State v. Hallihan

SALMON, J. Appellee, Ryan Christopher Hallihan (“Hallihan”) was charged, in a criminal information filed in Worcester County, with nine crimes. The four that are here of interest are: First Degree Burglary (Count I); First Degree Assault ⁵⁹³ against Dennis Joseph Smith (Count IV); First Degree Assault against Stacy Marie Smith (Count V); and Reckless Endangerment (Count VIII). Hallihan, by counsel, filed a motion to dismiss the aforementioned four counts. A hearing to consider the motion was held in the Circuit Court for Worcester County, Maryland.

The matter was taken under advisement and, on May 28, 2014, the court dismissed Counts I, IV, V, and VIII. Appellant, the State of Maryland, entered the remaining five Counts nolle prosequi. The State then filed this appeal in which three major questions are presented, viz.: (1) Is Appellee correct when he argues that the State has no right to file an appeal from the dismissal of certain counts of a criminal information under the circumstances of this case? (2) Did the circuit court err in granting the motion to dismiss filed by Hallihan?

(3) Did the State preserve for review its objection to the dismissal of Count VIII? We shall answer the first question in the negative and the second and third questions in the affirmative. The judgment entered in favor of Hallihan as to Counts I, TV, V and VIII shall be reversed and the case remanded to the Circuit Court for Worcester County for trial as to those counts. I. The criminal information filed against Hallihan in this case reads, in material part, as follows: COUNT I The aforesaid, the State’s Attorney for Worcester County, charges and alleges that the said RYAN CHRISTOPHER HALLIHAN, late of said County, on or about September 29, 2013, in Worcester County, Maryland, did break and enter the dwelling house of Dennis Joseph Smith, located at 5901 Atlantic Avenue, Unit 211, Ocean City, Maryland, with ⁵⁹⁴ the intent to commit a crime of violence, in violation of CR 6-202 of the Annotated Code of Maryland; contrary to the form of the Act of Assembly in such case made and provided, and against the peace, government and dignity of the State.

CR 6-202 FELONY: 20 YEARS CJIS Code: 2 3000 BURGLARY—FIRST DEGREE COUNT IV The aforesaid, the State’s Attorney of Worcester County, charges and alleges that the said RYAN CHRISTOPHER HALLIHAN, late of said County, on or about September 29, 2013, in Worcester County, Maryland, did attempt to assault Dennis Joseph Smith in the first degree in violation of CR 3-202; contrary to the form of the Act of Assembly in such case made and provided, and against the peace, government and dignity of the State. CR 3-202 FELONY: 25 YEARS (CRIME OF VIOLENCE) 1 CJIS Code: 1 1420 ASSAULT—FIRST DEGREE COUNT V The aforesaid, the State’s Attorney of Worcester County, charges and alleges that the said RYAN CHRISTOPHER HALLIHAN, late of said County, on or about September 29, 2013, in Worcester County, Maryland, did attempt to assault Stacy Marie Smith in the first degree in violation of CR 3202; contrary to the form of the Act of Assembly in such case made and provided, and against the peace, government and dignity of the State. ⁵⁹⁵ CR 3-202 FELONY: 25 YEARS (CRIME OF VIOLENCE) CJIS Code: 1 1420 ASSAULT—FIRST DEGREE COUNT VIII The aforesaid, the State’s Attorney of Worcester County, charges and alleges that the said RYAN CHRISTOPHER HALLIHAN, late of said County, on or about September 29, 2013, in Worcester County, Maryland, did recklessly engage in conduct, to wit: wrestling, fighting, and attempting a choke-hold, that created a substantial risk of death or serious physical injury to Dennis Joseph Smith; contrary to the form of the Act of Assembly in such case made and provided, and against the peace, government and dignity of the State. CR 3-204(a)(l) MISDEMEANOR: 5 YEARS/$5,000.00 CJIS Code: 1 1425 RECKLESS ENDANGERMENT Hallihan’s counsel filed a demand for particulars, which the State answered on March 18, 2014. With respect to Count I, which charged first degree burglary, the State alleged that Hallihan broke into a condominium apartment where Dennis Joseph Smith and his wife, Stacy Smith, along with their seven-year-old child, resided.

According to the bill of particulars, while Hallihan was in the Smiths’ apartment, he “committed two first degree assaults and two second degree assaults” against the adult occupants of the apartment by “actually putting Dennis Smith in a sleeper hold and by threatening to do the same to Stacy Smith and subsequently reaching for and striking Stacy Smith’s forehead.” In regard to Count IV, which alleged first degree assault against Dennis Smith, the bill of particulars alleged that Hallihan intended to cause serious physical injury or death to Dennis Smith and that serious physical injury or death “can be caused by placing someone in a sleeper hold.” It was further alleged that Hallihan put his arms around the victim’s head “intending to get a lock around” Dennis Smith’s neck. ⁵⁹⁶ Moreover, according to the bill of particulars, Hallihan intended to cause serious physical injury or death to Dennis Smith by wrestling with him and causing injury to his ear. The bill of particulars, in regard to Count V, alleged that although Hallihan did not succeed in causing serious physical injury or death to Stacy Smith, he intended to do so as evidenced by the fact that he yelled at her and said that “he was going to put her in a sleeper hold.” Also, in the bill of particulars, it was alleged that the attempt to put Ms. Smith in a sleeper hold caused her to suffer “actual injury” to her forehead. Additionally, the State alleged that “[a] sleeper hold presents a substantial risk of serious physical injury or death by cutting off the flow of blood to the head and oxygen to the lungs, which in turn can incapacitate the victim.” Lastly, in regard to Count VIII, reckless endangerment, the following was alleged: A sleeper hold is an offensive or defensive movement often used by martial artists, law enforcement, military, and others to incapacitate or kill an opponent. Engaging in or attempting to place someone into a sleeper hold is an intentional act that by its very nature creates a substantial risk of serious physical injury or death because it cuts off the flow of blood to the head and flow of oxygen to the lungs.

Someone placed in a sleeper hold usually loses consciousness within a very short period and death can result if blood flow and oxygen fail to resume. The State, on March 19, 2014, named two expert witnesses whom it intended to call at trial. The experts’ names were Sgt. James A. Brady and Sgt.

Dennis Eade, both of the Ocean City Police Department. According to the notice, the witnesses were of the opinion that “the chokeholds and sleeper holds in particular, can cause serious physical injury or death.” It was further proffered that both witnesses were prepared to “describe various chokeholds, including the sleeper hold, and explain the application of such a hold and the hazards associated "with performing such a hold on someone.” ⁵⁹⁷ On March 24, 2014, Hallihan filed a motion to dismiss Counts I, IV, V, and VUI because those counts, purportedly, failed “to state an offense.” Movant pointed out, preliminarily, that in Count I (First Degree Burglary) the State did not allege that Hallihan broke into the Smiths’ apartment with the intent to steal anything. Instead, it was alleged that Hallihan broke into the apartment with the intent to commit a crime of violence. According to Hallihan’s motion, even if the facts set forth in the criminal information in regard to Count I were true, no crime was alleged because the facts set forth were insufficient to allege that Hallihan intended to commit a crime of violence as defined in Md.Code (2012 RepLVol.), Criminal Law Article (“Crim.

Law”) section 14-101. In regard to Counts IV and V of the criminal information, Hallihan asserted that those counts failed to allege facts, sufficient to support a finding that he [Hallihan] intentionally caused or attempted to cause serious bodily harm to either Mr. or Mrs. Smith. As to Count VIII (Reckless Endangerment), appellant contended that the State had failed to set forth a “legally sufficient factual basis” for showing that the defendant’s conduct “created a substantial risk of serious bodily harm.” The State filed a timely opposition to Hallihan’s motion to dismiss and the matter was heard on May 6, 2014. At the hearing, no evidence was presented by either side.

Counsel simply argued. A significant part of the hearing was taken up by argument concerning the risk to safety to a person who is placed in a “sleeper hold.” Counsel for Hallihan said, in effect, that the sleeper hold did not subject the victim to the risk of death or serious bodily harm, even though the bill of particulars asserted otherwise. In this regard, counsel for Hallihan and the motions judge had the following colloquy: DEFENSE COUNSEL: If you’re going to prove that the Defendant attempted to cause serious bodily harm by way of the sleeper hold, you must show that the natural consequences of that sleeper hold are fatal. ⁵⁹⁸ THE COURT: So isn’t that an element of proof? DEFENSE COUNSEL: That would be an element of proof, Your Honor.

However, the sleeper holds, which are most commonly known in professional wrestling settings, UFC, martial arts and the police department—some police departments still employ it across the country—are done— are consistently used. In professional wrestling every day a sleep hold is used[ 2 ] If the State wants to show that Ryan attempted to create a substantial risk of death, they must at least show that he took a substantial risk, factually that he took a substantial risk, towards creating that risk of death. It is not a natural consequence of the sleeper hold, in and of itself. Otherwise, it wouldn’t be used every day.

The substantial step forward that they have to allege is that there was some sort of choking, gasping for air, something that would suggest he created a risk of death and took a substantial step towards it. There are no facts presented that there was any substantial step taken to create that risk. And according to the State’s version, every headlock on the boardwalk would become an attempted first degree assault with—if they could bring in— THE COURT: Well, I think—I think that’s—could be the State’s position, but we, again,'get back to the statement I made before, that’s—they have a steep climb to generate proof to this extent, but, again, it’s an element of proof. DEFENSE COUNSEL: Your Honor, I would suggest that the legal sufficiency of the evidence, that they had to provide facts that show that there was a substantial step towards it, and that by him wrapping his arms around the head of the victim, there is no substantial step towards an attempt to create a—a risk of death. ⁵⁹⁹ As mentioned, the motions judge took the matter under advisement.

By an order dated May 28, 2014, the motions judge dismissed Counts I, IV, V, and VIII of the criminal information. The order indicated that the motion was granted based on Hallihan’s written motion to dismiss, the State’s reply to that motion and the argument of counsel at the hearing. There was no other explanation for the court’s ruling.

II

DID THE STATE HAVE THE RIGHT TO APPEAL THE DISMISSAL ORDER? Hallihan argues: The pretrial dismissal of Counts One, Four, Five and Eight was substantively a ruling on the sufficiency of the evidence, and whether that ruling was error or not, Maryland common law double jeopardy law bars the State’s appeal. To begin, we disagree with Hallihan’s assertion that the trial court substantively ruled on the sufficiency of the evidence. There simply was no evidence to evaluate.

We also disagree with Hallihan’s implied assertion that he was, at any time, “in jeopardy” for double jeopardy purposes. In support of his argument, that the State has no right to appeal because any re-trial would violate his right not to be tried for a crime of which he had been acquitted, Hallihan relies, almost entirely, on State v. Taylor, 371 Md. 617 , 810 A.2d 964 (2002). Because of that reliance, it is useful to set forth in detail the facts evaluated and considered in Taylor . Taylor was a consolidated appeal involving the dismissal of two separate charging documents.

The first case involved Donald Taylor, Jr. and the second involved a charge of conspiracy lodged against Larry Bledsoe, George Kopp, and Joseph Johnson. Id. at 621, 624 , 810 A.2d 964 . ⁶⁰⁰ A. Taylor v. State Donald Taylor was charged in a criminal information with three counts of violating the Maryland child pornography statute, one count of attempted third degree sex offense, and one count of attempted second degree assault. Id. at 624-25 , 810 A.2d 964 . Taylor filed a motion to dismiss the charges.

Id. at 626 , 810 A.2d 964 . For purposes of the motions hearing, Taylor entered into evidence, without objection, as Defendant’s Exhibit 1, a photocopy of a “confidential” memorandum prepared by a Maryland State Trooper. Id. That memorandum was relied on by the State to prepare the criminal information filed against Taylor.

Taylor and the State proceeded at the motions hearing based on an agreement that State’s Exhibit 1 “was an accurate and complete summary of the facts underlying the charges in the information.” Id. The memorandum said that appellant was a 43-year-old male living in New Jersey who was using the internet to solicit children to have sex with him. Id. A female State Trooper, identifying herself as “Stephanie,” commenced an e-mail exchange with Taylor.

During the exchange, Stephanie pretended to be a 15-year-old girl. Id. According to the memorandum, Taylor and Stephanie arranged to meet in Frederick County, Maryland on October 29, 1999 so that they could go somewhere to have sex. Id. at 627 , 810 A.2d 964 .

When Taylor showed up at the pre-arranged spot, he was met by a female State Trooper who was dressed like a 15-year-old girl, with a ponytail, wearing baggy clothes, and carrying a backpack. Taylor was then arrested. Based on the facts contained in Exhibit 1, Taylor argued that venue was improper in Frederick County as to three child pornography charges because the alleged offenses, which were based on computer transmissions, did not occur in that county. 371 Md. at 627 , 810 A.2d 964 . He also contended that his actions, as alleged in the first three counts, did not constitute statutory offenses.

Id. In addition, Taylor maintained that the circuit court did not have subject matter jurisdiction because the undercover State Trooper was not “actually 15 years old[.]” Id. at 628 , 810 A.2d 964 . The motions judge granted ⁶⁰¹ Taylor’s motion to dismiss on the grounds that the “facts showed that the e-mail conversations did not violate the statute.” Id. The motions judge dismissed the attempt charges on two other grounds.

The first ground was that although it was charged that the victim of a crime involved a minor, the facts showed that an adult State Trooper was involved rather than a minor and therefore it was “legally impossible for [Taylor] to commit the offenses charged.” Id. Also, according to the motions judge, Taylor’s conduct “was mere preparation and did not constitute a substantial step towards the commission of the crime.” Id. The State noted a timely appeal to this Court, but the Court of Appeals granted certiorari on its own initiative to consider the issue of whether the circuit court erred in granting the motion to dismiss the criminal information. See State v. Taylor, 362 Md. 360 , 765 A.2d 142 (2001).

But, after oral argument, the Court of Appeals ordered the parties to supplement their briefs and argue the following additional questions: If, in purporting to rule favorably on a motion to dismiss, the court goes beyond the mere allegations contained in the charging document (or as supplemented by any bill of particulars) and considers evidence or facts not specified in the charging document: 1. (a) does the ruling become one on the evidence in the context of federal or state double jeopardy principles, and (b) did that occur in this case? 2. does the State have a right of appeal from that ruling in light of federal or state double jeopardy principles or Maryland Code (1974, 1998 Repl.Vol., 2001 Supp.), § 12-302(c)(1) of the Courts and Judicial Proceedings Article? 371 Md. at 629 , 810 A.2d 964 . B. Bledsoe v. State In the companion case considered by the Taylor Court, three petitioners were charged with conspiracy to violate a Prince George’s County ordinance making it illegal to appear fully nude in a public place. Id. at 621, 810 A.2d 964 .

The ⁶⁰² charges were set forth in a criminal information filed against the petitioners in the District Court of Maryland, sitting in Prince George’s County. The petitioners filed a pre-trial pleading entitled “Motion to Dismiss, or in the Alternative for Judgment of Acquittal.” Id. When that motion was argued, the petitioners and the State stipulated as follows: (a) at the time and place of the alleged criminal activity, nude dancing took place in an enclosed building located in an industrial park; (b) the Showcase [Theater] was a for-profit business that charged an admissions fee; (c) the Showcase did not admit anyone under the age of 18; and (d) the building had external doors and inside was a stage, lighting, music, and women initially clothed in costumes who eventually achieved a state of undress during their performances. Id. at 622 , 810 A.2d 964 (footnotes omitted).

After the hearing, the judge took the matter under advisement, but before the court could rule, the State submitted a memorandum in opposition to the motion with additional evidence attached. Id. at 622-23 , 810 A.2d 964 . The additional evidence was an advertisement flyer describing the performance at the Showcase Theater as “an adult entertainment theater,” offering “exotic ‘all nude’ female dancers.” Id. at 623 n. 4, 810 A.2d 964 . The District Court judge issued an oral ruling, accompanied by a written opinion, granting the petitioners’ motion and dismissing the criminal information.

Id. at 623 , 810 A.2d 964 . The judge concluded that, based on the totality “of the facts before him,” the Showcase Theater was not a “public place” under the applicable statute. Id. The judge also opined that “nude dancing is considered constitutionally protected expression pursuant to the first amendment of the United States Constitution and as applied to the States through the 14th Amendment.” Id.

The State noted an appeal to the Circuit Court for