Tuesday, December 5, 2017

Finding Zemo: "Stare Decisis Does Not Consist Of Plucking A Lyric Phrase Here Or There From The Low-Hanging Fruit"

If and when Judge Charles E. Moylan, Jr. ever retires, the Maryland Court of Special Appeals will lose one of the most lyrical and entertaining writers of judicial opinions in the country. 

One can recognize a Moylan opinion before reading the author's name, as in this criminal conviction for theft by deception  affirmed today.

The defendant purchased tires by identity theft.

On the Otis Redding question - how did the defendant come to sit in the dock?

How do the police routinely discover an unknown criminal’s identity? Or his whereabouts? With Elizabeth Barrett Browning, let us count the ways. Perhaps a police “hotline” receives a tip, anonymous or otherwise, from a good citizen. Perhaps the police, by cash or other inducement, pay for a tip from a snitch, to wit, a confidential informant. Perhaps the crime victim randomly spots the culprit on a crowded street or in Times Square on New Year’s Eve. Perhaps the fugitive becomes an instant celebrity by winning the lottery. Perhaps it is the prescience of a Gypsy fortune-teller or the wisdom of the tea leaves. Perhaps it is just dumb luck. Or perhaps law enforcement has available to it, as does Maryland in the present case, latter-day facial profiling technology. Like Shakespeare’s Cleopatra, Dame Fortune is possessed of “infinite variety” in how she points her finger at the avatar of guilt. The point is that the modus operandi just doesn’t matter. Even if reading the entrails of birds is a questionable technique for identifying a suspect, a suspect thus identified most assuredly does not go free.

He had entrails on the mind in eviscerating counsel for principal reliance on an earlier Moylan opinion

This brings us to Zemo v. State, 101 Md. App. 303, 646 A.2d 1050 (1994), and the appellant’s heavy reliance on it. The appellant objects to Detective Kelly’s testimony at two different levels, and we will respond with respect to each. At the initial admissibility level, the appellant objected to the admissibility of the search made of the North Carolina database that revealed that the driver’s license used by the appellant to perpetrate his theft by deception had been a fake. In addition to contending that the search of the database had been conducted by the clerk of the Charles County Sheriff’s Office acting alone and not in conjunction with Detective Kelly, the appellant, in reply brief, argues strenuously that the search violated the Rule Against Hearsay...

The only similarity is that both cases involved police testimony summarizing the investigation

In reply brief, the appellant took special umbrage at the fact that “the State never acknowledge[d] Zemo in its brief.” The appellant wants his case to be a clone of Zemo.

The vexing problem the appellant has with Zemo, however, is that Zemo does not stand for the proposition for which the appellant cites it. There is, to be sure, one peripheral similarity between the two cases. The appellant has constructed his thesis based on that one peripheral similarity. The appellant’s focus in this case is on the testimony of Detective Kelly describing his investigation. This Court’s focus in Zemo, leading to a reversal of a conviction, was on the testimony of Detective Augerinos describing his investigation. At that point, however, all similarity between the two cases has come to an end. Our focus must shift from the periphery to the core. The actual focus in Zemo was not on the detective’s testimony describing his investigation per se. It was on the fact, rather, that the detective, by virtue of unduly extensive and, in that case, totally irrelevant testimony about his investigative procedures, introduced into the case two highly prejudicial pieces of information against the defendant...

The present case and Zemo are diametrically different in that the invocation of the right to silence in Zemo and the detailed corroboration of information from the confidential informant in Zemo were both completely inadmissible and highly prejudicial. In this case, by stark contrast, 1) the information that the North Carolina license presented to the theft victim was a fake and 2) the identification of the anonymous thief as the appellant were both highly relevant matters as to which evidence would have been admissible. What Detective Augerinos introduced in Zemo, by contrast, was irrelevant and inadmissible. What Detective Kelly introduced was properly in the present case. The contrast between the two cases is one of 180°.

The dissimilarity between this case and Zemo does not end there. An even more significant difference between this case and Zemo is one that engages the very ABCs of “How To Read An Appellate Opinion 101.” Stare decisis does not consist of plucking a lyric phrase here or there from the low-hanging fruit. Nor does it consist even of taking a succulent looking sentence out of its constraining context. The auditor must make a genuine search for the central thrust of a decision because therein lies the only locus of precedential authority.

The coup de grace

In relying, as he does, almost exclusively on Zemo, the appellant cites Zemo for a message that Zemo affirmatively disavowed. It would ill behoove the appellant, moreover, to tell the Court that wrote Zemo what it was that Zemo meant to say. We affirm the conviction.

Ouch. (Mike Frisch)


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