Criminal Law Update

CRIMINAL LAW UPDATE By Jennifer W. Ritter

In 2019, a Somerset County jury convicted Alexander Dejarnette of driving under the influence of alcohol per se and other alcohol related offenses. On appeal, Dejarnette argued that the breath test results were erroneously admitted at trial because the State failed to comply with COMAR regulations related to a twenty-minute observation period prior to the administration of the breath test. The Court of Special Appeals held that the admissibility of the breath test is governed by Title 10, Subtitle 3 of Courts and Judicial Proceedings Article. “Section 10309 is clear that for a breath test to be admissible as substantive evidence, the State must comply with statutory requirements in the subtitle, including the two-hour time limit to administer the test, the required information necessary to be included in the report, and the limitations on who can administer the breath test.” Slip op at 7 (citing Cts. & Jud. Proc. §§ 10-303(a)(2), 10-306(a)(2), 10-304(b)). The Court continued, “[t]he subtitle does not include in its text a requirement of strict compliance with related COMAR regulations, nor does its language require a twenty-minute observation period prior to the administration of the breath test.” Id. The Court further held that “alleged compliance or noncompliance with the twenty-minute observation period goes to the weight of the evidence” and not admissibility. Slip op. at 16.

Williams v. State, Slip op. No. 1403, September Term, 2019

Nicholas Williams was convicted of second-degree murder, unlawful possession of a firearm by a person under 21 and transporting a handgun in a vehicle. He was acquitted of first-degree assault and use of a firearm in the commission of a felony or crime of violence. At trial, the State presented expert testimony related to firearm identification evidence. On appeal, Williams challenged his conviction on the grounds that the verdicts were legally inconsistent, that the evidence was legally insufficient, and, among other challenges to testimony, that the trial court erroneously admitted testimony related to a firearms examiner. Williams argued that first-degree assault is a lesserincluded offense of second-degree murder and as such, the verdicts were inconsistent. The Court of Special Appeals noted that “[t]he prohibition on legally inconsistent verdicts ensures that a person is ‘not convicted of a crime on which the jury has actually found that the defendant did not commit an essential element, whether it be one element or all.’” Slip op. at 11 (quoting Wallace v. State, 219 Md. App. 234, 251 (2014)(internal citation omitted)). The Court continued, “[o]ur ‘[inconsistency] analysis requires that we review the elements of the offenses as charged to the jury without regard to the proof that was actually presented at trial.’” Id. (quoting Teixeira v. State, 213 Md. App. 664, 683 (2013)(internal citation omitted)). “Any manner by which the jury strays from the prosecution’s theory of the case, as presented in the indictment, leads us not to legal inconsistency but to factual anomalies.’” Williams, Slip op. at 11 (quoting Teixeira, 213 Md. App. at 683). Here the Court looked to the elements of the offenses and concluded that the first-degree assault count in this case, as instructed by the trial judge, required a finding of the use of a firearm. Slip op. at 12-13. The instructions given for the second-degree murder count addressed intent to kill murder and killing another with the intent to inflict such serious bodily harm that death would be the likely result. Because the instruction related to the murder count did not require the element of the use of a firearm as the first-degree assault instruction did, the verdicts were not inconsistent.

Williams also challenged his conviction based on the State’s use of expert testimony related to firearms identification. His appeal was pending at the time that Rochkind v. Stevenson, 471 Md. 1 (2020), was decided making the holding applicable to his case. The Court discussed in detail the Rochkind holding with emphasis on the fact that trial courts my not rely entirely on previous courts acceptance of methodology as generally accepted. Id. at 22. The trial court in Williams held an initial hearing to determine whether the challenged testimony required

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CRIMINAL LAW UPDATE By Jennifer W. Ritter

a full Frye-Reed hearing but did not take testimony from witnesses. After receiving argument, the examiner’s report, and three studies challenging the field of firearms examination, the trial court denied Williams’ motion to exclude the testimony. The trial court did so without making any factual findings relating to Rule 5-702. After discussing that the holding in Rochkind does not automatically result in a reversal for a new trial, the Court remanded for the limited purpose of making the necessary findings of fact and conclusions of law under the new standard. Id. at 28. If the trial court concludes that it would reach a different conclusion than the one it previously reached, then a new trial should be granted.