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

Officer Cannot Stick Head in Car Window to take a Sniff. State v. Grant.


Brief Brief: State v. Grant, 449 Md. 1 (2016).

HOLDING:  The Maryland Court of Appeals had held that a police officer, who inserts his head into a passenger side window of a defendant’s vehicle during a traffic stop, conducted a search under the Fourth Amendment, ( State v. Grant 449 Md. 1 (2016)). In Grant, the court found that the detection of odor of marihuana from the Officer sticking his head through the window, exceeded permissible scope of the stop. ( Id. )


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

Prosecutorial Misconduct in Plea Bargain Sentencing. Miller v. State


Brief Brief. Miller v. State, 276 Md. 249, 1974.

Issue:  After a plea bargain has been made, a Prosecutor subverted the spirit of the agreement by making damaging statements at the time of sentencing.

Quote One:   “Prosecutor’s promise to make no recommendation as to the sentence reasonably means a ‘commitment not to make any damning or even potentially damaging statement at the time of sentencing.’”  Id. at 253 quoting  Commonwealth v. Alvarado,  442 Pa. 516, 529 (1971)).

Quote Two:  “In the instant case, the defendant’s guilty plea rested in part on the prosecution’s promise to make ‘no recommendation’ as to ‘sentencing’ or as to ‘disposition.’ The probation officer thereafter recommended that the defendant be placed on probation on the condition that he undergo therapy at a mental institution. The prosecuting attorney then stated that he was ‘not in full compliance with the recommendation of the Probation Officer.’ When the prosecuting attorney said this, he was advising or suggesting to the judge that the conditional probation recommendation not be completely accepted. This constituted a ‘recommendation’ by the prosecuting attorney as to the ‘disposition’ of the case. Moreover, the prosecuting attorney certainly appeared to be recommending that imprisonment instead of conditional probation be imposed. Absent some further explanation by the prosecuting attorney, the only logical inference that could be drawn from his statement is that he was urging imprisonment rather than probation. The prosecutor’s statement was inconsistent with his undertaking to make ‘no recommendation.’…[citations omitted]… As the Supreme Court of Pennsylvania stated in Commonwealth v. Alvarado, [442 Pa. 516, 529 (1971)] a prosecutor’s promise to make no recommendation as to the sentence reasonably means a ‘commitment not to make any damning or even potentially damaging statements at the time of sentencing.’” Id. at 253.

Quote Three: “Accordingly, where a guilty plea has been induced by the prosecutor’s agreement to make no recommendation as to sentencing, and the prosecutor violates that agreement, the defendant may at his option have the guilty plea vacated. On the other hand, if the defendant so desires, he may elect to leave the plea standing and be resentenced. As the Supreme Court stated in Santobello v. New York,  [404 U.S. 257, 263, (1971)] the resentencing should be by a different judge.” Id.

Posted in - Criminal Law, - Ethics, - Plea Agreements, -- B.B.'s. Brief Briefs

Petition to Return Seized Animal

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Petition Pursuant to Criminal Law Section 10-615: Return of Animals

Below is a redacted section from a motion to return animals when they are seized pursuant to a criminal charge.  It was drafted by Paul J. Notarianni in 2015.

NOW COMES:  The above captioned Defendant, by and through counsel, to move to have animals return to the Defendant, pursuant to Maryland Criminal Law Section 10-615 (d)(2) and offers in support:

ONE:  That the Defendant is charged in the captioned matters with violation of Criminal Law Section 10-604 (a)(5).

TWO:  That two dogs, known as Blank and Blank II, were seized by the State on or about (DATE), and that those animals remain in the custody of  the county government of (blank) County.

THREE:  That it is the Defendant’s assertion that she was never advised of her administrative options regarding the seizure of her dogs, as required by Criminal Law Section 10-615 (d).

FOUR:  Maryland Law permits for an owner of animals that have been seized in an animal cruelty case to file a petition in the District Court within ten days after their removal.  (See Criminal Law Section 10-615 (d)(2)).  

FIVE:  It is the Defendant’s assertion that her living condition is stable and it is appropriate to have the animals returned to her, or, in the alternative, to have the animals given to the custody of family or other third party friend of the Defendant, in lieu of their continued confinement at an animal shelter.  

WHEREFORE:  The Defendant requests that this Honorable Court pass an order to have the dogs known as Blank and Blank II returned to the custody of the Defendant, or in the alternative, to have Blank and Blank II placed into the custody of a family member or third party acquaintance of the Defendant.

Posted in - Criminal Law, - Notes and Forms, - Pretrial

Suppress Identification

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The following was taken from a motion to suppress identification.  The original was drafted by Paul J. Notarianni in 2015.

The Defendant offers the following argument as to suppression of the identification.   A Defendant in a criminal matter is protected by due process against the introduction of evidence of, or tainted by, unreliable pretrial identifications obtained through unnecessarily suggestive procedures. (U.S.C.A. Const. Amend 14; Jones v. State,395 Md. 97, 107 (2006)).    The Supreme Court has recognized that improper use of  photographs by police may cause misidentifications.  (Simmons v. U.S., 390 U.S. at 383-84).  There is a two part test for inquiry of due process violations related to extra-judicial identifications.  (Jones v. State, 310 Md. 569, 577 (1987); Jones v. State 395 Md. 97, 109 (2006)).  The first is whether the identification procedure was impermissibly suggestive. (Jones v. State, 310 Md. 569, 577, 530 A.2d 743 (1987)).  If the answer is “no,” the inquiry ends and both the extra-judicial identification and the in-court identification are admissible at trial. If, on the other hand, the procedure was impermissibly suggestive, the second step is triggered, and the court must determine whether, under the totality of the circumstances, the identification was reliable. (Upshire v. State, 208 Md.App. 383 402 2012)). The Court of Special Appeals has recognized that an officer providing a single picture to a witness for identification purposes is impermissibly suggestive. (Id.)  “When the identification procedure is impermissibly suggestive, it is the prosecution’s burden to show  ‘that the in-court identification offered had a source independent of the illegal pre-trial confrontation or viewing. It must do this by clear and convincing evidence that the in-court identification is based upon observations of the suspect by the witness other than the confrontation or photographic identifications.’ ” (Id. quoting Smith and Samuels v. State, 6 Md.App. 59, 68, 250 A.2d 285 (1969)). “This [C]ourt has emphasized: ‘It is only where there is a very substantial likelihood of irreparable misidentification, to wit, a situation where the identification could not be found to be reliable, that exclusion would be warranted. Short of that point, the evidence is for the jury to weigh.’ ” (Id.  quoting Turner v. State, 184 Md.App. 175, 184, 964 A.2d 695 (2009)).

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