Russell v. State
109 A.3d 1249
Md. Ct. Spec. App.2015Background
- Oliver Allen Russell was convicted in 2007; convictions were reversed and he was retried in 2010 and again convicted and placed on five years’ probation (Judge Finifter case). He later entered an Alford plea in a separate 2012 case and received a three-year probation term (Judge Bailey case).
- Probation officers moved to modify both probation orders to add COMET (Collaborative Offender Management Enforcement Treatment) supervision, which can include intensive reporting, specialized sex-offender treatment, polygraph testing, GPS electronic monitoring, computer monitoring, medication verification, and a 7 p.m.–7 a.m. curfew.
- The circuit court (joint hearing) granted the modifications and added COMET supervision to both probations; Russell appealed and the State moved to dismiss for lack of an appealable final judgment.
- The Court of Special Appeals held the probation-modification orders are final and appealable, granted Russell leave to appeal the Judge Bailey case, and considered the merits.
- Russell challenged COMET’s delegation of curfew authority, the polygraph requirement (rational basis, vagueness/Fifth Amendment, sanctions, and statutory preemption), and GPS monitoring; the court rejected each challenge and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appealability of probation-modification order | Order modifying probation is not an appealable final judgment | The modification is a final resolution under CJP and Rule 4-346(b) | Modification orders are final and appealable; State's motion to dismiss denied |
| Delegation of curfew to DPP/COMET | Court cannot delegate curfew authority to DPP/COMET | Court may impose a general condition and delegate specific rules to supervising authority | Delegation permissible where court sets the general condition and DPP provides specific, reasonable direction |
| Polygraph requirement (rational basis) | Polygraphs are unreliable; condition lacks rational basis (Brown) | Polygraphs further supervision goals: accountability, deterrence, rehabilitation, and assist treatment/supervision | Polygraph condition has a rational basis; serves multiple valid probationary objectives |
| Polygraph/Fifth Amendment (vagueness & sanctions) | Condition is vague about self-incrimination; sanctions for silence effectively compel testimony | Murphy/McKune line permits supervision measures and sanctions that do not constitute unconstitutional compulsion | Fifth Amendment challenges premature; sanctions (increased reporting/curfew) are not atypical/significant or coercive enough to compel testimony |
| GPS monitoring/statutory preemption | Statutes authorizing polygraph/GPS for lifetime supervision show court cannot impose them on probationers | 2006/2010 statutes concern parole/lifetime supervision and do not limit courts’ authority to set probation conditions | Court may impose GPS as a probation condition; statutes do not preclude probationary use of these tools |
Key Cases Cited
- Douglas v. State, 423 Md. 156 (appealability and final-judgment discussion)
- In re Billy W., 386 Md. 675 (final judgment test: whether rights are finally determined)
- Rohrbeck v. Rohrbeck, 318 Md. 28 (definition of final judgment context)
- Argabright v. State, 76 Md. App. 706 (considered appeal of probation modification)
- Brown v. State, 80 Md. App. 178 (polygraph condition lacking rational basis where purpose was to establish specific factual truth)
- Hudgins v. State, 292 Md. 342 (permitting general probation conditions with supervisory specificity)
- Watson v. State, 17 Md. App. 263 (probation conditions must be reasonable and definite)
- Minnesota v. Murphy, 465 U.S. 420 (Fifth Amendment in probation context; privilege must be asserted; penalty situation analysis)
- McKune v. Lile, 536 U.S. 24 (plurality and concurrence on voluntariness, penalties, and compelled self-incrimination in sex-offender treatment)
- United States v. Begay, 631 F.3d 1168 (polygraph testing can further supervision objectives)
- United States v. Zinn, 321 F.3d 1084 (Fifth Amendment challenge to polygraph as condition of supervised release premature)
- United States v. Lee, 315 F.3d 206 (polygraph can aid supervision and honesty)
- United States v. Knights, 534 U.S. 112 (probationers have diminished liberty; courts may impose reasonable conditions)