-
2-1
CLASS #2 FOR CRIMINAL LAW
PERSONAL JURISDICTION, SUBJECT MATTER JURISDICTION (CRIMINAL COURTS
& JUVENILE COURT) & VENUE Professor Byron L. Warnken -- University of Baltimore School of Law
Copyright 2011, 2006. All rights reserved.
CRIMINAL SUBJECT MATTER JURISDICTION (federal & state courts) VENUE (political
subdivision in
Maryland)
PERSONAL/ TERRITORIAL JURISDICTION
(Maryland)
JUVENILE SUBJECT MATTER JURISDICTION
United States Government Maryland Circuit Court
Maryland District Court
Federal power in state
owned & controlled territory
limited to express
constitutional powers & implied
constitutional powers, as
necessary & proper &
when federal law preempts
state law
Situs/locus of key element of affirmative act or continuous scheme or where omitted act
should have taken place
Not an element & rebuttably presumed until issue generated; if generated, venue is issue of fact w/
& burden of persuasion on State
Exclusive jurisdiction
Motor vehicle
laws
Misdemeanor w/ penalty less than 3
years or
$2,500
Almost all
felonies
Crimes arising from
same transaction as
crime in exclusive
Circuit Court
jurisdiction
Jury trials
Concurrent jurisdiction
Misdemeanors w/ penalty of at least 3 years or $2,500
Felony theft, bad check, credit
card, & forgery/uttering
Concurrent jurisdiction between federal & state governments: Federal Assimilative Crimes Act & state law in federal enclaves inside state; concurrent jurisdiction by agreement/statute, e.g.,
national forests.
Common law Maryland law
Under age 7: No criminal
capacity
Under age 14: No
criminal capacity for
rape & presumption
of no criminal
capacity for
other crimes
Age 14: Criminal
capacity
Step #1 Start as adult
At least age 18: All offenses are criminal
Age 16: Most felonies against persons (&
attempts), handguns, & vehicle/boat offenses are
criminal
Age 14: Death/life offenses (1
st degree murder, rape, &
sex offenses, plus their
inchoate crimes)
Step #1 State as juvenile
Under age 14: No criminal capacity
Ages 14 to 18: No
criminal capacity
(except for offenses
made adult at
age 16 or age 14)
Step #2 Stay as adult or
transfer (reverse waive) to juvenile
Step #2 Stay as juvenile
or waive to adult
Waive juvenile juris. & invoke criminal juris.
(burden on State by
preponderance of the evidence)
Transfer from crim. juris. to juv. juris. (reverse waiver)
(burden on defense by preponderance of
evidence)
Ages 15 through 17: All offenses
waiveable
Ages 14 through 17: All offenses
Under age 14: Death/life offenses
No transfer if prior transfer & adjudicated
delinquent; prior conviction, or 1
st
degree murder at age 16
Factors for waiver/transfer: Age, mental & physical condition, amenability to juvenile
treatment, nature of offense & participation, & public safety (assume delinquency allegations are correct for waiver of juvenile juris.; do not assume
charges are correct for transfer from criminal juris. to juvenile juris.)
By a preponderance of the evidence
Beyond a reasonable
doubt
Common carrier any county where carrier
travels
Homicide where death
blow inflicted
Chesapeake Bay where arrested
or first brought
Rape/sex offense where transportation
offered, solicited, begun,
continued, or ended
Broad federal power in federally owned &
controlled territory (D.C.,
U.S. territories,
internal waters not in
a state, & U.S. territorial
waters
Concurrent jurisdiction between U.S. & foreign governments on U.S. ships & aircraft on/over high seas & foreign ships on high-seas
(based on treaty or agreement)
PERSONAL/ TERRITORIAL JURISDICTION
(federal courts)
Territorial jurisdiction in
particular federal district
National/ citizenship
theory jurisdiction to
control conduct of
U.S. citizens for acts
against others outside federal
jurisdiction
Protective principle
jurisdiction to protect U.S. citizens from acts of others
outside federal jurisdiction
No federal power when
10th Amendment
reserves power
to the states
-
2-2
PERSONAL JURISDICTION, SUBJECT MATTER JURISDICTION
(CRIMINAL COURTS & JUVENILE COURT), & VENUE
I. Power of governments or sovereigns to create substantive criminal law
A. Limitations under substantive due process: The power of a government or
sovereign to create substantive criminal law is criminal jurisdiction in its broadest
sense. In Rice v. State, 311 Md. 116 (1987), the Court of Appeals held that, subject
to constitutional limitations, the legislature has broad power to define what acts shall
constitute criminal offenses. Accord Greenwald v. State, 221 Md. 235 (1959). The
issue is whether the United States Constitution, under its Fifth and Fourteenth
Amendment substantive due process analysis, precludes the government from
controlling certain conduct. Such substantive due process limitations typically
involve the right of privacy. In Lawrence v. Texas, 539 U.S. 558 (2003), the
Supreme Court held that the government or sovereign may not control sexual
conduct that is factually private, factually consensual, among adults, when non-
commercial, and when not involving incest. See, e.g., Roe v. Wade, 410 U.S. 113
(1973) (right to terminate a pregnancy, subject to certain limitations); Loving v.
Virginia, 388 U.S. 1 (1967) (right to marry); Skinner v. Oklahoma, 316 U.S. 535
(1942) (right to procreation); Prince v. Massachusetts, 321 U.S. 158 (1944) (limits on
religious freedom that interfere with the welfare of a child); Pierce v. Society of
Sisters, 268 U.S. 510 (1925) (right of parents to direct the education of their
children); Meyer v. Nebraska, 262 U.S. 390 (1923) (right to education and language);
Smith v. California, 361 U.S. 147 (1959) (right to freedom of expression in books).
B. Limitation under federalism: Under federalism, if the government can control
conduct, is that power to control conduct exclusively with the federal government,
exclusively with the state governments, or shared by the federal government and the
state government?
1. Federal government: Federal law is enacted by Congress.
a. Congressional power to enact laws that control conduct in
federally owned & controlled territory: The federal government
has broad police powers, under the Fifth Amendment Due Process
Clause, to enact laws that control conduct in federally owned and
controlled territory in the interest of the public health, safety, and
welfare.
(1) District of Columbia - U.S. Const. art. 1, 8, cl. 17
(2) United States territories, e.g., Puerto Rico (U.S. Const. art.
IV, 2, cl. 2)
(3) Federal enclaves within states, e.g., military installations,
federal buildings, national parks and forests
(a) Assimilative Crimes Act: The Assimilative Crimes
Act adopts, as federal law, the substantive criminal
law, of that state, to be applied in federal enclaves in
that state if there is no controlling federal law. 18
-
2-3
U.S.C. 13.
(b) Concurrent federal/state power to control conduct:
Congress may provide that state in which federal
enclave is located also has power to control conduct,
e.g., national forests.
(4) On water
(a) Internal United States waters not in any state:
This includes concurrent federal and state power to
control conduct, pursuant to federal statute, if the
conduct is committed on internal United States waters
not located in any state.
(b) United States territorial waters: This includes
exclusive United States power to control conduct,
pursuant to international laws and treaties with
foreign governments, if the conduct is committed on
waters up to 12 miles beyond the United States
border.
(c) United States ships & aircraft in or over
international waters (high seas) or in foreign
waters or ports: This includes concurrent power,
with foreign governments, to control conduct,
pursuant to treaties with foreign governments, on
United States ships and aircraft located in
international waters or in foreign territorial waters or
ports.
(d) Foreign ships in international waters (high seas):
This includes concurrent power, with foreign
governments, to control conduct, pursuant to treaties
with foreign governments, on foreign ships when
located in international waters.
b. Congressional power to enact laws that control conduct in state
owned & controlled territory: The federal government has limited
powers, pursuant to the United States Constitution, to enact laws that
control conduct in state owned and controlled territory.
(1) Express constitutional powers: U.S. Const. art. I, 8,
provides 17 expressly enumerated congressional powers to
control conduct in state owned and controlled territory.
(a) Counterfeiting: To provide for punishment of
counterfeiting United States securities and coins.
U.S. Const. art. I, 8, cl. 6.
(b) Crimes in international waters: To define and
punish piracies and felonies committed on high seas.
-
2-4
U.S. Const. art I., 8, cl. 10.
(2) Implied constitutional powers: These are laws that are
necessary and proper for carrying into execution the 17
expressly enumerated constitutional powers. U.S. Const. art.
I, 8, cl. 18. Most federal crimes in state owned and
controlled territory derive from the federal power under the
Commerce Clause. U.S. Const. art. I, 8, cl. 3.
(3) Pre-emption doctrine
(a) Federal pre-emption over state statutes: Under the
pre-emption doctrine, federal courts may interpret
congressional intent, in enacting federal legislation, as
indicating that Congress intended that the federal
government is the exclusive legislative body
governing particular conduct. U.S. Const. art. VI, cl.
2 (Supremacy Clause).
i. Pervasive legislation: Congress enacted
pervasive legislation in a given subject area.
Ward v. State, 280 Md. 485 (1976).
ii. Federal interests: The subject area is
dominated by federal interests.
iii. Federal enforcement: State legislation
would seriously hamper effective federal
enforcement.
(b) Federal pre-emption when there has been no
congressional legislation: The pre-emption doctrine
may be applied when Congress has not enacted
legislation in a given subject area, by balancing
federal and state interests. For example, there is state
legislation affects commerce, but the courts interpret
the subject area as requiring uniform national
treatment rather than a state-by-state approach.
c. International treaty: Under the Vienna Convention, diplomats, their
spouses, and their children benefit from sovereign immunity.
Sovereign immunity of the Defendant precludes a court in the United
States from obtaining jurisdiction over the Defendant. In Diallo v.
State, 413 Md. 678 (2010), the Court of Appeals held that the
Maryland court had jurisdiction over the Defendant because the
Defendant failed to prove that his father, who was serving in a
position equivalent to an Assistant Secretary General of the United
Nations, was in the country in his official capacity at the time of the
offense or the arrest.
2. State governments: State law is enacted by state legislatures. In Maryland,
that legislative body is the Maryland General Assembly.
-
2-5
a. Tenth Amendment state powers: Powers that are not delegated to
the federal government are reserved to states. U.S. Const. amend. X.
In Fry v. United States, 421 U.S. 542 (1975), the Supreme Court
stated that the Tenth Amendment expressly announces the
constitutional policy that Congress may not exercise power in a
fashion that impairs the States integrity or their ability to function
effectively in a federal system.
b. Fourteenth Amendment police powers: States have broad police
powers, under the Fourteenth Amendment Due Process Clause, to
enact laws that control conduct in that state in the interest of the
public health, safety, and welfare. In Camfield v. United States, 167
U.S. 518 (1897), the Supreme Court stated that police power is as
broad as necessary to safeguard the public interests. In State v. J.M.
Seney Co., 134 Md. 437 (1919), the Court of Appeals stated: An
essential element of the police power is the right of the Legislature to
classify the conditions to which the power is applicable. . . . Unless a
classification adopted by the Legislature in the application of police
power is plainly arbitrary and capricious, its judgment on the subject
should be respected and sustained.
3. Concurrent powers of multiple governments to control conduct
a. Concurrent power between federal government & foreign
governments
(1) United States ships & aircraft in or over international
waters (high seas) or in foreign waters or ports:
Congress and a foreign government may provide, pursuant to
a treaty, concurrent power to control conduct on United States
ships and aircraft when located in international waters or in
foreign territorial waters or ports.
(2) Foreign ships in international waters (high seas):
Congress and a foreign government may provide, pursuant to
a treaty, concurrent power to control conduct on foreign ships
located in international waters.
b. Concurrent power between federal government & state
governments
(1) In federal enclaves within states: Congress may provide
that, in federal enclaves, states also have power to control
conduct, e.g., national forests.
(2) In state owned & controlled territory: In state owned and
controlled territory, the federal government may have power
to control conduct, pursuant to express or implied
constitutional powers, and simultaneously states have power
to control conduct, under their broad police powers, e.g.,
robbery of federally insured bank located within state owned
-
2-6
and controlled territory.
c. Concurrent power between multiple state governments: Two
states may provide that both states have power to control particular
conduct, e.g., conduct committed on boundary waters if unlawful in
both states.
d. Concurrent power between state & local governments: Most state
criminal law is created at the state level. However, home rule
counties have power to create substantive criminal law. If they do,
there is the possibility of state pre-emption over local ordinances,
which is determined under the same analysis as federal pre-emption
over state statutes. Md. Ann. Code art. 1, 13.
4. Double jeopardy: The Double Jeopardy Clause of the Fifth Amendment,
made applicable to states through the Fourteenth Amendment Due Process
Clause, bars some multiple prosecutions. Benton v. Maryland, 395 U.S. 784
(1969).
a. No former jeopardy: The Double Jeopardy Clause is not violated if
two governments or sovereigns, with concurrent power to control
conduct, both prosecute the Defendant for the same conduct. The
Double Jeopardy Clause only protects against being twice placed in
jeopardy by the same sovereign. Bartkus v. Illinois, 359 U.S. 121
(1959) (federal court and state court are separate sovereigns); Heath
v. Alabama, 474 U.S. 82 (1985) (two states are separate sovereigns);
United States v. Wheeler, 435 U.S. 313 (1978) (federal court and
Native American tribunal court are separate sovereigns); Waller v.
Florida, 397 U.S. 387 (1970) (state court and municipal court are
same sovereign).
b. Collateral estoppel: The Double Jeopardy Clause may apply,
through the doctrine of collateral estoppel, if an ultimate fact
necessary for successful prosecution in the second jurisdiction has
been determined not to exist in the first jurisdiction. For example, the
Defendants presence as the criminal agent in the second jurisdiction
is negated by a not guilty verdict in the first jurisdiction when the
only defense offered consisted of an alibi witness. Ash v. Swenson,
397 U.S. 436 (1970).
II. Personal jurisdiction of a government or sovereign over the conduct & over the
Defendant: Assuming a government or sovereign has authority to control a particular
conduct, was there sufficient connection between that government or sovereign and the
Defendants conduct, such as to deem that government or sovereign to be the offended by the
Defendants conduct? Personal jurisdiction addresses the power of a government or
sovereign over that particular conduct and over the Defendant individually. Personal
jurisdiction is resolved under a territorial theory of jurisdiction, which is based on the situs or
locus of the offense.
A. Personal jurisdiction in state criminal cases
-
2-7
1. Territorial jurisdiction: Personal jurisdiction in state courts is determined
on a territorial theory of jurisdiction. Whether the situs or locus of the offense
occurred in that sovereign. State v. Butler, 353 Md. 67, 72-73 (1999). The
common law rule, adopted by Maryland, requires that essential, key, or
vital element take place in Maryland. West v. State, 369 Md. 150, 158-59
(2002). In Breeding v. State, 220 Md. 193 (1959), the Court of Appeals held
that Maryland cannot punish a Defendant for a crime committed in another
state.
2. Situs or locus of the offense
a. Affirmative act offense: The situs or locus of an affirmative act
offense is the place where the prohibited conduct took place.
McDonald v. State, 61 Md. App. 461 (1985).
b. Omission to act or failure to act offense: The situs or locus of an
omission to act offense is the place where the omission to act took
place, i.e., where required act should have been performed.
c. Continuous scheme: Personal jurisdiction for one offense that is
part of continuous scheme may provide jurisdiction for other offenses
committed as part of that scheme. For example, one continuous
kidnapping with multiple assaults committed during a kidnapping.
d. Required result offense: If the offense requires a specific result, the
situs or locus of the offense is where the result occurs. It may be
sufficient if result was intended to take place in a jurisdiction, even if
the Defendant did not enter that jurisdiction. In Khalifa v. State, 382
Md. 400 (2004), the Court of Appeals held that, when the Defendant
detained a child outside of Maryland, with the intended consequence
of depriving the custodial parent father, who was in Maryland,
Maryland had personal jurisdiction over the Defendant.
3. Essential elements of situs or locus for certain offenses
a. Bribery: In Grindstaff v. State, 57 Md. App. 412 (1984), the Court
of Special Appeals held that the situs or locus of bribery is where the
bribe is offered, where payment is made, and/or where the official
duties sought to be affected take place.
b. Conspiracy: In Grandison v. State, 305 Md. 685 (1986), the Court of
Appeals held that the situs or locus of conspiracy is where the illegal
agreement is made and/or where an overt act in furtherance of that
illegal agreement occurs, even if the jurisdiction does not require an
overt act as an element of conspiracy.
c. Forgery: In Medley v. Warden, 210 Md. 649 (1956), the Court of
Appeals held that the situs or locus of forgery is where the forged
instrument is made or altered and/or where the forged instrument is
uttered.
d. Larceny: In Worthington v. State, 58 Md. 403 (1882), the Court of
-
2-8
Appeals held that the situs or locus of larceny is where the taking
occurs. Under the continuing trespass theory, it is deemed to be a
new taking when the Defendant enters a new jurisdiction with the
fruits of an earlier larceny.
e. Murder or manslaughter: In Stout v. State, 76 Md. 317 (1892), the
Court of Appeals held that the situs or locus of murder or
manslaughter is where the death blow is inflicted and not where the
victim dies. For example, if the Defendant, while in State A, shoots
the victim in State B, and the victim flees to State C and dies, the
death blow was inflicted in State B.
f. Rape: In Jones v. State, 298 Md. 634 (1984), the Court of Appeals
held that the situs or locus of rape is where the rape occurs or where
the accompanying assault occurs.
4. Burdens
a. Burden of production: Territorial jurisdiction is not an element of
the offense and is rebuttably presumed to exist. If the Defendant
wishes to challenge the sovereigns power over him, by claiming that
the offense, if committed, occurred outside the boundaries of the
jurisdiction, the Defendant must satisfy the burden of production by
presenting evidence sufficient to generate a genuine dispute as to
whether the conduct occurred inside or outside the sovereign. In
Jones v. State, 172 Md. App. 444, cert. denied, 399 Md. 33 (2007),
the Court of Special Appeals held that the mere possibility that the
crime occurred outside Maryland was not evidence and the issue of
lack of territorial jurisdiction was not generated. In Butler, 353 Md.
67, the Court of Appeals held that when the body was found in a
vehicle in the District of Columbia, that generated an issue of
territorial jurisdiction, even though there was substantial evidence
that the murder occurred in Maryland. In West, 369 Md. 150, the
Court of Appeals held that there was uncontroverted evidence that the
victim was abducted in Maryland (no issue of lack of territorial
jurisdiction generated), and there was uncontroverted evidence that
the sex offense occurred in the District of Columbia (lack of
territorial jurisdiction generated and the issue was conclusively
resolved in favor of the Defendant). In Butler, 353 Md. 67, the Court
of Appeals held that the issue of territorial jurisdiction is not
generated by a bare allegation that the crime occurred outside
Maryland. Accord McDonald v. State, 61 Md. App. 461 (1985). In
Painter v. State, 157 Md. App. 1 (2004), the court of Appeals held
that the Defendant generated the issue of territorial jurisdiction, and
the trial court properly instructed the jury. In Jones, 172 Md. App.
444, the court of Special Appeals stated that the issue of territorial
jurisdiction may be generated by circumstantial evidence.
b. Burden of persuasion: Assuming that the Defendant generates an
-
2-9
issue of territorial jurisdiction, in almost all jurisdictions, including
Maryland, the State must persuade the finder of fact, beyond a
reasonable doubt, that there is territorial jurisdiction. Butler, 353 Md.
67. If the State fails to show territorial jurisdiction the state may not
prosecute. In Maryland, this rule is not because territorial jurisdiction
is an element of the offense, but because territorial jurisdiction is vital
to the ability to prosecute. Thus, once generated, territorial
jurisdiction is a question of fact for the trier of fact. Without
territorial jurisdiction, there is no power to find the Defendant guilty
or sentence the Defendant. Thus, the burden of persuasion for
territorial jurisdiction must be the same burden as the burden of
persuasion as imposed on the State to convict, i.e., beyond a
reasonable doubt.
B. Personal jurisdiction in federal criminal cases
1. Territorial jurisdiction: Personal jurisdiction in federal courts is almost
always determined on a territorial theory of jurisdiction. The situs or locus of
the offense must take place in the federal district that is prosecuting, e.g., the
District of Maryland, the Eastern District of Pennsylvania.
2. Alternative tests
a. Personal jurisdiction based on national or citizenship theory:
National or citizenship theory of personal jurisdiction is based on the
federal governments authority to control the conduct of United
States citizens abroad, including United States ships or aircraft on or
over the seas or in foreign waters or ports.
b. Personal jurisdiction based on protective principle: Protective
principle theory of personal jurisdiction is based on protecting United
States citizens against acts committed against them by aliens abroad.
III. Criminal subject matter jurisdiction: Assuming a particular state has been offended by
the Defendants conduct, there is issue of which court within that state has subject matter
jurisdiction to hear the case.
A. Adult criminal jurisdiction versus juvenile jurisdiction: Legislatures establishes
criminal courts and juvenile courts, with subject matter jurisdiction influenced by the
age of the Defendant and the offense(s) charged. Sometimes, the legislature provides
for subject matter jurisdiction only in criminal court or only in juvenile court.
Sometimes, the legislature permits the prosecution and/or the Defendant to influence
subject matter jurisdiction, with the judge making the ultimate jurisdictional
determination. McBurney v. State, 280 Md. 21 (1977).
B. Criminal court of general jurisdiction versus criminal court of limited
jurisdiction: Legislatures establish criminal courts of both general subject matter
jurisdiction and limited subject matter jurisdiction. Criminal courts of general
jurisdiction usually have subject matter jurisdiction for felonies and/or offenses with
higher sentences and/or jury trials. Criminal courts of limited jurisdiction usually
have subject matter jurisdiction for misdemeanors and/or offenses with lower
-
2-10
sentences and/or non-jury trials. Sometimes, the legislature permits the prosecution
to select which criminal court will have subject matter jurisdiction. Sometimes, the
legislature permits the Defendant to select which criminal court will have subject
matter jurisdiction. This usually occurs when the prosecution files criminal charges
in a non-jury criminal court, but the Defendant has a constitutional and/or statutory
right to a jury trial and elects a jury trial.
C. District Courts in Maryland: In Maryland, the District Court is a non-jury court of
limited jurisdiction. Md. Code Ann., Cts. & Jud. Proc. 1-601.
1. Structure: Maryland is divided into 12 judicial districts. Id. 1-602.
Maryland has 24 political subdivisions (23 counties and Baltimore City) and
24 District Courts, e.g., District Court of Maryland for Baltimore City,
District Court of Maryland for Baltimore County. Most counties have
multiple locations for the District Court, e.g., District Court of Maryland for
Baltimore County has three locations (Towson, Catonsville, and Essex).
2. Exclusive jurisdiction - Id. 4-301. In Smith v. State, 73 Md. App. 156
(1987), cert. denied, 311 Md. 719 (1988), the Court of Special Appeals held
that failure to comply with Md. Rule 4-301 does not divest the District Court
of jurisdiction.
a. Motor vehicle laws: The District Court has exclusive subject matter
jurisdiction over motor vehicle laws and the State Boat Act. Smith v.
State, 73 Md. App. 156 (1987).
b. Misdemeanors: The District Court has exclusive subject matter
jurisdiction over misdemeanors with a penalty less than three years or
$2,500.
3. Concurrent jurisdiction with Circuit Court - Md. Code Ann., Cts. & Jud.
Proc. 4-302.
a. Misdemeanors: The District Court has concurrent jurisdiction with
the Circuit Court for misdemeanors punishable by more than three
years incarceration or more than $2,500 fine.
b. Certain felonies: The District Court has concurrent jurisdiction with
the Circuit Court for felony theft, bad check, credit card, and forgery
and uttering.
D. Circuit Courts in Maryland: In Maryland, the Circuit Court is a court of general
jurisdiction, hearing cases either with a jury or without a jury. Id. 1-501.
1. Structure: Maryland is divided into eight judicial circuits. Id. 1-503.
Each of Marylands 24 political subdivisions has one Circuit Court, which is
located in the County Seat, e.g., Towson is the County Seat for Baltimore
County.
2. Exclusive jurisdiction - Id. 4-302
a. No District Court jurisdiction: The Circuit Court has exclusive
jurisdiction for offenses for which District Court lacks exclusive
-
2-11
jurisdiction and lacks concurrent jurisdiction, i.e., felonies, except
theft, bad check, credit card, and forgery and uttering.
b. Jury trials: The Circuit Court has exclusive jurisdiction when the
Defendant is entitled to, and exercises, a constitutional and/or
statutory right to a jury trial. State v. Garner, 90 Md. App. 392
(1992).
(1) Sixth Amendment: The Sixth Amendment, made applicable
to states through the Fourteenth Amendment Due Process
Clause, provides the right to a jury trial when the authorized
incarceration exceeds six months on any one count. For
common law offenses without a statutory penalty, use the
actual sentence imposed and executed. See Lewis v. United
States, 518 U.S. 322 (1996); Duncan v. Louisiana, 391 U.S.
145 (1968).
(2) Maryland
(a) Circuit Court: The Defendant is entitled to a jury
trial when there is potential incarceration, Md. Rule 4-
311, unless the Defendant makes a knowing and
intelligent waiver of the right to a jury trial on the
record in open court. Md. Rule 4-246.
(b) District Court: Because there are no jury trials in the
District Court, if the potential sentence exceeds 90
days on any count, the Defendant may demand a jury
trial, which, upon demand, immediately and
irrevocably divests the District Court of subject matter
jurisdiction and transfers subject matter jurisdiction to
the Circuit Court. Md. Code Ann., Cts. & Jud. Proc.
4-302.
c. Same transaction: The Circuit Court has exclusive jurisdiction for
offenses arising from same circumstances as another offense for
which the Circuit Court has exclusive jurisdiction. Thompson v.
State, 278 Md. 41 (1976); Harris v. State, 94 Md. App. 266 (1992).
E. Problem solving divisions of the Circuit Court: The Circuit Court has
fundamental jurisdiction to try persons charged with a felony, which is same as the
jurisdiction of the problem solving courts, such as the Baltimore City Adult Felony
Drug Court. Therefore, drug court, or any other problem solving court, has authority
to try, convict, and sentence a Defendant. Brown v. State, 409 Md. 1 (2009).
IV. Juvenile jurisdiction: Juvenile status is also referred to as infancy, immaturity, and lack of
criminal capacity. Cases of juveniles are not adjudicated in adult criminal court, but rather
are adjudicated in a juvenile court in the juvenile justice system.
A. Common law
1. Under age seven: A person under age seven lacked criminal capacity.
-
2-12
2. Under age 14
a. Rape: A person under age 14 lacked criminal capacity to commit
rape.
b. Other offenses: A person under age 14 was presumed to lack
criminal capacity, and the presumption was easier to rebut as the
individual approached age 14. Maryland and most other jurisdictions
have abrogated this common law principle. Md. Code Ann., Cts. &
Jud. Proc. 3-8A-05(d).
3. Age 14 or older: A person at least age 14 had adult criminal capacity.
B. Modern statutory approach
l. Juvenile justice systems: Juvenile justice systems make juveniles under a
certain age not subject to criminal jurisdiction, but rather subject to juvenile
jurisdiction for conduct that would be criminal if committed by an adult, but
which is considered only a delinquent act when committed by a juvenile.
a. Determining criminal court (adult) jurisdiction versus juvenile
court jurisdiction: Juvenile court jurisdiction balances the public
safety, the accountability to the victim, and rehabilitation. Md. Code
Ann., Cts. & Jud. Proc. 3-8A-02(a)(1). The issue is whether to treat
the individual as having adult criminal capacity or whether to place
the individual in the juvenile justice system.
b. Effect of juvenile court jurisdiction: The Defendants status and
record are deemed non-criminal, meaning that the act is deemed to be
a delinquent act rather than a criminal act. In re Davis, 17 Md. App.
98 (1973).
2. Maryland
a. Two-step process for determining jurisdiction: The jurisdictional
issue is the determination of whether jurisdiction is in the Circuit
Court, sitting as a juvenile court, or in the Circuit Court, sitting as
criminal court.
(1) Step one where jurisdiction starts: Step one does not
consider the facts of offense or the background of offender.
Step one determines which court juvenile or criminal
obtains jurisdiction, and it is resolved by examining three
documents.
(a) Jurisdictional statute
(b) Charging document: In In re Appeal No. 1258, 32
Md. App. 225 (1976), the Court of Special Appeals
held that, in a juvenile delinquency proceeding, the
delinquency petition is the charging document.
(c) Juveniles birth certificate
http://web2.westlaw.com/find/default.wl?serialnum=1973100223&tc=-1&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=0000537&tf=-1&findtype=Y&fn=_top&mt=55&vr=2.0&pbc=F439DCE9&ordoc=8115688http://web2.westlaw.com/find/default.wl?serialnum=1973100223&tc=-1&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=0000537&tf=-1&findtype=Y&fn=_top&mt=55&vr=2.0&pbc=F439DCE9&ordoc=8115688
-
2-13
(2) Step two where jurisdiction ends: Once it has been
determined, in step one, whether the criminal court or the
juvenile court has jurisdiction, step two determines whether
jurisdiction will remain with that court or will go to other
court. Step two examines the facts of the offense and the
background of the offender. In Crosby v. State, 71 Md. App.
56 (1987), the Court of Special Appeals held that, once
jurisdiction is transferred from juvenile court to circuit court
or from circuit court to juvenile court, the case may not be
transferred again.
b. Determining criminal court jurisdiction versus juvenile court
jurisdiction
(1) Specific age: The older the individual is, e.g., age 16, the
more likely it is that the individual will be subject to criminal
court jurisdiction. A persons at least 18 years old, at the time
of the conduct, is exclusively within the jurisdiction of
criminal court for all offenses. Md. Code Ann. Cts. & Jud.
Proc. 3-8A-05(a).
(2) Variable of age of juvenile & severity of offense charged:
More serious offenses will subject younger individuals to
criminal court jurisdiction. Id. 3-8A-03 & 3-8A-05.
(a) At least age 16 but less than age 18: A person at
least age 16, at the time of the conduct, is in criminal
court jurisdiction, subject to transfer or waiver of
jurisdiction, for certain actual or attempted offenses.
Id. 3-8A-03(d)(2)-(4).
i. Abduction & kidnapping
ii. Second degree murder
iii. Voluntary manslaughter
iv. Second degree rape
v. Second & third degree sexual offense
vi. Robbery with dangerous weapon
vii. Handgun offenses
viii. Carjacking
ix. First degree assault
x. Vehicle & boat offenses
(b) At least age 14 but less than age 18: A person at
least age 14, at the time of the conduct, is in criminal
court jurisdiction, subject to transfer or waiver of
jurisdiction, for offenses punishable by death or life,
-
2-14
plus other offenses arising from the same transaction.
This is limited to first degree murder, first degree
rape, and first degree sex offense, plus inchoate
crimes thereof, i.e., attempt, solicitation, and
conspiracy. Id. 3-8A-03(d)(1).
(3) Variable of age & severity of facts of offense charged: The
two-step analysis balances the best interest of the juvenile and
the best interest of society.
(a) Waiver of juvenile court jurisdiction: The juvenile
court may waive its jurisdiction, sending the case to
Circuit Court, sitting as a criminal court. Id. 3-8A-
06; In re Franklin P., 366 Md. 306 (2001).
i. At least age 15 but less than age 18: A
juvenile at least age 15 is eligible for waiver
of juvenile court jurisdiction for all offenses.
Md. Code Ann., Cts. & Jud. Proc. 3-8A-
06(a)(1).
ii. Under age 15: A juvenile under age 15 is
only eligible for waiver of juvenile court
jurisdiction for offenses punishable by death
or life, plus other offenses arising from the
same transaction. Id. 3-8A-06(a)(2).
(b) Transfer (reverse waiver) from criminal court
jurisdiction
i. Transfer applicable: For most juveniles
under age 18, a criminal court may transfer
jurisdiction to juvenile court if the judge
believes that transfer is in the interests of the
juvenile and in the interests of society.
Transfer is referred to as reverse waiver.
Md. Code Ann., Crim. Proc. 4-202(b)(3).
ii. Transfer inapplicable
a. Previously adjudicated delinquent:
A juvenile may not be transferred
from criminal court jurisdiction to
juvenile jurisdiction if previously
transferred to juvenile court and
adjudicated delinquent. Id. 4-
202(c)(1).
b. Previously convicted: A juvenile
may not be transferred from criminal
court jurisdiction to juvenile
jurisdiction if, in an unrelated case, the
http://web2.westlaw.com/find/default.wl?serialnum=2001881838&tc=-1&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=0000536&tf=-1&findtype=Y&fn=_top&mt=55&vr=2.0&pbc=F439DCE9&ordoc=8115688
-
2-15
juvenile was charged and convicted as
an adult. Md. Code Ann., Cts. & Jud.
Proc. 3-8A-03(d)(5).
c. First degree murder: A juvenile
may not be transferred from criminal
court jurisdiction to juvenile
jurisdiction if the Defendant is at least
age 16 and charged with first degree
murder. Md. Code Ann., Crim. Proc.
4-202(c)(3).
(c) Only one waiver or transfer: In Crosby v. State, 71
Md. App. 56 (1987), the Court of Special Appeals, in
the context of a case of a juvenile case, stated that,
once it has been decided whether the criminal court or
juvenile court is the best forum to handle the case,
judicial economy calls for the case to be tried in that
forum, because multiple waivers and transfers would
unproductively clog dockets and create a sense of
uncertainty.
i. Waiver of juvenile jurisdiction to criminal
jurisdiction: In Crosby, 71 Md. App. 56, the
Court of Special Appeals held that, if juvenile
jurisdiction is waived, and the case is sent to
criminal court, that determination is final and
the criminal court cannot thereafter send the
case back to juvenile court
ii. Transfer from criminal court to juvenile
court: If the criminal court transfers a case to
juvenile court, the juvenile court cannot
overrule the criminal court and re-waive
juvenile jurisdiction, sending the case for a
second time to criminal court. In re Glenn S.,
293 Md. 510 (1982). Likewise, in Smith v.
State, 399 Md. 565 (2007), the Court of
Appeals held that juvenile court cannot re-
waive juvenile jurisdiction by sending the
case to criminal court for sentencing.
(d) Factors for determining waiver or transfer in
either direction: The court either criminal court or
juvenile court must balance the interests of the
juvenile and the interests of society. Md. Code Ann.,
Cts. & Jud. Proc. 3-8A-06(e). The court must
consider the following five factors. In In re Baker, 17
Md. App. 714 (1973), the Court of Special Appeals
-
2-16
held that it is not necessary that all five enumerated
factors be resolved against the juvenile to justify
waiving juvenile jurisdiction. Waiver of juvenile
jurisdiction is not an arithmetic-type calculation.
i. Age of the juvenile
ii. Mental & physical condition of the juvenile
iii. Amenability of the juvenile to juvenile treatment In re Randolph T., 292 Md. 97
(1981); In In re Bobby C., 48 Md. App. 249
(1981), the Court of Special Appeals held that
each of the five factors must be weighed in
relation to whether the child is fit or unfit for
juvenile rehabilitation.
iv. Nature of the offense & the juveniles
participation: The circumstances of the
crime are relevant to the waiver
determination. In re Murphy, 15 Md. App.
434 (1972); Hazel v. State, 12 Md. App. 144
(1971).
v. Public safety
(e) Proceedings & standard for waiver & transfer
(reverse waiver): Waiver and transfer (reverse
waiver) are both determined by a preponderance of
evidence. Md. Code Ann., Cts. & Jud. Proc. 3-8A-
06(b) & (d)(1); Md. Code Ann., Crim. Proc. 4-
202(b)(3).
i. State seeking waiver of juvenile jurisdiction
in order to try the Defendant as an adult:
When the State seeks waiver of juvenile
jurisdiction, the burden on persuasion is on
the State. For purposes of that proceeding, the
juvenile master must assume that the
allegations in the juvenile delinquency
petition are correct. Md. Code Ann., Cts. &
Jud. Proc. 3-8A-06(d)(2). In In re Baker, 17
Md. App. 714 (1973), the Court of Special
Appeals acknowledged that some juveniles
are not able to benefit from specialized
treatment of youths.
ii. Juvenile seeking reverse waiver of
criminal jurisdiction in order to be tried as
a juvenile: When the juvenile seeks transfer
(reverse waiver) from criminal jurisdiction
-
2-17
to juvenile jurisdiction, the burden of
persuasion is on the Defendant. For purposes
of that proceeding, the Circuit Court judge
may not assume that the allegations in the
criminal charges are correct. Whaley v. State,
186 Md. App. 429 (2009).
(f) Constitutionality of preponderance of the
evidence: A juvenile court may waive juvenile
jurisdiction if the State persuades the juvenile court,
by a preponderance of the evidence, that the juvenile
is not amenable to juvenile rehabilitation. Md. Code
Ann., Cts. & Jud. Proc. 3-8A-06. In In re Bobby C.,
48 Md. App. 249 (1981), the Defendant argued that
the preponderance of the evidence for waiver was a
constitutionally inadequate standard, and that due
process required that finding beyond a reasonable
doubt. The Court of Special Appeals rejected this
challenge, holding that the purpose of the waiver
hearing is to assess whether the juvenile is amenable
to juvenile rehabilitation, and not to determine
whether the juvenile committed the crime alleged. In
In re Samuel M., 293 Md. 83 (1982), the Court of
Appeals stated: Given the presumption of validity
which attaches to legislative enactments, the absence
of a constitutional right to treatment as a juvenile, the
overriding purpose of the waiver hearing as a
determinant of jurisdiction over the juvenile, and the
fact that the juvenile is not impermissibly required to
prove his innocence of the offenses charged prior to a
later trial accompanied by the full panoply of
constitutional safeguards, Marylands legislative
scheme of waiver is not violative of any of the
accuseds due process rights. Accord In re Randolph
T., 292 Md. 97 (1981), cert. denied, 455 U.S. 993
(1982).
(g) Appellate review: The standard on appeal is abuse of
discretion. In re Franklin P., 366 Md. 306 (2001), the
Court of Appeals held that, absent abuse of discretion
in determining waiver, waiver in a juvenile case is
committed to the sound discretion of the juvenile
judge.; Hazell v. State, 12 Md. App. 144, cert. denied,
263 Md. 715 (1971). In In re Franklin P., 366 Md.
306, the Court of Appeals held that waiver of juvenile
jurisdiction is not immediately appealable under the
collateral order doctrine. In In re Johnson, 17 Md.
App. 705 (1973), the Court of Special Appeals held
http://web2.westlaw.com/find/default.wl?serialnum=1971101065&tc=-1&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=0000537&tf=-1&findtype=Y&fn=_top&mt=55&vr=2.0&pbc=F439DCE9&ordoc=8115688
-
2-18
that waiver of juvenile jurisdiction was an abuse of
discretion. In that case, an unlicensed 16-year old
drove, killing a two-year-old. The State sought
waiver by the juvenile court. At the hearing, a
minister testified that she was active in civic affairs,
was very concerned and upset about what happened,
and it would be better for her to be tried in juvenile
court. The juvenile court waived jurisdiction and the
Defendant appealed. The Court of Special Appeals
reversed the waiver decision, holding that the juvenile
court was unduly influenced by the nature of the
offense, and amenability to juvenile treatment was
not considered or not afforded proper weight. A
statement by the juvenile court that the five legislative
factors were considered does not divest the appellate
court of jurisdiction.
c. Effect of juvenile court jurisdiction
(1) Purpose: The purpose of juvenile jurisdiction is to balance
the public safety, the accountability to victim, and
rehabilitation of the juvenile. Md. Code Ann., Cts. & Jud.
Proc. 3-8A-02(a)(1).
(2) Juvenile court proceedings
(a) Right to counsel: The juvenile has the right to
counsel at every stage of the proceeding. Id. 3-8A-
20(a) & 32.
(b) Waiver hearing: In In re Franklin, 366 Md. 306, the
Court of Appeals stated: The purpose of the juvenile
waiver hearing is not to determine guilt or innocence,
but rather to determine whether or not the juvenile is a
fit subject for juvenile rehabilitative measures. An
adjudicatory hearing must be held within 30 days
after the waiver hearing. Md. Rule 11-114(b). In In
re Flowers, 13 Md. App. 414 (1971), the Court of
Special Appeals held that strict rules of evidence do
not apply in a waiver hearing. The Court noted that,
to rule on amenability to juvenile rehabilitation, the
court needs all available information. See Kent v.
United States, 383 U.S. 541 (1966).
(c) Merits of delinquency hearing: Juvenile court must
determine, without a jury, whether the evidence
establishes, beyond a reasonable doubt, that the
individual committed the act(s) that would be criminal
if under the jurisdiction of criminal court. Md. Code
Ann., Cts. & Jud. Proc. 3-8A-13(g) & 13-8A-
-
2-19
18(c).
(d) Disposition hearing, if adjudicated delinquent: If
juvenile court finds delinquency, beyond a reasonable
doubt, it must determine whether the juvenile needs
guidance, treatment, or rehabilitation. Id. 3-8A-
01(m)(1). The juvenile court conducts a disposition
hearing, usually resulting in probation, supervision,
rehabilitation, drug and/or alcohol counseling, work,
civil fines and/or costs, commitment to the
Department of Health & Mental Hygiene, and/or
detention for rehabilitation. Id. 3-8A-19(d).
(3) Status under juvenile court jurisdiction - Id. 3-8A-01(j)-
(k) & 3-8A-23(a)(1)
(a) Delinquent juvenile: A delinquent juvenile is a
delinquent and is not a criminal.
(b) Delinquent act: The act of the juvenile delinquent is
a delinquent act and not a criminal act.
(c) Child in need of supervision (CINS): A child who
has committed acts relevant to juvenile status, e.g.,
habitual disobedience or truancy, danger to self or
others, may be a child in need of supervision. Md.
Code Ann., Cts. & Jud. Proc. 3-801(f).
(4) Standard for adjudication as delinquent juvenile: Juvenile
court resolves cases in a non-jury trial.
(a) Criminal offense: Juvenile court must determine
whether the evidence establishes, beyond a reasonable
doubt, that the juvenile committed the act that would
be criminal in criminal court. Id. 3-8A-13(g) &
13-8A-18(c).
(b) Rehabilitation: Juvenile court must determine
whether the juvenile needs guidance, treatment, or
rehabilitation. Id. 3-8A-01(m)(1) & 3-801(f).
(5) Collateral consequences
(a) Confidentiality: Juvenile records are confidential.
Id. 3-8A-27.
(b) Statements: Statements made by juveniles and
evidence admitted in the juvenile court proceeding are
inadmissible in other contexts, unless the juvenile is
charged with perjury and the evidence is otherwise
admissible. Id. 3-8A-12 & 3-8A-23(c).
(c) Civil disabilities: Civil disabilities that flow from a
-
2-20
criminal conviction cannot be imposed on juveniles.
Id. 3-8A-23(a).
(d) Delinquency admissibility: The fact that a juvenile
was adjudicated delinquent is inadmissible in a
criminal proceeding (except for sentencing), a
juvenile proceeding, or a civil proceeding. Id. 3-
8A-23(b).
(6) Termination of juvenile jurisdiction & custody: Juvenile
jurisdiction may not extend more than three years or beyond
age 21. While in juvenile custody, a juvenile may not be
treated with individuals who are in adult criminal custody.
Id. 3-8A-07(a), 22(c)(3), & 24(b)-(c).
(7) Parental consequences: Parents may be required to accept
consequences for acts committed by their children. Id. 3-
8A-28 to 30.
(a) Make restitution
(b) Pay for the childs support
(c) Pay a fine up to $2,500 for contributing to juvenile
delinquency
V. Venue: Assuming a particular state sovereign has been offended, with a particular court
having subject matter jurisdiction, there is an issue of which county, i.e., which political
subdivision, within that state is the correct place to litigate the case. This is an issue of
venue, which is not an issue of jurisdiction. However, venue is frequently confused with
personal jurisdiction because both personal jurisdiction over the Defendants conduct and
venue are determined on a territorial theory, i.e., the situs or locus of the offense. See
McBurney v. State, 280 Md. 21 (1977).
A. Situs or locus of the actus reus: Like territorial jurisdiction over the Defendants
person, venue is usually determined based on the situs or locus of the actus reus.
B. Burdens
1. Burden of production: Proper venue is rebuttably presumed to exist, and
the Defendant must present evidence to generate the issue of lack of venue.
In Smith v. State, 116 Md. App. 43, cert. denied, 347 Md. 254 (1997), the
Court of Special Appeals held that a bare allegation of improper venue is
insufficient.
2. Burden of persuasion: In Smith, the Court held that, if the Defendant
generates the issue of lack of venue, the State must persuade the finder of
fact, by a preponderance of the evidence, that there is venue in the political
subdivision where the case was tried. Id.
C. Common law: Venue was not an element at common law. Grandison v. State, 305
Md. 685 (1986); Smith, 116 Md. App. 43.
D. Statutory venue
-
2-21
1. Crimes committed on common carriers: Venue is in any county from, to,
or through which the common carrier travels. Md. Code Ann., Crim. Proc.
4-201(f).
2. Murder & manslaughter: If the death blow is inflicted in County A, and
the victim dies in County B, venue is in County A, which is where the death
blow was inflicted. Id. 4-201(b). If the death blow is inflicted on the
Chesapeake Bay, and the victim dies in a county, venue is in county where
the victim died. Id. 4-201(d). If the death blow is inflicted in a county, but
victim dies on the Chesapeake Bay, venue is in county where the death blow
was inflicted. Id. 4-201(e).
3. Chesapeake bay offenses: If the crime is committed on the Chesapeake
Bay, venue is in the county where the Defendant is arrested or the county
where the Defendant is first brought. Id. 4-201(c).
4. Crimes committed on or near a county boundary: Venue is in county
where the Defendant was arrested. Id. 4-201(g).
5. Accessory before the fact: Venue is in county where the accessory before
the fact committed the act of accessoryship. Id. 4-204(d)(1).
6. Accessory after the fact: Venue is in county where the accessory after the
fact became an accessory after the fact. Id. 4-201(h).
7. Rape & sexual offenses: Venue is in any county where transportation is
offered, solicited, begun, continued, or ended. Md. Code Ann., Crim. Law.
3-316.
E. Waiver of improper venue: If lack of proper venue is not raised and generated
before trial, it is waived. Spencer v. State, 76 Md. App. 71 (1988); Lett v. State, 51
Md. App. 668, cert. denied, 294 Md. 442 (1982); Carter v. State, 38 Md. App. 400,
cert. denied, 282 Md. 730 (1978).
State v. Huebner, 305 Md. 601 (1986).
Orth, J.
The issue is whether the District Court or Circuit Court has subject matter jurisdiction. The
Defendants argue the Circuit Court, and the State argues the District Court. The District Court and
the Circuit Court agreed with the State. The Court of Special Appeals agreed with the Defendants.
We agree with Court of Special Appeals and hold that the Defendants are entitled to be tried, in the
first instance, in Circuit Court.
Male Defendant was charged with resisting arrest, motor vehicle tampering, and disorderly
conduct. Female Defendant was charged with assault and battery on a police officer, hindering a
police officer, and disorderly conduct. The Defendants made a timely demand for a jury trial. The
State attempted to defeat the jury trial election, and keep the cases in District Court, by announcing it
would not seek sentence in excess of 90 days, invoking Md. Code Ann., Cts. & Jud. Proc. 4-
302(d), whereby if the State and the trial court agree not to impose a sentence in excess of 90 days,
there is no right to a jury trial. In Kawamura v. State, 299 Md. 276 (1984), we held that section 4-
302(d)(2)(ii) is unconstitutional when applied to charges for which the Md. Decl. Rights guarantees
a jury trial -- in that case theft. In Fisher v. State, 305 Md. 357 (1985), we applied Kawamura to a
-
2-22
DUI case.
In this case, when the cases were called, the State entered a nol pros to each charge, except
disorderly conduct and disturbing the peace. The Defendant objected, but the trial court ruled that
the States nol pros was proper, leaving disorderly conduct and disturbing the peace as the only
charges, with no right to a jury trial. Thus, jurisdiction remained in the District Court. The Circuit
Court concurred, but the Court of Special Appeals reversed. We granted the States certiorari
petition on whether the District Court retains jurisdiction, following a prayer for a jury trial, and,
thus, whether the nol pros entered by the State was valid as to the charges for which a jury trial is
demandable? The jury trial is demandable for assault and battery and resisting arrest.
The State acted improperly in entering a nol pros. The District Court is deprived of
jurisdiction if the Defendant is entitled to and demands a jury trial in District Court. The Defendants
were each entitled to a jury trial and, prior to trial, each demanded a jury trial, which deprived the
District Court of jurisdiction. Once the Circuit Court obtains jurisdiction, it has exclusive original
jurisdiction over all offenses arising from the same circumstances, even though it is otherwise in the
District Courts exclusive jurisdiction. Once the Circuit Court obtained jurisdiction, that jurisdiction
divested the District Court of jurisdiction. Thus, entry of a nol pros in District Court was a nullity.
The State argues that, when it entered a nol pros, the cases were in the jurisdiction of the
District Court, despite a prior timely demand for trial by jury, because the District Court judge had
not yet ruled on the jury trial demand when the State entered nol pros. The State argues that there
was no need for the District Court to rule on the jury trial demand because the remaining charges did
not entitle the Defendants to trial by jury.
The Defendants had no obligation to ask for ruling on their jury trial demands. Section 4-
302(d)(1)s deprivation of District Court jurisdiction requires the Defendant to be entitled to a jury
trial and to make a timely demand for a jury trial. Once timely demand for a jury trial is made, the
only function left for the District Court is to determine whether the Defendant is entitled to a jury
trial. If the District Court finds that the Defendant is entitled to a jury trial, jurisdiction in the Circuit
Court attaches, jurisdiction in the District Court terminates, and the case is transferred to the Circuit
Court. If the right to a jury trial is resolved against the Defendant, the jurisdiction of the District
Court is reinstated and trial proceeds. In either instance, the correctness of the ruling is subject to
appeal.
Md. Rule 4-247(a) authorizes the State to terminate a case by entering a nol pros on the
record in open court. Entry of nol pros is within discretion of the State, free from judicial control or
the Defendants consent. In this case, however, the State was stripped of its right by the demands for
a jury trial. The Defendants were constitutionally entitled to a jury trial, which they demanded
timely. Thus, when the State entered a nol pros in District Court, that court had already lost
jurisdiction, and the State had no right to dismiss any charge. Because the District Court did not
retain jurisdiction following the prayer for a jury trial, the States entry of a nol pros was ineffective.
We affirm the holding of the Court of Special Appeals, which held that the Circuit Court erred.
Affirmed.
Jones v. State, 172 Md. App. 444 (2007).
Eyler, D., J.
The Defendant argues that the trial court erred in rejecting territorial jurisdiction and should
have submitted that issue to the jury. We disagree and affirm.
-
2-23
When the victim left a bar in Baltimore County, she tripped and hit her head. She
remembered being put in a car, being beaten in the face, having her ear sliced in half, and being
sodomized. The victim was left in Baltimore City. She called her sister, who took her to the
hospital. Investigation failed to produce a suspect. Six years later, DNA evidence from swabs taken
from the victims anus matched the Defendants DNA. The DNA evidence placed the likelihood
that the assailant was someone other than the Defendant at more than one in 70 quadrillion.
The victim testified that, for part of the time, she was being sodomized while the vehicle was
driven at a high speed. She knew that she was placed in the vehicle in Baltimore County and was
dragged out of the vehicle in Baltimore City. Between those times, she did not know where she was.
The following exchange between defense counsel and the victim ensued:
Q: The driver could have taken you on the Beltway?
A: I dont know.
Q. The driver could have taken you on the Baltimore-Washington Parkway toward the District
of Columbia, correct?
A. I dont know.
Q. The rape could have taken place in the District of Columbia in a vehicle, correct?
A. It could have, but it did not.
Q. How do you know?
A. Because I know.
Q. How do you know?
A. Because I know it did not. Why wouldnt they leave me in the District of Columbia then?
Q. You do not know whether it happened in the District of Columbia, in Virginia, or in
Maryland?
A. I dont know where it happened, but it happened in the vehicle.
Q. Do you remember over what period of time it took place?
A. I cant remember.
At the close of the States case, after making an MJOA, the Defendant rested and moved to
dismiss for lack of territorial jurisdiction. Defense counsel argued that the total evidence on
territorial jurisdiction was that the victim did not know where the sexual assault took place and only
knew that she was put in a vehicle in Baltimore County, was driven around, and wound up in
Baltimore City five hours later. The Defendant argued that the State failed to establish that the crime
took place in Maryland, and the court lacked personal jurisdiction. The trial court denied the
Defendants motion, stating that there was evidence from which the jury could infer that the assault
and sexual offense occurred in Baltimore County.
Defense counsel did not request a jury instruction on territorial jurisdiction and the trial court
did not give one. Neither counsel objected, even when asked. In closing argument, the only
reference to the location of the crime was defense counsels statement that the victims lacked
knowledge of where the crime occurred. Defense counsel did not ask the jury to make a factual
finding as to whether the sexual assault occurred in Maryland.
The Defendant argues that (1) the evidence generated an issue of territorial jurisdiction, i.e.,
whether the sexual assault was committed in Maryland; and (2) once generated, the issue was for the
jury, as fact finder, to decide beyond a reasonable doubt. The Defendant maintains that (1) the trial
court should have submitted the issue of territorial jurisdiction to the jury, instead of ruling on that
issue as a matter of law; and (2) by so ruling, the trial court foreclosed the Defendant from
-
2-24
requesting a jury instruction and from arguing reasonable doubt that the offense occurred in
Maryland.
The State argues that the Defendant did not preserve the issue for appeal because he did not
request a jury instruction on territorial jurisdiction or object to the absence of such an instruction.
The State further argues that, in any event, the trial court properly denied the motion to dismiss
because there was no issue of territorial jurisdiction and, if there was, it was an issue of fact for the
jury to decide only on request by the Defendant, which was not made.
Territorial jurisdiction describes the concept that only when an offense is committed within
boundaries of the territorial jurisdictional of the court may the case be tried in that jurisdiction. In
Maryland, territorial jurisdiction is not an element of the offense. However, when evidence exists
that the crime may have been committed outside Marylands territorial jurisdiction, and when the
Defendant disputes territorial jurisdiction in Maryland, the issue of where the crime was committed
is a fact to be determined by the trier of fact. Territorial jurisdiction may be proven by
circumstantial evidence.
For territorial jurisdiction to be a jury issue, evidence must generate a genuine dispute about
where the crime was committed. A bald conclusory assertion that the offense was not committed in
Marylands territorial jurisdiction is insufficient to create an issue of territorial jurisdiction. To
generate an issue of lack of personal jurisdiction, there must be some evidence to support it, and it is
insufficient to merely allege that the crime might have occurred outside Maryland. If, but only if,
the evidence generates an issue of territorial jurisdiction, must the State prove, beyond a reasonable
doubt, that the crime was committed in Maryland.
In State v. Butler, 353 Md. 67 (1999), the Defendant was convicted of murdering his
girlfriend, her brother, and her son. Bodies were found in an abandoned vehicle in the District of
Columbia. Two victims had been shot and one had been asphyxiated. There was evidence of a gun
being fired in the passenger compartment. The police were called when bystanders saw the vehicle
on fire. The Defendant was charged in Prince Georges County, Maryland, where he and his
girlfriend and her son lived.
The State introduced substantial evidence to support finding that the murders happened in
Maryland, and not in the District of Columbia, where the bodies were found. The Defendant made
an MJOA based on the lack of territorial jurisdiction. When the MJOA was denied, the Defendant
requested a jury instruction on territorial jurisdiction. The trial court denied the instruction, ruling
that, as a matter of law, the crimes were committed in Maryland. The Court of Appeals reversed,
holding that the Defendant generated an issue of territorial jurisdiction, which should have been
submitted to the jury.
In West v. State, 369 Md. 150 (2002), the Court of Appeals held that the State lacked
territorial jurisdiction to prosecute the Defendant for sex offenses. There was uncontradicted
evidence that the Defendant and an accomplice abducted the victim in Prince Georges County,
Maryland, and drove her into the District of Columbia, where they committed sex offenses against
her. Afterward, they drove away and directed the victim to exit the vehicle, which she did, while
still in the District of Columbia.
At trial, the Defendant moved to dismiss the sex offenses on grounds that the State lacked
territorial jurisdiction because the crimes took place in the District of Columbia. The trial court
denied the MJOA and instructed the jury on territorial jurisdiction. The jury found that Maryland
http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=162&FindType=Y&SerialNum=2002292502http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=162&FindType=Y&SerialNum=2002292502
-
2-25
had territorial jurisdiction and found the Defendant guilty. The Court of Appeals reversed, holding
that the uncontroverted evidence showed that the primary elements of crimes were committed in the
District of Columbia. Therefore, the evidence was legally insufficient to support territorial
jurisdiction in Maryland. The issue should have been decided, as a matter of law, in favor of the
Defendant.
In Painter, the State alleged that the Defendant stole cattle from farms in Frederick County,
Maryland, took them to Pennsylvania, and sold them there. The evidence was sufficient to create a
genuine factual dispute about whether the primary elements of theft were committed in Maryland,
such as to warrant a jury instruction on territorial jurisdiction. The trial court correctly instructed the
jury that, in order to convict, it had to find, beyond reasonable doubt, that the theft was committed in
Maryland.
In the case at bar, the Defendant did not preserve the issue of territorial jurisdiction and, in
any event, the evidence did not generate the issue. We disagree with the Defendant that the trial
courts ruling on the motion to dismiss precluded him from requesting a jury instruction on territorial
jurisdiction. In moving to dismiss, the Defendant was asking the trial court to rule, as a matter of
law, that the State lacked territorial jurisdiction. In denying that motion, the court stated that the
facts were sufficient to allow a reasonable juror to infer that the sexual assault occurred in Maryland.
Nothing about that ruling barred the Defendant from seeking a jury instruction on territorial
jurisdiction. Indeed, the trial courts ruling seemed to be based on a finding that territorial
jurisdiction was a factual issue and not a legal issue. In any event, by not asking the court to submit
the issue of territorial jurisdiction to the jury, the Defendant failed to preserve the issue for appeal.
Even if the issue had been preserved, we would affirm. Viewed most favorably to the
Defendant, evidence showed that the victim was put in a vehicle in Baltimore County, Maryland,
was driven around, was sexually assaulted, and was dumped in Baltimore City, near the City-County
line. The period of time that elapsed from when the victim was placed in the vehicle, at about 1:30
a.m., to when she made her way to a gas station at 5:50 a.m., was four hours and 20 minutes. The
Defendants argument is that because it is physically possible to drive from Randallstown to the
District of Columbia (or Pennsylvania) and to Baltimore City in four hours and 20 minutes, and
because the victim did not see where she was being driven, but knew that she travelling on high
speed roads sometime, the issue was generated over whether the sexual assault took place in
Maryland. We disagree.
Evidence of a mere possibility that the crime did not take place in Maryland is insufficient to
create a genuine factual dispute about territorial jurisdiction. In Butler, there was evidence that the
Defendant and the victims had been in the District of Columbia. The Defendants vehicle was found
there, and the victims bodies were inside the vehicle. There was a factual dispute over (1) whether
the killings occurred before the Defendant drove the victims into the District of Columbia, or (2)
whether the Defendant drove the victims into the District of Columbia and killed them there. The
Court of Appeals held that the evidence generated a genuine dispute about territorial jurisdiction,
which should have been submitted to the jury.
In this case, there is no evidence that the vehicle in which the victim was sexually assaulted
traveled outside of Maryland. During several hours, the driver could have driven to the District of
Columbia or to Pennsylvania, and back to Baltimore City, or to Virginia, or West Virginia, or
Delaware, or New Jersey, and back. The mere fact that it was physically possible for the Defendant
to drive the victim outside of Maryland and then back to Maryland, in that time, is speculation and is
-
2-26
not evidence.
This case most closely resembles McDonald v. State, 61 Md. App. 461 (1985). There, the
Defendant was convicted of attempted second degree murder of his live-in girlfriend. They
resided in Germantown with victims two children. The Defendant and the victim went to dinner in
Gaithersburg. At 9:30 p.m., the victim called home and told her daughters that she and the
Defendant would be home shortly. They did not arrive home until 2:30 a.m. The victim sustained
serious injuries and did not recover enough to communicate what happened. Charges were brought
against the Defendant in Montgomery County. On appeal, the Defendant argued that the Circuit
Court lacked jurisdiction because the State had not proven that the crime was committed in
Maryland. This Court rejected that argument, explaining:
Evidence supports an inference that the beating took place in Montgomery
County. There was evidence that the Defendant and the victim were seen leaving a
restaurant in Gaithersburg about 9:30 p.m. The victims daughter observed the
Defendant carry the victim into their Germantown home at 2:30 a.m. Defendant
cannot point to any evidence that would indicate that the crime was committed
outside of Maryland. The Defendant speculates that location of the restaurant is
such that the Defendant and the victim could have traveled to other states and to the
District of Columbia.
Likewise, in this case, it is incumbent on the Defendant to do more than make a bare
allegation that the crime might have occurred outside of Maryland in order to generate an issue of
lack of jurisdiction. The evidence was legally insufficient to generate an issue of territorial
jurisdiction. Evidence that the driver of vehicle could have traveled outside of Maryland before the
crime was committed, and could have traveled back to Maryland after the crime was committed, is
not evidence.
Moreover, the victims testimony did not generate an issue of territorial jurisdiction.
Furthermore, the Baltimore Beltway, which is a high-speed road that divides the Randallstown area
of Baltimore County from inner Baltimore County and Baltimore City, does not cross a state line. It
would be guess work to surmise that that the vehicle was driven out of the state. With no more than
conjecture that the crime was committed outside of Maryland, the issue of territorial jurisdiction was
not generated. If the trial court had been asked to instruct on that issue, and had refused, the court
would not have erred.
Judgments affirmed.
Whaley v. State, 186 Md. App. 429 (2009).
Zarnoch, J.
The Defendant was 16 years old when the crime of robbery with a dangerous weapon was
committed. Prior to trial, he sought unsuccessfully to have his case transferred from Circuit Court to
juvenile court. The Defendant argues that the trial court abused its discretion, during the reverse
waiver hearing, by considering non-statutorily enumerated factors as a basis for denying transfer of
jurisdiction, when the evidence showed that the Defendant was fit for rehabilitation in the juvenile
system.
A case management specialist with the Department of Juvenile Services (DJS) presented the
waiver report, recommending that the court consider waiver of jurisdiction to the juvenile system
because the Defendant had not been afforded various juvenile services available. The witness was
-
2-27
quizzed by the court on the ability of DJS to place the Defendant in a secure facility if he were
adjudicated delinquent. The trial court asked whether, if the Defendant committed robbery, there
were plans to address public safety. The witness testified that there was no plan because it was still
unknown what, if any, offense he would be adjudicated as delinquent. The State asked the witness
to assume that the Defendant committed attempted armed robbery. The witness testified that
placements may be difficult to obtain, but they are available. The witness had no answer for what
they would do if they were not available. The DJS report stated:
Few offenses pose more serious risk to public safety than the use of a weapon
in the commission of a felony or crime of violence. Although the offense is serious,
the weapon used was a BB gun. Young people who become involved in these
offenses can be held accountable under juvenile jurisdiction. Public safety can be
ensured under juvenile jurisdiction via various levels of commitment, including
placement in a secure confinement facility.
The witness testified that she examined (1) the defendants age, (2) the Defendants mental
and physical condition, (3) the defendants amenability to treatment, (4) the nature of the offense,
and (5) public safety. She stated that, despite the Defendants prior contacts with the juvenile justice
system, the Defendant had never been adjudicated and had not had an opportunity for any placement.
He should have an opportunity for services that are available to adjudicated youth. On cross-
examination, she was asked: Did you discuss the crime itself? She answered: No, I did not. I
discussed the five factors included in the reverse waiver report. Q. He is, for purposes of this
process, presumed to be guilty, correct? A. Im not sure; I assume thats right.
Another DJS witness, when asked by defense counsel whether there was a facility available if
the Defendant were adjudicated delinquent for armed robbery, he named three out-of-state facilities.
He testified that the Defendant might not be placed in a residential facility, but secure confinement
would address public safety. Q. Has DJS approved out-of-state placements when requested? A.
Yes. Court: Thats not what Im told. A. Its a lengthy process. If there are no facilities in
Maryland, we have kids who routinely go to Virginia. Court: So your department does not tell
you they will not fund out-of-state placement if that is what is ordered or recommended by the
Department? A. No.
The trial court denied reverse waiver, stating: I am to assume the charges are true. Im
looking at the conduct here. This does not appear to be an act of immaturity. They apparently
armed themselves in anticipation with BB guns and, by agreement, approached the victim and
attempted to rob him, and fired multiple times, striking the victim in the face. It does not get much
worse than that. Pointing to the Defendants disruptive behavior in school and prior contacts with
the juvenile justice system that did not lead to adjudications, the trial court stated:
I cannot find evidence to suggest that treatment in a juvenile facility would be
more effective than treatment available through the normal adult criminal justice
system or that DJS programs would outweigh my concerns regarding public safety.
Secure confinement placements are very limited resources within the DJS. The
nature of these charges would indicate that we would be looking at secure
confinement placement, and there are very lengthy delays in that process. He is
going to be 18 years old in 18 months.
For this offense, it appears that the criminal justice system would be able to
supervise him for up to five years, if necessary. He will be an adult soon. I find that
-
2-28
his needs can be addressed through detention in the Division of Correction. I find
that the Defendant has not met his burden to demonstrate that transfer of jurisdiction
is in the Defendants interest or in societys interest. Reverse waiver is denied.
The Defendant argues that the trial court abused its discretion when it considered non-
statutorily enumerated factors in denying the Defendants motion for reverse waiver. He claims that
the trial court, in gauging the nature of alleged offense, improperly assumed guilt and, in weighing
amenability to treatment, impermissibly speculated about the likely sentence and the availability of
placement options in the juvenile system.
During a reverse waiver hearing, the court must consider: (1) the childs age; (2) the
childs mental and physical condition; (3) the childs amenability to treatment in an institution,
facility, or program available to delinquent children; (4) the nature of the alleged crime; and (5)
public safety. Md. Code Ann., Crim. Proc. 4-202(d). The burden is on the juvenile to demonstrate
that, under these five factors, transfer to juvenile system is in best interest of the juvenile and society.
Id. 4-202(b)(3). The trial courts weighing of the five factors court is reviewed by the appellate
court under the abuse of discretion standard. Whether assumption of guilt is permitted is a legal
question and is reviewable de novo.
The Defendant points to fact that there is an express directive to the juvenile court to assume
guilt in a hearing on waiver of juvenile jurisdiction, but that there is no such provision governing the
criminal courts consideration in reverse waiver hearings. The State argues that the trial court did
not presume guilt but, in assessing the nature of alleged crime, it could not look behind the charges
to determine if the Defendant was properly before the Circuit Court initially.
We believe that the relationship of these two statutes does shed meaning on whether
assumption of guilt, or even looking beyond charges, is permissible under section 4-202(d). It is
arguable that the factors for judicial consideration of waiver and reverse waiver are the same.
However, on closer examination, we find that the two statutes differ significantly. In 1975, both
statutory schemes were amended. For purposes of determining whether the juvenile court should
waive jurisdiction, the court was required to assume that the child committed the delinquent act.
Two years later, the Maryland General Assembly amended the waiver statute to require that the five
factors be determined both individually and in relation to each other.
The standard for the five-factor reverse waiver analysis mirrored, in many ways, but not all
ways, the standard for waiver of juvenile jurisdiction. The statute for a reverse waiver hearing
included the alleged nature of the crime, but it did not mention assumption of guilt. It can be
argued that 1975 legislation merely incorporated the guilty assumption in waiver situations from
earlier case law, and that the Maryland General Assembly, by adopting the five-factor waiver
analysis for reverse waiver, intended the same assumption to apply. However, this is not the most
likely explanation.
Ch. 554 (HB 384) and ch. 830 (HB 1654) were enacted in the same legislative session. Both
bills were considered by the same committees in the House and the Senate. Each related to the same
subject and could have been included in one bill. The failure to include the assumed guilt provision
in ch. 830 could only be seen as intentional. In In re Samuel M., 293 Md. 83, 96 (1982), the Court
of Appeals recognized that the assumption of guilt provision was different from the five statutory
criteria. This suggests that selection of the presumption or its omission was a considered legislative
decision.
-
2-29
There are valid reasons for including assumption of guilt in only one of two statutory
schemes. Presumption of guilt in a juvenile waiver setting is mitigated by the fact that the burden of
persuasion to justify waiver of juvenile jurisdiction remains on the State, and the ultimate issue is the
childs fitness for rehabilitation. After waiver, a different court considers guilt or innocence.
Presumption of guilt for cases tried in criminal court creates a constitutional question. It could force
the Defendant to preview his defense just to obtain a reverse waiver. In addition, the judge hearing
the reverse waiver, assuming guilt, may be the judge who hears the criminal case.
Finally, assumption of guilt, for consideration of reverse waiver, could skew the analysis of
the five statutory factors because the nature of the alleged offense factor will almost invariably be
found by the court in favor of the State. It will also be linked to the public safety factor because
one assumed guilty of a serious offense will be deemed a threat to public safety and not amenable to
treatment. This seems to run contrary to the authorization to transfer jurisdiction to juvenile court
when it is in the childs interest.
In this case, the State argued for a presumption of guilt, and motions judge agreed, stating
that she was required to assume that the Defendant was guilty of being armed and shooting, when
deciding the reverse waiver question. There were indications that the Defendant may not have been
the principal perpetrator. Cartridges were found on the Co-Defendant, but not on the Defendant.
T