Silver v. State

Citation420 Md. 415,23 A.3d 867
Decision Date20 June 2011
Docket NumberNo. 98, 99 Sept. Term, 2010,98, 99 Sept. Term, 2010
Parties Donna SILVER v. STATE of Maryland. Hilton Silver v. State of Maryland.
CourtCourt of Special Appeals of Maryland

420 Md. 415
23 A.3d 867

STATE of Maryland.

Hilton Silver
State of Maryland.

No. 98, 99 Sept. Term, 2010

Court of Appeals of Maryland.

June 20, 2011.
Reconsideration Denied Aug. 11, 2011.

23 A.3d 869

Deborah S. Richardson, Asst. Public Defender (Paul B. DeWolfe, Public Defender, Baltimore, MD), on brief, for petitioner in No. 98, Sept. Term, 2010.

Ryan R. Dietrich, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for respondent in Nos. 98 and 99, Sept. Term, 2010.

Russell P. Butler, Esq., Bridgette Harwood, Esq., Maryland Crime Victims' Resource Center, Inc., Upper Marlboro, MD, for Amicus Curiae brief of Maryland Crime Victims' Resource Center, Inc. in Nos. 98 and 99, Sept. Term, 2010.

Kimberly A. Kline, Baltimore, MD (Jay Fred Cohen, Baltimore, MD), on brief, for petitioner in No. 99, Sept. Term, 2010.



420 Md. 419

In this animal cruelty case, we must determine whether, under the rule in Walczak v. State, 302 Md. 422, 488 A.2d 949 (1985), which prevents a trial court from ordering restitution relating to dropped charges, a defendant convicted of cruelty toward one horse may be required to pay restitution for other horses he allegedly neglected. The Petitioners, Donna and Hilton Silver, owned three horses who were found by police in terrible health. One of the horses had to be euthanized on the property, and the other two were sent to a rescue farm for rehabilitation. Police charged the Silvers with three counts of animal cruelty. The Silvers entered plea bargains in District Court sitting in Baltimore County, pursuant to which they each pleaded guilty to one count of animal cruelty, and the State did not pursue the remaining counts.

After being sentenced by the District Court, however, the Silvers appealed for a de novo trial in the Circuit Court for Baltimore County. The State did not re-file charges for the dropped counts, thus pursuing only the charge relating to the horse that died. At trial, the Circuit Court heard evidence regarding the condition of the other two horses and convicted the Silvers each of one count of animal cruelty. As a condition of probation, the Court ordered the Silvers to pay restitution to veterinarian who euthanized one horse, and to the rescue farm for the costs of caring for the surviving horses. The Silvers petitioned for a writ of certiorari from this Court, and we granted to answer the following questions:1

420 Md. 420
1) Did trial court err in imposing criminal restitution for offenses for which the petitioner was not convicted?

2) Where the prosecutor failed to provide discovery of a written report prepared by the State's witness, relating to the offense charged, did the trial court err in admitting testimony of that witness?

3) Did the trial court err in admitting photographs depicting alleged other offenses for which petitioner was not being prosecuted?

We shall hold that the court was not permitted to order restitution for the other horses with regard to whom the defendants were not convicted of a crime, and vacate that order. We shall hold that the Circuit Court's evidentiary decisions and

23 A.3d 870

sentence were otherwise valid, and thus affirm the rest of its judgments.


On March 20, 2009, Kerry Boller drove down Frys Lane in Randallstown, Maryland, on her way to visit a friend and former neighbor, and passed the property of Donna and Hilton Silver, the defendants in this case. Ms. Boller knew the Silvers' property well, having looked after the Silvers' horses while they were on vacation the year before. On that day, as she passed, she noticed a large white object in the yard, covered by a blue tarp. She then observed that the Silvers' white horse was missing from the horse paddock. Ms. Boller talked to her former roommate on Frys Road, and encouraged her to contact the police.

Five days later, after receiving the complaint, Joyce Barnett reported to the Silvers' property. Barnett is an experienced Animal Control officer for Baltimore County, and the owner of horses herself. As she pulled in the driveway, she saw two horses in the pasture whose ribs were visible under their skin.

420 Md. 421

As she walked through the yard, she then saw what she thought to be a dead horse lying under a blue tarp.

Yet, as she approached the horse, it snickered at her, as a dog would wag its tail. The horse—Calypso—attempted to lift her head off the ground, but other than that was unable to move. Calypso's ribs were showing, and her back and hips were covered with burrs. The ground around Calypso's head and feet was dug out, as the horse had been kicking and rocking back and forth attempting to get up. Behind the horse, there was a large pile of manure. It was apparent that she had been lying there for days.

Barnett went to the house and knocked on the door. Donna Silver came to a window. After being questioned, Mrs. Silver told Barnett that the horse had fallen down a few days earlier, and that they had been unable to get the horse up, and could not afford a veterinarian.

Soon after, Hilton Silver returned. He was visibly upset that Barnett had blocked his driveway, and refused to answer questions about Calypso. Barnett thus moved her vehicle onto the grass, and attempted again to discuss the horse with Mr. Silver. He said that after the horse had fallen down, they had tried to lift him up, even getting a neighbor to try and lift him with his tractor. After these attempts failed, Mr. Silver covered Calypso with a blue tarp, and "came out every day to see if it was still alive."

Barnett told the Silvers that the horse needed to be euthanized, immediately. The Silvers continued to refuse a veterinarian, and asked Barnett if she could just shoot the horse to save the veterinarian's fee. Barnett requested a police dispatch, at which time Officer Heather Carpen reported to the Silvers' property.

When Carpen arrived, Mr. Silver was still upset. He told both officers that it was "none of [their] business about the horses[,]" and that he "wanted [them] off of his property." Carpen reiterated that the horse needed to be euthanized, and Mr. Silver asked Carpen to just shoot her. After talking with her supervisors, Carpen told Mr. Silver that she was not

420 Md. 422

allowed to shoot the horse, but that he, as the owner of the horse, could. Silver called some of his neighbors, asking to borrow a gun, but none of his neighbors wanted to get involved.

Carpen and Barnett then attempted to contact veterinarians, and ask if they would accept monthly payments in lieu of a fee up front, so that the Silvers could afford to have the horse euthanized, while

23 A.3d 871

Barnett's supervisor sought approval to have the County pay for a euthanization. Eventually, Barnett got in touch with a veterinarian's office in Hampstead, who agreed to accept monthly payments, and sent Dr. Klebe, an associate veterinarian, to the site. Dr. Klebe arrived shortly thereafter.

The veterinarian's diagnosis was grim:

[Calypso's] body was covered in burrs. She was obviously severely emaciated....

[S]he had a rapid eye movement that I could see where the pupil flickers back and forth in a horizontal fashion, and that's called nystagmus, and that indicates some sort of neurological compromise. She had crusts around her eyes ... [which] usually indicates significant dehydration, and also soft trauma.

* * *

[I]t was clear from the dull color of her gums she was in sever and prolonged shock.

She also had sores on body from being recumbent for so long and trying to drag herself around on the ground.

* * *

[S]he was in shock which causes kind of global pain in the body.

She was having difficulty breathing. She was probably in kidney failure, which is also very, very painful to the point where she was having neurological deficit, so her mensuration, her appreciation of the world, was substantially impaired.
420 Md. 423

Dr. Klebe observed that Calypso had been in that position for an extended period of time:

There was a large quantity of feces around the mare's hind quarters.... She had obviously been there for a considerable period of time to defecate in that quantity. There were also marks on the ground where the mare had attempted to drag herself around a little bit. You could see the impression her body left as she kind of slowly wiggled along the ground.

* * *

[I]t was obvious that her condition hadn't come about in one or two days, or even one or two weeks, probably even one or two months. It had to have been really prolonged neglect [and] prolonged starvation[.]

Dr. Klebe concluded that Calypso was "too far gone to try and rehabilitate [,]" and "was suffering from a point where it wasn't human to try to...

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