Supreme Court of MD: Plain error, common scheme, private nuisance

Criminal; plain error 

BOTTOM LINE: Where the defendant argued the trial court committed plain error when it allowed a firearms identification expert to offer an unqualified opinion that bullets and cartridges recovered from the crime scene were “fired from” or “identified to” a semi-automatic handgun linked to him, the Appellate Court erred when it agreed with this argument.

CASE: State v. King, No. 42, Sept. Term, 2025 (filed July 27, 2026) (Justices Fader, Watts, Booth, Biran, Gould, Eaves, KILLOUGH).

FACTS: This appeal began before the Appellate Court of Maryland, where Kyeem Antonio King challenged his convictions for the second-degree murders of Davion Brandon and Antonio Taitano-Walker. At trial, the state presented testimony from a firearms identification expert who offered an unqualified opinion that bullets and cartridges recovered from the crime scene were “fired from” or “identified to” a semi-automatic handgun linked to King.

Although the sefense raised discovery objections regarding the expert’s bench notes and initially signaled an intent to challenge the reliability of the ballistics science, it failed to file a motion for a Daubert-Rochkind hearing or otherwise object to the examiner’s ultimate conclusions.

While King’s appeal was pending, this court decided Abruquah v. State, 483 Md. 637 (2023), holding that the prevailing ballistics methodology as presented in the Daubert-Rochkind hearing held in that case cannot support an unqualified opinion that ammunition evidence was fired from a specific firearm. King raised an Abruquah claim for the first time in his reply brief to the Appellate Court.

In the alternative, King argued that the circuit court committed plain error under Abruquah in admitting the unqualified firearms testimony. The Appellate Court reversed King’s conviction, reasoning that “[b]ecause the firearms conclusion in this case matched the testimony held to be improper in Abruquah, the trial court abused its discretion in admitting the testimony.”

LAW: A threshold question in this case is which standard of review applies. When a defendant preserves a challenge to the admissibility of evidence by raising it in the trial court, the defendant bears the burden of showing an abuse of discretion. If the defendant carries that burden, the state bears the burden of proving harmless error.

When a defendant fails to preserve a challenge, the analysis changes. Ordinarily, an unpreserved claim is reviewable, if at all, only for plain error, which requires four conditions to be satisfied: (1) there was an error or defect that has not been intentionally relinquished or abandoned; (2) the legal error was clear or obvious, rather than subject to reasonable dispute; (3) the error affected the appellant’s substantial rights, which ordinarily means it affected the outcome of the proceedings and (4) the error seriously affected the fairness, integrity or public reputation of judicial proceedings.

King’s challenge to the firearms expert’s testimony fails at the first prong of the harmless error analysis because it was not merely unpreserved; it was waived. Defense affirmatively told the trial court that its concern was “not with the science.” Based on these assertions, the trial court reasonably found that “the field is not at issue.”

The explicit findings of the expert report, along with this court’s Abruquah decision from 2020 and the studies that call into question the reliability of firearms matching technology, both of which the defense admits to being aware of, provided King with notice that the reliability of firearms and toolmark identification was squarely at issue in this case. If King was indeed seeking to challenge the state’s firearms expert testimony on reliability grounds, he could have brought this claim to the court’s and opposing counsel’s attention well before the first day of trial even absent the bench notes. Validating this oversight would be tantamount to embracing judicial inefficiency.

Moreover, King failed to preserve his Abruquah claim in accordance with Rule 4-252, which details the procedure by which parties file motions, such as a Daubert motion, in the circuit court. Allowing King to move forward with a claim that he never formally filed in accordance with this requirement would contravene a mandatory rule that every litigant must otherwise strictly follow. Nor did the circuit court grant the defense leave under Rule 4-252(e) to challenge the reliability of the state’s firearms expert testimony orally.

Even if this court were to treat the claim as merely unpreserved rather than intentionally waived, King’s claim failed on the second prong of the plain error test, as the admission of the firearms examiner’s unqualified opinion was not a clear or obvious error at the time of trial or appeal, because Abruquah represents a case-specific Daubert determination rather than a per se exclusion of toolmark evidence. In addition, there was no record of a Daubert hearing that was ripe for review on appeal.

Judgment of the Appellate Court of Maryland reversed.

Criminal; common scheme or plan

BOTTOM LINE: Where a man convicted of raping his 15-year old daughter  argued the circuit court erred in multiple ways, but one of the errors was harmless and the court rejected his remaining arguments, his convictions were sustained.

CASE: Spicuzza v. State, No. 25, Sept. Term, 2025 (filed July 28, 2026) (Justices Fader, BOOTH) (Justice WATTS concurs and dissents) (Justices BIRAN, Gould and Eaves concur and dissent) (Justice KILLOUGH dissents).

FACTS: Brian Spicuzza was convicted by a jury on charges of sexual abuse of a minor (his 15-year old daugher, H), rape in the second degree and sexual offense in the third degree. The Appellate Court of Maryland affirmed.

Mr. Spicuzza contends the trial court erred by allowing H.’s minor friends, A.L. and A.B., to testify about certain alleged crimes involving sexual abuse by Mr. Spicuzza against them, as well as Mr. Spicuzza’s conduct in allegedly providing the minors with alcohol, vapes and marijuana when they visited his apartment.

Mr. Spicuzza also contends that the trial court erred in permitting the state to ask him on cross-examination, “why is your daughter lying[,]” about the sexual abuse she alleged Mr. Spicuzza committed against her. Finally, Mr. Spicuzza contends that the trial court erred in refusing to permit him to call character witnesses to attest to his character trait for honesty.

LAW: The state first contends that Mr. Spicuzza failed to properly preserve his objection to A.L.’s and A.B.’s testimony under the common scheme or plan exception.

The court finds that defense counsel preserved his objections to A.L.’s testimony for this court’s review. Defense counsel objected to A.L.’s testimony before she testified. The basis for the objection was that it was impermissible under Rule 5-404(b), and counsel stated that it was adopting all of the same arguments that were made at the motion in limine hearing.

However the objection that was made in connection with A.L.’s testimony was limited to “her” testimony.  A.B.’s testimony the following day was clearly beyond the scope of the contemporaneous objection made on the prior day in connection with a different witness. Nevertheless, the ultimate issue was adequately preserved for appellate review.

Turning to the merits, the other crimes or other bad acts evidence of Mr. Spicuzza’s alleged sexual abuse and misconduct with H.’s friends falls within the common scheme or plan exception. The acts of abuse and misconduct described by H., A.L. and A.B. are individual manifestations of a general plan in which Mr. Spicuzza used his daughter to lure her young friends into his apartment where he would ply them with vapes, alcohol, and marijuana and watch pornography with them every time they came to his apartment, so that he could sexually abuse H. and engage in sexual criminal misconduct with her friends. Although the abuse against H. started prior to Mr. Spicuzza obtaining his apartment, it escalated in frequency and intensity—ultimately culminating in vaginal intercourse—over time as he established an atmosphere and culture conducive to sexual abuse of H. and committed other bad acts involving sexual misconduct with her friends.

However, the circuit court erred in permitting the state to ask Mr. Spicuzza to opine on why a witness was “lying.” It invaded the province of the jury to make Mr. Spicuzza assess his daughter’s credibility and was improper as a matter of law. It was also irrelevant—whether Mr. Spicuzza personally believes or disbelieves his daughter’s testimony is irrelevant. The court finds, however, that the answer was irrelevant in the context of the trial as a whole, especially concerning the otherwise overwhelming evidence against Mr. Spicuzza.

The court also holds that the trial court did not err in excluding Mr. Spicuzza’s character evidence. Mr. Spicuzza was not on trial for a veracity impeaching offense, and the state’s cross-examination of Mr. Spicuzza did not place his character for honesty into question. Moreover, even assuming that Mr. Spicuzza’s character for honesty had been called into question, the trial court did not abuse its discretion in refusing to allow the admission of Mr. Spicuzza’s character evidence based upon the insufficient proffers.

Judgment of the Appellate Court of Maryland affirmed.

CONCUR/DISSENT: I agree with the majority’s holding that the circuit court erred in overruling Mr. Spicuzza’s objection to the “why-was-she-lying” question, and did not err in refusing to allow Mr. Spicuzza to present character witnesses to attest to his honest character. I part ways with the majority with respect to its conclusion that evidence of other bad acts concerning Mr. Spicuzza’s alleged sexual abuse of his daughter’s friends was admissible under Maryland Rule 5-404(b)’s “common scheme or plan” exception.

CONCUR/DISSENT: I agree with the majority that the trial court did not err in admitting other bad acts evidence under the common scheme or plan exception. I also agree that the trial court did not err in refusing to permit Mr. Spicuzza’s character witnesses to testify as to his honest character. However, I disagree with the majority’s determination that the trial court erred in allowing the prosecutor to ask Mr. Spicuzza why H. was lying about Mr. Spicuzza having sexually abused her. Regardless, I agree that any error in allowing this testimony was harmless beyond a reasonable doubt.

DISSENT: I respectfully dissent. I would reverse. The two legal errors that occurred in this case require it. The first error is the trial court’s admission of testimony that Mr. Spicuzza sexually abused H.’s friends and supplied them with intoxicating substances, as evidence of a common scheme or plan. The second error is the trial court’s admission of the “why-would-she-lie” question the State put to Mr. Spicuzza on cross-examination regarding his daughter’s motives. Unlike the majority, I believe that the error was not harmless.

Tort; private nuisance

BOTTOM LINE: Where a couple asserted a private nuisance claim against the City of Baltimore after sewage backed up into their house, the jury verdict was vacated. The evidence was insufficient as a matter of law to generate a jury question of whether there was a continuous or recurring intrusion.

CASE: Mayor and City Council of Baltimore v. Abel, No. 26, Sept. Term, 2025 (filed July 29, 2026) (Justices Fader, BOOTH, Biran, Gould, Eaves) (Justice WATTS dissents) (Justice KILLOUGH dissents).

FACTS: This case arises out of a 2019 sewage backup that occurred in the home of Theresa and Christopher Abel. The Abels sued the Mayor and City Council of Baltimore, alleging claims for negligence and private nuisance. At the close of the Abels’ case, and again at the close of the evidence, the City moved for judgment as a matter of law arguing, among other things, that the evidence did not meet the legal requirements for a finding of private nuisance.

After the trial court denied the motions, the jury returned a verdict in the City’s favor on the negligence count. However, the jury found the City liable for creating a private nuisance associated with the 2019 backup and awarded the Abels damages. The Appellate Court of Maryland affirmed the circuit court judgment.

LAW: Under Maryland common law, liability for private nuisance is established by considering not only the significance of the invasion of the plaintiff’s reasonable use and enjoyment of his or her land but also the reasonableness of the defendant’s conduct or use of his or her property that causes the invasion.

When considering the reasonableness of the defendant’s conduct that causes the invasion, Maryland’s private nuisance common law requires that the defendant engage in wrongful conduct. A private nuisance claim may arise from more than one type of conduct. For example, it may arise from conduct that is negligent, reckless or abnormally dangerous.

Where the defendant’s conduct does not involve conduct that is not otherwise negligent, reckless or abnormally dangerous, the defendant’s conduct may be considered wrongful because it creates a continuous or recurring and unreasonable intrusion onto a plaintiff’s use and enjoyment of his or her property. If that is established, the defendant is strictly liable for damages resulting therefrom.

Here, viewing the evidence in the light most favorable to the Abels, there is no evidence of wrongful conduct by the City that satisfies the requirement for liability for private nuisance.  The jury found in the City’s favor on the Abels’ negligence claims associated with the 2019 backup. The Abels did not assert that the City engaged in reckless behavior or that the operation of a municipal sewer system constitutes abnormally dangerous conduct. And, of course, there is no evidence that the City acted for the purpose of causing a sewer backup on the Abels’ property.

The court must therefore determine whether there was evidence that the City’s non-negligent conduct was wrongful because it caused a continuous or recurring and unreasonable invasion. The answer is no. Taking the evidence in the light most favorable to the Abels, the evidence was insufficient as a matter of law to generate a jury question of whether there was a continuous or recurring intrusion.

Viewing the evidence in the light most favorable to the Abels, the City’s non-negligent conduct did not cause a continuous invasion of the sewage into the Abels’ basement. A single one-day backup over the course of 17 hours does not constitute a “continuous and unreasonable” invasion for which the City may be held liable for private nuisance under our case law.

Judgement of the Appellate Court of Maryland reversed.

DISSENT: Respectfully I dissent. I disagree with the majority’s holding that a plaintiff must prove a defendant’s conduct was “wrongful,” which raises the standard of proof in private nuisance cases.

DISSENT: I join Justice Watts’ dissenting opinion, which demonstrates that private nuisance has long been a strict liability action in Maryland. I write separately to make three additional points.

First, the sole error the majority identified below is a derivative of its own view of the evidence. Second, the record contains far more than the “slight” evidence our cases require to generate a jury question, and the jury was instructed on continuity at the City’s own request. Third, if the law of nuisance is to be narrowed, that judgment belongs to the General Assembly and not to this court.