United States v. Dawson, No. 08-4000 (4th Cir. Dec. 3, 2009). PDF available here.
Yesterday, the Fourth Circuit issued an opinion vacating a defendant’s sentence because, under a plain error standard of review, the government breached its plea agreement with the defendant.
The facts: the defendant’s plea agreement stated that the government would argue for a two-level minor participant reduction in the defendant’s offense level. (See U.S.S.G. § 3B1.2). The PSR prepared for the defendant did not discuss this provision of the plea agreement. At sentencing, neither defense counsel nor government counsel argued for the two-level minor participant reduction found in the plea agreement. (It is unclear why the defendant chose not to argue for this reduction).
The interesting turn in the case is that the defendant did not object at the district court level. Because of this, the Fourth Circuit had to review the government’s breach of the plea agreement for plain error. Generally, plain error is a high standard of review where the defendant bears the burden of satisfying four elements: an error – that is plain – that affects the defendant’s substantial rights – and that seriously affects the fairness, integrity, or public reputation of judicial proceedings.
In Dawson, the court found plain error. The court focused its analysis on the last two prongs of the standard. Dawson found that the government’s breach of the plea agreement violated the defendant’s substantial rights because 1) the court below was influenced by the government’s argument that the defendant was not a minor participant in determining its sentence, 2) the defendant did nothing after the plea agreement was signed that might have altered any party’s view of his role in the offense, and 3) the underlying facts in the PSR indicated that the defendant was a minor participant and an “unreliable” member of the drug conspiracy.
With regard to the last prong, Dawson noted that when the government breaches a plea agreement, “the integrity of the system may be called into question,” but there may also be countervailing factors that justify the breach. In Dawson’s case, the court found none. “A government that lives up to its commitments is the essence of liberty under law, [and] the harm generated by allowing the government to forego its plea bargain obligations is one which cannot be tolerated.”
Posted by Brennan Sullivan and McKenna
Friday, December 4, 2009
Tuesday, December 1, 2009
Juror's Grandmother Dies, Juror Tells Chambers, COSA Reverses
In an opinion filed yesterday, the Court of Special Appeals reversed a defendant’s murder conviction and remanded the case for a new trial. At the heart of the court’s decision was a concern about ex parte communications that occur between judges, chambers staff, and jurors. The opinion in Harris v. State, No. 581, September Term, 2008 (Filed November 30, 2009) is available here.
The defendant was convicted of second-degree depraved heart murder in the Circuit Court for Baltimore County. From the earliest stages of the trial, one of the jurors made clear to the court that he potentially had family issues that might impair the juror’s ability to serve. (The juror’s grandmother was seriously ill, and the juror suspected that she might die.) "We do not know whether the juror whose grandmother died or other jurors failed to deliberate properly or rushed to reach a verdict.”
At the close of the trial, and once the jury began deliberating, a note was sent to the court. The note indicated a juror’s request to be excused from further deliberations so that the juror might assist with family funeral preparations. It said: “If you can exchange me for an alternate jury member without disrupting anything, that will be great. If it is a big deal, please discuss with me.”
On the record, the court explained that the judge’s secretary had been contacted by this juror before the jury began deliberations. She asked if the juror was all right to continue deliberating, and the juror answered that he was. Counsel was not alerted to this communication until after it had occurred, and after deliberations had begun and the alternate jurors were discharged.
Maryland Rule 4-326 provides that a court must notify the defendant and the State’s Attorney’s office of the receipt of any communication from the jury pertaining the action at hand before responding to the communication. In Harris, the court found that the trial court’s failure to notify the parties of the communication before responding to it amounted to reversible error. If the court had alerted the parties of the communication, it would have provided the parties with an opportunity to help the court determine whether the juror would be able to exercise his duties in deliberating).
The court noted that “courts should err on the side of caution when dealing with jury communications.” The court also decided that, although the juror’s communication with the secretary related only to a family funeral (and not to the substance of the case), the communication was did pertain to the case: “In determining whether a communication is a ministerial matter, the best practice is for the trial court to confer with counsel for both sides and, if there is any doubt, to err on the side of concluding that it is not.”
The court was especially troubled that the secretary’s communication was ex parte, “thus disturbing the integrity of the record and preventing us and appellant from scrutinizing effectively the improper communications on appeal.” This, coupled with defense counsel’s assertion to the trial court on the record that, had the communication been disclosed before the alternates were discharged, she would have requested the juror be replaced with an alternate, persuaded the court to conclude that the trial court’s error was not harmless.
Posted by Brennan Sullivan and McKenna
The defendant was convicted of second-degree depraved heart murder in the Circuit Court for Baltimore County. From the earliest stages of the trial, one of the jurors made clear to the court that he potentially had family issues that might impair the juror’s ability to serve. (The juror’s grandmother was seriously ill, and the juror suspected that she might die.) "We do not know whether the juror whose grandmother died or other jurors failed to deliberate properly or rushed to reach a verdict.”
At the close of the trial, and once the jury began deliberating, a note was sent to the court. The note indicated a juror’s request to be excused from further deliberations so that the juror might assist with family funeral preparations. It said: “If you can exchange me for an alternate jury member without disrupting anything, that will be great. If it is a big deal, please discuss with me.”
On the record, the court explained that the judge’s secretary had been contacted by this juror before the jury began deliberations. She asked if the juror was all right to continue deliberating, and the juror answered that he was. Counsel was not alerted to this communication until after it had occurred, and after deliberations had begun and the alternate jurors were discharged.
Maryland Rule 4-326 provides that a court must notify the defendant and the State’s Attorney’s office of the receipt of any communication from the jury pertaining the action at hand before responding to the communication. In Harris, the court found that the trial court’s failure to notify the parties of the communication before responding to it amounted to reversible error. If the court had alerted the parties of the communication, it would have provided the parties with an opportunity to help the court determine whether the juror would be able to exercise his duties in deliberating).
The court noted that “courts should err on the side of caution when dealing with jury communications.” The court also decided that, although the juror’s communication with the secretary related only to a family funeral (and not to the substance of the case), the communication was did pertain to the case: “In determining whether a communication is a ministerial matter, the best practice is for the trial court to confer with counsel for both sides and, if there is any doubt, to err on the side of concluding that it is not.”
The court was especially troubled that the secretary’s communication was ex parte, “thus disturbing the integrity of the record and preventing us and appellant from scrutinizing effectively the improper communications on appeal.” This, coupled with defense counsel’s assertion to the trial court on the record that, had the communication been disclosed before the alternates were discharged, she would have requested the juror be replaced with an alternate, persuaded the court to conclude that the trial court’s error was not harmless.
Posted by Brennan Sullivan and McKenna
Tuesday, November 17, 2009
Fourth Circuit Scrutinizes ACCA Predicate and Holds in Favor of Defendant
Today, the Fourth Circuit held in favor of a defendant in a case involving whether an offense can be deemed an ACCA predicate. The opinion in United States v. Harcum, No. 07-4890 (Decided November 17, 2009) is available here.
First, some background on ACCA:
The Armed Career Criminal Act (“ACCA”) requires defendants to serve a mandatory minimum fifteen-year prison sentence if they have been convicted of unlawful possession of a firearm and have had three previous convictions for violent felonies or serious drug offenses. (The offenses also must have been committed on separate occasions.)
ACCA defines a “violent felony” as (1) a crime punishable by more than one year imprisonment (except for state misdemeanor offenses carrying a maximum penalty of two years – those don’t count) (2) that has as an element “the use, attempted use, or threatened use of physical force against the person of another.”
Given the severe mandatory minimum at stake for defendants potentially subject to ACCA, a court’s determination of whether an offense qualifies as a predicate is often a hotly contested issue. Courts can engage in two types of analysis to determine whether a conviction is an ACCA predicate: First, courts determine whether the elements of given crime, on the books, qualify an offense as a serious drug offense or a violent felony under ACCA. Second, if a court is unable to determine whether an offense qualifies as an ACCA predicate by examining the statutory language of the count of conviction, a court may be entitled to examine underlying charging documents and jury instructions.
Without going in to too much detail, a sentencing court cannot look to just any type of underlying document to determine whether an offense is an ACCA predicate, but only to “the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.”
This second type of analysis – dubbed the “modified categorical” approach – underlies the problems addressed in Harcum.
Here’s what happened:
Harcum had previously been convicted of second degree assault in Maryland state court. In Maryland, second degree assault is a misdemeanor, but one that carries a maximum sentence of imprisonment of 10 years. In Maryland, the statutory definition for second degree assault prohibits a person from “commit[ting] an assault.” By itself, this definition is insufficient to qualify an offense as an ACCA predicate.
Before his conviction for second degree assault, the defendant had been charged in the district court with second degree assault, and the statement of charges filed in district court contained facts that would have made the offense, if he had been convicted, an ACCA predicate.
At the defendant’s federal sentencing, the government argued that the statement of charges that had been filed in the district court corresponded to the charge that the defendant had pled guilty to in the circuit court. As such, the government argued, the conviction for second degree assault was an ACCA predicate. The sentencing court agreed.
On appeal, the Fourth Circuit held that because the statement of charges was never incorporated into the Information (that the defendant pled guilty to), there was not enough information for the sentencing court to conclude that the offense was an ACCA predicate. The Fourth Circuit recognized that in Maryland, a statement of charges may be supplanted by the filing of a criminal information – as it was in Harcum’s case.
What is worth noting is that the crime described in the Information that the defendant pled guilty to seemed to be the same crime as laid out in the statement of charges – the dates and the offenses were the same. The Fourth Circuit, however, said that this could have been a coincidence, and was not sufficient to rely upon to qualify the offense for ACCA.”Mere similarities in such documents . . . fail to explicitly incorporate their contents, and they do not authorize a sentencing court to bypass the “court of conviction” requirement” of the Supreme Court in Shepard and Taylor, two cases dealing with ACCA predicate offenses.
Congratulations are owed to Sapna Mirchandani and (probably) Paresh Patel for this victory.
Posted by Brennan Sullivan and McKenna
First, some background on ACCA:
The Armed Career Criminal Act (“ACCA”) requires defendants to serve a mandatory minimum fifteen-year prison sentence if they have been convicted of unlawful possession of a firearm and have had three previous convictions for violent felonies or serious drug offenses. (The offenses also must have been committed on separate occasions.)
ACCA defines a “violent felony” as (1) a crime punishable by more than one year imprisonment (except for state misdemeanor offenses carrying a maximum penalty of two years – those don’t count) (2) that has as an element “the use, attempted use, or threatened use of physical force against the person of another.”
Given the severe mandatory minimum at stake for defendants potentially subject to ACCA, a court’s determination of whether an offense qualifies as a predicate is often a hotly contested issue. Courts can engage in two types of analysis to determine whether a conviction is an ACCA predicate: First, courts determine whether the elements of given crime, on the books, qualify an offense as a serious drug offense or a violent felony under ACCA. Second, if a court is unable to determine whether an offense qualifies as an ACCA predicate by examining the statutory language of the count of conviction, a court may be entitled to examine underlying charging documents and jury instructions.
Without going in to too much detail, a sentencing court cannot look to just any type of underlying document to determine whether an offense is an ACCA predicate, but only to “the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.”
This second type of analysis – dubbed the “modified categorical” approach – underlies the problems addressed in Harcum.
Here’s what happened:
Harcum had previously been convicted of second degree assault in Maryland state court. In Maryland, second degree assault is a misdemeanor, but one that carries a maximum sentence of imprisonment of 10 years. In Maryland, the statutory definition for second degree assault prohibits a person from “commit[ting] an assault.” By itself, this definition is insufficient to qualify an offense as an ACCA predicate.
Before his conviction for second degree assault, the defendant had been charged in the district court with second degree assault, and the statement of charges filed in district court contained facts that would have made the offense, if he had been convicted, an ACCA predicate.
At the defendant’s federal sentencing, the government argued that the statement of charges that had been filed in the district court corresponded to the charge that the defendant had pled guilty to in the circuit court. As such, the government argued, the conviction for second degree assault was an ACCA predicate. The sentencing court agreed.
On appeal, the Fourth Circuit held that because the statement of charges was never incorporated into the Information (that the defendant pled guilty to), there was not enough information for the sentencing court to conclude that the offense was an ACCA predicate. The Fourth Circuit recognized that in Maryland, a statement of charges may be supplanted by the filing of a criminal information – as it was in Harcum’s case.
What is worth noting is that the crime described in the Information that the defendant pled guilty to seemed to be the same crime as laid out in the statement of charges – the dates and the offenses were the same. The Fourth Circuit, however, said that this could have been a coincidence, and was not sufficient to rely upon to qualify the offense for ACCA.”Mere similarities in such documents . . . fail to explicitly incorporate their contents, and they do not authorize a sentencing court to bypass the “court of conviction” requirement” of the Supreme Court in Shepard and Taylor, two cases dealing with ACCA predicate offenses.
Congratulations are owed to Sapna Mirchandani and (probably) Paresh Patel for this victory.
Posted by Brennan Sullivan and McKenna
Voir Dire is Not Foolproof, But Gives Meaning to Constitutional Rights
Edwin Wright v. State of Maryland, No. 6, September Term, 2009.
The opinion is available here (pdf).
While “voir dire is not a foolproof process,” . . . “it is better that we should use an overabundance of caution, and assume that the judicial system as a whole is better served by a more careful process. . . . Certainly, that is not too high a price to pay to give meaning to a right guaranteed by our Constitution.”
In an opinion filed November 16, 2009, the Maryland Court of Appeals reversed the judgment of the Court of Special Appeals, and remanded the case for a new trial. At issue before the Court was whether a trial court in Baltimore City had abused its discretion by conducting voir dire by way of posing a roster of questions in quick succession.
During jury selection, the trial court conducted a voir dire of a fifty-person venire panel. (Voir dire is the process that trial courts and attorneys use to question prospective jurors and determine whether they could be fair and impartial.) The trial court conducted the voir dire by posing a litany of seventeen questions to the panel. After the questions were read, each juror was asked to approach the bench and state whether they had information to provide in response to the questions posed.
Counsel for the defendant objected to this methodology of voir dire, and argued that the jurors would be unable to remember all of the questions posed so as to fairly respond to them by the time they approached the judge. At trial, the defendant was convicted, and on appeal his conviction was affirmed in the Court of Special Appeals.
In the Court of Appeals, the petitioner argued that the trial court’s method of conducting voir dire failed to reasonably ensure that the court received accurate responses to its questions. The Court of Appeals agreed, and held that the trial court abused its discretion by conducting voir dire in this “cursory” and “unduly limited” manner.
The right to a fair and impartial jury is guaranteed by the United States Constitution and the Maryland Declaration of Rights. The essential purpose of voir dire in a criminal case is to ensure that this right is protected. While trial courts have broad discretion in the way they conduct voir dire, an appellate court will not defer to a lower court’s judgment when the voir dire method employed by the court “fails to probe juror biases effectively.”
The Court of Appeals took care to note that the questioning part of the voir dire process took about five minutes and thirty seconds. In addition, some of the jurors who were ultimately selected for the jury approached to answer the questions nearly one hour after the questions had been read. “Information presented in the courtroom is most accessible when divided into small, discrete segments.” By failing to allow jurors time to absorb the questions that were being posed to them, the Court of Appeals held, the trial court limited the jurors’ opportunity to provide accurate information to the court.
“An incomplete voir dire necessarily means an incomplete investigation into potential juror biases, which in turn leads to the very real possibility that the venire members failed to disclose relevant information.”
Posted by Brennan Sullivan and McKenna
Thursday, November 12, 2009
Court of Appeals of Maryland Finds No Bad Faith, Reverses Circuit Court's Dismissal of Second Indictment
Posted by Brennan Sullivan and McKenna
State v. Huntley, Record No. 157 (Court of Appeals of Maryland, Sept. Term, 2008)
In an opinion filed November 12, 2009, the Court of Appeals of Maryland held that Mr. Huntley’s right to be tried within 180 days (pursuant to Md. Rule 4-271 (a) (1) and State v. Hicks, 285 Md. 310 (1979)) was not violated where, after the circuit court denied its motion to amend the indictment, the State “nol prossed” and re-indicted the case.
Mr. Huntley was indicted for child sexual abuse. The parties appeared for trial one day before the Hicks deadline. The State, proffering that it had just recently learned that the offense dates set forth in the indictment were incorrect, moved to amend the dates on the indictment. The circuit court denied the request.
The State therefore entered the charges nolle prosequi and re-indicted the defendant outside of the original “Hicks date.” Mr. Huntley filed a motion to dismiss the second indictment, arguing that the re-indictment violated Hicks and Rule 4-271. The circuit court granted the motion and the State appealed. The Court of Appeals took certiorari on the issue from the Court of Special Appeals.
Citing Curley v. State, 299 Md. 449 (1984), the Court noted that a nolle prosequi and re-indictment of a defendant does not implicate Hicks unless its purpose or its necessary effect “is to circumvent the statute and rule governing time limits for trial…” The Court went on to hold that, where the State “nol prosses” an indictment because its motion to amend the indictment was denied, Curley, Hicks, and Md. Rule 4-271 do not require dismissal of the subsequent indictment unless the State proceeded in bad faith. Finding the record devoid of bad faith, the Court reversed and remanded the case to the circuit court to determine whether the State had proceeded in bad faith.
Chief Judge Bell and Judge Greene dissented to the opinion, essentially arguing that, because the State had other options (e.g., asking the administrative judge for a postponement) and didn’t exercise them, bad faith on the part of the State was apparent from the record.
State v. Huntley, Record No. 157 (Court of Appeals of Maryland, Sept. Term, 2008)
In an opinion filed November 12, 2009, the Court of Appeals of Maryland held that Mr. Huntley’s right to be tried within 180 days (pursuant to Md. Rule 4-271 (a) (1) and State v. Hicks, 285 Md. 310 (1979)) was not violated where, after the circuit court denied its motion to amend the indictment, the State “nol prossed” and re-indicted the case.
Mr. Huntley was indicted for child sexual abuse. The parties appeared for trial one day before the Hicks deadline. The State, proffering that it had just recently learned that the offense dates set forth in the indictment were incorrect, moved to amend the dates on the indictment. The circuit court denied the request.
The State therefore entered the charges nolle prosequi and re-indicted the defendant outside of the original “Hicks date.” Mr. Huntley filed a motion to dismiss the second indictment, arguing that the re-indictment violated Hicks and Rule 4-271. The circuit court granted the motion and the State appealed. The Court of Appeals took certiorari on the issue from the Court of Special Appeals.
Citing Curley v. State, 299 Md. 449 (1984), the Court noted that a nolle prosequi and re-indictment of a defendant does not implicate Hicks unless its purpose or its necessary effect “is to circumvent the statute and rule governing time limits for trial…” The Court went on to hold that, where the State “nol prosses” an indictment because its motion to amend the indictment was denied, Curley, Hicks, and Md. Rule 4-271 do not require dismissal of the subsequent indictment unless the State proceeded in bad faith. Finding the record devoid of bad faith, the Court reversed and remanded the case to the circuit court to determine whether the State had proceeded in bad faith.
Chief Judge Bell and Judge Greene dissented to the opinion, essentially arguing that, because the State had other options (e.g., asking the administrative judge for a postponement) and didn’t exercise them, bad faith on the part of the State was apparent from the record.
Thursday, November 5, 2009
For now at least, the Court of Special Appeals finds no Second Amendment protection against Maryland's firearm regulations.
Williams v. State of Maryland, Record No. 01999, (Court of Special Appeals, Sept. Term, 2008)
In an opinion filed October 30, 2009, the Court of Special Appeals held that – for now at least - Maryland’s prohibition on transportation of a handgun (Md. Crim. Law Code Ann. § 4-203) is not subject to Second Amendment analysis and therefore does not violate a defendant’s right to keep and bear arms under the United States Constitution.
The crux of the opinion (authored by Judge Matricciani) is simply that the Second Amendment of the United States Constitution (“A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed”) does not apply to the states. Moreover, the Maryland Constitution contains no “corollary of the federal constitutional right codified in the Second Amendment.”
Therefore, according to the holding, the argument that carried the day in District of Columbia v. Heller, 128 S. Ct. 2783 (2008) is of no avail against Maryland’s statute regulating firearms. As the Court of Special Appeals noted, the United States Supreme Court has recently taken up this very question in McDonald v. City of Chicago, No. 08-1521 (September 30, 2009) and is likely to decide it by June or July, 2010.
In the meantime, the Court of Special Appeals held, “Until the Supreme Court rules definitively on incorporation of the Second Amendment, we must assume, without deciding, that it has not been incorporated.”
Posted by Brennan Sullivan and McKenna
In an opinion filed October 30, 2009, the Court of Special Appeals held that – for now at least - Maryland’s prohibition on transportation of a handgun (Md. Crim. Law Code Ann. § 4-203) is not subject to Second Amendment analysis and therefore does not violate a defendant’s right to keep and bear arms under the United States Constitution.
The crux of the opinion (authored by Judge Matricciani) is simply that the Second Amendment of the United States Constitution (“A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed”) does not apply to the states. Moreover, the Maryland Constitution contains no “corollary of the federal constitutional right codified in the Second Amendment.”
Therefore, according to the holding, the argument that carried the day in District of Columbia v. Heller, 128 S. Ct. 2783 (2008) is of no avail against Maryland’s statute regulating firearms. As the Court of Special Appeals noted, the United States Supreme Court has recently taken up this very question in McDonald v. City of Chicago, No. 08-1521 (September 30, 2009) and is likely to decide it by June or July, 2010.
In the meantime, the Court of Special Appeals held, “Until the Supreme Court rules definitively on incorporation of the Second Amendment, we must assume, without deciding, that it has not been incorporated.”
Posted by Brennan Sullivan and McKenna
Friday, October 2, 2009
Greenbelt Court Interprets Melendez-Diaz
United States of America v. Clark Darden, Case No. 09-602M
The opinion is available here (pdf).
Last week, Judge DiGirolamo signed an opinion interpreting the Supreme Court’s recent decision in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2537 (2009). In Melendez-Diaz, the Court held that state forensic analysts’ “certificates of analysis” performed on seized substances, and prepared for use in criminal prosecutions are testimonial evidence, and subject to confrontation as set forth in Crawford: “Absent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to ‘be confronted with’ the analysts at trial.” Very generally, Melendez-Diaz held that the government may not prove the contents of a printed forensic analysis record without the presence of the analyst.
In Darden, the defendant argued that the Government was required to produce the testimony of two lab technicians who conducted tests on the seized substances, and who produced the raw data, upon which the supervising toxicologist relied in forming his opinion as to the alcohol content of the sample.
The defendant argued that under the Supreme Court’s decision in Melendez-Diaz, the Government was required to produce the testimony of each of the lab technicians, and not only the testimony of the supervising lab technician. The Government argued that the data gathered and recorded by the lab technicians, which was eventually used by the supervisor, were not “statements” of the lab technicians, were not “hearsay” statements, and were not “testimonial.”
The Court disagreed with the defendant. It held that the inculpating “statements” of the lab technicians were not statements at all, but rather “printed data generated by the testing machines.” The Court stated that “[The supervising technician] did not simply conduct a technical review” of the findings and conclusions of the underlying testing individuals. He reviewed the raw data in order to form his own conclusions and findings. . . . [The] technicians did not generate their own conclusions but simply ran the tests which generated the data.”
In the end, Darden is an interpretation of Melendez-Diaz that the presence of the technicians involved in the chain of custody of a sample is not required for cross-examination regarding the reliability of the data generated from the sample.
Posted by Brennan Sullivan and McKenna
The opinion is available here (pdf).
Last week, Judge DiGirolamo signed an opinion interpreting the Supreme Court’s recent decision in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2537 (2009). In Melendez-Diaz, the Court held that state forensic analysts’ “certificates of analysis” performed on seized substances, and prepared for use in criminal prosecutions are testimonial evidence, and subject to confrontation as set forth in Crawford: “Absent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to ‘be confronted with’ the analysts at trial.” Very generally, Melendez-Diaz held that the government may not prove the contents of a printed forensic analysis record without the presence of the analyst.
In Darden, the defendant argued that the Government was required to produce the testimony of two lab technicians who conducted tests on the seized substances, and who produced the raw data, upon which the supervising toxicologist relied in forming his opinion as to the alcohol content of the sample.
The defendant argued that under the Supreme Court’s decision in Melendez-Diaz, the Government was required to produce the testimony of each of the lab technicians, and not only the testimony of the supervising lab technician. The Government argued that the data gathered and recorded by the lab technicians, which was eventually used by the supervisor, were not “statements” of the lab technicians, were not “hearsay” statements, and were not “testimonial.”
The Court disagreed with the defendant. It held that the inculpating “statements” of the lab technicians were not statements at all, but rather “printed data generated by the testing machines.” The Court stated that “[The supervising technician] did not simply conduct a technical review” of the findings and conclusions of the underlying testing individuals. He reviewed the raw data in order to form his own conclusions and findings. . . . [The] technicians did not generate their own conclusions but simply ran the tests which generated the data.”
In the end, Darden is an interpretation of Melendez-Diaz that the presence of the technicians involved in the chain of custody of a sample is not required for cross-examination regarding the reliability of the data generated from the sample.
Posted by Brennan Sullivan and McKenna
Tuesday, September 22, 2009
Child Likes the Color Red, Court of Appeals Upholds Competency to Testify
Jones v. State of Maryland, No. 3, September Term, 2008.
The opinion is available here (pdf).
In an opinion filed today, the Court of Appeals upheld the finding of a Circuit Court judge that a six-year old child was competent to testify in a trial of child sexual abuse and second-and-third degree sexual offense charges.
In Maryland, trial judges have no discretion to admit the testimony of a witness who is not competent to testify. The traditional standard for competency is this: a witness must have an understanding and appreciation of the nature and obligation of an oath to tell the truth, and an ability to observe and describe the facts the witness is called to testify about. This test has been articulated in a variety of ways, but at its core it has four components: 1) that the witness understand the concept of “telling the truth”; 2) that the witness have a capacity to observe (at least at the time of the underlying event); 3) that the witness have a capacity to recollect the facts observed; and 4) that the witness have an ability to communicate, including the ability to respond to questions about facts in the witness’s testimony itself.
In cases where children are alleged to be victims of crime, their competency to testify is often disputed at trial. It is essential for defense attorneys to closely scrutinize the potential incompetency of a child to testify, particularly in cases tried before juries, where members of the jury may be sympathetic to a child’s inability to precisely recall an event.
As with all determinations of witness competency, and as Jones makes clear, trial judges have broad discretion to admit a child’s testimony as competent. The age of a child is not the test in Maryland for competency. Instead, the test is whether the child has enough intelligence to provide testimony of any value, and whether the child feels a duty to tell the truth.
In Jones, the trial court conducted a lengthy hearing to determine if the child was competent to testify. During the examination, the child was presented with slides of people holding various objects. The child was told what the people holding the objects were saying, and was asked to state which person was telling the truth. Without fail, the child chose the person in the picture wearing red. The trial judge recognized that “he has a very strong preference to red . . . [and] he did poorly.”
In its ruling, the trial court noted that “quite frankly . . . the slide show presentation . . . I’m not being derogatory, but the bell and whistle presentation, quite frankly did poorly.” However, the trial judge determined that the child’s performance on another part of the examination was sufficient to convince him that the child was competent to testify.
Applying the “clearly erroneous” standard of review, the Court of Appeals upheld the Circuit Court’s finding that the child passed the “truth v. lie” and “ability to observe and relate” portions of the competency test, and had a strong understanding of his obligation to tell the truth.
Posted by Brennan Sullivan and McKenna
The opinion is available here (pdf).
In an opinion filed today, the Court of Appeals upheld the finding of a Circuit Court judge that a six-year old child was competent to testify in a trial of child sexual abuse and second-and-third degree sexual offense charges.
In Maryland, trial judges have no discretion to admit the testimony of a witness who is not competent to testify. The traditional standard for competency is this: a witness must have an understanding and appreciation of the nature and obligation of an oath to tell the truth, and an ability to observe and describe the facts the witness is called to testify about. This test has been articulated in a variety of ways, but at its core it has four components: 1) that the witness understand the concept of “telling the truth”; 2) that the witness have a capacity to observe (at least at the time of the underlying event); 3) that the witness have a capacity to recollect the facts observed; and 4) that the witness have an ability to communicate, including the ability to respond to questions about facts in the witness’s testimony itself.
In cases where children are alleged to be victims of crime, their competency to testify is often disputed at trial. It is essential for defense attorneys to closely scrutinize the potential incompetency of a child to testify, particularly in cases tried before juries, where members of the jury may be sympathetic to a child’s inability to precisely recall an event.
As with all determinations of witness competency, and as Jones makes clear, trial judges have broad discretion to admit a child’s testimony as competent. The age of a child is not the test in Maryland for competency. Instead, the test is whether the child has enough intelligence to provide testimony of any value, and whether the child feels a duty to tell the truth.
In Jones, the trial court conducted a lengthy hearing to determine if the child was competent to testify. During the examination, the child was presented with slides of people holding various objects. The child was told what the people holding the objects were saying, and was asked to state which person was telling the truth. Without fail, the child chose the person in the picture wearing red. The trial judge recognized that “he has a very strong preference to red . . . [and] he did poorly.”
In its ruling, the trial court noted that “quite frankly . . . the slide show presentation . . . I’m not being derogatory, but the bell and whistle presentation, quite frankly did poorly.” However, the trial judge determined that the child’s performance on another part of the examination was sufficient to convince him that the child was competent to testify.
Applying the “clearly erroneous” standard of review, the Court of Appeals upheld the Circuit Court’s finding that the child passed the “truth v. lie” and “ability to observe and relate” portions of the competency test, and had a strong understanding of his obligation to tell the truth.
Posted by Brennan Sullivan and McKenna
Monday, September 21, 2009
Court of Appeals Reverses – Defendant Improperly Advised Before Waiving Counsel
Brye v. State of Maryland, No. 127, September Term, 2008.
The opinion is available here (pdf).
In an opinion filed September 18, 2009, the Maryland Court of Appeals reversed the judgment of the Court of Special Appeals, and remanded the case for trial. The Court reversed because the defendant was improperly and inconsistently advised of the allowable penalties of the crimes he was charged with, prior to accepting the defendant’s waiver of counsel. The Court stated that this case exceeded its tolerant for insufficient advisements to a defendant before acceptance of a waiver of counsel.
As a background note, Rule 4-215 governs a defendant’s waiver of counsel. One provision of this rule specifically states that a judge shall “[a]dvise the defendant of the nature of the charges in the charging document, and the allowable penalties, including mandatory penalties, if any.”
In Brye, the defendant appeared at trial with his attorney. When the defense attorney requested that the trial date be continued, the defendant objected and fired his attorney. His case was tried later that day, and he was convicted of second-degree assault, and sentenced to 10 years imprisonment.
The issue before the Court of Appeals was whether, having been inconsistently advised of the maximum penalty for the offenses with which he was charged (that is, two judges told him different things regarding the allowable penalties for his charges), the defendant’s waiver of counsel was valid, given that he was not convicted of any offenses whose penalties were improperly advised to him.
Below, the Court of Special Appeals had held that any error that may have been committed was of no harm to the defendant, given that he was properly advised of the allowable penalties for second-degree assault, the only crime for which he was convicted. The Court disagreed.
“Incorrect advisements commingled with correct ones, rendered by a series of judges, cannot be ignored simply because a defendant is not convicted of the implicated charge or charges. . . . The analytical focus of a Rule 4-215 argument is at the point in the proceeding when the waiver is accepted . . . not what happened at trial.”
Posted by Brennan Sullivan and McKenna
The opinion is available here (pdf).
In an opinion filed September 18, 2009, the Maryland Court of Appeals reversed the judgment of the Court of Special Appeals, and remanded the case for trial. The Court reversed because the defendant was improperly and inconsistently advised of the allowable penalties of the crimes he was charged with, prior to accepting the defendant’s waiver of counsel. The Court stated that this case exceeded its tolerant for insufficient advisements to a defendant before acceptance of a waiver of counsel.
As a background note, Rule 4-215 governs a defendant’s waiver of counsel. One provision of this rule specifically states that a judge shall “[a]dvise the defendant of the nature of the charges in the charging document, and the allowable penalties, including mandatory penalties, if any.”
In Brye, the defendant appeared at trial with his attorney. When the defense attorney requested that the trial date be continued, the defendant objected and fired his attorney. His case was tried later that day, and he was convicted of second-degree assault, and sentenced to 10 years imprisonment.
The issue before the Court of Appeals was whether, having been inconsistently advised of the maximum penalty for the offenses with which he was charged (that is, two judges told him different things regarding the allowable penalties for his charges), the defendant’s waiver of counsel was valid, given that he was not convicted of any offenses whose penalties were improperly advised to him.
Below, the Court of Special Appeals had held that any error that may have been committed was of no harm to the defendant, given that he was properly advised of the allowable penalties for second-degree assault, the only crime for which he was convicted. The Court disagreed.
“Incorrect advisements commingled with correct ones, rendered by a series of judges, cannot be ignored simply because a defendant is not convicted of the implicated charge or charges. . . . The analytical focus of a Rule 4-215 argument is at the point in the proceeding when the waiver is accepted . . . not what happened at trial.”
Posted by Brennan Sullivan and McKenna
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