Maryland Criminal & Immigration Lawyer Blog

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

Maryland Court Reviews Another Case Concerning the Waiver of a Jury Trial

July 22, 2014 | by Anthony A. Fatemi, LLC

A defendant in a criminal case has certain identifiable rights under Maryland state law, such as the right to a trial by jury. As we discussed in a recent blog post, a defendant may elect to waive the right to a jury trial at any time before the trial begins. But there are certain important criteria that must be met before a court may accept the defendant’s waiver (if he or she so chooses). It is important to know and thoroughly understand your rights to be able to make an informed decision throughout the process. If you have been arrested or charged with committing a crime, you are encouraged to seek the help of an experienced criminal attorney as soon as possible.

Just two months after the decision in Nalls & Melvin v. State, a consolidated case in which the court addressed the waiver of the right to a jury trial and the requirements to preserve an appeal of same, the court once again addressed the issue in another recent case. Here, defendant was convicted of six counts of theft and “theft scheme” between $1,000 and $10,000, and sentenced to ten years of incarceration with all but seven years suspended as well as five years of probation. The only issue on appeal in this case relates to the defendant’s waiver of the right to a jury trial under Rule 4-246. Specifically, the question concerns whether the trial court complied with the requirements under the Rule.

According to the transcript of the proceedings, the court asked the defendant if he freely and voluntarily decided to waive his right to a jury trial. The defendant indicated yes and the court responded in pertinent part, “I’m going to rule that you have knowingly and intelligently waived your right to a jury trial.” The defendant did not object to the court’s ruling and the trial proceeded before the court. As mentioned above, the defendant was convicted of various counts of theft and he appealed, arguing primarily that the court failed to state on the record that he voluntarily waived the right to a trial by jury. While the State acknowledged that the Rule requires strict compliance, it nonetheless argued that appellant made a voluntary waiver.

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.

Driver Convicted of Driving on a Suspended License Even Though License Had Expired

July 15, 2014 | by Anthony A. Fatemi, LLC

Under Maryland law, all criminal defendants are presumed innocent if and until they are convicted. A conviction can occur via a guilty plea or through a bench or jury trial. At a criminal trial, the prosecution must present evidence that proves beyond a reasonable doubt that the defendant actually committed the crime for which he or she is charged. Of course, even if the defendant is found to be guilty at trial, that person may appeal the conviction. The outcome of a criminal case can have serious, life-altering consequences for the person charged. In such matters, it is vitally important that a defendant consult with a local criminal attorney who is fully familiar with the laws and procedures in the Maryland court system.

In a recent case, the defendant was convicted of driving with a suspended license. According to the decision, the defendant was originally charged with failure to display a license to an officer, driving on a suspended license, driving without a license, and driving on a revoked license. He asserted that, while his license expired in 1990, it was suspended prior to that time. Since the defendant waived his right to a jury trial, the court tried the case under an agreed statement of facts and convicted him of only driving on a suspended license. The driver was sentenced to two years of incarceration, with all but one month suspended. The sentence also requires the defendant to submit to one year of supervised probation. The driver appealed.

On appeal, defendant argued that he could not be convicted of driving on a suspended license because it had expired. The State countered by arguing that the expiration of a license does not negate its suspended status. Under Maryland law, a person may not drive a motor vehicle on state roads while his or her license is suspended. The defendant raised an issue of first impression in the state, whether the suspension of a valid driver’s license survives the expiration. The court reviewed the applicable law and determined that allowing the expiration to cancel the suspension in this case would undermine the Legislature’s intent. For example, the state code requires the motor vehicle department to suspend a license if the license holder does not make any necessary child support payments. The court’s interpretation supports the notion that one’s driving privileges will remain suspended until payment of child support. Continue reading

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

Sentencing Changes After a Plea Deal in Maryland

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

In a recent case, an appellate court considered whether a judge could increase another judge’s sentence that was less than what was agreed upon in a plea agreement. The case arose in 1989 when a man was indicted for two first-degree murders and other major crimes. The State planned to ask for a life sentence without possibility of parole.

The defendant entered a guilty plea in exchange for a deal. He admitted that he and another man had planned to kill whatever they found in a particular apartment and steal the cocaine inside. They actually did steal cocaine and jewelry from the apartment. Each of the men shot and killed a person.

The plea deal’s terms were that the defendant would testify at the other man’s trial and enter guilty pleas as to three of the counts. In exchange, he would be sentenced to life imprisonment with all but 20 years suspended, and the State would withdraw its notice of intent to seek life without possibility of parole. The defendant’s sentencing was delayed, and he testified against the man. 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

What is a “Dying Declaration” in Maryland?

June 6, 2014 | by Anthony A. Fatemi, LLC

A recent appellate case considered the “dying declaration” exception to the rule against hearsay evidence, among other things. The defendant was indicted for first-degree murder, armed robbery, conspiracy, and possession of a firearm by a person not permitted to have one. Before the trial, he moved to suppress the victim’s identification of him as the killer. The hearing judge suppressed the identification, and the State of Maryland appealed.

The murder victim, Melvin Pate, had identified his shooter to a registered nurse at a Shock Trauma Unit after the shooting before he died. He had been shot in the face and taken to the hospital to be stabilized. A few days later, he was sent to the Shock Trauma Unit in a critical and very unstable condition. His spinal cord was severed in his neck, which left him a quadriplegic. His lung had collapsed, and he was breathing with the help of a ventilator and eating through a feeding tube.

The issue in this case was whether the victim’s identification of the shooter’s photograph counted as a dying declaration exception to hearsay rules. Hearsay is “an out-of-court statement” that is introduced to prove the truth of what is being asserted. Hearsay evidence is not admissible unless an exception applies. One exception applies when somebody is unavailable as a witness and that person is making a statement with the belief of imminent death. This is called the “dying declaration exception.” Continue reading

Evaluation of PTSD in Maryland Assault Case

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

In a recent Maryland case, a criminal defendant had fired a rifle towards his ex-girlfriend in a parking garage. She was hiding behind her car. The defendant had moved into his girlfriend’s apartment complex in Bethesda. She wanted to take things more slowly, but he took an apartment in the floor above hers in the same building. He was disappointed by the fact that she didn’t help him move in, and she was not happy about how fast things were progressing. She broke up with him shortly thereafter.

A few nights after that, the defendant saw the victim leaving her place with a male friend. He texted her. He came to her apartment around midnight when she and the friend came back. He didn’t get that she had broken up with him and stayed in the hallway even after they were done talking. She was scared to be alone, so the friend stayed and the defendant texted her through the night.

The victim found that somebody had vandalized her car the night before. The police responded to the call and advised her to get a no-contact order against the defendant. The defendant asked her to withdraw the no-contact order and continued to text her. Continue reading