Jackson v. Maryland

On September 5, 2012, the Court of Special Appeals filed its opinion, by Judge Hotten, in Jackson v. Maryland, No. 1159, September Term 2011.  The case arises from the conviction of Mr. Jackson related to a home invasion and murder in Prince George's County, Maryland.  Like many, many murders and other violent crimes, the genesis of this crime was in drugs.  Specifically, Appellant Jackson and Jamar Jones broke into a stash house, robbed it, ran into three people, and turned seriously violent.   

After being arrested, Appellant Jackson retained counsel.  Of course, no attorney could represent both Mr. Jackson  and Mr. Jones ethically given the facts of this case.  The day after the robbery and murder, Mr. Jackson drove Mr. Jones to his attorney's office, where Mr. Jones, at the time seemingly unrepresented, proceeded to give a statement to Mr. Jackson's attorney that Mr. Jackson was not present at the time the crimes were committed, and that Mr. Jackson committed the crimes.  Mr. Jones's attorney hand wrote Mr. Jackson's statement, which Mr. Jackson then reviewed and signed.  A law clerk was also present when the statement was given.  The law clerk thought Mr. Jones's actions were "very odd."  The law clerk also testified that the statement was drafted as a "give and take" with counsel, and not a transcription of a statement orally given by Mr. Jones.  

Essentially, Mr. Jones's story is that a third person, "Darren Johnson" and Mr. Jones broke into the stash house, but the shooting was in self-defense and Mr. Jackson was not present.  

On appeal, the issue presented was whether the circuit court "erred in disallowing a written statement of an unavailable declarant, when the appellant sought its admittance as a declaration against penal interest pursuant to Rule 5-804(b)(3)."  In other words, whether the circuit court erred by disallowing Mr. Jones's  statement to be entered into evidence.

Rule 5-804(b)(3) states that "[a] statement which was at the time of its making so contrary to the declarant's pecuniary or proprietary interest, so tended to subject the declarant to civil or criminal liability, or so tended to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless the person believes it to be true.  A statement tending to expose the declarant to criminal liability and offered in a criminal case is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement."

In Jackson, Mr. Jones was unavailable because he invoked his Fifth Amendment right not to testify at Mr. Jackson's trial, as his testimony could serve to incriminate him.  While the parties agreed that Mr. Jones was unavailable, the State sought to exclude Mr. Jones's statement as lacking reliability and not truly being against Mr. Jones's penal interest.  

Judge Hotten agreed that the trial court did not err in finding that the statement illustrated "insufficient indicia of reliability."  As noted above, the fact surrounding the creation of the statement are odd, to say the least.  Further, the Court of Special Appeals noted that Mr. Jones's "self-defense claim weighs against his
statement being trustworthy and exhibiting necessary corroboration."  The Court noted that the thrust of the statement was exculpatory to Mr. Jones, as he was claiming self-defense, and Mr. Jackson's absence was merely an aside.  Further the Court found that "the circuit court properly found the entire statement to be unreliable, untrustworthy, lacking corroboration, and, thus, inadmissible."

It's clear my next post is a long one...

My next Rule is about Maryland Rule 1-201 - the rules of construction.  In essence, the Rule states that the existence of the Rules is to do justice, and to be equitable.  That there is a purposed to these Rules.  Mind you, I've never actually relied on this Rule in motions - though I have called upon it in when arguing about the construction of a Rule (usually begging for wiggle room for my client) and in appellate practice.  I've been reading all the cases in the annotation citing this Rule - and it's been fascinating so far.  Essentially, this Rule is a gut feeling rule - if the Rules aren't doing justice, they aren't doing their job.

Suffice to say, I'm about to post on another recent case instead.

Shelton v. Maryland

On September 5, 2012, the Court of Special Appeals filed its opinion, by Judge Wright, in Shelton v. Maryland, No. 1240, September Term 2011.  The case arises from an undercover drug sting that resulted in Mr. Shelton's conviction  on one count of distributing a controlled dangerous substance, one count of conspiring to distribute a controlled dangerous substance, and one count of first-degree assault. But this isn't a criminal law blog, this is a blog about the Rules.  Of course Mr. Shelton appealed - and as any first year law student knows, appeals are about error.  As Judge Wright stated, Mr. Shelton asked the Court of Special Appeals to determine 

Did the trial court err in admitting a hearsay statement under Maryland Rule 5-803(a)(5), the co-conspirator exception, because the statements of the accomplice were not made in furtherance of the conspiracy? 

In this case, the defendant and the State were arguing over a recording taken by the undercover cop of his conversation with the woman who allegedly set up the sale while he was waiting for the sale to happen.  This recording included "a conversation in which they discussed [another alleged drug dealer's] outfit, how [the woman who set up the sale, Ms. Hosley] had quit using cocaine,  [the undercover cop's] purported drug habit, and [the alleged drug dealer's] supplier."

To reframe the issue, did the trial court err by admitting a recording of conversation between the undercover cop and the woman who allegedly set up the drug sale between the undercover cop and Shelton?

Hearsay is generally inadmissible as evidence.  However, Maryland Rule 5-803 makes some exceptions.  Specifically, 5-803(a)(5) allows "[a] statement by a co-conspirator of the party during the course and in furtherance of the conspiracy[]" to be admissible, even that such a statement is hearsay and the speaker is available.

Here, the State argues that the conversation between the woman and the undercover cop were in furtherance of the drug dealing conspiracy, while the defendant argues that the conversation was "idle chatter" not specifically intended to further the conspiracy.

The Court of Special Appeals rejected the defendant's assertion that the conversation was idle chatter, but instead concluded that Ms. Hosley's conversation with the undercover cop constituted "statements were in furtherance of the conspiracy because they assured [him] that the transaction was going as planned and were intended to assuage any concerns that [he] may have...."

This opinion illustrates how broadly the co-conspirator exception to the hearsay rule is treated.  This treatment is similar to the cases interpreting the underlying federal rule.

Maryland Rule 1-104. Unreported opinions

(a) Not authority. An unreported opinion of the Court of Appeals or Court of Special Appeals is neither precedent within the rule of stare decisis nor persuasive authority.

(b) Citation. An unreported opinion of either Court may be cited in either Court for any purpose other than as precedent within the rule of stare decisis or as persuasive authority. In any other court, an unreported opinion of either Court may be cited only (1) when relevant under the doctrine of the law of the case, res judicata, or collateral estoppel, (2) in a criminal action or related proceeding involving the same defendant, or (3) in a disciplinary action involving the same respondent. A party who cites an unreported opinion shall attach a copy of it to the pleading, brief, or paper in which it is cited.

Restated in English, part (a) of this Rule says that only reported opinions of the appellate courts of Maryland matter.  

Part (b), on the other hand, is more difficult to parse.  Citing an unreported case is acceptable, unless you actually want to convince the judge that s/he should apply the unreported case to the facts at bar.  In other words, the Rule disallows the citation of an unreported opinion for the general reasons one cites an opinion.  The three reasons a case may be cited are all instances where the case is cited to show facts, not state the law.  

The most important practice point in this Rule is to attach a copy of the unreported case.  Actually, in general, attach as an appendix anything that's not reported that you cite, even if it is obvious and ubiquitous.  In the age of PACER and unreported opinions appearing in the electronic services this Rule might seem antiquated but please, attach it so the judge and your opponent have some clue as to what you are saying.

Maryland Rule 1-103. Method of citation

These rules may be cited collectively as "Md. Rules." A specific rule may be cited as "Rule" followed by the rule number.

This Rule is fairly boring and means what it says.

Maryland Rule 1-102. Circuit and local rules

Unless inconsistent with these rules, circuit and local rules regulating 

(1) court libraries, 

(2) memorial proceedings, 

(3) auditors, 

(4) compensation of trustees in judicial sales, and 

(5) appointment of bail bond commissioners and licensing and regulation of bail bondsmen, 

are not repealed. No circuit and local rules, other than ones regulating the matters and subjects listed in this Rule, shall be adopted.

This Rule is, pretty much, a big fat lie, as any young, frustrated litigator will tell you.  The Rule is essentially saying that the various Circuit Courts and/or judges and/or clerks cannot make their own rules, except for the administrative matters listed in the Rule.  However, in reality, practice and procedure varies widely from Circuit Court to Circuit Court, and even among judges.  The worst part of it is that its rarely written down - and even when it is its in a standard order somewhere that may or may not be easily available.  

Plus, every judge is different.  Judge X wants everything one way, but Judge Y hates it that way and will be irritated if you don't get it right.  Secretary Z in Judge X's chambers likes a heads up when you file something, but Secretary A in Judge Y's chambers gets super irritated if you call.  The clerk on the front desk in the mornings wants things one way and the one in the afternoons the opposite.  Some courts had night drop boxes that close in the evening, and at others as long as you beat the clerk in the morning its stamped as of the previous day (I've never actually done this for the record).  Sometimes night drop boxes disappear and you need to get it in before the Clerk's office closes - which might be ten minutes after or ten minutes before the posted time.

I'm a young litigator, but I still burn in humiliation remembering when, as an even younger litigator, I found out that while I had filed something in strict accordance with the actual Maryland Rules, I violated an unwritten Rule in a jurisdiction that everyone who practiced there knew about, but about which everyone at my large law firm was ignorant of.  Learn from my mistakes readers - learn unwritten local procedure as soon as you get a case in that court.  Consider hiring local co-counsel if the case warrants it.  Ask friends who practice before that court to lunch and grill them on local quirks.  Introduce yourself to the various clerks, secretaries, and others you might be in contact with and make sure you're super nice.  Well before any deadline, ask chambers and the clerk about courtesy copies, drop boxes, exhibits, motions to seal, and all the administrative stuff that can trip you up.

And while there are many who disagree with me, I truly believe that this is the job of the attorney on the file, not their support staff.  Instructing staff to make the calls, get the information, and execute is reasonable, but remember that when you forget the courtesy copy the judge wanted, or when the drop box closes at 6 not midnight, its the attorney, not their staff, who made the mistake.

Standing Committee on Rules of Practice and Procedure

The Rules Committee meets to propose changes to the Maryland Rules.  They are indeed meeting today to discuss these changes.