CRIMINAL LAW & PRACTICE NEWSLETTER
Compliments of Robert C. Bonsib, Esq. & Megan E. Coleman, Esq.
Representing individuals and organizations in the State & Federal Courts
in Maryland and the District of Columbia
IN THIS ISSUE
SUPREME COURT OPINIONS
No new opinions
OPINIONS FROM THE MARYLAND COURT OF APPEALS/COURT OF
Chisum v. State - standard of review of sufficiency of evidence in a court trial
Smallwood v. State - claim of actual innocence not available to one found not criminally responsible
Collini v. State - Batson violation remedy improper
Bircher v. State - supplemental jury instruction during jury deliberations
OPINIONS FROM THE UNITED STATES COURT OF APPEALS FOR FOURTH CIRCUIT
Robinson v. United States - lawful possession of a firearm does not, by itself, justify a Terry frisk
Berry v. United States - failure to apply categorical approach requires re-sentencing in failure to register as a sex offender case
Adams v. United States - felon in possession convictions vacated on basis of actual innocence
United States v. McLaughlin - appeal waiver in plea agreement
All case summaries are hot linked to the full opinion
Standard of appellate for review of sufficiency of the evidence is the same in a court trial as in a jury trial
Chisum challenged the legal sufficiency of the evidence to support the convictions carrying a weapon openly, carrying a concealed weapon and attempted second-degree murder.
Judge Moylan, in a lengthy opinion, noted that in a jury trial, the scope of the legal sufficiency issue is clear. Maryland Rule of Procedure 4-324 requires an appellate court to review the legal sufficiency of the evidence if, at the close of all of the evidence, a timely motion for a judgment of acquittal has been made by the defendant.
Judge Moylan observed that where the factfinder was a judge, and not a jury of 12 persons, the question is one of whether appellate review of the evidence is broader in a bench trial than it is in a jury trial.
Judge Moylan informed that there is one big and obvious difference between the review of a verdict on the evidence in a jury trial and in a court trial. A review of a jury's verdict is absolutely contingent on an underlying motion for a judgment of acquittal, however, review on the evidence of a judge's verdict, on the other hand, is automatic.
Concluding, the CSA held that with respect to the appellate review of a criminal conviction, the State's burden of production is the same in a jury trial and in a bench trial. In examining the satisfaction of that burden of production, the test of the legal sufficiency of the evidence to support the conviction is the same in a jury trial and in a bench trial.
Claim of "actual innocence" rejected where defendant entered plea of not criminally responsible
The circuit court denied Smallwood's petition for writ of actual innocence ruling that a writ of actual innocence was not available to Smallwood because he "is not claiming, and cannot claim that he is actually innocent. Rather, he is maintaining that he is actually guilty, but not criminally responsible for the act of murder." After reviewing legislative history of CP § 8-301, the circuit court observed: "Nothing about the legislative history of the provision suggests that it was intended to include a claim made decades after a conviction that a defendant was guilty of the crime, but not criminally responsible for its commission.
The CSA affirmed the circuit court and held that a person who does not expressly deny committing the act that led to the conviction is not eligible for a writ of actual innocence.
Circuit Court erred in its remedy of Batson violation
The CSA held that the circuit court erred in seating a properly struck prospective juror in an attempt to remedy a purported
Batson violation and reversed the judgment.
The opinion stated that "[h]aving established that the court found that prospective juror 42 was not improperly struck, we turn to the question of whether it was appropriate to seat that prospective juror for a
Batson violation involving prospective juror 22, whom the court had found was improperly struck by the defense. And, we begin this analysis by noting, once again, "the importance of the peremptory challenge," which the Court of Appeals has said, "requires that any significant deviation from the prescribed procedure that impairs or denies the privilege's full exercise is error that, unless waived, ordinarily will require reversal without the necessity of showing prejudice."
Here, the CSA found that Collini was denied the full use of his peremptory strikes when the court seated prospective juror 42, whom Collini had struck and that the trial court's decision to seat prospective juror 42, a properly struck prospective juror, failed to achieve any of, what the CSA has called, the "underlying purpose" of
Batson that would justify abridging Collini's right to fully exercise the peremptory strikes allotted to him by law.
The CSA continued that the trial court, once having determined that a
Batson violation had occurred, when prospective juror 22 was struck, could have seated that prospective juror (
see Chew v. State, 71 Md. App. 681, 704 (1987)); or it could have recalled all of the previously struck jurors and restarted the jury selection process from before the pattern of improper striking began (
see Jones v State, 343 Md. 584); or it could have seated one of the seven remaining prospective jurors that, according to the record, were still available. Finally, if the foregoing remedies were no longer available, the trial court could have impaneled a new venire and begun the process of jury selection anew.
The CSA concluded with an observation that it felt "impelled to take note of another troubling feature of the jury selection procedure conducted in this case. It appears that, when peremptory challenges were made, the exercise of those challenges occurred, according to the trial transcript, in "open court" and thus, presumably, before those prospective jurors that were ultimately struck. Consequently, the court's decision to seat a properly struck juror (number 42) placed, on the jury, an individual that knew she had been struck by the defense. She might have then assumed unfairly so in light of the decision to seat her, notwithstanding defense counsel's strike. Such an assumption might have affected her view of defense counsel and possibly the defendant himself."
Supplemental jury instruction on transferred intent given during jury deliberation proper
The question before the COA, as presented in the State's certiorari petition, was whether the CSA erred in finding an abuse of discretion in the trial court's decision to provide a supplemental instruction during jury deliberations on the doctrine of transferred intent and the trial court sought to ameliorate any potential prejudice by allowing defense counsel to supplement his closing argument.
The issue of transferred intent in the instant case arose after testimony was adduced that Bircher shot Gary Hale and David Garrett. Mr. Hale was hit once in the arm and survived, while Mr. Garret was struck eight times, in the head behind his right ear, his right shoulder, the right side of his back, his right hip, his right lower leg and left lower leg. There was no dispute that Bircher was the shooter. In closing, Bircher's counsel argued that Bircher did not intend to shoot Mr. Garrett; that Bircher acted in self-defense, and that Bircher did not intend to hit anyone.
During jury deliberations, the court received a note stating that, "We are confused on the term 'intent.' Does it mean to kill a person or the specific person. Can you please clarify?
The COA held that the trial judge did not abuse his discretion in giving the supplemental instruction on transferred intent in the instant case because the evidence generated the instruction and the instruction did not prejudice Bircher.
Mere possession of a firearm, in a state that broadly permits its citizens to carry firearms, does not give rise to reasonable suspicion that the person is dangerous for Terry purposes
Robinson did not contest the validity of the initial traffic stop as there was evidence of a seatbelt violation that justified the stop regardless of whether the officer actually was motivated by an anonymous tip. For that reason the Fourth Circuit noted that the only question that it had to decide was whether the subsequent frisk was lawful - that is, whether the officers had reasonable suspicion that Robinson was "armed and dangerous." It further noted that its inquiry was narrower still because Robinson did not dispute reasonable suspicion that he was "armed," and chose not to contest the reliability of the anonymous tip to the police so that all that remained for the Fourth Circuit to decide was whether there was reasonable suspicion that Robinson was "dangerous." While observing that in a different time or jurisdiction, it might well have found "reasonable suspicion," i.e. if this had occurred in a jurisdiction where
carrying a concealed firearm were prohibited by local law a suspect concealing a gun in his pocket by definition would be presently engaged in criminal activity involving a deadly weapon. In this case, however, it did not reach that conclusion.
The Court of Appeals concluded that in states like West Virginia, which broadly allow public possession of firearms, "reasonable suspicion" that a person is armed does not by itself give rise to "reasonable suspicion" that the person is dangerous for Terry purposes. Where the state legislature has decided that its citizens may be entrusted to carry firearms on public streets, the court may not make the contrary assumption that those firearms inherently pose a danger justifying their seizure by law enforcement officers without consent.
The Fourth Circuit, using the categorical approach, holds that the district court erred in determining that Berry was a tier III sex offender
The district court calculated Berry's United States Sentencing Guidelines ("Guidelines") range as if he were a tier III sex offender. Berry challenged that tier designation. Using the categorical approach and comparing Berry's state court conviction for endangering the welfare of a child to the generic offenses enumerated in 42 U.S.C. § 16911(4)(A), the Fourth Circuit held that the district court erred in deeming Berry a tier III offender and, therefore, vacated Berry's sentence and remand the case for re-sentencing.
The New Jersey child endangerment statute under which Berry was convicted, N.J. Stat. Ann. § 2C:24-4(a) (2002), can encompass conduct, such as repeated nudity and willing failure to provide proper food, that clearly falls outside of the generic crimes of aggravated sexual abuse, sexual abuse, and abusive sexual contact, all of which require actual or attempted physical contact. Because the New Jersey statute sweeps more broadly than the generic crimes listed in 42 U.S.C. § 16911(4)(A), Berry's New Jersey conviction is not "comparable to or more severe than" those crimes. 42 U.S.C. § 16911(4)(A). Accordingly, the Fourth Circuit held that Berry cannot properly be classified as a tier III offender, and the district court thus erred in so classifying him. Because that error led to an improper calculation of Berry's base offense level under the Sentencing Guidelines, Berry's sentence was procedurally unreasonable and was vacated.
Felon-in-possession convictions vacated on claim of actual innocence
Adams argued that he was actually innocent of a § 922(g) offense because he was not, at the time of the offense, a convicted felon. The Fourth Circuit agreed and vacated the convictions
The Fourth Circuit first noted that the appeal waiver in Adam's plea agreement did not bar his appeal based upon a claim of actual innocence.
Adams argued that none of his prior convictions - all of which were under North Carolina law - were felonies after the Fourth Circuit's decision in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) and that he was, therefore, actually innocent of being a felon in possession of a firearm. In Simmons, the Fourth Circuit held that for an offense to be a prior felony under North Carolina's Structured Sentencing Act as then written, a defendant must have actually faced the possibility of more than a year in prison and the government could not rely on hypothetical enhancements to determine the maximum term of imprisonment.
Fourth Circuit upholds appeal waiver in plea agreement
McLaughlin asserted that even though she waived her right to appellate review of her sentence as part of her plea agreement that she was still permitted to challenge, on appeal, the district court's imposition of a four-level role-in-the-offense enhancement under Section 3B1.1(a) of the United States Sentencing Guidelines.
The Fourth Circuit observed that the waiver provision quite specifically waived the right to appeal the sentence "on any ground, including any issues that relate to the establishment of the advisory Guideline range." and that McLaughlin's appeal of the 3B1.1(a) role enhancement was just such an issue as it related to the establishment of the advisory Guideline range and therefore lies at the heart of the waiver clause.
The appeal was dismissed.
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. | firstname.lastname@example.org| 301-441-3000 |www.robertbonsib.com