Andrew Jezic

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Maryland Personal Injury Attorney Wins Difficult Case for Minor Pedestrian.

Silver Spring injury attorney, Jonathan Carroll, won a difficult case for a 12 year-old boy who was hit by a car after running toward an ice cream truck. The court found that the driver owed a heightened duty of care given that there were children in the neighborhood and an ice cream truck was present. There was no offer by the insurance company before trial.

Mr. Jezic continues to guide former Army Ranger toward freedom in Murder case in Montgomery County.

Link to Article

On Friday, October 25, a three-judge panel from Montgomery County Circuit Court reduced the sentence of former Army Ranger Gary Smith from 28 years to 15 years. With Smith’s 7 years of time served, he will be eligible for parole in 6 months.

Mr. Jezic and Mr. Moyse have been Mr. Smith’s attorneys from the day after the death of Mr. Smith’s close friend and former Army Ranger buddy, Mike McQueen, in September of 2006.

In November, 2006 Mr. Smith was charged with first degree murder despite passing two polygraph tests, indicating his innocence. Mr. Jezic secured Mr. Smith’s release on bond the next day – an extraordinarily rare occurrence for a first degree murder charge.

The first trial, lasting 11 trial days, resulted in acquittal of Mr. Smith on first degree and second degree murder charges, but guilty on a lesser form of second degree murder, called Deparaved Heart Murder. He received a 35 year sentence.

Recommending that the Mr Smith family hire the premier appellate attorney in the State, Gary Bair, Mr. Jezic worked closely with Mr. Bair, who eventually secured a unanimous reversal of the conviction in Maryland’s highest court on November 29, 2011.

Mr. Smith was soon out on bond again, and hired Mr. Jezic again after a brief representation by two excellent public defenders. When a critical defense postponement was denied during a very busy trial schedule for Mr. Jezic in the summer of 2012, Mr. Jezic recommended that the Smith family hire, as co-counsel, Barry Helfand and his law partner, David Martella.

In a twelve-day trial, Jezic, Helfand and Martella convinced a divided jury in September 2012 to acquit Mr. Smith of Depraved Heart Murder, but the jury still found Mr. Smith guilty of involuntary manslaughter and a gun charge. The same trial judge from 2008 gave Mr. Smith 28 years out of a maximum 30 years, despite sentencing guidelines calling for a sentence of 5 to 10 years.

Oral argument is set on December 11, 2013 in the Court of Special Appeals. Mr. Jezic has worked closely with Mr. Smith’s appellate attorney from the Public Defender’s office, Brad Peabody, a veteran appellate lawyer.

Mr. Jezic is very hopeful for a new trial – a third trial in 2014.

Jury Tells National Restaurant Chain To Accept Responsibility for their Food .

Montgomery County Injury Attorney Jonathan Carroll recently went to trial against a national restaurant chain when his client swallowed glass that was discovered in the client’s food. The restaurant’s attorney tried every excuse :”it’s the distributor’s fault” , ” you can’t prove the glass came from us”, and ” the customer wasn’t even hurt by the glass”. The jury rejected each of these excuses and found in favor of our client, the customer.

Ruling of Prince George’s County Circuit Court judge affirmed

Sinclair v. State.

The Court of Special Appeals of Maryland recently held that the limited, immediate search of an arrestee’s cell phone, pursuant to a lawful arrest, did not violate his Fourth Amendment right against unreasonable searches and seizures. The Appellant was convicted in the Circuit Court for Prince George’s County of various charges stemming from a carjacking in Temple Hills, Maryland. The record reveals that minutes after the Appellant’s lawful arrest, the on-duty officer conducted a limited search of the cell phone found on his person.[1] During the Appellant’s Circuit Court trial, defense counsel moved, in limine, to suppress the evidence seized from his phone.[2] The Circuit Court for Prince George’s County denied this motion, concluding that the search was valid incident to a lawful arrest.

On appeal, the Maryland Court struck down the Appellant’s claims, citing to a decision from the United States Court of Appeals for the Fourth Circuit.[3] The Court of Special Appeals of Maryland balanced the Fourth Amendment rights of suspects against the need of law enforcement to preserve evidence when faced with nuances presented by modern technology.[4] Here, the Court concluded that, because the search was close in time to the arrest and the officer “merely opened the appellant’s cell phone” to find the evidence on the screensaver, the search was valid under the Fourth Amendment.

The Maryland Court also held that the introduction of other crimes evidence is proper, when the probative value outweighs any unfair prejudice that may arise. Here, the Court reasoned that because both parties stipulated (and the jury knew) that Appellant was previously found guilty of a disqualifying crime, the introduction of other crimes evidence[5] related to this stipulation was not overly prejudicial. Furthermore, use of this evidence was properly admissible for purposes of impeachment because it was related to a contested issue in the case.

[1] The evidence seized from the phone consisted of pictures found on Appellant’s screensaver which were later confirmed to be images of the stolen car.

[2] Defense counsel asserted that his Fourth Amendment rights protecting him against an unreasonable search and seizure when the arresting officer did not first obtain a warrant to search his phone.

[3] See United States v. Murphy, 552 F.3d 405, 411 (4th Cir. 2009) (holding “The need for the preservation of evidence justifies the retrieval of call records and text messages from a cell phone or pager without a warrant during a search incident to arrest.”).

[4] The Court made note that, because evidence, such as text messages, pictures, and the like, can be erased so easily and quickly, the need to preserve such evidence justifies the search of cell phones pursuant to a lawful arrest.

[5] At issue was a recorded phone call Appellant made to his probation officer. At the trial level, defense counsel argued that the phone call’s prejudicial effect outweighed its probative value.

From attempted murder to simple assault.

Criminal Attorney David Wooten managed to turn a criminal case on its head in Howard County. Attorney Wooten’s client was held for 34 days pending charges for attempted murder, allegedly strangling his girlfriend to unconsciousness. Through diligent investigation and negotiation, however, Mr. Wooten worked out an amazing plea deal, whereby his client pled guilty to simple assault, and the client was sentenced to a straight probationary term. A straight probationary term means that his client was not even officially sentenced to the 34 days that he had already served, which is extremely important for a non-citizen who faces potential deportation as a result of a criminal conviction.

Protective order dismissal.

Attorney David Wooten recently convinced two different Montgomery County Circuit Court judges to dismiss two protective orders filed by the client’s estranged wife over the course of four months. Attorney Wooten’s client had pled guilty to Second Degree Assault against his wife in 2012. In the first 2013 protective order, the wife alleged that her husband attempted to crash into her with his car. In the second protective order, she alleged that he sent threatening text messages which suggested her life was in danger. Both protective orders were denied, after attorney Wooten argued that the wife is abusing Maryland’s protective order statute in attempt to gain a strategic advantage in their collateral divorce and custody battle, as well as to violate the client’s probation which would have put him in jail and caused him to lose his Maryland State inspector’s license.

Defendant’s testimony admissible in State’s case-in-chief during de novo appeals.

Oku v. State

The Court of Appeals of Maryland affirmed the ruling of a Montgomery County Circuit Court judge allowing voluntary testimony from a criminal defendant’s District Court trial to be used in the State’s case-in-chief during his Circuit Court trial. The Petitioner was accused of attacking a man while in an elevator in Silver Spring, Maryland. He was charged with second degree assault and reckless endangerment in the District Court of Maryland in Montgomery County. Petitioner, represented by an attorney, took the stand in his own defense.

During his trial, he admitted to punching the victim in the face once and hitting him once. It is undisputed that Petitioner’s District Court testimony was given voluntarily.[1] At the end of his District Court trial, Petitioner was convicted of both the second degree assault and reckless endangerment charges. Petitioner exercised his right to a de novo appeal in the Circuit Court for Montgomery County.

Before the start of Petitioner’s Circuit Court trial, Petitioner made a motion in limine arguing that the Court should preclude the introduction of Petitioner’s District Court testimony during his trial. The Court denied Petitioner’s motion. After the victim’s in-court identification of the Petitioner, the State, over Petitioner’s objection, introduced a recording of the Petitioner’s District Court testimony into evidence.[2] Petitioner asserted that his Fifth Amendment privilege against self-incrimination[3] and the nature of the de novo trial prohibited his District Court testimony from coming in during the State’s case-in-chief. Further, Petitioner asserted that the Circuit Court judge’s ruling relieved the State of its burden to put on its case a second time.

However, in ruling against Petitioner’s objection, the Court noted that Maryland’s de novo statutory scheme “does not call for exclusion of testimony voluntarily given in district court trial, as long as it is admissible under rules of evidence.”[4] In explaining its holding, the Court of Appeals of Maryland reasoned that while the structure of the de novo appeal system does have the effect of ignoring the judgment below, it does not allow for the complete erasure of the defendant’s voluntary testimony.

[1] See Oku v. State, page 2 (2013) available at http://www.mdcourts.gov/opinions/coa/2013/59a12.pdf.

[2] Id. The parties stipulated that “there was a prior trial below at which the defendant testified that he was the person on the elevator, that he struck Mr. Mijango [twice], and that he wasn’t in fear – – in other words, there was no self defense issue.”

[3] See U.S. Const. am. V. “No person shall . . . be compelled in any criminal case to be a witness against himself . . .” (The Court of Appeals of Maryland reasoned that “Petitioner’s District Court testimony, not compelled at the time it was given, did not transform into compelled testimony when later introduced in Circuit Court” thereby not offending the Fifth Amendment).

[4] Id. at 2.

Post-conviction relief after decades behind bars.

Lopez v. State

The Court of Appeals of Maryland held that the doctrine of laches[1] does not apply to post-conviction petitions arising from sentences imposed before October 1995. Mr. Lopez, sentenced in 1986 for committing a string of crimes in Silver Spring, Maryland,[2] filed his petition for post-conviction relief in 2005, unrepresented by counsel. In 2007, the Office of the Public Defender provided a supplement to Mr. Lopez’s petition, in which he alleged ineffective assistance of counsel. The State, in its response, used the equitable doctrine of laches as an affirmative defense to Mr. Lopez’s petition.

In 2008, the Circuit Court for Montgomery County denied his petition on that basis. The Court of Special Appeals of Maryland affirmed the Circuit Court’s ruling. The Court of Appeals of Maryland reviewed the intermediate Court’s decision on certiorari. In support of its ruling, the Court of Appeals of Maryland looked to the legislative intent of Maryland’s General Assembly and case law for guidance. [3] Through its analysis, the Court determined that the pre-amendment language allowing for post conviction petitions to be filed “at any time” applies to defendants sentenced before 1995. [4] Based on this examination, the Court of Appeals found no basis for refusing to apply the 1995 limitations retroactively, but permitting the use of laches as a defense, allowing Mr. Lopez to litigate his post-conviction petition.

[1] See Lopez v. State, (2013), “This equitable doctrine of laches bars litigation of a claim when there is unreasonable delay in its assertion and the delay results in prejudice to the opposing party” (citing to Liddy v. Lamone, 398 Md. 233, 243045, 919 A.2d 1276 (2007).

[2] In February of 1986, Mr. Lopez was convicted of attempted first-degree rape, attempted robbery with a dangerous and deadly weapon, and burglary. In March of that same year he plead guilty to two counts of first degree rape, one count of second degree rape, three counts of burglar, and one count of assault with intent to rape. As a result, he was sentenced to two consecutive life sentences and concurrent sentences on other charges.

[3] The Court notes that uncodified language relating to the 1995 amendment indicates the Legislature’s intent that the amendment only apply to sentences imposed after its enactment; see also State v. Williamson, 408 Md. 269, 277, 969 A.2d 300, 305 (2009) (10 year limitation period did not apply to an individual sentenced before the effective date of thesf statute – October 1, 1995).

[4] Formerly codified as the Maryland Uniform Post-Conviction Procedure Act, presently codified at Md. Code, Criminal Procedure Article (“CP”) § 7-101 et seq.

Montgomery County judge denial of criminal defendant’s mistrial motions affirmed.

Choate v. State

The Court of Special Appeals of Maryland recently affirmed a Montgomery County Circuit judge’s ruling denying Appellant’s motions for mistrial. The Court held that the grant of a mistrial is not warranted when the defendant has not suffered irreversible prejudice[1] and when the prosecution’s statements in closing do not create an inference that the defendant should have taken the stand.[2]

This case arises from a trial in which Appellant was convicted of first degree rape and two counts of first degree sexual offense of a Bethesda woman. As a result, he was sentenced to three consecutive life sentences. In Appellant’s Brief submitted to the Court of Special Appeals of Maryland, he asserts that his two motions for a mistrial were erroneously denied. His first motion, made during State’s closing, asserted that he was in fact prejudiced by the trial court’s ruling allowing the State’s reference to facts not introduced into evidence. Specifically, Appellant cited to the victim’s testimony regarding a screw driver that was allegedly used by Appellant during commission of the crime.

During the State’s case-in-chief, the victim was shown a screw driver found in the van in which Appellant was stopped and arrested. Her testimony indicated that she was unsure whether the screw driver shown to her was the same one used by the Appellant.[3] As a result, the Court ruled that the screw driver would be “admitted as the screwdriver Agent Willis[4] had recovered from the van.” Additionally, the Court prohibited the prosecution from arguing that the screwdriver introduced into evidence was the one used during the attack. Notwithstanding this limiting instruction, however, the prosecution, during closing, argued that “she’s grabbed by the defendant, who holds this screwdriver . . .”. Pursuant to the limiting instruction, the Court instructed the jury to disregard this statement. However, on appeal, the Court found that these statements were permissible concluding that because a reasonable jury could draw an inference that the screw driver presented during trial was the screw driver Appellant used (and trial counsel was free to argue the opposite) the statement did not give rise to a mistrial based on the Maryland Court’s standard of review.
The second motion, made during the State’s rebuttal, concerned Appellant’s contention that the State created an improper inference to the jury regarding Appellant’s decision not to testify. It is well settled law in Maryland that a criminal defendant has the right to decline to testify and not be penalized for this decision.[5] Appellant cited to a portion of the State’s rebuttal that “[t]here were only two people there” and that, the victim “came in and . . . sat here and . . . told you what happened” as statements that created an unlawful inference that the defendant’s silence should be seen as guilt. However, this excerpt of the rebuttal was a small portion of the five pages containing the State’s arguments bolstering the victim’s credibility because she was the only other witness to the crime other than the Appellant. As such, the Court found that the Montgomery County judge did not abuse his discretion in denying trial counsel’s second mistrial motion.

[1] See Choate v. State, at 10 (quoting Behrel v. State, 151 Md. App. 64, 142, 823 A.2d 696, 741, cert. denied, 376 Md. 546, 831 A.2d 5 (2003) (“A mistrial is . . . an extreme sanction that sometimes must be resorted to when such overwhelming prejudice has occurred that no other remedy will suffice to cure the prejudice…the remarks must be a direct and contributing factor that resulted in egregious prejudice to the defendant.”)) available at http://www.mdcourts.gov/opinions/cos/2013/0922s12.pdf.

[2]See id., (the Court, when reviewing “the denial of a motion for mistrial for abuse of discretion . . . will reverse only where “the prejudice to the defendant was so substantial that he was deprived of a fair trial.” Cooley v. State, 385 Md. 165, 173, 867 A.2d 1065, 1069-70 (2005)” available at http://www.mdcourts.gov/opinions/cos/2013/0922s12.pdf.

[3] When shown the screwdriver found by law enforcement, the victim testified, that it “could be [the screwdriver used by the appellant], but I can’t swear that it was.”

[4] Agent Willis was the patrol officer who stopped Appellant, in a van, on a Virginia state highway several hours after the victim reported the crime.

[5] See Md. Dec. of R. art 22; see also Md. Courts and Judicial Proceedings Code Ann. § 9-107.

Don’t let insurance companies have the last word on your case.

Maryland Personal Injury Attorney Jonathan Carroll stood by his client at trial after the insurance company told her her they would not pay anything on her case. The insurance company claimed our client ran a red light when making a left turn. The trial court disagreed with the insurance company and found that our client had the green light as she had said all along. Don’t let the insurance company have the last word on whether you can recover for your injuries. Always discuss your case with an accident Attorney.