Below are some recently decided criminal law cases from the Maryland Court of Appeals and the Court of Special Appeals.  Coming soon- I will post about Petitions for Writ Actual Innocence and the body of case law that is developing on the issue.  Two of the most recent decisions on Petitions for Writ of Actual Innocence were decided recently and are covered below.

Closing Argument
Jones v. State, 217 Md. App. 676 (2014)
The prosecutor’s improper remark in closing argument about a fact not in evidence and not within common knowledge was not harmless because the case turned heavily on the credibility of the witnesses, the remark pertained to witness credibility, and the court overruled defendant’s objection to the remark, thus tacitly approving the remark.

Petition for Writ of Actual Innocence
Yonga v. State, ___ Md. App. ___ (2015), No. 2441, Sept. Term, 2013
A Petition for Writ of Actual Innocence does not apply to a guilty plea. *note that this case did not involve an Alford plea.

Ward v. State, ___ Md. App. ___ (2015), No. 2171, Sept. Term, 2012
1. Newly discovered evidence could include later discovered scientific evidence which cast doubt upon the validity and admissibility of evidence that was introduced at the time of trial; 2. The lower court erred in finding that admission of the studies repudiating the CBLA in appellant’s case would not likely have resulted in his acquittal of first degree murder charges, as the state high court subsequently held that CBLA evidence was not admissible under the Frye-Reed test because fundamental assumptions underlying the process were not generally accepted by the scientific community.

State v. Seward, 220 Md. App 1 (2014)
The State has the same right of appeal from a grant of a Petition for Writ of Actual Innocence as the defendant does from its denial. The fact that trial counsel was found not to have performed deficiently under Strickland does not necessarily mean that he satisfied the “due diligence” standard under Argyrou required for a petition for writ of actual innocence.

Martin v. State, 218 Md. App. 1 (2014)
The court did not commit error when it sentenced appellant to the maximum allowable sentence, which was significantly higher than the appellant’s sentencing guidelines, where there was no evidence that the court considered improper influences or impermissible motives in imposing the sentence.

Clark v. State, 218 Md. App. 230 (2014)
Where appellant was charged with multiple handgun violations of Public Safety Article § 5-133, based upon the possession of one handgun where the possession was illegal for several different reasons, the appellant may only be sentenced on the conviction with the greater penalty. Also, a mandatory minimum sentence of 10 years was an illegal sentence where the statute required only a 5 year mandatory minimum.

Phillips v. State, 219 Md. App. 624 (2014)
Where the appellant was retried after his conviction was reversed and given a higher sentence at his second trial due to several infractions he obtained while incarcerated, the increased sentence was not a violation of due process.

Twigg v. State, 219 Md. App. 259 (2014)
If the appellate court, in its discretion, remands a case for the trial court to impose a new sentence, the trial court is not limited by its previous sentence on that charge.

Inconsistent Verdicts
Travis v. State, 218 Md. App. 410 (2014), held that a legally or factually inconsistent verdict in a bench trial mandates reversal. Wallace v. State, 219 Md. App. 234 (2014), held that a legally inconsistent verdict will exist where the defendant was acquitted of a lesser included offense but convicted of the greater offense, and the offenses arose from the same criminal transaction. Whether offenses arise from separate criminal transactions is determined by looking to the indictment and jury instructions, not to the evidence adduced at trial. Id.

Ineffective Assistance of Counsel
Guardado v. State, 218 Md. App. 640 (2014)
Padilla v. Kentucky does not apply retroactively to a 2008 guilty plea because, in 2008, state law did not provide an independent basis for a claim of ineffective assistance of counsel in failing to advise the defendant of the immigration consequences of his plea.

Kulbicki v. State, 440 Md. 33 (2014)
Failure to cross examine the State’s Comparative Bullet Lead Analysis expert regarding flaws in CBLA was ineffective assistance of counsel where the flaws were discoverable before trial through a report written by the expert.

Constitutional Law
Varriale v. State, 218 Md. App. 47 (2014)
Where a defendant voluntarily provides a DNA sample in one criminal investigation, the Fourth Amendment does not prohibit subsequent warrantless testing of that sample in another, unrelated criminal investigation. Under the Maryland DNA Collection Act, where a person voluntarily provides a DNA sample but is never formally charged in the case, the Act does not mandate expungement of the sample.

Norton v. State, 217 Md. App. 388 (2014)
If statements, i.e., sworn or certified declarations of facts, appear on forensic reports that attest to the accuracy of the results, or describe any formalized procedures that were used, the report may be sufficiently formalized to trigger application of Crawford.