State v. Phillips

• Decision Date: 20 February 2018
• Docket Number: No. 49, Sept. Term, 2017,49, Sept. Term, 2017
• Citation: 179 A.3d 965,457 Md. 481
• Parties: STATE of Maryland v. Bashunn Christopher PHILLIPS
• Court: Court of Special Appeals of Maryland

457 Md. 481

179 A.3d 965

STATE of Maryland

v.Bashunn Christopher PHILLIPS

No. 49, Sept. Term, 2017

Court of Appeals of Maryland.

February 20, 2018

ARGUED BY Wes Adams, State's Attorney for Anne Arundel County and Robert Taylor, Jr., Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD) on brief, FOR PETITIONER.

ARGUED BY Rachel Simmonsen, Assistant Public Defender (Paul B. DeWolfe, Public Defender of Maryland, Baltimore, MD) on brief, FOR RESPONDENT.

ARGUED BEFORE: Barbera, C.J., Greene, Adkins, McDonald, Hotten, Getty, Alan M. Wilner (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.

BACKGROUND

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, 391 A.2d 364 (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, 578 A.2d 215 (1990) and the analysis of the Court of Special Appeals in Berg v. Berg , 228 Md. App. 266, 137 A.3d 1035 (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, 163 A.3d 230 (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, 163 A.3d 230. 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.

DISCUSSION

Introduction

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, 76 A.3d 1110 (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, 76 A.3d 1110.¹

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, 76 A.3d 1110. In that regard, the Court, quoting from Johns Hopkins v. Williams , 199 Md. 382, 386, 86 A.2d 892 (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, 166 A.3d 142 (2017), quoting from Phillips v. State , 451 Md. 180, 196–97, 152 A.3d 712 (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...