CRIMINAL LAW & PRACTICE NEWSLETTER
Compliments of Robert C. Bonsib, Esq. & Megan E. Coleman, Esq.
January 31, 2016
Representing individuals and organizations in the State & Federal Courts
in Maryland and the District of Columbia
IN THIS ISSUE
SUPREME COURT OPINIONS
Musacchio - sufficiency review based upon statutory elements and not jury instructions; defense of statute of limitations must be raised at trial level
Montgomery v. Louisiana - Miller v. Alabama decision retroactive and binding on state collateral review courts
Kansas v. Carr - capital sentencing jury instructions; joint capital sentencing hearing
Hurst v. Florida - Florida's capital sentencing procedures violates Ring v. Arizona
OPINIONS FROM THE MARYLAND COURT OF APPEALS/COURT OF
Warren v. State - double jeopardy bars second trial for sexual abuse of minor
Horton v. State - improper cross-examination harmless; prior consistent statement and sentencing factors issues not preserved
State v. Gutierrez - evidence sufficient to support convictions based upon constructive and joint possession
MVA v. Gonce - officer can request both drug and alcohol concentration tests
Yonga v. State - writ of actual innocence not available to one who pleads guilty
Taylor v. State - deaf defendant has right to confront interpreter who participated in his police interview
Seward v. State - State cannot appeal granting writ of actual innocence
OPINIONS FROM THE UNITED STATES COURT OF APPEALS FOR FOURTH CIRCUIT
Williams v. United States - Rule 11(c)(1)(C) plea not reviewable on appeal
United States v. Moore - jury instruction did not constructively amend indictment
All case summaries are hot linked to the full opinion
Sufficiency of evidence review focuses on statutory elements of offense and not elements as described in jury instruction; failure to raise statute of limitations defense not subject to plain error review
The Supreme Court held that in assessing a sufficiency challenge when a jury instruction adds an element to the charged crime and the Government fails to object a sufficiency challenge should be assessed against the elements of the charged crime, not against the erroneously heightened command in the jury instruction.
A statute-of-limitations defense becomes part of a case only if the defendant puts the defense in issue. When a defendant presses a limitations defense, the Government then bears the burden of establishing compliance with the statute of limitations by presenting evidence that the crime was committed within the limitations period or by establishing an exception to the limitations period. When a defendant fails to press a limitations defense, the defense does not become part of the case and the Government does not otherwise have the burden of proving that it filed a timely indictment. When a defendant does not press the defense there is no error for an appellate court to correct-and certainly no plain error.
Miller v. Alabama is retroactive and binding on state collateral review courts
Montgomery has spent 46 years in jail serving a life without parole sentence for a crime he committed when he was 17 years old.
Miller v Alabama 132 S.Ct. 2455 (2012), the Supreme Court did not foreclose a sentencer's ability to impose life without parole on a juvenile, but the Court explained that a lifetime in prison is a disproportionate sentence for all but the rarest of children, those whose crimes reflect "'irreparable corruption.'
The Supreme Court now holds that
Miller announced a substantive rule of constitutional law. The conclusion that
Miller states a substantive rule comports with the principles that informed
Teague sought to balance the important goals of finality and comity with the liberty interests of those imprisoned pursuant to rules later deemed unconstitutional.
Miller concluded that the sentence of life without parole is disproportionate for the vast majority of juvenile offenders raises a grave risk that many are being held in violation of the Constitution.
The Court further held that when a new substantive rule of constitutional law controls the outcome of a case, the Constitution requires state collateral review courts to give retroactive effect to that rule.
Capital sentencing hearings jury not required to be instructed that mitigating factors need not be proven beyond a reasonable doubt; jointly held capital sentencing hearings approved
The Supreme Court reversed the Kansas Supreme Court's decision which vacated death penalty sentences holding that the instructions used in
sentencing hearings violated the Eighth Amendment because they failed to affirmatively inform the jury that mitigating circumstances need only be proved to the satisfaction of the individual juror in that juror's sentencing decision and not beyond a reasonable doubt and noted that its case law does not require capital sentencing courts "to affirmatively inform the jury that mitigating circumstances need not be proved beyond a reasonable doubt."
The Supreme Court also rejected the holding of the Kansas Supreme Court that the death sentences of two brothers had to be vacated because of the trial court's failure to sever their sentencing proceedings and did not violate the brothers' Eighth Amendment right "to an individualized capital sentencing determination."
Florida's capital sentencing procedures violates
Ring v. Arizonia
A penalty-phase jury recommended that Hurst's judge impose a death sentence. Notwithstanding this recommendation, Florida law required the judge to hold a separate hearing and determine whether sufficient aggravating circumstances existed to justify imposing the death penalty. The judge so found and sentenced Hurst to death. The Supreme Court held that this sentencing scheme was unconstitutional and that the Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury's mere recommendation is not enough.
Arizona, the Supreme Court concluded that Arizona's capital sentencing scheme violated
rule because the State allowed a judge rather than a jury to find the facts necessary to sentence a defendant to death and here it concluded that for the same reasons, Florida's capital sentencing scheme was also unconstitutional.
Rule 11(c)(1)(C) plea is not reviewable upon appeal except when based upon sentencing guidelines
Williams sought to appeal her sentence which was based upon Rule 11(c)(1)(C) plea agreement. The Fourth Circuit held that a sentence imposed pursuant to a Rule 11(c)(1)(C) plea may be reviewed only where "that agreement expressly uses a sentencing guideline range applicable to the charged offense to establish the term of imprisonment."
No constructive amendment of the indictment based
upon jurv instructions
According to the defendants, the trial court's jury instructions allowed the jury to convict them under one provision of § 1958(a), which prohibits the use of a "facility" of interstate commerce in connection with a murder for hire, while they were charged only under another, covering "travel" in interstate commerce. No objection was made to the instructions at the trial level.
While acknowledging that in some cases the inclusion of the "facility" prong of the statute, when that is not specifically charged, may create a problem, in this case when the jury instructions, the verdict form, and the arguments and evidence presented at trial are viewed in their totality, the Fourth Circuit held that the jury could not reasonably have concluded that it was free to convict the appellants under the uncharged, undefined facilities prong of the murder-for-hire statute.
Double jeopardy bars second trial for
child abuse counts alleged to have occurred during time period charged in indictment in first trial
Williams was tried and convicted upon an indictment that charged sexual abuse of a minor from July 1, 2008 through December 31, 2012 and received a sentence of 15 years. During the trial, additional evidence was discovered establishing other specific acts of child abuse that occurred within that time frame. The State unsuccessfully sought to use this evidence in the first trial (photographs confirming the fact of specific acts of child abuse). The trial court prohibited the State from introducing the images on the basis that the defendant had no notice of the evidence nor an opportunity to challenge the newly discovered evidence.
In a lengthy discussion of double jeopardy principles, when jeopardy attaches and how it applies to a continuing offense charge such as sexual
abuse of a minor, the CSA held that jeopardy attached with the swearing of the jury in the first trial and "[t]
he events depicted by the retrieved images were part of the extant atmosphere at the time of the first trial. It was the historic behavior of [Warren] himself for which the [he] was in jeopardy. The modality of the proof of that historic behavior is incidental. The subsequent use of this behavior against [Warren] at the second trial obviously placed him twice in jeopardy. The second trial itself in its entirety should have been constitutionally barred."
Improper cross-examination about another witness' motive to lie is harmless error; objection to introduction of a prior consistent statement not preserved for appellate review; contention of improper sentencing considerations not preserved
While the CSA found that it was harmless error to ask Horton what motive another witness would have to lie, the CSA made clear that cross-examination of a witness about whether another witness' testimony was a lie or where the witness was asked to speculate about the motive of another witness to lie is improper and objectionable.
The specific objectionable questions put to Horton were:
Q. "So help me understand, Mr. Horton. What motivation would Tia Grannison have to come into this courtroom, sit where you are and testify to this fabrication?"
Q. "Mr. Horton, what motivation would [Shanelle] Hopkins have to come into this courtroom and identify you?"
While the CSA noted that it is proper to ask a witness about the witness' own motive to testify falsely, questions about the motivation of other witnesses are, in most instances, improper and the objections to those questions should have been sustained. However, under the totality of the circumstances, the CSA concluded that the errors in this regard were harmless.
Horton's objection to the State's use of a prior statement of a witness was not made in the trial court upon the basis that he argued on appeal, to wit: that any statements made to police by the witness after the crime would have been inadmissible because they were given after her involvement in the crime and therefore were statements made after she had a motive to fabricate. Inasmuch as this contention was not made at trial, it was not been preserved for appellate review.
Horton further contended that the sentencing judge's comments about her personal family experiences with respect to a cousin that had been shot and other comments regarding the impact of Horton's crimes on the victims and their families were improper. The CSA noted that there was no objection at the time of the sentencing hearing and, therefore, this issue was not preserved for appellate review.
Evidence sufficient to support constructive and joint possession convictions
Police executed a search warrant at the defendants' apartment. The apartment was small and compact and contained a single bath, a galley-style kitchen and one bedroom, although the living room contained at least one other bed. When police entered the apartment, they encountered Hector Gutierrez and Edgar Perez-Lazaro. The lead investigator for the search, initially found baggies, about which he later testified are commonly used for packaging drugs, in plain view on a table in the living room. Gutierrez and Perez-Lazaro contemporaneously were read and waived their Miranda rights; Gutierrez stated that he slept in the living room, while Perez-Lazaro replied that he slept in the back bedroom.
During the search police also discovered individually wrapped bags of a white powdery substance, later identified at trial as cocaine hydrochloride, stacked together in the front of the bathroom cabinet, visible immediately upon its opening, discovered in a hallway closet baggies of a white powdery substance wrapped in foil, later identified as cocaine hydrochloride, as well as two passports and a receipt with Gutierrez's name, on a shelf.
A "grinder" was found on the kitchen windowsill which, at trial, was testified to by an expert in the field of distribution and packaging of CDS, as a device that "breaks [cocaine] down, it breaks down the crystal part of it so it can get it to more of a powder." Various other plastic baggies were also found on the kitchen windowsill. Another ten baggies of white powdery substance, identified later as cocaine hydrochloride, as well as a loaded black Smith and Wesson 9MM semiautomatic handgun with no serial number, were also recovered from under the kitchen sink and were visible upon opening the cabinet.
A pay stub belonging to Perez-Lazaro and dated May 18, 2012, was recovered from the back bedroom.
Both Gutierrez and Perez-Lazaro were indicted for possession not only of a controlled dangerous substance, but also with intent to distribute a controlled dangerous substance, as well as possession of a firearm with a nexus to drug trafficking.
The COA, in a 4-3 decision that provides an extensive review of prior constructive possession cases, reversed the unreported decision of the CSA that had found the evidence insufficient. The COA opinion held that because both defendants had a possessory interest in the apartment such that they had the ability to exercise dominion and control over the seized items and because the items were within proximity to the defendants and were in common areas of the apartment, that the evidence was sufficient to support a finding that both jointly and constructively possessed the contraband and firearm.
A police officer may request both an alcohol concentration test and a drug test where there are reasonable grounds to suspect a driver is impaired
In this opinion the COA interprets Md. Code Ann., Transp. (1977, 2012 Repl. Vol., 2015 Supp.) ("TR") § 16-205.1,1 commonly known as the "implied consent, administrative per se law," which provides a basis for the automatic suspension of the licenses of drivers who refuse to submit to testing for alcohol and drugs.
The COA held that under TR § 16-205.1(b)(2) and (3), a driver is subject to an automatic license suspension for a refusal to take a drug test where the driver has taken an alcohol concentration test and a law enforcement officer has reasonable grounds to believe that the driver was driving while impaired by drugs. It noted that TR § 16-205.1's plain language, purpose, and legislative history lead it to "the inescapable conclusion that under TR § 16-205.1(b)(2) and (3), a law enforcement officer with reasonable grounds to suspect impairment may request that a driver take both an alcohol concentration test and a drug test, and the driver is subject to an automatic license suspension for a refusal to take the second test."
A writ of actual innocence is not available to one who has plead guilty
In 2006 Yonga plead guilty to a third degree sex offense. Later, after contending that the complainant was recanting her original allegations, he unsuccessfully sought relief via a writ of actual innocence
In rejecting Yonga's writ, the COA held that the history of the legislation, its implementation of the statute through its Rules as well as its understanding of what "actual innocence" means, juxtaposed against what a guilty plea involves, support the COA's conclusion that a person who has pled guilty may not later avail himself or herself of the relief afforded by the Petition for a Writ of Actual Innocence.
An accused has the right to confront the interpreter who interpreted his statements during a police interview
With the aid of sign-language interpreters, detectives interrogated Taylor for almost five hours. Over Taylor's objection at trial, the court admitted a recording that included audio of an interpreter's English-language interpretations of Taylor's sign-language statements.
The CSA agreed that pursuant to Crawford v. Washington, 541 U.S. 36 (2004), the admission of the interpreter's statements violated Taylor's constitutional right to be confronted with the witnesses against him and held that a deaf criminal defendant has the constitutional right to confront at trial the interpreter who interpreted his statements made during a police interrogation and which the State sought to introduce during his trial.
In this 69 page opinion, the CSA provides a useful and detailed discussion of
The CSA also held that the trial court committed reversible error in restricting trial counsel from cross-examining the parents of the child victims about whether they had consulted a civil attorney and held that upon retrial, the trial court, must permit Taylor to make a basic, threshold inquiry into whether the complainants' parents have asserted or considered asserting civil claims relating to the alleged abuse of their children
State cannot appeal the granting of a writ of actual innocence
Maryland Code (2001, 2008 Repl. Vol., 2015 Cum. Supp.), § 8-301 of the Criminal Procedure Article ("CP") allows a person convicted of a crime to file a petition for writ of actual innocence under certain circumstances and seek a new trial. In
Douglas v. State
, the COA held that an order denying such a petition is appealable because it is a final judgment. 423 Md. 156, 170-71, 31 A.3d 250, 258-59 (2011). In
COA resolved a question left open by the decision in Douglas, that is does an order granting such a petition constitute a final judgment, such that the State can appeal it directly? The COA concluded that the procedural context is materially different when a court grants a petition for writ of actual innocence, the order is not a final judgment, and the State cannot directly appeal it.
Robert C. Bonsib, Esq. & Megan E. Coleman, Esq.
Representing individuals & organizations in criminal matters in State & Federal Court
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
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.
Robert C. Bonsib, Esq. | email@example.com| 301-441-3000 |www.robertbonsib.com
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