Harmless Error in Court of Special Appeals Opinions, 2017 to 2020

By Erica Becker
Guest Contributor[*]

Maryland precedent indicates that in criminal cases, a significant majority of errors will not be deemed harmless on appeal. The burden is on the State to show errors are harmless, and that burden is quite high:

“Harmless error review is the standard of review most favorable to the defendant short of an automatic reversal.” Bellamy v. State, 403 Md. 308, 333, 941 A.2d 1107 (2008). When we have determined that the trial court erred in a criminal case, “reversal is required unless the error did not influence the verdict.” Id. at 332, 941 A.2d 1107 (citation omitted). “To say that an error did not contribute to the verdict is … to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed by the record.” Id. (citation omitted). In other words, reversal is required unless we find that the error was harmless. We have explained that an “error is harmless only if it did not play any role in the jury’s verdict.” Id. (emphasis added) (citation omitted). The State carries the burden of proving, beyond a reasonable doubt, that the error meets this high standard. Dionas v. State, 436 Md. 97, 108, 80 A.3d 1058 (2013) (citation omitted).

Porter v. State, 455 Md. 220, 234, 166 A.3d 1044, 1052 (2017).

However, a review Court of Special Appeals opinions from recent years indicates that in practice, errors are deemed harmless approximately half the time.

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A Maryland Guide to Judicial Recusal

By Derek M. Stikeleather

Recusal standards for appellate judges rarely trend on social media. But the recent nomination of Seventh Circuit Judge Amy Coney Barrett to the United States Supreme Court has spawned widespread popular debate over whether she should recuse herself from deciding any cases involving the results of the 2020 Presidential election. Regrettably, most media soundbites on the issue offer little more than partisan excerpts of her supporters saying that she should not recuse herself and her critics arguing that she should. Few delve into the controlling rules and standards.

Ultimately, a Justice Barrett recusal seems unlikely for one simple reason: At the Supreme Court, the recusal decision rests exclusively with the Justice herself and is not subject to further review. Thus, absent any unambiguous precedent that requires her recusal or a statement from Judge Barrett that she plans to recuse herself from election cases, she appears unlikely to do so.

While I have nothing special to add to the arguments for or against a potential Justice Barrett recusal, the uproar prompted me to look more closely at Maryland’s standards for recusing appellate judges. Here’s what I found:

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Court of Appeals reviews moot appeal from a non-final judgment – In re O.P.

By Brad McCullough

As we know, courts typically refrain from deciding cases that do not present real, live justiciable controversies. Where the passage of time has erased the dispute that once existed between the parties, a court will generally dismiss that case as being moot. That’s not always the case, however, as there are narrow exceptions to that general proposition. We also know that appellate courts generally have jurisdiction only over appeals from final judgments, i.e. orders or judgments that adjudicate all claims against all parties. But again, there are exceptions to this general rule.

Recently, in an opinion authored by Judge Robert McDonald, the Court of Appeals decided a moot case in an appeal taken from a non-final judgment: In re O.P., No. 26, Sept. Term, 2019, 2020 WL 4726601 (Aug. 14, 2020). Due to the public interest presented by the litigation—and the fact that the litigation presented a controversy capable of repetition, yet evading review—the Court considered the case even though it had become moot. And because the appeal conclusively determined an important issue separate from the merits of the action that would be effectively unreviewable if the appeal had to await entry of a final judgment, review was allowed under the collateral order doctrine.  

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October 2020 Maryland Certiorari Grants

The Court of Appeals granted certiorari in these six cases today:

Larry S. Chavis, et al. v. Blibaum and Associates, P.A.; Bryione K. Moore, et al. v. Peak Management LLC – Case No. 30, September Term, 2020 (Reported CSA Opinion, by Judge Berger)

Issues – Commercial Law – 1) Does using a wage garnishment to collect excess post-judgment interest and post-judgment filing fees constitute a violation of the Maryland Consumer Debt Collection Act, Md. Code §14-202(8) of the Commercial Law Article? 2) Does a trial court abuse its discretion by denying a motion for class certification, without conducting a hearing, when the undisputed evidence presented to the Court established that the identity of every class member can be established from the Respondent’s records?

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Terrence Zic Appointed to Court of Special Appeals

Today Governor Larry Hogan appointed Terrence Mark Ranko Zic, of Whiteford Taylor Preston in Rockville to the Court of Special Appeals, filling the vacancy created by the retirement of Judge Alexander Wright, Jr. The Governor appointed Zic from a list of nine nominees.

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Recap of September 14 Appellate Practice Event

By Lauri Cleary
Guest Contributor

On September 14, the Prince George’s County Bar Association and MSBA Appellate Practice Committee hosted, and Appellate Committee member Michael Wein moderated, a program that featured tips and strategies from accomplished appellate jurists and practitioners.

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September 2020 Maryland Certiorari Grants

The Court of Appeals today granted review in one criminal appeal and two civil appeals.

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Plank v. Cherneski: Court of Appeals Nails Down a Loose Plank in Maryland Tort Law

By Alan Sternstein

The Court of Appeals expressly held in Kann v. Kann, 344 Md. 689, 510, 690 A.2d 509, 510 (1997), that “allegations of breach of fiduciary duty, in and of themselves, do not give rise to an omnibus or generic cause of action at law that is assertable against all fiduciaries.” Ever since, Maryland’s lawyers and courts have labored under the maxim that “Maryland does not recognize a separate tort action for breach of fiduciary duty.” Int’l Brotherhood of Teamsters v. Willis Corroon Corp., 369 Md. 724, 727 n.1, 802 A.2d 1050, 1051 n.1 (2002) (dictum). Yet, since Kann, lawyers have sought and courts have granted and affirmed relief for breaches of required standards of conduct in various fiduciary relationships. See, e.g., Shenker v. Laureate Education, Inc., 411 Md. 317, 983 A.2d 408 (2009) (corporate directors and minority shareholders); Della Ratta v. Larkin, 382 Md. 553 (2004) (general partner and limited partners); Ins. Co. v. Miller, 362 Md. 361, 765 A.2d 587 (2001) (insurance company and agent of company). With its recent decision in Plank v. Cherneski, Misc. No. 3, Sept. Term 2019 (Md., July 14, 2020) (“Slip Op. at ___”), the Court of Appeals, after exhaustively surveying and scrutinizing relevant Maryland state and federal decisions in the 23 years since Kann, has exposed the emptiness of the maxim rejecting a generic cause of action for breach of fiduciary duty. Despite the 23 year wait, however, Judge Booth’s 79-page unanimous opinion for the court leaves no suspense for the end, stating on page 2:

This Court recognizes an independent cause of action for breach of fiduciary duty. To establish a breach of fiduciary duty, a plaintiff must demonstrate: (1) the existence of a fiduciary relationship; (2) breach of the duty owed by the fiduciary to the beneficiary; and (3) harm to the beneficiary.

Slip Op. at 2.[1]
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Waiving a Claim of Waiver in COSA

By Steve Klepper (Twitter: @MDAppeal)

On August 3, the Court of Special Appeals reported an opinion of the kind that gives attorneys anxiety attacks. In Hayes v. State, the Court addressed a consolidated appeal involving two jointly tried co-defendants, Hayes and Winston. Both claimed on appeal that the circuit court failed to ask necessary voir dire questions under Kazadi v. State. The State conceded that both defendants preserved the error, and that both were entitled to a new trial. But the Court of Special Appeals originally held, contrary to the State’s concession, that only Winston preserved the issue for review on appeal, and that Hayes therefore was not entitled to a new trial.

On Hayes’ motion for reconsideration, however, the Court issued a revised opinion holding that “Hayes did raise the issue before voir dire ended, if just barely,” by handing the trial judge a written request for the same questions that Winston requested. The Court lamented that Hayes’ “tactical approach does not represent best voir dire practice,” and that “it took more than 4,000 words worth of analysis to reach the conclusion, as we now do, that Ms. Hayes preserved her Kazadi claims.”

The Court engaged in this 4,000-word analysis because it held itself obligated to ensure that the matter was preserved under Rule 8-131:

We can dispose quickly of [Hayes’ argument] that the State’s concession that Ms. Hayes had preserved the Kazadi argument waived any  preservation objection. The State’s concession of error does not bind us. Coley v. State, 215 Md. App. 570, 572 n.2 (2013) (an appellate court is not bound by a party’s erroneous concession of error on a legal issue). Under Maryland Rule 8-131, we “will not decide any [ ] issue unless it plainly appears by the record to have been raised in or decided by the trial court….” 

The Court deserves credit for recognizing on reconsideration that Hayes preserved her claim of error. Nevertheless, I believe that the Court should have begun and ended its analysis with the State’s waiver of any preservation challenge.

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It’s Official: Maryland Accepts Daubert as Controlling Law for Admitting Expert Testimony

Editor’s Note: The author of this post represented the Defendant in the appeal. This article does not address any case-specific facts and instead focuses on the holding’s impact on Maryland law generally. As with all of our posts, it contains only the author’s personal opinions, not those of his firm or his clients. This is the blog’s first substantive post on Rochkind, and we expect to have more. If you are interested in submitting a guest post, please contact the editor-in-chief.

By Derek Stikeleather

After more than a decade of incrementally adopting the Daubert standard—and the steady erosion of Frye-Reed as an independent, additional requirement for trial courts applying Maryland Rule 5-702—the Court of Appeals has clarified Maryland law on expert testimony. In Friday’s landmark Rochkind v. Stevenson opinion (its final of the Term), the Court formally adopted the Daubert standard as controlling Maryland law.[1] In doing so, it retired the superfluous Frye-Reed test, which had not only become riddled with exceptions but also evolved into the same “analytical gap” test that courts use when applying Rule 5-702 to expert testimony.

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