By Karen Federman Henry

Many litigators have experienced those situations where a judge becomes interested in the case and asks a witness a follow-up question.  It goes with the territory, right?  So what about when a judge reopens your case instead of outright dismissing it?  The Court of Special Appeals has an answer—the judge needs to be cautious when doing so or risk crossing the line of impartiality.  See Payton v. State, CSA No. 2115, Sept. Term, 2016 (February 1, 2018).

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By J. Bradford McCullough

A Maryland appellate court will ordinarily entertain a challenge concerning a jury instruction only if counsel objected promptly after the trial judge instructed the jury, clearly stating the grounds for the objection. Requiring counsel to make a prompt and clear objection gives the trial judge an opportunity to consider the objection and make any changes he or she deems necessary. But what happens when trial counsel makes an imprecise objection, which is followed by a quick discussion that indicates that the trial judge understands the objection and the point trial counsel is trying to make? That was the situation facing the Court of Appeals in Watts v. State, No. 17, Sept. Term 2017 (February 20, 2018). Read More…

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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