Overview of Md. Court of Appeals' fall lineup

Forget In the Jury Room - the Court of Appeals' fall lineup features strip searches, salesmen of questionable integrity, mothers who keep mum and a drug-sniffing dog named Alex. And that's just in the first two months.

With a red-robed cast of seven headed by Chief Judge Robert M. Bell and joined by newest addition Clayton Greene Jr., who replaced John C. Eldridge in January, the court will consider issues ranging from the constitutionality of Maryland's death penalty statute to the applicability of a landmark lead-paint decision.

All told, it is shaping up to be an interesting autumn in Annapolis.

Oken revisited

Wesley Eugene Baker has the most at stake. Sentenced to death in 1992 for the slaying of a woman outside the Westview Mall, Baker hopes to convince the Court of Appeals it erred last year in deciding, in Oken v. State, that Maryland's capital punishment was constitutional notwithstanding the Supreme Court's 2002 holding in Ring v. Arizona.

In Ring, the Supreme Court ruled that Arizona's death penalty statute was unconstitutional because judges instead of juries decided which aggravating and mitigating factors applied.

That is not the case in Maryland, but Oken's lawyers - and now, Baker's - contended that Ring still required the state law to be revisited because under Maryland statute, the sentencer weighs aggravating and mitigating factors using a preponderance of the evidence standard rather than beyond a reasonable doubt.

In their brief, Baker's lawyers argue the lower standard deprives their client of due process of law.

[A] law which requires the death penalty upon a 'judgment call' expressly governed by the preponderance standard offends the core of [the Maryland Declaration of Rights], they contend.

The case, Baker v. State, will be heard Sept. 13.

Taking a bite (or sniff) out of crime

His name was Alex, and he had a nose for illegal activity. He was a trained and certified drug-detecting dog, working for the Howard County Police Department's canine unit.

When his human partner received an anonymous tip of marijuana sales at some Ellicott City apartments in March 2002, Alex went to work, scanning the exterior apartment doors on the premises.

Alex indicated that Door A might be a winner, so police obtained a warrant and seized substantial amounts of marijuana. The occupant, Matthew Thomas Fitzgerald, was convicted of possession with intent to distribute marijuana and the Court of Special Appeals affirmed last December.

We hold that a sniff by a trained dog, standing where it has a right to be, of odors emanating from any protected place, residence or otherwise, is not a search within the contemplation of the Fourth Amendment, retired Judge Charles E. Moylan wrote for the court.

But Public Defender Mark Colvin disagrees. A dog sniff goes well beyond merely enhancing human senses and allows officers to pierce the walls of the home, he writes in his brief.

The issue is one of first impression in Maryland; oral arguments will be heard Sept. 10.

A pebble in a shoe - and more

A minor problem with a transmission gear shift had major consequences for a Washington County resident after the truck he was driving rolled backward from a stop and struck a police cruiser. Chris Nieves was arrested for giving false information and escorted to the police station where a lieutenant, recognizing Nieves as someone previously involved in drug activity, ordered a strip search.

A plastic bag of cocaine was found in Nieves' rectum and he was convicted of possession. The Court of Special Appeals reversed in December, concluding the state failed to show the search was based on a reasonable articulable suspicion of criminal activity.

The issue of strip search is like a pebble in the shoe of the judiciary, retired Judge Raymond G. Thieme Jr. wrote for the intermediate court.

But Assistant Attorney Edward J. Kelley says the reversal runs afoul of Fourth Amendment law.

[B]ased on Johnson's past and relatively recent experience with Nieves, it was reasonable for him to suspect that Nieves remained involved with drugs in some capacity and that the drugs might be found on his person, Kelley writes in his brief.

Also on the schedule for this fall is State v. Brady, in which the state hopes to add Maryland to the list of jurisdictions applying the doctrine of transferred intent to crimes resulting in injury short of death to an unintended victim.

The court declined to do so as recently as Aug. 4 in its 6-1 decision in Harrison v. State, with a stinging dissent by Judge Irma S. Raker.

The state, however, continues to argue the doctrine should be applied to the circumstances of the present case where Gregory White - an innocent bystander - was shot in both of his legs, but not killed, by the bullets that Brady fired with the intent to kill James Jones, Assistant Attorney General Shannon E. Avery contends in the brief.

The Nieves case will be heard Sept. 9; the Brady case, Oct. 5.

Protecting consumers

Lawyers for the Consumer Protection Division will be appearing on both sides of the appellate courtroom this fall, challenging two decisions of the Baltimore County Circuit Court and urging the upholding of a third.

In Consumer Protection Division v. John Morgan et al., being heard Oct. 5, the agency urges the top court to conclude the defendants had violated the Consumer Protection Act with an improper real estate flipping scheme. Although the circuit court upheld most of an earlier agency decision to that effect, it dismissed the charges against one of the defendants - citing insufficient evidence to show that he misrepresented property values - and determined no restitution could be ordered for transactions in which the homebuyer did not testify.

In Consumer Protection Division v. Paris G. George, scheduled for Sept. 14, the state argues it could lawfully require a medical equipment salesman to post security before being allowed to make future sales - given Paris George's history of taking money from his disabled customers for wheelchairs and stairlifts that never materialized. The circuit court had struck this provision from a previous agency order.

First, though, the division will defend its right to have the first crack at claims by Converge Services Group, a New Jersey corporation, under Maryland's Security Deposit Law. Argument is scheduled for Sept. 10.

Converge claimed its nonrefundable surety bond program - offered to tenants as a low-cost alternative to security deposits - does not violate the law. The circuit court dismissed Converge's suit, ruling the division had primary jurisdiction over the action.

Our argument is that the case is based on the Landlord-Tenant Act, Joshua R. Treem, the Baltimore attorney representing Converge, explained this week. The attorney general's office said it was a Consumer Protection Act case and has to be dealt with administratively.

Lawyers for the division declined to comment on the cases.

En banc appeals

On Sept. 9, the court will consider three separate cases addressing whether the Court of Special Appeals has jurisdiction to consider an appeal from an en banc decision of the circuit court.

The first of the three, Food Lion v. McNeill, asks whether a trial court erred in precluding an expert from testifying as to the cause of a meat cutter's carpal tunnel syndrome. Interestingly, briefs for both sides agree that, while the party who sought en banc review has no further right of appeal, the opposing party may take the case to the Court of Special Appeals.

It wasn't the basis for the appeal, McNeill's attorney, Keith R. Siskind, said of the jurisdiction question presented by the court. There are so few appeals from en banc decisions, it gives the Court of Appeals an opportunity to look further.

David A. Skomba, who is representing Food Lion, says while the jurisdiction question was unexpected, he will definitely come to court prepared.

There's got to be something they want to flesh out, he says.

Silent mothers, murderous wives

A single question posed to a mother concerning her whereabouts at the time she had last seen her son, now a teen-ager, has generated a dispute about whether she had a Fifth Amendment right to refuse to answer.

Contrary to the Court of Special Appeals' holding, the Fifth Amendment does not extend to provide protection to a parent who refuses to obey a court order to provide information regarding the child who is the subject of a CINA proceeding, the brief by Assistant Attorney General Nancy C. Hopkins contends.

The questioner was counsel for the Baltimore City Department of Social Services, and the mother was Teresa Brock, who was facing civil contempt charges in connection with misconduct concerning her son Ariel. Ariel had been adjudicated a child in need of assistance in 2000 and placed in a Carroll County foster home, but he left that home without permission four months later and the police came to believe that Brock had absconded with him.

Brock refused to answer the question put to her at a 2002 contempt hearing on Fifth Amendment grounds, since she was facing criminal charges in Carroll County for absconding with her son.

Another case of families in trouble is Elsa Newman v. State, where a woman was convicted of conspiring to kill her ex-husband in order to protect her sons from alleged sexual abuse. At trial, Newman's domestic relations attorney testified that Newman discussed, in his presence, killing her husband and one of her sons. The testimony was admitted.

As sinister as what Mr. Friedman told the jury sounds, the totality of the circumstances indicate the statements allegedly made by Ms. Newman were made as part of the legal counsel of the attorney- client relationship, they assert in their brief.

The Court of Appeals will also examine whether the Maryland Board of Social Work Examiners is entitled to access a social worker's file to evaluate a complaint that the social worker failed to report suspected child abuse. The Board subpoenaed patient files for Mr. and Mrs. Doe from social worker Ms. F. after receiving a complaint regarding Ms. F.'s alleged failure to report the sexual abuse of a minor by Mr. Doe. A motion to quash the subpoena was denied; that decision was upheld by the Court of Special Appeals, which concluded that the since the board was authorized by the Maryland General Assembly to investigate possible violations of the Social Worker Act, preventing the board from carrying out its investigations would be an absurd result.

Jailhouse justice

An inmate at the Western Correctional Institution in Cumberland will have his day in court Friday, Oct. 1. Richard L. Massey argues that the Maryland Public Information Act, not the Prisoner Litigation Act, controls his request for information about the management of the prison.

It was an area that needed clarifying, Karl Pothier of the attorney general's office said last winter, when the Court of Special Appeals concluded that Massey's suit against prison warden Jon P. Galley was properly dismissed for failing to exhaust the administrative remedies available to Massey under the PLA.

But the court's explanation failed to satisfy Joshua N. Auerbach of the Public Justice Center, who stepped in to represent Massey in his appeal before the top court.

The PLA was designed to set up exhaustion requirements for prison complaints about conditions of confinement, Auerbach said last week. Public information is not a condition of confinement.

While imprisoned, Massey asked Galley to provide him the contract between the state and Prison Health Services pertaining to inmate medical care and records regarding the costs of commissary items and photocopier cards sold at the prison. When his requests went unheeded, he filed suit in Allegany County Circuit Court seeking declaratory and injunctive relief, costs, and damages for Galley's alleged violation of the MPIA.

There's no indication that the General Assembly wanted prisons to be less transparent under the MPIA than any other institution of state government, Auerbach said.

Looking forward-and back

In last year's landmark lead-paint case, Brooks v. Lewin Realty III Inc., the Court of Appeals said a plaintiff may establish a prima facie case of negligence based on a violation of the Baltimore City Housing Code through evidence that there was flaking, loose, or peeling lead-based paint on the premises. This year, the question is whether the holding in Brooks applies to cases pending at the time of the decision.

This court needs to determine whether it is fair to judge the actions taken by the landlords, including Larry Polakoff or Chase Management in this case, to the standard of conduct mandated by Brooks, when those same landlords conformed their conduct and made their management decisions prior to November 13, 2003 and based on the pre-existing and entirely different notice standard, attorney Charles I. Joseph writes in his brief. Because Brooks changed the established law and because petitioners and other landlords relied on the law prior to Brooks, it cannot apply retroactively or in this case.

Jasmine Turner, a minor child, claimed to have suffered lead paint poisoning during her residence in an apartment owned by Lawrence M. Polakoff and managed by Chase Management Inc.

Prior to Brooks, Joseph writes, the common law required proof that the landlord was on notice or had reason to know of the hazard. After Brooks, evidence of a code violation was all that was necessary.

Polakoff's attorney also argues that Brooks should be reversed outright.

Serious policy considerations involving what is in the best interests of the citizens of Baltimore City not only warrant reversing Brooks, but demand that result, he contends.

The case, Lawrence M. Polakoff v. Jasmine Turner, will be heard Oct. 4.

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