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Welcome to the Western Maryland Advocate, formerly the Maryland Advocate Version 2.0 Beta!  This site is an independent forum to present informational pieces on legal practice. Feel free to view and download any of the content on this site IF you accept the following conditions:

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Paul J. Notarianni is the administrator for the Western Maryland Advocate. He is licensed to practice law in the State of Maryland.  Contact below:

 

 

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Invocation of Counsel

The following was taken from a motion in limine.  It was drafted by Paul J. Notarianni.

Evidence of an accused’s intent to obtain counsel is inadmissible.  In Casey v. State, the Maryland Court of Special Appeals held that the issue is “well settled,” that Maryland Rules of Evidence 5-401 makes evidence of an accused’s intent to obtain the advice of counsel as inadmissible.  (Casey v. State, 124 Md. App. 331 at 338 (1999)).  In Waddell v. State, the Court of Special Appeals reversed a first degree murder conviction because the jury received evidence of the appellant’s desire to obtain counsel (Id. citing Waddell v. State, 85 Md. App. 54 (1990)).  In Hunter v. State, the Court of Special Appeals reversed a conviction for negligent homicide by motor vehicle while intoxicated because the jury received evidence that the accused contacted his attorney immediately following the accident. (Id. at 338-39 citing Hunter v. State, 82 Md. App. 679 (1990)).   The Hunter Court found that “to draw an inference of consciousness of guilt from the seeking of such advice… is both illogical and unwarranted; the fact to be inferred [consciousness of guilt] is not made more probable (or less probable) from the mere seeking of legal advice or representation, and so evidence of the predicate fact is simply irrelevant.  On pure evidentiary grounds, it is inadmissible.” (Hunter at 691) (emphasis added).

Lay Opinion; Moreland v. State.

The following was taken from a motion in Limine.  It was drafted by Paul J. Notarianni.

Permissible lay opinion testimony generally falls into one of two categories. (Moreland v. State, 207 Md. App. 563, 571 (2012) citing Washington v. State, 179 Md. App. 32, rev’d on other grounds, 406 Md. 642, (2008)).  The first category is where it is impossible, difficult, or inefficient to verbalize or communicate the underlying data observed by the witness. (Id. quoting Washington at 56) The second category is when the lay trier of fact lacks the knowledge or skill to draw the proper inferences from the underlying data. (Id.)   Maryland Rule 5-701 and 5-702 prohibit the admission of a “lay opinion” of testimony based upon specialized knowledge, skill, experience, training or education. (Id. at 570 quoting Ragland v. State, 385 Md. 706, 717, 725 (2005)).

License Plate Lamp and 4th Amendment.

The following was from a motion to suppress based on a traffic stop for a tail lamp.  Drafted by Paul J. Notarianni.

“The Supreme Court has made clear that a traffic stop involving a motorist is a detention which implicates the Fourth Amendment.” (Wilkes v. State, 364 Md. 554 (2001) citing United States v. Sharpe, 470 U.S. 675, 682, (1985); Berkemer v. McCarty, 468 U.S. 420, 439, (1984)).  A traffic stop violates the federal Constitution if the police do not have probable cause to believe that the driver has committed a traffic violation. (Whren v. United States, 517 U.S. 806, 810, (1996)). Maryland Transportation Article Section 22-204 (f) reads in pertinent part “Either a tail lamp or a separate lamp shall be constructed and placed to illuminate, with a white light, the rear registration plate and render it clearly legible from a distance of 50 feet to the rear.”

Nol Pro & STETs on Appeal. LaFavre v. State

Brief Brief: LaFaivre v. State, 338 Md. 151 (1994).

ISSUE:  Resurrection of charges nolle prosequi and STET on trial de novo.

QUOTE 1:  “This case involves some basics of criminal procedure. The petitioner was prosecuted in the District Court of Maryland on a multi-count charging document under which the petitioner was found guilty on one count, after the State had stetted another count and had entered nolle prosequis to still others. The issue is whether, on a de novo appeal, the State may prosecute in the circuit court as to all of the charges on that same charging document. We hold that because there was no new charging document in the circuit court, de novo trial of the nol prossed charges was improper. De novo trial of the stetted charge, however, was proper.”  (Id. at 152.)

QUOTE 2: “Appeals from convictions in the District Court are de novo proceedings. Basically a de novo appeal from a judgment of conviction in the District Court proceeds on the same charging document on which the judgment was entered in the District Court.” (Id. at 154,  citing  Courts and Judicial Proceedings Article Section 12-401 (f) and Maryland Rule 7-112.)

QUOTE 3: “The [Court of Special Appeals] found ‘plain intent from the statute and rules that a trial de novo in a criminal case on appeal to the circuit court from a final judgment of the District Court shall proceed only on the same charging document which was the basis of the original trial.’ We agree.” (Id. at 155 quoting Pinkett v. State, 30 Md. App. 458 at 469 (1976)).

QUOTE 4: “The State seeks to bring LaFaivre’s prosecution within an exception to the rule requiring a new charging document to reinstate nol prossed charges. The exception lies where a nolle prosequi is part of a plea bargain that is breached by the accused… Although there are indications in the record of the proceedings in the District Court that there was an agreement between the State and LaFaivre, the record directly reflects only the amendment to a less serious charge, the stet, the nolle prosequis, and proceeding on a not guilty agreed statement of facts. To attempt to infer from this record that LaFaivre agreed that there would be no appeal is simply to speculate.  Indeed, that speculation is contradicted by the District Court judge’s advice to LaFaivre concerning his right to appeal, as to which the State took no exception. Thus, the ordinary rule concerning the effect of a nolle prosequi applies here.” (Id. at 156-157.)

Violation of Probation: Motion to Dismiss for Violation of MD Rule 4-347 (a)

Below is an excerpt for a motion to dismiss a petition to violate probation on the basis for failing to articulate the nature of the violation. It was drafted by Paul J. Notarianni in 2019.

Maryland Rule 4-347 (a) states, in pertinent part, that a petition to violate probation “shall state each condition of probation that the defendant is charged with having violated and the nature of the violation.”    In this case, Maryland Rule 4-347 (a) has been violated.  No allegation of violation of probation has been put forward in the petition.  There is some illusionary language in the petition that claims the Defendant [committed a violation].  However, throughout the remainder of the charging document, the Agent indicates that the Defendant has in fact been compliant. The statement of charges in this matter does not contain any actual allegations of charges. It only contains ideal speculation of the Agent, the Agent’s opinion that the Defendant might reoffend.

Pickpocket v. Robbery. Cooper v. State.

Brief Brief.  Cooper v. State,9 Md. App. 478 (1970).

ISSUE:  Pickpocket v. Robbery

QUOTE: “Robbery, a common law crime in Maryland, is larceny from the person accompanied by violence or putting in fear.  The violence may be actual as by the application of physical force, or it may be constructive as by intimidation or placing the victim in fear. Where, as here, it is clear that the victim was neither intimidated or put in fear, there must be evidence of actual violence preceding or accompanying the taking.  Actual violence, it is said, implies personal violence; if there is any injury to the person of the owner in the taking of the property, or if he resists the attempt to rob him, and his resistance is overcome, there is sufficient violence to make the taking robbery, however slight the resistance. The degree of force used is immaterial so long as it is sufficient to compel the victim to part with his property. In other words, sufficient force must be used to overcome resistance and the mere force that is required to take possession, when there is no resistance, is not enough, i. e., the force must be more than is needed simply to move the property from its original to another position; there must be more force than is required simply to effect the taking and asportation of the property. Thus, it is not robbery to obtain property from the person of another by a mere trick, and without force, or to pick another’s pocket without using more force than is necessary to lift the property from the pocket; nor is it robbery to suddenly snatch property from another when there is no resistance and no more force, therefore, than is necessary to the mere act of snatching.” (Id. at 480. Internal citations omitted)

Failure to Grant a Jury Instruction

This is an excerpt from a petition for writ of certiorari.  It was drafted by Paul J. Notarianni in 2016.

ISSUE PRESENTED

Did the Trial Court commit reversible error when it made a finding that necessity was a valid defense, yet refused to pose a duress or necessity instruction to the jury?

ARGUMENT IN SUPPORT FOR GRANTING THE WRIT

The Trial Court committed reversible error when it denied [defendant’s] request for a jury instruction on either duress or necessity.  Maryland law requires for a trial court to give a jury instruction at the conclusion of all evidence of the applicable law. (Maryland Rule 4-325 (a) (c)).  An “appellate court, on its own initiative or on suggestions of a party, may … take cognizance of any plain error in the instructions, material to the rights of the defendant, despite a failure to object.” (Maryland Rule 4-325 (e)).

The trial court is mandatorily required to instruct the jury on every essential question or point of law supported by the evidence. (Dishman v. State, 118 Md. App. 360, (1997) certiorari granted, affirmed in part, reversed in part 352 Md. 279, Ellison v. State, 104 Md. App. 655 (1995)). The Maryland Court of Appeals has held that Maryland Rule 4-325(c)”requires the trial court to give a requested jury instruction under the following circumstances: 1) the requested instruction is a correct statement of the law; 2) the requested instruction is applicable under the facts of the case; and 3)  the content of the requested instruction was not fairly covered elsewhere in the jury instructions actually given.” (McMillan v. State, 428 Md. 333 at 356 (2012), citing Thompson v. State, 393 Md. 291, 302-03 (2006) quoting Ware v. State, 348 Md. 19, 58 (1997)).

A defendant has a minimal threshold burden to “show ‘some evidence’ [that a defense is applicable] and then the burden shifts to the State to show, beyond a reasonable doubt, that the defense does not apply.”  (McMillan at 356 citing Dykes v. State, 319 Md. 206, 216 (1990)).

Under Maryland Law, to establish duress, it must be shown that the duress is   “present, imminent, and impending, and of such a nature as to induce well grounded apprehension of death or serious bodily injury if the act is not done.  It must be of such character as to leave no opportunity to the accused to escape. Mere fear or threat by another is not sufficient nor is a threat of violence at some prior time.”  (McMillan at 355 quoting Frasher v. State, 8 Md. App. at 449). The elements of necessity are that a defendant: 1) must have “been in present imminent risk of death or bodily harm, 2) not have placed himself in the situation intentionally or recklessly, 3) not have a reasonable or legal alternative to the criminal action, and 4) stop the criminal activity when the necessity ends.” (McMillan at 361).

Necessity is similar to duress, except that the compulsion to act comes from “the physical forces of nature rather than from human beings.” (Sigma Reproductive Health Ctr. V. State, 297 Md. 660, 675 (1983).  There is no separate pattern jury instruction on necessity because of the inter relationship between necessity and duress. (MPJI CR 5.03 CMT.)

Voluntariness of Guilty Plea

The following is an excerpt from an Application for Leave to Appeal.  The issue raised was whether a guilty plea was made knowingly and voluntarily.   It was drafted by Paul J. Notarianni  in 2013.

Applicant raises a single allegation of error on the part of the Circuit Court.  Applicant alleges that the Circuit Court committed reversible error by accepting the Applicant’s plea.

A plea of guilty must be made knowingly and voluntarily.  The United States Supreme Court has held that an affirmative showing of voluntariness on the record is necessary in order to conclude that a defendant has waived his constitutional rights.  (Boykin v. Alabama, 395 U.S. 238, 242 (1969)).  A Maryland trial court may not accept a plea of guilty without first questioning the defendant on the record to determine that the plea is made voluntarily, with understanding of the charge and the consequences of the plea.  (MD Rule 731 (c) and State v. Priett, 289 Md. 267 (1982)).  A trial court must see to it that “the guilty plea is made . . . freely and voluntarily, and with a full understanding of its nature and effect . . .” (Davis v. State, 278 Md. 103, 116 (1976)).

 

 

K-9 Alert Not Sufficient to Search Occupants. State v. Wallace.

Brief Brief.  State v. Wallace, 372 Md. 137 (2002).

QUOTE:  “A canine alert on the exterior of a vehicle does not support the proposition that the drugs potentially in the car are concealed on a particular occupant of that vehicle.  When the police get all of the occupants out of the vehicle and find no drugs in the vehicle, they cannot use a positive general canine scan of the car as authority to go further and search a non-owner/non-driver passenger.” Id. at 159-60.

Officer Cannot Stick Head in Car Window to take a Sniff. State v. Grant.

Brief Brief: State v. Grant, 449 Md. 1 (2016).

HOLDING:  The Maryland Court of Appeals had held that a police officer, who inserts his head into a passenger side window of a defendant’s vehicle during a traffic stop, conducted a search under the Fourth Amendment, ( State v. Grant 449 Md. 1 (2016)). In Grant, the court found that the detection of odor of marihuana from the Officer sticking his head through the window, exceeded permissible scope of the stop. ( Id. )