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Wallace-Bey v. State – not everything she said he said was hearsay.

By J. Bradford McCullough

Five months ago, I wrote about Porter v. State, 455 Md. 220 (2017), where a deeply divided Court of Appeals, in a 4-3 decision, held that a battered spouse may rely on the imperfect self-defense to stave off a first-degree murder charge, even in the absence of a contemporaneous threat to the defendant/battered spouse. In the view of the majority, the threat of inevitable harm can constitute a threat of imminent harm. But to the dissent, only a contemporaneous threat from the decedent can constitute a threat of imminent harm for purposes of either self-defense or imperfect self-defense.

Two months after the Porter opinion was rendered, the Court of Special Appeals decided Wallace-Bey v. State, 234 Md. App. 501 (2017), which was the first post-Porter reported appellate decision in Maryland to address battered spouse syndrome and imperfect self-defense. The Court, however, was not called on to assess the imminence of the threat to the defendant. Instead, the Court was faced with what it described as “the absurd position that the prosecution persuaded the trial court to adopt,” id. at 544, i.e., that any word emanating from the decedent’s mouth in the moments leading to when the defendant shot him to death – as well as any other words he uttered during the parties’ tortured and often violent relationship – constituted inadmissible hearsay. According to an exhaustive and biting opinion from Judge Kevin Arthur – an opinion which also serves as a comprehensive primer on the law of hearsay – the circuit court’s rulings were clearly wrong and just as clearly not harmless error. Judge Arthur’s opinion serves as a cautionary tale to trial lawyers – be careful espousing overly aggressive, and ultimately erroneous, legal positions, because what you might end up “winning” is reversible error. Or be careful what ruling you ask for, because you might just get it and might just have to live with the repercussions.

Editor’s note: The testimony of the Wallace-Bey trial, as detailed in the opinion by the Court of Special Appeals, contains graphic content that is now quoted or summarized below.

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February 2018 Maryland Certiorari Grants

The Court of Appeals of Maryland added eight cases to its merits docket today. Expert standards have been a hot topic as of late, and today’s list includes expert issues in both civil and criminal cases. There are some nuts-and-bolts issues, like authentication rules and discovery sanctions. Not surprisingly, in light of a dissent by Judge Berger, the grants include the Kennedy Krieger Institute’s challenge to a negligence claim arising out of a lead paint study.

(We’ve been endeavoring to include links to any relevant Court of Special Appeals opinions, but it will take a little extra time because the “Search Site” feature on the judiciary’s website is still a bit wonky after last month’s launch of the redesigned site.) Read More…

Fourth Circuit adds to its line of cases on untimely criminal appeals.

By Jonathan Biran

Last week, I posted about United States v. Oliver, in which the Fourth Circuit held that the Court has the inherent authority to dismiss an untimely criminal appeal sua sponte. As that post was about to go live, the Fourth Circuit added to its limited jurisprudence in this area in United States v. Hyman, holding that the Government did not forfeit its objection to an untimely criminal appeal by waiting to file a motion to dismiss until after the defendant filed his opening brief.  Read More…

Fourth Circuit holds that it can dismiss an untimely criminal appeal sua sponte, but should do so only in very limited circumstances.

By Jonathan Biran

In United States v. Oliver, the Fourth Circuit recently held that the Court has the inherent authority to dismiss an untimely criminal appeal sua sponte. As a general rule, the Court said, it will not use that authority; instead, it will rely on the government to raise an objection based on untimeliness. In rare cases, however, an untimely appeal can implicate judicial interests to such an extent that not intervening would harm the court as an institution. Only in such circumstances will the Fourth Circuit exercise its authority to dismiss a criminal appeal where the government has forfeited or waived its objection. Read More…

SCOTUS vindicates 2008 Judge Wilner opinion on tolling of limitations

By Steve Klepper (Twitter: @MDAppeal)

On Monday, in Artis v. District of Columbia, the Supreme Court of the United States resolved a division of authority on the meaning of 28 U.S.C. § 1367(d). Under § 1367(d), when a federal court exercises supplemental jurisdiction over a state-law claim, the limitations period on that claim “shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.”

Justice Ginsburg, writing for the five-justice majority, noted a division of authority on the application of the statute:

The high courts of Maryland and Minnesota, along with the Sixth Circuit, have held that §1367(d)’s tolling rule pauses the clock on the statute of limitations until 30 days after the state-law claim is dismissed. See In re Vertrue Inc. Marketing & Sales Practices Litigation, 719 F. 3d 474, 481 (CA6 2013); Goodman v. Best Buy, Inc., 777 N. W. 2d 755, 759–760 (Minn. 2010); Turner v. Kight, 406 Md. 167, 180–182, 957 A. 2d 984, 992–993 (2008). In addition to the D. C. Court of Appeals, the high courts of California and the Northern Mariana Islands have held that §1367(d) provides only a 30-day grace period for the refiling of otherwise time-barred claims. See Los Angeles v. County of Kern, 59 Cal. 4th 618, 622, 328 P. 3d 56, 58 (2014); Juan v. Commonwealth, 2001 MP 18, 6 N. Mar. I. 322, 327 (2001).

Maryland found itself on the winning side of that division of authority, Read More…

January 2018 Maryland Certiorari Grants

The Court of Appeals has granted 5 writs since our last certiorari post:

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Schneider Electric in the Court of Appeals – So Much for Efficient Resolution of Surety Bond Disputes and Policies Favoring Arbitration over Litigation

By Alan B. Sternstein

Deciding in favor of litigation over arbitration, the Court of Appeals, in Schneider Elec. Bldgs. Critical Systems, Inc. v. Western Surety Co., 454 Md. 698, 165 A.3d 485 (2017) (“Schneider Electric”), affirmed a decision of the Court of Specials Appeals, discussed in this blog on June 26, 2017.

Schneider Electric Buildings Critical Systems, Inc. (“Schneider”), a contractor, had been given a performance bond by NCS, its subcontractor.  Despite their Master Subcontractor Agreement requiring dispute resolution by arbitration, and the performance bond, issued by Western Surety Company (“Surety”), binding NCS and the Surety “jointly and severally . . . to [Schneider] for the performance of the Construction Contract, which is incorporated herein by reference[,]” the Court of Appeals followed the intermediate appellate court in ruling that the Surety could choose litigation and need not participate with NCS in the arbitration that Schneider brought.   Read More…

Why The Baltimore City Circuit Court May Transfer More Tort Cases in 2018

By Derek Stikeleather

A recent Court of Appeals opinion has shaken one of the main pillars that plaintiffs have rested on when resisting transfers to a more convenient forum—deference to the plaintiff’s chosen venue. Univ. of Maryland Med. Sys. Corp. v. Kerrigan, — A.3d —-, 2017 WL 5711857 (Md. Nov. 28, 2017). By expressly holding that trial judges owe little deference to a plaintiff’s chosen venue when no plaintiff resides there, the Kerrigan opinion significantly weakens plaintiffs’ ability to secure the most plaintiff-friendly venues in any case that involves multiple venues. Read More…

What was the “First” Appellate Court in the Colonial Americas?

By Michael Wein

With the coming New Year, reflection and reexamination on the past is natural, to understand and fully appreciate the challenges and hopes for the coming year. At least in Maryland, the history of “appeals” has not been the focus of determinate scholarly debate, internally, or in comparison to other jurisdictions.  For example, did you know that appellate courts in the Colonial Americas may have preexisted Thanksgiving, and that the first appellate court continues to be the subject of debate?

If this were the game show Jeopardy! and the “Answer” was “[t]his was the first appellate court established in the Western Hemisphere,” many people might instinctively say the United States Supreme Court.  However, it is certainly not the Supreme Court, as part of the U.S. Constitution, Congress’ 1789 Judiciary Act, and a first “session” with Justices in 1790.  Instead, the correct response choices include not only Massachusetts (including Plymouth and Massachusetts Bay colonies), but also Maryland, Virginia, and Pennsylvania in North America, and the Real Audiencia in Latin America.  These are all “colonial” appellate courts tracing to at least the 1600s, well-before the Supreme Court.  A brief description of each contender follows.
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December 2017 Maryland Certiorari Grants

Seasons greetings from the Maryland Appellate Blog! Is there a better gift than news of freshly-granted writs of cert? You be the judge—the Court of Appeals of Maryland granted seven today. Read More…