text:
    132 A.3d 882
    Jacob Lee CHISUM v. STATE of Maryland.
    No. 0077,
    Sept. Term, 2015.
    Court of Special Appeals of Maryland.
    Feb. 25, 2016.

      Allison M. Sayers (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.
    Edward J. Kelley (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for Appellee.
    Panel: GRAEFF, FRIEDMAN, CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), JJ.
   CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), J.

The appellant, Jacob Lee Chisum, was convicted in the Circuit Court for Wicomico County by Judge W. Newton Jackson, III, sitting without a jury, of attempted second-degree murder, first-degree and second-degree assault, reckless endangerment, carrying a weapon openly, and carrying a concealed weapon. For the attempted second-degree murder, Judge Jackson imposed a sentence of thirty years, with all but fifteen years suspended.

On this appeal, the appellant raises three contentions, each expressly challenging the legal sufficiency of the evidence to support one of the three guilty verdicts. The appellant does not challenge the sufficiency of the evidence to support the convictions for reckless endangerment, first-degree assault, and second-degree assault. The appellant does challenge the legal sufficiency of the evidence to support the convictions for both carrying a weapon openly and carrying a concealed weapon and, most significantly, to support the conviction for attempted second-degree murder. That is the flagship contention of this appeal.

The Precise Issue of Legal Sufficiency

As we prepare to address that flagship contention, let it be clear that we are not going to indulge the appellant in manufacturing a law school examination hypothetical of error where in the real-life trial before us, no such error occurred. We will require of the appellant, moreover, the same meticulous precision in the framing of his primary contention that he would demand of the trial judge in explaining his verdict. Appellants themselves should not be lax in challenging laxity. The appellant’s primary contention is unambiguous:

“The evidence was insufficient to convict Mr. Chisum of attempted second degree murder.”

The issue there framed is unequivocally the legal sufficiency of the evidence to permit a conviction for attempted second-degree murder. What must be found to be sufficient, moreover, is not the ostensible fact-finding of the trial judge, as argued for by the appellant, but the sufficiency of the evidence itself.

The Factual Background, Briefly

The evening of September 27, 2014, was a festive one in Salisbury as William “Dirty” Ayers invited seven or eight of his friends to join him in the shed behind his Mother’s home for what he described as some “typical friendly banter among friends that evening with a lot of drinking.” As the festivities progressed, he characterized his own condition as “wasted.” Among the celebrants were the appellant and the ultimate stabbing victim, Wayne Handy. The “typical friendly banter” turned to the fine points of high couture, as the appellant and Handy clashed over which of the two of them had the “fliest” (loosely translated by Handy as “the best”) clothes and shoes.

The host, Ayers, had his back to the disputants when he heard “a whole bunch of ruckus” behind him with Handy suddenly announcing, “Oh, man, he got me.” As Ayers turned to look, he saw “blood everywhere” and Handy, bent over, holding his abdomen and bleeding. The appellant was standing in the doorway of the shed, with a knife in his hand.

At that point, the party broke up. Handy, still bleeding, ran across the street. The appellant ran and jumped into his car. Ayers followed the appellant to his car and manifested his displeasure by throwing first a bicycle and then a chair at his troublesome guest. In the meantime, someone had called the police. Ayers then ran to assist Handy, who was at that point lying in the yard and bleeding.

It was Handy who, as a witness, described how, as the conversation between him and the appellant about clothes and shoes grew more heated, the appellant left the conversation “for a split second” and then came back. Handy heard the “open click of a knife” and instantly felt the pain of being stabbed. There was a single stab wound to the stomach area. Handy was transported to the hospital where he underwent surgery. He had suffered a laceration of the liver. Shortly after fleeing the scene, the appellant was apprehended at the scene of a traffic stop. A search of the car revealed a fixed blade knife in a sheath in the driver’s seat pocket.

The Burden of Production: The 66-Year History of the Legal Sufficiency Test

It behooves us initially to focus on precisely what the appellant’s contention about the legal sufficiency of the evidence entails or, more dispositively, on what it does not entail. Our ultimate holding will be framed exclusively in response to the appellant’s challenge to the legal sufficiency of the evidence to support the attempted murder verdict. It behooves us to demarcate clearly what an examination of the legal sufficiency of the evidence entails, and what it does not entail. It is a precise contention and not a broad umbrella.

In a jury trial, the scope of the legal sufficiency issue is clear. Maryland Rule of Procedure 4-324 requires an appellate court to review the legal sufficiency of the evidence if, at the close of all of the evidence, a timely motion for a judgment of acquittal has been made by the defendant. Brooks v. State, 299 Md. 146, 150, 472 A.2d 981 (1984) (“In determining the disposition of a motion for judgment of acquittal ..., the trial court is passing upon the sufficiency of the evidence to sustain a conviction.”). Absent such a motion, no review of the legal sufficiency of the evidence is even permitted. As Judge Kenney explained for this Court in Whiting v. State, 160 Md.App. 285, 308, 863 A.2d 1017 (2004):

“Rule 4-324(a) requires that, as a prerequisite for appellate review of the sufficiency of the evidence, appellant move for a judgment of acquittal, specifying the grounds for the motion.”

See also Graham v. State, 325 Md. 398, 416-17, 601 A.2d 131 (1992); Bates v. State, 127 Md.App. 678, 691, 736 A.2d 407 (1999).

When dealing with the issue of legal sufficiency in a jury trial, we are dealing only with the satisfaction of the burden of production. Was the evidence sufficient, as a matter of law, to permit the judge to submit the case to the jury for its decision? We are not at all concerned with how the factfinder arrived at the verdict, the logic or illogic of the factfinder’s reasoning, but only with the naked verdict itself. How the factfinding jury rendered its verdict may, to be sure, be a critical issue. We are not for a moment suggesting otherwise. It would be nonetheless an issue separate and distinct from the issue of whether the State has satisfied its burden of production by producing legally sufficient evidence to permit a verdict of guilty.

In the case now before us, we are dealing with a court trial and not with a jury trial. The factfinder was a judge and not a jury of 12 persons whose decisional processes are forever both beyond our ken and beyond our authority to review. The question becomes one of whether appellate review of the evidence is broader in a bench trial than it is in a jury trial. The reviewing authority is spelled out in Maryland Rule 8-131(c), which provides:

“When an action has been tried without a jury, the appellate court will review the case on both the law and evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.”

(Emphasis supplied).

There is one big and obvious difference between the review of a verdict on the evidence in a jury trial and in a court trial. Such review of a jury’s verdict is absolutely contingent on an underlying motion for a judgment of acquittal. Such a review on the evidence of a judge’s verdict, on the other hand, is automatic. What remains to be seen is whether there is any further difference between the substance of the respective reviews. The literal wording of Rule 8-131(c) is that “the judgment of the trial court” (the verdict) will not be set aside “on the evidence unless clearly erroneous.” (Emphasis supplied). Is the verdict in a bench trial that is not clearly erroneous the same, neither more nor less, than a jury verdict that is supported by legally sufficient evidence? No question could be more basic for an appellate court charged with reviewing criminal convictions.

The absolutely seminal analysis in this regard was made by the five charter members of this Court in the second year of its existence. The monumental opinion of Judge Orth in Williams v. State, 5 Md.App. 450, 452, 247 A.2d 731, cert. denied, 252 Md. 734 (1969), set out to examine “the authority and function of this Court in its review of the sufficiency of the evidence in a criminal case.” The issue was one of first impression, as the opinion pointed out that there was no authority for an appellate court to review the sufficiency of the evidence in a non-jury case until January 1, 1950 and no authority to review such sufficiency even in a jury case until a constitutional amendment effective as of December 1, 1950. Brooks v. State, 299 Md. 146, 149, 472 A.2d 981 (1984) (Until 1950, the Court of Appeals “had no power to review the legal sufficiency of evidence on appeal of a criminal case tried to a jury.”). Then as now, the language authorizing review in a non-jury case referred to a verdict’s not being “set aside on the evidence unless clearly erroneous” and the authorizing language in a jury trial referred to “the sufficiency of the evidence to sustain a conviction.” 5 Md.App. at 454, 247 A.2d 731.

As this Court, then reviewing essentially nothing but criminal cases (hence the word “Special” in its very name), undertook its review of the legal sufficiency of evidence in criminal cases, the inquiry was fundamental.

“The question arises as to what test is to be applied on appeal in determining the sufficiency of the evidence (1) to sustain a conviction in a non-jury case, and (2) to justify its submission to the jury in a jury case.”

5 Md.App. at 456, 247 A.2d 731. (Emphasis supplied).

Judge Orth’s opinion made it clear that in a jury trial and a court trial alike,- we are measuring a verdict against the supporting evidence itself and not looking at what a judge might say in rendering the verdict.

“Once the question of the sufficiency of the evidence is properly before us, we believe that the criteria used to determine the question is the same, be the verdict rendered by the court or a jury.”

5 Md.App. at 458, 247 A.2d 731 (emphasis supplied).

The issue of legal sufficiency is precisely the same under either trial modality. In a court trial just as in a jury trial, the issue is the satisfaction of the burden of production.

“We think that whether the question comes before us as a contention that the trial court was clearly wrong in reaching a verdict of guilty on the evidence or as a contention that the evidence was insufficient in law so as to preclude it from being submitted to the jury, the test is whether the evidence either shows directly or supports a rational inference of the facts to be proved, from which the trier of fact could fairly be convinced, beyond a reasonable doubt, of the defendant’s guilt of the offense charged. If there was such evidence, the lower court would neither be clearly erroneous, in a trial without a jury, in finding a verdict of guilty, nor in error, in a jury trial, in denying a motion for judgment of acquittal.”

5 Md.App. at 459-60, 247 A.2d 731 (emphasis supplied).

In Wilson v. State, 261 Md. 551, 276 A.2d 214 (1971), the opinion of this Court in Williams v. State was squarely before the Court of Appeals, as the appellant there, 261 Md. at 563-64, 276 A.2d 214, raised the following challenge:

“The appellant advances the proposition that the test to be applied in appellate review of the sufficiency of the evidence in a criminal case has been changed by the decision of the Court of Special Appeals in Williams v. State, 5 Md.App. 450, 247 A.2d 731 (1968)[.]”

Judge Finan’s opinion for the Court of Appeals, 261 Md. at 565, 276 A.2d 214, found nothing improper in Williams and used it as the standard by which to hold the evidence legally sufficient in that case.

“Applying the test set forth in Williams to the evidence outlined in this opinion, the jury could honestly and justifiably have been convinced beyond a reasonable doubt that the appellant, in firing the final shot (if not the first three), was guilty of the wilful, deliberate, and premeditated murder of Walter ‘Kidd’ Henderson.”

In Barnes v. State, 31 Md.App. 25, 29, 354 A.2d 499 (1976), this Court, relying on Williams, pointed out that in a bench trial, what is automatically before the appellate court for review is the legal sufficiency of the evidence, just as it would upon proper motion be before the Court in a jury trial.

“In a criminal action tried before a jury, appellate review of the sufficiency of the evidence may be had only upon the denial of a motion for judgment of acquittal at the close of all the evidence.... In a criminal action in which the court is the trier of fact, the appellate court must entertain the issue of the sufficiency of the evidence when presented on appeal even in the absence of a motion for judgment of acquittal below. Williams, 5 Md.App. at 46 [456], n. 10[ 247 A.2d 731.]”

(Some internal citations omitted).

This Court has been unwavering in its commitment to that essential identity of the tests for legal sufficiency. In Starke v. Starke, 134 Md.App. 663, 668-69, 761 A.2d 355 (2000), we made it clear that the phrase “clearly erroneous” in Rule 8-131(c) refers only to whether the verdict is supported by legally sufficient evidence and not to peripheral incidents in its rendition.

“Rule 8-131 (c) does not apply to evidentiary rulings, even rulings that have a critical influence on the outcome of the case. Neither does Rule 8-131(c) apply to ancillary or intermediate findings of fact (or non-findings of fact), even those that might control, as in this case, whether a presumption of undue influence arising out of a confidential relationship should arise.

“Rule 8-131(c) applies only to verdicts, conferring on an appellate court the authority to review a verdict on the evidence. Historically, no such authority existed in either court trials or jury trials. In a jury trial, however, it effectively existed because a trial judge’s legal decision as to whether the evidence was sufficient to permit the case to be submitted to the jury was reviewable as a matter of law. No such review of the sufficiency of the evidence was traditionally available in a court trial, however, because a judge, in his capacity as a legal referee, was not required to make a legal ruling before submitting the case to himself, in his capacity as a fact finder.”

(Emphasis supplied).

We reiterate that the ultimate appellate review of the sufficiency of the evidence, if triggered, is precisely the same in a jury trial and in a bench trial alike. In a jury trial, the required trigger is a motion for a judgment of acquittal pursuant to Rule 4-324(a). Absent such a timely motion, the appellant forfeits his right to have the legal sufficiency of the evidence reviewed by the appellate court. In a bench trial, by contrast, the trigger is Rule 8-131(c). After a bench trial, appellate review of the legal sufficiency of the evidence is automatic and does not require a motion by the appellant.

In the most basic of terms, the critical issue, regardless of the trial modality, is whether the State has satisfied its burden of production. The issue of legal sufficiency of the evidence is not concerned with the findings of fact based on the evidence or the adequacy of the factfindings to support a verdict. It is concerned only, at an earlier pre-deliberative stage, with the objective sufficiency of the evidence itself to permit the factfinding even to take place. The burden of production is not concerned with what a factfinder, judge or jury, does with the evidence. It is concerned, in the abstract, with what any judge, or any jury, anywhere, could have done with the evidence. It is an objective measurement, quantitatively and qualitatively, of the evidence itself. It is a question of supply and not of execution.

In a criminal case, no issue is more important than whether the State has satisfied its burden of production. The concern is with production, as a matter of law, and not with persuasion, as a matter of fact. The appellate assessment of the burden of production is made by measuring the evidence that has been admitted into the trial objectively and then determining whether that body of evidence is legally sufficient to permit a verdict of guilty. In a jury trial, a motion for a judgment of acquittal at the end of the entire case initiates the examination of the satisfaction of the burden of production. If that burden of production is not satisfied, the trial judge is wrong, as a matter of law, for denying the motion and for allowing the case even to go to the jury. In a bench trial, the purpose of Rule 8-131(c) is to provide, automatically, the same appellate review of whether the evidence satisfied the burden of production. If the evidence is not legally sufficient to support a verdict of guilty, the judge’s verdict of guilty is ipso facto clearly erroneous. In jury trial and bench trial alike, the burden of production, as a matter of law, must be satisfied.

This is the analysis that must be engaged in when an appellate contention challenges the legal sufficiency of the evidence to support a verdict of guilty. It is not an omnibus challenge or an amorphous challenge covering everything in the near neighborhood. It is a precise challenge to the satisfaction of the burden of production, neither more nor less. Legally sufficient evidence satisfies the burden of production. Legally insufficient evidence does not.

In a nutshell: In the appellate review of a criminal conviction, the State’s burden of production is the same in a jury trial and in a bench trial. In examining the satisfaction of that burden of production, the test of the legal sufficiency of the evidence to support the conviction is the same in a jury trial and in a bench trial. It was in 1950 that the burden of production became reviewable in both jury trials and bench trials. We are directed to apply that test by a motion for a judgment of acquittal in a jury trial and by Rule 8 — 131(c) in a bench trial. The test itself, however, is precisely the same.

An Argument Outside the Contention

What the appellant is attempting to do in this case is to squeeze under the rubric of a contention challenging the legal sufficiency of the evidence, an argument that goes to something other than the legal sufficiency of the evidence. The appellant appears to have been aware of this gatehouse function of the legal sufficiency issue before factfinding is even permitted to take place. Although not required to do so in a court trial, the appellant, at the close of all of the evidence, nonetheless moved for a judgment of acquittal, which Judge Jackson denied.

“[DEFENSE COUNSEL]: Yes, Your Honor. I would like to make a motion for judgment of acquittal as to all counts, most specifically I guess I will address count two, I guess the attempted second degree murder. I don’t believe we’ve heard any evidence regarding a specific intent to kill which is the intent required for attempted first .or second degree murder.

“THE COURT: Well, let me cut you off, I’m going to give you all your time obviously to make your motion, but wouldn’t thrusting a knife into someone’s abdominal region give an inference of some sort of intent to kill ?”

(Emphasis supplied).

At that point, the issue of the legal sufficiency of the evidence was already ripe for appellate review. All of the evidence was in and available for measuring. No subsequent trial event could affect that sufficiency, one way or the other. Any subsequent trial event, therefore, would have been irrelevant to the pure issue of legal sufficiency. We now turn that legal sufficiency test to the proof of the mens rea of attempted murder.

The Permitted Inference of the Intent to Kill

With respect to the evidence of the necessary mens rea, the appellant presents us with a classic problem from Introduction to Criminal Homicide 101. Even with an actus reus of a bullet to the heart or a knife to the abdomen, how do we deduce the mens rea that propelled the bullet or wielded the knife? Moylan, Criminal Homicide Law (MICPEL, 2002), § 3.2, “Proving the Intent to Kill,” p. 33, set out this basic introductory question and its now unequivocally accepted answer:

“Because the specific intent to kill lies hidden in the killer’s brain, ... its proof is sometimes problematic. It may be proved directly, if the killer proclaims his purpose even as he kills or if he acknowledges his purpose afterward. It may be proved indirectly, by evidence of bad blood between the killer and the victim, by an earlier expression of an intent to kill, by a strong motive, by profiting from the victim’s death, by an elaborate murderous scheme or plan, or by infinite varieties and combinations of circumstantial evidence. First and foremost in the ranks of proof, however, is the permitted inference of an intent to kill from the directing of a deadly weapon at a vital part of the victim’s anatomy.”

(Emphasis supplied).

The seminal Maryland case recognizing such inferential proof of the necessary mens rea is the opinion for this Court by Judge Orth in Lindsay v. State, 8 Md.App. 100, 105, 258 A.2d 760 (1969):

“If a man voluntarily and willfully does an act, the natural and probable consequences of which is to cause another’s death, an intent to kill may be inferred from the doing of the act. So, it has been consistently held, that in the absence of excuse, justification, or a mitigating circumstance, malice is inferred from the use of a deadly weapon directed at a vital part of the body.”

(Emphasis supplied; footnotes omitted).

The validity of that rationale is embedded deep in common law history. The ground-breaking value of the Lindsay opinion was in bringing Maryland’s procedural and evidentiary vocabulary constitutionally up-to-date by characterizing the rationale as the use of a “permitted inference” rather than continuing to use the anachronistic term of “factual presumption,” with all kinds of gnarled analytical problems, no longer troubling since we reformed our evidentiary vocabulary in the mid-1970’s.

In Evans v. State, 28 Md.App. 640, 349 A.2d 300 (1975), affirmed, 278 Md. 197, 362 A.2d 629 (1976), this Court undertook an intensive survey of homicide law. With respect to this permitted inference of murderous intent, we observed, 28 Md.App. at 704, 349 A.2d 300:

“The only inference of any significance in our homicide law is the permitted inference of an intent to kill or of an intent to do grievous bodily harm from the directing of a deadly weapon at a vital part of the human anatomy or from some similar use of deadly force.”

(Emphasis supplied).

In Smith v. State, 41 Md.App. 277, 281, 398 A.2d 426 (1979), we again referred to inferential proof of the intent to kill:

“In this particular case, the variety of intent we are dealing with is the specific intent to kill. In this regard, we have evidence that the appellant fired a sawed-off shotgun at point blank range into the chest of victim. This represents, quite clearly, the directing of a dangerous and deadly weapon at a vital part of the human anatomy. It is well established that this gives rise to a permitted inference of the intent to kill.”

(Emphasis supplied). See also, Baker v. State, 332 Md. 542, 548, 632 A.2d 783 (1993); State v. Raines, 326 Md. 582, 591-93, 606 A.2d 265 (1992); State v. Earp, 319 Md. 156, 167, 571 A.2d 1227 (1990); Buck v. State, 181 Md.App. 585, 642-43, 956 A.2d 884 (2008).

The Narrow Mens Rea of Attempted Murder

We fully agree with the appellant that the crime of attempted second-degree murder (as, indeed, the crimes of attempted first-degree murder and attempted voluntary manslaughter) require proof of a specific intent to kill. That is, indeed, the teaching of Earp v. State, 76 Md.App. 433, 545 A.2d 698 (1988) and State v. Earp, 319 Md. 156, 571 A.2d 1227 (1990). In Moylan, Criminal Homicide, § 3.15, “Attempted Murder in the Second Degree,” pp. 67-68, this nuance of homicidal mens rea was fully discussed:

“In Earp v. State and State v. Earp the conviction was for attempted murder in the second degree. The trial judge, in a court trial, seemed to have found that Earp did not harbor a specific intent to kill but only a specific intent to inflict grievous bodily harm. In reversing the conviction for the Court of Special Appeals, Judge Robert M. Bell pointed out that the mens rea of the inchoate crime of attempted murder is not as broad as the mens rea for consummated murder:

“An indispensable element of attempted murder, be it first or second degree, and the separate crime of assault with intent to murder, is the intent to murder. And although by application of the aggravating factors prescribed in Maryland Code Ann. art. §§ 407-410, an accused may be convicted of murder upon proof of an intent other than the specific intent to kill. Glenn [v. State], 68 Md.App. [379] at 388 [511 A.2d 1110 (1986) ], when the victim does not die, a necessary ingredient of the intent to murder is a specific intent to kill.

“(Citations omitted). With specific reference to the inadequacy of the intent to commit grievous bodily harm to sustain a conviction for the inchoate crime, the Court of Special Appeals concluded:

“A conviction for attempted second degree murder may not be sustained upon proof that the accused intended only to commit grievous bodily harm; a conviction for attempted second degree murder may only be sustained if the perpetrator is found to have harbored the intent to kill his victim.

“In affirming that holding following a grant of certiorari at the petition of the State, the opinion of Judge McAuliffe for the Court of Appeals pointed out that the common law attempt may attend any of the three grades of criminal homicide. ‘One may be guilty of an attempted murder in the first or second degree or of an attempted voluntary manslaughter.’ For any of them, however, the required mens rea is that of a specific intent to kill:

“The specific intent required to prove an attempt is the intent to commit a particular crime, in this case murder. Accordingly, the required specific intent in the crime of attempted murder is a specific intent to murder.”

(Footnotes omitted).

Just as the predicate fact of the use of a deadly weapon directed at a vital part of the human anatomy gives rise to a permitted inference of an intent to kill, it has been recognized as also giving rise to the permitted inference of an intent to inflict grievous bodily harm, a second of the murderous mentes reae. The same predicate fact, however, could give rise to an infinite number of other permitted inferences not necessarily involving homicide law — the intent to disfigure a rival before the beauty pageant, the intent to disable the opposing quarterback before the championship game, the intent to hospitalize a delegate before a key legislative vote. The predicate fact, notwithstanding giving rise to a treasure trove of permitted inferences, might, on the other hand, not persuade a jury to draw any inference at all. There is no requirement, moreover, that for one permitted inference to prevail, all other possible inferences must be negated or disproved.

The flaw in the appellant’s argument is that the availability of other permitted inferences does not in any way negate or compromise the validity and the legal sufficiency of the permitted inference of the intent to kill. It need not be the only possible inference in order to be, as it is, routinely recognized as legally sufficient proof of the intent to kill. Although the contention before us challenges exclusively the legal sufficiency of the State’s evidence to prove the mens rea of an intent to kill, it does not even argue how the evidence was legally insufficient.

An Argument, Even If Not A Contention

Turning his focus away from the legal sufficiency of the evidence, which clearly would have permitted a finding of an intent to kill, the appellant argues that Judge Jackson expressly found that the appellant did not intend to kill the victim and that that finding of fact would preclude a conviction for attempted murder. In his reply brief, the appellant asserts:

“[W]hat the trial court actually found was that ‘there clearly was an intent on the part of Mr. Chisum to cause serious physical injury.’ This is an implicit finding that there was not an intent on the part of Mr. Chisum to kill. Given the finding of no intent to kill, the evidence is insufficient to sustain a conviction for attempted second degree murder.”

(Italics in original, underlining supplied; transcript citation omitted).

As we will discuss more fully infra, our reading of the transcript in full context is that Judge Jackson made no such finding that there was no intent to kill. What the appellant is attempting to do is to deduce a negative finding from the absence of an affirmative finding. Such a finding, however, does not logically follow. In rendering his verdict, Judge Jackson did, to be sure, talk about the serious nature of the stab wound, but he was distinguishing it from a less lethal slashing of the arms or leg.

“[THE COURT]: Because it’s the abdominal region, there clearly was an intent on the part of Mr. Chisum to cause serious physical injury that could easily have lead to the death of Mr. Handy. It wasn’t as if he slashed at his arms or slashed at his leg, he went straight to the main part of the body where there are numerous organs. As the prosecutor pointed out, he [Mr. Handy], easily could have died. The Defendant is guilty under all counts.”

The flaw in the appellant’s reasoning goes deeper. He treats the two murderous mentes reae as if they are mutually exclusive. Sometimes they are. More frequently, however, they are compatibly overlapping or duplicative. Before, under more sophisticated modern analysis, the intent to inflict grievous bodily harm was recognized as an independent mens rea of its own in the case of a consummated homicide, the intent to inflict grievous bodily harm was recognized as a factual predicate from which a jury was permitted to infer an intent to kill. The same predicate moreover, such as the pointing of a deadly weapon at a vital part of the human anatomy, could give rise to a permitted inference of either of these two murderous intents or to both. The two intents are not mutually exclusive and the mention of how a knife wound can inflict grievous bodily harm is not an affirmative finding that there was no intent to kill. There was no such finding.

The appellant relies heavily on Selby v. State, 361 Md. 319, 761 A.2d 335 (2000), but that case is of no avail to him. The defendant there had been convicted of voluntary manslaughter. The Court of Appeals held that the intent to kill was a required element of voluntary manslaughter. It further held that the intent to inflict grievous bodily harm was not a sufficient mens rea. In that case, however, unlike the one at bar, there was an affirmative and express finding by the trial judge that the defendant did not have an intent to kill his victim. There was no such finding in the present case.

Decisional Rationale Need Not Be Articulated

The appellant also seems to take the trial court to task for not formally explaining its rationale as it rendered its verdict. In his brief, the appellant complains:

“The trial court never stated that Mr. Chisum actually intended to kill the victim. The single act of stabbing the victim cannot serve as a substitute for the requisite specific intent to kill.”

(Emphasis in original).

There is, however, no such requirement. In a court trial, the rendering of the verdict is governed by Maryland Rule 4-328, which provides:

“The District Court or a circuit court sitting without a jury shall render a verdict upon the facts and the law. Although not required, the court may state the grounds for its decision either in open court or by written memorandum.”

(Emphasis supplied).

The court is not required to explain its reasoning in arriving at the verdict. The verdict is permitted to speak for itself. As the Court of Appeals pointed out in Pugh v. State, 271 Md. 701, 707, 319 A.2d 542 (1974):

“Nothing more is required under the rule for a ‘verdict’ other than a deliberate pronouncement of ‘guilty’ or ‘not guilty’ in light of the facts and the law.”

Even more descriptive of the random nature of the comment in this case that the appellant would seize upon as holy writ is the observation of Judge Sally Adkins for the Court in Allen v. State, 157 Md.App. 177, 189, 850 A.2d 365 (2004), as we dismissed a similar contention.

“Cases in Maryland and elsewhere have recognized the difference between a ‘slip of the tongue’ or preliminary comments, on the one hand, and an actual resolution of the sufficiency issue on the other.”

The Enduring Value of The Preservation Requirement

Our disinclination to let the appellant take advantage of what was, at the very most, an ambiguity is fortified by the fact that the appellant did nothing to resolve that possible ambiguity. An overview of the progress of this trial yields the conclusion that the subtle difference between the intent to kill and the intent to inflict grievous bodily harm was never an issue in this case. Nobody was testifying with respect to it. Nobody was arguing about it. As a practical reality, nobody was even thinking about it. This issue is one of sheer appellate opportunism.

When Judge Jackson was rendering his verdict, therefore, his comments were nothing more than gratuitous and casual observations. He was not delicately treading sensitive ground between two nuanced mentes reae as if walking through a doctrinal minefield and we will not assess his off-hand comments or inadvertent phrasing as if he were. An arcane distinction between overlapping mentes reae was simply not a matter demanding the close attention of the court. No one had any occasion to be on high alert for sensitive distinctions.

If anything Judge Jackson said or did not say was even arguably ambiguous, moreover, the appellant did absolutely nothing to clarify such possible ambiguity. Had defense counsel raised the question, the judge would have made it clear within 20 seconds that he found an intent to kill. That was clear from his remark as he earlier denied the appellant’s motion for a judgment of acquittal. This is the core reason for the preservation requirement, to permit the judge to clarify what can readily be clarified if he is given the opportunity to do so. Quite aside from preservation, however, we see no error even if the present complaint had been preserved.

Carrying a Weapon, Both Openly and Concealed

We assure the appellant that he was not convicted of openly carrying a concealed weapon. That would be a conviction worthy of Yogi Berra and an affront to Eldridge v. State, 329 Md. 307, 312-15, 619 A.2d 531 (1993). The two charges and the two convictions, in dramatic contrast to Eldridge v. State, were in this case definitely sequential. In any event, the appellant was not sentenced on either conviction and the would-be problem totally evanesces.

The evidence showed that the appellant and the ultimate stabbing victim, Handy, were engaged in a verbal disagreement inside the shed. The appellant then left, went to his car, obtained the knife, returned to the shed, and stabbed Handy. As William Ayers turned to see what was happening and observed Handy bleeding and doubled over, he saw the appellant standing in the doorway of the shed with the knife in his hand. The appellant then walked back to his car with the knife. Were the issue not moot, we would hold that this evidence was legally sufficient to support the verdict for openly carrying a weapon. See Harrod v. State, 65 Md.App. 128, 140, 499 A.2d 959 (1985). The time period for this open carrying offense was immediately before, during, and immediately after the stabbing.

When 20 minutes later, the police arrested the appellant and searched his car, they found the knife concealed in the vehicle. This concealed carrying occurred an appreciable time after the stabbing and an appreciable distance from the scene of the stabbing. The difference between contemporaneity and sequentiality is heavily fact-specific. Our arguendo holding on the concealed weapon charge would have been in full agreement with the concession made by defense counsel in closing argument, “I understand under the facts that have been presented [that] there was a weapon located in the vehicle. I think I would have to submit on the evidence as to the concealed deadly weapon charge. There was a knife concealed in his vehicle so I will submit to that.”

We fully agree. In terms of 1) openly carrying a weapon and 2) carrying a concealed weapon, a defendant cannot do both at the same time. He may, however, do each at a different time, as the appellant did in this case. If he had been sentenced for these offenses (he was not), the sentences would not have been redundant.

JUDGMENTS AFFIRMED; COSTS TO BE PAID BY APPELLANT.

      . In State v. Albrecht, 336 Md. 475, 479, 649 A.2d 336 (1994), Judge Raker pointed out that when the issue after a bench trial conviction is the legal sufficiency of the evidence, the question is not what the particular trial judge in that particular case did with the evidence but whether the evidence itself was sufficient to permit “any rational trier of fact” to return a verdict of guilty based on that evidence,
      "In other words, when a sufficiency challenge is made ... the duty of the appellate court is only to determine 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [quoting Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)].”
      (Emphasis supplied).

      . Let us be absolutely clear about what we are not saying. We are not suggesting for a moment that there could not be reversible error in the manner in which a trial judge (or a jury for that matter) renders a verdict or comments upon his own findings of fact in rendering a verdict. There very well could be reversible error, if a contention were properly framed to challenge such error.
      In this case, as we shall fully explain infra, we hold that the trial judge committed no error in reaching his verdict. We are herein, for educational purposes, nonetheless discussing the necessity for properly framing precise contentions. Even if, purely arguendo, a trial judge made specific findings of fact that would not support a verdict of guilty, that verdict would, of course, be subject to legitimate challenge. Even if a jury, in rendering its verdict, gratuitously blurted out that based upon its specific findings it had rendered its verdict but those findings would not support a guilty verdict, that jury verdict might well be subject to legitimate challenge.
      We are simply making the point, as guidance for the proper framing of contentions, that those errors in the rendering of the verdict would be errors other than and different from a challenge to the legal insufficiency of the evidence. They would be errors that do not involve the burden of production. No such contentions have been made however, in this case, and arguments about such hypothetical errors do not come within the legal sufficiency contentions that are in this case.
      In this case, the trial judge, in rendering his verdict, did not commit any error. Even if, purely arguendo, he had committed an error in the manner suggested by the appellant, that error, fully reversible if timely preserved and properly the subject of a contention, would represent something other than an error based on the legal insufficiency of the evidence. Our discussion herein is not of error versus non-error. It concerns, rather, the framing of clear and precise contentions versus loose and flaccid contentions that could cover everything.


source: Caselaw Access Project

license: Public Domain

text:
    132 A.3d 895
    J. Thomas MANGER, et al. v. FRATERNAL ORDER OF POLICE, MONTGOMERY COUNTY LODGE 35, INC.
    No. 257,
    Sept. Term, 2015.
    Court of Special Appeals of Maryland.
    Feb. 25, 2016.

      Erin J. Ashbarry (Marc P. Hansen, Co. Atty., Edward B. Lattner, Chief Division of Government Operations, on the brief) Rockville, MD, for appellant.
    Margo Pave (Zwerdling, Paul, Kahn & Wolly, PC, on the brief) Washington, D.C., for appellee.
    Panel: WRIGHT, ARTHUR, ROBERT A. ZARNOCH (Retired, Specially Assigned), JJ.
   ROBERT A. ZARNOCH, J. (Retired, Specially Assigned).

The Law Enforcement Officers’ Bill of Rights (“LEOBR”), enacted in 1974 and presently codified at Maryland Code (2003, 2011 RepLVol.), §§ 3-101 through -113 of the Public Safety Article (“P.S.”), provides procedural protections for law enforcement officers under internal investigation. At issue in this appeal is the requirement that a police department keep a “complete record” of any interrogation of a police officer facing potential disciplinary proceedings. See P.S. § 3-104(k).

In late 2014, appellant, the Montgomery County Police Department (“MCPD” or the “Department”) altered its interrogation policy to utilize video recording technology to keep a complete record of interrogations of officers. When three officers were notified that they had been scheduled for interrogation, appellee, the Fraternal Order of Police, Lodge 35 (the “FOP”), filed a show cause petition on behalf of the officers in the Circuit Court for Montgomery County to enjoin the Department from keeping a video record of the interrogations. After a hearing, the circuit court found in favor of the FOP, ordered the officers’ interrogations to proceed without video recording, and issued an injunction prohibiting video recording of other officer interrogations.

The Department appealed and presents one question for our review:

Does the LEOBR’s requirement that a law enforcement agency keep a “complete record” of its interrogation of a law enforcement officer, which “may be written, taped, or transcribed,” limit the law enforcement agency to using audio tape and forbid the law enforcement agency from using video tape to record the interrogation?

Because we find nothing in the LEOBR that bars a police department from using a video recorder to keep a complete record of an interrogation conducted pursuant to the LEOBR, we reverse the judgment of the circuit court.

BACKGROUND

Three police officers employed by Montgomery County Police Department came under internal investigation in early 2015, after an arrestee filed a complaint against them. Before this investigation began, J. Thomas Manger, Chief of Police for the MCPD, in a memorandum dated November 24, 2014, directed the Internal Affairs Division to begin “video as well as audio recording of interrogations pursuant to LEOBR Sec. 3-104(k)(2).” Prior to this time, interrogations were audio recorded only. Before the interrogation could take place, the FOP filed a show cause petition in the circuit court on behalf of the three officers under investigation. The contested provision, § 3-104(k), provides that a department shall keep a “complete record” of its interrogation of an officer and that this record “may be written, taped, or transcribed.”

At a hearing held on March 17, 2015, the FOP sought to halt the video recording of all officer interrogations, arguing that the term “taped” in § 3-104(k)(2) permitted only audio recording of interrogations, and, thus, keeping a video record of the interrogation violated the LEOBR. The Department responded that the show cause petition was inappropriate because no right of the officers had been infringed. It also argued that interpreting the word “taped” to encompass video recording furthered the complete record requirement and allowed the Department to keep video records of officer interrogations.

On March 26, 2015, the court issued an opinion and an order finding for the FOP and prohibiting videotaped interrogations. Discounting the Department’s arguments, the court found that video recording could jeopardize the officer’s right to a fair hearing, and, accordingly, ruled that a show cause petition was appropriate. Next, the court determined that both the purpose and the specific terms of the LEOBR established that the provision at issue did not authorize video recording officers’ interrogations. Specifically, it held that “the statute, as written does not encompass video recording,” and enjoined appellants from using video recording devices during LEOBR-governed interrogations. The court also ordered the interrogations of the three officers under investigation to proceed without using video recording as a record-keeping method.

The Department appealed to this Court on April 15, 2015.

DISCUSSION

The heart of this case involves an interpretation of the LEOBR. We review a circuit court’s interpretation of statutory provisions de novo. Maryland-Nat’l Capital Park & Planning Comm’n v. Anderson, 395 Md. 172, 181, 909 A.2d 694 (2006). In statutory construction, three factors predominate: 1) statutory text; 2) statutory purpose; and 3) consequences of different statutory interpretations. Town of Oxford v. Koste, 204 Md.App. 578, 585, 42 A.3d 637 (2012), aff'd, 431 Md. 14, 63 A.3d 582 (2013). “Text is the plain language of the relevant provision, typically given its ordinary meaning, viewed in context, considered in light of the whole statute, and generally evaluated for ambiguity.” Id. (Citations omitted). Legislative purpose, gleaned either from the text or from external sources, informs our reading of the statute. Kaczorowski v. Mayor & City Council of Baltimore, 309 Md. 505, 512-15, 525 A.2d 628 (1987). Finally, “[a]n examination of interpretive consequences, either as a comparison of the results of each proffered construction, or as a principle of avoidance of an absurd or unreasonable reading, grounds the court’s interpretation in reality.” Koste, 204 Md.App. at 586, 42 A.3d 637 (Citations omitted).

Our analysis begins with an overview of the statute in question. The Law Enforcement Officers’ Bill of Rights was enacted in 1974 to provide procedural safeguards to police officers facing potential disciplinary proceedings. Section 3-104 describes the procedures that must be followed in an investigation or interrogation by a law enforcement agency of a law enforcement officer for a reason that may lead to disciplinary action, demotion, or dismissal. For example, the section specifies who may interrogate the officer, provides restrictions on the time, place, and conduct of the interrogation, and generally gives greater protections to officers than are given to ordinary criminal suspects.

The subsection at issue here, § 3-104(k), specifies that:

(1) A complete record shall be kept of the entire interrogation, including all recess periods, of the law enforcement officer.

(2) The record may be written, taped, or transcribed.

(3) On completion of the investigation, and on request of the law enforcement officer under investigation or the law enforcement officer’s counsel or representative, a copy of the record of the interrogation shall be made available at least 10 days before a hearing.

In this case, in accordance with the requirement in subsection (k)(l) that a “complete record shall be kept of the entire interrogation, including all recess periods, of the law enforcement officer,” the Department implemented procedures to visually record all interrogations.

The FOP contends that video recording violates subsection (k)(2) because the term “tape[]” does not encompass videotape or other visual recording. The FOP urges us to interpret subsection (k)(2) as providing the exclusive means to record the interrogation, i.e., in written form, audio tape, or transcription. We see no reason to do so. The plain text of the statute requires a “complete record” to “be kept of the entire interrogation[.]” Subsection (k)(2) lists several means of obtaining a complete record, declaring that the “record may be written, taped, or transcribed.” (Emphasis added). Nothing in the text of the statute indicates that the enumerated methods of creating a record are the exclusive methods that a police department may employ. On the contrary, the use of the term “may” indicates that the methods described are nonexclusive. This contrasts with the legislature’s use of the word “shall” in subsection (k)(l) to mandate that a complete record be kept. Subsection (k)(2) is permissive in nature, while subsection (k)(l) is mandatory.

The FOP urges us to employ the canon of statutory construction, noscüur a sociis, which suggests “that words grouped in a list should be given related meaning,” Massachusetts v. Morash, 490 U.S. 107, 114-115, 109 S.Ct. 1668, 104 L.Ed.2d 98 (1989), to interpret the words “written, taped, or transcribed” to refer to methods of preserving spoken word and not other aspects of the interrogation.

We first note that subsection (k)(l) requires that the record include more than just the unadorned words uttered during the interrogation, as demonstrated by the statute’s requirement that the record preserve the recess periods during the interrogation. Further, we would be remiss if we did not observe that the methods of recording suggested by the statute are able to record other information beyond the words spoken in interrogation. For example, many students of depositions and court transcripts know that attorneys occasionally request that the “record reflect” an action taken by a witness or a deponent, such as making a pointing gesture toward a defendant or nodding in agreement. A written or transcribed interrogation implemented pursuant to the LEOBR may contain these items as well.

An audiotape recording would contain even more information. The recording would preserve the atmosphere of questioning and the tenor of the officer’s response. It would also record the seconds or minutes that pass between the asking of the question and the response. And, it would record ineffable qualities such as confidence or anger, qualities certainly missing from a written or transcribed record. Thus, even employing the canon of statutory interpretation noscitur a sociis, the three words in subsection (k)(2) do not demand the narrow interpretation of only the spoken word. The disparate information that may be collected by each method belies the FOP’s interpretation of the subsection. In sum, we do not observe a commonality among these three methods — writing, taping, and transcribing — that requires us to interpret the statute as requiring the preservation of the spoken word and nothing more.

Taking another tack, the FOP requests that we define the term, “taped,” to include only audio recordings because audiotape was the most commonly used tape technology at the time. The FOP argues that the General Assembly would have inserted “videotape” or “DVD” during the recodification of the LEOBR sections of Article 27 into the Public Safety Article in 2003. “It is true that in endeavoring to ascertain legislative intent we may consider the circumstances existing and events occurring at the time of the statute’s passage; however, we must consider also that our laws are addressed to the future.” Kindley v. Governor of Maryland, 289 Md. 620, 625, 426 A.2d 908 (1981) (Citation omitted). The ultimate purpose of section 3-104(k) — to keep complete records of officer interrogations — and the use of the non-exclusive “may,” suggests that the legislature intended the provision to be capable of encompassing circumstances and situations which did not exist at the time of its enactment. See id. (citing 2A A. Sutherland, Statutes and Statutory Construction § 49.01 (4th ed. C.D. Sands 1973)). In addition, a construction of a statute which is “unreasonable, illogical or inconsistent with common sense should be avoided.” Id. (citing Comptroller v. John C. Louis Co., 285 Md. 527, 539, 404 A.2d 1045 (1979)). Keeping these principles in mind, we do not believe that the General Assembly intended to limit the methods of recording to those available when the LEOBR was enacted.

The FOP argues that allowing the Department to videotape interrogations will frustrate the purpose of the LEOBR and prejudice officers under investigation by giving the hearing board video evidence of an officer’s interrogation while making available only the written or transcribed testimony of other witnesses. On the contrary, however, we reach our conclusion with due regard to the purpose of the Law Enforcement Officers’ Bill of Rights, i.e., “ ‘guaranteeing] certain procedural safeguards to law enforcement officers during any investigation or interrogation that could lead to disciplinary action, demotion, or dismissal.’” Montgomery County, Maryland v. Fraternal Order of Police, Montgomery County Lodge 35, Inc., 427 Md. 561, 573, 50 A.3d 579 (2012) (quoting Coleman v. Anne Arundel Cnty. Police Dep’t, 369 Md. 108, 122, 797 A.2d 770 (2002)). Although the FOP argues that the sole purpose of the LEOBR is to give rights to officers, the text of the statute reveals a balance between the rights of officers and the prerogatives of the police department. See Miller v. Baltimore County Police Dept., 179 Md.App. 370, 384, 946 A.2d 1 (2008) (identifying substantial “rights by a police department during the course of an investigation [of an officer], such as interrogation and testing of blood alcohol, blood, breath, urine, and polygraph examination”). In our view, the LEOBR is not intended solely to benefit police officers — instead, it creates procedural rights while leaving to the reasonable discretion of the police department how best to investigate and remedy internal misconduct.

Looking at subsection (k) as a whole, it is clear that the emphasis is on keeping a complete record and not on the means used to create that record. See Widomski v. Chief of Police of Baltimore County, 41 Md.App. 361, 373, 397 A.2d 222 (1979) (emphasizing that the record may be kept using a combination of techniques, “so long as there is a complete and preserved record for the review by counsel and by a court, if there be an appeal”). Further, it places discretion in the hands of the Department to determine how to keep a complete record. Interpreting § 3-104(k) to allow methods of recording not widely available in 1974 does not frustrate the purpose of the LEOBR in providing procedural safeguards, in this case, keeping a complete record of the interrogation.

Presumably, a complete record of the interrogation, including breaks, allows the hearing board to understand the context in which any potentially incriminatory or exculpatory statements were made. It would be illogical to think that the legislature would want to restrict the means of recording interrogations to those only predominant at the time the bill was enacted — especially if technological advances allow a more complete record to be kept.

In the intervening years since 1974, the use of video evidence has become commonplace and videotape technology has been, to some degree, superseded by digital video recording. See White v. State, 223 Md.App. 353, 392, 116 A.3d 520 (2015) (two-way, live video testimony of remote witness); Videotape Evidence, 44 Am.Jur. Trials 171 (Originally published in 1992). Indeed, the Open Meetings Act and the Maryland Rules currently refer to videotape and video recording seemingly without distinction. See Md.Code (2014), General Provisions Art. § 3-306(e) (using the terms “video streaming” and “tape recording” interchangeably); compare Maryland Rule 8-415 (discussing appellate procedures when lower court record is made by videotape recording pursuant to Maryland Rule 16-405) with Maryland Rule 16-405 (describing audio-video recordings and not referring to “tape”). Possibly, years from now, a different recording method may become commonplace, supplanting video recording because it provides even greater fidelity in depicting an event.

In view of the plain text of the statute, its purpose, the consequences of restricting the “complete record” requirement to written and audio recordings only, and the fact that “our laws are addressed to the future,” Kindley, 289 Md. at 625, 426 A.2d 908, we hold that interrogations conducted pursuant to the LEOBR may be visually recorded in order to keep a complete record.

We are, however, mindful of the FOP’s concern that a video recording that captures only the image and words of the officer under interrogation could present a biased view of the interrogation and would fail to capture a “complete record” as required by § 3-104(k). To the extent that a police department uses video technology, it should endeavor to record all present at the interrogation, and especially the interrogator and the officer under investigation. Nevertheless, as the above analysis shows, the Department is permitted to utilize video recording methods to keep a complete record of officer interrogations. For this reason, we reverse the decision of the circuit court and dissolve the injunction prohibiting the Department from conducting interrogations by videotape.

JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY REVERSED. INJUNCTION DISSOLVED. COSTS TO BE PAID BY APPELLEE.

      . The officers under investigation were within the bargaining unit represented by Fraternal Order of Police, Lodge 35, and the FOP typically represents officers investigated under the LEOBR.

      . Unless otherwise indicated, all subsequent citations to the provisions of the LEOBR shall refer to the sections of the Public Safety Article.

      . Although the parties indicated that the interrogations of the three officers have since been completed without video recording pursuant to the circuit court’s order, the issue presented here is not moot because it is capable of repetition, yet evading review. Hammen v. Baltimore County Police Dept., 373 Md. 440, 451-52, 818 A.2d 1125 (2003). Under the strict statutory deadlines of the LEOBR, the challenged act— the video recording of an investigatory interview that may result in the imposition of discipline — is an act of such short duration that it would preclude the officer from obtaining review. The recording issue becomes moot as soon as the interrogation goes forward with or without video recording. See City of Round Rock v. Rodriguez, 317 S.W.3d 871, 879-80 (Tex.App.2010), rev'd on other grounds, 399 S.W.3d 130 (Tex. 2013).

      . The Court of Appeals described these protections in detail in Mohan v. Norris, 386 Md. 63, 67-68, 871 A.2d 575 (2005):
      These procedural protections include, among others, the right to be informed in writing of the nature of an investigation prior to any interrogation, the right to reasonable limitations on the structure, time, and place of an interrogation, the right to a complete written or transcribed record of any interrogation, the right to be notified of the name of any witness and all charges and specifications against the officer not less than ten days prior to any hearing, and the right to a copy of the investigatory file and any exculpatory information. § 3-104. If an investigation results in the recommendation of some disciplinary or punitive action against a law enforcement officer, the LEOBR, with limited exceptions, entitles an officer to a hearing before a hearing board composed of at least three other police officers. § 3-107. Procedures governing the hearing include the right to cross-examination and the power of the hearing board to compel the attendance of witnesses through subpoenas. Id. If, after a hearing and a finding of guilt, the hearing board determines that a disciplinary or punitive sanction is appropriate, the board makes recommendations to the chief of police of the appropriate police agency, who then must review the recommendations and issue a final order within 30 days. § 3-108. A final order may be appealed to the local circuit court and, thereafter, to the Court of Special Appeals. § 3-109. If a law enforcement officer is denied any of the rights afforded by the LEOBR, he or she may apply to a circuit court for an order directing the law enforcement agency to show cause why a right should not be granted. § 3-105.

      . Videotape technology — the recording of moving images with magnetic tape — was invented in the early 1950s, and was used primarily in broadcast television throughout much of the 1950s and 1960s. See Eric D. Daniel, C. Denis Mee, & Mark H. Clark, Magnetic Recording: The First 100 Years 137-41 (1999). With the advent of the video cassette in the 1970s, video recording technology slowly became available to consumers. Id. at 182-98. Videotape is still used for archival purposes, but has been supplanted in most recording situations by digital video recording technology. See Antonio Manriquez & Tom McCluskey, Video Production 101 9-13 (2014).

      . We observe that the Revisor’s Note from the 2003 recodification declares that section 3-104 contains "language derived without substantive change from former Art. 27.” Laws of 2003, ch. 5.

      . In oral argument, the Department argued that the word "taped” should be read to include digital video recording, as well as videotape recording. Under the statute, it is possible that the complete record requirement could be satisfied using digital video recording as well. However, the Department, in its question presented, asked us only to consider whether the LEOBR “forbid[s] the law enforcement agency from using video tape to record the interrogation.” Thus, we need not conclusively decide the digital recording issue.


text:
    132 A.3d 903
    Charne SPENCER v. ESTATE OF Leonidas G. NEWTON, et al.
    No. 0364,
    Sept. Term, 2015.
    Court of Special Appeals of Maryland.
    Feb. 25, 2016.

      Matthew C. Koning (Saul E. Kerpelman & Associates PA, on the brief), Baltimore, MD, for Appellant.
    Donald P. Mazor, Baltimore, MD, for Appellee.

      Panel: GRAEFF, LEAHY, ALAN M. WILNER (Retired, Specially Assigned), JJ.
   ALAN M. WILNER (Retired, Specially Assigned), J.

The sole issue before us in this appeal is whether the Circuit Court for Baltimore City abused its discretion in dismissing appellant’s complaint pursuant to Md. Rule 2-507(c) for lack of prosecution. We shall conclude that it did not and therefore shall affirm the judgment of dismissal.

With exceptions not relevant here, Rule 2-507 permits the court to dismiss a civil action (1) under section (b) of the Rule for lack of jurisdiction over a defendant when the defendant has not been served or the court has not otherwise acquired jurisdiction over the defendant at the expiration of 120 days from the issuance of original process directed at that defendant, and (2) under section (c) of the Rule for lack of prosecution at the expiration of one year from the last docket entry. In this case, although there was a two-year delay in serving the appellee, the action was dismissed under section (c) of the Rule for inactivity extending more than a year since the last docket entry.

BACKGROUND

On July 17, 2012, appellant filed a 10-count complaint against five defendants. The gravamen of the complaint, as to each defendant, was that, during the period 1991 through 1996, appellant suffered from the ingestion of paint and dust containing lead while residing in a property owned by that defendant. One of the defendants was “Leonidas G. Newton and/or the Estate of Leonidas G. Newton.” In fact, Mr. Newton had died in November 2009, and on December 17, 2009, his son, Leonidas A. Newton, and an attorney, Donald P. Mazor, Esq. (who is the Estate’s attorney in this appeal) were appointed co-personal representatives by the Register of Wills for Baltimore City. For convenience, we shall refer to the decedent and the Estate collectively as Newton.

There were acknowledged problems in obtaining proper service of the complaint on two of the other defendants— Donna Williams and Shaul Kazin. Service on Williams was effected in November 2012, and the action against Kazin was dismissed in August 2013. Unrealized by appellant at the time, there also was a problem regarding service on Leonidas and/or his Estate. Leonidas, as noted, had died more than two years before the complaint was filed. The private process server employed by appellant reported that she had effected service on Newton by leaving a copy of the complaint and summons with Spring Ferguson, who the process server averred was authorized to accept service and who acknowledged that she was a resident of the property where the papers were left. Although it was ultimately determined that Ms. Ferguson did not reside at the property and was not authorized to accept service, appellant apparently assumed that service had properly been made and that the case therefore could proceed.

Nonetheless, there was no further activity in the case — no docket entries — until November 3, 2014, when, pursuant to Rule 2-507(d), the clerk of the court sent a notice that the action would be dismissed for lack of prosecution 30 days after the date of the notice unless, prior to then, a motion showing good cause to defer the entry of an order of dismissal was filed. The notice of potential dismissal produced three responses from appellant, all filed on November 13, 2014 — a motion for an order of default against Williams for failure to file a timely answer to the complaint, a similar motion directed against Newton, and a motion to suspend Rule 2-507. The motion for order of default against Newton alleged that service had been effected on Leonidas G. Newton or the Estate of Leonidas G. Newton on September 17, 2012 by leaving the summons and complaint with Spring Ferguson, who was authorized to accept service.

The motion to suspend the Rule, which technically should have been a motion to defer entry of an order of dismissal under section (e) of the Rule, averred that the four remaining defendants had been served and that appellant was prepared to proceed. He attributed the delay to a mix-up in serving Williams but stated that that problem had been resolved. A fair reading of that response indicates that appellant understood that the notice was based on inactivity under section (c) of the Rule, rather than a delay in service or lack of jurisdiction over any of the four remaining defendants.

Newton responded with a motion to dismiss on the ground that Ms. Ferguson was not a resident of the place where service was allegedly effected and that she was not authorized to accept service. The motion was supported by an affidavit from Mr. Mazor that Leonidas G. Newton had died in 2009, that the parties to be served were the co-personal representatives, that no service had ever been effected on them, and that dismissal was appropriate under Rule 2-507(b) for lack of jurisdiction.

The court, through Judge DiPietro, denied the motions for order of default because of technical deficiencies in the motions themselves. Newton’s motion to dismiss was referred to Judge Fletcher-Hill who, on February 6, 2015, signed an order (1) dismissing the action against Leonidas G. Newton because he was dead, (2) quashing the alleged service on the Estate, (3) giving appellant 60 days to effect service on a personal representative of the Estate, and (4) in light of that extension, denying the motion to dismiss without prejudice. Unfortunately, that order was not filed with the clerk until February 19, 2015 and apparently was not docketed until February 20.

The motion to defer dismissal under Rule 2-507 was referred to Judge Pierson, the administrative judge, who conducted a hearing on it on the morning of February 19, 2015. The Estate had not yet been served and, as noted, Judge Fletcher-Hill’s order extending the time for service had not yet been docketed. It is not clear whether, at the time of the hearing, that order had yet been filed, although Judge Pierson was aware that a hearing had been held by Judge Fletcher-Hill. Counsel for appellant argued that he was making every effort to resolve the “service issues” and asked for a deferral. Judge Pierson noted that the service issues (except for non-service on the Estate) had been resolved by August 2013 and that there had been no activity since then, until the notice of dismissal was sent by the clerk. He observed that no justification had been offered for the delay and that, to warrant a deferral, “[tjhere has to be some fact, even a scintilla of a fact that would justify the delay.” There being none, he concluded that there was no good cause to defer dismissal, and he therefore dismissed the action. The tenor of his remarks indicates that Judge Pierson also viewed the problem as inactivity under section (c) of the Rule, for lack of prosecution, rather than under section (b) for lack of service.

Later that afternoon, service was effected on Mr. Mazor, as co-personal representative of the Estate. A week later, appellant moved for reconsideration of the dismissal. He called attention to Judge Fletcher-Hill’s order and to the fact that service had been made within the time allowed by that order. Although acknowledging the long period of inactivity, he asserted that he was then ready, willing, and able to proceed and that the defendants had suffered no prejudice from the delay. He contended that the purpose of Rule 2-507 was to remove cases that no one desired to litigate, but that this was not one of them. The Estate responded that there was, in fact, no justification for the inactivity and that the Estate had been prejudiced by the delay. In that regard, the personal representative pointed out that the Estate was close to being wound up and to keep the case alive would delay the closing and result in additional expense.

On April 17, 2015, Judge Pierson denied the motion. He made no specific finding as to prejudice to the Estate (or any other defendant) but dismissed the relevance of Judge Fletcher-Hill’s order because it dealt with a different issue and had not been filed until after the case had already been dismissed. This appeal ensued.

DISCUSSION

Although there have been scores of cases interpreting and implementing Rule 2-507(c) and its predecessor Rule 530, the essential principles governing the ultimate decision to be made by the court can be gleaned from Powell v. Gutierrez, 310 Md. 302, 529 A.2d 352 (1987), the case that established the appropriate guidelines. Powell made clear that the purpose of the Rule was to “prune[] the docket of dead cases” — cases in which “neither party demonstrates an interest in having the issue resolved.” Powell, 310 Md. at 308, 529 A.2d 352. It was not, the Court pointed out, “to penalize plaintiffs for having lax attorneys.” Id. The Court gave some examples of the kinds of situations that the Rule was designed to deal with but did not purport to limit application of the Rule to just those situations.

Although a case is subject to dismissal under the Rule for lack of prosecution for one year from the last docket entry, the Powell Court made clear that lack of prosecution alone does not require automatic dismissal. The test under the Rule is whether there is “good cause” to defer dismissal and, in applying that test, there are several factors that a court must consider, weigh, and balance. Two factors pertain to the status and conduct of the plaintiff: (1) is the plaintiff currently ready, willing, able, and desirous of proceeding with prosecution of the case, and (2) was there any justification for the delay?

From the defendant’s perspective, the court must consider whether the defendant “has suffered serious prejudice because of the delay, so as to impede substantially his [her, or its] ability to defend the suit.” Id. at 308, 529 A.2d 352. Where appropriate, the court must take into account that the defendant also has a responsibility “to promote the orderly resolution of litigation” and may not “sit back and allow the prescribed period under the Rule to pass in the hope that the court will dismiss the case irrespective of the vitality of the litigation.” Id. at 309, 529 A.2d 352. Thus, where the defendant claims prejudice because of the plaintiffs delay, “the trial court must include as a consideration in the weighing process the efforts made by the defendant to secure a resolution of the case.” Id. at 308-09, 529 A.2d 352. See also Younker v. Schmid Products Co., 310 Md. 493, 495, 530 A.2d 274 (1987).

In the end, although the court must consider, weigh, and balance these factors, the ultimate decision whether to defer dismissal is within the trial court’s discretion, and the appellate court must give deference to the exercise of that discretion. Powell, at 309, 529 A.2d 352; Stanford v. District Title Insur., 260 Md. 550, 555, 273 A.2d 190 (1971), construing the predecessor Rule 530 (the decision “rests in the sound discretion of the trial judge and we will only invade his province on appeal in extreme cases of clear abuse”).

We find no abuse in the court’s exercise of its discretion in this case. Although, as it turned out, there was a significant delay in effecting service on Newton, appellant was not remiss in relying on the affidavit of its private process server and assuming that Newton had been properly served back in 2012. That does not work to his benefit, however, at least under § (c) of the Rule. Appellant believed as early as 2012 that all defendants, except the one dismissed, had been properly served and yet did nothing for two years to move the case — even, so far as the record reveals, to commence discovery. In the meanwhile, administration of the Estate proceeded to the point that the Estate was nearing closure. There was nothing that the Estate could have done to move the case, because, from its perspective, it had not been served and therefore was not a party.

What Judge Pierson had before him was a delay wholly attributable to appellant that simply was inexcusable — without any justification. In his brief, appellant notes that, in lead paint cases, there are situations in which some delay may be justified — locating landlords who owned houses that the plaintiff lived in years ago, delays in serving those landlords, determining insurance coverage — but none of those factors were asserted, much less proved to exist, in this case. The unjustified delay here was not one year, but two, and the fact of prejudice to Newton was presented to Judge Pierson. To start the litigation now — to conduct the necessary investigation, to complete discovery and commence motion practice— could keep the Estate open for years, which the law does not favor, and force all four defendants to begin searching records from 1991-96. Where there has been an inexcusable delay for more than a year and resulting prejudice to the defendant, the plaintiffs newfound desire, readiness, and ability to proceed does not require the court to defer dismissal.

JUDGMENT AFFIRMED; APPELLANT TO PAY THE COSTS.