Maryland Criminal Attorney Blog

Is Hearsay is Still Admissible in Maryland if the Identify of the Declarant is Unknown?

August 30, 2010 | Steven D. Silverman

This criminal defense issue arises in situations where an unknown person makes a 911 call and the prosecutor tries to use the tape against a criminal defendant at trial. In State v. Parker, 365 Md. 299 (2001), the Maryland Court of Appeals confronted the issue of whether the statements of two unidentified declarants to a police officer following a shooting were admissible. In determining whether the statements of the unidentified declarants were properly admitted by the trial court under the excited utterance hearsay exception, the appellate court observed that:

Where the identity of the hearsay declarant is unknown, the courts hold that the party seeking to introduce the excited utterance carries a heavy burden to prove the requisite indicia of reliability. It is held that the burden of the proponent is heightened, primarily because it is more difficult to establish personal observation and spontaneity where the declarant is unknown. Id. at 314.

The court analogized the facts of that case to a Third Circuit case involving unknown declarants at the scene of a car accident. In the Third Circuit case, the court found that the proponent of the hearsay statement had not satisfied the heavy burden of admissibility because “the record…was void of any circumstances from which it could be inferred that the declarant personally observed the accident and that the declarant was excited when he spoke.” Id.

Furthermore, under Crawford v. Washington, some of the statements made by the 911 caller were testimonial. These statements “were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Crawford, 541 U.S. 36, 52 (2004). In further defining the nature of testimonial statements, the Supreme Court in Davis v. Washington concluded that statements made to a 911 operator that are not related to assisting in an ongoing emergency are testimonial. 547 U.S. 813, 827-28 (2006).
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Double Counting and the Federal Sentencing Guidlines

August 30, 2010 | Steven D. Silverman

Federal criminal defense lawyers are often faced with the issue of “double counting” when dealing with white-collar crimes sentencing. Double counting occurs when “one part of the [Sentencing] Guidelines is applied to increase a defendant’s punishment on account of a kind of harm that has already been fully accounted for by application of another part of the [Sentencing] Guidelines.” U.S. v. Pena, 339 F.3d 715, 719 (8th Cir. 2003) (quoting U.S. v. Hipenbecker, 115 F.3d 581, 583 (8th Cir. 1997)). However, a trial court does not double count for purposes of the Sentencing Guidelines by enhancing an offense level for two or more reasons when those reasons “address conceptually separate sentencing notions.” U.S. v. Phillips, 506 F.3d 685, 688 (8th Cir. 2007).

Loss is broadly defined as the greater of actual loss or intended loss. U.S.S.G. § 2B1.1 commentary 3(A). Actual loss is “the reasonably foreseeable pecuniary harm that resulted from the offense.” Id. Intended loss is (1) “the pecuniary harm that was intended to result from the offense” and (2) “includes intended pecuniary harm that would have been impossible or unlikely to occur.” Id.

The commentary to U.S.S.G. § 2B1.1 defines “gross receipts from the offense” to include all property, real or personal, tangible or intangible, which is obtained directly or indirectly as a result of such offense. See 18 U.S.C. § 982(a)(4) which defines “gross receipts from the offense” in the context of criminal forfeiture. The commentary also explains that “for purposes of subsection (b)(14)(A), the defendant shall be considered to have derived more than $1,000,000 in gross receipts if the gross receipts to the defendant individually, rather than to all participants, exceeded $1,000,000.” Specifically, the defendant is only liable for gross receipts that the defendant, himself, received as a result of the criminal activity.
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Maryland Administrative Hearings Also Follow a DUI Arrest

August 30, 2010 | Steven D. Silverman

Many defendants charged with DUI in Maryland are dismayed to find out that not only do they have to go to court and face criminal charges, but they must also fight the MVA in a separate proceeding. Even if the criminal defendant is found “not guilty” of all charges in criminal court, the MVA may still suspend the defendant’s driver’s license on separate grounds.

The Maryland Court of Special Appeals ruled in Johnson v. State (1991) that this DOES NOT amount to double jeopardy. The bases of the MVA administrative hearing is to determine if the driver “broke his agreement” with the state when he was issued his license and agreed not to “drink and drive.”
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It Does Not Always Pay to Cooperate With Police!

August 28, 2010 | Steven D. Silverman

I recently had two similar DUI cases with very different results. Each case involved a drunk driver who was involved in a one car accident. One driver ran into a parked train and the other driver hit a tree. In each case the driver was alone and there were no witnesses to the accident.

The drunk driver of the vehicle that hit the train stayed at the scene long enough for the police arrive. He told the police when asked that he was driving and he agreed to submit to field sobriety tests. He was found to be intoxicated, went to court and was convicted based upon his admission to the police and the subsequent field sobriety tests.

In the case of the defendant who hit a tree, left the scene and his car behind, jumped in a cab and went home to sleep it off. The next day when the police tracked him down by his license plate, he refused to talk to them without a lawyer present. He did not admit to driving, causing the accident, or to drinking. He was charged with leaving the scene of an accident involving property damage, but not DUI. When he went to court, the State could not prove he was driving that night and the defendant was acquitted. His only repercussion was the costs to get his car out of the Baltimore City yard.
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Summary of Dillard v. State Decided by the Maryland Court of Appeals on August 25, 2010

August 28, 2010 | Steven D. Silverman

In this Maryland criminal case, Defendant Dillard was charged with possession with the intent to distribute cocaine and related offenses. Detective Smith was the State’s primary witness. During trial, it was brought to the court’s attention that during a lunch break two jurors walked by Detective Smith, patted him on the back and said “good job.” The defense attorney moved for a mistrial. The State asserted a mistrial was not necessary because the jurors had not made a specific comment about their opinions of Dillard’s guilt. The trial judge denied the motion for mistrial and refused to replace one of the jurors with an alternate. The jury convicted Dillard. Dillard appealed to the Court of Special Appeals which affirmed the trial judge. The Court of Appeals reversed Dillard’s conviction. The Court of Appeals held that the trial court’s failure to conduct a voir dire examination of the jurors to determine whether the jurors had reached a premature conclusion as to Dillard’s guilt or formed fixed opinions constituted an abuse of discretion.

George Hugely’s Emails Have Significant Evidentiary Value

August 25, 2010 | Steven D. Silverman

It has become apparent from recent Freedom of Information Act disclosures that George Hugely had sent threatening emails shortly before his former girlfriend, Yeardley Love, was found murdered. After the incident, Hugely’s lawyer tried to characterize Love’s death as an “accident.” Hugely, of course, is facing first degree murder charges.

DUI Subsequent Offender Receives Probation

July 22, 2010 | Brian G. Thompson

As a Baltimore Maryland DUI/DWI Attorney I often represent people in DUI/DWI cases who have previously been convicted of a DUI or DWI in the past. These defendants are known as repeat or subsequent offenders in courthouse vernacular. Over the past few years prosecutors have begun to seek and judges have started to impose, harsher and harsher penalties including incarceration, even for defendants with only one prior offense. It is now pretty common for second offenders to receive 30 days or more and defendants with two or more prior convictions to serve sentences of six months or longer.

I blogged about a case a few weeks ago that I got involved after the sentence had been imposed and tried unsuccessfully to reverse the damage. In that case the defendant did not get into an accident, blew a .16 and had only one prior occurring 11 years prior to the second. He received a sentence of 4 months to serve in the Baltimore City Jail after the case was badly mishandled by his attorney. I represented a similarly situated second offender in the exact same court last week with a completely different outcome. Here are the facts.
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DUI Second Offender Sentenced to Four Months in Baltimore City

July 19, 2010 | Brian G. Thompson

As a Baltimore Maryland DUI/DWI Lawyer I handle DUI’s almost every day in the District Courts of Baltimore City and Baltimore County. Because I am always in court I am often in a position to watch other attorneys handle, and in many cases mishandle, DUI cases. I have blogged many times in the past about these cases usually positing the question, “are you being represented by the right lawyer”.

I recently got involved in a DUI case that was badly mishandled by another attorney in Baltimore City Circuit Court. Here are the facts:
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Federal Drug Case Motion to Suppress

June 24, 2010 | Brian G. Thompson

As a Former Assistant United State’s Attorney and current Maryland Federal Criminal Attorney I have handled hundreds of Federal Drug Cases. Before as a prosecutor and now as a defense attorney I am often amazed at how quickly and often lawyers plead their client’s guiilty in highly defensible cases.

I take the opposite approach and employ a scorched earth policy of fighting every case on every level before even considering a plea to include attacking the validity of search warrants which many attorneys never even consider. Here is a written motion to suppress we filed in a case recently attacking the warrant and moving to suppress the evidence.
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On Appeal, Firm Frees Defendant Serving 10 Year Sentence

May 26, 2010 | Steven D. Silverman

Today in the case of State v. Campbell, Silverman, Thompson, Slutkin and White’s criminal appeals lawyers convinced the Maryland Court of Special Appeals to reverse a Circuit Court for Baltimore County Judge thereby winning the freedom of a client serving a ten year sentence-without parole. The firm did not represent the client at the trial, but after the bad result, was retained to handle the appeal.

The Facts:

Baltimore County police see a drug transaction conducted from a Lincoln navigator. The police stop the buyer who says he bought drugs from the vehicle. The police lose sight of the vehicle. Four hours later, the police stop the car with guns drawn. The defense argued there was no probable cause to stop the vehicle four hours later because the police had no description of the sellers of narcotics four hours before. Judge Dana Levitz of the Circuit Court for Baltimore County said there was probable cause and sentenced the defendant to ten years without parole.

The Court of Special Appeals vacated the conviction and agreed that there was no probable cause to arrest the occupants of the vehicle when there was no reason to believe that the same persons who operated the vehicle earlier were occupying the vehicle at the time of the arrest.
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Maryland Court of Special Appeals Vacates First Degree Murder Conviction

May 26, 2010 | Steven D. Silverman

Today, the Maryland Court of Special Appeals vacated a murder conviction because defendant’s right to counsel violated.

Facts:

The victim was stabbed in Hagerstown Maryland. Based on a review of images captured by security cameras, Adams was a suspect. Adams fled the scene but was picked up on a parole violation in Baltimore. He was brought back to Hagerstown for questioning. He was advised of his rights per Miranda, executed a waiver and made inculpatory statements. Adams was then charged with first degree murder and counsel entered his appearance. Months later, the prosecutor asked the detective to serve on Adams the notice seeking life without parole. The detective went to the detention center. Criminal defense counsel was not present. After seeing the notice, Adams said “why is the state going after me so hard?” The detective said “because you stabbed a guy 32 times.” Adams responded that he only stabbed the guy seven times and then went into detail about where he stabbed him. Defense counsel moved to suppress the statements. The trial court denied his motion.

Ruling:

The Court of Appeals, citing Edwards v. Arizona and other cases, noted that there were no Miranda warnings given at the second meeting and therefore there was no intentional knowing and intelligent waiver of his right to have counsel of record present. The Court held that, under the totality of the circumstances, any reasonable police officer would have reasonably anticipated Adams would respond to the detective’s accusation and that regardless if the detective acted in good faith, this encounter was the functional equivalent of interrogation.
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Supreme Court Rules Life without Parole Sentence For Juvenile Offender Violates Eighth Amendment Prohibition Against Cruel and Unusual Punishment

May 24, 2010 | Brian G. Thompson

As a Baltimore Maryland Criminal Defense Attorney, I routinely handle matters charged in the juvenile courts of Baltimore County, Baltimore City and throughout the metropolitan area. Last week the Supreme Court of the United States handed down its decision in Graham v, Florida, in what amounted to the most significant case concerning juvenile sentencing since it ruled that juvenile offenders could not face capital punishment.

In Graham, the Court ruled in a 6-3 decision that juvenile offenders could not face a sentence of life without the possibility of parole for crimes other than murder. The 6-3 spread is a little deceiving as Chief Justice Roberts agreed with the result in the Graham case but did not concur with the blanket prohibition on life without parole sentence adopted by the majority. Instead, Roberts opined that the sentences should be looked at on a “case by case” basis. Here are the facts of the Graham case:
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Attempted First Degree Murder Charges Dropped After Typical Case of Overcharging by the Baltimore City Police

May 20, 2010 | Brian G. Thompson

As a Baltimore Maryland Criminal Attorney I am often confronted with cases in which the Baltimore City Police (and occasionally police from other jurisdictions) take a simple misdemeanor case and charge it as a major felony. I have blogged about overcharging by the Baltimore City Police in the past and unfortunately it seems to be happening more and more frequently. Although these cases are typically reduced by State’s Attorney’s Office at the preliminary hearing, the fact that the police originally charged the case as a felony can result in major negative implications for the person charged.

First of all, the fact that the case was overcharged will almost invariably result in a much higher bail than would have otherwise been set had the case been properly charged as a misdemeanor. The increased bail amount will at best cost the defendant additional money to secure bail and at worst, cause the person to have to remain in jail until the case is set in for the preliminary hearing or even until the trial which could be months in the future. Also, the expungement statute precludes a person from having any count in a charging document expunged if the person is eventually convicted of any count. With criminal records so readily available these days on the Internet, having felony charges on one’s record, even if they are eventually dismissed, can cause serious problems for people in a variety of areas including employment, especially in today’s job market. I recently represented a person who was charged with attempted first degree murder for what was nothing more than a misdemeanor second degree assault. As in most cases, the overcharging of the case caused severe repercussions for the client. Here are the facts of the case:
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Date Rape Charges Dropped Against Baltimore College Student

May 20, 2010 | Brian G. Thompson

https://www.silvermanthompson.com/lawyer-attorney-1300820.htmlAs Baltimore Maryland Criminal Attorneys, we are often called upon to defend college students and other young people who are charged with what is commonly termed “date rape” allegations. These allegations invariably involve young women who are highly intoxicated on drugs or alcohol engaging in sexual activity that they later allege was non-consensual. The vast majority of these cases involve situations wherein the young woman involved became voluntarily intoxicated but we have seen several cases in which the so called “date rape drug” was found to be in the alleged victim’s system.

We have successfully defended a large number of these cases many of which having occurred on or around one of the numerous college campuses in the area. We recently defended an individual in just such as case and were able to have all charges against him dismissed prior to trial. This particular individual did not retain us until after he was charged which was a mistake on his part as we have successfully prevented many similarly situated individuals from ever being charged. Here are the facts of the case:
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Contested Maryland DUI Cases, Two Bites at the Apple!

May 10, 2010 | Steven D. Silverman

Most defendants charged with DUI, DWI and other drunk driving crimes in Maryland do not realise their right to appeal and have a brand new trial. All misdemeanor criminal and traffic charges in Maryland are first tried in the District Court. If a defendant is not satisfied with the judge’s decision, the defendant can appeal to the Circuit Court. Under the Maryland Rules, this is called an appeal de novo. An appeal de novo wipes the slate clean and is a brand new trial. Whether the appeal is a new trial heard by a jury or a plea bargain before a judge, it completely replaces the original decision in the District Court. Often times in difficult cases, it is sound strategy to take a shot in District court and if it is not favorable, appeal.

As experienced Maryland DUI lawyers, we have found that in difficult cases, our clients often fair much better on appeal than in the original trial. This is usually due to the fact that the higher court is used to dealing with the most serious crimes and a DUI is, relatively speaking, not as serious as murders, rapes, and other crimes the higher court is accustomed to dealing with. It may also have something to do with the fact that delay is always a friend of the defense for several reasons.
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