Recent Maryland Decisions – 4/13


Criminal Law, Voir dire: Where defendant’s proposed question during voir dire was not mandatory, the trial court did not abuse its discretion in declining to present the proposed question. Washington v. State, No. 45, September Term, 2011. RecordFax No. 12-0323-21

Criminal Procedure, Post-conviction Procedure Act: The post-conviction trial court’s reopening of defendant’s post-conviction proceeding was unauthorized under CP §7-104 and the re-imposition of defendant’s original sentences, after having vacated those sentences and ordered a new trial, constituted the imposition of illegal sentences within the meaning of Rule 4-345(a). Alston v. State, No. 121, September Term, 2009. RecordFax No. 12-0323-20

Criminal Procedure, Interrogation after invocation of Miranda rights: The conversation that ensued after defendant’s invocation of his right to an attorney constituted an impermissible custodial interrogation and, therefore, defendant’s inculpatory statements should have been suppressed. Phillips v. State, No. 58, September Term, 2011. RecordFax No. 12-0316-20

Professional Responsibility, Disbarment: Disbarment was the appropriate sanction when, in response to an inquiry from an agency regulating the practice of law in another jurisdiction, attorney deliberately submitted altered and misleading documents concerning the her compliance with a rule governing the practice of law in that jurisdiction. Attorney Grievance Commission of Maryland v. Smith, No. 10, Sept. Term, 2011. RecordFax No. 12-0319-20

Evidence, Hearsay exception for former testimony: The testimony of a witness at a pre-trial motion to suppress the witness’ extrajudicial identification of defendant was not admissible at defendant’s trial under the “former testimony” hearsay exception because defendant was not afforded at the suppression hearing an adequate opportunity to develop the witness’ testimony. Dulyx v. State, No. 54, September Term, 2011. RecordFax No. 12-0321-21, 23 pages.

Evidence, Prior inconsistent statement: The trial did not err in admitting the audio taped statement of the witness as a prior inconsistent statement, under Rule 5-802.1(a). McClain v. State, No. 17, September Term, 2010. RecordFax No. 12-0321-20


Bankruptcy Law, Disposable income: When a bankruptcy court calculates a debtor’s projected disposable income, the court may account for changes in the debtor’s income or expenses that are known or virtually certain at the time of confirmation, and district court therefore erred in ruling that determination of Chapter 13 bankruptcy debtor’s projected disposable income would not take into account debtor’s intention to surrender two motor vehicles on which she was making payments. Morris v. Quigley, No. 09-2102. RecordFax No. 12-0307-61

Constitutional Law, Qualified immunity: Defendant employees of county sheriff’s department were entitled to qualified immunity from liability for violation of anti-abortion organization’s First Amendment rights by requesting protesting organization to remove graphic anti-abortion signs, because it was not objectively unreasonable for defendants to believe that they could allow organization to continue its protest but nevertheless remove the signs, so as to protect the public from potential traffic hazards based on the signs’ proximity to the road. Lefemine v. Wideman, No. 10-1905. RecordFax No. 12-0305-60

Criminal Law, Armed Criminal Career Act: Defendant’s previous convictions of Florida’s “fleeing or eluding” statute, which punishes one willfully seeking to flee or elude a marked law enforcement patrol vehicle with lights and siren activated, were properly classified as “violent felonies” and, therefore, qualified as predicate crimes for purposes of Armed Criminal Career Act. United States v. Hudson, No. 07-4948. RecordFax No. 12-0307-60

Criminal Law, Possession of firearm while subject to a protective order: Defendant’s conviction for possession of firearm while subject to a protective order did not violate defendant’s Second Amendment rights, but it was plain error for district court to convict defendant on two separate counts for the simultaneous possession of a firearm and ammunition. United States v. Mahin, No. 10-5292. RecordFax No. 12-0203-61

Criminal Procedure, Affidavit supporting warrant application: Although individual statements from sources referenced in police officer’s affidavit supporting application for warrant for search of defendants’ home were not based on recent information, when considered collectively, the information in the affidavit supported magistrate judge’s finding that there was probable cause for the requested search, and defendants’ motion to suppress evidence obtained in the search was therefore properly denied. United States v. Henry, No. 10-5201. RecordFax No. 12-0308-60

Criminal Procedure, Sentence enhancement: For purposes of sentencing enhancement, defendant’s previous conviction under South Carolina law for pointing and presenting a firearm qualified as a violent crime under the federal sentencing guidelines. United States v. King, No. 10-5054 (decided Mar. 8, 2012) (Judges Agee, Davis & KEENAN). RecordFax No. 12-0308-60

Intellectual Property, Laches: In plaintiff’s action alleging unauthorized use by defendants of plaintiff’s federally-registered trademark, district court erred in granting defendants’ motion for summary judgment on basis of affirmative defense of laches, because court failed to conduct appropriate fact-intensive inquiry to determine whether at some identifiable point in time a likelihood of confusion existed and that plaintiff unreasonably delayed in taking responsive legal action. Ray Communications v. Clear Channel Communications, No. 11-1050. RecordFax No. 12-0308-61


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