Defenses

JurisdictionMaryland

II. DEFENSES

The defenses outlined below are a sampling of defenses that should be considered regardless of the charge.

A. Charging Document Defenses

In Pedzich v. State,5 the Court of Special Appeals held that charges filed in the district court are charging documents subject to all of the constitutional, statutory, and regulatory requirements of charging documents.

1. Elements

It is well settled that each and every element of the offense must be specified in the charge.6 Traffic citations are notorious for failing to allege every element of a given offense.

2. Duplicity and disjunctivity

Duplicity, charging two offenses in a single count, and disjunctivity, joining two distinct offenses with an "or," are also devices for which counsel should be alert.7 Duplicity may be cured by an election before trial or by proving all of the offenses alleged at trial.8 A disjunctive charge should be dismissed without leave to amend.

3. Venue

All charging documents must allege the location of the court that has jurisdiction to hear the case.9

In McBurney v. State,10 the Court of Appeals recognized that venue cannot be amended. In the mid-1980s, officers wrote citations with a numerical code for the county. Many citations that alleged "16" as the county instead of Prince George's County were dismissed. The success of a similar defense, the officer neglected to write in an allegation that the offense occurred in the state of Maryland, led to the creation of the latest series of preprinted form citations with "MD" printed on the form.

4. Proper forum

Most traffic offenses must be initially filed in the District Court. The jurisdiction of the District and Circuit Courts are detailed in Cts. & Jud. Proc. §§ 4-301-02. The District Court has concurrent jurisdiction with the Circuit Court where the maximum jail time is three years and/or a $2,500 fine. In Fielding v. State, 238 Md. App. 262, 280, 189 A.3d 871, 882 (2018), the Court of Special Appeals held that the filing of subsequent offender penalties does not divest the District Court of original jurisdiction in DUI cases.

B. Discovery Violations

Maryland Rule 4-262 governs discovery in district court cases when there is a possible penalty of incarceration. It requires the state, on request, to furnish the defendant with their statements contained in a written report or written opinions of an expert; and, without a request, to furnish exculpatory information under Brady v. Maryland.11 Most state's attorney's offices have an open file policy. They send a letter to counsel offering open file discovery. Counsel should probably respond with a letter asking the state to copy and send them copies of the police report and later except if the discovery is incomplete. Counsel has the option of asking the judge to rule on exceptions prior to trial or waiting until the trial to object to discoverable information that the state failed to provide prior to trial. Rule 4-262 vests a great deal of discretion in the judge as to whether to impose a sanction for a discovery violation and what the sanction should be. A sample of a discovery motion and a response to the state's open file letter are included at the end of this chapter.

C. Continuances

Maryland Rule 4-271(b) governs continuances in the district court. Good cause is required for a continuance.

PRACTICE POINTER

Some judges have an informal policy of allowing each side one continuance in major motor vehicle cases. After that, absent extenuating circumstances, the court will deny additional postponement requests. A witness's unexplained absence is often determined not to be good cause. If the request is from the state and is denied, the state may be forced to nolle prosequi the charges.

D. Speedy Trial—Sixth Amendment

Barker v. Wingo12 sets up a four-part balancing test to determine if there has been a violation of the right to a speedy trial: the length of the delay; the reason for the delay; the defendant's assertion of the right to a speedy trial; and the prejudice to the defendant. Counsel's appearance line13 should include a demand for a speedy trial. In Divver v. State,14 the Court of Appeals held that a one-year and 10-day delay from the date of the offense to the date of trial, where none of the delay was attributable to the defendant, violated the defendant's state constitutional right to a speedy trial.

E. Double Jeopardy

Double jeopardy is applicable in numerous situations to defeat a prosecution.

1. Prior acquittal/conviction

Cameron v. State15 and Gianiny v. State16 recognize that a prior acquittal or conviction for the same offense will preclude a subsequent prosecution. In Gianiny, the defendant forfeited the collateral on a citation of negligent driving for $45. The Court of Appeals held that the forfeiture of collateral results in a conviction. Gianiny could not be prosecuted for the greater offenses because negligent driving is a lesser included offense of motor vehicle manslaughter, homicide while under the influence and while impaired by alcohol, and because payment of the citation resulted in a prior conviction. Subsequent cases have clarified that this defense only applies when the State has issued a citation for the lesser offense, but not yet charged the defendant with the greater offense. In Huff v. State17 and Schrimsher v. State,18 the Court of Appeals held that if all charges are filed at the same time, the defendant may not avoid prosecution for the more serious alcohol related offense by paying off lesser included offenses (citations).

Additionally, in the case of manslaughter and homicide, the defense does not apply where the defendant paid a citation for negligent driving 17 hours before the victim died.19

2. Res judicata

In Maryland, the applicability of the res judicata doctrine in criminal cases is an open question. Many jurisdictions will separate criminal charges from traffic charges placed at the time of an arrest. An issue that was reserved in State v. Ferrell20 was whether the common law doctrine of res judicata applies in criminal cases. The Ferrell court recognized, but avoided resolving, the tension between Cousins v. State21 and Cook v. State.22 Judge Karwacki, who wrote for the Court of Special Appeals In Ferrell, concluded that the interests of finality coupled with the inadequacy of exclusive reliance on the Blockburger test requires application of res judicata in a criminal setting.23

Although developed in the civil context, res judicata has been held to apply with equal force in criminal cases.24 When applied in criminal matters, res judicata acquires a constitutional dimension by reason of the Double Jeopardy Clause.25 The court in Cook v. State said:

[A] final and valid judgment rendered in one proceeding between two parties operates as a bar in a second proceeding between them on all matters that have been or could have been decided in the original litigation, where the second proceeding involves the same subject matter as the
...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT