Home Medical Malpractice Law Digest — Court of Appeals, Court of Special Appeals — Sept. 8, 2022

Law Digest — Court of Appeals, Court of Special Appeals — Sept. 8, 2022

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Maryland Court of Appeals

Negligence; educational malpractice doctrine: Where parents sued school officials for not protecting their minor daughter from injuries from other students, the educational malpractice doctrine did not bar the claims. The court has not applied the educational malpractice doctrine to claims that were not based upon educational placement or pedagogical decisions and it declined to expand the doctrine to cover the negligence claims asserted by the parents. Gambrill v. Board of Education of Dorchester County, No. 34, Sept. Term, 2021 (filed Aug. 26, 2022).

Constitutional; redistricting : Where challengers to the most recent districting plan adopted by the General Assembly failed to demonstrate the plan was unconstitutional, it was approved by the court. In the Matter of the 2022 Legislative Districting of the State, Misc. Nos. 21, 24, 25, 26 and 27, Sept. Term, 2021 (filed Aug. 31, 2022). 

Criminal; search of cellphone: Where a warrant allowed the police to search a cellphone for “all information” and “any other data stored or maintained inside of” the phone, it violated the Fourth Amendment’s particularity requirement. But because the warrant was not so facially deficient that the executing officers acted unreasonably in relying on it, the good faith exception to the exclusionary rule applied here. Richardson v. State, No. 46, Sept. Term, 2021 (filed Aug. 29, 2022).

Insurance; intended third-party beneficiaries: Where insurance companies sought to void commercial general liability policies they issued to several Baltimore residential landlords, tort claimants who allegedly suffered bodily injuries while residing in the landlords’ rental properties are not third-party beneficiaries with the right to enforce the policies’ terms until they hold final judgments against the landlords or have entered into approved settlements with the landlords. CX Reinsurance Company Limited v. Johnson, No. 47, Sept. Term, 2021.

Criminal; illegal sentence: Where first-degree assault with a firearm was neither included in the charging document nor qualifies as a lesser-included offense of murder that can merge under the required evidence test, the defendant’s sentence for uncharged first-degree assault was illegal. Wright v. State, No. 3146, Sept. Term, 2018 (filed Aug. 30, 2022).  

Criminal; illegal sentence: Where the defendant was not advised at his plea and sentencing hearing that his sentence would be consecutive to both of his previously imposed sentences, the imposed sentence was illegal. State v. Williams, No. 802, Sept. Term, 2021 (filed Aug. 31, 2022).

Criminal; Miranda warning: Where an emergency medical technician, or EMT, asked the defendant how he was injured, the defendant’s response, which implicated his role in the events, was not obtained in violation of the Fifth Amendment. The EMT was neither a special police officer nor was he acting at the direction of law enforcement officers at the time he asked the question. Butler v. State, No. 1037, Sept. Term, 2021 (filed Aug. 31, 2022).

Criminal; expungement: Where the expungement statute requires the individual to have satisfied the sentence, including probation, and the individual here violated the terms of his probation, which resulted in the court imposing a four-day sentence and closing his probation unsatisfactorily, he was not eligible for expungement. In re Expungement Petition of Abhishek I., No. 904, Sept. Term, 2021 (filed Aug. 31, 2022).

Tort; parent-child immunity: Where Maryland courts have consistently reaffirmed the viability of the doctrine of parent-child immunity, the doctrine applied to bar the infant’s claims against his father. Grier v. Heidenberg, No. 2523, Sept. Term, 2019 (filed Sept. 1, 2022).

Medical malpractice

Classic credibility contest

BOTTOM LINE: Where the evidence was conflicting on whether the patient reported improvement of her symptoms, the circuit court erred by making a credibility determination on summary judgment.

CASE: Frankel v. Deane, No. 43, Sept. Term, 2021 (filed Aug. 25, 2022) (Judges Getty, Hotten Booth, Biran, GOULD, McDonald) (Judge Watts dissents).

FACTS: This is a medical malpractice case arising out of the removal of Casey Lou Deane’s lower and upper wisdom teeth by Dr. Bennett Frankel. Ms. Deane alleged that she suffered permanent loss of feeling in her tongue because Dr. Frankel severed the lingual nerve while extracting her wisdom teeth, and because Dr. Kim failed to promptly refer her to a nerve specialist. Ms. Deane subsequently amended her complaint to add Dr. Kim as a defendant.

The circuit court granted defendants’ summary judgment motions and dismissed Ms. Deane’s complaint with prejudice as to all defendants. It held that the opinions of the plaintiff’s experts were inadmissible.

The Court of Special Appeals reversed, finding that the trial court erred as a matter of law. The court disagreed with the trial court that Dr. Kramer’s failure to review the notes of Drs. Frankel and Kim rendered his opinions unreliable. According to the court, such failure would go to the weight of his testimony, not to its admissibility. The court also disagreed with the trial court’s interpretation that, pursuant to Meda v. Brown, 318 Md. 418 (1990), Dr. Kotikian’s opinions were inadmissible because they failed to meet the standard for inferences of negligence. Finally, it ruled that the court erred in determining that Ms. Deane was contributorily negligent.

LAW: Dr. Frankel’s records indicate that Ms. Deane reported improvement of her symptoms—Ms. Deane denied reporting any improvement. Dr. Frankel’s records regarding her missed follow-up appointment stated, “patient’s complaints getting better” and that she was “not coming back[.]” Ms. Deane, however, testified that during that time, she was having the “same issues” and that her “tongue . . . never restored any feeling.”

The conflicting evidence on these issues teed up a classic credibility contest for the jury—not the court— to resolve. By taking those factual issues away from the jury, the circuit court erred. The circuit court also impermissibly gave petitioners the benefit of favorable inferences drawn from evidence susceptible to more than one interpretation.

The circuit court also erred in finding that the only reliable way for diagnosing the nature and extent of Ms. Deane’s injury was through exploratory surgery, which she did not have. It relied solely on excerpts from the medical literature to reach this conclusion. However learned treatises are admissible only “when there is an expert witness on the stand.” Yet here, the court was interpreting the medical literature without the assistance of expert testimony. Moreover the medical literature does not appear to be inconsistent with Dr. Kramer’s testimony that the passage of two years since the surgery was the factor that enabled him to diagnose the severed lingual nerve utilizing the sensory examination.

Finally, as Dr. Kramer explained, his examination of Ms. Deane assessed her condition on the day he examined her. But so did Dr. Kim’s examination at three months post-surgery, and he used some, but not all, of the same sensory tests performed by Dr. Kramer. While the results of the testing from these different points in time were inconsistent and contradictory, no caselaw or evidence in this record mandates the conclusion reached by the circuit court that the latter test performed by Dr. Kramer was suspect and the earlier one by Dr. Kim was reliable. Again, any tension between the two tests should have been left for the jury to sort out.

The circuit court excluded Dr. Kotikian’s opinions on three grounds: (1) because they were based on Dr. Kramer’s opinion, which the court had deemed unreliable and inadmissible; (2) because Dr. Kotikian discounted Dr. Kim’s findings, as reflected in his notes, that three months after surgery, Ms. Deane was reporting improvement of her symptoms and (3) under Meda v. Brown, 318 Md. 418 (1990). The court concludes that the circuit court erred in its analysis of each ground, and therefore holds that the court erred in its ruling on Dr. Kotikian’s testimony.

In between the circuit court’s dismissal of Ms. Deane’s case with prejudice and the Court of Special Appeals’ reversal of the same, this court issued its decision in Rochkind v. Stevenson, 471 Md. 1 (2020), where it abandoned the Frye-Reed approach in favor of the approach articulated by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). On remand, the trial court will have the discretion to determine whether and to what extent petitioners will be permitted to challenge the admissibility of Ms. Deane’s experts’ testimony under the standard adopted in Rochkind.

Judgment of the Court of Special Appeals vacated.

DISSENT: I would affirm the judgment of the Court of Special Appeals reversing the circuit court’s grant of summary judgment. And because the issues concerning the admissibility of Ms. Deane’s experts’ testimony were resolved by the reversal and do not involve an issue preserved under Frye-Reed or Maryland Rule 5-702, the case should be remanded for trial, rather than for a hearing under Rochkind.

Constitutional

Redistricting

BOTTOM LINE: Where challengers to the most recent districting plan adopted by the General Assembly failed to demonstrate the plan was unconstitutional, it was approved by the court.

CASE: In the Matter of the 2022 Legislative Districting of the State, Misc. Nos. 21, 24, 25, 26 and 27, Sept. Term, 2021 (filed Aug. 31, 2022) (Judges Watts, Hotten, Booth, MCDONALD) (Judges Getty, Biran, Gould dissent).

FACTS: The Maryland Constitution requires that the boundaries of the state’s legislative districts be adjusted after each decennial national census. The Maryland Constitution assigns the decisions on how to re-draw district lines to the political branches of state government – the governor and the General Assembly. Inevitably, there are disputes about the best way to re-draw the district maps and about whether the new districts comply with the constitutional criteria.

This case concerns the most recent districting plan adopted by the General Assembly. The validity of that plan was promptly challenged by four separate petitions. Consistent with past practice, the court enlisted the assistance of a special magistrate to conduct a hearing and provide findings of fact and conclusions of law concerning the issues raised by the challengers. At the conclusion of that process, the special magistrate recommended that the challenges be rejected.

The challengers filed exceptions to the special magistrate’s recommendation. On April 13, 2022, the court heard oral arguments on those exceptions and, later that day, denied the petitions by order with an opinion to follow. This is that opinion.

LAW: The court’s well-established case law on challenges to legislative redistricting sets a high bar for the challenger even when the schedule is not as compressed as it was on this occasion. The petitioners in these cases did not clear that bar.

Yet it must be acknowledged that some of the allegations in the petitions raise meaningful questions about the basis for the location of boundaries of several districts and of the appropriate use of subdistricts for the election of members of the House of Delegates. Clearer expression of the basis for the location of the boundaries of districts would have promoted not only this court’s confidence that it has decided the case correctly on an adequate record, but also the public’s trust in its government.

Nonetheless, the petitioners’ evidence fell short of the proof needed to establish the unconstitutionality of a redistricting plan. The court accordingly concludes that: (1) the petitioners in Misc. No. 25 did not present compelling evidence that the adopted plan subordinated the requirements of Article III, §4 to partisan gerrymandering and other political concerns, as alleged in the petition in that case; (2) the petitioners in Misc. No. 26 did not present compelling evidence that the use of a mix of multi-member and single-member districts in the adopted plan violated Article III, §4, or other provisions of the Maryland and federal constitutions and (3) the petitioner in Misc. No. 27 did not present compelling evidence that the adjustment of population numbers required by statute and the use of adjusted numbers in the designation of subdistricts in District 2 violated Article III, §4 of the Maryland Constitution and did not establish that those subdistricts violated the Fourteenth Amendment to the United States Constitution.

DISSENT: Judge Getty has raised serious, colorable issues with respect to the legislative redistricting plan adopted by the General Assembly. So too, in my view, did the petitioners in Misc. Nos. 25 and 27. That being the case, I believe that the majority misallocated the burdens of production and persuasion, and misapplied the legislative privilege.

In my view, instead of the order issued on April 13, 2022, this court should have kept the hearing open, ordered the state to choose between: (i) answering the four questions as to which the state asserted legislative privilege or (ii) suffering the consequence of adverse inferences, and reconvened the hearing promptly to consider the petitioners’ exceptions in light of the state’s response or lack thereof to such order.

Thus, when this court voted on April 13, 2022, although I found merit in much of Judge Getty’s analysis, the deference this court owed to the political and policy choices of the General Assembly left me reluctant on April 13, 2022, to disregard the General Assembly’s plan without first giving the state another opportunity to provide the information necessary for us to conduct a proper review.

DISSENT: The petitioners in Misc. No. 25 have established by compelling evidence that certain districts in the adopted plan are not compact. The Attorney General nevertheless argues that, if districts in the current plan are consistent with shapes previously “blessed” by this court in prior districting cycles, the compactness inquiry is over.

Following this rationale, the majority skirts past this court’s fundamental responsibility and fails to reassert the firm standard on compactness established in the 1982 districting. Thus, the majority misses an opportunity for this court to refine a compactness standard that will apply during the current era of high-powered computer analytics and voter microtargeting used in the mapping of Maryland’s legislative districts.

Under our original jurisdiction, this court also has the obligation to ensure that the public is fully informed during the process of redrawing legislative districts and that all elements of that process are transparent and open to public access. For the first time in our districting cases, the General Assembly has asserted legislative privilege over the process used in determining the boundaries for the state legislative districts.

The majority accedes to the assertion of legislative privilege for staff actions that occurred totally outside of “their legislative conduct [] or events that occurred in a legislative session.” I fundamentally disagree with the majority’s opinion because it condones the use of legislative privilege to evade a discovery request for data, for which there is a limited exception, as opposed to the deliberative process, which is privileged.

I would sustain certain of the Misc. No. 25 petitioners’ exceptions and hold that petitioners produced compelling evidence demonstrating that numerous challenged districts in the adopted plan are violative of Article III, § 4’s requirement that districts be compact in form and give due regard to the boundaries of political subdivisions.

Criminal

Search of cellphone

BOTTOM LINE: Where a warrant allowed the police to search a cellphone for “all information” and “any other data stored or maintained inside of” the phone, it violated the Fourth Amendment’s particularity requirement. But because the warrant was not so facially deficient that the executing officers acted unreasonably in relying on it, the good faith exception to the exclusionary rule applied here.

CASE: Richardson v. State, No. 46, Sept. Term, 2021 (filed Aug. 29, 2022) (Judges Getty, Watts, Hotten, Booth, BIRAN, Battaglia, McDonald).

FACTS: After school resource officer Young broke up a fight in which Anthony J. Richardson was involved, Richardson’s backpack dropped from his body to the ground. The officer and Richardson reached for the backpack simultaneously; the officer picked it up before Richardson could do so. Richardson then ran from the scene.

In the backpack were a firearm, three cellphones and Richardson’s school ID card. Further investigation established that one of the phones in Richardson’s backpack had been stolen in a robbery three days earlier. The police obtained a warrant that authorized the officers to search for “[a]ll information, text messages, emails, phone calls (incoming and outgoing), pictures, videos, cellular site locations for phone calls, data and/or applications, geo-tagging metadata, contacts, emails, voicemails, oral and/or written communication and any other data stored or maintained inside of [the phone].”

Richardson moved to suppress the fruits of the warrantless search of his backpack and of the warranted search of the cell phone. The circuit court denied Richardson’s suppression motion as to both searches, and Richardson entered a conditional guilty plea under which he preserved his right to appeal the circuit court’s adverse suppression rulings. The Court of Special Appeals affirmed denial of Richardson’s suppression motion.

LAW: Fourth Amendment protection from a warrantless search does not extend to property that has been abandoned by its owner. In this case, the objective facts indicate that Richardson intended to relinquish his privacy interest in the backpack when he fled the scene.

After Young picked up the backpack, Richardson did not say or do anything to suggest that he intended to return to the scene and retrieve the backpack at a later time. Rather he ran off at “full speed.” Richardson knew he had not left the backpack in a secure location or in the care of a person who understood that he intended to return for it later. At that point, in light of what had just transpired, Richardson reasonably understood that someone would look through the backpack, if for no other reason than to try to determine to whom it and its contents belonged.

It is true that, before Young picked up the backpack, Richardson indicated that he wanted to retain possession of the backpack – and his expectation of privacy in its contents – by reaching for it. Based on this circumstance, Richardson contrasts this case with other abandonment cases in which individuals, upon seeing police, discarded objects while fleeing. This is a distinction without a difference. Richardson’s initial expression of intent to maintain his privacy interest in the backpack did not set that intent in stone. Richardson’s subsequent flight showed that he changed his mind.

Richardson also attempts to distinguish this case from other abandonment-by-flight cases on the basis that, here, the flight followed a thwarted attempt to retain his property. But this distinction, too, is immaterial. When someone sees a police officer, runs off and discards an object while on the move, it is clear that the person, until the moment of discarding, manifested an intent to maintain their expectation of privacy in the object. The fact that Richardson manifested his pre-flight intent by reaching for his backpack, rather than by maintaining continuous possession of the backpack, is of no moment.

Turning to the search of the phone, to comply with the Fourth Amendment, a search warrant: (1) must be based on probable cause; (2) must be supported by oath or affirmation and (3) must describe with particularity “the place to be searched, and the persons or things to be seized.” The search warrant complied with the first two of these requirements. However, in authorizing the officers to search for “all information” and “any other data stored or maintained inside of” the phone, the warrant violated the Fourth Amendment’s particularity requirement. Although the court agrees with the state that the detective’s supporting affidavit was incorporated into the warrant for purposes of assessing its particularity, the incorporation does not render it sufficiently particular under the Fourth Amendment because the affidavit also included catchall language.

However the warrant – as supplemented by the incorporated affidavit – was not so facially deficient that the executing officers acted unreasonably in relying on it. Thus, the good faith exception to the exclusionary rule applies here. For this reason, the circuit court properly denied Richardson’s motion to suppress the fruits of the warrant to search the T-Mobile iPhone SE.

Judgment of the Court of Special Appeals affirmed.

Insurance

Intended third-party beneficiaries

BOTTOM LINE: Where insurance companies sought to void commercial general liability policies they issued to several Baltimore residential landlords, tort claimants who allegedly suffered bodily injuries while residing in the landlords’ rental properties are not third-party beneficiaries with the right to enforce the policies’ terms until they hold final judgments against the landlords or have entered into approved settlements with the landlords.

CASE: CX Reinsurance Company Limited v. Johnson, No. 47, Sept. Term, 2021 (filed Aug. 29, 2022) (Judges Getty, Watts, Hotten, Booth, BIRAN, Harrell, McDonald)

FACTS: For many years, CX Reinsurance Company Limited and Liberty Mutual Mid-Atlantic Insurance Company issued commercial general liability policies to several Baltimore residential landlords that included coverage for bodily injuries resulting from lead paint exposure at the landlords’ rental properties. After allegedly discovering material misrepresentations in the landlords’ initial policy applications, CX filed contract rescission actions against the landlords in 2015. Eventually, CX and the landlords settled the rescission cases. Under the terms of the settlements, the coverage for lead paint-related losses was substantially reduced or, in some instances, completely eliminated.

In this case, 15 tort claimants allege that they suffered bodily injuries as a result of their exposure to lead paint while residing in the landlords’ rental properties. The majority of the claimants had not obtained final judgments against, or entered into settlements with, the landlords before CX and the landlords settled the rescission cases.

The claimants filed suit against the insurers and the landlords, seeking a declaration that: (1) the claimants are “intended third-party beneficiaries” of the policies and (2) the settlements between CX and the landlords do not modify or affect the insurance proceeds available under the policies to indemnify the landlords with respect to judgments obtained by the claimants against the landlords. The circuit court ruled that the claimants are intended beneficiaries of the policies and granted summary judgment in the claimants’ favor. The Court of Special Appeals affirmed.

LAW: Under the plain language of the policies, tort claimants do not become intended beneficiaries with the right to enforce the policies’ terms until they hold final judgments against the landlords or have entered into approved settlements with the landlords. Several of the policies’ terms lead to this conclusion.

These provisions collectively reflect that the parties did not intend to confer a benefit on a tort claimant who has not obtained a final judgment against, or who has not entered into an approved settlement with an insured. The “primary parties in interest” in the policies are the landlords, who receive protection for losses, and the insurers, who provide that protection in exchange for the payment of premiums. Thus, tort claimants without final judgments or settlements are not additional parties in interest under the plain language of the policies. In other words, they are incidental beneficiaries to the policies.

The claimants attempt to avoid this straightforward reading of the policies’ language by contending that under Megonnell v. USAA, 368 Md. 633 (2001), a tortfeasor has a “legal obligation” to pay damages from the moment a claimant is injured as a result of tortious conduct, rather than when the claimant enters into a settlement or prevails at trial. Megonnell did not involve the question of whether a tort claimant without a judgment was an intended beneficiary of an insurance policy. Instead Megonnell’s holding is consistent with the policies’ recognition of approved settlements as providing vested rights to tort claimants. The court also disagrees with the claimants’ contention that “[t]he surrounding circumstances of liability insurance policies establish that those policies are not private contracts between the insurer and policyholder to benefit only the policyholder.”

While the claimants contend that the direct action statute reflects the existence of a Maryland public policy to “recognize[] injured tort claimants’ coverage rights, regardless whether they hold tort judgments,” the court is not persuaded. If the General Assembly had intended to provide enforcement rights to tort claimants who have not obtained judgments or entered into approved settlements, it presumably would have drafted Maryland’s direct action statute differently.

In conclusion, the three claimants who obtained judgments against their landlords before the rescission case settlements became intended beneficiaries of the policies with the right to enforce their terms as of the dates they obtained their verdicts in the trial court. The claimants who did not obtain final judgments against their landlords prior to the applicable rescission case settlements were incidental beneficiaries of the policies at the time of the settlements.

Judgment of the Court of Special Appeals affirmed in part, reversed in part.

Criminal

Illegal sentence

BOTTOM LINE: Where first-degree assault with a firearm was neither included in the charging document nor qualifies as a lesser-included offense of murder that can merge under the required evidence test, the defendant’s sentence for uncharged first-degree assault was illegal.

CASE: Wright v. State, No. 3146, Sept. Term, 2018 (filed Aug. 30, 2022) (Judges NAZARIAN, Zic, Tang).

FACTS: Gregg Lamonn Wright was convicted in 2001 for, among other things, first-degree assault and the use of a handgun. In 2018, he filed a supplemental motion to correct an illegal sentence, arguing that his 25-year sentence for first-degree assault is illegal because he was never charged with that crime. The motions court denied the motion.

LAW: Mr. Wright was accused of participating in a 1998 shooting that involved three victims. In case no. 052, Mr. Wright was charged with murder; using a handgun in the commission of a felony or crime of violence and unlawfully wearing, carrying and transporting a handgun. In cases nos. 053 and 054, Mr. Wright was charged with murder; first-degree assault; second-degree assault; using a handgun in the commission of a felony or crime of violence and unlawfully wearing, carrying and transporting a handgun. The jury acquitted Mr. Wright of first-degree murder and convicted him of three counts each of first-degree assault, second-degree assault, use of a handgun in the commission of a crime of violence and wearing, carrying and transporting a handgun.

Although a short-form indictment charges all forms of homicide, and thus the first- degree murder charge meant that he could be convicted of either degree of murder or manslaughter, the absence of a first-degree assault charge in case no. 52 requires the court to determine whether first-degree assault is a lesser-included offense of murder. The court holds that the firearm modality of first-degree assault is not a lesser-included offense of second-degree murder.

First-degree assault with the use of a firearm includes the element of possessing a firearm. But a homicide, whether in the form of murder in either degree or manslaughter, can be committed without a firearm. And “‘if each offense contains an element which the other does not, there is no merger under the required evidence test even though both offenses are based upon the same act or acts.’” So if Mr. Wright was  convicted of first-degree assault in the firearm modality, which is not a lesser-included offense of murder, his sentence for first-degree assault is illegal because it was neither charged expressly nor a lesser-included of an offense that was.

The factual question is which modality of first-degree assault underlies Mr. Wright’s conviction in this case? The jury found Mr. Wright guilty of first-degree assault, but the record does not reveal which modality of first-degree assault the jury accepted or whether the jury unanimously agreed upon a modality at all. Although the court doesn’t have the transcripts or records from the original 2001 trial, the motions court believed the jury was instructed on both modalities of first-degree assault. But because Mr. Wright also was found guilty of the firearm charges, the firearm modality of first-degree assault seems the more likely basis for the jury’s guilty verdict.

The record doesn’t provide any clarity, but the connection between Mr. Wright’s conviction on the firearm charges and the nature of the homicides at issue creates ambiguity about whether, if not a distinct likelihood that, the jury found him guilty of assault in the first-degree with a firearm. And that ambiguity is enough for these purposes: since first-degree assault with a firearm was neither included in the charging document nor qualifies as a lesser-included offense of murder that can merge under the required evidence test, Mr. Wright’s sentence for first-degree assault in case 052 is illegal.

Because Mr. Wright was convicted of multiple offenses and the circuit court imposed multiple sentences, the sentences imposed as an inter-related scheme in case no. 052 constitute a package. This court’s reversal of Mr. Wright’s first-degree assault sentence disturbs the trial court’s intended overall sentence, and the trial court should be allowed to reconsider the overall sentence in the context of the counts that remain. Accordingly, the sentences in case no. 052 are vacated and the case is remanded for resentencing on all counts other than first-degree assault.

Judgment of the Circuit Court for Baltimore City reversed.

Criminal

Illegal sentence

BOTTOM LINE: Where the defendant was not advised at his plea and sentencing hearing that his sentence would be consecutive to both of his previously imposed sentences, the imposed sentence was illegal.

CASE: State v. Williams, No. 802, Sept. Term, 2021 (filed Aug. 31, 2022) (Judges Kehoe, LEAHY, Beachley).

FACTS:  Artiis Ricardo Williams struck another inmate with his fists while incarcerated. The “consecutive sentence” requirement of Maryland’s inmate assault statute provides: “A sentence imposed under this section shall be consecutive to any sentence that the inmate was serving at the time of the crime or that had been imposed but was not yet being served at the time of sentencing.”

Williams pleaded guilty to second-degree assault on an inmate and was sentenced to one year and one day imprisonment, “consecutive to the last sentence to expire of all outstanding and unserved sentences.” Months later, Mr. Williams filed a motion to correct an illegal sentence.

He argued that his sentence was not permitted by law because it was imposed consecutive to two other consecutive sentences: a 25-year sentence that he was serving at the time he assaulted the other inmate; and a 12-year sentence for a separate crime which had been imposed after the assault took place but before he was ultimately sentenced for the assault conviction. In other words, he was sentenced to serve one year and one day at the expiration of his 12-year sentence which is consecutive to his 25-year sentence.

He argued that the “or” in CR§ 3-210(b) should be read as exclusive, requiring that he be sentenced to a term consecutive to either the sentence that he was “serving at the time of the crime” or a sentence that “had been imposed but was not yet being served at the time of sentencing.”

The circuit court granted Mr. Williams’s motion, finding that his plea was not knowing and voluntary because during the plea and sentencing hearing, he was advised that the sentence for his assault conviction would be imposed consecutive only to the 25-year sentence that he was serving at the time of the assault. The court then resentenced Mr. Williams to a term of one year and one day, consecutive only to the sentence that he was serving on the date he assaulted the other inmate. The state appealed.

LAW: The state and Mr. Williams predominantly disagree on the meaning of the word “or” in CR § 3-210(b). However, because the state challenges the trial court’s authority to impose the underlying sentence modification, the court first examines whether the statute’s consecutive sentence requirements are mandatory before it considers how the word “or” in CR § 3-210(b) operates to describe what is required.

The Maryland General Assembly’s use of the word “shall” in CR § 3-210(b) confirms that the statute’s requirements for imposing a consecutive sentence are mandatory. A survey of Maryland decisional law reveals that the word “shall” is consistently assigned this mandatory meaning when it appears in a criminal sentencing statute. Had the legislature intended to vest sentencing judges with the discretion to impose consecutive sentences onto sentences of their choosing under CR § 3-210, it would have included a permissive term, such as “may.” This interpretation of the plain language of § 3-210(b) also aligns with CR § 3-210’s role in the larger statutory scheme.

Turning to the primary question in dispute, by requiring that a sentence imposed under CR § 3-210(b) “shall” be consecutive to “any” eligible sentence, the General Assembly intended that the sentence be imposed to “every” eligible sentence. To assign a disjunctive meaning to the word “or” in CR § 3-210(b) would undermine this intent, as it would, plainly, allow sentencing judges to impose sentences that were consecutive to some, but not every, eligible sentence.

Considering, in context, the mandatory terms of CR § 3-210 together with the all-encompassing meaning of the word “any” preceding the sentences described in CR § 3- 210(b), the only logical construction of the word “or” in CR § 3-210(b) is that it operates as an inclusive conjunction. Therefore, the language of the statute requires that a sentence imposed under CR § 3-210 “shall” be consecutive to the last to expire of “any” sentence that the inmate was serving at the time of the assault as well as “any” sentence that had been imposed, but that the inmate was not yet serving, at the time of sentencing. This interpretation is confirmed by the legislative history.

In the underlying case, the court correctly found that Mr. Williams was not advised at his plea and sentencing hearing that his sentence would be consecutive to both of his previously imposed sentences. At this juncture, the court should have vacated the sentence and given Mr. Williams the opportunity to withdraw his plea and stand trial. Instead, the court imposed an illegal sentence. As such, its judgment is reversed, the illegal sentence is vacated and this case is remanded for further proceedings consistent with this opinion.

Judgment of the Circuit Court for Harford County reversed and sentence vacated.

Criminal

Miranda warning

BOTTOM LINE: Where an emergency medical technician, or EMT, asked the defendant how he was injured, the defendant’s response, which implicated his role in the events, was not obtained in violation of the Fifth Amendment. The EMT was neither a special police officer nor was he acting at the direction of law enforcement officers at the time he asked the question.

CASE: Butler v. State, No. 1037, Sept. Term, 2021 (filed Aug. 31, 2022) (Judges WELLS, Beachley, Salmon).

FACTS:  This appeal arises from the tumultuous arrest of Stanley Charles Butler during which he initially fled from law enforcement officers, and when apprehended, assaulted several of them. After being taken into custody and upon being transported to receive medical care, EMT Keith English asked Butler about how he became injured. A police officer was also present in the ambulance. In response to one question the EMT asked him, Butler said that he “should not have went for that weapon.”

Butler moved to suppress his statement made in the ambulance, asserting that it was obtained in violation of his Fifth Amendment right against compelled self-incrimination, as he had not been advised of his Miranda rights. The suppression court denied his motion. A jury subsequently convicted Butler on all counts, and, over counsel’s objection to merge one of the second-degree assault convictions with resisting arrest, the trial court sentenced him to a total of 23 years’ imprisonment.

LAW: Viewing the evidence in the light most favorable to the state, it was not clear error for the suppression court to find that EMTs are not commissioned police officers, nor was it clear error for the court to have credited English’s testimony that his question to Butler was aimed only at providing medical care. Nor was it clear error for the court to have found that Officer Kilgore was not involved in, nor did she direct or in some way influence, English’s questioning.

Butler’s only argument below was that English could have had no purpose other than to elicit incriminating information from him in asking “how we got here,” because, in Butler’s view, English was already aware of the events that led to Butler’s injuries. But Butler presented no evidence to support this contention. Indeed, English testified to the contrary. This court cannot say that court’s decision to credit English’s testimony was clearly erroneous.

A private citizen may have acted as a state agent for purposes of the Fifth Amendment and entitlement to Miranda warnings where that citizen is a special police officer or acts at the direction of law enforcement officers in carrying out questioning of the accused. Because the suppression court expressly found neither condition satisfied and did not clearly err in doing so, it was legally correct in concluding that English was not acting as a state agent. It follows that English’s question to Butler did not amount to interrogation; therefore, Miranda warnings were not required.

Butler next contends that his motion for judgment of acquittal of attempting to disarm a law enforcement officer under Criminal Law Article § 4-103 should have been granted, as there was no evidence Butler had the requisite specific intent to remove Deputy Johnson’s weapon from his person.

Viewing the evidence in the light most favorable to the state—that Butler admitted to English that he “went for” the officer’s weapon, and that his hand was indeed gripping Johnson’s weapon in the photograph taken during his scuffle with officers—the court cannot say that no rational trier of fact could have inferred beyond a reasonable doubt that Butler knowingly attempted to take Johnson’s firearm from his person.

Butler also argues that the trial court erred in refusing to merge his conviction for second-degree assault into his conviction for resisting arrest on three grounds: (1) the special verdict sheet was insufficient under Nicolas v. State, 426 Md. 385 (2012); (2) the evidence was insufficient to support that Butler assaulted Johnson before the initiation of the arrest and (3) the indictment did not include a separate second-degree assault charge other than the assault underlying the resisting arrest charge.

The court first holds that Nicolas does not require merger merely because an assault occurs after an arrest is initiated. Second, based on the evidence presented, the prosecutor’s closing statement and the specialized verdict sheet, there is no ambiguity that the jury’s verdict was based on separate and distinct acts. Further, Butler’s reliance on Thompson v. State, 119 Md. App. 606 (1998), is misplaced. Thus, the trial court did not err in not merging Butler’s convictions for second-degree assault against Johnson and resisting arrest.

Judgment of the Circuit Court for Dorchester County affirmed.

Criminal

Expungement

BOTTOM LINE: Where the expungement statute requires the individual to have satisfied the sentence, including probation, and the individual here violated the terms of his probation, which resulted in the court imposing a four-day sentence and closing his probation unsatisfactorily, he was not eligible for expungement.

CASE: In re Expungement Petition of Abhishek I., No. 904, Sept. Term, 2021 (filed Aug. 31, 2022) (Judges GRAEFF, Shaw, Raker).

FACTS:  In August 2008, appellant pleaded guilty to theft of property with a value under $500. The court sentenced him to one year of incarceration, suspended, with one year of supervised probation.

Several months after he was sentenced, appellant was charged with violating the conditions of his probation to obey all laws and not illegally possess any controlled dangerous substance. In March 2010, appellant pleaded guilty to that violation. The court sentenced appellant to four days’ incarceration, and it closed probation “unsatisfactorily.”

On Dec. 3, 2020, appellant filed a petition for expungement of the 2008 theft conviction. In response, the state argued that because appellant’s probation had been closed unsatisfactorily, the conviction was ineligible for expungement. Following a hearing, the court denied appellant’s petition. It stated that, for appellant to be entitled to expungement, he had to “satisfy” his sentence, “including probation,” which meant that he needed to complete his probation without violating it, which appellant did not do.

LAW:  The question presented here is whether appellant’s petition for expungement met the requirements of CP § 10-110(c)(1), which provides: “[A] petition for expungement under this section may not be filed earlier than 10 years after the person satisfies the sentence or sentences imposed for all convictions for which expungement is requested, including parole, probation, or mandatory supervision.”

Appellant argues that he satisfied “the sentence imposed for his conviction of theft under $500 and the sentence imposed for violating his probation, which was four days.” The court disagrees. Although he may have satisfied his four-day sentence for the violation of probation, he did not “satisfy” his original sentence of one year of supervised probation. He did not fulfill or comply with the conditions of probation.

Rather, within months, appellant violated the terms of his probation, which resulted in the court imposing the four-day sentence and closing his probation unsatisfactorily.  Under these circumstances, appellant did not fulfill, comply with, or meet the terms of his probation, and pursuant to the plain meaning of CP § 10-110(c)(1), he did not “satisfy” his sentence of probation.

Despite this plain language of the statute, appellant suggests that the statute is ambiguous. Appellant notes that the General Assembly has used different language in other expungement statutes relating to when a petition for expungement may be filed. However the court is not persuaded that the language in CP § 10-110(c)(1) is ambiguous.

Nevertheless, the court may look to legislative history to confirm its conclusion regarding the intent of a statute. Based on the plain language of CP § 10-110(c)(1), the language of other statutory provisions and the legislative history, the court concludes that, because appellant violated the terms of his probation for his theft conviction, and his probation was closed “unsatisfactorily,” he did not “satisfy” the sentence imposed for the conviction for which expungement was requested, as required for eligibility under CP § 10-110(c)(1).

Judgment of the Circuit Court for Montgomery County affirmed.

Tort

Parent-child immunity

BOTTOM LINE: Where Maryland courts have consistently reaffirmed the viability of the doctrine of parent-child immunity, the doctrine applied to bar the infant’s claims against his father.

CASE: Grier v. Heidenberg, No. 2523, Sept. Term, 2019 (filed Sept. 1, 2022) (Judges KEHOE, Reed) (Judge Arthur, concurs)

FACTS:  The contentions in this appeal involve the scope and continuing viability of the doctrine of parent-child immunity, first applied in Maryland nearly a century ago in Schneider v. Schneider, 160 Md. 18 (1930), and the doctrine’s interaction with the provisions of Maryland’s wrongful death statute, Md. Code, Courts & Jud. Proc. §§ 3-901-04.

Michaelangelo Heidenberg died on July 21, 2016. He was the son of Claudia Grier and Timothy Heidenberg. Ms. Grier, in her own name and as the personal representative of Michaelangelo’s estate, filed a wrongful death and survival action against Mr. Heidenberg and his mother, Marguerite Heidenberg. The circuit court ultimately dismissed Ms. Grier’s operative complaint with prejudice insofar as it asserted claims against Mr. Heidenberg. The court also certified its judgment as final for purposes of appellate review pursuant to Md. Rule 2-602(b).

LAW:  Eight jurisdictions in the United States never adopted the doctrine of parent-child immunity. The remaining states, whether by judicial decision or legislation, have either abrogated the doctrine in favor of more narrowly-tailored concepts of immunity, or have retained the doctrine while recognizing exceptions to it. Maryland falls into the latter category.

Currently, there are four exceptions to the parent-child immunity doctrine in Maryland. One is the statutory modification enacted by the General Assembly in 2001, and amended in 2005, which is codified as Courts & Jud. Proc. § 5-806. The remaining three were established by the Court of Appeals. Two of these are not relevant to the present case: Parent-child immunity does not apply in actions when the parent and the child were adults at the time of the tortious conduct.

Nor does parent-child immunity bar a negligence action by a minor child against a business partner of a parent for injuries received while working at the partnership’s business. The fourth exception is that the parent-child immunity does not apply where, as a result of the tortfeasor’s criminal conduct, “any remaining [family] relationships are . . . likely to be sufficiently shattered to be beyond further impairment by a lawsuit.”

The current state of Maryland law is that the primary public policies furthered by the parent-child immunity are shielding from judicial interference matters relating to family integrity, harmony and the exercise of parental discretion in the discipline and care of children. The Court of Appeals and this court have repeatedly declined to abrogate the doctrine.

The most factually similar Maryland case Smith v. Gross, in which the Court of Appeals held that parent-child immunity applied in a case in which a child died as a result of a parent’s negligence. Ms. Grier’s contention that Smith was abrogated or otherwise undermined in Bushey v. Northern Assurance Co. of America, 362 Md. 626 (2001), and Mummert v. Alizadeh, 435 Md. 207 (2013), is not persuasive.

Ms. Grier asserts that, in light of existing Maryland caselaw and the facts of this case, Mr. Heidenberg is precluded from asserting parent-child immunity as a defense. This contention consists of two parts. The first is that defendants in wrongful death actions are precluded as a matter of law from raising parent-child immunity because “parent-child immunity does not survive the death of the child.”

The second is that Maryland’s wrongful death statute, codified at Courts & Jud. Proc. §§ 3-901-904, “is a wholly independent cause of action [in] which the defense of parent-child immunity—which expired with Michaelangelo’s death—cannot be employed to defeat the claims of his surviving statutory beneficiaries.” Neither of these contentions is persuasive.

Judgment of the Circuit Court for Howard County affirmed

CONCUR: I join the majority opinion in every respect but one: I disagree with the statement that “societal mores, expectations, and values” have not “changed sufficiently since 2001” for a court “to abrogate the doctrine of parent-child immunity in its entirety.” If it were my decision, which it is not in view of stare decisis and the limits on our power as an intermediate appellate court, I would abrogate the doctrine in order to permit a recovery in this case.

 





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