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Welcome to the Western Maryland Advocate, formerly the Maryland Advocate Version 2.0 Beta!  This site is an independent forum to present informational pieces on legal practice. Feel free to view and download any of the content on this site IF you accept the following conditions:

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Paul J. Notarianni is the administrator for the Western Maryland Advocate. He is licensed to practice law in the State of Maryland.  Contact below:



Posted in ---- Paul Notarianni

Invocation of Counsel


The following was taken from a motion in limine.  It was drafted by Paul J. Notarianni.

Evidence of an accused’s intent to obtain counsel is inadmissible.  In Casey v. State, the Maryland Court of Special Appeals held that the issue is “well settled,” that Maryland Rules of Evidence 5-401 makes evidence of an accused’s intent to obtain the advice of counsel as inadmissible.  (Casey v. State, 124 Md. App. 331 at 338 (1999)).  In Waddell v. State, the Court of Special Appeals reversed a first degree murder conviction because the jury received evidence of the appellant’s desire to obtain counsel (Id. citing Waddell v. State, 85 Md. App. 54 (1990)).  In Hunter v. State, the Court of Special Appeals reversed a conviction for negligent homicide by motor vehicle while intoxicated because the jury received evidence that the accused contacted his attorney immediately following the accident. (Id. at 338-39 citing Hunter v. State, 82 Md. App. 679 (1990)).   The Hunter Court found that “to draw an inference of consciousness of guilt from the seeking of such advice… is both illogical and unwarranted; the fact to be inferred [consciousness of guilt] is not made more probable (or less probable) from the mere seeking of legal advice or representation, and so evidence of the predicate fact is simply irrelevant.  On pure evidentiary grounds, it is inadmissible.” (Hunter at 691) (emphasis added).

Posted in - Criminal Law, - Evidence, ---- Paul Notarianni

Lay Opinion; Moreland v. State.


The following was taken from a motion in Limine.  It was drafted by Paul J. Notarianni.

Permissible lay opinion testimony generally falls into one of two categories. (Moreland v. State, 207 Md. App. 563, 571 (2012) citing Washington v. State, 179 Md. App. 32, rev’d on other grounds, 406 Md. 642, (2008)).  The first category is where it is impossible, difficult, or inefficient to verbalize or communicate the underlying data observed by the witness. (Id. quoting Washington at 56) The second category is when the lay trier of fact lacks the knowledge or skill to draw the proper inferences from the underlying data. (Id.)   Maryland Rule 5-701 and 5-702 prohibit the admission of a “lay opinion” of testimony based upon specialized knowledge, skill, experience, training or education. (Id. at 570 quoting Ragland v. State, 385 Md. 706, 717, 725 (2005)).

Posted in - Criminal Law, - Evidence, ---- Paul Notarianni

License Plate Lamp and 4th Amendment.


The following was from a motion to suppress based on a traffic stop for a tail lamp.  Drafted by Paul J. Notarianni.

“The Supreme Court has made clear that a traffic stop involving a motorist is a detention which implicates the Fourth Amendment.” (Wilkes v. State, 364 Md. 554 (2001) citing United States v. Sharpe, 470 U.S. 675, 682, (1985); Berkemer v. McCarty, 468 U.S. 420, 439, (1984)).  A traffic stop violates the federal Constitution if the police do not have probable cause to believe that the driver has committed a traffic violation. (Whren v. United States, 517 U.S. 806, 810, (1996)). Maryland Transportation Article Section 22-204 (f) reads in pertinent part “Either a tail lamp or a separate lamp shall be constructed and placed to illuminate, with a white light, the rear registration plate and render it clearly legible from a distance of 50 feet to the rear.”

Posted in - 4th Amendment, - Criminal Law, - Traffic Offenses, ---- Paul Notarianni

Nol Pro & STETs on Appeal. LaFavre v. State


Brief Brief: LaFaivre v. State, 338 Md. 151 (1994).

ISSUE:  Resurrection of charges nolle prosequi and STET on trial de novo.

QUOTE 1:  “This case involves some basics of criminal procedure. The petitioner was prosecuted in the District Court of Maryland on a multi-count charging document under which the petitioner was found guilty on one count, after the State had stetted another count and had entered nolle prosequis to still others. The issue is whether, on a de novo appeal, the State may prosecute in the circuit court as to all of the charges on that same charging document. We hold that because there was no new charging document in the circuit court, de novo trial of the nol prossed charges was improper. De novo trial of the stetted charge, however, was proper.”  (Id. at 152.)

QUOTE 2: “Appeals from convictions in the District Court are de novo proceedings. Basically a de novo appeal from a judgment of conviction in the District Court proceeds on the same charging document on which the judgment was entered in the District Court.” (Id. at 154,  citing  Courts and Judicial Proceedings Article Section 12-401 (f) and Maryland Rule 7-112.)

QUOTE 3: “The [Court of Special Appeals] found ‘plain intent from the statute and rules that a trial de novo in a criminal case on appeal to the circuit court from a final judgment of the District Court shall proceed only on the same charging document which was the basis of the original trial.’ We agree.” (Id. at 155 quoting Pinkett v. State, 30 Md. App. 458 at 469 (1976)).

QUOTE 4: “The State seeks to bring LaFaivre’s prosecution within an exception to the rule requiring a new charging document to reinstate nol prossed charges. The exception lies where a nolle prosequi is part of a plea bargain that is breached by the accused… Although there are indications in the record of the proceedings in the District Court that there was an agreement between the State and LaFaivre, the record directly reflects only the amendment to a less serious charge, the stet, the nolle prosequis, and proceeding on a not guilty agreed statement of facts. To attempt to infer from this record that LaFaivre agreed that there would be no appeal is simply to speculate.  Indeed, that speculation is contradicted by the District Court judge’s advice to LaFaivre concerning his right to appeal, as to which the State took no exception. Thus, the ordinary rule concerning the effect of a nolle prosequi applies here.” (Id. at 156-157.)

Posted in - Appellate Practice, - Criminal Law, -- B.B.'s. Brief Briefs, ---- Paul Notarianni | Tagged , , , , , , , , , , , , ,

Violation of Probation: Motion to Dismiss for Violation of MD Rule 4-347 (a)


Below is an excerpt for a motion to dismiss a petition to violate probation on the basis for failing to articulate the nature of the violation. It was drafted by Paul J. Notarianni in 2019.

Maryland Rule 4-347 (a) states, in pertinent part, that a petition to violate probation “shall state each condition of probation that the defendant is charged with having violated and the nature of the violation.”    In this case, Maryland Rule 4-347 (a) has been violated.  No allegation of violation of probation has been put forward in the petition.  There is some illusionary language in the petition that claims the Defendant [committed a violation].  However, throughout the remainder of the charging document, the Agent indicates that the Defendant has in fact been compliant. The statement of charges in this matter does not contain any actual allegations of charges. It only contains ideal speculation of the Agent, the Agent’s opinion that the Defendant might reoffend.

Posted in - Criminal Law, ---- Paul Notarianni | Tagged , , ,

Md Crim. Pro Section 5-213.1 Violation of Pre-Trial Release Conditions


Maryland Criminal Procedure Section 5-213.1 criminalizes certain violations of pre-trial release conditions.  Below are two sample defense arguments for these types of cases.  One is a multiplicity argument, in the event the State seeks multiple counts for violation of the same order.  The other is a motion to dismiss for a scenario where a Defendant is held in custody and nevertheless the State attempts to prosecute.  Both were draft by Paul J. Notarianni in 2019.

Multiplicity Argument

Multiplicity is the charging of the same offense in more than one count.  (Brown v. State, 311 Md. 426, 432, (1998)).   “Whether a particular course of conduct constitutes one or more violations of a single statutory offense . . . is ordinarily determined by reference to legislative intent.”  (Id. citing Ladner v. U.S., 358 U.S. 169 (1958); Bell v. U.S., 349 U.S. 81,  (1955); U.S. v. Universal C.I.T., 344 U.S. 218 (1952); and Ebeling v. Morgan, 237 U.S. 625 (1915)).

Maryland Criminal Procedure Section 5-213.1 is a relatively new statute and criminal charge.  Undersigned counsel is unaware of any relevant case law or other source that specifically addresses the Legislature’s intent with this particular statute.  However, it should be noted that Maryland Family Law Section 4-501 is specifically referenced in the language of Maryland Criminal Procedure Section 5-213.1.

By way of comparison, Maryland Family Law Section 4-509 and Maryland Criminal Procedure Section 5-213.1 are similar but distinctly different statutes.  Both involve criminalizing behavior involving one person making contact with another, despite a court order to the contrary, with a prescribed maximum sentence of 90 days of incarceration. (MD Family Section 4-509 (a) and MD Crim Pro Section 5-213.1 (a) and (b)).

However, there is one major difference between these statutes.  Maryland Family Law Section 4-509 states that a person that violates this section is “guilty of a misdemeanor and on conviction is subject, for each offense, to [a maximum sentence up to 90 days of incarceration and a fine].” (MD Family Law Section 4-509 (a)).  There is no such “each offense” language in Maryland Criminal Procedure Section 5-213.1.

The Maryland Rules require that, with limited exception, motions asserting a defect in a charging document must be heard prior to trial.  (Maryland Rule 4-251 (b)(1)).

In this case, the Defendant is charged with multiple counts of violating the same statute related to the same case and the same alleged victim.  Despite the multiple contacts, the plain language of the statute sets the penalty of a violating pre-trial release conditions as a maximum 90 day offense.  Unlike Maryland Family Law Section 4-509, Maryland Criminal Procedure Section 5-213.1 contains no language criminalizing each individual contact.   It is fair to assume that the Legislature was aware of this because 1) it was a preexisting statute, and, more importantly, 2) Maryland Criminal Procedure Section 5-213.1 makes specific reference to the Family Law Article.

In viewing the plain language of the statute, it appears it was the Legislature’s intent to make Criminal Procedure Section 5-213.1 a single 90 day maximum offense, as opposed to Maryland Family Law Section 4-509 which explicitly authorizes multiple charges for each contact.

Lack of Probable Cause Argument

Maryland Criminal Procedure Section 5-213.1 reads in pertinent part, “a person may not violate a condition of pretrial . . . release prohibiting the person from contacting . . . an alleged victim…”   Maryland Criminal Procedure Section 5-213.1 is a relatively new statute and criminal charge.  Undersigned counsel is unaware of any relevant case law or other source that specifically addresses the Legislature’s intent with this particular statute.  However, Maryland Rule 4-216.3 (d) contains language that implies that violations of pretrial release conditions are contingent on a person actually being released. (Maryland Rule 4-216.3 (d) “Violation of Condition of Release. A court may issue a bench warrant for the arrest of a defendant charged with a criminal offense who is alleged to have violated a condition of pretrial release. After the defendant is presented before a court, the court may (1) revoke the defendant’s pretrial release or (2) continue the defendant’s pretrial release with or without conditions.)

The Maryland Court of Appeals has held that “when a court construes a criminal statute, it may invoke a principle known as the ‘rule of lenity’ when the statute is open to more than one interpretation and the court is otherwise unable to determine which interpretation was intended by the Legislature. Instead of arbitrarily choosing one of the competing interpretations, the court selects the interpretation that treats the defendant more leniently.”  (Oglesby v. State, 441 Md. 673 (2015)).

Maryland Criminal Procedure Section 5-213.1 has two potential interpretations.  One is that a condition of pretrial release is in effect regardless of whether the Defendant is actually released from custody.  The other interpretation is that pretrial release conditions are conditional upon a Defendant being released from custody.

Because there are at least two potential interpretations of Maryland Criminal Procedure Section 5-213.1, this Honorable Court ought to apply the lenity analysis as prescribed in Oglesby.  This Honorable Court cannot decipher the Legislature’s intent beyond the plain language of the statute because there does not appear to be any relevant case law or other source that specifically demonstrates the Legislature’s specific intent with this particular statute.  This Honorable Court ought to adopt the interpretation that pretrial release conditions are conditional upon a Defendant being released from custody because it treats the defendant more leniently.

Posted in - Criminal Law, - Pretrial, ---- Paul Notarianni | Tagged , , , , , , , , , , , , , , , , , , ,

Pickpocket v. Robbery. Cooper v. State.


Brief Brief.  Cooper v. State,9 Md. App. 478 (1970).

ISSUE:  Pickpocket v. Robbery

QUOTE: “Robbery, a common law crime in Maryland, is larceny from the person accompanied by violence or putting in fear.  The violence may be actual as by the application of physical force, or it may be constructive as by intimidation or placing the victim in fear. Where, as here, it is clear that the victim was neither intimidated or put in fear, there must be evidence of actual violence preceding or accompanying the taking.  Actual violence, it is said, implies personal violence; if there is any injury to the person of the owner in the taking of the property, or if he resists the attempt to rob him, and his resistance is overcome, there is sufficient violence to make the taking robbery, however slight the resistance. The degree of force used is immaterial so long as it is sufficient to compel the victim to part with his property. In other words, sufficient force must be used to overcome resistance and the mere force that is required to take possession, when there is no resistance, is not enough, i. e., the force must be more than is needed simply to move the property from its original to another position; there must be more force than is required simply to effect the taking and asportation of the property. Thus, it is not robbery to obtain property from the person of another by a mere trick, and without force, or to pick another’s pocket without using more force than is necessary to lift the property from the pocket; nor is it robbery to suddenly snatch property from another when there is no resistance and no more force, therefore, than is necessary to the mere act of snatching.” (Id. at 480. Internal citations omitted)

Posted in - Assault & Affray, - Criminal Law, -- B.B.'s. Brief Briefs | Tagged , ,

Failure to Grant a Jury Instruction


This is an excerpt from a petition for writ of certiorari.  It was drafted by Paul J. Notarianni in 2016.


Did the Trial Court commit reversible error when it made a finding that necessity was a valid defense, yet refused to pose a duress or necessity instruction to the jury?


The Trial Court committed reversible error when it denied [defendant’s] request for a jury instruction on either duress or necessity.  Maryland law requires for a trial court to give a jury instruction at the conclusion of all evidence of the applicable law. (Maryland Rule 4-325 (a) (c)).  An “appellate court, on its own initiative or on suggestions of a party, may … take cognizance of any plain error in the instructions, material to the rights of the defendant, despite a failure to object.” (Maryland Rule 4-325 (e)).

The trial court is mandatorily required to instruct the jury on every essential question or point of law supported by the evidence. (Dishman v. State, 118 Md. App. 360, (1997) certiorari granted, affirmed in part, reversed in part 352 Md. 279, Ellison v. State, 104 Md. App. 655 (1995)). The Maryland Court of Appeals has held that Maryland Rule 4-325(c)”requires the trial court to give a requested jury instruction under the following circumstances: 1) the requested instruction is a correct statement of the law; 2) the requested instruction is applicable under the facts of the case; and 3)  the content of the requested instruction was not fairly covered elsewhere in the jury instructions actually given.” (McMillan v. State, 428 Md. 333 at 356 (2012), citing Thompson v. State, 393 Md. 291, 302-03 (2006) quoting Ware v. State, 348 Md. 19, 58 (1997)).

A defendant has a minimal threshold burden to “show ‘some evidence’ [that a defense is applicable] and then the burden shifts to the State to show, beyond a reasonable doubt, that the defense does not apply.”  (McMillan at 356 citing Dykes v. State, 319 Md. 206, 216 (1990)).

Under Maryland Law, to establish duress, it must be shown that the duress is   “present, imminent, and impending, and of such a nature as to induce well grounded apprehension of death or serious bodily injury if the act is not done.  It must be of such character as to leave no opportunity to the accused to escape. Mere fear or threat by another is not sufficient nor is a threat of violence at some prior time.”  (McMillan at 355 quoting Frasher v. State, 8 Md. App. at 449). The elements of necessity are that a defendant: 1) must have “been in present imminent risk of death or bodily harm, 2) not have placed himself in the situation intentionally or recklessly, 3) not have a reasonable or legal alternative to the criminal action, and 4) stop the criminal activity when the necessity ends.” (McMillan at 361).

Necessity is similar to duress, except that the compulsion to act comes from “the physical forces of nature rather than from human beings.” (Sigma Reproductive Health Ctr. V. State, 297 Md. 660, 675 (1983).  There is no separate pattern jury instruction on necessity because of the inter relationship between necessity and duress. (MPJI CR 5.03 CMT.)

Posted in - Appellate Practice, - Criminal Law, - Jury Instructions, ---- Paul Notarianni | Tagged , , , , , , , ,

Voluntariness of Guilty Plea


The following is an excerpt from an Application for Leave to Appeal.  The issue raised was whether a guilty plea was made knowingly and voluntarily.   It was drafted by Paul J. Notarianni  in 2013.

Applicant raises a single allegation of error on the part of the Circuit Court.  Applicant alleges that the Circuit Court committed reversible error by accepting the Applicant’s plea.

A plea of guilty must be made knowingly and voluntarily.  The United States Supreme Court has held that an affirmative showing of voluntariness on the record is necessary in order to conclude that a defendant has waived his constitutional rights.  (Boykin v. Alabama, 395 U.S. 238, 242 (1969)).  A Maryland trial court may not accept a plea of guilty without first questioning the defendant on the record to determine that the plea is made voluntarily, with understanding of the charge and the consequences of the plea.  (MD Rule 731 (c) and State v. Priett, 289 Md. 267 (1982)).  A trial court must see to it that “the guilty plea is made . . . freely and voluntarily, and with a full understanding of its nature and effect . . .” (Davis v. State, 278 Md. 103, 116 (1976)).



Posted in - Appellate Practice, - Criminal Law, - Plea Agreements, ---- Paul Notarianni | Tagged , , , , , , ,

K-9 Alert Not Sufficient to Search Occupants. State v. Wallace.


Brief Brief.  State v. Wallace, 372 Md. 137 (2002).

QUOTE:  “A canine alert on the exterior of a vehicle does not support the proposition that the drugs potentially in the car are concealed on a particular occupant of that vehicle.  When the police get all of the occupants out of the vehicle and find no drugs in the vehicle, they cannot use a positive general canine scan of the car as authority to go further and search a non-owner/non-driver passenger.” Id. at 159-60.

Posted in - 4th Amendment, -- B.B.'s. Brief Briefs