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State v. Phillips

Court of Appeals of Maryland

February 20, 2018


          Argued: January 9, 2018

         Circuit Court for Anne Arundel County Case No. 02-K-14-001626

          Barbera, C.J., Greene Adkins McDonald Hotten Getty Wilner, Alan M. (Senior Judge, Specially Assigned)JJ.


          WILNER, J.

         We granted certiorari in this case to review, again, the manner in which Article IV, § 22 of the Maryland Constitution, providing for an in banc appeal from a "decision or determination of any point or question" by a Circuit Court judge, is intended to operate. In the end, our decision will be based on the wording of § 22 and Md. Rule 2-551. To be faithful to the standards for interpreting Constitutional provisions, however, we will need to review in some detail the origin and development of § 22 and some of our prior case law even though, regrettably, that lengthens the Opinion.


         On December 10, 2013, respondent Phillips allegedly murdered Shar'ron Mason. It appears that he was not arrested until July 18, 2014, at which time an indictment was returned charging him with first-degree murder and associated firearm violations. In August 2015, he filed a motion in limine to exclude certain documents and testimony that the State intended to offer at trial to establish the approximate location of Phillips's cell phone on the date of the crime. The motion asserted that the evidence was unreliable, irrelevant, and unduly prejudicial. The crux of Phillips's argument was that the methodology employed by the State's experts as the basis for the location evidence was a novel scientific one that had not received general acceptance in the relevant scientific community and therefore was inadmissible under Reed v. State, 283 Md. 374 (1978).

         Following a hearing conducted over the course of four days, Judge Silkworth, on February 12, 2016, granted the motion and entered an order excluding the documents and testimony. He concluded that two of the State's expert witnesses were not part of the relevant scientific community and that the methodology they espoused had not gained general acceptance within that community.

         Six days later, on February 18, the State filed a request for in banc review of that order. The request, itself, was bare-boned. It noted the State's objection to the order but listed no points or questions to be reviewed and gave no reasons why the Order was incorrect. That was not done until the State filed its memorandum on March 18, 2016, in which it listed seven specific questions for review.

         The State's request triggered a flurry of activity. Apparently in anticipation of the in banc request, the State asked that trial, set for March 9, 2016, be postponed, and it was. On February 24, Phillips moved to dismiss the in banc request; the motion was denied, subject to reconsideration at a later time. On March 3, 2016, the county administrative judge appointed three judges of the court to constitute the in banc court and designated Judge Mulford to chair the panel. On March 14, Judge Mulford entered an Order that directed the State to prepare a transcript of the proceedings before Judge Silkworth and set times for the filing of memoranda.

         The memoranda were filed, and the hearing before the in banc panel took place on May 17, 2016. On June 3, the panel filed a memorandum and Order denying a renewed motion to dismiss and reversing Judge Silkworth's Order excluding the evidence at issue. On July 6, 2016, trial of the case was postponed to February 13, 2017.

         We are not concerned here with the substance of the panel's decision - whether it was right or wrong - but rather with its own jurisdiction and its analysis of the State's right to pursue the in banc appeal as it did. The panel acknowledged the obvious fact that no judgment had yet been entered in the case and that, in any event, the State had no right under Title 12 of the Courts Article to appeal to the Court of Special Appeals from the grant of Phillips's motion in limine even if there were a final judgment. Relying on some language in Board v. Haberlin, 320 Md. 399 (1990) and the analysis of the Court of Special Appeals in Berg v. Berg, 228 Md.App. 266 (2016), however, the panel found that not to be an impediment. The case before it, the panel concluded, "is an extraordinary instance in which the legislature failed to address the ability of the State to take an in banc from [an] evidentiary determination amounting to both an abuse of discretion of the trial court and an error of law" and, reading Art. IV, § 22 in light of dicta in Berg, "shows the intention of the legislature to provide an avenue of review for situations akin to the case at hand." The panel's Order denied Phillips's motion to dismiss, reversed the evidentiary ruling of Judge Silkworth, and, at least implicitly, remanded the case for further proceedings, which have yet to occur.

         Phillips appealed to the Court of Special Appeals, which reversed the judgment of the in banc court. Phillips v. State, 233 Md.App. 184 (2017). As he had before the in banc panel, Phillips argued that Art. IV, §22 permits in banc review only when a direct appeal is allowed and that the State had no such right. The State responded that an in banc review of a trial judge's decision is not an "appeal" but a broader right of "review, " and that its right to that review, founded on Art. IV, § 22, is not limited by the statutory appeal provisions in Title 12 of the Courts Article. Apart from that, the State moved to dismiss the appeal on the ground that because the panel's order was an interlocutory one and no judgment had yet been entered, Phillips had no right to appeal it.

         The intermediate appellate court dealt first with the State's motion to dismiss the appeal to it, denying the motion on the ground that the decision of the in banc panel, which resolved the only issue before it, constituted a final judgment of that court and therefore was appealable by Phillips. Relying on this Court's case law and some of its own decisions, the Court of Special Appeals rejected the State's argument that the right to in banc review is broader than the right to appeal to the Court of Special Appeals or to this Court and concluded instead that "a litigant may not appeal to an in banc panel when the litigant could not note an appeal to this Court successfully." Id. at 205. Because the State had no right to appeal Judge Silkworth's ruling on the motion in limine, the Court held that the in banc panel was without jurisdiction to consider the State's request for review.

         THE ISSUES

         Two composite issues are presented by the parties: (1) whether a party, in this case the State in a criminal case, has the right under § 22 to seek in banc review of a trial judge's ruling that would not be immediately appealable to the Court of Special Appeals or this Court under Md. Code, Courts Article § 12-301 or other law; and (2) whether Phillips had the right to appeal the in banc decision, which adjudicated an interlocutory ruling of the trial court that could not have been immediately appealed directly to the Court of Special Appeals. We shall add a third issue that most clearly is presented and seems to have been ignored up to this point but that is determinative: whether the in banc court was lawfully created in this case.



         Art. IV, § 22 was inserted into the Maryland Constitution by the Constitutional Convention that met in 1867. Although the State places its emphasis on what it perceives to be the plain language of that section, both parties attempt to divine what the delegates to that Convention intended the section to mean. It is an exercise that this Court and the Court of Special Appeals have engaged in as well over the years.

         The standards to be applied in the construction of Constitutional language were confirmed recently in Bd. of Elections v. Snyder, 435 Md. 30, 53-54 (2013). We said there that our task "is to discern and then give effect to the intent of the instrument's drafters and the public that adopted it" but cautioned that "because the Constitution was carefully written by its drafters, solemnly adopted by the constitutional convention, and approved by the people of Maryland, courts lack the discretion to freely depart from the plain language of the instrument." Id. at 53.[1] Implementing that principle, we added that "[w]here the provision at issue is clear and unambiguous, the Court will not infer the meaning from sources outside the Constitution itself." Id. If the Constitutional provision is ambiguous, "we approach its interpretation the same way we interpret statutory language, and we generally apply the same principles." Id. at 54. In that regard, the Court, quoting from Johns Hopkins v. Williams, 199 Md. 382, 386 (1952), observed:

"Courts may consider the mischief at which the provision was aimed, the remedy, the temper and spirit of the people at the time it was framed, the common usage well known to the people, and the history of the growth or evolution of the particular provision under consideration."

         In Reger v. Washington Co. Bd. of Ed., 455 Md. 68, 96 (2017), quoting from Phillips v. State, 451 Md. 180, 196-97 (2017), we added that if a statute is clear and unambiguous, "we need not look beyond the statute's provisions and our analysis ends" but that "[o]ccasionally we see fit to examine extrinsic sources of legislative intent merely as a check of our reading of a statute's plain language, " including "archival legislative history."

         Archival legislative history includes legislative journals, committee reports, fiscal notes, amendments accepted or rejected, the text and fate of similar measures presented in earlier sessions, testimony and comments offered to the committees that considered the bill, and debate on the floor of the two Houses (or the Convention). MVA v. Lytle, 374 Md. 37, 57 (2003); Boffen v. State, 372 Md. 724, 736-37 (2003). The views expressed by individual members of the legislative (or Constitutional) body as part of the debate may be considered, subject to the critical caveat that those views may not have been shared by anyone else and, to that extent, may be irrelevant.

         Those principles apply in full force when the provision at issue is the same, or at least substantially the same, as when initially adopted. We look then to the composite intent of the delegates (or legislators) that adopted it from the language they used and, where appropriate, relevant external sources of the kind noted. When the provision at issue has subsequently been amended, however, and the amendments bear on the proper construction of the provision as it currently exists, it is the intent of the amenders that may become paramount. Art. IV, § 22 has been amended twice since 1867, the principal one being in 2006. We need to look, therefore, at the overall development of the provision and most particularly at the 2006 amendment. When we examine the case law dealing with § 22, we need to keep in mind what the Court was construing at the time.

         The 1867 Convention and the Legislative Response

         The 1867 Convention was the third in 17 years, and many of the issues involving the Judiciary that had been debated in the preceding two - in 1850 and 1864 - were back. The Convention that met in 1850 was dominated by the debate over slavery, a desire to put the State's deplorable fiscal condition in order, and a restructuring of the State government. A major part of that restructuring was of the Judiciary. The General Court, the county courts, and the Chancery Court that existed under the 1776 Constitution were abolished and replaced by (1) a Court of Appeals consisting of a Chief Justice and three Associate Justices, one from each of four judicial districts, (2) division of the State into eight judicial circuits from each of which one judge was to be elected and designated as a Circuit Court judge, who was required to sit at least twice a year in each county within the circuit, and (3) three courts in Baltimore City - a Court of Common Pleas, a Superior Court, and a Criminal Court, each to consist of one judge. This clearly was a system in which it was expected that trials would be presided over by one judge.

         The 1864 Convention also did some restructuring of the Judiciary. It expanded the Court of Appeals to a Chief Justice and four Associate Justices, created a Circuit Court in each county and, with respect to the Circuit Courts, divided the State into 13 judicial circuits and, in 12, provided for one judge in each circuit. In Baltimore City, which was the Thirteenth Circuit, there were to be four courts - the three provided for in the 1851 Constitution plus a Circuit Court, each court to consist of one judge. This also was a one-judge system.

         One of the issues in the 1867 Convention was whether to increase the number of judges within the circuits so that trials could be held before three judges rather than just one. That issue had arisen early in the 1864 Convention, when the Committee on the Judiciary was directed to consider (1) dividing the State into 10 judicial districts, each consisting of two counties, (2) having two Circuit Judges and one judge of the Court of Appeals within each circuit, and (3) having two terms per year in each county in which the two Circuit Judges and the Court of Appeals judge would sit, "so that each Court shall be held by three judges except in cases of illness or other necessary absence." The Debates of the Constitutional Convention of the State of Maryland (1864) at 72. As noted, that did not carry, but it resurfaced in 1867.

         The 1867 Convention was peculiar in at least one important respect. Unlike the 1850 and 1864 Conventions, the 1867 Convention did not keep an official record of the speeches and debates. Most of what we know about what was said by the delegates was cobbled from contemporaneous newspaper accounts, some of questionable reliability. In 1923, Philip B. Perlman published what he called Debates of the Maryland Constitutional Convention of 1867 (hereafter Perlman), which was taken mostly from the morgue files of the Baltimore Sun - Perlman's former employer.[2] That book has become the principal, though incomplete, source for what occurred and was said at the Convention.

         Mr. Connolly views further reform of the Maryland judicial system as one of the principal issues at the Convention, a major aspect of which was increasing the number of Circuit Court judges, replacing the "one judge" system, and allowing trials before a panel of three judges. 51 Md. L. Rev. at 444-45. The Convention's Committee on the Judiciary seemed to waffle on that issue. It proposed returning to eight judicial circuits, each (except the Eighth, which was Baltimore City) to consist of a Chief Judge and two Associate Judges. They were to hold at least two terms of the Circuit Court in each county but one judge would constitute a quorum for the transaction of any business. See Perlman at 266. That seemed to allow for trials before either one judge or up to three.

         The Committee proposed a very different system for Baltimore City, where there was to be a Supreme Court of Baltimore City, to consist of a Chief Justice and five Associate Justices. Those judges would be assigned to sit in the other courts - the Superior Court, the Court of Common Pleas, the Baltimore City Court, the Circuit Court, the Criminal Court, and the Orphans' Court -- which would sit in "general terms" of not less than three judges and "special terms" of one or more judges. The Supreme Court would have the power to make Rules for all of the City courts and for the "granting, hearing, and determination of motions for a new trial . . . or upon motions in arrest of judgment, or upon any matters of law by said judge or judges determined." Id. at 268.

         That was not what ultimately was adopted, but it served as a backdrop for what became § 22.[3] According to Connolly, referencing a Baltimore Sun article, Delegate Archer filed a Minority Report proposing twelve judicial circuits, with one judge for each circuit and complained about the expense of having three judges. Two days later, again according to Connolly, Delegate Syester, favoring the three-judge system, proposed that the three judges provided for in the Committee on the Judiciary Report "also hold a court of revision in each district, and to this the poor man could take an appeal when he could not afford to go up to the Court of Appeals of the State." 51 Md. L. Rev. at 451. According to Connolly's source, access by poor people was not Syester's sole concern; he also expressed concern (1) that "appeals" were not then allowed in criminal cases and that "a criminal defendant's life should not rest solely on the decision of one judge, " and (2) that a motion for new trial was not an effective means of correcting a judge's error, for it required the judge to admit that he was in error. Id. at 452.

         Though obviously concerned about one-judge trials, Syester, according to Connolly, understood the additional fiscal burden of requiring three-judge trials and thus proposed instead a three-judge court of revision that would be available "especially when appellate review was not available or was difficult to obtain." Id. at 453. In a speech to the Convention, Syester said that "[i]t is intended that all ill-considered rulings of one judge shall be reserved at the instance of the party, for consideration of the three judges." Id., quoting from a report of Syester's speech in an August 2, 1867 article in The Hagerstown Mail.

         Connolly tells us that debate over a one-judge vs. a three-judge system continued all that day. The following Monday, Delegate Richard Alvey, a colleague of Syester from Washington County and later a judge (and ultimately Chief Judge) of this Court, introduced what eventually became § 22. The initial proposal was that a litigant could choose in banc review or an appeal to the Court of Appeals "where by law an appeal will lie, " suggesting, in Connolly's view that in banc review might lie where an appeal would not. 51 Md. L. Rev. at 453, 456. Alvey, himself, later amended that version, which was amended as well at the instance of others. When §22, as adopted, is read in conjunction with what became Art. IV, § 21, what emerged seemed to be a recognition that the norm would be one-judge trials, although two-judge or three-judge trials were possible, and that in banc review by three judges of the circuit would be allowed only where the trial was conducted by fewer than three judges.

         Section 22, as ultimately adopted, provided the following, which we shall break up for ease of reading:

"Where any Term is held, or trial conducted by less than the whole number of Circuit Judges, upon the decision, or determination of any point, or question, by the Court, it shall be competent to the party, against whom the ruling or decision is made, upon motion, to have the point, or question reserved for consideration of the three Judges of the Circuit, who shall constitute a Court in banc for such purpose."
"[T]he motion for such reservation shall be entered of record, during the sitting, at which such decision may ...

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