Holloman v. Mosby
| Decision Date | 27 October 2021 |
| Docket Number | No. 1976, Sept. Term, 2019,1976, Sept. Term, 2019 |
| Citation | 253 Md.App. 1,262 A.3d 1142 |
| Parties | Marcella HOLLOMAN v. Marilyn MOSBY |
| Court | Court of Special Appeals of Maryland |
Argued by: Bruce C. Bishop (William Carson, Steptoe & Johnson, LLP, on the brief), Washington, D.C., for Appellant
Argued by: Wendy L. Shiff (Brian E. Frosh, Attorney General, on the brief), Baltimore, MD, for Appellee
Panel: Fader, C.J., Nazarian, Shaw Geter, JJ.
Nazarian, J. Marcella Holloman's son, Maurice Donald Johnson, was shot and killed by police at their home in May 2012. Ever since, she has sought to have the shooting investigated and charges brought against the involved officers. After the State's Attorney declined to bring charges, Ms. Holloman filed a petition for a writ of mandamus in the Circuit Court for Baltimore City that sought a grand jury investigation into the shooting. After several court filings, documents contained in the court file were forwarded to the Baltimore City grand jury, which declined to indict. A later motion for relief and to present additional materials to the grand jury was denied as moot.
Ms. Holloman points to two different sources of law that, she says, entitle her to present her case to a grand jury. The first is Section 8-417(b) of the Courts and Judicial Proceedings Article of the Maryland Code ("CJ"), which states that "[i]n addition to any other duty imposed by law, each grand jury shall carry out an investigation if a judge of the [Baltimore City] circuit court directs." The second is a common law right to seek permission to appear before a grand jury. We hold that CJ § 8-417 does not create a private right of action through which Ms. Holloman can compel a circuit court judge to direct the grand jury to conduct an investigation, but that she does have a right at common law, see Brack v. Wells , 184 Md. 86, 40 A.2d 319 (1944) ; Sibley v. Doe , 227 Md. App. 645, 135 A.3d 883 (2016), to forward information to the grand jury, albeit not a right to appear before the grand jury in person. We reverse and remand with directions that the circuit court allow Ms. Holloman to compile materials she wishes to submit and to forward those materials to the grand jury.
On May 19, 2012, at 5:00 p.m., Mr. Johnson arrived at Ms. Holloman's home. He was visibly upset, and she wasn't sure why, and she wanted to take him to the hospital to get help. But he refused and went to the back of the house. Approximately five minutes later, Ms. Holloman called 911 to ask for assistance in getting Mr. Johnson transported to the hospital. Officer Paul Markowski responded at 5:16 p.m., ten minutes after the 911 call had been made. By that time, the situation had deescalated, and Mr. Johnson was in the backyard.
When Officer Markowski arrived, he entered the home through the front door. Ms. Holloman asked him to stay by the front door and wait for backup to arrive because Mr. Johnson had calmed down. Officer Markowski continued on—he looked around, walked through the house to the back door, and released the strap of his firearm holster along the way. Once at the back door, Officer Markowski called Mr. Johnson's name, and Mr. Johnson began banging on the back door.
Officer Gregory Bragg arrived and made his way to the back of the house as well. Officers Bragg and Markowski looked at each other, then unlocked and opened the door to the back yard. The officers each grabbed one of Mr. Johnson's arms, but Mr. Johnson was able to break free. A struggle between Officer Markowski and Mr. Johnson ensued and both men fell to the floor. Mr. Johnson got on top of Officer Markowski and Officer Markowski reached for his service weapon. Officer Markowski discharged his weapon at point blank range twice into Mr. Johnson's chest. Officer Bragg discharged his weapon into Mr. Johnson's back. Mr. Johnson took his last breath at 5:18 p.m., two minutes after Officer Markowski had arrived.
The police report states that Officer Bragg thought Mr. Johnson was reaching to take Officer Markowski's service weapon, and that that was the reason he discharged his weapon into Mr. Johnson's back. Ms. Holloman disputes this. She also contends that Officer Markowski was aware of Mr. Johnson's mental illness diagnosis because of prior incidents and that Mr. Johnson's diagnosis was contained in a Maryland database of persons known to have mental health diagnoses.
Soon after the death of her son, Ms. Holloman sought to have the officers’ conduct investigated. In a letter dated September 21, 2012, the Office of the State's Attorney for Baltimore City advised Ms. Holloman that the office had "reviewed the investigation into the death of your son Maurice Donald Johnson," that the office's review "supports the finding that Officer Gregory Bragg was acting reasonably in self-defense of himself and others when he shot your son," and "[t]herefore no criminal charges will be brought against Officer Bragg for his actions."
On August 14, 2013, Ms. Holloman filed a petition for a writ of mandamus seeking an order directing an independent investigation by a grand jury into the events of May 19, 2012. After the State's Attorney didn't respond, Ms. Holloman filed a motion for default judgment or, in the alternative, to impose sanctions against the State's Attorney and the police officers who responded to Ms. Holloman's 911 call. The court denied the motion for default judgment on October 16, 2013.
After receiving a Notice of Contemplated Dismissal from the circuit court, Ms. Holloman filed on April 29, 2015 a response that detailed her efforts to compel an investigation of her son's death. On August 22, 2015, Ms. Holloman also wrote to Judge W. Michel Pierson, the Administrative Judge of the Circuit Court for Baltimore City, and asked to approach the grand jury. The court issued an order deferring dismissal of the action pursuant to Maryland Rule 2-507(c) until April 8, 2016.1
Ms. Holloman filed an amended petition for a writ of mandamus on September 16, 2015. This time, she sought authorization to approach the grand jury so she could ask directly for it to commence an investigation. On September 28, 2015, Ms. Holloman wrote a letter to Chief Judge Mary Ellen Barbera of the Court of Appeals of Maryland requesting the same relief.
On October 14, 2015, the Attorney General of Maryland filed a motion for summary judgment asking that the State's Attorney "be granted summary judgment in the form of a declaratory judgment that [Ms. Holloman] may only communicate to the grand jury her wish to present allegations to the grand jury, but only after requesting that both this Court and the State's Attorney present the allegations to the grand jury." Ms. Holloman filed a timely opposition. The court granted the motion for summary judgment on November 20, 2015, and stated in its order that Ms. Holloman must first ask the State's Attorney and the court to present information to the grand jury before communicating with the grand jury. Ms. Holloman did so, and the State's Attorney's Office—indeed, the same Assistant State's Attorney—sent her a new letter on December 7, 2015 that reiterated its 2012 decision not to pursue charges and declining to bring the matter to the grand jury:
Please be advised that our 2012 finding that Office[r] Gregory Bragg was acting reasonably in self-defense when he shot your son has not changed. Therefore this office has no intention of presenting this matter to the Grand Jury of Baltimore City.
On August 18, 2016, Ms. Holloman filed a Notice of Compliance with the Court's Order and asked for permission to access the grand jury. The court issued a memorandum to the grand jury judge on November 23, 2016 requesting that the matter be brought to the attention of the grand jury. In a letter dated December 8, 2016, the grand jury judge wrote to Ms. Holloman stating that her request to approach the grand jury has been submitted and that the grand jury had declined to commence an investigation.
Nearly two years later, on November 28, 2018, Ms. Holloman filed a Motion for Disclosure of Materials Submitted to the Grand Jury. As the title suggests, Ms. Holloman asked the court to issue an order providing her access to all materials or evidence that had been submitted to the grand jury between November 23, 2016 and December 8, 2016. The Office of the State's Attorney responded that "[n]o materials were submitted to the grand jury," and thus there was nothing to disclose.
On June 12, 2019, Ms. Holloman filed a Motion for Relief and to Present to the Grand Jury. On October 30, 2019, the court issued an order stating that on September 25, 2019, the grand jury had been provided with copies of the court file and that on October 15, 2019, the grand jury had informed the court that it declined to conduct an investigation. As a result, the court denied Ms. Holloman's motion for relief and to present to the grand jury as moot.
Ms. Holloman noted this timely appeal. We supply additional facts as necessary below.
On appeal, Ms. Holloman seeks, in two different ways, to compel further investigation of her son's death by the Baltimore City grand jury.2 First , she argues that the circuit court erred by not ordering the grand jury itself, pursuant to CJ § 8-417, to investigate Ms. Holloman's allegations against the officers. Second , she contends that the circuit court erred by not allowing her to present her request for investigation to the grand jury foreperson personally. The State responds that her requests for these forms of relief were not preserved and that her motion for additional relief was denied properly as moot.
The facts surrounding Mr. Johnson's death are disputed in important ways, but the facts relating to Ms. Holloman's rights to seek grand jury relief aren't, and her arguments on appeal are purely legal questions that we review de novo . Sibley , 227 Md. App. at 653–54, 135 A.3d 883.
Before getting to the merits, though, we must...
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