The officer, only six months out of field training, responded to a call about two men fighting. When he arrived on the scene, he found one individual lying on the ground incapacitated and another individual sitting in his truck nearby. As the officer investigated, the individual in the truck walked over to the individual on the ground and kicked him in the head. Although an internal police investigation found that the officer had done nothing wrong, the State prosecuted him for reckless endangerment on the theory that he had a duty to prevent the kick. The trial court found the officer guilty, and the Appellate Court of Maryland affirmed. 

Silverman Thompson appellate specialist Todd Hesel petitioned the Supreme Court of Maryland to take the case, arguing that the officer had no legal duty to prevent the unexpected assault and that the State failed to prove the officer’s inaction was a “gross departure” from what a reasonable, similarly situated police officer would have done.

The Supreme Court granted the petition and reversed. The majority opinion, authored by Justice Booth, agreed with the Silverman Thompson appellate team that the officer had no legal duty to prevent the kick. 

First, the court concluded that a duty to prevent a spontaneous and unforeseeable assault by one member of the public on another was not among the common law duties traditionally imposed upon law enforcement officers. 

Next, the court found that the police department policy statements relied upon by the prosecution reflected only general goals and did not impose a specific duty to act in the circumstances presented.

Finally, there was no “special relationship” giving rise to duty to protect, as the State argued, because the incapacitated individual was not in the officer’s custody at the time of the kick.

Read the Supreme Court of Maryland’s opinion here:  https://www.mdcourts.gov/data/opinions/coa/2025/13a24.pdf

Contact Our Appellate Specialist

If you need assistance with an appellate matter, Todd Hesel can be reached at thesel@silvermanthompson.com or 443-895-4195.

Our client was tried by jury in September 2022 with murder and other charges related to an alleged shooting.  After several days of deliberations, the jury told the court that it was unanimous on one count but unable to agree on others.  The court, at the State’s request, accepted the partial verdict.

Background on the Initial Trial

In open court, the foreperson announced a verdict of not guilty on second-degree murder, which was then confirmed by all twelve jurors in a poll.  The State then argued that the verdict was inconsistent with the directions on the verdict sheet and asked that the jury be sent back to resume deliberations.  The trial court agreed to the request, and after further deliberations failed to yield any verdict, the court granted the State’s request for a mistrial on all counts.

When the State sought to re-prosecute Silverman Thompson’s client, trial counsel Creston Smith moved to dismiss the murder charges as barred by double jeopardy, arguing that the jury had returned a valid acquittal on second-degree murder and that the verdict further required an acquittal on first-degree murder.  The trial court denied the motion, leading Mr. Smith’s team to file an interlocutory appeal.

Appealing the Mistrial

On appeal, Mr. Smith teamed with his colleague Todd Hesel, an appellate specialist, to argue that the foreperson’s announcement of an acquittal on second-degree murder, coupled with the confirmation of that verdict by polling all 12 jurors, constituted a final verdict that the trial judge had no discretion to reject. Thus, there was no valid basis for the trial court to declare a mistrial on the second-degree murder charge. 

Additionally, because the jury could not have acquitted our client of second-degree murder without necessarily finding that he was not guilty of first-degree murder, our client could not be retried on that charge either. 

The Appellate Court agreed in full with Creston Smith and Todd Hesel’s arguments and held that the Fifth Amendment’s Double Jeopardy Clause barred their client from being retried for first- or second-degree murder.

Read the opinion here: https://www.mdcourts.gov/sites/default/files/unreported-opinions/1689s23.pdf 

Contact Our Appeals and Criminal Defense Teams

For assistance with an appellate matter, contact Todd Hesel at thesel@silvermanthompson.com or 443-895-4195

For assistance with a criminal matter, contact Creston Smith at csmith@silvermanthompson.com or 410-385-9100