Criminal Law Update

The May Amicus Curiarum contains little for the criminal practitioner. However, there are two Court of Appeals cases and one Court of Special Appeals case from the March Amicus which may be of interest.

Bryant v. State, No. 37, September Term 2013, filed February 3, 2014. Opinion by Greene, J.

Bryant was convicted of distribution of, and conspiracy to distribute, a Controlled Dangerous Substance. The State asked for a mandatory enhanced sentence of 25 years without the possibility of parole under Criminal Law Article subsection 5-608(c), the subsequent offender statute. This statute requires that a defendant have three prior qualifying convictions, at least one of which led to confinement for at least 180 days. At sentencing, the State submitted records of the prior convictions and called a prison Management Specialist to testify that Bryant had served a sentence of almost seven years. The records contained a discrepancy as to Bryant’s birth date.

Before a fingerprint specialist took prints from Bryant for an in-court comparison, the judge said that this was unnecessary to prove the prior offense. He then asked defense counsel if he was arguing that the convictions were not Bryant’s and the attorney answered that he “can’t say that the offenses are not Mr. Bryant’s right now.” The sentencing judge found that Bryant qualified for the 25 year sentence without the possibility of parole for each offense and imposed those sentences to be served concurrently. Bryant appealed and the Court of Special Appeals decided the trial court erred in imposing two subsequent offender sentences, but affirmed the imposition of one of the sentences. The Court of Appeals granted cert to decide whether Bryant’s sentence was illegal for the purposes of review under Maryland Rule 4-345(a).

The Court affirmed COSA’s decision. There are limited grounds on which a sentence may be reviewed if no objection was made at the time of sentencing, yet Maryland Rule 4-345(a) states that a “court may correct an illegal sentence at any time.” This applies only to sentences that are “inherently” illegal. The distinction between sentences that are “illegal” in the commonly understood sense and subject to ordinary review and procedural limitations, and those that are “inherently” illegal is generally the difference between a substantive error in the sentence itself and a procedural error in the sentencing proceedings. In Bryant’s case, the underlying conviction did satisfy the requirements of the enhanced sentencing statute. The issue was whether the evidence was sufficient to prove beyond a reasonable doubt that the prior convictions were his where there was some confusion in his records as to his birth date and incarceration dates. This would be a challenge to a procedural flaw, and, thus, be subject to the general preservation rules. The Court found that there was no “inherent illegality” for the purposes of review under Maryland Rule 4-345(a).

Pearson v. State, No. 49, September Term 2013, filed February 21, 2014. Opinion by Watts, J. Pearson was charged with a variety of drug offenses. At voir dire, his co-defendant asked the trial court to inquire whether any prospective juror had ever been a victim of a crime or a member of a law enforcement agency. The court declined to do so, but asked: “Does any member of the panel hold such strong feelings regarding violations of the narcotics law that it would be difficult for you to fairly and impartially weigh the facts of this trial where narcotics violations have been alleged?” All of the State’s witnesses were police. Pearson was convicted. He appealed and the Court of Special Appeals affirmed that conviction.

The Court of Appeals granted certiorari and reversed the conviction. It held that a trial judge does not have to ask whether any prospective juror has ever been the victim of a crime because a prospective juror’s experience as the victim of a crime lacks a demonstrably strong correlation with a mental state that gives rise to specific cause for disqualification; because the “victim” voir dire question consumes a lot of time and because the Court has already held that, upon request, a trial court must ask whether any prospective juror has strong feelings about the crime for which the defendant is charged. The trial court did not abuse its discretion in refusing to ask whether any prospective juror had ever been the victim of a crime.

The Court also held that, if asked to do so, a trial judge must ask: “Do any of you have strong feelings about (the crime with which the defendant is charged?)” The trial court abused its discretion when it phrased the “strong feelings” question as: “Does any member of the panel hold such strong feelings regarding violations of the narcotics law that it would be difficult for you to fairly and impartially weigh the facts of this trial where narcotics violations have been alleged?” Raising the question in this way allows each prospective juror to decide whether the prospective juror’s “strong feelings” (if any) about the crime with which the defendant is charged would make it difficult for the prospective juror to fairly and partially weigh the facts. This conflicts with the Court’s holding in Dingle v. State, 361 Md. 1, 759 A. 2d 819 (2000).

The Court held that when all of the State’s witnesses are police, a trial judge must ask: “Have any of you ever been a member of a law enforcement agency?” In such a situation, a prospective juror’s experience as a member of a law enforcement agency has a demonstrably strong correlation with a mental state that may give rise to specific cause for disqualification.

Donati v. State, No. 1538, September Term 2012, filed January 29, 2014. Opinion by Graeff, J.

Donati was arrested for drug violations at a Gaithersburg bar. While his charges were pending, he began to harass and intimidate the bar’s security guard and owner. He sent e-mails to several police officers in which he alleged that those individuals were involved in marijuana distribution and other crimes. He used various e-mail addresses and false names offering police information on the guard and owner in exchange for his charges being dropped. Donati was convicted of 15 counts of e-mail harassment and related charges.

The Court of Special Appeals affirmed the conviction finding that the trial judge did not abuse the court’s discretion in admitting State exhibits containing dozens of e-mail messages. To authenticate an e-mail, there must be evidence to support a finding that it is what its proponent claims. The best way to do this is through testimony by someone who has personal knowledge that the e-mail is what it is claimed to be. The portions of the e-mail conversations sent by police were properly authenticated through officer testimony as having been sent by them. E-mails from Donati were sent from a variety of addresses or authenticated by circumstantial evidence. This included evidence found in Donati’s home containing some of the e-mail addresses and the common theme and contents of the e-mails.

The trial court properly declined to merge Donati’s fifteen convictions for e-mail harassment. The version of Criminal Law Article subsection 3-805 in effect at the time of trial contained unambiguous language that the unit of prosecution was one e-mail message. The trial judge was correct in deciding that each message subjected Donati to a separate penalty.

The trial judge properly admitted into evidence a message found in Donati’s basement. It was relevant in that it linked Donati to several e-mail messages at issue, and it was not inadmissible bad acts evidence because it was relevant to establish Donati’s identity as the author of the e-mails. The trial court also acted within its discretion in allowing three witnesses to identify Donati’s voice on a 911 call and a videotape found in his home. One witness had heard his voice within an hour before making the identification, another had lived with Donati and had numerous conversations with him and the third witness spoke to Donati before making the identification. The decision also commented on the distinctive intonation of Donati’s voice.

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