MSBA Panel Reviews Recent Notable Maryland Appellate Decisions
On April 13, the MSBA’s Appellate Section hosted its annual program on recent notable Maryland appellate decisions. I was pleased to moderate (via Zoom) three panelists: Judge Gary Bair (retired), Carrie Williams of the OAG’s Criminal Appeals Division, and Kamil Ismail. The panel discussed six recent decisions:
Leidig v. State, 475 Md. 181 (2021): The Leidig opinion held that Article 21 of the Maryland constitution provides even broader protection than the Confrontation Clause of the Sixth Amendment. It held that a criminal defendant whose DNA was taken from blood spilled at a crime scene had the right to confront the author of the DNA report that identified him. Applying the fractured opinions from the Supreme Court’s 2012 Williams v. Illinois decision, Judge Biran and Judge Watts discussed conflicting styles of Confrontation Clause analysis including DNA analysis that was “nonaccusatory” and analysis marked by “formality and solemnity.” Noting the strong influence of retired Judge Eldridge in Maryland’s Sixth Amendment jurisprudence as well as the recent arrival of four new judges on the Court of Appeals, Judge Bair explained that Article 21 renders a DNA report “testimonial” if the report’s author would reasonably understand that the report’s primary purpose would be to establish facts potentially relevant to future prosecutions.
Davis v. State, 474 Md. 439 (2021): The Davis opinion examined the five factors under Section 4-202 for juvenile offenders to be tried as an adult: the defendant’s (1) age, (2) physical and mental condition, and (3) amenability to treatment in a juvenile institution, program, or facility, as well as (4) the nature of offense(s), and (5) public safety. Judge Wilner wrote the unanimous opinion explaining that the key factor was “amenability to treatment,” based on the 1966 legislative declaration of statutory purpose.
Spinks v. State, 252 Md. App. 604 (2021) involved the Confrontation Clause, holding that a crime victim’s Skype testimony from Africa did not violate the defendant’s Sixth Amendment rights. The witness, a Guinean immigrant, who had returned home to care for his mother, was allowed to appear at trial via Skype after his visa expired. Rather than creating a per se rule allowing remote witnesses at criminal trials, the Court of Special Appeals required a finding of necessity under the circumstances, which existed here with the witness unable to come to Maryland from Africa. It emphasized that the witness was able to be confronted in real time under oath on a platform with clear audio and video. The court explained that there must be an important public policy to outweigh the right to face-to-face confrontation and that videoconferences are not synonymous or equivalent to a face-to-face confrontation. But if sufficient evidence of reliability exists, there is no constitutional violation.
Beckwitt v. State, ____ Md. _____, No. 16, Sept. 2021 Term (Jan. 28, 2022), clarified the standards for involuntary manslaughter under both gross negligence and breach of legal duty theories. The court distinguished depraved heart murder, which is likely or certain to result in death, and involuntary manslaughter. The case involved the extraordinary fact pattern of an eccentric millionaire who kept an employee in his heavily cluttered basement building a series of tunnels. The employee perished when a fire broke out in the dangerous basement.
The panel also addressed a pair of tax cases: Clear Channel Outdoor v. Director of Finance of Baltimore City, 472 Md. 444 (2021), and Travelocity.com v. Comptroller of Maryland, 473 Md. 319 (2021). Clear Channel involved a First Amendment challenge to a Baltimore City tax on the business of selling ad space on billboards. The Court of Appeals upheld the tax, rejecting strict scrutiny of taxation of billboard advertising. It reasoned that the tax on commercial speech was not content-based. Judge Getty dissented, and Clear Channel’s cert petition is pending at the United States Supreme Court.
Travelocity.com involved statutory construction. It examined whether the online intermediary between consumers and hotels or car rental sales and leases are subject to tax on the mark-up between the business and the customer. Online travel company Travelocity.com challenged whether it was “vendor” of hotel rooms and cars under Maryland tax law before 2015, when the Legislature expressly added the “accommodations intermediary” as a taxable “vendor.” The tax court had found that the pre-2015 taxes on Travelocity were appropriate and the circuit court affirmed. But the Court of Appeals reversed for the pre-2015 amendment taxation on the grounds that any ambiguity in language is resolved in favor of the taxpayer. Three of the seven judges on the Court of Appeals dissented, arguing that the 2015 amendment did not substantively change Maryland tax law but was simply for clarification and in abundance of caution.
The panelists also noted cases to watch that are still pending in Maryland’s appellate courts. Among them were:
Belton v. State, No. 720, 2020 Term (Dec. 28, 2021). The Public Defender, with considerable amicus support, has petitioned the Court of Appeals for certiorari alleging institutional racism in the tone, language, and metaphors used in a reported Court of Special Appeals opinion describing a dispute in a Baltimore City “open-air drug market.” The opinion begins with an allusion to the monster Grendel’s Mother in Beowulf and later describes the defendant’s mother, who was convicted as an accessory to manslaughter, as “not Whistler’s Mother.”
In Re DD, No. 27, September Term, was argued to the Court of Appeals on January 6, 2022. It involves whether, given the evolving state and classification of marijuana in Maryland and around the country, the smell of marijuana creates a “reasonable suspicion of criminal activity.”