# Richardson v. McGriff > Court of Appeals of Maryland · November 15, 2000 · 361 Md. 437 URL: https://www.frixlaw.com/law-library/cases/9715656 ## Case - **Full name:** Taurrance RICHARDSON v. Horace McGRIFF - **Court:** Court of Appeals of Maryland - **Decided:** November 15, 2000 - **Citations:** 361 Md. 437; 762 A.2d 48; 2000 Md. LEXIS 690 - **Precedential status:** Published - **Opinion:** Dissent by Bell - **Judges:** Wilner, Harrell, Bell - **Cited by:** 56 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9715656 ## How later opinions describe it (automated extraction) - recognizing that the Court of Appeals “ha[s] adopted essentially the same principle as a matter of State common law” and that Graham’s objective reasonableness test “is the appropriate one to apply . . . to . . . common law claims of battery and gross negligence” by police off… - explaining “We have long recognized that Article 26 is in pari materia with the Fourth Amendment and that decisions of the Supreme Court interpreting the Federal right are entitled to great respect in construing the State counterpart. - concluding that because plaintiff had stated a claim for excessive force in violation of the Fourth Amendment, he had also stated claims for battery and gross negligence - explaining that claims under Article 26 of the Maryland Declaration of Rights and common law battery claims are governed by the standards applied to excessive use of force claims under federal law - stating that the principles applied to excessive force claims under the Fourth Amendment are the appropriate principles to apply to similar claims under Article 26 ## Opinion text BELL, Chief Judge, dissenting. I join most enthusiastically in all but Part D of Judge Harrell’s well reasoned and stated opinion and, thus, share his *524 and Judge Eldridge’s rejection of the majority’s refusal to allow the petitioner to offer evidence of the violation, by the respondent police officer, of police departmental guidelines as evidence bearing on the respondent’s civil liability for the injuries to the petitioner that his actions, alleged by the petitioner to have been grossly negligent, caused him to suffer. This separate opinion is prompted by the majority’s disposal of the petitioner’s Batson 1 challenge to the respondent’s exercise of his peremptory challenges on a procedural and purely technical ground. The ground of decision not raised, or argued, by either party and was not the basis for the Court of Special Appeals’ decision. Moreover, the Batson issue was one of the issues on which we granted certiorari; although it was specifically argued in the petitioner’s Petition for Certiorari, we did not exclude it from our grant of the petition. The majority refuses to review the merits of the petitioner’s Batson challenge because it was made after the jury was sworn, opining, “The problem is that [the petitioner] waited too long to register his objection. In Stanley v. State, 313 Md. 50, 69 , 542 A.2d 1267, 1276 (1988), we concluded that ‘[a] Batson objection is timely if the defendant makes it no later than when the last juror has been seated and before the jury has been sworn.’ ” 361 Md. 437, 466 , 762 A.2d 48, 63 (2000). Maryland Rule 8-131, in pertinent part, provides: H* 4* “(b) In Court of Appeals — Additional Limitations. “(1) Prior Appellate Decision. Unless otherwise provided by the order granting the writ of certiorari, in reviewing a decision rendered by the Court of Special Appeals or by a circuit court acting in an appellate capacity, the *525 Court of Appeals ordinarily will consider only an issue that has been raised in the petition for certiorari or any cross-petition and that has been preserved for review by the Court of Appeals. Whenever an issue raised in a petition for certiorari or a cross-petition involves, either expressly or implicitly, the assertion that the trial court committed error, the Court of Appeals may consider whether the error was harmless or non-prejudicial even though the matter of harm or prejudice was not raised in the petition or in a cross-petition.” This case came to us from the Court of Special Appeals, which reviewed the judgment of the Circuit Court for Baltimore City. In that court neither party raised the timeliness of the Batson ruling and, in any event, the intermediate appellate court decided the issue on the merits. What’s more, as already mentioned, the propriety of the trial court’s Batson ruling was one of the issues presented, and argued, in the petition for certiorari that the petitioner filed. And this Court granted certiorari to review that issue, among others; we very pointedly did not “otherwise provide[ ] by the order granting the writ of certiorari.” Clearly, the petitioner is entitled to a decision on the merits of this issue. This is especially so since an outcome favorable to the petitioner will avoid the result the majority reaches on the issues it does decide on the merits, for it would mean that the petitioner gets his new trial anyway. I do not contend that the Batson challenge was timely under our cases. At this stage of the proceedings, that really is not the point. Where this Court grants certiorari on an issue, it is the cert, petition to which we look to determine preservation, not what happened in the trial court, particularly when the appellate court that initially reviewed the issue decided it notwithstanding, and perhaps despite, the procedural default. A procedural default such as that here at issue does not implicate fundamental jurisdiction 2 and, so, is not *526 raisable at any time, even for the first time in this Court. But, as already. mentioned more times than necessary, I suspect, it was this Court that decided to .review the very issue that the majority now wants to avoid on this really technical ground. I would reverse the judgment of the Court of Special Appeals on the Batson issue. The latest cases to explicate Maryland law on the subject are Gilchrist v. State, 340 Md. 606 , 667 A.2d 876 (1995) and Harley v. State, 341 Md. 395 , 671 A.2d 15 (1996). See also Purkett v. Elem, 514 U.S. 765 , 115 S.Ct. 1769 , 131 L.Ed.2d 834 (1995), discussed by both Gilchrist and Harley . Neither case was cited, not to mention discussed, by the intermediate appellate court. In fact, the only Batson case mentioned was Stanley v. State, 313 Md. 50 , 542 A.2d 1267 (1988). More important, the court’s discussion of the issue provides no basis for any belief that the trial court, or the intermediate appellate court, for that matter, were aware of or appreciated the application of Purkett to the facts of the case. 3 It is clear to me that, whether the reasons offered by the respondent were race neutral or not, the trial court simply did not appreciate its role in the process and certainly did not properly apply the test explicated in Purkett, see 514 U.S. at 767-68 , 115 S.Ct. at 1770-71 , 131 L.Ed.2d at 839 , clarified in the context of this State’s Batson jurisprudence in Gilchrist, see 340 Md. at 619-20 , 667 A.2d at 885-86 (Chasanow, J. concurring) and applied in Harley, see 341 Md. at 402 , 671 A.2d at 19 . . Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), is a case that prohibits the exercise of peremptory strikes on a racially motivated basis. . Our cases make clear that, because its meaning depends upon the context and circumstances in which it is used, the word “jurisdiction” is equivocal. Moore v. McAllister, 216 Md. 497, 507 , 141 A.2d 176, 182 *526 (1958). Indeed, "Juridically, jurisdiction refers to two quite distinct concepts: (i) the power of a court to render a valid decree, and (ii) the propriety of granting the relief sought.” Id. (citing 1 Pomeroy, Equity Jurisprudence (5th ed.1941), §§ 129-31); First Federated Commodity Trust Corp. v. Commissioner of Securities for Maryland, 272 Md. 329, 334 , 322 A.2d 539, 543 (1974). See Maryland Bd. of Nursing v.. Nechay, 347 Md. 396, 405 , 701 A.2d 405, 410 (1997); Kaouris v. Kaouris, 324 Md. 687, 708 , 598 A.2d 1193, 1203 (1991). The former concept involves jurisdiction in its fundamental sense. See McAllister, 216 Md. at 507 , 141 A.2d at 182 . . In fairness, it should be noted that the petitioner did not cite the relevant cases argue them, either. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9715656. Public record. Not legal advice.