FURDA v. STATE

to one reasonable interpretation of the question." Id. at 1076-77. Although the court acknowledged that "another, more restrictive meaning of `unlawful possession'" was possible, it found "nothing in the context to suggest that the questionnaire's terms were to be defined by reference to anything other than common usage." Id. at 1077.

The court concluded that "the questionnaire was not fundamentally ambiguous so as to preclude the possibility that questioner and answerer had the same meaning in mind." Id. at 1078. Although it recognized that there were "two plausible meanings" to the phrase "unlawful possession," it relied on "relevant extrinsic evidence as to which construction Camper placed on the question." Id. In particular, it considered that, when Camper pleaded guilty to the state offense, he had "used the phrase `unlawfully possessed' to refer to the offense [to which he pleaded guilty and] for which he was convicted." Id. The court determined that "a reasonable finder of fact could conclude . . . that the questionnaire asked, and Camper answered, a question about convictions for possessing a gun in an unlawful manner. The evidence was sufficient to support the conviction." Id.

In United States v. Boskic, 545 F.3d 69 (1st Cir. 2008), cert. denied, ___ U.S. ___, 129 S.Ct. 1393, 173 L.Ed.2d 593 (2009), the court considered whether the defendant falsely answered questions on his immigration forms. Notably, the court said: "[R]esolving that issue requires us to consider [the defendant's] knowledge . . . whether his answers were false depends on his understanding of the questions asked of him." Id. at 85.

United States v. Good, 326 F.3d 589 (4th Cir. 2003), is also pertinent. In that case, the defendant applied for a Security Identification Display Area ("SIDA") badge at a Virginia airport, issued pursuant to Federal Aviation Administration ("FAA") regulations. Id. at 590. On the application, Good was asked: "Have you ever been convicted or found not guilty by reason of insanity of the following listed crimes . . . 22. Burglary, Theft, Armed robbery, Possession or Distribution of Stolen Property . . . 26. Dishonesty, Fraud, or Misrepresentation. . . ." Id. The defendant answered "no" to both question 22 and question 26. Id. About a year before, however, she "had pleaded guilty to embezzlement," under Virginia law. Id. Accordingly, Good was charged with "knowingly and willfully making a fraudulent statement in violation of 18 U.S.C. § 1001(a)(2)." Good sought to dismiss the indictment, arguing, inter alia, "that her statements were literally true because embezzlement was not a crime listed on the application. . . ." Id. The Fourth Circuit affirmed the dismissal of the indictment because the "defendant's statement was literally true. . . ." Id. at 591.

The court rejected the government's argument that the defendant's statements were false because embezzlement fell "within the purview of disqualifying crimes of theft, fraud, dishonesty, and misrepresentation." Id. (internal quotations omitted). It acknowledged that "embezzlement is a felony involving dishonesty, fraud, and misrepresentation," id. at 592, and recognized that the defendant had pleaded guilty to the crime of embezzlement. But, the court also said: "Embezzlement . . . was not one of the crimes listed on the application." Id. at 591-92. The court reasoned: "Given the wording of the question and the crime for which the defendant was convicted, her answers on the application were thus literally true; the defendant has never been convicted of any of the crimes listed on the application." Id. at 592.

Here, Question 8 was quite broad. It lacked the degree of specificity on which the court relied in Good. Cf. Bronston v. United States, 409 U.S. 352, 362, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973) (in the context of interrogation, stating that "[p]recise questioning is imperative as a predicate for the offense of perjury," and that "a jury could not be allowed to consider a perjury charge where the allegedly false statement was `literally true but not responsive to the question. . . .'"); United States v. Bonds, 580 F.Supp.2d 925, 931 (N.D.Cal. 2008) (finding that "the indefinite time period did not make the question fundamentally ambiguous" and stating: "If defendant's responses were false as he understood the questions, [any potential] conviction is not invalidated by the fact that his answer to the questions might generate a number of different interpretations") (internal citations and quotations omitted).

As we indicated, P.S. § 5-133(b)(7) prohibits possession of a regulated firearm by individuals who have been confined in a mental institution for more than thirty consecutive days. In contrast to Question 8, Question 7 of the Application was far more specific. It asked: "Have you ever spent more than 30 consecutive days in any medical institution for treatment of a mental disorder or disorders?" That question was clearly based on State law (P.S. § 5-133(b)(7)), and appellant could truthfully answer "No" to Question 7, because his admission was only for a few days. But, the very next question on the Application asked about "commitment," generally, without any time limitation. There was no suggestion in the Application that Question 8 contemplated any specific duration of hospitalization, or that it was limited to State law. Rather, the question was broadly phrased.

Moreover, the term "commitment" was not used in the Application in a technical sense. Because it was not defined, its common meaning would apply, particularly to a lay person. The common meaning of "commitment" refers to "consignment to a penal or mental institution." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 250 (11th ed. 2004). See United States v. Midgett, 198 F.3d 143, 147 (1999) (because Congress did not define the term "committed," the court reads it in light of the common usage In its broadest sense, to "commit" means "to place officially in confinement or custody."), cert. denied, 529 U.S. 1028, 120 S.Ct. 1440, 146 L.Ed.2d 328 (2000).

In addition, we reiterate that, at the bottom of the Application, appellant signed his name, certifying "under the penalty of perjury that the above answers are true and correct and that I am not prohibited by law from purchasing or possessing a regulated firearm." (Emphasis added.) Yet, he knew that the court had ruled that he was prohibited by federal law from possessing a regulated firearm.

When we apply the rationale of the cases cited above, we are satisfied that the question, "Have you ever been . . . committed to a mental institution," was not "fundamentally ambiguous." To be sure, the question was posed on a Maryland State Police form, for the purpose of determining an applicant's eligibility to purchase a firearm in Maryland. See Dep't of Pub. Safety Corr. Services v. Berg, 342 Md. 126, 138-39, 674 A.2d 513 (1996) (concluding that Maryland State Police could enforce federal law prohibiting firearm possession based on narcotics conviction, and therefore police could disapprove a firearm application submitted by a person prohibited under federal law). But, the Application did not specify that the applicant was to respond only under State law.

In addition, the court below was entitled to consider the "context" and "extrinsic evidence relevant to the defendant's understanding of the question. . . ." Camper, 384 F.3d at 1076. The context and extrinsic evidence unequivocally established Furda's knowledge that Judge Harrington had determined that he was prohibited under federal law from possessing regulated firearms because he had been committed to a mental institution. Armed with the knowledge of that ruling, Furda nonetheless proceeded to apply for the purchase of a gun and deliberately answered a question about commitment in a way that was directly contrary to the court's ruling and was intended to deceive.

III.

Appellant contends that the court "improperly shifted the Burden of Proof to appellant and "improperly usurped the prosecutorial function. . . ." We pause to review additional facts.

At the close of Booth's testimony, the court questioned him as follows:

[THE COURT]: But, approaching this perhaps from a different point of view, I take it you never told your client that he could make a false statement in an application, did you?

[BOOTH]: No.

[THE COURT]: So, putting aside for a moment whether your client agreed or disagreed with the decision of Judge Harrington, is it fair to say that if he was going to fill out an application, he would still have to answer it truthfully, even if he disagreed with what Judge Harrington said?

[BOOTH]: Yes.

[THE COURT]: So one way to have truthfully filled out the application was that, when you got to question 8, you could instead of saying "yes" or "no," you could say, "see footnote." The footnote says, "This is what Judge Harrington said. I think she's wrong. In fact, I've appealed her all the way to the Supreme Court of Mars. But here are the facts. So I'm not making a false statement and I'm not misleading anybody," correct?

[BOOTH]: Correct.

[THE COURT]: But to have omitted the information that your client had in answering question 8 by omitting that, isn't the answer to question 8, as drafted, misleading?

[BOOTH]: Actually, Your Honor, I'm not 100 percent convers[ant] with question 8[.]

[THE COURT]: Not following me? Okay. Question 8 says, which is I think the guts of this case.

[PROSECUTOR]: It is indeed. The second phrase, Your Honor.

[THE COURT]: It says, "Have you ever been adjudicated mentally defective or have you been committed to a mental institution?" It's a question. A person has the following choices: they can say "yes," they can say "no". Or they can do some combination of yes and no, but they can add explanatory material so as not to make their yes or their no materially misleading. So he could have said, "No, footnote, but see Judge Harrington's order, you know, 42 pages of explanatory material" and we wouldn't be here probably because it wouldn't have been misleading. Or he could have said, "Yes, but see she's wrong. I'm going to get it straightened out. And after you look at all the, you, State Police, look at all the facts you'll agree with me that I should have my gun."

That was certainly an option open to Mr. Furda or somebody in Mr. Furda's position. Would it not have been to make such a disclosure like we use [sic] to do, I think they still do on documents submitted to the federal government when yes or no is not really the right answer? It's yes, comma, or no, comma. Or you don't answer yes or no. You just make your statement and the statement's true. Have a nice day.

What's the rocket science behind all this?

[BOOTH]: Your Honor, is there a question?

[THE COURT]: No, not really.

[BOOTH]: I can tell you I'm not conversant enough with that form to even know that there's a footnote section.

[THE COURT]: Even if there's not, you take a separate piece of paper, you write out whatever it is you think they need to know and you attach it. It just seems to me folks have been doing that for the last 70 years in responding to recent federal forms.

Although we previously quoted some of this testimony, we repeat it for the convenience of the reader.

During defense counsel's closing argument, the following ensued:

[BOOTH]: As Your Honor heard the testimony from Mr. Furda and I think the bottom line is he was firmly convinced that he was eligible to purchase a firearm. I mean, he stated that today. I mean, to this day he is convinced.

THE COURT: May I ask you a question?

MR. BOOTH: Certainly, Your Honor.

THE COURT: Does his belief — does it not need to be objectively reasonable? . . . Because, as the Supreme Court said in Cheek,[ ] in adopting the good faith belief, but objectively reasonable standard, because the tax laws were so complicated. Does it not have to be objectively reasonable or, no offense, but will any delusion do?

MR. BOOTH: No, Your Honor, and it's not delusional and I think it is objectively —

THE COURT: "Delusion" in quotes. I'm not being critical. But, I mean, the Supreme Court has been clear in these cases that the confusion or mistake or whatever it is has to be objectively reasonable doesn't it? Or am I wrong? If I'm wrong, straighten me out. This is your chance.

MR. BOOTH: Even accepting that, Your Honor, even if it is objectively reasonable, I would argue that in Mr. Furda's case it is reasonable. He is the actual person who was evaluated. He was a subject —

THE COURT: So you're saying it doesn't have to be objectively reasonable?

MR. BOOTH: No, I'm saving I think it is in this [case] objectively reasonable.

THE COURT: Okay.

MR. BOOTH: He certainly has reason enough to believe that Judge Harrington's order was wrong, in terms of whether he was ever committed or not.

THE COURT: So you're saying that a good faith, albeit objectively unreasonable. But if I find that he subjectively believed that would acquit him?

MR. BOOTH: Certainly on the perjury charge, Your Honor.

THE COURT: Okay.

MR. BOOTH: I mean, he was absolutely forthright here, Your Honor. I mean, he's certainly convinced that in this particular case that Judge Harrington, with all due respect to Judge Harrington, it was just that it's not a correct decision. And I think Your Honor raised the issue about the footnote. But as Mr. Furda testified, he didn't know about the footnote. But what did he do? He brought the motion for reconsideration that I had drafted to the gun shop. And by his testimony, as well as Mr. Flynn's —

THE COURT: Well, let me get back to my unduly simple example. You represent Smith. Smith is tried for robbery. The evidence is scampy [sic] but the jury convicts Smith. Verdict, judgment of conviction entered, you take an appeal, sufficiency of the evidence.

Before the Appellant [sic] Court hears your case and you win, by the way, Smith goes out and applies for a security clearance at Lockheed Martin and — knowing it's going to be submitted to the DOD. So that gives the under perjury to the Federal Government and these things. Have you ever been convicted of a felony? Smith says, no, believing he's innocent and will prove it one day. Life is good. The jury got it wrong. The judge got it wrong. The Court of Appeals will straighten them out.

Later, the Court of — after the submission of the application — later the Court of Appeals says evidence is insufficient as a matter of law. We apologize. We're really sorry. And here's a million dollars for your troubles. Smith later gets charged with perjury under federal law for making a knowing false statement on an application to the Defense Department.

Good or not good?

MR. BOOTH: I think it's been mooted out.

THE COURT: Really?

MR. BOOTH: By the Appellant [sic] Court. There's a contrast here also, though.

THE COURT: The statement was knowingly false with me. The jury said guilty. The jury is wrong. Judge Harrington said, arguably, guilty. You say Judge Harrington's wrong. That's fine. But isn't that analogous?

MR. BOOTH: It is analogous and it's not. And the reason is, is, in your particular situation, in the Smith case he's had a trial. Presumably there's been testimony. Presumably there's been evidence, it's been in front of a jury or a judge hearing all of the evidence.

Judge Harrington's ruling was made as a result of a motion hearing, 15 minutes per side. And that's it. And there was no testimony. No one took the stand at that hearing.

THE COURT: Well, let me go down the road that you've decided to travel.

Are you saying that, given the procedure [sic] posture as you've outlined it, your client, if he had been in disagreement with Judge Harrington's ruling, would have been free to disobey the order? Because you know a quick 10-minute motions hearing, boom, boom, no trial, no witnesses, gone. Judge issues order. Can you ignore it?

MR. BOOTH: No.

THE COURT: Well, what's the difference? You can't ignore the order, why doesn't it count?

MR. BOOTH: Well, Your Honor, because, again, it's not the full panoply of rights that you had stated in your first hypothetical. It's a civil order. And it's issued as part of a motion to return property. So does it have to be obeyed? Yes. What's the penalty? Contempt. Violation of a Court order. . . . And in this particular case Mr. Furda's charged with perjury.

We turn to the parties' contentions.

In appellant's view, the court "improperly shifted the Burden of Proof to appellant, because it "repeatedly emphasized the fact that Mr. Furda never attached any explanation, regarding his evaluation period at Potomac Ridge, to the firearm application," thereby asking him "to prove that [he] could not amend or explain [his] answers." Appellant complains that the court "blamed" him, "in essence, for `not doing something.'"

According to Furda, "the burden should have been on the Government to show that attachments were allowed on the firearm application form, or [that] there was a comment section on the form that Mr. Furda failed to utilize." He alleges prejudice from the court's "Constitutional error" of "requir[ing] the Defendant to demonstrate that he was not allowed to explain his answers (via a comment section or attachments)."

Appellant also complains that the court "repeatedly faulted" him for failing to subpoena Mr. Gilbert, the gun shop owner, to testify that the Application did not contain a comment section and that no attachments were allowed. According to appellant, "[t]he judge thus imposed upon the Defense, the burden of persuasion, the burden of proof and the burden of going forward by requiring the Defense to produce a witness."

In addition, appellant points out that the Application did not contain a "`comment' section . . . nor is there any part of the form that tells an applicant he can attach documents to provide an explanation." He notes that he "specifically testified that he had brought the Motion for Reconsideration with him to the gun shop, . . . that he spoke to Air. Gilbert, at length, prior to filling out the form, . . . and that he also had been told that attaching a document to the form was not allowed." He adds that Gilbert's affidavit, which appellant attached to his Supplement to Motion for New Trial, "corroborates the same information[.]"

Appellant did not testify that he was told that he was not allowed to attach any documents to the Application. As noted, after the court rendered its verdict, defense counsel told the court that appellant would like to testify to that effect.

Appellant also contends that the court "improperly usurped the prosecutorial function" by "argu[ing] the Government's position" with regard to "several matters." And, he challenges the court's interjections in defense counsel's closing argument, during which the court "debated at length with Defense Counsel about his arguments." Further, he complains that the court "continued the role of advocate" at the hearing on appellant's Motion for New Trial. Thus, Furda insists that the court denied him "the fair trial that is his Due Process right under the U.S. Constitution."

Appellant does not identify the matters, but cites to pages in the transcript in which the court addressed appellant's request that it take judicial notice of the Potomac Ridge records. As we recognized in Rollins v. Capital Plaza Assocs., L.P., 181 Md.App. 188, 201, 955 A.2d 869, cert. denied, 406 Md. 746, 962 A.2d 372 (2008), courts ("`cannot be expected to delve through the record to unearth factual support favorable to [the] appellant.'") (citation omitted). See also Griner v. State, 168 Md.App. 714, 740, 899 A.2d 189 (2006) ("[O]ur function is not to scour the record for error once a party notes an appeal and files a brief.") (citation and quotation marks omitted).

The State counters that "Furda received a fair trial, in accordance with the Constitution's Due Process requirements." It maintains that "[t]he trial court properly required the prosecution to shoulder the burden of proof at trial" and "conducted the trial in an impartial manner."

Moreover, the State argues that the court engaged in typical exchanges with counsel, in which it "articulate[d] its understanding of the law, pose[d] hypothetical, and forthrightly point[ed] out what may be weaknesses in [appellant's] case." But, in its view, the court did not do anything that "would cause a reasonable person to question [its] partiality." In any event, the State argues that appellant's allegation of partiality "is not preserved," because "Furda never lodged an objection to what he now claims is improper conduct."

Appellant responds that "the Defense did object by arguing, at length, and repeatedly, with the Trial Judge over his comments and his remarks." Moreover, appellant asserts that "because the Trial Judge was not asking a question, an objection would have been inappropriate, particularly in a bench trial."

We agree with the State that the issues of bias and lack of partiality are waived. Notably, the judge asked if he could pose a question to appellant, and defense counsel said "let's hear the question." Thereafter, defense counsel never objected to the question that was posed. The judge also asked if he could question defense counsel during closing argument, and defense counsel consented. As the Court has said, "ordinarily the failure to object will only be countenanced in those instances in which the judge exhibits repeated and egregious behavior of partiality, reflective of bias. Failure to object in less pervasive situations may not have the same result, nor will we necessarily intervene." Diggs v. State, 409 Md. 260, 294, 973 A.2d 796 (2009). See also Md. Rule 8-131.

Even if preserved, the contention lacks merit. We explain.

Certainly, "`an impartial and disinterested judge'" is "`fundamental to a defendant's right to a fair trial. . . .'" Diggs, 409 Md. at 287, 973 A.2d 796 (citations omitted). Therefore, "`[i]f a judge's comments during [the proceedings] could cause a reasonable person to question the impartiality of the judge, then the defendant has been deprived of due process and the judge has abused his or her discretion.'" Id. at 289, 973 A.2d 796 (quoting Archer v. State, 383 Md. 329, 357, 859 A.2d 210 (2004) (other citations and quotation marks omitted)). But, there is no blanket rule prohibiting a trial court from questioning witnesses or counsel, particularly at a bench trial. Even in the context of a jury trial, this Court recently stated that it is "well-settled" that a judge has discretion to question witnesses, noting that the "principal justification" for such questioning is "to clarify issues in the case." Smith v. State, 182 Md.App. 444, 480, 957 A.2d 1139 (2008). Nevertheless, trial judges must exercise this discretion sparingly, "lest they compromise their roles as impartial arbitrators in the eyes of the jury." Id. at 482, 957 A.2d 1139.

In Smith, 182 Md.App. at 489, 957 A.2d 1139, this Court noted that there is a "`fine Line between assisting the jury by bringing out facts and "sharpening the issues," which is permissible, and influencing the jury's assessment of facts or of a witness's credibility by indicating his own opinions, which is not permissible.'" (Quoting Leak v. State, 84 Md.App. 353, 363-64, 579 A.2d 788 (1990)). The number of questions asked is not dispositive of the issue. Rather, it is "the degree to which these questions risked influencing the jury" regarding "what appeared to be the trial court's `point of view* with respect to the facts of the case." Id. See also Vandegrift v. State, 237 Md. 305, 311, 206 A.2d 250 (1965) ("The questioning by the trial judge showing his disbelief of the witness'[s] testimony was beyond the line of impartiality over which a judge must not step."). In this case, of course, there was no jury, which weakens appellant's claim.

Diggs, supra, 409 Md. at 260, 973 A.2d 796, also provides guidance. There, the Court of Appeals reversed the convictions of two defendants based on the trial judge's extensive questioning at a jury trial. Id. at 295, 973 A.2d 796. The judge "elicited key elements of the State's case," including "laying the foundation" for one of the charges and "establish[ing] the chain of custody of the drugs after the prosecutor failed to do so." Id. at 293, 973 A.2d 796. The judge also extensively questioned a defense witness in a way that conveyed the judge's disbelief of the testimony, including asking the witness if she was "comfortable with" her testimony. Id. at 266-67, 973 A.2d 796. The Court of Appeals determined that the trial judge "acted as a co-prosecutor" by questioning the witness in a manner that implied a disbelief in the defense, and this partiality and bias denied the defendants their right to a fair and impartial trial. Id. at 293-95, 973 A.2d 796. The Court said: "`A fair jury in jury cases and an impartial judge in all cases are prime prerequisites of due process. It is a maxim that every litigant, including the State in criminal cases, is entitled to nothing less than the cold neutrality of an impartial judge. . . . `" Id. at 288, 973 A.2d 796 (quoting Archer, 383 Md. at 356, 859 A.2d 210 (citation and quotation marks omitted)). See also Jefferson-El v. State, 330 Md. 99, 106, 622 A.2d 737 (1993) (stating that judges'" conduct during a trial has a direct bearing on whether a defendant will receive a fair trial because their opinion or manifestations thereof usually will significantly impact the jury's verdict").

In this case, the judge was the fact finder. There was no jury that could have inferred bias from the judge's discourse with the witnesses and counsel, nor danger that the judge's conduct would "`impact the jury's verdict'" or impinge on the jury's "`province . . . to decide the guilt or innocence of the defendant.'" Diggs, 409 Md. at 289, 973 A.2d 796 (citation omitted). Moreover, there was nothing whatsoever about the court's questions or the colloquy with counsel suggesting bias or partiality. To the contrary, the judge, who was tasked with ascertaining the facts and construing the law, was fully engaged in an attempt to understand the testimony and appellant's position. The colloquy displayed the careful, reflective consideration that the trial process is intended to achieve.

In sum, the transcript reveals a judge who was immersed in a thorough analysis of the issues raised by the parties. His thoughtful questions and his colloquies with counsel demonstrate that he was attempting to understand and resolve the thorny issues presented by this case that he, as the fact finder, had to resolve.

The remaining contentions also lack merit. We explain.

It is well settled that, "`under the Federal Constitution, as well as the law of Maryland, the burden is on the State to prove all elements of the alleged crime and to do so beyond a reasonable doubt[.]'" Bennett v. State, 283 Md. 619, 625, 392 A.2d 76 (1978) (citation omitted). As the Court said in Montgomery v. State, 292 Md. 84, 91, 437 A.2d 654 (1981): "There are certain bedrock characteristics which distinguish our system from most others throughout the world and which are indispensable to the integrity of every criminal trial . . ., [one of which is that] [t]he State has the burden to produce evidence of each element of the crime establishing the defendant's guilt." Thus, it is unconstitutional to "`impose[] upon a defendant a burden of proving, by any standard, his innocence as to any element of a crime. . . .'" Bennett, 283 Md. at 624, 392 A.2d 76 (citation omitted).

Appellant argues that it was the duty of the prosecution "to produce a witness to testify that comments could be added and explanations could be attached to the form, but the Trial Court held it against the Defense for not providing a witness to say `comments cannot be made on and items cannot be attached to the form.'" Pointing to Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), appellant avers that "[t]he Supreme Court is very clear that this simply is not the correct allocation of the burdens; simply because the Defense has the ability to subpoena witnesses does not require them to put on the Government's case."

It was readily apparent that the Application did not have a comments section. As the State aptly points out, "[t]he judge's observations that Furda could have attached explanatory material . . . did not shift the burden of proof." Rather, the court "was simply commenting on the evidence that was in the record, and the inferences that could be drawn from it," but "these comments do not show that the judge shifted the burden of proof."

Appellant's reliance on Melendez-Diaz is also misplaced. In that case, the trial court admitted into evidence affidavits that "report[ed] the results of forensic analysis which showed that material seized by the police and connected to the defendant was cocaine." 129 S.Ct. at 2530. On appeal, the defendant argued that the affidavits of the analysts were testimonial, and thus were subject to the defense's Sixth Amendment right of confrontation. Id. Because the analysts were not called as witnesses by the prosecution, the defendant insisted that the admission of the affidavits violated the Confrontation Clause. Id. at 2531. The Commonwealth countered that there was no Confrontation Clause violation because the defendant could have subpoenaed the analysts. Id. at 2540. The Court rejected that argument, noting that the subpoena power "is no substitute for the right of confrontation. Unlike the Confrontation Clause, those provisions are of no use to the defendant when the witness is unavailable or simply refuses to appear." Id.

Here, in contrast to Melendez-Diaz, the State made no attempt to introduce affidavits in lieu of witnesses. Moreover, the trial court did not put the onus on appellant to present the gun shop owner as a witness.

In addition, the State met its burden of proof by offering the Application, which stated that a "physician's certificate" could be attached to it, thereby providing sufficient evidence from which the trier of fact could infer that other documents or explanations could have been attached. Furda was not convicted of committing perjury or making a false statement because he did not provide an explanation; rather, he was convicted under C.L. § 9-101 and P.S. § 5-139(a) for knowingly, willingly, and falsely answering "No" to Question 8.

IV.

Appellant complains that the court "improperly denied a defense request to take Judicial Notice of records which were already part of the case-file." He insists that the Potomac Ridge records "were critical . . . because they clearly showed that Mr. Furda was only `evaluated' [and] that he never was `admitted' nor `committed,'; and, that no hearing was ever held"

The State counters: "The trial court properly exercised its discretion not to consider Furda's medical records," because "Furda did not make arrangements for the records, or copies of the records, to be available on the day of trial." It notes that the medical records "had been subpoenaed and placed under seal" in the Protective Order Case, and "Furda had received a copy of these records in open court during the hearing on his petition to recover firearms." The State also argues that any error was harmless, because "Furda's testimony about his hospitalization . . . which the judge appeared to credit, was substantially consistent with the medical records."

Maryland Rule 5-201 is captioned "Judicial notice of adjudicative facts." Md. Rule 5-201(d) states: "A court shall take judicial notice if requested by a party and supplied with the necessary information."

In Lerner v. Lerner Corp., 132 Md.App. 32, 750 A.2d 709, cert. denied, 360 Md. 275, 757 A.2d 810 (2000), Lerner filed a motion asking this Court to "take judicial notice of Lerner Corporation's offer to sell stock" and an "order" and "notice of judgment" entered by the circuit court in a prior proceeding among the parties, so that "this Court [would have] a full chronology of the dispute among the parties." Id. at 40, 750 A.2d 709. The Court granted the motion as to the order and notice of judgment, but refused to take judicial notice of the offer to sell stock because it was "not a part of the record, and its accuracy is subject to reasonable dispute and cannot be as readily and accurately ascertained." Id. at 41, 750 A.2d 709. We explained, id. at 40-41, 750 A.2d 709:

The doctrine of judicial notice substitutes for formal proof of a fact "when formal proof is clearly unnecessary to enhance the accuracy of the fact-finding process." Smith v. Hearst Corp., 48 Md.App. 135, 136, 426 A.2d 1 (1981). A court may judicially note facts that readily can be determined by examination of a source whose accuracy cannot be reasonably questioned. Md. Rule 5-201 (b). Included among the categories of things of which judicial notice may be taken are "facts relating to the . . . records of the court." Smith, 48 Md.App. at 136 n. 1, 426 A.2d 1. In McCormick's treatise on evidence, it is said to be "settled, of course, that the courts, trial and appellate, take notice of their own respective records in the present litigation, both as to the matters occurring in the immediate trial, and in previous trials or hearings." McCormick on Evidence § 330, at 766 (2d ed. 1972), quoted with approval in Irby v. State, 66 Md.App. 580, 586, 505 A.2d 552 (1986), cert. denied, 308 Md. 270, 518 A.2d 732 (1987).

Appellant did not offer the records. The judge's decision not to take judicial notice of the medical records does not establish that the court would have barred their admission in evidence, had appellant offered them. Even assuming, arguendo, that the Potomac Ridge records were the proper subject of judicial notice, they were not pertinent to the disposition of the Perjury Case. This is because the court was not assessing the merits of Judge Harrington's Order; that is the subject of a separate appeal.

V.

Appellant contends that the court committed "reversible error" when it denied his Motion for New Trial under Md. Rule 4-331. We pause to review additional facts.

Rule 4-331. Motions for new trial.

(a) Within ten days of verdict. On motion of the defendant filed within ten days after a verdict, the court, in the interest of justice, may order a new trial.

(b) Revisory power. The court has revisory power and control over the judgment to set aside an unjust or improper verdict and grant a new trial:

* * *

(2) in the circuit courts, on motion filed within 90 days after its imposition of sentence. . . .

(c) Newly discovered evidence. The court may grant a new trial or other appropriate relief on the ground of newly discovered evidence which could not have been discovered by due diligence in time to move for a new trial pursuant to section (a) of this Rule:

(1) on motion filed within one year after the date the court imposed sentence or the date it received a mandate issued by the Court of Appeals or the Court of Special Appeals, whichever is later. . . .

Appellant filed a Motion for New Trial on September 2, 2008, pursuant to Md. Rule 4-331(a). He complained that the State "did not produce any independent evidence other than the Court Order to demonstrate that Mr. Furda had been committed under the Federal, State, and County definitions of `commitment.'" Further, he argued that the court could not rely on the Order of November 7, 2007, as it was "the result of a civil motion hearing," for which there was "the total absence of live testimony, no ability to cross examine, and a lower standard of proof. . . ."

Furda also insisted that the emergency evaluation was not a commitment. In addition, he contended that State law preempted Montgomery County Code § 57-9(d) (2004), pertaining to the regulation of firearms, and thus the court erred in convicting him under County law. Further, appellant maintained that, at the time he applied to purchase a firearm, he and his counsel were unaware that his motion for reconsideration had been denied.

Appellant attached the Potomac Ridge records to his Motion for New Trial. The documents included a Notice of Hearing, which stated that appellant's "involuntary admission [was] being sought because [he] present[ed] a danger to the life or safety of the individual or of others." In addition, appellant attached the "Continuing Care/Discharge Planning form, which indicated that appellant was admitted on February 28, 2003, and released on March 4, 2003. It provided: "SPECIAL INSTRUCTIONS: No Access to substances or firearms. "Furda also attached a Discharge Summary, signed by attending physician Joseph Marnell, M.D. on March 13, 2003, which indicated that appellant was discharged on March 4, 2003, with diagnoses of "Psychosis, NOS [i.e., not otherwise specified], probably druginduced," and "Amphetamine Dependency." It also provided that appellant was "evaluated and involuntarily committed" at Potomac Ridge. Dr. Marnell elaborated:

The patient refused to sign in on a voluntary basis. I was confronted with the dilemma of whether to try to pursue an involuntary commitment against him as the hearing was to occur on the day of discharge. . . . I have no grounds for detaining the patient at this time. There is no evidence of psychosis, confusion or withdrawal. . . . I emphasize the patient is completely responsible for his actions.

The State opposed appellant's motion, contending that, for purposes of purchasing firearms, appellant was a "prohibited person" under federal law. According to the State, the records appellant attached were the same records that the trial court declined to judicially notice. Moreover, the State argued that the records were not the proper subject of Md. Rule 4-331(c), because appellant had possession of copies and could have offered them at trial.

On October 14, 2008, appellant filed a Supplement to Motion for New Trial, noting that his Motion for New Trial was filed pursuant to Md. Rule 4-331(a), and stating that if the Supplement did not fall within the deadline of Md. Rule 4-331(a), it should be considered as a motion pursuant to Md. Rule 4-331(b). Furda pointed to his testimony that "he attempted to attach the Motion for Reconsideration to his application," but he was unable to attach documents "to this application to explain his situation," because the gun shop owner, Gilbert, said that attaching documents "is simply not done." Appellant attached to the Supplement an affidavit from Gilbert to the same effect.

At a motion hearing on October 14, 2008, defense counsel argued that, "in the interest of justice," the court had "enough leeway" under Md. Rule 4-331 (a) to consider the additional evidence. Nevertheless, he said: "I'll have to concede that this evidence did exist at the time, because it had been brought out in the underlying case. And it did not come into evidence in the case that is distinctly before Your Honor."

The court indicated that, under Md. Rule 4-331(a), a trial court could not consider new evidence. It observed that defense counsel asked "very generally" for the court "to sort of take judicial notice of court records"; the documents were not "marked and tendered into evidence. . . ." Nonetheless, the court considered the documents, observing that the attending physician who discharged appellant from Potomac Ridge said that Furda's "final diagnosis" was "psychosis" and "his final medication [was] Ziprexa." Moreover, the discharge papers indicated "no guns. . . ."

Further, the court considered that "Congress . . . did not provide a definition" for "commitment to a mental institution," but noted that "regulations in 27 C.F.R." provide that "the term does not include a person in a mental institution for observation or a voluntary admission to a mental institution." The court determined that Potomac Ridge's "only authority to keep [Furda] against his will is [H.G. §] 10-625[(a)][]. So at least implicitly that's what they did." The court observed, however, that the word "commitment" does not appear in H.G. § 10-625. It reasoned that the word is "too harsh," and the Legislature used "`admission' because . . . it feels better. It's the same damn thing, to be blunt." The court concluded: "It's an emergency involuntary commitment."

§ 10-625. Emergency involuntary admission

(a) Placement. — If an emergency evaluee meets the requirements for an involuntary admission and is unable or unwilling to agree to a voluntary admission under this subtitle, the examining physician shall take the steps needed for involuntary admission of the emergency evaluee to an appropriate facility, which may be a general hospital with a licensed inpatient psychiatric unit.

The court also determined that Gilbert's affidavit did not constitute "newly discovered evidence[.]" Defense counsel conceded that he did not subpoena Mr. Gilbert, and the court noted that "Mr. Gilbert was not either at trial or here today for cross-examination by the State."

In denying the motion, the court said: "[T]he documents in issue do not qualify as newly discovered evidence. . . . Here, every single thing I've been shown existed at the time of trial. So this case does not get the benefit of that exception to the rule." Further, the court ruled:

One simply cannot knowingly, voluntarily, and intentionally disregard the order of a Circuit court judge and the clear import of that order, when signing a document under the penalties of perjury, when what you say in the document is flatly opposite of what the Judge said — you can do it, but not with impunity.

On appeal, appellant insists that the court abused its discretion by refusing to grant a new trial to consider the Potomac Ridge Records and Gilbert's affidavit. He posits that, "when dealing with a criminal case, `a Trial Judge's discretion to deny a Motion for New Trial is much more limited than under other circumstances.'" In his view, "a Trial Judge `has virtually no discretion to refuse to consider newly discovered evidence that bears directly on the question of whether a new trial should be granted'" or that "`clearly indicates that the jury has been mislead [sic].'" (Citations omitted.)

The State observes that this Court generally reviews such denials only "`under the most extraordinary or compelling of circumstances.'" In the State's view, the circumstances here are "remarkable only because they could so easily have been avoided." (Citation omitted.) In particular, the State points out that "Furda conceded that the medical evidence [was] not newly discovered" and that "Gilbert had not been subpoenaed."

It is well settled that a trial court's denial of a motion for new trial is generally subject to review for abuse of discretion. See, e.g., Campbell v. State, 373 Md. 637, 665, 821 A.2d 1 (2003). In some instances, however, an appellate court reviews for error the denial of a motion for a new trial. See Merritt v. State, 367 Md. 17, 30-31, 785 A.2d 756 (2001). In our view, the circuit court did not err or abuse its discretion in denying appellant's new trial motion Trial. The Potomac Ridge records and Gilbert's affidavit did not constitute "newly discovered evidence" because Furda knew of Gilbert and the Potomac Ridge records at the time of trial. See Md. Rule 4-331(c); Ramirez v. State, 178 Md.App. 257, 282, 941 A.2d 1141 (2008), cert. denied, 410 Md. 561, 979 A.2d 708 (2009). The Motion for New Trial is not a vehicle to obtain the proverbial "second bite at the apple."

According to the State, it had provided appellant with copies of the records. In any event, during the hearing on Furda's Motion for New Trial, the court reviewed the medical records that Furda attached to his motion. Evidently, it was not persuaded that the records would have changed the outcome had they been introduced during the trial.

JUDGMENT AFFIRMED. APPELLANT TO PAY COSTS.

Dissenting Opinion by MEREDITH, J.