Phillips v. State

Leahy, J. Bashunn Phillips (“Appellant”) is charged with the first-degree murder of Shar-Ron Mason and related crimes. Phillips filed a motion in limine to exclude certain cell phone evidence in the Circuit Court for Anne Arundel County, and, on February 12, 2016, the court granted Phillips’s motion. The State sought in banc review of the order granting Phillips’s motion in the circuit court pursuant to the Maryland Constitution, Article IV, section 22, and Maryland Rules 4-362 and 2-661. Phillips filed a motion to dismiss the State’s request for in banc review for lack of jurisdiction.

A three-judge panel sitting in banc denied the motion. In a written order and memorandum dated June 3, 2016, the panel found in favor of the State, thereby reversing the trial court’s ruling. Phillips filed a notice of appeal of the in banc decision and presents the following questions for our review: 1 ¹⁸⁷ 1. “Did the three-judge panel lack appellate jurisdiction to review [the trial court’s 2 ] ruling?” 2. “Did the three-judge panel fail to identify any legal error in [the trial court’s] ruling?” 3. “Did [the trial court] correctly conclude that the State’s use of a drive test for the forensic purpose of pinpointing the location of a cell phone during a crime was not generally accepted in the relevant scientific community, as required by the Frye-Reed test for admissibility of expert testimony?” 4. “Did [the trial court] properly exercise [its] discretion under Maryland Rule 5-702 in ruling that the State’s witnesses were not qualified to offer expert testimony about the use of drive tests for the forensic purpose of pinpointing the location of a cell phone during a crime?” The State has filed a motion to dismiss this appeal, arguing that this Court does not have appellate jurisdiction over the appeal filed by Phillips. We deny the State’s motion.

We hold that the in banc panel lacked jurisdiction to review the trial court’s grant of Phillip’s motion in limine because it was an unappealable interlocutory order. Accordingly, we do not reach Phillips’s remaining contentions. We vacate the panel’s order, and remand the case with directions to reinstate the trial court’s order and dismiss the appeal so that criminal proceedings may resume. BACKGROUND A. Indictment and Motion in Limine On July 18, 2014, a grand jury indicted Phillips for the December 10, 2013 murder of Shar-Ron Mason.

Phillips was charged with first-degree murder, second-degree murder, manslaughter, the use of a firearm in a felony, and the use of a firearm during a crime of violence. He was also charged with ¹⁸⁸ wearing, carrying, or transporting a handgun. Phillips was then arrested pursuant to a warrant. The State notified Phillips that it intended to offer at trial a radio frequency (“RF”) signal propagation map purporting to establish the approximate location of Phillips’s phone on the morning of December 10, 2013.

The propagation map represented data obtained through a drive test 3 conducted by Special Agent Richard Fennern, a member of the Federal Bureau of Investigation’s Cellular Analysis and Survey Team, on October 23, 2014. Phillips filed a motion in limine on August 7, 2015, seeking to exclude the RF signal propagation map and related testimony. Phillips argued that the method used to create the map was not generally accepted as reliable within the relevant scientific community under Maryland’s Frye-Reed test for admissibility of evidence based on novel scientific methodology. 4 Phillips acknowledged that cell phone tower “ping” evi ¹⁸⁹ dence is admissible, but drew a distinction between the method used to create the RF signal propagation map and the collection of historical cell phone “ping” evidence. 5 Phillips argued that a drive test—in this case conducted ten months after the murder of Shar-Ron Mason—“is merely a snapshot in time that cannot give any reliable prediction of where [radio frequency] signals were or where they were going over time.” “In order for the test to be reliable, conditions would have to be analogous to those that existed on [the date of the murder] such as but not limited to weather, time, volume of call traffic, and the state of the equipment in use by the cell phone company.” B. Frye-Reed Hearing and the Trial Court’s Opinion The trial court heard arguments on Phillip’s motion and conducted a Frye-Reed hearing over four days between September 24, 2015 and October 30, 2015. Phillips maintained that drive tests are routinely performed by cell phone companies to improve coverage and minimize “dropped calls,” but that they are not generally accepted in criminal investigations.

Testifying for the defense, William Folson, accepted as an expert witness “in the field of cellular technology and historical cell site analysis” explained that he “consider[s] [drive tests] a waste of time” because “[tjhey add no value to the historical analysis of a cell phone.” He further testified that the manner in which Special Agent Fennern had performed the drive test was not accepted as reliable in the relevant scientific community. Mr. Folson explained that the RF signal range in December 2013 when the murder occurred would be different than the range in October 2014 when the drive test was conducted because the strength of RF signals fluctuate. Because of this, according to Mr. Folson, a drive test is not representative of the strength of the RF signals on any other date. He also pointed out that drive tests were not peer reviewed, accepted by the scientific community, or used in criminal investigations. ¹⁹⁰ Providing a different opinion and testifying for the State, Special Agent Fennern was accepted as an “expert in the field of historical cell site analysis, cellular technology, and [ ] radio frequency drive testing for cell phone mapping.” Agent Fen-nern opined that factors such as weather only have a “minimal” impact on radio frequency strength.

He also testified that, relying on information provided by cell phone companies, the RF signal strength only varied by five or ten percent. The State also offered the testimony of T-Mobile employee Stephen Willingham, accepted as an expert in radio frequency engineering. He testified that cell phone companies use drive tests for “competitive analysis reasons.” He explained that when a customer complains about a missed call, a cell phone company will use a drive test to attempt to recreate that dropped call to identify a gap in service. Mr. Willingham testified that, over time, radio frequency “[fjootprints remain consistent as long as nothing major has changed[,]” referring to the physical layout of the cell site, such as antennas and equipment.

He stated that the maximum variation he had seen for a footprint was a quarter mile. In a written memorandum and order dated February 12, 2016, the trial court granted Phillips’s motion excluding the RF signal propagation maps and related expert testimony on drive tests. First, the trial court concluded that experts were required to testify on the drive test methodology. Next, the court concluded that law enforcement’s use of drive tests for forensic purposes was novel and, thus, subject to the Frye-Reed reliability and admissibility standards.

After determining that the digital forensic science field is the relevant scientific community, the court found that the State’s experts lacked familiarity with that field and were unable to produce studies or peer-reviewed articles in that field supporting the reliability or general acceptance of drive tests for forensic purposes. The court ultimately concluded that the State did not establish that drive tests as used by the FBI are generally accepted in the digital forensic science community. The court then mused that, even if the drive test were considered generally accepted and reliable, the State’s experts were not qualified to testify ¹⁹¹ because they were not members of the digital forensic science community and failed to satisfy the requirement of Maryland Rule 5-702. 6 C. In Banc Proceedings i. Article IV, § 22 and Maryland Rule 2-551 Displeased with the court’s interlocutory order granting Phillips’s motion in limine, on February 18, 2016, the State filed a request for in banc review of the trial court’s order pursuant to the Maryland Constitution, Article IV, section 22, and Maryland Rules 4-352 and 2-551.

To provide context for the parties’ ensuing filings and arguments, we interpose the relevant text authorizing in banc review in the circuit courts. Article IV, section 22, of the Maryland Constitution reads: Where any trial is conducted by less than three Circuit Judges, upon the decision or determination of any point, or question, by the Court, it shall be competent to the party, against whom the ruling or decision is made, upon motion, to have the point, or question reserved for the consideration of three Judges of the Circuit, who shall constitute a court in banc for such purpose; and the motion for such reservation shall be entered of record, during the sitting at which such decision may be made; and the procedure for appeals to the Circuit Court in banc shall be as provided by the Maryland Rules. The decision of the said Court in banc shall be the effective decision in the premises, and conclusive, as against the party at whose motion said points, or questions were reserved; but such decision in banc shall not preclude the right of Appeal by an adverse party who did not seek in ¹⁹² banc review, in those cases, civil or criminal, in which appeal to the Court of Special Appeals may be allowed by Law. The right of having questions reserved shall not, however, apply to trials of Appeals from judgments of the District Court, nor to criminal cases below the grade of felony, except when the punishment is confinement in the Penitentiary; and this Section shall be subject to such provisions as may hereafter be made by Law.

Maryland Rule 2-551 provides in pertinent part: 7 (a) Generally. When review by a court in banc is permitted by the Maryland Constitution, a party may have a judgment or determination of any point or question reviewed by a court in banc by filing a notice for in banc review. Issues are reserved for in banc review by making an objection in the manner set forth in Rules 2-517 and 2-520. Upon the filing of the notice, the Circuit Administrative Judge shall designate three judges of the circuit, other than the judge who tried the action, to sit in banc. ii.

Motion to Dismiss Phillips filed a motion to dismiss on February 24, 2016, arguing that the in banc panel was without jurisdiction to hear the appeal. Phillips reasoned that Maryland’s appellate courts have repeatedly recognized that Article IV, section 22, of the Maryland Constitution permits in banc review only when a direct appeal is allowed and the State had no statutory right to appeal the court’s order. Phillips relied on decisional law holding that the standard for appealability to an in banc panel ¹⁹³ is the same as that to the Court of Special Appeals, including Board of License Commissioners for Montgomery Cnty. v. Haberlin, 320 Md. 399 , 578 A.2d 215 (1990), abrogated on other grounds by Bienkowski v. Brooks, 386 Md. 516 , 873 A.2d 1122 (2005); Dean v. State, 302 Md. 493 , 489 A.2d 22 (1985), abrogated on other grounds by Bienkowski, supra, 386 Md. at 516 , 873 A.2d 1122 ; and Estep v. Estep, 285 Md. 416 , 404 A.2d 1040 (1979), abrogated on other grounds by Bienkowski, 386 Md. at 516 , 873 A.2d 1122 . In response, the State argued, inter alia, that in banc review of a trial court decision was not an “appeal,” but instead a “review,” and that the Maryland Constitution provided a right to an in banc determination in this context.

Specifically, the State argued that the plain, ordinary, and common meaning of the language of the Maryland Constitution expressly permits in banc review “upon the decision or determination of any point, or question, by the Court[.]” The State also maintained that Maryland Rule 2-551 is “straightforward” in that it provides that upon filing a notice for in banc review, the circuit administrative judge “shall designate three judges of the circuit court ... to sit in banc.” Therefore, the State argued, “the appointment of a panel is not discretionary, and is not dependent upon the movant first having to clear any sort of merits hearing.” The in banc panel denied Phillips’s motion to dismiss on March 24, 2016, stating that it would reconsider the motion after oral argument. iii. Further Proceedings and Final Order The State filed a “Memorandum in Support of its Request for In Banc Review of [the trial courtj’s February 12, 2016 Order Granting Defendant’s Motion to Exclude Tangible Evidence and Testimony Regarding Cell Phone Drive Tests” on March 17, 2016. On the jurisdictional question, the memorandum restated verbatim the arguments relied upon by the State in its response to the motion to dismiss. On the merits, the State argued that (1) the trial court incorrectly permitted ¹⁹⁴ a Frye-Reed hearing because this scientific technique is not new or novel; (2) the trial court had incorrectly applied Frye-Reed because drive tests have widespread acceptance in the relevant scientific field; (3) the trial court erred by incorrectly and narrowly defining the relevant scientific community; and (4) the trial court erred in allowing Mr. Folson to testify as an expert.

Phillips filed a “Defendant>-Appellee” brief in which he renewed his motion to dismiss, maintaining that: (1) appellate jurisdiction is defined by statute; (2) the right to an in banc appeal is coextensive with the right to appeal to a traditional Maryland appellate court; and, (3) the State had no statutory right to appeal the trial court’s evidentiary ruling to this Court or the Court of Appeals. Specifically, Phillips maintained that Maryland Code (1973, 2013 Repl. Vol., 2016 Supp.), Courts and Judicial Proceedings Article (“CJP”), §§ 12-301 and 12-302 did not allow the State to appeal in this circumstance. Otherwise, in defense of the trial court’s ruling, Phillips averred: (1) the trial court properly admitted Mr. Folson as an expert witness; (2) the trial court properly concluded that the drive test technique is not generally accepted under Frye-Reed; and (3) the trial court properly concluded that the State’s experts lacked a sufficient factual background under Maryland Rule 5-702(3) to testify.

At oral argument on May 17, 2016, the State persisted in its contention that the in banc panel had jurisdiction. The State asserted that the purpose of section 22 was to “allow quick informal reviews of ... errors by trial judges[,]” and that the history of the 1864 Constitutional Convention indicated that § 22 “was meant to extend to instances where an appeal ordinarily would not lie[.]” Phillips countered with the simple proposition that binding Court of Appeals precedent exists contrary to the State’s position on the very same point. Phillips pressed that jurisdiction is not something the in banc panel can create on its own and that it is established by the Constitution and statutory provisions, neither of which permit appeal of the trial court’s ¹⁹⁵ interlocutory order. Phillips also contended, on policy grounds, that recognizing in banc review of a grant of a motion in limine would open the floodgates to litigants requesting in banc review from all interlocutory orders.

On June 3, 2016, the in banc panel entered an order, concluding that it had jurisdiction to hear the State’s appeal and that the trial court abused its discretion in its evidentiary rulings. Addressing the threshold jurisdictional question, the panel acknowledged that the State would be precluded from appealing the interlocutory order to this Court, yet concluded that it had jurisdiction to consider the State’s appeal. The panel relied on Berg v. Berg, 228 Md.App. 266 , 137 A.3d 1036 (2016), in which we are purported to have “advocated for a broad interpretation of Art. IV, § 22, ultimately holding that a Petitioner could properly take an in banc appeal from a post-trial trial motion.” The panel explained: In the instant case, this Panel believes that the case at hand is an extraordinary instance in which the legislature failed to address the ability of the State to take an in banc [sic] from a[n] evidentiary determination amounting to both an abuse of discretion of the trial court and an error of law. As previously stated, the State cannot proceed to the Court of Special Appeals, nor can the State take the normal route of an in banc appeal as delineated in Haberlin , because the situation does not fall within the constraints of § 12-301 & 12-302.

In this case, however, the Panel concludes that the language of Art. IV, § 22 of the Maryland Constitution, when read in conjunction with Md. Rules 4-353 and 2-551 and in light of the dicta included within Berg, shows the intention of the legislature to provide an avenue of review for situations akin to the case at hand. As such, the Panel must look to the Maryland Constitution for guidance in the procedural manner in which this matter is to advance. (Emphasis added; italics in original). On the merits, the in banc panel concluded that the trial court abused its discretion by conducting a Frye-Reed hearing ¹⁹⁶ and excluding the drive test evidence.

The panel also concluded that the State’s witnesses, Special Agent Fennern and Mr. Willingham—as well as Phillips’s witness, Mr. Folson—were qualified to testify as experts. Phillips noted an appeal to this Court on June 13, 2016. DISCUSSION [[Image here]] The State’s Motion to Dismiss As previously mentioned, the State filed a motion to dismiss in this Court, arguing that Phillips lacks the statutory authority to appeal an evidentiary ruling before a trial has been conducted. The State contends that this appeal is an interlocutory appeal not subject to any delineated exception to the final judgment rule.

The State further maintains that an order of an in banc panel is only as final as the judgment that it reviews, and that, the proper avenue for Phillips to take is to appeal after the trial, if he is convicted, at which point he may present argument concerning any grievances he had with the in banc panel’s decision. 8 Phillips counters that the decision of an in banc panel is a final, appealable judgment. Phillips argues that a court in banc is one acting as an appellate tribunal and that the decisions of such an appellate tribunal are reviewable as final judgments. Two appellate decisions, Buck v. Folkers, 269 Md. 185 , 304 A.2d 826 (1973), and Estep, supra, are dispositive on the issue as to whether we have jurisdiction in the present case. In Buck , the Court of Appeals explained that “[t]he decision of the court en banc is conclusive, final, and non-appealable by the party who sought the en banc review (the moving party).” 269 Md. at 186 , 304 A.2d 826 (citations omitted).

In that case, ¹⁹⁷ Folkers filed a petition for declaratory relief against Buck in the circuit court. Id. at 187 , 304 A.2d 826 . On December 30, 1971, the circuit court entered an order in favor of Buck, at which point Folkers appealed to the court in banc. Id, On April 26, 1972, the in banc panel filed an opinion remanding the case for a new trial because of an error it perceived in the admission of evidence.

Id. A different circuit court judge then held a new trial on October 2,1972, which resulted in an entry of judgment in favor of Folkers on October 13, 1972. Id. Buck appealed, presenting questions relating only to alleged errors by the in banc panel.

Id. The Court of Appeals stated that, [wjhile Buck, as the adverse party, was entitled under Article IV, s 22 to appeal from the en banc determination, the order for such an appeal, to be timely, must have been filed within thirty days after April 26,1972. Since it was not, we cannot take cognizance of the questions presented. There being no other questions before us, we dismiss the appeal.

Id. at 187-88 , 304 A.2d 826 (internal citations omitted). Thus, the proper time to appeal a decision of an in banc panel is directly after the decision of the in banc panel. A party who waits to appeal until after remand and final judgment by the circuit court loses the ability to argue those points decided by the in banc panel. See id.

This is contrary to the State’s contention, just mentioned, that Phillips must wait until after a trial and verdict to offer any allegations of error concerning the in banc panel’s decision. 9 In fact, if Phillips were to follow the State’s advice and wait until a full trial, verdict, and appeal to this Court, he would be foreclosed from ¹⁹⁸ offering argument concerning the decision of the in banc panel, as per the stricture from Buck. See id. Estep, 285 Md. at 416 , 404 A.2d 1040 , is also instructive here. In that case, Ms. Estep filed a petition for modification of a governing custody order for her four children against her former husband, Mr. Estep, in the Circuit Court for Prince George’s County.

Id. at 418-19 , 404 A.2d 1040 . In response, Mr. Estep argued that, under the Uniform Child Custody Jurisdiction Act (“UCCJA”), the circuit court chancellor was without jurisdiction to grant Ms. Estep’s modification and, also, that Prince George’s County was an inconvenient forum to litigate the case. Id. at 419 , 404 A.2d 1040 . Mr. Estep also filed a cross-petition for modification of the governing custody order, seeking child support contributions from Ms. Estep.

Id. The chancellor dismissed Ms. Estep’s petition with regard to the three youngest children, 10 finding that the court was without UCCJA jurisdiction to hear the case and, further, that Prince George’s County was an inconvenient forum to hear the case. Id. On the same day, Ms. Estep sought in banc review of the chancellor’s order.

Id. The court in banc reversed the decision on April 26, 1978, even though Mr. Estep’s cross-petition for support and Ms. Estep’s motion for modification of custody regarding the eldest son remained pending in the circuit court. Id. Mr. Estep then appealed to this Court, which dismissed the case, stating that the appeal “was ‘not allowed by law[,]’ ” without providing further explanation for its reasoning, Id. at 420 and n.3, 404 A.2d 1040 .

After granting certiorari, the Court of Appeals reversed this Court and instructed: If, as petitioner has suggested, the Court of Special Appeals dismissed the appeal to it as interlocutory because the court in banc, after reversing the circuit court’s decision, remanded the case for further action on the respondent’s petition for modification, such a ruling by the Court of Special ¹⁹⁹ Appeals would be in error. In holding that a nonmoving party’s appeal from the decision of a court in banc to grant a new trial would be timely only if it were made immediately, rather than after the new trial was conducted, this Court in Buck v. Folkers, 269 Md. 185, 187-88 , 304 A.2d 826, 828 (1973), clearly indicated that the court in banc acts only as an appellate tribunal so that its decisions are not those of a reconsidering trial court but are reviewable as final appellate judgments. Thus, we find no grounds for the dismissal by the Court of Special Appeals of the petitioner’s appeal and will reverse that action. Id. at 420-21, 404 A.2d 1040 (emphasis added) (footnote omitted).

Nonetheless, the Court did not reach the substantive merits of the case. Id. at 421-22 , 404 A.2d 1040 . The Court concluded that the in banc panel below had no jurisdiction because the in banc panel was reviewing a decision that was not a final judgment. Id. at 421-23 , 404 A.2d 1040 .

The Court observed that several claims in the original circuit court action were unresolved, including Ms. Estep’s motion for modification of the custody order for the eldest son, and Mr. Estep’s cross-petition for child support, and concluded that the order appealed to the court in banc was not a final judgment and was, thus, appealed prematurely. Id. at 423 , 404 A.2d 1040 . The Court then remanded the case back to the original circuit court. Id. at 424 , 404 A.2d 1040 .

Estep, therefore, directs that: (1) a decision of an in banc panel is appealable to a higher Maryland appellate court, (2) only final judgments or otherwise appealable orders may be appealed to an in banc panel, and (3) the Court of Appeals or Court of Special Appeals should remand the case back to the circuit court if a non-appealable order is appealed from a circuit court to an in banc panel. 11 Id. at 420-24, 404 A.2d 1040 ; see also Dabrowski v. Dondalski, 320 Md. 392, 393-96 , 578 A.2d 211 (1990) (per ²⁰⁰ curiam) (explaining that an in banc panel’s order of a new trial and reversal of a circuit court’s decision constituted a final, appealable order), abrogated on other grounds by Bienkowski, supra, 386 Md. at 516 , 873 A.2d 1122 . The cases are clear. A court in banc acts as an appellate tribunal, and its decisions “are reviewable as final appellate judgments.” Estep, 285 Md. at 421 , 404 A.2d 1040 (footnote omitted) (citing Buck, 269 Md. at 187-88 , 304 A.2d 826 ). A party who did not seek in banc review may appeal the decision of the in banc panel because “such decision in banc shall not ²⁰¹ preclude the right of Appeal by an adverse party who did not seek in banc review, in those cases, civil or criminal, in which appeal to the Court of Special Appeals may be allowed by law.” Maryland Const, art.

IV, § 22. In the present case, Phillips timely appealed from the decision of an in banc panel of the circuit court exercising appellate review. Phillips did not seek in banc review; the State did. Therefore, this Court has jurisdiction over the in banc panel’s decision because it is a “final appellate judgment.” Estep, 285 Md. at 421 , 404 A.2d 1040 (footnote omitted); see also Buck, 269 Md. at 187-88 , 304 A.2d 826 .

We deny the State’s motion to dismiss. 12 [[Image here]] Appeal of a Motion in Limine Our denial of the State’s motion to dismiss does not, however, end our jurisdictional inquiry. We now consider whether the in banc panel had jurisdiction to hear the State’s appeal of the trial court’s evidentiary ruling in the first instance. 13 A. The Parties’ Contentions The parties largely repeat the arguments presented during the proceedings before the in banc panel. Phillips observes ²⁰² that appellate jurisdiction is defined by statute and maintains that the State would have no right to appeal under CJP § 12-301—which provides that a party may generally appeal only from a final judgment—because the trial court’s evidentiary ruling was not a final judgment. Phillips then asserts that the State had no right to appeal under CJP § 12-302—which gives the State the ability to take an interlocutory appeal when the State’s evidence is excluded due to violation of the United States Constitution or the Maryland Constitution or Declaration of Rights—because, in the present case, the evidence was excluded under Frye-Reed, and Maryland Rule 5-702.

Phillips claims the in banc panel “reached the merits of the appeal in order to justify reaching the merits” and that the panel incorrectly divined legislative intent and misinterpreted Maryland decisional law. The State recognizes that its argument is contrary to the holding in Estep. Nonetheless, the State maintains that the plain language of the constitutional provision, specifically, the phrase “upon the decision or determination of any point, or question,” provides it a right to a review from an in banc panel of the circuit court in precisely this circumstance. See Maryland Const., art.

IV, § 22 (emphasis added). The State further maintains that Article IV, section 22, gives the Court of Appeals the right to adopt rules governing the procedure for in banc appeal, but that neither courts nor the legislature can delimit the original right to appeal. The State claims that there is a distinction between a traditional appeal and in banc review and broadly argues that an in banc panel may review many points of law of a trial court, prior to a final judgment from the trial court. The State maintains that “the root of the misinterpretation” in the relevant Court of Appeals cases— including Estep and Dean, supra—“lies in the Court’s sometimes imprecise references to Buck[.]’’ Finally, the State concedes that it is unlikely that it would have the right to appeal the trial court’s evidentiary ruling to this Court under CJP § 12-302(c), but it states that it “is not ‘appealing’ the motion court’s ruling[.]” ²⁰³ In its reply brief, Phillips notes that the State conceded that it had no statutory right to appeal under CJP § 12-302 and, further, that a court cannot rule on the merits in order to determine it has the ability to rule on the merits, as the in banc panel did in the present case.

Phillips further observes that section 22 states that it is “ ‘subject to such provisions as may hereafter be made by law[,]’ ” which allows the legislature to circumscribe the right to appeal through such enactments as CJP § 12-301. (Quoting Maryland Const., art. IV, § 22). Phillips adds, in response to the State’s argument suggesting that the Court of Appeals incorrectly decided cases on this point, that we “[are] not at liberty to reinterpret § 22 in a manner inconsistent with the decisions of the higher court.” Finally, Phillips reasserts the policy argument that, if we were to allow this appeal to proceed, the “circuit courts would be inundated with requests for in banc reviews of virtually every type of interlocutory ruling!,]” contending that these “piecemeal appeals would clog up dockets, making it difficult for already-overburdened courts to guarantee speedy trials.” B. In Banc Review Judge J. Dudley Digges, writing for the Court of Appeals, offered the following commentary on section 22 and in banc review: Although the reason for section 22’s inclusion in the constitution is not altogether clear, it appears to have been, as its commonly recognized nickname of “the poor person’s appeal” suggests, a response to a fear of the framers of the Constitution of that year that the distance to Annapolis and the concomitant delay and expense incident to prosecuting an appeal in the Court of Appeals would discourage or preclude many litigants from seeking justice by means of appellate review. [14] ²⁰⁴ Washabaugh v. Washabaugh, 285 Md. 393, 396 , 404 A.2d 1027 (1979) (citation omitted).

Section 22 survives today in much the same form as