Tallant v. State

• Decision Date: 31 May 2022
• Docket Number: 1253, Sept. Term, 2020
• Citation: 254 Md.App. 665,276 A.3d 619
• Parties: Richard John TALLANT v. STATE of Maryland
• Court: Court of Special Appeals of Maryland

254 Md.App. 665

276 A.3d 619

Richard John TALLANT

v.STATE of Maryland

No. 1253, Sept. Term, 2020

Court of Special Appeals of Maryland.

May 31, 2022

Argued by: Oana A. Brooks (Brooks Law LLC, on the brief), Baltimore, MD, for Appellant.

Argued by: Gary E. O'Connor (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for Appellee.

Panel: Leahy, Zic, J. Frederick Sharer (Senior Judge, Specially Assigned), JJ.

Zic, J. Richard Tallant, appellant, was convicted by a jury in the Circuit Court for Prince George's County of one count of second-degree sexual offense on December 19, 2019. He was sentenced on December 16, 2020 to ten years of incarceration with all but seven years suspended and four years of supervised probation. We limit our review of the facts and procedural history as necessary to address the questions presented, which we have largely recast. The relief that he requests on appeal is a new trial and different trial judge. While we do not provide him with that relief, we remand the case for further proceedings because we hold that the circuit court abused its discretion when it granted the State's "Motion to Strike [Mr. Tallant]’s Supplemental Motion for New Trial and Motion to Seal."

BACKGROUND

Mr. Tallant's First Motion for New Trial, Motion for Reconsideration, and Motion for Appropriate Relief

Following his conviction, Mr. Tallant filed a Motion for New Trial pursuant to Maryland Rule 4-331(a) on December 30, 2019. The State filed an opposition on January 10, 2020. The circuit court denied Mr. Tallant's motion without a hearing on January 21, 2020.

On February 13, 2020, Mr. Tallant filed a Motion for Reconsideration of Denial for New Trial. In response, the State filed an Answer to Motion for Reconsideration of Denial for New Trial on February 20, 2020. Mr. Tallant filed a Motion for Appropriate Relief on March 4, 2020. The court did not rule on the Motion for Reconsideration or the Motion for Appropriate Relief, and no hearing was scheduled as requested in the Motion for Appropriate Relief.

Mr. Tallant's Supplemental Motion for New Trial and the State's Motion to Strike and Seal

On June 9, 2020, Mr. Tallant filed a Supplemental Motion for New Trial and Request for a Hearing ("Supplemental Motion").¹ This motion was brought pursuant to Maryland Rule 4-331(a) and (c) and Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Mr. Tallant relies on Rule 4-331(c) for his motion for a new trial based on newly discovered evidence. In his Supplemental Motion, Mr. Tallant asserts that the following evidence was newly discovered² :

1. Lt. Black's^[3] complete Investigator's Activity Summary ("Black's suppressed Summary"), which the State failed to disclose, contained notations through December 19, 2019, the date of the verdict, while the version prosecutors disclosed contained a last entry date of August 20, 2019. See Exhibits 4; 4A.

2. Per Lt. Black's suppressed Summary, prosecutors met with Lt. Jackson on August 23, 2019. See Exhibit 4A.

3. It is alleged that prosecutors discussed [the victim]’s statement with Lt. Jackson during their August 23, 2019 meeting, and further, that they asked him how he felt about the fact that his statement did not match her statement.

4. Lt. Black's suppressed Investigator's Activity Summary further indicates that following their August 23, 2019 meeting with [Lt.] Jackson, prosecutors inquired as to [the victim]’s allegations against him; later sought additional information about said allegations; and planned to postpone their presentation of the case to the Grand Jury seemingly to await the information they requested. See Exhibit 4A.

5. Further, Lt. Black's suppressed Summary of Investigative Activity reflects that on September 17, 2019 [the prosecutor] informed Lt. Black that she became aware of rumors circulating that [the victim] was flirting with Lt. Tallant on the evening in question prior to the alleged incident and requested that he conduct additional witness interviews.

6. Based on Lt. Black's suppressed Summary, it is evident that the State was aware of the rumors, so notwithstanding prosecutors’ failure to disclose [Lt.] Black's actual Summary, the State failed to disclose the substance of the reported flirting and intentionally suppressed the following:

• the source(s) of the rumors

• when the rumors were first reported

• the specificity of what was said and to whom it was conveyed

• whether Lt. Black or any other PGPD detective investigated the rumors

• the investigative notes

• the outcome of such investigations

(footnotes omitted).

The State responded by filing a Motion to Strike Defendant's Supplemental Motion for New Trial and Motion to Seal⁴ ("Motion to Strike and Seal"), which was a total of two pages and single-spaced. In its motion, the State sought to seal Mr. Tallant's Supplemental Motion and its Motion to Strike and Seal. On June 22, 2020, Mr. Tallant filed an Opposition and Request for a Hearing in Response to the State's Motion to Strike Defendant's Supplemental Motion for New Trial and Motion to Seal ("Opposition to State's Motion to Strike and Seal"), asking the court to deny the State's request or to alternatively conduct a full adversary hearing.

The court granted the State's Motion to Strike and Seal on June 30, 2020 without a hearing. In its order, the court did not provide its rationale for striking the Supplemental Motion or sealing the filings. Further, the court failed to address the merits of Mr. Tallant's arguments concerning the newly discovered evidence. On August 3, 2020, Mr. Tallant filed a notice of appeal, appealing from the court's order granting the State's Motion to Strike and Seal.

This appeal was assigned No. 0588, Sept. Term 2020. We note that this appeal was filed more than 30 days from the court's order granting the Motion to Strike and Seal. See Md. Rule 8-202(a) (providing that "the notice of appeal shall be filed within 30 days after entry of the judgment or order from which the appeal is taken"); see also Kevin F. Arthur, Finality of Judgments and Other Appellate Trigger Issues 17-18 (3d ed. 2018) (noting that "[a]n aggrieved party has 30 days from the clerk's entry of the judgment on the docket to appeal from the circuit court to the Court of Special Appeals" and that an appellate court is authorized to "dismiss an untimely notice of appeal" on its own motion or on the motion of the opposing party (first citing Md. Rule 8-202(a) ; and then citing Md. Rule 8-602(a) )).

The Court of Appeals, however, has recognized that the 30-day requirement of " Rule 8-202(a) is a claim-processing rule, and not a jurisdictional limitation." Rosales v. State , 463 Md. 552, 563-68, 206 A.3d 916 (2019) (explaining that a "jurisdictional rule" is prescribed by statute while a "claim-processing rule" does not involve a time limit set forth by the legislature). While Rule 8-202(a) "remains a binding rule on appellants," id. at 568, 206 A.3d 916, "the failure to file an appeal within the time limit ... does not divest an appellate court of jurisdiction to hear the [untimely] appeal." Taylor v. State , 473 Md. 205, 225 n.14, 249 A.3d 810 (2021). Because Rule 8-202(a) "is not jurisdictional, a reviewing court must examine whether waiver or forfeiture applies to a belated challenge to an untimely appeal." Rosales , 463 Md. at 568, 206 A.3d 916.

We do not dismiss appeal No. 0588 for untimeliness. Here, the State did not include a motion to dismiss in its brief or otherwise contend that appeal No. 0588 was untimely. See Md. Rule 8-603(c) (permitting appellee to include a motion to dismiss in its brief); Thompson v. State , 229 Md. App. 385, 400, 145 A.3d 105 (2016) (noting that, pursuant to Rule 8-504, "[a]rguments not presented in a brief ... will not be considered on appeal" (alteration in original) (quoting Wallace v. State , 142 Md. App. 673, 684 n.5, 791 A.2d 968 (2002) )). The State waived any objection to the issue of untimeliness; indeed, "this issue has proceeded through the appellate system without the State ... objecting to a review on the merits by the Court of Special Appeals." Rosales , 463 Md. at 569, 206 A.3d 916. Furthermore, the appeal was consolidated with another timely appeal, No. 1253, Sept. Term 2020, which was filed within 30 days of the December 16, 2020 sentencing hearing. We reach the merits of appeal No. 0588 because the issues have been fully briefed, to provide instruction on remand, and to avoid "unjustifiable expense and delay." Md. Rule 1-201(a).

Mr. Tallant's Motion to Clarify, the November 6 Proceeding, and the December 16 Sentencing

On November 5, 2020, Mr. Tallant filed a Motion to Clarify the Court's Ruling on the Motion for New Trial Based on Newly Discovered Evidence. On November 6, 2020, at the beginning of what was scheduled as a sentencing hearing, the circuit court addressed that motion:

Yesterday, the defendant filed a motion to clarify the [c]ourt's ruling on a motion for a new trial based on newly-discovered evidence. For the record, the [c]ourt finds that a prima facie case and prima facie basis for granting a new trial was not established. Furthermore, the [c]ourt finds that it was not merely newly-discovered evidence. Nonetheless, the [c]ourt will hear from the defendant and the State under a reconsideration.^{[5 ]}

The court indicated that it would hear argument concerning only "additional information that I didn't have before me that was not in your motions that I've already read." No arguments were heard that day. The sentencing hearing was postponed to December 16, 2020, but before the end of the November 6, 2020 remote hearing,⁶ Mr. Tallant's counsel "object[ed] that this portion here was not opened to the public"⁷ and stated "that any and everything should be open to the public."

During the sentencing hearing on December 16, 2020, the court addressed its previous sealing order and indicated that Mr. Tallant's Supplemental Motion and all accompanying attachments were sealed pursuant to its June...