NOISE RESULTING FROM LEGALLY PERMISSIBLE FIREWORKS DOES NOT CONSTITUTE AN ABNORMALLY DANGEROUS ACTIVITY, AND THE APPLICATION OF STRICT LIABILITY IS INAPPROPRIATE.

By: Jason C. Parkins

The Court of Appeals of Maryland held that noise emitted from a lawful fireworks display did not constitute an abnormally dangerous activity; therefore, the parties were not subject to strict liability.  Toms v. Calvary Assembly of God, Inc., 446 Md. 543, 569, 132 A.3d 866, 881 (2016).

On September 9, 2012, in Frederick County, Calvary Assembly of God, Inc. hosted a fireworks event on Auburn Farms, a property adjacent to Andrew David Toms’ (“Toms”) dairy farm.  Prior to the fireworks display, Calvary acquired all permits as required by section 10-104 of the Public Safety Article (“section 10-104”).  Calvary hired a professional fireworks company (“Zambelli”) to plan, oversee, and perform the fireworks display.  The location of the fireworks display was approved by a fire marshal prior to the event.  The fire marshal concluded that the event required a 250-foot radius, clear of structures, surrounding the firing location.  The permits acquired for the display demarcated a firing radius of 300 feet.  Additionally, a fire marshal was present at the event and supervised the display.

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PURSUANT TO § 1-206(B) OF THE ESTATES AND TRUSTS ARTICLE, ARTIFICIAL INSEMINATION ENCOMPASSES IN VITRO FERTILIZATION USING DONATED SPERM; A COURT MAY USE THE GOLDBERGER FACTORS TO DETERMINE VOLUNTARY IMPOVERISHMENT; A TRIAL COURT CAN ISSUE A PERMANENT INJUNCTION FOR HARASSMENT BASED ON § 1-203(A) OF THE FAMILY LAW ARTICLE.

By: Virginia J. Yeoman

     The Court of Appeals of Maryland held that the term “artificial insemination” includes in vitro fertilization using donated sperm, and that a consenting husband is presumed to be the father of the child born as a result of the procedure.  Sieglein v. Schmidt, 447 Md. 647, 652, 136 A.3d 751, 754 (2016).  The court also held that the circuit court did not abuse its discretion in finding the husband to be voluntarily impoverished or in issuing a permanent injunction based on harassment.  Id.

     Stephen Sieglein (“Sieglein”) and Laura Schmidt (“Schmidt”) married in 2008.  Before marrying Schmidt, Sieglein had a vasectomy.  When Schmidt desired a child, Sieglein refused to have his vasectomy reversed, but agreed to accompany Schmidt to the Shady Grove Fertility Reproductive Science Center (“Shady Grove”).  In 2010, they both signed a consent form at Shady Grove, which demonstrated their desire to undergo assisted reproduction treatment, and their understanding of the risks and obligations involved.

Despite not formally objecting, defense counsel properly preserved the issue of whether the circuit court inappropriately weighed defendant’s decision not plead guilty at sentencing; the circuit court did not impermissibly consider defendant’s rejection of the plea offer at sentencing.

By: Colin Campbell

     The Court of Appeals of Maryland held that defense counsel’s statements conveyed an objection to the circuit court’s perceived consideration of the defendant’s decision not to plead guilty at sentencing.  Sharp v. State, 446 Md. 669, 113 A.3d 1089 (2016).  As a result, the court held that defense counsel sufficiently preserved the issue for appellate review.  Id. at 684, 113 A.3d at 1098.  Ultimately, though, the circuit court’s statements at sentencing did not give rise to the inference of an impermissible consideration.  Id. at 701, 113 A.3d at 1108.

     On March 17, 2003, Raymond Evianiak (“Evianiak”), Justin Sharp (“Sharp”), and others were drinking at a party.  While intoxicated, Evianiak insulted Sharp, leading to an argument.  A few hours later Sharp proceeded to punch Evianiak and beat him with a bottle, in response to the earlier insult.  At no point did Evianiak defend himself or retaliate against Sharp.  Sharp was charged with attempted first-degree premeditated murder, first-degree assault, and openly wearing and carrying a dangerous weapon with the intent to injure.

     On April 30, 2014, Sharp appeared in court for trial where he was advised of the maximum penalties he faced if convicted.  The State offered a plea of first-degree assault and recommended a twenty-five year sentence, with all but ten years suspended.  The court counter-offered a twenty-year sentence, with all but eight years suspended.  Sharp declined both offers, pled not guilty, and elected a jury trial, at which point the court withdrew its plea offer.

Pursuant to § 10-402(C)(2)’s exception to the wiretap ban, an individual is not under the supervision of an investigative or law enforcement officer when interceping an oral communication, absent restrictions on equipment use and some subsequent contact.

By: Ashley N. Simmons

     The Court of Appeals of Maryland held that a detective providing recording equipment to an individual, absent any limitations for use and no interaction thereafter, did not amount to the individual acting under supervision of an investigative or law enforcement officer.  Seal v. State, 447 Md. 64, 80, 133 A.3d 1162, 1172 (2016).  The court found that guidelines must be given to the person conducting the wiretapping, as well as at least some contact to monitor the progress.  Id. at 79-81, 133 A.3d at 1172.

     During the summer of 1982, ten-year-old Donald W. (“Donald”) frequently stayed at his step-grandmother’s house. Donald’s step-uncle, David Seal (“Seal”), also resided in the Montgomery County home.  Donald testified that he awoke one night to Seal fondling his private parts.  The sexual abuse continued until Donald entered the seventh grade.  Approximately twenty years later, Donald contacted Seal about the abuse.  Seal apologized for his prior behavior and offered to make payments to Donald, which Donald declined.

     On January 22, 2013, Donald, a resident of West Virginia, went to the Montgomery County Police Station and spoke with Detective Tracey Copeland (“Copeland”) regarding the abuse.  Copeland and Donald made several unsuccessful phone calls to Seal in an attempt to obtain a confession.  Ultimately, Copeland provided Donald with the recording device, showed him how to operate it, and then sent him home with the equipment.

A state agency’s enabling act is constitutional if their decisions are subject to judicial review; Maryland law provides guidelines for state agencies when using their discretion to issue penalties

By: Nicholas Mastracci

     The Court of Appeals of Maryland held that the Maryland Underground Facilities Damage Prevention Authority enabling act does not violate the Judicial Vesting Clause of the Maryland Constitution or the Separation of Powers Clause of the Maryland Declaration of Rights.  Reliable Contracting Co. v. Md. Underground Facilities Damage Prevention Auth., 446 Md. 707, 729, 133 A.3d 1112, 1125 (2016).  The court also ruled that the Authority was a state agency based on the relationship between the Authority and the State of Maryland.  Id. at 729, 133 A.3d at 1124-1125.  As such, section 10-1001 of the State Government Article provides guidelines when assessing civil penalties.  Id.

     In February 2013, a local utility notified the Maryland Underground Facilities Damage Prevention Authority (the “Authority”) that Reliable Contracting Company (“Reliable”) began an excavation project without permission.  Reliable’s conduct was in violation of section 12-101 of the Public Utilities Article (“PU”), which establishes the one-call system.  As a result, Reliable caused damage to the local utility’s facilities.  On April 16, 2013, after an investigation, the Authority assessed a civil penalty of $2,000 for excavating without notifying the one-call system, and a $1,000 penalty that could be waived if Reliable completed training offered by the Authority.

Successive Post-Conviction petitions are not barred by the doctrine of Res Judicata or Maryland Rule 4-704; a petition for DNA testing will be denied if the evidentiary threshold for a wrongful conviction claim is not met.

By: Kayla M. DiNuccio

     The Court of Appeals of Maryland held that the doctrine of res judicata and Maryland Rule 4-704 do not bar successive DNA petitions.  Jackson v. State, 448 Md. 387, 406, 139 A.3d 976, 987 (2016).  The court further held that denying Jackson’s petition for DNA testing without a hearing under Maryland Rule 4-709 was proper, because none of his assertions would have produced exculpatory evidence.  Id. at 411, 139 A.3d at 990.

     In 1993, Steven Jackson (“Jackson”) entered an Alford plea to second-degree rape of Patricia M. in the Circuit Court for Baltimore County.  Jackson was sentenced to twenty years imprisonment with all but four years suspended and five years supervised probation.  In 1995, the balance of Jackson’s sentence was suspended and he was placed on probation.  While released on probation, Jackson was convicted of two additional counts of second-degree rape.

     Thereafter, Jackson filed numerous petitions for DNA testing pursuant to section 8-201(c) of the Criminal Procedure Article of the Maryland Code (“section 8-201(c)”) for the rape of Patricia M.  In 2005, Jackson filed his first petition for DNA testing, which was granted, but yielded inconclusive results.  In 2008, Jackson filed another petition, which was denied.  In 2009, Jackson filed a petition for post-conviction relief, which was denied.  In 2013, Jackson filed a fourth petition for DNA testing, which was again denied.  Jackson subsequently appealed the denial of the 2013 petition but later withdrew.

An applicant must satisfy the unwarranted hardship standard to be granted a variance; the variance must have no adverse impact on the environment and conform to the purpose of the critical area program.

By:  Michael Louis Brown

     The Court of Appeals of Maryland held that the Worchester County Board properly applied the “unwarranted hardship” standard and correctly granted a variance under local critical area law.  Assateague Coastal Trust, Inc. v. Schwalbach, 448 Md. 112, 140, 136 A.3d 866, 882 (2016).  The court held that the variance would not have an adverse impact on the environment and the development was in conformity with the Critical Area Program’s purpose and intent.  Schwalbach, 448 Md. at 143-44, 136 A.3d at 883.

     Roy T. Schwalbach (“Schwalbach”) owned waterfront property in a community where piers and boating were common.  In order to reach navigable water next to his property, Schwalbach sought a variance from a Worcester County ordinance that limited the length of piers to 100 feet.  The variance was granted by the Worcester County Board of Zoning Appeals (the “Board”).  In a written decision, the Board determined that Schwalbach would not be able to reach navigable water without the variance.  Furthermore, the Board noted that the environmental impact would be mitigated, because Schwalbach’s permits were issued under the condition that he would fulfill specific planting requirements.

A foreign limited liability company lacking compliance with state registration requirements may maintain suit after infirmity is cured; the company must also meet the “person aggrieved” requirements of standing.

By: Alicia M. Kuhns

     The Court of Appeals of Maryland held that a foreign limited liability company, though unregistered at the time of filing, could resolve its lack of compliance and maintain its action for judicial review.  A Guy Named Moe, LLC v. Chipotle Mexican Grill of Colo., LLC, 447 Md. 425, 447, 135 A.3d 492, 505 (2016).  The court further held that one does not have standing as a “person aggrieved” based solely on the desire to eliminate business competition.  Id. at 453, 135 A.3d at 508.

     A Guy Named Moe, LLC (“Moe”) and Chipotle Mexican Grill of Colorado, LLC (“Chipotle”) are two foreign limited liability companies that operate separate chain restaurants.  In 2012, Chipotle applied for a special exception to build a restaurant in Annapolis, Maryland.  The proposed location was approximately 425 feet from one of Moe’s established restaurants.  With approval from the Department of Planning and Zoning for the City of Annapolis, the City Board of Appeals (the “Board”) approved Chipotle’s application.

A Court May Reopen a Closed Post Conviction Proceeding to Address a Challenge to an Advisory Only Jury Instruction

By: Ashley N. Nelson-Raut, Associate Editor 

The Court of Appeals of Maryland held that advisory only jury instructions are not harmless error and the Unger v. State precedent should be applied retroactively. State v. Waine, 444 Md. 692, 122 A.3d 294 (2015). In addition, the court held that a defendant’s motion to reopen his or her post-conviction case after the Unger decision met the “interests of justice” standard required for reconsideration of the constitutionality of the defendant’s conviction. Id. at 695, 122 A.3d at 294.

A Confession is Voluntary Unless the Defendant Unambiguously Invokes His Constitutional Right to Remain Silent or the Confession is Obtained Through Coercion or Inducement.

By: Pascale Cadelien, Staff Editor

The Court of Appeals of Maryland held that “I don’t want to say nothing. I don’t know,” is an ambiguous invocation of the right to remain silent. Williams v. State, 445 Md. 452, 455, 128 A.3d 30, 32 (2015). The court reasoned that the defendant’s addition of “I don’t know” to his initial assertion “I don’t want to say nothing” created uncertainty about whether he intended to invoke his right to remain silent. Id. at 477, A.3d at 44. This allowed a reasonable officer to interpret his statement as an “ambiguous request to remain silent.” Id. Furthermore, the officers’ implication that the defendant should confess to a “robbery gone bad,” instead of premeditated murder, did not induce his confession. Id. at 477-483, A.3d at 45-48. Accordingly, the defendant’s confession was voluntary. Id. at 483, A.3d at 48.