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Criminal Law & Procedure - Newsletter
October 28, 2013 |
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Robert C. Bonsib, Esq.
and
Megan E. Coleman, Esq.
We are available to assist individuals and organizations in need of representation regarding investigations and criminal matters in the federal and state trial and appellate courts.
301-441-3000 (office)
Robert C. Bonsib, Esq.
Fellow, American College of Trial Lawyers
Washingtonian Magazine Top 30 Lawyers
Best Lawyers in America - White Collar &
Non-White Collar Criminal Defense
Super Lawyers - Maryland & D.C.
Robert C. Heeney Award by Md St Bar Assoc. for Distinguished Career in Criminal Law
Maryland Pattern Criminal Jury Instructions Committee
Past Chair, MSBA Criminal Law Section
Past Chair, Prince George's County Criminal Law Committee
Former federal and state prosecutor
39 years of trial experience
301-509-5100 (cell)
Email Robert C. Bonsib, Esq.
Megan E. Coleman, Esq.
Board of Directors, Maryland Criminal Defense Attorneys Association
CJA Panel for the U.S. Court of Appeals for the Fourth Circuit
Member, National Association of Criminal Defense Attorneys; Prince Georges County, Montgomery County and Maryland State Bar Associations
Email Megan E. Coleman, Esq.
240-328-8378 (cell)
For more information about Robert C. Bonsib, Esq. and Megan E. Coleman, Esq. please visit www.robertbonsib.com |
Quick Links to Articles by Robert C. Bonsib, Esq. & Other Resources Representing a Client During a Criminal Investigation - 3 Parts
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MARCUSBONSIB, LLC 
MarcusBonsib, LLC is a five-member litigation law firm located in Greenbelt, Maryland. Founding Partners Bruce L. Marcus & Robert C. Bonsib are Fellows of the American College of Trial Lawyers, AV rated by Martindale-Hubbell and are ranked in the Top Lawyers edition of Washingtonian Magazine. Together with Senior Associate Joseph A. Compofelice, all three are listed in Super Lawyers. MarcusBonsib, LLC is ranked as a Best Law Firm by Best Lawyers and US News. Associate Megan E. Coleman has distinguished herself as a criminal defense lawyer as has Associate Janine M. Evans in the field of family law, civil and professional discipline law. MarcusBonsib, LLC attorneys are active in practice areas including commerical and business litigation, personal injury, family law, professional discipline, white collar and non-white collar criminal defense and construction litigation.
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Please enjoy this newsletter summarizing current cases and other developments in the area of criminal law and procedure compliments of Robert C. Bonsib, Esq., Megan E. Coleman, Esq. & MarcusBonsib, LLC.
[click on hot link at end of each case summary to review entire opinion]
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Conviction reversed - expert testimony regarding gang membership of defendant overly prejudicial
In Burris v. State, the Court of Special Appeals reversed a conviction for first degree murder because of the improper admission admission of the testimony of a "gang expert." The COA held that the trial court abused its discretion in allowing the expert to testify holding that the probative value of the expert's testimony was substantially outweighed by its unfair prejudice to Burris. It rejected the State's position that under Rule 5-404(b) the evidence of gang membership was evidence that was probative of Burris' motive to kill. The COA reminded that even when special relevance has been demonstrated under Rule 5-404(b) and an accused's involvement in a prior crime or bad act has been established by clear and convincing evidence, the trial court must still be careful to balance the probative value of prior bad acts evidence against its potential for unfair prejudice.
The COA distinguished this case from its holding in Gutierrez vs. State, 423 Md. 476 (2011). In Gutierrez the COA upheld the admission of expert testimony about the history, hierarchy and common practices of a street gang to prove that the crime charged was gang related and concluded there that the probative value of the testimony was not substantially outweighed by its prejudice.
The COA rejected Burris' contention that the threshold requirement for admission of gang evidence was not met simply because he was not charged with a gang related crime. The COA noted that the threshold for admission of gang evidence does not require that a defendant be charged with a "gang crime" or conspiracy to commit a crime with a gang member. Here the theory of the State's case was that the killing was related to Burris' gang membership and his role in the gang and that the relationship to the crime was that Burris was a hit man and the execution of the victim was a result of Burris' role in the gang.
The Court determined that the State met the threshold for admissibility of the evidence then noted that the Court was still required to determine whether the evidence should have been excluded because its probative value was outweighed by its unfair prejudice or because it was a needless presentation of cumulative evidence. The COA cautioned that the admission of gang evidence "carries a high potential for unfair prejudice because of its highly incendiary nature... the possibility that a jury may determine guilt by association rather than by its belief that the Defendant committed the criminal act."
The COA summarized the expert's testimony noting that the expert painted the gang, BGF, as a violent organization whose members would generally commit crimes to get respect, that the gang members dealt in narcotics while in prison, that the gang controlled Maryland prisons and that gang members concealed their illicit activities by speaking in Swahili. The expert discussed Burris' graphic tattoos and specifically opined that the tatoos evidenced a propensity to kill. Burris had a "187 and a picture of a weapon" tattooed on his left forearm. The expert told the jury that "187" is a code in California for homicide. He further told the jury that Burris had a tattoo of "death before dishonor" with pistols being fired and other "incendiary" tattoos.
The COA noted that the testimony by the expert as to Burris' gang membership was cumulative of other evidence already introduced through other witnesses. The COA specifically noted that the expert's testimony lacked substantial probative value with regard to Burris' motive to kill to collect a debt because the expert did not testify about the aspect of that linkage. The Court also noted that although the State had originally proffered that the expert's testimony might explain the recantation of certain witnesses' testimony, the expert did not testify in any way to connect Burris' gang membership to the reasons for witnesses recanting. Because the expert's testimony lacked any link to gang membership and witness recantation the evidence lacked any probative value in that regard.
The COA also rejected the State's contention that any error in admitting the prejudicial evidence was harmless, stating that "it would be highly incongruous, were we to hold that the evidence was both prejudicial and harmless."
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COA remands case for hearing on whether defendant can show good cause for failure to appear on trial date of de novo trial in Circuit Court and whether appeal should be re-instated
In Mobuary v. State, the COA concluded that the Circuit Court erroneously denied Mobuary's motion to reinstate his de novo appeal to the Circuit Court from the District Court and ordered that the case be remanded for a determination as to whether Mobuary was able to establish good cause to support his request for reinstating his appeal.
Mobuary had been convicted of second degree assault in the District Court and appealed to the Circuit Court. On the day scheduled for his de novo trial, he was not present. He was in custody and a correctional officer told the judge that the reason for his non-appearance was that Mobuary had refused to be transported from the detention center. The appeal was dismissed. Mobuary, immediately upon finding out that his appeal had been dismissed, contacted his defense counsel's supervisor, advised that he had not refused to be transported and that he still wished to pursue his appeal. His counsel notified the trial judge, requested a continuance of the case until the following day. The request was denied.
On the following day, Mobuary's counsel filed a motion to reinstate the appeal advising the court that his failure to be transported was not of his own choosing and that he was adamant that he wished to pursue his appeal. Mobuary supported his counsel's motion with a handwritten letter to the trial court confirming that he wished to be transported and that his failure to appear on the trial date was not willful.
The COA concluded that looking at the totality of the facts and circumstances known to the trial court at the time of the denial of Mobuary's motion to reinstate the appeal should have caused the trial court to not summarily conclude that there was no good cause to re-instate the appeal. The COA noted that the basis for the finding that Mobuary voluntarily and willfully did not appear for his appeal was clearly a weak basis for the dismissal consisting only of unverified, second hand information. It also recognized that Mobuary's credibility may be suspect because of his interest in a successful outcome of his motion to reinstate the appeal. The COA found, however, that there was sufficient reason to hold a hearing at which Mobuary's credibility could be tested. The COA remanded the case for a determination as to whether Mobuary's submissions and his position were credible and whether they constituted good cause for reinstating the appeal.
The COA further noted that in denying the motion to reinstate the appeal, the trial court cited Maryland Rule 4-345 as its authority for its denial of the motion to re-instate the appeal. The COA expressed its concern about this misplaced reliance on Rule 4-345 as another basis for it conclusion that the trial court abused its discretion by applying the wrong standard rather than looking to Maryland Rule 7-112(m)(3) which governs the applicable standard for dismissal and reinstatement of appeals .
Mobuary v. State (COA 10-24-13)
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