Rereading Washington v. State after Tyre Nichols’ Homicide
A week ago, I wrote about Tyrie Washington v. State of Maryland, a decision by the Supreme Court of Maryland filed on December 19, 2022, which held that unprovoked flight in a high-crime neighborhood provides reasonable articulable suspicion to conduct a Terry stop.
Last week, like most people in the United States and abroad, I followed with horror the events leading to Tyre Nichols’ homicide.
Tyre Nichols’ flight from police was provoked by his fear and their brutality. His homicide is a painful reminder of why innocent people fear the police, especially uniformed officers patrolling high-crime neighborhoods. In Washington, the SCM precisely and explicitly recognized that reality while upholding that “unprovoked flight” in a high-crime neighborhood is a sufficiently compelling factor to justify a Terry stop. After watching body camera footage of Tyre Nichols’ visceral fear of the police in the minutes before his death, I reread the SCM’s decision in Washington. How can flight provoked by a legitimate fear of police justify the detention for criminal investigation of a citizen?
Read More…U.S. Supreme Court to decide whether mere mention of someone’s name during predicate offense constitutes aggravated identity theft.
On November 10, 2022, the United States Supreme Court granted certiorari in Dubin v. United States, No. 22-10, to decide “whether a person commits aggravated identity theft any time he mentions or otherwise recites someone else’s name while committing a predicate offense.” Oral argument is scheduled for February 27, 2023.
This issue not only divided the Fifth Circuit, but it split the federal circuits as well.
The Fifth Circuit’s per curiam opinion in United States v. Dubin, 27 F.4th 1021 (5th Cir. 2022), essentially stands for the proposition that any time a real person’s identity is used during a health care fraud, even if the identity was lawfully obtained, and the person did in fact receive health care services, that a conviction for aggravated identity theft will be automatic, and so will the two-year mandatory consecutive sentence of imprisonment.
In this case, Dubin was convicted of health care fraud for overbilling Medicaid by $101 for a psychological evaluation his company provided to a patient. For this he was sentenced to one year and a day in prison. However, the Government also charged Dubin with aggravated identify theft in violation of 18 U.S.C. § 1028A and obtained a conviction on that count as well, adding a mandatory two year consecutive sentence of imprisonment to Dubin’s sentence. The Government obtained this conviction, not because Dubin stole or misrepresented anyone’s identity, but because he included his patient’s accurate identifying information on the Medicaid claim that misrepresented how and when the service was performed. The Government argued at trial that Dubin’s commitment of the health care fraud offense “obviously” meant that he was “also guilty of” aggravated identity theft because aggravated identity theft is an “automatic” additional offense whenever someone commits provider-payment healthcare fraud.
The Fifth Circuit affirmed the Section 1028A conviction holding that Dubin’s fraudulent billing scheme constituted illegal “use” of a means of identification of another person.
Read More…Unprovoked Flight, Reasonable Articulable Suspicion, and Article 26
On December 19, 2022, the Supreme Court of Maryland filed Washington v. State, No. 15, September Term, 2022, addressing whether unprovoked flight in a high-crime neighborhood adds to the reasonable articulable suspicion necessary to detain a person under the Fourth Amendment and Article 26 of the Maryland Declaration of Rights.
Washington follows in the footsteps of Illinois v. Wardlow, 528 U.S. 119 (2000), where the Supreme Court of the United States considered whether unprovoked “headlong flight” in a drug-trafficking area constitutes reasonable articulable suspicion for law enforcement to detain a person. Wardlow determined that “headlong flight—wherever it occurs—is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” However, a lot has happened in the past 20 years that could explain why a person’s flight from law enforcement is entirely consistent with innocence.
Read More…January 2023 Maryland Certiorari Grants
On Friday afternoon, the Supreme Court of Maryland granted review in one criminal and two civil appeals. The certiorari grants, with links to the Appellate Court of Maryland opinions under review, are below.
Read More…Introduction to Co-Managers of the Maryland Appellate Blog.
As the Maryland appellate courts have made historic changes with their official name changes, the Maryland Appellate Blog is excited to introduce its own updates with three new Co-Managers! Read more to learn more about each co-manager, their introduction to appellate law, and vision for the Blog.
Read More…ACM Applies the Twigg Sentencing Package Doctrine in Two Recent Cases
In Twigg v. State, 447 Md. 1, 28 (2016), the trial court failed to merge a lesser including offense at sentencing. Compounding the error, the trial court imposed an executed sentence for a lesser included offense but suspended the sentence for the greater offense. Twigg successfully argued on appeal that the executed sentence for the lesser included offense was illegal because the case involved multiple counts arising from a single criminal episode. Twigg maintained that the appellate court must vacate the executed sentence for the lesser offense, while leaving intact the suspended sentence for the greater offense.
Twigg pointed to two limitations on the appellate court’s power. First, the text of section 12-702(b) of the Courts and Judicial Proceedings Article that limited the appellate court to remanding a “sentence.” Second, principles of double jeopardy prevented the appellate court from vacating the suspended sentence for the greater offense and remanding for resentencing because any executed sentence imposed by the trial court would necessarily constitute an impermissible greater and successive penalty. The Supreme Court of Maryland rejected these arguments, holding that, as a general matter, a court imposing a sentence on one count of conviction may consider sentences imposed on other counts. Double jeopardy did not bar the resentencing primarily because there were not successive trials. Thus, on remand, the sentencing court could resentence on the greater offense considering the sentence for the lesser included had been vacated and merged.
The Supreme Court of Maryland resolved section 12-702(b)’s use of “sentence” in the singular to mean the package of sentences imposed for multiple counts arising from a single criminal episode. Therefore, because the trial court originally imposed a package of inter-related sentences for multiple counts arising out of a single episode, when the appellate court must vacate one of the constituent sentences in the package, it may remand the entire package for the trial court to resentence on all remaining counts. At Twigg’s resentencing, the trial court could impose any sentence for the greater offense up to the lesser of the statutory maximum or the aggregate sentence originally imposed for package. This practice became known as the “sentencing package.”
Two recent opinions from the Appellate Court of Maryland (ACM) further examine the contours of Twigg’s sentencing package doctrine: Wright v. State, 255 Md. App. 407 (2022) and Mohan v. State, — Md.. App. —, CSA-REG-1853-2021 (Dec. 9, 2022). Because both cases are interesting on their individual merits, I will address the reason for each reversal and the application of the sentencing package doctrine.
Read More…December 2022 Maryland Certiorari Grants: Supreme Edition
By Steve Klepper (Twitter: @MDAppeal)
Yesterday, the Supreme Court of Maryland held its first conference under its new name. From that conference emerged the first post-name change opinion, Tapestry, Inc. v. Factory Mutual Insurance Company, authored by Chief Justice Matthew Fader for a unanimous Court. For another answer to a future trivia question, the Appellate Court of Maryland issued its first unreported opinions today under its new name, and the first to be posted was Judge Shaw’s opinion in Hawley v. Greer.
The conference also produced only one certiorari grant, Gerstein v. Rocon, LLC, and the Court’s statement of the Issues Presented reflects that the “CSA” is now the “ACM.”
Read More…Talking About Maryland’s Appellate Courts in the Past Tense
By Steve Klepper (Twitter: @MDAppeal)
Last month, Maryland voters approved a constitutional amendment renaming our appellate courts—with the Court of Appeals becoming the Supreme Court of Maryland, and the Court of Special Appeals becoming the Appellate Court of Maryland. Judges of the Supreme Court of Maryland will now be “Justices.”
Since then, lawyers have kept asking me the same question: “If I’m discussing a pre-name-change decision, do I use the new names and titles?”
Read More…Certiorari Granted from Sharply Divided COSA Over the Right to Counsel
The Court of Appeals will hear argument in State v. Clark, 255 Md. App. 327 (2022), the latest of a series of postconviction cases involving whether a presumption of prejudice applies when a trial court orders a testifying defendant not to communicate with their counsel during a break in the trial. The question sharply divided the COSA, with the Hon. Kathryn Graeff writing for the majority that the U.S. Supreme Court’s presumption of prejudice for the deprivation of counsel did not apply where trial counsel failed to object and the defendant did not produce sufficient evidence at the postconviction hearing that he would have conferred with counsel but for the erroneous order. In a lengthy dissent, the Hon. Douglas Nazarian concluded the importance of the fundamental right to counsel required the presumption of prejudice and that the defendant should not resurrect his right after the trial court’s order depriving him of such right, in order to demonstrate he has been prejudiced.
This case turns on the application of the rule enunciated in Geders v. U.S., 425 U.S. 80 (1976) – a case on direct appeal – to a postconviction case governed by the principles of Strickland v. Washington, 466 U.S. 668 (1984). In Geders, the Supreme Court held that the trial court’s order preventing a defendant from consulting his counsel about anything during a 17-hour overnight recess between his direct and cross-examination deprived him of his right to the assistance of counsel guaranteed by the Sixth Amendment. In Geders, the trial attorney had objected to the Court’s order. Geders applied a presumption of prejudice and ordered a new trial. But what if trial counsel does not object? That is Mr. Clark’s case.
Read More…Mark Your Calendars: Maryland Appellate Courts to Change Names on December 14
The Court of Appeals of Maryland posted this update today:
Read More…
Maryland Appellate Blog 