*1 applied special when it for tenant’s mind prior on the ap- mind when it Appeals’s Board of and on the exception pur- For Oil’s example, Shell special exception. proved by the exception was described pose seeking special existing as “to approval upgrade in its Appeals’s Board islands; ... installing pump filling station gasoline canopy; landscaping of a new addition construction ...; freestanding sign of a new front of the station installation of the station and ...; of the exterior service renovation enclosure; areas; instal- ... installation of a trash bay service site and improvements of new ...” and other lighting lation terms approval expressed The Board’s upgrades. existing of the “upgrade” a “modernization” permitting thing proposed by not one Shell Regretfully, station. filling According- Board came to fruition. approved by ever nonconforming that the use there is no affirmative evidence ly, best, inten- despite good At was abandoned terminated. nonconform- tions, ongoing status of the change quo no in law or fact for the use ever occurred. There is basis ing of Appeals contrarian result. The Board Majority opinion’s it got right. and the Circuit
I affirm would Circuit County. Montgomery RAKER authorized me state
Judges and GREENE in this dissent. they join expressed views
Court of 8, 2006.
Dec. *3 Burns, Jr., (Nancy E. Asst. Public Defender S. George Defender, brief), Baltimore, Forster, on for Petition- Public er/Cross-Respondent. (J, Curran, Jr., Atty. Joseph Asst. Kelly,
Edward J. Gen. brief), Baltimore, MD, Atty. Respondent/Cross- Gen. Petitioner. WILNER, BELL, C.J., RAKER, Before:
Argued GREENE, CATHELL, HARRELL, BATTAGLIA and JJ. GREENE, Judge. *4 2, 2004, trial in non-jury after a the Circuit Court
On June (“Petitioner”) Cottman, County, Nathaniel Jr. for Baltimore cocaine, conspiracy of distrib- was convicted distribution cocaine, as a and of cocaine. He was sentenced possession ute years prison, possibility offender to ten without the repeat remaining for of cocaine. The convic- parole, distribution filing After merged sentencing purposes. tions were appeal Special Appeals, notice of to the Court of both timely argument Petitioner and the State waived oral and submitted respective their cases on brief. 18, 2005, in August response
On to Petitioner’s request, trial, judge granted trial Petitioner a new thereby vacating underlying judgment of conviction and sentence. As we shall explain further this was not entitled to opinion, State file a notice of trial. appeal granting the order a new On 31, 2005, October not having by been informed counsel of that event, intervening Special Appeals the Court of filed its writ- opinion affirming ten the Circuit Court’s initial judgment sentence. On November to the prior mandate,1 issuance of Appeals’s the formal request- ed that opinion withdraw its and dismiss moot, light the Circuit Court’s decision to grant him a new trial prior filing to the of the of Special Appeals’s opinion. written On December the Court Special Appeals denied both of Petitioner’s requests. petition
Petitioner filed a for writ of certiorari2 in this Court and the State filed a cross-petition.3 granted peti- We both Throughout opinion, 1. we referenced the “unofficial mandate” "formal mandate” Appeals. By Court of unofficial mandate, we referring judgment are to the unofficial of the court as very opinion. indicated at the end of its Because this mandate is not Court, by certified the Clerk of the it constitutes the court's unofficial judgment. judgment formal mandate mirrors the court's unofficial separate but is a by document certified and filed See Clerk. Maryland Rule 8-606. 8-606, “Mandate,” Maryland Rule entitled states: (a) To Any disposition evidence order of the appeal, Court. of an dismissal, including voluntary by shall be evidenced the mandate of Court, which shall be certified the Clerk under the seal of the Court and shall constitute the of the Court. presented following 2. Petitioner petition issue in his for writ of certiorari: Special Appeals failing Did the Court of opinion err in to withdraw its dismissing and not after the Circuit Court had prior Petitioner a new trial opinion to the issuance of the of the Court Special Appeals? question presented 3. The cross-petition the State in its was as follows: *5 (2006). 894 A.2d
tions. Cottman the of is whether this Court issue now before The main the appeal to dismiss when it failed erred Appeals Special the informed that being after reported opinion, the withdraw trial. The Circuit a new Petitioner had Circuit Court trial while a new granting its order issued pending was and sentence appeal a of new granting The effect court. appellate the intermediate in the and conviction original judgment to vacate the trial was Any issue appeal. the basis that constituted trial court a new grant or effect of the propriety regard with not have been could appeal, matter on trial, subject as to the (1) was noted appeal for two reasons: decided trial; practical as a of a new grant long before granting propriety to the matter, regard with the issue notice prior raised not have been trial could context, of a new grant the trial court’s Thus, in this appeal. court should that the an event trial constituted mandate. The trial issuing consideration taken into and, under trial a new jurisdiction had fundamental trial rendered circumstances, of a new granting Al- moot. the Court appeal pending its to allow had discretion Special Appeals though the Court stand, it had no choice issues to on the moot opinion reported dismissed. that the was in its mandate to reflect but FACTUAL BACKGROUND a.m., 5:45 undercover approximately August On lot of the Moore, parking into the Detective, drove Earnest A County. in Baltimore Complex Apartment Park Kingsley Benson, come yelled “hey, woman, as Ms. later identified man to Detective Moore’s here,” with a over and then walked Petition- the man as later identified Detective Moore vehicle. its Appeals, prior to issuance of the Court [W]hether to vacate its order [C]ircuit [C]ourt have directed the mandate should pending it interfered with the a new trial because granting Cottman appeal. Moore, According er. to Detective Ms. him Benson asked he a police whether officer. After Detective Moore stated *6 officer, that police he was not a Petitioner you asked “are sure you’re police”? not When Detective Moore answered negative, Petitioner walked two feet forward to the left fender road, up vehicle and looked and down the while Ms. stayed Benson next to Detective Moore. After some addition- discussion, al pulled Ms. Benson a small from bag cocaine tongue exchange underneath her for a marked twenty- transaction, dollar bill Detective Moore. After the De- tective provided Moore a surveillance team a description with subjects. of both The stopped surveillance team Petitioner later, and Ms. A Benson. short time Detective Moore re- turned to the area of previous sale and identified both Benson, Petitioner and Ms. who were then formally arrested. police The not any did find or drugs money on Petitioner’s person during the search to incident his arrest. 2, 2004,
On June the morning that Petitioner’s trial was to begin the Circuit Court for County, Baltimore Petitioner’s appeared counsel before the judge’s designee administrative request a continuance. Petitioner’s counsel argued that he just had located a critical witness for the defense and there- fore needed more time. The judge’s administrative designee motion, denied the noting that the trial had already been postponed four times. The case then proceeded to a trial on the merits.
Detective Moore testified at trial that Petitioner’s actions were consistent with those of a lookout in a typical drug deal Petitioner and Ms. Benson walked off together after Detective Moore away. noted, drove Detective Moore howev- er, that he never saw Petitioner and exchange Ms. Benson or drugs money with each other.
The trial judge determined that Detective Moore’s testimo- ny “very credible,” and that Petitioner had aided and abetted the drugs. distribution of He therefore found Peti- guilty cocaine, tioner of distribution of conspiracy to distribute cocaine, possession of cocaine. Prior to sentencing, Peti- identity one of mistaken this incident was argued
tioner offered Petitioner judge he was innocent. and that examination, his own a polygraph to take opportunity the court would understanding with the expense, that he was if showed polygraph him a trial judge June this incident.4 On involved with distribution. prison for years to ten sentenced excerpt how the issues before transcript demonstrates following 4. The when occurred on June These discussions this Court arose. sentencing. upon trying agree a time for parties were therefore, today. go forward we can't THE COURT: So honor, may [Attorney if I on the Your Petitioner]: MR. GLASS 1 was told is this witness which advised me there [Petitioner] record. get get postponement to him here today able to but I was not about phone time. That he number at the have his address nor did I case, testify basically prove his basically that witness to wants *7 point, evidence has At this him that he cannot. and I advised quite person was unaware don’t think he completed and I been —the when the got a chance to let him know date so I never of the court was ... court date minute, Sir, Mr. Cottman. I me. Wait a COURT: excuse THE it, you’re happy but I asked not with verdict is in and understand the testify your right or remain you any questions about you, do eye "Judge, So if said I do not.” me in the silent? You looked you point, should have asked it. you any question about it at that had listening to what speak. I was He told me not to MR. COTTMAN: my lawyer saying. was advice, know, you maybe gave you good but if he COURT: You THE it, question was then. to raise the question about the time had a Honor, person did do. The this crime I COTTMAN: Your MR. testify that he did actually willing to come in and did the crime is it. me, going to do this in Mr. Cottman. I was COURT: Excuse THE very, very heavy penalty, I would any anyway because this is case polygraph examina- you ask to have a possibility this have offered —to done, a new trial. a motion tion for file head, you you your have to listen to nod Wait a minute. Before polygraph polygraph ... if in fact the pay for the me. You have to you’re being they results and show that operator me the test shows this, going I'm not you say you weren't involved in then when honest say everyone that —I will say you guilty, and I want to hear are not bring judge jury and to either you’re to a new trial entitled before sir, you, say you testify. want to this to any But I witnesses want it, way you can beat you do there’s no fact did if in polygraph. MR. COTTMAN: I understand. added.) (Emphasis thereafter, Shortly Petitioner noted a timely appeal to the Special Court of Appeals.5 25, 2005, July
On
while
Petitioner’s
pending
was still
Special
the Court of
Appeals and before that court filed its
opinion,
he filed
the Circuit Court a request
appropriate
relief based on the results of the polygraph examination. The
Circuit Court
hearing
held a
request,
and on August
18, 2005, issued an order granting Petitioner a new trial.
Petitioner, however, did not notify promptly the intermediate
appellate court of this
31, 2005,
event. On October
more than
two months after the
Circuit Court
Petitioner a new
trial, the Court of Special Appeals filed its reported opinion,
Cottman v.
165 Md.App.
(2005),
The Court of Appeals directed the respond State to *8 to Petitioner’s 17, 2005, memorandum. On November the State did so and acknowledged that the Circuit Court retained jurisdiction to make post-judgment rulings Petitioner’s criminal case. argued, however, It the intermediate appellate court should vacate the order of the Circuit Court granting Petitioner’s new trial because the Circuit Court’s Pending appeal 5. the Special Appeals, in the Court of Petitioner subse- funds, quently acquired necessary the polygraph underwent a examina- tion, passed the examination. court. De- appellate the of the On frustrated actions
order Petition- 15, 2005, of denied Special Appeals the Court cember The intermedi- issued its formal mandate. requests er’s to the its mandate affirm purported appellate ate 3, 2004, which had subse- of June Circuit Court’s of a trial. The Court grant the new quently been set aside to vacate did not direct the Circuit Court of Special a new trial. its Petitioner granting order
DISCUSSION A. Granting The Circuit Court’s Order Petitioner a New Trial First, not this to the issues that are before point we not before the Court of properly Court and were appellate nor the intermediate Neither Court Appeals. the propriety to rule on the of jurisdiction court obtained trial, a granting Petitioner post-trial Circuit Court’s order initial subject not the matter the because that order was addition, trial grant In of the new whether appeal. subject matter on is not an issue appeal with the interfered issue, likewise, courts appellate before the because initial subject matter of the Because these appeal. not the appeal, neither two matters are issues vacate, jurisdiction nor this has Special Appeals reverse, order a new trial.6 granting or affirm the (2002 Vol.) 12-302(c) Repl. § the Courts and Judicial 6. Md. Code Proceedings provides right the State limited Article said, may presented have issue "[u]nless criminal cases. We statute, properly categorized be as one of the actions enumerated in the Manck, power State v. State has no seek review.” (2005) (holding State did not Md. grant statutory right court’s trial to strike the State’s notice of intention to seek defendant's motion case, present penalty capital prosecution). In the death in a murder statute, right provided by right State had is not because 8-201, Court's of a new trial. Rule "Method appeal the Circuit (a), securing Special Appeals,” "By review —Court of section notice *9 facts, Notwithstanding these we will discuss the issues to address the contentions of parties help elucidate, both and to provide for, and background information the main issue before this Court: whether the Court of Appeals erred when it failed to dismiss the appeal and withdraw its reported opinion, after Petitioner notified the appellate intermediate court that he had been a new trial. contends the Circuit Court jurisd had motion,
iction7 to th6e new trial despite pending his appeal. that, He relies on the proposition as we first stated State, v. Pulley (1980), 287 Md. A.2d “a circuit court is not divested of fundamental jurisdiction8 to take post- judgment action in a merely case because an appeal is pending State, v. Jackson judgment.” 612, 620, 358 Md. (2000).
The State concedes that
the Circuit Court retained
jurisdiction to entertain post-trial matters
general
under the
rule in Pulley, even after an appeal is filed. The State also
Jackson, however,
that,
cites
convey
because of a limitation
appeal,” provides
8-204,
"[ejxcept
provided
only
in Rule
securing
by
method
review
the Court of
filing
of a
prescribed
notice of
within the time
Rule 8-
State,
e.g.,
160, 168,
202....”
Secretary
See Munson Co. v.
294 Md.
(1982)
448 A.2d
(stating
939-40
party
that "[a]
to a trial court
proceeding ...
is not entitled to
seek direct
review and
valid,
reversal of the trial court’s
unless
timely
he has filed a
appeal”).
F.,
order of
We contrast
Emileigh
the current case with In re
(1999),
355 Md.
“consistently taken view when act with to matters not may continue to reference trial *11 of, affecting, not the relating subject to the matter matters Peterson, 80, Md. 553 A.2d proceeding....” 315 at appellate trial the substantive issues of at 676. Had the court revisited case, matter whether subject appeal the or had the on been trial, trial should have Petitioner a new our the might answer be different. prior opinions
This
is consistent with
this
distinction
Appeals
where a circuit court’s
Special
the Court
appeal.
the
on
subject
actions did not interfere with
matter
See,
(holding
287
Furthermore,
if the
properly
issue were
before the
correct,
appellate courts and the State’s contention
our
were
observation in
if a
trial
Jackson dictates that
post-judgment
court’s decision affected
subject
matter of a pending
appeal,
“may
subject
it
be
to
it is not
appeal,
reversal
but
Jackson,
void ab
lack
jurisdiction
initio for
to enter it.”
atMd.
B. Special Appeals’s of Denial Request of Petitioner’s We must next examine properly the issue before us this case: whether the Court of Special Appeals should have decided on appeal the issues when the trial granted court a trial, new before the appellate intermediate court filed its opinion, and whether the intermediate court acted
743 its withdraw request it denied Petitioner’s when properly appeal. dismiss the and opinion him a granted that once the Circuit Court argues re- trial, any judgment no to be longer existed there judgment, the final eliminating contends that
viewed. He According to appeal moot. rendered the the Circuit Court of Petitioner, task charged are not with the because courts questions, or the Court deciding moot abstract opinion and its dismissed should have withdrawn Appeals appeal. Petitioner’s moot time that the was not at the
The State counters case reported opinion, filed its the Court existing controversy still an between because there remained insufficiency The State contends that Petitioner’s parties. the controversy claim still in when the of the evidence untena- making its Petitioner’s mootness claim opinion, filed disagree. ble. We view,
In the in Petitioner’s became moot our him new trial. that the Circuit Court We stant grant generally recognized effect said “[i]t as if a new trial is leave the cause the same condition ing Cearfoss, v. Snyder no trial had been held.” previous 607, (1946); Toney, A.2d see also Cook (holding that when the Md. judgment elimi granted, new trial was verdict were back in the same condition entirely put nated the ease was held). if ever a court a new no trial had been When orders trial, is to “the beneficial incidence of order procedural lost, parties, in law of the which was equality reestablish position litigants them restoring v. Balt. Transit beginning jury.” trial before a State (1939). Co., Because the 9 A.2d Md. judgment of a new trial eliminated Circuit Court’s conviction, remained for the longer there affirm, reverse, vacate, rendering thus Special Appeals moot. *13 744
It is
“[a]ppellate
well settled that
do not
courts
sit to
give opinions on
propositions
questions,
abstract
or moot
appeals which
for
present nothing else
decision are dismissed
Ficker,
500,
as a matter of
506-07,
course.” State v.
266 Md.
(1972) (citations
231,
omitted);
295 A.2d
235
See also In re
C.,
432,
(2006) (citations omitted).
906
Kaela
394 Md.
A.2d 915
a
moot
We consider
case
“when there is no longer any existing
controversy
parties
between the
at the time that the case is
court,
before the
when
longer
or
the court can no
fashion an
C.,
452,
In re
remedy.”
432,
effective
Kaela
394 Md.
906 A.2d
Karl,
915, 927;
402, 410,
898,
In re
394 Md.
906 A.2d
902
(2006);
341,
Seay,
365,
1049,
v.
GMC
879 A.2d
1063
(2005); See also Hammen v. Balt. County
Dep’t,
Police
373
440, 449,
1125, 1131 (2003);
Lee,
Md.
A.2d
818
v.
Robinson
317
(1989)
395,
(citations omitted).
Md.
564 A.2d
397
holdings
cases,
Consistent with the
of those
we conclude that
Circuit Court’s
a new trial eliminated the contro
versy
parties,
subject
between the
which was the
such
appeal,
that the mandate of the Court of Special Appeals,
law,
read,
as a matter of
should have
“appeal dismissed.”
Elections,
39,
v.
Lloyd
Supervisors
206
111
Md.
(1954)
(noting
“not sit
give
courts do
opinions
propositions
on abstract
or moot questions,
ap
which
peals
present
nothing else
decision are dismissed as
course”); Peterson,
matter
Md. at
The State policy benefit by report- served judicial ed point decisions. The State’s taken. well There *14 which is published opinions, is a benefit derived public to “willing decide appellate courts are sometimes the reason ... that are appears important ‘it there where questions moot of expression merit an of interest raised which public issues in the litigants courts guidance for of our views the ” In Robinson, (citing at 397 A.2d future.’ Md. 181, 190,473 No. Special Investigation re (1984)). Hammen, Md. at 818 A.2d at See also moot actions generally this Court dismisses (explaining that on the but that we retain the without a decision merits our on the merits of authority express views constitutional circumstances). have, on prior moot action While we some occasions, questions our the of moot discussed view on merits case at important such discussions were the issue when cases, pursuant appeals future we nonetheless dismissed those of mandate, represents judgment the mandate the to our the Court.11 should have dismissed the Special Appeals
The Court of
mandate,
it
disposition
and reflected that
its
once
granted
Circuit Court had
Petitioner a new
learned
the
Peterson,
we
example,
trial.12 For
certiorari
Special
misapplied
of
had
Appeals
decide whether the Court
4-346(c),
provides
which
that a revocation of
Maryland Rule
“
sentencing
be
probation hearing
judge,
‘shall
held before the
” Peterson,
76, 553 A.2d at
practicable.’
whenever
315 Md. at
Maryland
supra
providing
language
11. See
footnote
the
of
Rule 8-
states,
part,
the
the
which
mandate
“shall constitute
judgment of
Court.”
the
Appeals
yet
Special
its
12. We note that
the Court
had not
issued
requested
opinion
its
mandate when Petitioner
court vacate
8-606(a),
appeal. According
Maryland
dismiss
Rule
judgment
the clerk of the court
mandate
certified
constitutes
Special Appeals
enter
formal
the court.
The Court
did not
its
mandate,
however,
six
after
until December
more than
weeks
requested
opinion
Petitioner
that the court withdraw its
and dismiss the
Appeals
yet
appeal.
That
Court of
its
had
issued
requested
opinion,
when
that the court withdraw its
mandate
provides
support
for
further
our conclusion that
something
“appeal
should have read
like
pending.”
dismissed as
due to
of new trial
moot
while
674. Peterson
probation
violated his
and had a probation
revocation hearing
conducted
a judge who was not the
sentencing judge, despite
objections
of Peterson’s counsel.
The Court of Special Appeals held that the judge
presid-
who
ed over the violation
probation
hearing
4-
violated Rule
346(c) because he made no findings as to
practicality
having the sentencing judge preside over the proceedings.
petition
State filed a
certiorari,
writ of
which we
granted. Despite the
certiorari,
issuance of the writ of
anoth-
er probation
hearing
revocation
was held before another
however,
judge;
party objected.
neither
Upon our review of
case,
we determined that it was “clear that
present
*15
appellate proceedings ha[d] become moot”
par-
because both
agreed
ties
to appear before the non-sentencing judge. Peter-
son,
79-80,
question impression —whether to one of a CDS abetting possessory is sufficient convict that, of importance. offense—that Based the State maintains, Special Appeals required the Court of should not be Chertkov, appeal. to Peterson to dismiss the Similar and there is reason the Court of could issue opinion provide an to the issue guidance elucidate cases, impor- future if it decided that the issue before it was discuss, though tant to even the issues had become enough however, appellate opinion, moot. The intermediate court’s would, most, at the court would still constitute dicta because moot, by dismissing to the were the have reflect that issues See, in disposition e.g. that its mandate. appeal reflecting State, Lodowski v. 490 A.2d we in (asserting say posture what this may “[w]hile dicta, obiter be characterized as we feel an to urgency speak hope avoiding appeals the burden of further with discussed”). Therefore, to respect the issues though even court appellate apparently intermediate to let stand decided opinion, its would still published mandate reflect “appeal dismissed” because the issues before the had By become moot as to Cottman’s parity reasoning, case. mandate accompanied by also should have been a consis- end, tent editorial at its change opinion, where the appears unofficial it “mandate” because otherwise would be proper inconsistent with the formal mandate. argues
The State ample further Petitioner had Maryland under the appeal, time Rules dismiss but his essentially right waived his his appeal waiting dismiss for the Court of Special Appeals Maryland to file its opinion. Rule 8-601 states specifically appellant may dismiss “[a]n an without Court permission by filing notice of time any filing dismissal before the opinion Court.” to the According because the Circuit August 18, Petitioner a new trial on he had than more time to his enough dismiss before October 31, 2005, the date when the Court of Appeals filed its opinion. that, instead, The State contends ignored provided by Maryland the timeline Rules because he to obtain hoped a favorable result from the of Special Appeals, eliminating the need for a new trial. The State maintains that to order withdrawal the filed would opinion seeking reward Petitioner for to obtain simultaneously relief separate two courts.13 and, 13. importantly, promptly Petitioner could have more should have Special Appeals writing notified the Court of that his motion for new granted. comply trial had been Because Petitioner did not with Rule 8-601, the intermediate required court was not to withdraw Moreover, opinion. authority its this Court has no to order that the Special Appeals opinion. Court of withdraw its We reach conclu- *17 judgments because opinions. sion this Court reviews rather than with the State that Petitioner should have are in accord We Maryland in Rules and set forth the followed the timeline Rule appeal, (by accordance with 8-601 timely dismissed his the of the court before the dismissing permission without 2005). Had he its on October appellate opinion court filed latest, so, at the October dismissing appeal done his proceedings in of on November further instead unnecessary.14 the have Notwith- appellate courts would been case, cannot “waive” life into a moot because standing, party a may on something appellate that an court notice mootness is own, if raises the issue. Because the issues party its even no moot, appellate intermediate court could appeal on were the a affirming reversing judgment not have issued its mandate opinion. the that it filed that no existed at time its longer Special the of the case before the Court of posture Given expression that court choose to maintain the Appeals, could by leaving reported its on the novel issue raised its legal views books”; however, authority opinion “on the it did judgment affirm or reverse the of the Circuit Court. prior
CONCLUSION jurisdiction to The Circuit Court retained its fundamental trial, though appeal Petitioner a new even the Appeals. the that the pending We hold erred, law, denying Court of as matter request to after he had been Petitioner’s dismiss trial, granted a new as the new trial rendered moot the challenge judgment appel- to the of the trial court before the Although court. the Circuit Court late trial, ability Special Appeals the Court retained case; however, an on the express opinion novel issue of the intermediate court could not provide remedy longer existing an effective there was an ability gives 14. We the Petitioner note Rule 8-601 dismiss permission any point without the before the prevent opinion requesting does not the Petitioner from is filed. It mootness, appeal, grounds after the court dismiss its opinion is filed. *18 750 parties Therefore, between the at that time.
controversy i.e., mandate, judgment, court’s its should reflected the moot status of case and directed that the appeal be dismissed. THE
JUDGMENT OF COURT OF SPECIAL APPEALS VACATED; REMANDED CASE TO THAT COURT WITH DIRECTIONS TO THE APPEAL THE DISMISS ON OF GROUNDS MOOTNESS. BALTIMORE COUNTY TO PAY THE COSTS IN AND IN THE THIS COURT COURT OF SPECIAL APPEALS.
RAKER, J., specially opinion concurs and files an in which C.J., BELL, joins.
WILNER, J., in part concurs in part dissents and files BELL, C.J., an opinion in which joins part. Judge, BELL,
RAKER which concurring, C.J., joins: I join in the majority opinion and in the judgment. My opinion concurring Judge is directed at concurring Wilner’s that, opinion in which he states not an although issue for Court, review before test results polygraph per are se Conc, inadmissible, unreliable, no evidentiary and have value. 755-56, op. at 912 A.2d 635. Given the movement law country around state and both federal courts related to the admissibility polygraph test results since Inc., Pharmaceuticals, Daubert v. Merrell 579, Dow 509 U.S. 2786, 125 (1993), 113 S.Ct. L.Ed.2d 469 I think it a big mistake position to take on an any us, issue not properly before particularly one that has not been briefed nor argued. courts,
In the federal permit circuits do not evidence polygraph any results for purpose are now in minority. See, Cordoba, (9th e.g., 225, v. United States 104 F.3d 228 Cir.1997); Posado, (5th 428, United v. States 57 F.3d 434 Cir.1995); Piccinonna, 1529, v. United States 885 F.2d 1535- (11th Cir.1989); Johnson, 37 v. 918, United States 816 F.2d (3rd Cir.1987); 637, 923 v. United States 512 Mayes, F.2d (6th Cir.1975); n. 6 v. Infelice, 1358, United States 506 F.2d nom., v. United (7th Cir.1974), denied sub Garelli cert. (1975). L.Ed.2d 802 States, 95 S.Ct. 419 U.S. excluding poly rule per maintain a se most states Although Porter, 241 Conn. evidence, see, v. e.g., State graph (R.I.1996) Odell, 457, 459 (1997); 672 A.2d In re Gard, 191, 198 Ill.Dec. curiam); 158 Ill.2d People (per (1994); 1026, 1032 Perkins v. S.W.2d 632 N.E.2d 11-707 of Evidence Mexico Rule New (Tex.App.1995), 94-95 without generally admissible polygraph evidence makes restric parties significant and without prior stipulation *19 noted, Scheffer, in v. United States Supreme tion. The (1998), 413 1261, 140 L.Ed.2d S.Ct. 118 U.S. follows: is evidence polygraph no consensus that simply
“[T]here community remains day, To this the scientific reliable. tech- extremely reliability polygraph about the polarized Sanders, Saks, D. & Faigman, Kaye, D. M. J. niques. †, 14-2.0, § 14-7.0 § n. and Evidence Modern Scientific Imwinkelried, E. (1997); 1 P. & Scientific see also Giannelli 1993) (2d (hereinafter 8-2(C), pp. § 225-227 ed. Evidence Imwinkelried); on Strong, 1 J. McCormick & Giannelli (4th 1992) (hereinafter § ed. McCor- p. Evidence mick). tests polygraph Some studies concluded Abrams, See, e.g., accurate and S. overall are reliable. (1989) (reporting Handbook 190-191
Complete Polygraph involving laboratory studies accuracy overall rate ‘in to be question technique’ polygraph common ‘control poly- have found that range percent’). of 87 Others accurate- significantly less graph tests assess truthfulness rate of suggest accuracy studies ly scientific field —that is ‘little better question polygraph ‘control technique’ coin,’ is, of a obtained the toss than could be Lykken, The Scientific Status percent. Iacono & See Against Techniques: on The Case Polygraph Research Evidence, Tests, supra, in 1 Modern Scientific Polygraph (hereinafter 14-5.3, Lykken).” § Iacono at & 309-10, 140 L.Ed.2d at 523 U.S. S.Ct. Scheffer, 413. in
My point
this
writing
concurring opinion is not that
reliable,
in
polygraph
they
tests are
fact
or that
should be
evidence,
admitted into
or be
for
admissible
other purposes
idea,
other than
I
adequate
at trial.
have no
without an
studies,
record and a
review the literature and
how I would
out
come
on the issue.
I
simply
poly-
believe
whether
graph techniques have made sufficient technological advances
State,
(1980),
v.
Kelley
since
288 Md.
A. I join in the and judgment agree entirely with the Court’s (1) holdings that the Circuit Court retained jurisdiction to trial, consider and Cottman’s motion for new notwith- (2) standing pendency of appeal, the the upon grant- the motion, ing of that of Special jurisdic- the Court lost Appeals tion appeal over the and had no choice but to dismiss it once informed that the new granted. disagree, trial had been I however, with the Court’s conclusion that it was not also incumbent appellate on the court to opinion. withdraw its It occasions, that, is true on rare an appellate may consider opine on an issue that is technically moot—where the (1) issue is an especially important one and likely the issue is to recur posture but because the is likely which it recur, will usually be moot the time it appellate reaches an reason, guidance is court, for other some criteria. none of those required. This case meets motion for new Cottman’s granted When the Circuit Court from which judgment trial, effectively it eradicated moot, just there not because The case was appeal was taken. Appeals could no effective relief that was mootness, but, is definition grant, which the traditional for the that, anything to be there ceased beyond because It as if was left. was judgment to review. No appellate court was noted or appeal trial had before new been opinion before the affirmatively dismissed had been in the addressed important There issue was filed. was non-appealable an likely equally to recur in opinion that was from the upon guidance none which context and had no necessary. opinion The Court’s simply article. It than law review precedential more value longer that no regarding the court’s view recited law, but, common to enhance the nothing existed. That does that, upon I rather, being hold detracts from it. would trial, obliged grant of the new the court was informed of the its opinion but withdraw only dismiss refusing to do so. well, it its discretion and that abused B. of the granting
I also to comment on separately write jurisdiction I that the trial court had do agree trial. the correctness of its did, and, although it I realize that what review, inappropri- and therefore is action is not before us resolving appeal, ate for the Court consideration of note that are points worthy I think there are two subject concurring opinion. of a first properly the the circum- apparent anomaly providing that relief under non-jury and rested stances of this case. The case was tried credibility entirely judge’s almost on the assessment Moore, only witness. Moore testified Detective the State’s *21 accomplice that, Cottman and a female August on testimony very precise, a His was bag sold him cocaine. Cottman, both later the scene when and he identified officers, Moore, uniformed by Cottman, summoned arrested Cottman, who, and in court. in an attempt unsuccessful trial, a postponement defense, obtain an claimed alibi did testify not offered evidence. In announcing his verdict guilty, judge stated that he found Detective Moore’s testimony to “very be credible.” the judge credible,
Had not found Moore’s testimony be Cottman, for, he could not lawfully convicted although drugs purchased by placed evidence, Moore were into there was no corroborating Yet, evidence of agency. criminal court, having credibility made that determination and having sentenced Cottman to ten years prison, offered to consider him a granting passed new trial if he a polygraph examination by administered by someone trained either the Army FBI or the Security a Agency. passed poly- Cottman graph examination by administered not someone trained the FBI or the Army Security Agency, but the judge, based on parte an ex assurance from one of his colleagues that the agent was qualified, a granted Cottman new trial nonetheless. that,
What me strikes anomalous about this is if the function polygraph examination way was in some to diminish Detective Moore’s credibility showing Cottman person ie., who sold him the to support the cocaine — alibi defense for he which offered no evidence at trial —and the judge accepted the result for that purpose, which would be its relevance, only remedy trial, should not have been then, but an acquittal, there would necessarily, be a reasonable doubt as doubt, to Cottman’s guilt. very uncertainty, impelled the judge new trial Constitutionally required that acquitted. Cottman be What would left to retry? be is just
This one why illustration of trial ought courts not be granting motions for making pivotal new trial or judicial other decisions on based the results of a polygraph examination. clear, This occasions, Court has made numerous polygraph inadmissible, test are results not because of some evidence, technical rule of they but because are unreliable.
755
217,
(1980);
298, 302,
219
State,
418
v.
288 Md.
Kelley
See
(1985),
487, 513,
1, 14
cert.
State,
495 A.2d
Md.
303
Johnson v.
(1986);
868,
L.Ed.2d 907
denied,
88
106 S.Ct.
474 U.S.
(1988);
266, 278,
663
State,
539 A.2d
312 Md.
Bohnert v.
(1992);
Hawkins,
604 A.2d
326 Md.
State v.
(1992).
In
617 A.2d
Patrick v.
has
reliability of such tests
Hawkins,
“[t]he
we iterated that
satisfaction,”
our
that “[i]n
and
to our
not been established
detector,
the lie
trier of fact is
justice, the
system of criminal
function to be
disallowing
in
that
we have been steadfast
and
trustworthy.”
to be
a
we have not found
by
usurped
process
may be
Whatever their use
275,
polygraph but more so is what occurred following the remand. two-day After a hearing, the District found that the evidence was inadmissible under Daubert —that (1) although capable of testing subject review, and peer reliable error rate conclusions were available for real-life (2) polygraph testing, there no general acceptance of it in the scientific community courtroom pur- fact-determinative (3) poses, there were no standards, reliable and accepted standards, without such there was no toway ensure proper protocols to reliability. measure The Ninth Circuit Court affirmed that Cordoba, decision. United States v. 194 F.3d (9th Cir.1999). so, In doing it major commented that “[a] why reason scientific debate over polygraph validity yields conflicting conclusions is that the validity of such a complex procedure is difficult to assess may vary widely from one application to another.” Id. at 1059. It expressly also con- that “the relevant scien- District conclusion firmed the Court’s exams as accept polygraph community generally did tific used as evidence a trial.” rehable be being sufficiently Id. 1061. Raker antedated by Judge other cases cited Federal approach now follow the those courts
Daubert. Whether subject evidence polygraph the Fifth and Ninth Circuits and least, pre- At the very to Daubert is unclear. analysis cases, suspect. are inquiry, some further Daubert absent is determination Feder response any second My may al be admissible under polygraph courts evidence analysis ago, seven months quite Only Daubert irrelevant. State, (2006), 392 Md. A.2d Clemons test, allegiance to the unanimously Frye maintained its done earlier in Wilson v. years it had four (2002). Court, day day even if one either Finally, —some —this our approach by reversing earlier adopting Daubert Frye holding polygraph cases and evidence satisfies the *24 admissible, test, day that such is that should conclude evidence now, any is us yet upon us. Were the issue before absent in the six community dramatic shift within the scientific last in years, presumably applying we would be influenced Supreme Frye test the statement of United Scheffer, States v. 523 U.S. S.Ct. (1998), “there is simply
L.Ed.2d consensus is To polygraph day, evidence reliable. scientific reliability community extremely polarized remains about statement, by That polygraph techniques.” way, support of a Rule Evidence holding Military made inadmissible, polygraph which made evidence se per legitimate justice process served interests in the criminal unconstitutionally preclude did not the defendant offer- ing evidence his defense. that, I adhere to the view until such time this Court
So polygraph to reverse itself and hold that evidence chooses admissible, should, judges Judge trial Raker’s reliable words, “never, never, never polygraph consider tests in exer- cising their discretion as to whether to grant a new trial.” They judicial should no more base decisions on polygraph results than reading on a of the runes or astrological charts. here, Given what occurred with great respect for Judge Rak- view, I er’s think this is precisely the case make that point, at least in a concurring opinion. Judge joins
Chief BELL in Part onlyA of this opinion.
912A.2d 637 Grogrieo Saturio FIELDS Maryland. STATE 34, Sept. Term, No. 2006. Maryland. Dec. 2006.