Case Summaries

Maryland Court Reverses Conviction for Failure to Ask Defense-Witness Question

September 8, 2014 | by Anthony A. Fatemi, LLC

Jury selection is a critically important aspect of a criminal trial. This phase is also referred to as “voir dire” – the point at which counsel for both the State and the defendant have an opportunity to ask the potential jurors questions in order to determine whether an individual exhibits a possible bias against either side. The law seeks to protect against such an unfair situation by affording both sides certain rights. In fact, a criminal defendant is entitled to a variety of protections under the law throughout the proceedings. If you have been arrested or charged with a crime, it is important to understand your rights and the potential defenses available under the circumstances. You are encouraged to contact an experienced criminal defense attorney as soon as possible.

If jury selection is not handled in accordance with Maryland law, any resulting criminal conviction could be overturned. In a recent case, Smith v. State, the defendant’s counsel asked the circuit court to include this mandatory Defense-Witness question to the jury: “Is there any member of the panel who would be less likely to believe a witness simply because they were called by the defense?” The purpose of this question is to identify jurors who might have a bias against defense witnesses. Under Maryland law, if a question for a jury panel refers to a specific cause for disqualification, that question must be asked. The failure to ask is considered an abuse of discretion on behalf of the court.

As it turned out, the trial court failed to ask the question during voir dire. Defendant’s counsel expressly challenged the omission of the Defense-Witness question. Under Maryland Rule 4-323(c), the objector need only make its objections known to the court in order to preserve the objection. However, the trial court agreed with the State’s mistaken assumption that the Defense-Witness question was covered by a question already asked by the defendant’s counsel. At that point, defendant’s counsel did not correct the judge’s statement. A trial was held, and the defendant was convicted of involuntary manslaughter and use of a handgun in the commission of a felony. The defendant appealed, arguing that the failure to ask the mandatory Defense-Witness question required a reversal of his convictions. Continue reading

Maryland Court’s Refusal to Give Requested Jury Instruction Upheld

August 23, 2014 | by Anthony A. Fatemi, LLC

Criminal cases vary a great deal, from the moment when a person is arrested and charges are filed to the conclusion of a jury trial or plea bargain. Under Maryland law, criminal defendants are typically afforded the right to a trial by jury. With this right come certain rules and procedures that govern court-issued “jury instructions.” Such instructions help a jury decide if they believe a defendant is guilty or innocent. The prosecution and defense often request that certain instructions be submitted to the jury, depending on the facts and circumstances surrounding a case.

In criminal cases, Maryland Rule 4-325 provides: “The court may, and at the request of any party shall, instruct the jury as to the applicable law and the extent to which the instructions are binding. The court may give its instructions orally or, with the consent of the parties, in writing instead of orally. The court need not grant a requested instruction if the matter is fairly covered by instructions actually given.” In a recent criminal case, the defendant appealed a conviction of first-degree murder (among other things), arguing that the court abused its discretion by failing to give a “witness promised benefit” jury instruction. This instruction would advise the jury that it may consider the testimony of a witness, who provided evidence for the state, “as a result of” an “expectation of a benefit,” but such testimony is to be considered “with caution” because it may have been influenced by the witness’ hope to gain the benefit.

Here, one of the two witnesses to the shooting testified that she heard gunshots and then saw the victim lying on her porch steps outside the house, and the defendant heading to his car. She and the other witness both identified the defendant in a photo array. The defendant’s attorney argued that this witness cooperated with the State only because the authorities agreed to move her to free, protective housing for several months. The court declined counsel’s request to give the jury the “witness promised benefit” instruction. During closing arguments, the defense counsel failed to mention that the witness provided evidence to the state because she received free, protective housing, and that such testimony might be less credible due to this benefit. Continue reading

Refusal to Suppress DNA Evidence Does Not Violate Constitution or Maryland State Law

August 8, 2014 | by Anthony A. Fatemi, LLC

The collection, retention, and use of DNA evidence in a criminal matter can raise various privacy concerns. In a recent Maryland case, a homeless man, George Varriale, voluntarily provided his own DNA samples to the local county police department in order to clear himself as a suspect in an alleged rape case. Here, the detective investigating the alleged rape identified himself to Varriale, told him why he was in the area, and asked if he would be willing to sign a form consenting to be searched. Varriale agreed to the search, signed a consent form, and provided DNA samples. While he was cleared of the rape charges, Varriale’s DNA later matched a DNA profile that was associated with an unrelated burglary incident.

Based on this evidence, he was charged with two counts of second-degree burglary, malicious destruction of property, and theft over $1,000, all in connection with a burglary that took place in 2008. Varriale moved to suppress the DNA evidence, which the court denied. Later, Varriale agreed to a conditional guilty plea to burglary in the second degree. After the sentencing phase, Varriale appealed the court’s denial of the motion to suppress, arguing two essential points: 1) by retaining and analyzing his DNA samples after he was eliminated as a suspect in the alleged rape, the police conducted an unreasonable and warrantless search in violation of the Fourth Amendment; and 2) under the Maryland DNA Collection Act, the state was not permitted to retain his DNA once he had been cleared of suspicion in the investigation for which his sample had been taken.

The court of special appeals rejected both arguments and upheld the court’s denial of the motion to suppress. Regarding Varriale’s contention that the police exceeded the scope of his consent to a search, the court concluded that the state had no obligation to obtain a warrant before reexamining the DNA sample that was obtained lawfully. Under applicable case law, the court found that once the state lawfully obtains a DNA sample, retention and later examination of the sample does not ordinarily amount to a search. Next, under the plain language of the Maryland DNA Collection Act, in order to trigger the expungement of DNA records, there must have been a criminal action instituted against the person, and that person must not have been convicted of the crime for which he or she was charged. Here, the court concluded that Varriale had never been charged with the alleged rape, nor arrested for it, and therefore he was not entitled to claim the benefit of the statutory expungement provisions. In coming to this conclusion, the court relied upon the plain language of the state statute. Continue reading

Case Summary: Client receives no jail time after traffic citations were successfully dismissed

July 18, 2014 | by Anthony A. Fatemi, LLC

Late last fall, one of our current immigration clients came to office desperately seeking help. He had recently been pulled over by police on two (2) separate occasions and charged with “driving without a license.”

The client had initially retained our immigration attorneys to help him acquire his legal permanent resident card (commonly called a green card). Upon being retained, our immigration attorneys immediately filed the Form I-130, with the client’s wife, who is a US citizen, sponsoring him. The client is now working with our immigration attorneys to gather the necessary supporting documentation for his Form I-601A application.

Before getting pulled over for the first time, the client understood that he had been breaking the law by driving without a valid Maryland driver’s license. But, he had no choice — he had to drive for both of his jobs and his family relied on the money he earned in order to survive.

Requirements for Court Announcing Waiver of Jury Trial in Maryland

June 21, 2014 | by Anthony A. Fatemi, LLC

In a recent consolidated case, a Maryland court considered waiver of jury trial in two unrelated cases. In one case, the defendant was accused of sexual assault and rape and was convicted after a bench trial. Before the trial, the defense attorney explained the right to jury trial to the defendant and asked the defendant if he understood he was electing not to have a jury trial. The defendant said he understood.

After his conviction, the defendant petitioned for post-conviction relief and got permission to file a belated appeal. The conviction was reversed as to third-degree sexual offense but was affirmed on other counts. The intermediate appellate court held that the trial court had adequately announced its finding of waiver, but the validity of the waiver was not preserved for appeal.

The Court of Appeals agreed to review two cases to determine what showed compliance with the rule that a trial judge must determine and announce on the record that a knowing and voluntary waiver was made by the defendant. It also reviewed whether a defense attorney’s failure to object to a trial court’s failure to determine the waiver was knowing and voluntary precluded the case from review. Continue reading

Are You Entitled to a Translator in a Maryland Criminal Proceeding?

June 16, 2014 | by Anthony A. Fatemi, LLC

Under Section 1-202 of the Criminal Procedure Article, an interpreter will be appointed for a criminal defendant when the defendant can’t readily understand or communicate in English and can’t understand the charge or help with his or her defense. The court is required to appoint a spoken language interpreter when it determines a defendant doesn’t understand English well enough to participate in the proceedings or help his or her attorney, or where the defendant or a witness doesn’t speak English sufficiently to be understood by the attorneys, the court, and the jury.

In a recent case, a defendant sought review of a judgment that affirmed his conviction for sexual abuse of a minor, second-degree rape, and third-degree sexual offense. An intermediate appellate court had affirmed the lower court’s judgment. The defendant had come to the U.S. from Ghana four years before he was convicted and argued that the trial judge should have appointed an interpreter for his criminal trial. He asked the appellate court to review whether it was appropriate for the lower court to deny him an interpreter that he had requested.

The appellate court explained that the decision to appoint an interpreter is a two-part process. The first issue is whether the trial judge’s factual findings are clearly erroneous. If they aren’t, the reviewing court must then decide whether the judge abused his discretion in deciding whether or not to appoint the interpreter. Continue reading

Armed Carjacking in Maryland

May 2, 2014 | by Anthony A. Fatemi, LLC

A recent appellate case arose from an armed carjacking. The defendant and a companion approached the victim in Baltimore City, pointed guns at him and told him to get on the ground. The victim obeyed while the defendant and his companion took his wallet and keys.

When the victim got up, a teenager joined the group that forced him into his car. They drove him to an ATM under threat of being shot. The defendant used the ATM card, but could only withdraw a small sum. The defendant told the companion to tie up the victim and they drove to try to withdraw money from other ATMs. Finally, they drove the victim to a location and told him to drive off.

A detective later testified against the defendant. He claimed the victim identified the defendant from an array of photographs, but didn’t mention any injuries. Continue reading

Negligent Homicide in Maryland

April 3, 2014 | by Anthony A. Fatemi, LLC

In a recent case a Maryland appellate court considered a case in which a defendant was convicted of criminally negligent manslaughter, reckless driving and more. The defendant was a commercial tractor-trailer driver who got lost on the freeway. He called another driver with the same company for directions with his hands-free headset. They talked for twenty minutes to try to get the defendant back on track.

At one point, the defendant pulled over to the shoulder and then tried to get back on. He looked ahead and saw the road was clear for 1/4 of a mile. However, he was looking across the road at the median while pulling out and a vehicle drive by Michael Neimus collided with his truck. He hung up the phone.

Later Neimus’ friend testified that he met him at 10 pm on October before he died. They talked and drank at a bar until 2 am. They planned to go to one of their houses to continue and were each driving in their respective cars on the freeway when the friend saw the defendant’s truck. He testified that the truck swung out as if it was going to make a wide turn, but the truck didn’t get in the right lane. Instead it blocked the highway. The friend and Neimus swerved to avoid the truck. Neimus hit the back of the truck before driving off the road. The friend pulled over and saw that Neimus’ truck had fire beneath it. Neimus died. Continue reading

Sale of Counterfeits in Maryland

October 11, 2013 | by Anthony A. Fatemi, LLC

Maryland law prohibits the intentional distribution, sale and possession of items identified by a counterfeit mark. In a recent case, the defendant was driving on Route 301 with two burned out tag lights when he was pulled over by a state trooper. The state trooper noticed that the defendant did not make eye contact and that there were four air freshening trees hanging in the car, including at the rear of the car.

He radioed to the station for a criminal history and traffic check on the defendant, which revealed the defendant’s license had expired and the defendant had been charged with drug possession. Accordingly he called for backup and began citing the defendant for driving on an expired license.

When the other trooper arrived, they spoke about the situation and asked the defendant and his companion to exit the car. A trained dog searched the vehicle for illegal substances. There were two marijuana cigarettes, which the defendant admitted belonged to him. Also recovered were more than 300 DVDs and CDs suspected to be counterfeits. The defendant was charged on numerous counts, including a charge of distributing, selling and possessing counterfeit items. Continue reading

Case Summary: Prostitution Charge Dismissed After Client’s Successful Completion of Diversion Program

April 22, 2013 | by Anthony A. Fatemi, LLC

Recently, our office represented a criminal defendant who had been charged with prostitution in Baltimore City, MD. She was facing up to one year in jail and a $500.00 fine if she was found guilty. However, the possible immigration consequences were even more severe – deportation from the U.S.

Our client was originally from the Dominican Republic and had been in the U.S. for almost twenty years. She was a legal permanent resident (green card holder) and had never applied for her U.S. citizenship.

When she came to the office she was petrified about the possible immigration consequences she would face if she was convicted of prostitution. She also feared that because of this pending criminal charge, she would not be able to take a prescheduled trip to Dominican Republic this coming summer to visit with her extended family. The client came to our office specifically because she knew we handled both criminal and immigration matters and she understood that she needed help with both.