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An expert witness fails to bridge the “analytical gap.”

By Brad McCullough

The Court of Special Appeals recently decided Matthews v. State, No. 3280, Sept. Term, 2018 (Feb. 25, 2021), a case where two homicide victims were killed by shotgun blasts delivered at close range. The sole issue at trial was the identity of the shooter. Writing for a panel that included Senior Judge Paul Alpert and Judge Kathryn Graeff, Judge Douglas Nazarian observed: “The story of this case is complicated and hard to follow.” Those complications were due largely to the cast of characters who served as trial witnesses.

The case is the first reported opinion dealing with the reliability of expert testimony issued after the Court of Appeals’ decision in Rochkind v. Stevenson, 471 Md. 1 (2020). But the panel’s application of Md. Rule 5-702(3)—with its requirement that an expert witness not fall into an “analytical gap”—did not depart from pre-Rochkind jurisprudence, confirming that even before Rochkind’s adoption of the Daubert standard, Maryland courts strictly applied Rule 5-702’s mandate that expert testimony be based on a sufficient factual basis. Unlike the case as a whole, the facts regarding the “analytical gap” issue luckily are not complicated.

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Issues That May Be Raised For The First Time On Appeal

By Megan Coleman

Every appellate attorney is familiar with the rule that the appellate courts will not consider arguments raised for the first time on appeal. My experience doing criminal appeals informs me that I better make sure my issues were raised below, otherwise I can expect the Office of the Attorney General to begin their response brief with an argument that the issue was not preserved and therefore should not be considered on appeal. 

Where an issue was not raised below, normally the only recourse is to ask the appellate court to exercise plain error review pursuant to Maryland Rule 8-131(a). That is an uphill battle that usually results in the appellant rolling backwards a long way down.

However, there are certain issues that may properly be raised for the first time on appeal. Appellate attorneys reviewing the trial record should keep a lookout for these issues as they may be dispositive to the appeal.

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The importance of non-pattern jury instructions

By Brad McCullough

Maryland’s appellate courts strongly encourage lawyers and trial judges to rely on pattern jury instructions, observing that pattern instructions “have been put together by a group of distinguished judges and lawyers who almost amount to a ‘Who’s Who of the Maryland Bench and Bar.” Green v. State, 127 Md. App. 758, 771 (1999). Thus, “generally the pattern jury instructions suffice and trial judges usually may rely on them.” Bayne v. State, 98 Md. App. 149, 160 (1993). But lawyers should not be complacent and simply rely on pattern instructions without thinking whether other non-pattern instructions could buttress their cause. In an opinion by Judge Stuart Berger, writing for a panel that included Judge Kevin Arthur and Senior Judge Robert Zarnoch, the Court of Special Appeals reversed a judgment where the trial judge refused to give requested non-pattern jury instructions that correctly stated the law, were supported by the evidence, and were not fairly covered by instructions the court actually gave. Six Flags America, L.P. v. Gonzalez-Perdomo, Case No. 1620, Sept. Term 2019 (Dec. 16, 2020).

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November 2020 Maryland Certiorari Grants

Today the Maryland Court of Appeals granted review in three civil cases and five criminal cases. The criminal petitions include a challenge to the Court of Special Appeals’ practice of issuing summary denials of applications for leave to appeal.

The cases are listed below, with the questions presented and, where applicable, links to the Court of Special Appeals opinion under review.

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Maryland Court of Appeals Criminal Decisions, 2019 Term

By Steve Klepper (Twitter: @MDAppeal)

To follow up on last year’s post, I’ve continued to track merits-stage decisions by the Court of Appeals of Maryland in criminal cases.  

During the September 2019 Term (9/1/2019 to 8/31/2020), the Court of Appeals decided 27 criminal appeals following argument.[1] Below is my categorization of those decisions.

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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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