Major Maryland Cases

04
Oct
2011

Important Maryland Cases: Diehl v. State 294 Md. 466 (1982)

Important Note: The Law Office of Bruce Godfrey takes no position as to the legal, political or social merits of recent “occupy” political demonstrations such as “OccupyBaltimore” or “OccupyWallStreet,” and is not a participant in such demonstrations. The purpose of this post is to discuss law that may be relevant to such news events.  Also, this post contains a professional discussion of language laws and First Amendment obscenity/indecency that is not suitable for most workplaces; you are hereby WARNED of the NSFW character of this article.

In Maryland, one has a clear right to resist an illegal arrest and to shout the word “Fuck” at an officer who is attempting to conduct such an illegal arrest. In a 4-3 decision that has been cited by a number of other courts, the Maryland Court of Appeals held in Diehl v. State, 294 Md. 466 (1982), that the word “fuck” used as an expression of dissent towards illegal conduct did not constitute disorderly conduct and could not be prosecuted at all absent compelling circumstances.

In Diehl, the Defendant was exiting a stopped car when an officer ordered him back into the vehicle.  The Defendant refused, stating that he knew his rights and had the right to leave the scene on foot.  The officer, Chief Gavin, told Diehl that he would be arrested if he did not re-enter the vehicle; Diehl responded with the phrase ultimately at issue in the case, “Fuck you, Gavin.”

The Court of Appeals held that such a phrase could not be prosecuted in itself as a violation of the Maryland disturbing the peace statute, which prohibited “willfully disturb[ing] any neighborhood …. with loud and unseemly noises” or “profanely curs[ing] and swear[ing] or us[ing] obscene language in any neighborhood.” As a matter of statutory construction, the Court of Appeals held that Diehl’s word did not willfully disturb anyone and did not constitute “loud or unseemly noises” since Diehl’s words were clearly communicative speech rather than mere “noises.” Similarly, Diehl’s words were deemed not “profane” in the sense of religiously blasphemous nor “obscene” as defined under Supreme Court obscenity insofar as “Fuck” here expresses anger or indignation rather than erotic interest. Accordingly, there was no basis whatsoever for finding that “Fuck you, Gavin” violated the disturbing the peace statute.

The Court further held that the Diehl’s words did not constitute a provocation to Gavin himself to breach the peace. After reviewing Supreme Court jurisprudence on “fighting words” the Court of Appeals held that Diehl’s use of “Fuck you, Gavin” did not constitute the sort of abusive epithet prohibited as “fighting words” but merely constituted an objection to a meritless order not to leave an automobile under threat of arrest, which the Court noted was an illegal threat given a lack of probable cause for any crime by Diehl.

From the opinion:

“We conclude, therefore, that where, as here, a person is acting in a lawful manner (a passenger getting out of a stopped car) and is the object of an unlawful police order, it is not usually a criminal violation for such person to verbally protest a police officer’s insistence upon submission to such an order.”

Diehl at 479.  The Court of Appeals went on to note that the charge of resisting arrest lacked merit as a matter of law under established precedent, since under Maryland law one had a clear right to resist an unlawful arrest by reasonable force and no probable cause existed for any arrest.

I am not certain that a content-based restriction on “blasphemous” references to the Deity or religious object would survive First Amendment scrutiny.  In many predominantly Catholic parts of the world, religiously-themed vulgarities predominate over sexual and excretory ones.  The word “calisse” (literally meaning “chalice”) and the much stronger “tabernac” (“tabernacle”) are so commonly used as a vulgarity in Quebec that some Catholic bishops actually took out ads explaining that “calisse” and other similar terms referred to Catholic liturgical equipment and concepts and were not merely a curse word.  In Bavaria one can still hear “Sakrament” as a strong oath.  Words like “fuck” and “cunt” which are truly severe in American English are not as shocking among, say, Francophone Quebecers or Irish speakers of English.  I am not a scholar of the right to curse or to blaspheme in America or in Maryland, but would be skeptical that the use of “blasphemy” conveying even the slightest substantive content could be prosecuted.

As for those who would be participating in any “occupy” events, there is a lot to consider. One has some protection of your right to express yourself with vulgarities, if it’s really necessary (and wise?)  One has the right to resist an illegal arrest; that is well-established, though an arrestee might have to win a few appeals to get that right upheld.  And, not to put to fine a point on it, the Chief Judge of the highest court in this state was arrested for political activism at age 16 in lunch-counter sit-ins for civil rights.  Whether any participant in any demonstration wants to spend a few years talking with trial and appellate lawyers – that’s a tougher question.

(None of this constitutes legal advice or creates a lawyer-client relationship with ANYONE – this is mere political commentary.)

Posted by Bruce Godfrey in Major Maryland Cases, 0 comments
02
Apr
2011

Important Maryland Cases: State v. Atkinson, 331 Md. 199 (1993)

Boyce Atkinson was charged with driving while intoxicated in Harford County.  His attorney at trial agreed to with the State to a not guilty statement of facts, recounting that Mr. Atkinson was found slumped over in the driver’s seat with the keys in the ignition and engine off.  Upon being awakened by the officer, Mr. Atkinson emitted a strong, also described as “very strong” odor of an alcoholic beverage.  Per the statement of facts, Mr. Atkinson  declined the officer’s request to perform a field sobriety test and was thereupon arrested.  Mr. Atkinson refused field sobriety tests at the emergency room and was taken back to the station.

Mr. Atkinson was convicted by the trial court upon these facts and was sentenced to 15 days of live time in jail and was fined.  His attorney filed an appeal to the Court of Special Appeals; the Court of Appeals intercepted the case on its own certiorari motion.

The issue considered on appeal was whether the evidence presented proved, to the sufficient standard of proof, that Mr. Atkinson was in “actual physical control of the vehicle” under § 11-114 of the Md. Ann. Code, Transportation article, which definition § 21-902 of that article incorporated in its definition of “drive” for “driving while intoxicated.” Insufficient evidence, per the Court, appeared in the record to the effect that Mr. Atkinson committed actions fairly described by the circular term “drive” or the terms “operate” or “move” included within the statutory definition of “drive” under § 11-114; only the fourth definition of “drive,” being in “actual physical control of the vehicle,” might apply.

The Court discussed prior precedent that had not specifically addressed the issue of what behavior might constitute being in “actual physical control,” due to a charging defect in that prior case’s charging document, and another precedent where circumstantial evidence allowed a finding that the drunk motorist’s vehicle – with the engine off but hot, the lights on and the gear shift in drive – had in fact been operated very recently while the motorist was still drunk.  Accordingly, the court found that that case was no guidance to the question of when a motorist was in “actual physical control” of a vehicle, since that four definition was not needed for the conviction of that motorist.

The Court discussed how a number of other states defined similar language in their drunk driving statutes, noting diverse definitions.  Some seem to be motivated by a policy of deterrence and defined the term very broadly.  The Court rejected this approach, finding that to convict those who merely sat in the driver’s seat in possession of ignition keys would effectively create a new crime that the General Assembly of Maryland did not create.  From the decision, “We do not believe the legislature meant to forbid those intoxicated individuals who emerge from a tavern at closing time on a cold winter night from merely entering their vehicles to seek shelter while they sleep off the effects of alcohol.”

The Court rejected the approach of Arizona’s highest court, which allowed for motorists who were already intoxicated to pull over and sleep off a drunk without fear of reprisal, noting that that approach might encourage drunk drivers to test their skills first before deciding to pull over.  The Court noted that a number of factors may influence whether a motorist is considered in “actual physical control,” including:

1) whether or not the vehicle’s engine is running, or the ignition on;

2) where and in what position the person is found in the vehicle;

3) whether the person is awake or asleep;

4) where the vehicle’s ignition key is located;

5) whether the vehicle’s headlights are on;

6) whether the vehicle is located in the roadway or is legally parked.

The Court concluded that there was not evidence beyond a reasonable doubt that Mr. Atkinson was in actual physical control of his vehicle, and on that basis reversed the conviction. The Court warned, however, that its decision was not an invitation to motorists under the influence to test their luck on the roads and sleep off a night of drinking, and that evidence that the vehicle already had been operated, moved or driven while the motorist was already intoxicated could still lead to a conviction.

In my view, this decision is a fair reading of the statute involved and the balancing test is wise. Nonetheless, I think that there should be a public policy in favor of mitigating the DWI penalty when motorists who conclude that they actually had one too many pull off the road and shut the vehicle down, and it’s better to pull oversooner than to try to make it to the next exit, find a motel or all-night diner and exit the vehicle once the motorist has reached that unfortunate conclusion. If the motorist is tipsy, do we want her off the road here and now, or later three miles down the road at the Motel 6? I’d favor allowing such drivers to face a fine only, or a nominal jail sentence of 1-2 days, not because drunk driving is mild but because stopping drunk driving is important. I suspect that a decent number of drivers conclude only after they start driving that between their BAC and their fatigue, they should be off the road; they should be encouraged to pull over soonest with mitigated criminal exposure.

Atkinson indicated that the latter point is something for a legislature to consider, not an appellate court, though a trial court may and must consider the overall conduct of a motorist when it imposes any sentence and attempting to mitigate the effects of a bad choice certainly merits a mitigated sentence.

Posted by Bruce Godfrey in Major Maryland Cases, Traffic
20
Mar
2011

Important Maryland Cases: State v. Hicks, 285 Md. 310 (1979)

This post is one of a series addressing major cases in Maryland’s appellate courts that, in the author’s view, every Maryland practitioner of law should now.

Few criminal cases in Maryland have had the practical impact for prosecutors and for defense counsel that State v. Hicks, 285 Md. 310 (1979) has had since that decision over 30 years ago.  Every criminal defense attorney and every prosecutor should know its holding by heart, even those that don’t practice primarily in Circuit Court, the primary forum affected by the holding of Hicks affirming the State’s administrative duty to bring a defendant to trial with the mandated timeframe and a severe remedy for violations of that requirement.

Harley Hicks was in 1978 serving jail time in Delaware and was brought to Wicomico County for trial on charges and was found guilty on those charges, and was sentenced to time to run consecutive to his Delaware sentence.  While awaiting return to Delaware, the State filed yet additional charged against Hicks through an eight-count indictment.  Shortly after the filing, Hicks was returned to Delaware to serve out the rest of his Delaware term; the Public Defender entered his appearance on April 24, 1978 for Hicks and the clerk set a trial date for August 8, 1978after the P.D.’s entry of appearance.

At the trial date, the State requested a postponement on the grounds that the Defendant was in Delaware, not Maryland, and that the trial could not proceed.  The Circuit Court granted that postponement.  On August 25, 1978, the Public Defender moved to dismiss the indictment on the grounds that the 120-day rule set by statute and court rule was mandatory and only “extraordinary” cause per the rule could justify a postponement, which cause was allegedly not present.  The Circuit Court agreed and dismissed the indictment.

The Court of Appeals noted that it had previously viewed the statute setting the 120-day trial date as merely “directory,” i.e. not mandatory, since the General Assembly had not mandated the dismissal of charging documents violating the 120-day rule by explicit language.  The Court noted that it had passed court rule 746 establishing the same timeline as the General Assembly had set, but that the court’s rule was in fact mandatory and was justified under the court’s state constitutional authority to govern the administration of justice.

The Court found, however, that the trial court erred insofar as it concluded that the State had failed to show extraordinary cause; the absence of the Defendant rose to that level of cause and the State’s failure to extradite or otherwise bring the Defendant into court did not weaken that extraordinary cause.  The Court noted that the court rule is not implicated by Sixth Amendment constitutional jurisprudence:

The time limits prescribed by Rule 746 are not, however, the measure of the Sixth Amendment right to a speedy trial. While the rule was adopted to facilitate the prompt disposition of criminal cases, it stands on a different legal footing than the Sixth Amendment’s constitutional right to a speedy trial.

The Court reversed the prior decision and remanded the matter to the trial court to reinstate the indictment.

A strong dissent by Judge Davison, joined by two of the other six judges of the Court of Appeals, urged that the State had not shown extraordinary cause insofar as the State did have the power to compel the presence of the Defendant and elected or failed to do so, and that to view the 120-day statute as having less force than the Sixth Amendment in fact undercut the speedy trial rights of all persons including Hicks.

On a motion for reconsideration by the State a month later, the Court further stated that, due to prior ambiguities in the interpretation of the applicable rules, the holding in Hicks was to be applied only prospectively to cases with defendants making a first appearance in court or their attorneys entering an appearance after the date of the supplemental opinion.  The Court also stated that dismissal of a charging document for a failure to try the case timely would not be appropriate in cases where the Defendant had assented to a later trial date, or in cases where the trial date was within 120 days but the Clerk had merely taken longer than 30 days to set the date, also required by the applicable rule.

What do we as practitioners take away from Hicks?  Hicks is not a Sixth Amendment speedy trial right case but a court administration case applying mandatory rules authorized under the power of the courts under Maryland’s Constitution to administer their own affairs.  The mandatory trial date, almost always referenced as the “Hicks date”, is now 180 days after the earlier of the defendant’s appearance or the entry of appearance of counsel under Md. Rule 4-271.  But Hicks remains a critical case.

I remain skeptical of the Court’s reasoning.  On the one hand, the Court seems to describe its own Rule as the fulfillment of legislative intent.  On the other hand, the Court seems to be imposing severe results – dismissal – for violations of its own rule when the statute did not require such a drastic result for a failure to show “extraordinary cause.”  Does this case constitute judicial obedience to statute or an aggressive judicial branch power grab in excess of what the Constitution and applicable statute required?  Either way, neither the General Assembly nor the Court of Appeals has seen fit to recalibrate any separation of powers questions in this case; Hicks remains very good law in Maryland.

Your blogger is a total Homicide: Life on the Streets fan.  (Note: the FTC requires me to disclose the attached link to the left is an affiliate link to Amazon, which occasionally pays this blog a commission for sales of goods.)  In one of the final episodes of the series, Detective Tim Bayliss learns to his horror that a sexual predator got released from custody and his charges dismissed due to the failure of the State to get its necessary witnesses and the Defendant into court within the Hicks date.  Bayliss later executes the predator on the streets of Baltimore, and confesses to that killing to his former partner Frank Pembleton in a Homicide movie special after the end of the series.

On a lighter note, I recall hearing about (though not confirming) the ire of a West Virginia resident who objected that he deserved better from the State of Maryland than to be subjected in its official correspondence to the abusive reference of the “Hick’s date.”  I don’t know whether this is a true story but dear Heaven it deserves to be true.

Posted by Bruce Godfrey in Criminal Law, Major Maryland Cases
19
Mar
2011

Important Maryland Cases: State v. McCallum, 321 Md. 451 (1991)

This is the first in a series of important legal cases which, in my judgment as a practicing Maryland attorney, Maryland attorneys should simply know cold, be able to cite them almost from memory and have them as close to their fingertips as we do major U.S. cases like Brown v. Board of Education or Roe v. Wade.  Maryland is a sovereign state with its own legal tradition; that fact deserves intellectual and civic respect in its own right.  The emphasis in this series will be on cases most practically useful to legal practitioners, as opposed to more theoretical cases or cases dealing with issues lacking practical significance in the modern era.

In this series, citations will be to the Maryland Reports and Maryland Appellate Reports volumes for, respectively, the Court of Appeals of this sovereign State and the Court of Special Appeals, our intermediate court.  It is customary to cite also to regional reporters per the diktat of the Blue Book, a legal style manual produced by some non-Maryland law schools located, inter alia, in Cambridge, Massachusetts.  This series will not cite to the Atlantic Reporter just as I would not cite to a Supreme Court case volume that combined our nation’s legal decisions with those of France, Canada, Germany and Ireland.

An important case for traffic and criminal defense attorneys to know is State v. McCallum, 321 Md. 451 (1991).  In McCallum, the Court of Appeals was faced with the conviction of a motorist for driving while suspended and sentenced to ninety days of actual jail time.  The issues on appeal by the State were whether the trial court had erred, as the Court of Special Appeals had ruled, in denying a scienter/mens rea jury instruction and in allowing the jury to see the motorist’s extensive driving record replete with highlighted marks, rather than merely relevant excerpts thereof.

The Court ruled on the jury instruction issue and did not rule formally on the evidentiary issue, giving only a general warning to the trial court to provide only relevant evidence to the jury on a future trial.  In a 4-1 decision (two members of the court not participating), the Court focused on three factors:

  • the inferred punitive intent of certain suspensions for failing to take a breath test, pay a court fine or the like;
  • the penalty allowing for a year in jail on a first offense and up to two years on a subsequent offense; and
  • the fact that a motorist without actual knowledge of a suspension simply would not be in the  state of mind to avoid driving

and concluded that the driving while suspended statute was largely punitive in character, as opposed to a mere regulatory enactment for the cause of the public welfare.  While public welfare enactments can be enforced under a standard of strict liability for violations (my example: not knowing you are speeding is no defense), punitive statutes require a showing of guilty knowledge of the facts or “mens rea” and therefore the Defendant was entitled to a jury instruction on the issue of mens rea.  The Court of Appeals upheld the opinion of Court of Special Appeals, which had reversed the conviction.

A concurrence by Judge Chasanow, joined Chief Judge Murphy, discussed how willful or blind ignorance of facts could constitute guilty knowledge.  Judge McAuliffe dissented, expressing the concern that those who were most responsible in their follow-through would be the most vulnerable to prosecution while those who were negligent would be most rewarded.

In my view, both the State and the defense bar overread McCallum frequently ; the case allows a mens rea instruction and affirmed the element of mens rea but does not provide much guidance as to how much guilty knowledge constitutes guilt for driving while suspended.  In the specific facts of this case, the Defendant had spent significant time in jail, missed suspension notices and had not provided a forwarding address to the MVA; most DWS defendants are both “better” and “worse” than Malcolm McCallum was in his 1991 trial.  Most DWS defendants don’t have current incarceration as both a mitigating and potentially aggravating factor.

Finally, most DWS defendants are charged under 16-303(h), which provides a substantially lower maximum penalty of 3 points, $500 in fines and 60 days in jail than does 16-303(c) with 12 points, 1 year and $1000.00 in maximum fines or more.  The “c” charge is for major suspensions while the “h” charge is for suspensions arising out of missing a court date or failing to pay a court fine in traffic court.  Most motorists found guilty of the fairly common “h” charge do not see actual jail, but are given probation before judgment and a minor fine or perhaps are convicted without a jail sentence.  While this “h” charge would apparently be punitive under the analysis of the court, the penalty is actually lower for the “h” charge than for suspensions for e.g. having a medical impediment to driving, for which suspensions the more severe 16-303(c) penalties apply.  Yet one would hardly consider a suspension for epilepsy or blindness to be “punitive” as a punishment for medical problems, rather than merely protective of the public welfare.

I would hope that Apple or Google would solve this problem.  There ought to be an app for that, i.e. an email service or other insta-check to confirm valid status on a vehicle or license.  On the iPhone sitting next to my laptop, there is a camera that can take a picture of a bar code and report pricing and availability on the product; I would love an app that could photograph a driver’s license card or vehicle registration and report back whether the paperwork is out of status.  Everyday I am in traffic court, I see motorists who are charged with driving a vehicle with suspended registration, 95%+ of the time due to the failure to complete emissions testing timely.  Any entrepreneurial takers?

Posted by Bruce Godfrey in Major Maryland Cases, Traffic, 1 comment