(2) would be “consistent with the underlying purposes of the legislative scheme.” This factor was neutral. On the one hand, taking a narrow view of the City Council’s purpose in enacting §5-4(a)(2), it might be reasonable to view a private right of action as consistent with the underlying purpose of promoting licensure. On the other hand, it is also possible that the City Council might conclude that the existence of such a private right of action might undermine the overarching goals reflected in §2-1 of Article 13 if, for example, claims for repayment of rent were to imperil the continued financial viability of a landlord who was, for a significant period of time, unknowingly out of compliance with the licensing requirement but compliant with all of the prerequisites for licensure. Ultimately, whether the creation of an implied right of action to enforce §5-4(a)(2) would be consistent with the legislative purpose is a policy judgment that is not for the courts to make.

For these reasons, it could only be concluded that there is no private cause of action to enforce §5-4(a)(2). Therefore, the circuit court did not err in dismissing Count II of the Aletis’ complaint, in which the Aletis sought to recover the rental and other fees they had paid to Metropolitan while unaware of the lack of licensure. As such, the circuit court’s dismissal of this count was was affirmed.

The Aletis also contended that the circuit court erred in dismissing Count IV of the complaint, in which they alleged that Metropolitan breached the lease by charging them rent while it was unlicensed. However, the Aletis failed to identify any material breach of the lease or any cognizable damages from any such breach. They did not allege the existence of any deficiencies in the apartment they rented that would have become apparent, and so would have been remedied, if Metropolitan had been properly licensed, and aside from their claims related to §5-4(a)(2), the complaint did not allege that Metropolitan failed to provide them with the full benefit of the bargain reflected in the lease. Because they did not plead facts that would establish a material breach of the lease or resulting damages, the circuit court’s dismissal of Count IV was also affirmed.

The Aletis additionally contended that the circuit court erred in dismissing Count III, their claim for money had and received. According to their complaint, these payments fell into two categories: (1) rent payments and related fees, such as utility fees, trash fees, and late fees; and (2) legal fees that Metropolitan charged them in pursuing court actions for failure to pay rent. With respect to the Aletis’ claim for restitution of rent and related fees they paid pursuant to the lease, the circuit court correctly determined that the complaint did not state a claim on which relief could be made. An action lies for money had and received whenever the defendant has obtained possession of money which, in equity and good conscience, the defendant ought not to be allowed to retain. Bourgeois v. Live Nation Ent., Inc., 430 Md. 14, 46 (2013). Where a landlord has provided all that was bargained for, there is no injustice in permitting the landlord to keep rent and other fees paid under the lease based solely on the landlord’s lack of licensure. See Galola v. Snyder, 328 Md. 182, 186 (1992).

However, the court did err in dismissing the Aletis’ claim as to any legal fees Metropolitan might have collected during the unlicensed period in connection with bringing actions for nonpayment of rent. The Aletis alleged that: (1) Metropolitan was unlicensed for a period of 302 days; (2) during that period, notwithstanding its lack of licensure, Metropolitan filed actions against the Aletis for failure to pay rent in violation of local and State law; (3) Metropolitan charged the Aletis legal fees for bringing actions it had no right to bring and which were based on false representations concerning its licensure status; and (4) Metropolitan collected and continues to retain those legal fees. If true, those allegations could form the basis of an action for money had and received. See Bourgeois, 430 Md. at 48. Therefore, the circuit court erred in dismissing Count III to the extent that the Aletis sought restitution of amounts Metropolitan charged them in legal fees for bringing actions against them for failure to pay rent during a period in which it was unlicensed.

Accordingly, the judgment of the circuit court was affirmed in part and reversed in part, and the case was remanded for further proceedings.

COMMENTARY: In Count I, the Aletis requested that the court issue a declaratory judgment concerning the rights and obligations of the parties. The circuit court erred in entering judgment on Count I without declaring the rights and obligations of the parties. First, even if the court had been correct that its rulings on Counts II through IV settled the entire dispute between the parties, it still was required to enter a declaratory judgment. Second, the court’s rulings on Counts II through IV did not settle the dispute the Aletis identified in Count I. In sum, a ruling on substantive counts brought as part of a lawsuit in which a plaintiff also seeks a declaratory judgment does not render the declaratory judgment claim moot or non-justiciable. Therefore, the judgment entered on Count I was vacated, and the case was remanded to the circuit court for entry of a proper declaration.

  

PRACTICE TIPS: When a declaratory judgment action is brought and the controversy is appropriate for resolution by declaratory judgment, the court must enter a declaratory judgment. Moreover, that judgment, defining the rights and obligations of the parties or the status of the thing in controversy, must be in writing. Although the judgment may recite that it is based on the reasons set forth in an accompanying memorandum, the terms of the declaratory judgment itself must be set forth separately, for the purpose of giving the parties and the public fair notice of what the court has determined.