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IN THIS ISSUE

SUPREME COURT OPINIONS
 
No New Opinions

OPINIONS FROM THE MARYLAND COURT OF APPEALS/COURT OF 
SPECIAL APPEALS

Brice v. State - Police voir dire questions

Colvin v. State - claim of improper jury verdict

Mitchell v. MVA - rescinding profane vanity tag

Paige v. State - statement by loss prevention officer not state action

Sibug v. State - courts obligation to make competency finding

Smith v. State - stipulation sufficient to provide disqualifying conviction

OPINIONS FROM THE UNITED STATES COURT OF APPEALS FOR FOURTH CIRCUIT

United States v. Schnittaker - convictions for possession and receipt of child pornography did not violate double jeopardy protection


All case summaries are hot linked to the full opinion
Conviction reversed for failure to ask police question during voir dire

In this case police testimony was a central part of the testimony and the trial court's failure to ask two "police questions" was error.  The questions requested by Brice were as follows: (1) "Would any of you be more or less likely to believe a police officer or deputy solely because he is a police officer or deputy?" and (2) "Would any of you be more likely to believe the testimony of a police officer or deputy as opposed to that of the accused?"

The CSA dealt with three other issues as guidance for the trial court upon remand.  First, finding that permitting testimony regarding the fact that police initially responded to a call for a "domestic disturbance" without more did not constitute inadmissible 404(b) other "bad act" evidence. Second, the CSA held that the knowledge requirement for illegal possession of a regulated firearm (PS 5-144(a)(1)) only requires that the defendant know that he is in possession of the firearm and that there is no language in the statute requiring a defendant to know that is a disqualified from possessing the firearm.  Third, the CSA found that there was probable cause to stop Brice's vehicle for an unsafe turn under Transp. 21-604(c) based upon evidence that the deputy was directly behind Brice and the turn "kind of took [the deputy] off-balance.

  Brice v. State (CSA 11-25-15)

A defect in the return of a verdict is cognizable at any time is cognizable under Rule 4-345(a) at any time, however, return of verdict was not improper

Colvin claimed that the verdicts supporting his convictions were not unanimous because the jury foreman was not polled after she announced the jury's verdicts although all other jurors were polled and, therefore, there was a non-unanimous verdict.  

The CSA concluded that the trial court erred in concluding that Colvin's claim the verdict in his case was improper was not cognizable under Rule 4-345(a) as the court can correct an illegal sentence at any time.   On the merits, however, the CSA rejected Colvin's claim noting that challenges to the legality of a sentence "are limited to those situations in which the illegality inheres in the sentence itself; i.e., there either has been no conviction warranting any sentence for the particular offense or the sentence is not a permitted one for the conviction upon which it was imposed and, for either reason, is intrinsically and substantively unlawful."
  
MVA decision rescinding profane vanity plate upheld

While not a criminal law case, this is an interesting read.  Mitchell was originally issued a vanity plate with the word "Mierda" on the tag. 

Apparently the approving officials at the MVA did not speak Spanish and did not realize that this was the Spanish word for "shit."  In upholding the MVA's authority to rescind the vanity plate the CSA found that the speech was private speech on government property and not government speech, that vanity plates are a "nonpublic forum" and that Maryland's restrictions against profanities on vanity plates pass muster as reasonable and viewpoint neutral.

Custodial Statement to private loss prevention officer was not "state action" and there Miranda was not applicable 

Paige was detained by Macy's loss prevention officers, handcuffed and taken to a security officer where she eventually gave an inculpatory statement.  

The loss prevention officers testified that they had no arrest powers, were not police officers and were not affiliated with any law enforcement agency.  They were not "special police officers."  

The CSA rejected Paige's Miranda claim in an opinion reviewing cases on when there is, or is not, "state action" and finding that here the statement was made prior to the arrival of a police officer and that although the statement was only signed after the arrival of a police officer, even at that stage the officer was "merely present" and did nothing to turn the signing of the statement into "state action."

The CSA also rejected Paige's claim that it was improper to permit the LPO to narrative a surveillance video and offer an opinion as to what was occurring on the video 

Trial court erred in finding defendant competent upon retrial where there was evidence of, and a history of incompetency

The COA held that the trial court has an obligation to determine competency even absent the issue being raised by the parties.  Siburg had been found to be incompetent in the past.  Once he was deemed competent he proceeded to trial on a non-guilty statement of facts, was found guilty but subsequently granted coram nobis relief and a new trial. 

Prior to the beginning of the new jury trial, the trial court, based on the past incompetency finding, was required to make present finding of competency and, based upon the history and Siburg's behavior the trial court erred concluding that Siburg was competent.

Stipulation prior to trial as to disqualifying prior conviction relieved State of obligation to introduce proof of same in its case-in-chief. 

 

Smith challenged the sufficiency of the evidence for his conviction of illegal possession of a firearm contending that the State did not present evidence to the jury of the disqualifying conviction.  

 

Smith had agreed to stipulate to the disqualifying conviction but the prosecutor did not introduce the stipulation during the State's case-in-chief.  The CSA held that by consenting to the stipulation, Smith relieved the State of its obligation to prove that he had previously been convicted of a disqualifying crime during its case-in-chief.

 

The CSA denied Smith's request that it review as plain error whether the prosecutor's statement in closing argument that the defense consisted of "smoke and mirrors" improperly denigrated defense counsel and his role at trial.

 

 

"Double jeopardy claim rejected where facts supporting convictions for possession and for receipt of child pornography were separate and distinct


Schnittker was indicted for receipt of child pornography and possession of child pornography.  Prior to trial he plead guilty to the possession charge but went to trial on the receipt charge.  The COA noted that the guilty plea to possession was clearly limited to images found on a specific hard drive and that the conviction on the receipt charge involved evidence pertaining to images found on a separate and distinct hard drive. 

Because the evidence upon which each conviction was based was different the Fourth Circuit rejected Schnittker's double jeopardy claim concluding that he was not being twice punished for the same conduct but that he was subject to multiple punishments for multiple offenses.

Robert C. Bonsib, Esq. & Megan E. Coleman, Esq.
Representing individuals & organizations in criminal matters in State & Federal Court
RCB MEC

Robert C. Bonsib, Esq.

Fellow, American College of Trial Lawyers

Washingtonian "Top Lawyers"  (2002-2015)

"Best Lawyers in America" - White Collar &

Non-White Collar Criminal Defense

Super Lawyers - Maryland & D.C.

Robert C. Heeney Award by Maryland State Bar Association 

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

40 years of trial experience

301-441-3000 (office)

301-509-5100 (cell)

Email Robert C. Bonsib, Esq.

 Website www.robertbonsib.com

  

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)

Robert C. Bonsib, Esq. | [email protected]| 301-441-3000 |www.robertbonsib.com
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