MCOA (MARYLAND COURT OF APPEALS) BLOG: Tracey v. Solesky (Reconsideration) and State v. Harris

Tracey v. Solesky (Reconsideration) and State v. Harris

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Dorothy M. Tracey v. Anthony K. Solesky, et al.;
No. 53; September Term, 2011, Filed August 21, 2012, On Motion for Reconsideration; Opinion by Justice Wilner
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On April 26, 2012, the Maryland Court of Appeals (MCOA) filed an Opinion in this case holding, by a four-to-three vote, that, “upon a plaintiff’s sufficient proof that a dog involved in an attack is a pit
bull or a pit bull mix, and that the owner, or other person(s) who has the right to control the pit bull’s presence on the subject premises (including a landlord who has the right and/or opportunity to prohibit such dogs on leased premises as in this case) knows, or has reason to know, that the dog is a pit bull or cross-bred pit bull mix, that person is strictly liable for the damages caused to a plaintiff who is attacked by the dog on or from the owner’s or lessor’s premises” (bolding added).

On May 25, 2012, the petitioner, Dorothy Tracey filed a motion for reconsideration, complaining that the imposition of a “new duty” on landlords was fundamentally unfair and unconstitutional as applied to her. An answer to the motion was filed by the respondents.

Decision and Order:  Because the so-called "cross-bred" issue was never raised in this case previously --- never asserted nor argued by either side --- it should not be included in this Court's decision.  The MCOA, therefore, removes references in its April 26, 2012 Opinion to pit bull "mixes", "cross-breeds", "cross-breds", and "hybrids".

Owners and landlords remain responsible, however, for injuries caused by so-called pure-bred dogs.

State of Maryland v. Thomas B. Harris;
No. 22; September Term, 2012, Filed September 27, 2012; Opinion by Chief Judge Bell
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CRIMINAL LAW & PROCEDURE – JURIES & JURORS – COMMUNICATIONS

Any communication between a judge and the jury which pertains to the action constitutes a stage of trial at which a defendant, pursuant to Article 5 of the Maryland Declaration of Rights, the Fourteenth Amendment to the United States Constitution, and Maryland Rule 4-231, is entitled to be present. Accordingly, Maryland Rule 4-326 (d) requires a trial judge to notify the parties if he or she wishes to communicate with a juror or the jury, or receives a communication from a juror or the jury, regarding a matter that pertains to the action.

Thomas B. Harris was convicted by a jury in the Circuit Court for Baltimore County of second-degree depraved heart murder. He appealed his conviction to the Court of Special Appeals, where he argued, inter alia, that the trial court’s failure to disclose to him a communication between a juror and the judge’s secretary violated Maryland Rule 4-326 (d), requiring reversal of his conviction. The Court of Special Appeals agreed: it reversed the conviction, Harris v. State, 189 Md. App. 230, 255, 984 A.2d 314, 329 (2009), holding that the Circuit Court committed reversible error when it failed to disclose, in accordance with Rule 4-326 (d), the communication, and remanding the case to the Circuit Court for a new trial.

The State filed a petition (appeal) to the Maryland Court of Appeals (MCOA) for a writ of certiorari, which was granted.  The issue on appeal for consideration was:

     “Did the Court of Special Appeals err in finding that the trial court abused its
      discretion in refusing to declare a mistrial after informing the defendant of an
      innocuous communication between the judge’s secretary and a juror?”
 
The MCOA affirmed the judgment of the Court of Special Appeals, and held that the Circuit Court should have disclosed the communication between the judge’s secretary and the juror. Its failure to do so was error, in violation of Rule 4-326 (d), and prejudicial to the Defendant.