E-FILED

Court of Special Appeals

Gregory Hilton
10/12/2021 2:31 PM

IN THE
COURT OF SPECIAL APPEALS OF MARYLAND
_______________________

SEPTEMBER TERM, 2020

_______________________

No. 1318
_______________________

SEAN URBANSKI,

Appellant
v.

STATE OF MARYLAND

Appellee
_______________________

APPEAL FROM THE CIRCUIT COURT

FOR PRINCE GEORGE’S COUNTY

(THE HONORABLE LAWRENCE V. HILL, JR., PRESIDING)

_______________________

OPENING BRIEF AND APPENDIX OF APPELLANT

_______________________

MICHAEL E. LAWLOR
GWENDOLYN R. WATERS
JOHN M. MCKENNA
WILLIAM C. BRENNAN
Brennan, McKenna & Lawlor, Chtd.
6305 Ivy Lane, Suite 700
Greenbelt, MD 20770
(301) 474-0044 phone
(301) 474-5730 fax
mlawlor@brennanmckenna.com

Counsel for Appellant

 TABLE OF CONTENTS
TABLE OF AUTHORITIES .............................................................................................. ii
STATEMENT OF THE CASE .......................................................................................... 1
QUESTIONS PRESENTED .............................................................................................. 2
I. Whether the trial court erred in admitting racially offensive material found
on Appellant’s phone in violation of the First Amendment, the Constitutional
guarantee of due process and contrary to the Maryland Rules of Evidence,
absent any nexus between the racially offensive material on the phone and
the crime. ...................................................................................................... 2
II. Whether the trial court erred in failing to declare a mistrial after granting a
judgment of acquittal on Count Two............................................................. 2
STATEMENT OF FACTS ................................................................................................. 2
ARGUMENT .................................................................................................................... 13
I. The Trial Court Erred in Admitting Material From Appellant’s Phone Absent
Any Link Between The Racially Offensive Memes and the Murder Charged
in Count One. ............................................................................................. 13
A. The Admission of Racially Offensive Material From Appellant’s
Phone Violated the First and Fourteenth Amendments. ................. 14
B. The Trial Court Erred in Admitting the First Amendment Protected
Speech from Appellant’s Phone Under the Rules of Evidence. ..... 21
1. The Phone Evidence Was Not Relevant. ............................. 22
2. The Phone Evidence Should Have Been Excluded Under
Maryland Rule of Evidence 5-403. ...................................... 24
3. The Phone Evidence Should Have Been Excluded Under
Maryland Rule of Evidence 5-404(b). ................................. 25
II. The Trial Court Erred in Refusing to Declare a Mistrial After Granting the
Renewed Motion for Judgment of Acquittal as to Count Two. ................. 31
CONCLUSION ................................................................................................................. 33
REQUEST FOR ORAL ARGUMENT ............................................................................ 34
PERTINENT .................................................................................................................... 35
CERTIFICATION OF WORD COUNT AND COMPLIANCE ..................................... 38

i
CERTIFICATE OF SERVICE ......................................................................................... 39

TABLE OF AUTHORITIES

CASES
Ayres v. State, 335 Md. 602 (1994) ........................................................................... passim
Carter v. State, 366 Md. 574 (2001) ................................................................................ 32
Dorsey v. State, 276 Md. 638 (1976) ................................................................................ 20
Eanes v. State, 318 Md. 436 (1990) ........................................................................... 15, 16
Ford v. State, 462 Md. 3 (2018) ....................................................................................... 22
Frisby v. Schultz, 487 U.S. 474 (1988) ............................................................................. 16
Fuentes v. State, 454 Md. 296 (2017) .............................................................................. 22
Hannah v. State, 420 Md. 339 (2011) ....................................................................... passim
Montague v. State, 471 Md. 657 (2020) ................................................................... passim
Ross v. State, 276 Md. 664 (1976) .................................................................................... 26
Simmons v. State, 436 Md. 202 (2013) ............................................................................. 32
Stabb v. State, 423 Md. 454 (2011) .................................................................................. 32
State v. Cates, 417 Md. 678 (2011) .................................................................................. 14
State v. Heath, 464 Md. 445 (2019) ................................................................................. 24
State v. Faulkner, 314 Md. 630 (1989) ...................................................................... 26, 29
Straughn v. State, 297 Md. 329 (1983) ............................................................................ 26
Streater v. State, 352 Md. 800 (1999) .............................................................................. 27
Vigna v. State, 470 Md. 418 (2020) .................................................................................. 14
Whitney v. California, 274 U.S. 357 (1927) ..................................................................... 15

ii
CONSTITUTIONAL PROVISIONS
United States Constitution, First Amendment ............................................................ 15, 35
United States Constitution, Fourteenth Amendment .................................................. 15, 35
Maryland Declaration of Rights, Article Ten ............................................................. 16, 35
STATUTES
Maryland Criminal Law § 2-201 ......................................................................................... 1
Maryland Criminal Law § 10-304 ........................................................................... 1, 15, 36
RULES
Maryland Rule of Evidence 5-104 ................................................................................... 19
Maryland Rule of Evidence 5-401 ............................................................................. 22, 36
Maryland Rule of Evidence 5-402 ............................................................................. 24, 36
Maryland Rule of Evidence 5-403 ............................................................................. 24, 36
Maryland Rule of Evidence 5-404(a) ............................................................................... 21
Maryland Rule of Evidence 5-404(b) ........................................................................ passim
OTHER AUTHORITIES
Brief of Amicus Curiae ACLU, Ayres v. State, 335 Md. 602 (1994) .............................. 16
LYNN MCLAIN, MARYLAND EVIDENCE § 404.5, at 354 (1987) ........................... 28
L. Tribe, American Constitutional Law § 12-1 at 785 (2d ed. 1988) ............................... 15

iii
 IN THE
COURT OF SPECIAL APPEALS OF MARYLAND
_______________________

SEPTEMBER TERM, 2020

_______________________

No. 1318
_______________________

SEAN URBANSKI,

Appellant
v.

STATE OF MARYLAND

Appellee
_______________________

APPEAL FROM THE CIRCUIT COURT

FOR PRINCE GEORGE’S COUNTY

(THE HONORABLE LAWRENCE V. HILL, JR., PRESIDING)

_______________________

APPELLANT’S OPENING BRIEF

_______________________
 STATEMENT OF THE CASE

On October 17, 2017, a grand jury issued an indictment charging Sean

Urbanski (hereafter “Mr. Urbanski” or “Appellant”) with (Count One) first-degree

murder in violation of Criminal Law, Section 2-201; and (Count Two) a violation

of Criminal Law, Section 10-304 – a hate crime.1

On June 5, 2019, a hearing was held on Appellant’s Motion to Dismiss—

First Amendment; Motion to Sever Counts and Motion to Preclude Evidence. The

trial court denied all three motions. The matter proceeded to trial (the Honorable

Lawrence V. Hill, Jr. presiding) between December 9, 2019, and December 18,

2019. On December 17, 2019, the trial court granted the defense Motion for

Judgment of Acquittal as to Count Two charging the hate crime. On December 18,

2019, a jury, found Appellant guilty of Count One – first-degree murder. On

January 14, 2021, the court sentenced Appellant to life imprisonment with the

possibility of parole. Appellant filed a timely notice of appeal on January 15, 2021.

1 Crimes set forth at Criminal Law, Section 10-301, et seq., are called
“hate crimes” within the statute and colloquially. For ease of reference to the crime
charged in Count Two, it is referred to in this Brief as the “hate crime.”
1
 QUESTIONS PRESENTED

I. Whether the trial court erred in admitting racially offensive material found

on Appellant’s phone in violation of the First Amendment, the Constitutional

guarantee of due process and contrary to the Maryland Rules of Evidence, absent

any nexus between the racially offensive material on the phone and the crime.

II. Whether the trial court erred in failing to declare a mistrial after granting a

judgment of acquittal on Count Two.

STATEMENT OF FACTS

Appellant was tried as a racist. Law enforcement obtained from his phone a

number of racially and ethnically offensive memes2, as well as an association with

a Facebook group called Alt-Reich Nation. These memes3 were not a manifesto of

Appellant, they had not been authored by Appellant, nor was any evidence presented

that Appellant disseminated the memes. The State produced no evidence that

Appellant ever made racist statements, or held racist views. Rather, the State

maintained that because Appellant had racist memes on his phone, and because he

assaulted a Black man, it followed that he had a racist motive and intent on the night

2 There was no attempt to define “meme” at the trial. According to

Merriam-Webster, a “meme” is “an amusing or interesting picture, video, etc., that
is spread widely through the internet.” The specific memes at issue are part of the
record as admitted State’s Exhibits 67 through 72; the Facebook page screenshot is
State’s Exhibit 65. They are also reproduced in the Appendix.
3
Throughout this brief, when “memes” or phone materials are
referenced, a reference to both the memes and the Facebook group Alt-Reich Nation
is intended.
2
of this crime and acted with that motivation. The State could not show any nexus

between the memes and the stabbing of the victim in this case as is required by the

hate crime statute. There was nothing contemporaneous with the stabbing to indicate

that Appellant was racially motived to commit this crime. Without a nexus, the

memes were admitted in violation of the First Amendment as protected speech.

Nevertheless, the trial court admitted these memes as other acts evidence under Rule

of Evidence 5-404(b). However, the court failed to conduct the proper analysis for

admission under Rule 5-404(b). It was only at the close of evidence that the trial

court decided the State had failed to show a nexus between the stabbing and the

memes. It was, by then, too late. The memes had already been presented to the jury.

Over and over again, throughout the trial, the State demonized Appellant as a racist

suggesting that he was motivated by hate, despite the lack of evidence to support

this claim. The trial court’s admission of the memes allowed the State to shift its

burden to prove beyond a reasonable doubt that Appellant killed the victim with

premeditation, willfulness and deliberateness, in violation of due process. When the

trial court granted the defense motion for judgment of acquittal on the hate crime

count – there was only one remedy for a trial so infected with questions of race that

should never have been introduced – to declare a mistrial. The trial court, however,

failed to do so.

3
 Appellant was charged with first-degree murder and a hate crime for causing

the death of Second Lt. Richard Collins, III4 on the campus of the University of

Maryland in the early morning hours of May 20, 2019. The first indictment issued

charged Appellant with first-degree murder. 5 A superseding indictment charged

Appellant with both first-degree murder (Count One) and a hate crime (Count Two).

On June 5, 2019, a hearing was held to dispose of the following motions filed by

Appellant: (1) Motion to Sever Counts; (2) Motion in Limine to Exclude Evidence;

and (3) Motion to Dismiss Count Two as Violative of the First Amendment. The

State proffered admission of a finite number of racially-charged and offensive

memes stored on Appellant’s cellular phone, and Appellant’s inclusion in a

Facebook group titled “Alt-Reich Nation,” as evidence that the killing of Lt. Collins

was racially motivated. Appellant argued that simply having this information stored

in his phone, without any evidence of when that information was last accessed, and

without any evidence of racial bias at the time of incident (or ever, for that matter)

did not satisfy the nexus requirement between the memes and the criminal offense.

T. 6/5/19 at 4.6 Appellant argued below that generalized evidence of a defendant’s

possession of racially insensitive memes is not sufficient or admissible and that

4
The victim in matter will be referred to as either “the victim” or “Lt.
Collins.”
5
The original indictment was entered nolle prosequi.
6 References to the transcript in this matter are as follows: references
to the motions hearing and trial transcripts are denoted, “T.” followed by the date
and applicable pagination. Other pertinent material from the record is reproduced in
the Appendix and denoted, “App.” followed by the applicable pagination.
4
there must be a tight nexus between the speech and the conduct. Id. at 6. Appellant

argued that without a tight nexus to the crime, the speech is protected by the First

Amendment. Id. at 10.

In refusing to sever Count One from Count Two, the trial court found that

the State established a causal connection and it would be for the jury to determine

whether there existed a close nexus between the murder charge and the proffered

motive of racial bias. T. 6/5/19 at 59. The State was therefore permitted to and did

introduce thirteen racially offensive memes to prove to the jury that Appellant was

a racist and must have stabbed the victim based on his race because of the memes

found on his phone.

Sean Urbanski killed Second Lt. Richard Collins – that fact was never at

issue. Much of the evidence in this case was uncontested; the stabbing was captured

on nearby surveillance video and was seen by two eyewitnesses. The defense never

suggested that Appellant was not the perpetrator. After the court ruled the memes

admissible, the issue at trial became whether Appellant killed the victim because of

racial bias notwithstanding legitimate questions about whether the stabbing was

premeditated, willful and deliberate. The evidence on which the State based its

theory of racial motivation were memes stored on Appellant’s phone. A continuing

objection was granted with regard to the memes, “the court found that the memes

are relevant and not prejudicial.” T. 12/11/19 at 11.

5
 “He poisoned his mind, he fueled his courage, he took his life. That’s what

the defendant did on May 20th.” T. 12/11/19 at 17. From the first words in its

opening statement, the State portrayed Appellant as a racist to the jury.

He walked up to him after targeting him, viewing him, he walked up

to him, confronted him for no reason other than him being a black
man, a black man on the campus of the University of Maryland. He
was the only black man at that bus stop at that time. He bypassed the
white man that Lieutenant Collings was speaking with. He bypassed
the Asian woman that Lieutenant Collins was speaking with. The
defendant walked up to Lieutenant Richard Collins III, stabbed him
in his chest killing him outside of a bus stop on the campus.

T. 12/11/19 at 17-18. The State would repeatedly refer to the material on Appellant’s

phone as the poison in his mind. “[Appellant] was out drinking, but they didn’t know

that his mind was poisoned.” Id. at 19.

Back in 2016 his mind began to get poisoned with images of hate,
racism, violence towards blacks, hatred of groups of people that don’t
look like him. His mind was being poisoned with these images that he
was saving into his phone, that he was keeping among other images
that people keep in their phone . . . . Amongst things he was keeping
images of hatred, violence, and degradation of other groups that are
not like his.

Id. at 20. The State continued, “[t]his hatred that is in his mind is building up. Now

he is drinking to the point where he is ready to act on that hatred.” Id. After

describing the charge of first-degree murder, the State told the jury,

He is also charged with committing a hate crime resulting in death.

Committing this crime against Lieutenant Collins because he was
black. You will see the images that he stored on his phone. The
images that depict black people, that depict other people that aren’t
the same race as him, that depict them in a demeaning way, that
advocate violence towards them. Images like this that the smile you
get when you place a nigger in a wood-chipper. Back to the day when
the games used to really have a plot, when the game was called hit the

6
 nigger. Images along those lines. . . . These images are acceptable to
him. These images are in his phone, in his mind every day. It’s
poisoned. It’s poisoned.

Id. at 25-26.

The first officer on scene, Greenbelt Officer Michael Thomas, arrived to find

the victim lying on his back suffering from a stab wound to the chest and

unresponsive to questioning at approximately 3:04 a.m. T. 12/11/19 at 45. Officer

Thomas identified persons depicted on the surveillance footage, including

Appellant, the victim and two eyewitnesses. Id. at 51. Officer Thomas first noticed

Appellant sitting at the bus stop as the victim was loaded into an ambulance. Id. 57.

Cpl. Garfield Kelly of the University of Maryland Police described how officers

interviewed many people, of varying ethnicities, who had encountered Appellant

that evening, including Ashkay Lingayat who was the last person to speak to

Appellant before the stabbing. Id. at 95. Appellant was arrested at the bus stop where

the stabbing occurred and just 20 feet from where Lt. Collins fell. Id. at 100. On

Appellant’s person was a pocketknife with the blood of the victim. Id.

Blake Bender had been out with the victim at local bars near the University

of Maryland prior to ending up at the bus stop on Regency Drive. T. 12/16/19 at 13.

Mr. Bender and Lt. Collins began speaking with Amanda Lee at the bus stop. Id.

After realizing that the buses were no longer running, the three continued to wait at

the stop together for an Uber. Id. At some point, Mr. Bender recalled hearing

screaming coming from the wood line – it was nonsensical, but angry screaming.

Id. at 16. Appellant, alone, approached the three at the bus stop from uphill on the

7
sidewalk. Id. Appellant said “step left” three times. After the third time, Lt. Collins

said, “no,” after which he was stabbed once in the chest. T. 12/16/19 at 16. Mr.

Bender identified Appellant as the one who stabbed Lt. Collins. Id. at 20. Neither

Mr. Bender nor Ms. Lee could tell to whom Appellant was speaking, if anyone.

Amanda Lee also heard a male voice angrily yelling for two to three minutes while

she waited at the bus stop. Id. 96. Ms. Lee noticed Appellant standing at the tree

line – he yelled “step left, step left, if you know what’s good for you,” id. 98,

although he may have said “move left, if you know where you are,” as a previous

statement given by Ms. Lee indicated. Id. at 106. Neither Ms. Lee nor Mr. Bender

said anything to Appellant, but the victim said, “no.” Ms. Lee saw Appellant swing

out and stab Lt. Collins in the chest once. Id. at 98. Appellant did not say anything

else. T. 12/16/19 at 108.

Appellant was taken into custody without incident. Authorities requested that

he submit to a blood test for alcohol and/or drugs and Appellant agreed. Id. at 103.

Also at the police station, Appellant willingly surrendered his cell phone and

consented to its search. Id. Through Detective Kelly, the State presented the memes

from Appellant’s phone to the jury. See App. 1-7.

Among the data saved on Appellant’s cellular phone were the thirteen

racially offensive memes described above that were ultimately admitted and

produced for the jury. Michael Waski, a Federal Bureau of Investigation forensic

examiner was admitted as an expert in computer forensics. Id. at 54. Mr. Waski

testified that there were approximately 17,000 images on Appellant’s phone – 4,000

8
of those images were stored in the digital camera image folder (DCIM). Id. Images

stored in the DCIM folder were saved there either by the phone’s camera action (i.e.

taking a photo) or were manually saved by someone using the phone. Mr. Waski

could not say when the images were last accessed or even if an image had been

accessed after it was saved to the phone. T. 12/16/19 at 65. Another crime analyst

testified that a screenshot of Appellant’s Facebook page from the date of the

stabbing, listed Appellant as a member of the group “Alt-Reich Nation.” Id. at 38.

Importantly, despite investigators having interviewed numerous people who knew

and/or saw Appellant the night of the stabbing, the State did not present any

evidence, testimonial or otherwise, that Appellant was actually a racist, had

expressed a racist view, or had ever voiced racist opinions. State’s witness, Nicolas

Clampitt was permitted to testify that he was also a member of the Alt Reich Nation

Facebook group and that the memes entered into evidence are consistent with the

materials posted on that Facebook page. T. 12/16/19 at 85; 90.

In requesting a judgment of acquittal, Appellant argued that due to the

evidence of intoxication, Appellant could not have premeditated or deliberated prior

to the stabbing as required for first-degree murder. Id. at 132. As for the hate crime

count, Appellant argued that nothing racially motivated had been said or done at the

time of the stabbing. It was just as likely that Appellant stabbed Lt. Collins, and not

Mr. Bender or Ms. Lee since Lt. Collins was the only person who replied to

Appellant and was closest to Appellant. Id. The only evidence of a racial motive

9
were the memes, but they could not be connected in time to the stabbing. Id. at 132.

In denying the motion for judgment of acquittal, the trial court stated,

All right, in this case there is evidence that the defendant had on his
phone manually, took manual action to save these memes. I think it
would be fair to call these memes racist. The memes in question are
of [sic] particularly addressed to black people. Clearly the defendant
is white. We have the death of Lieutenant Collins. The question is
are these two related.

At this juncture the State has rested and the court takes the evidence
in the light most favorable to the State. So with that regard I will deny
the defense motion with regard to the hate crime. I will also deny it
with regard to the murder.

T. 12/16/19 at 136.

Appellant called several witnesses in his defense. Akshay Lingayat had

known Appellant throughout their time at the University of Maryland. On May 20,

2017, at approximately 2:00 a.m., Mr. Lingayat was leaving the bars in College Park

when he saw Appellant punching an electrical light post. Id. 138. Appellant’s

behavior was not normal for him, he seemed mentally “checked out.” Id. Mr.

Lingayat testified that although the two were having a conversation, Appellant

responded to questions with random thoughts – he was stressed out, annoyed and

upset. Id. Mr. Lingayat believed Appellant had been drinking since he was acting

“completely out of it.” Id. at 143. Mr. Lingayat walked Appellant to the bus stop

and waited with him there for five minutes or so since Appellant was intoxicated.

Appellant did not make threatening comments to anyone. Mr. Lingayat departed the

area of the bus stop prior to Lt. Collins’ arrival.

10
 Dr. Nick Lappas was admitted as an expert in pharmaceutical chemistry. T.

12/17/19 at 32. Using the results from the bloodwork drawn from Appellant at

approximately 11:00a.m. on May 20, 2017, Dr. Lappas testified that Appellant’s

blood alcohol concentration at the time of the stabbing would have been between

.17 and .24. Video footage from the cell at the police station wherein Appellant was

held on May 20, 2017, was played for the jury. The footage captured approximately

45 minutes between 4:00a.m. and 5:00a.m. and depicted Appellant singing to

himself and urinating in a drain. Id. at 30. Finally, Dr. Brian Zimnitsky, a clinical

and forensic psychiatrist, testified as an expert to the effects that alcohol intoxication

has on the human body, interfering with decision-making, speech and motor skills.

T. 12/17/19 at 78. The defense then rested its case. T. 12/18/19 at 5. “In this case

the court doesn’t believe that the State has met their burden with regard to the hate

crime charged and, therefore, I will grant the defense motion for a judgment of

acquittal for that charge only.” T. 12/17/19 96-97.

Appellant next moved for a mistrial based on the court’s ruling on the hate

crime count arguing that under the evidentiary rules, the race evidence in this case

would have been inadmissible had the hate crime not been charged and now that the

hate crime count no longer remained, the evidence was inadmissible and extremely

prejudicial. T. 12/18/19 at 5-6. The trial court declined to declare a mistrial, “I

believe I indicated that I believe race still could’ve been a factor in it based upon

those memes, both the Altreich website, that it could’ve been a factor and that the

actions he took. So I believe it’s still relevant to a murder charge as far as a possible

11
motive.” T. 12/18/19 at 7. A motion to strike and a request for the instruction to

disregard the Court’s ruling were also denied. Id. at 8. The court continued but

conflated motive and intent,

I do believe it’s fair for the State to argue that those views affected the
actions he took that day and I don’t believe the prejudice outweighs
the probative value in this case and as well I don’t believe it fits within
the other crimes. I mean, again, it goes to the intent in this matter.
Id.

The State’s closing argument was almost exclusively about race. “So

throughout [] last week, you’ve heard evidence of that poisoning of his mind, the

fueling of his courage and how he, in fact, took Richard Collins, III’s life that night.

And there is no contest that he took his life in front of eyewitnesses.” T. 12/18/19 at

49-50.

All the while in the shadows of his mind, he demonized blacks by

poisoning his mind with the propaganda and the memes that he was
viewing, keeping, participating in groups, demonized them and made
them less than himself, which made it an easy task to just drive that
knife in that young man’s chest, because he saw him less than himself.
Memes like hit the N word, baby. A carnival game. Remember back
when games used to have a great plot. Memes, cartoons that use the
N word repeatedly. Memes that talked about or used Trayvon Martin
and Michael Brown as guinea pigs. . . . He poisoned his mind with
white supremacist propaganda. Nazi-style propaganda. He was a
member of a the Altreich Nation, known to be a white supremacist
organization. Not only was he a member of it [himself], one of his
childhood friends was a member of it, a friend that he worked with as
well. So as he approached Lieutenant Collins, he doesn’t just come
alone. He comes with the poison that is in his mind that he had done
over time and dehumanizing a black man, making him less than he is
himself, and he plunged that knife three-and-a-half inches into his
chest. . . .

12
 He knew what he was doing. He poisoned his mind and he
acted on that poison that night. He acted on that hate and that
dehumanization of another race because they were not his.

T. 12/18/19 59-61.

During rebuttal, the State once again focused on race. “What you have is near

and dear to you. Right there with pictures of family and friends, a racially-charged

hate, desensitizing, dehumanizing another person because of the color of their skin.

And we have that window into the mind.” Id. at 88.

There’s a really good quote by Ghandi, and it says, your beliefs

become your thoughts. Your thoughts become your words. Your
words become your actions. Your actions become your habits. Your
habits become your values, and your values become your destiny. He
poisoned his mind. He drank his courage and he took Lieutenant
Collin’s life on May 20, 2017. And his destiny is guilty of first-degree
murder.

Id. at 97.

On December 19, 2019, the jury found Appellant guilty of first-degree

murder. On January 14, 2021, Appellant was sentenced to life imprisonment with

the possibility of parole.

ARGUMENT

I. THE TRIAL COURT ERRED IN ADMITTING MATERIAL FROM

APPELLANT’S PHONE ABSENT ANY LINK BETWEEN THE
RACIALLY OFFENSIVE MEMES AND THE MURDER CHARGED
IN COUNT ONE.

The State could not show a nexus between possession of racially offensive

memes and the stabbing of the victim – the trial judge agreed, but not before the

memes were introduced into evidence. Uncomfortable as it may be, the materials

13
from Appellant’s phone are protected speech under the First Amendment to the

United States Constitution. Only if the State can proffer a tight nexus to the

underlying crime, should such material be admissible. Here, the trial judge

abandoned its gatekeeper function when it denied the Motion to Dismiss the hate

crime count ruling that it should be for the jury to decide any causal connection

between the memes and the crime

Similarly, the trial judge refused to sever the murder and hate crime counts.

Compounding its earlier errors, the trial court failed to conduct a proper analysis

and erred in its ultimate determination that the racially charged evidence was

admissible under Maryland Rule of Evidence 5-403 and 5-404(b). The jury was

empaneled after voir dire questioning concentrating heavily on the impact of racial

motivation and impartiality. From the first words of the State’s opening statement

through to its last words in rebuttal – this prosecution and trial was about race. It

should not have been under the law.

A. The Admission of Racially Offensive Material From Appellant’s Phone

Violated the First and Fourteenth Amendments.

This Court reviews constitutional claims, de novo. Vigna v. State, 470 Md.

418, 437 (2020) (citing State v. Cates, 417 Md. 678, 691 (2011)). In this case,

Appellant moved the court to dismiss the hate crime based on the First Amendment

arguing that unless the State could demonstrate to the trial court a “tight nexus”

between the proffered racial motivation and the stabbing, the racist materials were

protected First Amendment speech. The trial court denied the motion, “also going

14
to deny the motion to dismiss for First Amendment, because I believe it applies, and

again I believe the memes and the comments are there and the evidence is not

outweighed by any prejudicial value.” T. 6/5/19 at 59.

As applicable to Appellant, Maryland Code, Criminal Law, Section 10-304

states:

Because of another's race, color. . ., a person may not: (1)(i) commit

a crime or attempt to commit a crime against that person. . . . or (2)
commit a violation of item (1) of this section that:

(i) except as provided in item (ii) of this item, involves a separate

crime that is a felony; or (ii) results in the death of the victim.

Id. (effective October 1, 2009).

The First Amendment has been described as “the Constitution’s most

majestic guarantee….” L. Tribe, American Constitutional Law § 12-1 at 785 (2d ed.

1988). It commands that “Congress shall make no law . . . abridging the freedom

of speech. . . .” U.S. Const., amend I, cl. I. This right extends to the states via the

Fourteenth Amendment. “The ‘freedom to think as you will and to speak as you

think” is a “means indispensable to the discovery and spread of political truth” and

is essential both to “stable government” and to “political change.’” Eanes v. State,

318 Md. 436, 445-46 (1990) (quoting Whitney v. California, 274 U.S. 357, 375-77

(1927)). It is because of the fundamental importance of free speech to society “that

15
restrictions on its exercise be subjected to searching scrutiny.” Eanes, 318 Md. at

446 (quoting Frisby v. Schultz, 487 U.S. 474, 479 (1988)).7

The seminal case in Maryland on the hate crime statute involved a challenge

to the constitutionality of the statute, as the defendant there had been convicted of

the hate crime charged. In Ayres v. State, 335 Md. 602 (1994), the Court of Appeals

made clear that the hate crime statute survives an as-applied challenge under the

First Amendment only when there is a tight nexus between the otherwise protected

speech and the crime.

“At a minimum, any speech or association that is not contemporaneous with

the crime must be part of the chain of events that led to the crime. Generalized

evidence concerning the defendant's racial views is not sufficient to meet this test.”

Id. at 636 (quoting amicus curiae ACLU) (emphasis added). Admission of

generalized evidence of a defendant’s racial views violates the First Amendment.

In Ayres, the defendant had been charged with assault and a hate crime that occurred

on March 2, 1992. Id. at 610. As the defendant and another man drove around in the

early morning hours the two discussed a racially-charged incident that occurred two

days prior. Id. Evidence was admitted that on February 29, 1992, the defendant, a

white man, on February 29, 1992, had confronted a group of black teenagers at a 7-

Eleven store and incited an altercation during which the defendant repeatedly

7 The Maryland Declaration of Rights also protects the freedom speech,

“[t]hat freedom of speech and debate, or proceedings in the Legislature, ought not
to be impeached in any Court of Judicature.” Id. at Article 10.
16
shouted racial epithets even while pushing one teenager and chasing after another.

Id. Days later, after discussing the 7-Eleven incident, Ayers and another man drove

around “to look for black people to beat up.” Id. Finding two black women, the men

gave chase as one shouted “I’m going to kill you, you black bitch.” Ayres, 335 Md.

at 610. Ayers chased one woman into the woods who emerged half-naked and

bloodied – he was later charged with assault and related charges and with violating

Maryland’s hate crime statute.

The Court of Appeals held, “[w]e agree with the Attorney General’s view of

[the hate crime statute], namely that only speech actually connected with the offense

should be used as evidence of motivation.” Id. at 637. Ultimately, the Court stated

clearly “[b]ecause there was such a ‘tight nexus’ between the February 29 and

March 3 incidents, we hold that admitting the evidence regarding the 7-Eleven

incident did not violate the First Amendment, nor did it violate the rule which

generally prohibits the introduction of other crimes evidence.” Id. In other words

since the State proved the “tight nexus,” the otherwise protected speech was

admissible at trial and it was also admissible under Rule 5-404(b).

In stark comparison to the facts presented in Ayres, the State in this case

failed to show any nexus between the memes on Appellant’s phone and the stabbing

of the victim., much less a tight nexus. In fact, other than possessing racially

insensitive memes, the State failed to show that Appellant even held racist views or

had even ever made racist statements. They certainly did not show that his assault

of Lt. Collins was motivated by race. Despite this, Appellant was on trial for being

17
a racist – the State’s theory of the case depended on demonizing Mr. Urbanski based

solely on material found on his phone.

Not one racial epithet, or statement concerning race was uttered by Appellant

contemporaneous with the stabbing in this case. The only “evidence” of the stabbing

being motivated by race came from racially offensive materials (memes) located on

Appellant’s phone. As argued to the trial court pretrial, citing Ayres, the absence of

a tight nexus required the trial court to either dismiss the hate crime count pretrial

or to sever the trials of the hate crime and the murder. Perhaps not fully grasping its

evidentiary gatekeeping role, the trial court focused on general relevance, concerned

primarily with whether Appellant had to perform an action to save the memes, or if

they had been sent to him and automatically saved. T. 6/5/2019 at 23; 37; 39. Since

the stabbing was captured on surveillance video, the trial court had the advantage of

seeing the incident at the motions hearing in this matter. Id. at 28. The State

proffered that two witnesses who had been standing with the victim at the time of

the stabbing would testify that Appellant said only something like, “step left,”

several times before stabbing the victim. Id. at 30. Nothing other than that was said

by Appellant. The State’s theory that the stabbing was racially motivated was based

solely on Appellant’s possession of racially offensive material on his cellular phone,

unconnected to the victim.

The trial court agreed that having offensive and racist material on one’s

phone is not against the law, “[e]verybody agrees with that.” Id. at 42. What the

trial court failed to understand is that admission of the legal material on Appellant’s

18
phone violated the First Amendment without a “tight nexus” to the stabbing. The

trial court ruled, “I do believe that the State has established that there is a causal

connection, a nexus. It really is a matter for the jury to determine whether it’s closely

related or not.” T. 6/5/19 at 59.8 The Court thereafter denied the Motion to Preclude

Evidence, the Motion to Sever Counts and the Motion to Dismiss based on the First

Amendment. Id. In so ruling, the trial court admitted extremely prejudicial images

and permitted the State to try Appellant for his possession of racially insensitive

memes in violation of the First Amendment.

Nothing in the record at the motions hearing supports the trial court’s finding.

The same evidence was proffered by the State at the motions hearing as came into

evidence at the trial. Yet, the trial court dismissed the hate crime count after the

close of the case. The naked fact that Appellant had racially offensive material

directed toward black people and other minorities on his phone and on a later date

killed a Black man without any contemporaneous suggestion of racial motive is not

a nexus at all, much less the “tight nexus” required by the Court of Appeals in Ayres.

The trial court failed to perform its gatekeeping role in permitting the

admission of evidence that is the very definition of inflammatory and was likely to

evoke a passionate response in the minds of the jurors. By the time the trial court

8 Maryland Rule of Evidence 5-104(a) specifically requires the trial

court, not the jury, to determine the admissibility of evidence. “Preliminary
questions concerning the qualification of a person to be a witness, the existence of
a privilege, or the admissibility of evidence shall be determined by the court, subject
to the provisions of section (b).” Id. (emphasis added).
19
found that the State had failed to demonstrate the nexus required under the law to

proceed on the hate crime count, the jury had already sat through days of testimony

and been presented with offensive meme after offensive meme. It was incumbent

on the trial court to assess the ability of the State to connect such material on

Appellant’s phone to the stabbing of the victim, pretrial. It failed to do so, instead

the court shifted its evidentiary obligations to the jury. The jury would never decide

whether Appellant was guilty of a hate crime, because the trial court granted the

renewed motion for judgment of acquittal as to that count.

The violation of Appellant’s First Amendment Rights was not harmless

beyond a reasonable doubt. In Dorsey v. State, 276 Md. 638, 659 (1976), the Court

of Appeals held that in a criminal case, error, constitutional or otherwise, is not

harmless unless the Court can declare, beyond a reasonable doubt, it in no way

influenced the verdict.

Here, nothing could be more harmful that labeling Appellant a racist,

motivated to kill by those beliefs, based on mere possession of racially offensive

memes in no way tied to the offense. In fact, the admission of this evidence

relieved the State of its burden of proof as to the elements that separate first-degree

murder from second – willfulness, premeditation and deliberation. Here, the

defense’s argument to the jury that Appellant was intoxicated and that his actions,

a single strike after a verbal altercation, were evidence of second-degree murder.

The State pointed to the memes and suggested that Appellant was a brooding racist,

set out that night with an intention to kill a Black man, any Black man who had the

20
unfortunate circumstance of crossing paths with him. Absent this prejudicial and

irrelevant argument, offered only to incite, the jury would have been left a genuine

debate of whether Appellant’s intoxication left him unable to act willfully or

deliberately, or even, absent the intoxication, whether the State had proved

premeditation on these facts. Instead, the State argued that Appellant was a racist,

relieving itself of proving these elements. A new trial is required.

B. The Trial Court Erred in Admitting the First Amendment Protected

Speech from Appellant’s Phone Under the Rules of Evidence.

For the same reasons that it was error for the trial court to deny the pretrial

Motion to Dismiss based on the First Amendment, it was error for the trial court to

admit the phone materials – without the tight nexus required for the admission of

racial motivation evidence, it was evidence only of Appellant’s character. Character

evidence is inadmissible subject to exceptions not at issue here – “evidence of a

person’s character or character trait is not admissible to prove that the person acted

in accordance with the character or trait on a particular occasion.” Md. Rule 5-

404(a). The trial court came to the erroneous conclusion that the racist phone

evidence was admissible due in part to the trial court’s abandonment of the correct

analysis with which to view the proffered evidence. In admitting the phone

evidence, the trial court committed both procedural and substantive error requiring

reversal.

21
 1. The Phone Evidence Was Not Relevant

There was no nexus between the phone evidence and the stabbing, only State

conjecture. Without that nexus, the phone evidence is not relevant to either the hate

crime or the murder charge. When the trial court found the State failed to

demonstrate that nexus, it was not before the trial had already become a trial on race

rather than Appellant’s guilt. This Court reviews a trial court’s decision whether to

admit evidence using a two-step analysis. Montague v. State, 471 Md. 657, 673

(2020). “First, we consider whether the evidence is legally relevant which is a

conclusion of law we review de novo.” Id. (ultimately citing Ford v. State, 462 Md.

3, 46 (2018)).

After determining whether the evidence in question is relevant, we

consider whether the trial court abused its discretion by admitting
relevant evidence which should have been excluded as unfairly
prejudicial. Thus, the trial judge's ruling on the admissibility of
evidence under Rule 5-403 is reviewed for abuse of discretion.

Montague, 471 Md. at 673-74 ((ultimately quoting Fuentes v. State, 454 Md. 296,

325 (2017)).

Evidence is relevant if it has “any tendency to make the existence of any fact

that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” Montague, 471 Md. at 674

(quoting Md. Rule 5-401). At issue in Montague were rap lyrics that essentially

narrated the murder for which the defendant stood trial. The defendant there had

himself composed the lyrics and they were recorded by the jail telephone system

while the defendant was detained for the murder for which he was ultimately

22
convicted. Id. at 669-70. In analyzing the admission of the evidence and their

relevance to the case, the Court of Appeals found instructive the analysis of rap

lyrics in Hannah v. State, 420 Md. 339 (2011).9

We recognized a distinction between the probative value of rap lyrics

that are admissible statements of historical fact and the danger of
unfair prejudice presented by those that are inadmissible works of
fiction. Hannah's rap lyrics had no nexus to the details of the attempted
murder, and we compared them to lyrics that were excluded by the
Supreme Court of South Carolina in Cheeseboro for being too vague
to support their admission. The probative value of Hannah's rap lyrics
was also undermined by an extraordinarily weak temporal nexus to
the crime because they were composed two years before the crime
occurred.

We considered Hannah's rap lyrics to be unfairly prejudicial because

they fell within a category of inadmissible works of fiction that, when
recounted line-by-line before the jury, only served to prejudice
Hannah by casting him in a violent light. Therefore, the minimal
probative value of the rap lyrics as impeachment evidence was
substantially outweighed by their unfairly prejudicial effect as bad-
character evidence and the lyrics were accordingly inadmissible.

Id. at 679.

The lyrics in both Hannah and Montague were at least authored or composed

by the defendant. Here, the memes stored on Appellant’s phone were not created by

Appellant. The memes are inadmissible works of fiction – they were not directed

at the victim (as were the lyrics in Montague). Further, the memes lacked a nexus

to the crime, like the lyrics in Hannah that were determined to be inadmissible by

9
In Hannah, the rap lyrics were held inadmissible as impeachment
evidence rather than as substantive evidence a distinction acknowledged by the
Court of Appeals. Montague, 471 Md. at 676.
23
the Court of Appeals. Without a nexus, the material found on the phone does not

make it any more probable that Appellant murdered Lt. Collins in any degree. It is

because there was no nexus that the phone evidence is not relevant. As a matter of

law, the phone material was not relevant and was therefore admitted in error.

2. The Phone Evidence Should Have Been Excluded Under Maryland

Rule of Evidence 5-403.

Assuming, arguendo, that the material on Appellant’s phone is relevant

evidence, it nevertheless should have been excluded under Rule 5-403. Although all

relevant evidence is generally admissible, Md. Rule 5-402, “a trial court may

exclude relevant evidence if its probative value is substantially outweighed by the

danger of unfair prejudice or other countervailing concerns.” Montague, 471 Md. at

674 (citing Md. Rule 5-403). “Probative value is substantially outweighed by unfair

prejudice when the evidence “tends to have some adverse effect ... beyond tending

to prove the fact or issue that justified its admission.” Montague, 471 Md. at 673-

74 (quoting State v. Heath, 464 Md. 445, 464 (2019) (in turn quoting Hannah, 420

Md. at 347) (emphasis added)). In admitting the material from Appellant’s phone,

the trial court permitted the State to show to the jury incredibly offensive material

and to argue that Appellant was a racist. The probative value was non-existent –

since there was no nexus, the memes on Appellant’s phone did not rise to motive

for the stabbing. And, the stabbing was captured on video surveillance, and

occurred in front of two testifying eyewitnesses. Admission of the racially offensive

phone evidence had much more than “some adverse effect,” the race issue took over

24
the entire trial. The probative value of the phone material was substantially

outweighed by the danger of unfair prejudice. In Montague, The Court of Appeals

noted, “[o]ur holding in Hannah stemmed from the “multitudinous” and

prejudicial nature of the State's cross-examination and the utter lack of probative

value that the lyrics had as impeachment evidence.” Id. at 678-79 (quoting Hannah,

420 Md. at 358 (Harrell, J., concurring)). Here, the State’s use of the racially

offensive memes was more than multitudinous, the trial became about the memes

and the purported “poisoning” of Appellant’s mind.

Moreover, the Court of Appeals stated that exclusion under Rule 5-403 is

also permissible when the probative value is outweighed by “other countervailing

concerns.” Montague, 471 Md. at 674. Here, the evidence erroneously admitted was

also protected speech under the First Amendment. Certainly, the violation of a

Constitutional amendment is a significant enough countervailing concern to justify

excluding the evidence. The trial court abused its discretion in admitting the

evidence from Appellant’s phone under Maryland Rule 5-403. The error is not

harmless – the racially offensive memes were addressed at every turn by the State.

The centerpiece of the State’s case was First Amendment protected speech that

should never have been admitted. Reversal is required.

3. The Phone Evidence Should Have Been Excluded Under Maryland

Rule of Evidence 5-404(b).

The phone evidence in this case was erroneously admitted as Rule 404(b)

evidence. The standard of review for the admission of 5-404(b) evidence, is two-

25
fold and is best detailed along with the accepted three-step analysis set forth in State

v. Faulkner, 314 Md. 630 (1989). “Generally, ‘evidence of a defendant's prior

criminal acts may not be introduced to prove that he is guilty of the offense for

which he is on trial.” Id. at 633 (quoting Straughn v. State, 297 Md. 329, 333

(1983)). The rationale is clear – “Evidence of other crimes may tend to confuse the

jurors, predispose them to a belief in the defendant's guilt, or prejudice their minds

against the defendant.” Faulkner, 314 Md. at 633 (citing Ross v. State, 276 Md. 664,

669 (1976)).

Evidence of other crimes may be admitted, however, if it is

substantially relevant to some contested issue in the case and if it is
not offered to prove the defendant's guilt based on propensity to
commit crime or his character as a criminal.

Thus, there are numerous exceptions to the general rule that other
crimes evidence must be suppressed. Evidence of this type may be
admitted if it tends to establish motive, intent, absence of mistake, a
common scheme or plan, identity, opportunity, preparation,
knowledge, absence of mistake or accident. But, because of the
potential danger involved, the admission of other crimes evidence
should be subjected to rigid scrutiny by the courts.

When a trial court is faced with the need to decide whether to admit
evidence of another crime—that is, evidence that relates to an offense
separate from that for which the defendant is presently on trial—it first
determines whether the evidence fits within one or more of
the Ross exceptions. That is a legal determination and does not
involve any exercise of discretion.

Id. at 634 (internal citations omitted). This Court reviews the trial court’s

determination of whether the proffered evidence fits within one of the exceptions,

de novo. This Court reviews the trial court’s determinations as to the final two

prongs for abuse of discretion.

26
 If one or more of the exceptions applies, the next step is to decide
whether the accused's involvement in the other crimes is established
by clear and convincing evidence.

If this requirement is met, the trial court proceeds to the final step. The
necessity for and probative value of the “other crimes” evidence is to
be carefully weighed against any undue prejudice likely to result from
its admission. This segment of the analysis implicates the exercise of
the trial court's discretion.

Id.
This precise issue was examined by the Court of Appeals in Ayres, where the

Court acknowledged the long history of and frequent enunciation of “the general

rule that evidence of a defendant’s prior criminal acts may not be introduced to

prove guilt of the offense for which the defendant is on trial.” Ayres, 335 Md. at

630. Given that the exceptions to the exclusionary rule are many, the Court of

Appeals has been clear, “because of the potential danger involved, the admission of

other crimes evidence must be closely scrutinized by the courts.” Ayres, 335 Md. at

632.

In this case, the trial court failed to undertake the proper procedure for

analyzing the admissibility of the bad acts evidence at issue – the racially offensive

material found on Appellant’s phone. In Streater v. State, 352 Md. 800 (1999), the

Court of Appeals found that the trial court had failed to conduct a proper analysis

under Rule 404(b) and thus vacated the appellant’s convictions and remanded the

case for a new trial.

These substantive and procedural protections are necessary to guard

against the potential misuse of other crimes or bad acts evidence and
avoid the risk that the evidence will be used improperly by the jury
against a defendant. As Professor McLain has observed: “[T]he

27
 evidence may not be used merely as a ruse to accomplish the
prohibited objective” of proving a person acted in conformity with his
or her character.

Id. at 807 (quoting LYNN MCLAIN, MARYLAND EVIDENCE § 404.5, at 354

(1987)).

Here, the trial court simply stated “looking at the totality of the

circumstances, that it would not be unfairly prejudicial for the State to be able to use

this evidence. . . . I think it’s a matter for the jury to determine.” Id. at 58. The trial

court failed to determine whether the phone evidence fit into one of the exceptions

under Rule 5-404(b). It bears repeating that the rule is one of exclusion – the default

position is that the evidence is inadmissible.

The State proffered that it intended to use the phone evidence as motive. Tr.

6/5/19 at 14. However, the phone material was not evidence of motive for the same

reasons articulated throughout, supra, there was no nexus between what was found

on Appellant’s phone and the stabbing. The trial court found, albeit at the end of

the trial, that the State failed to meet its standard on the hate crime count and granted

the motion for judgment of acquittal. Therefore, had the trial court undertaken the

proper procedure pretrial, as outlined above, it would have found as a matter of law

that the racist phone material was inadmissible under Maryland Rule 5-404(b)

because the State could not satisfy the “tight nexus,” i.e. the special relevance,

required for the admission of the evidence. Without a tight nexus, the phone

evidence cannot fit into the motive exception. Assuming, arguendo, the State could

have satisfied the first prong of the analysis – which it did not and could not – the

28
trial court should have next analyzed whether the probative value of the evidence

outweighed the risk of undue prejudice.10

The State sought admission of the racist phone material to prove a racial

motive where there was none. As discussed, as a matter of law since the State could

not show a “tight nexus” between the prior bad acts and the stabbing, the probative

value of such evidence was non-existent as to the hate crime charged in Count Two.

“When weighing the probative value of a statement against its prejudicial effect, the

trial court should only permit “speech actually connected with the offence ... as

evidence of motivation.” Faulkner, 314 Md. at 637. Similarly, the evidence was not

of probative value to the murder charged in Count One – motive, while an element

of the hate crime statute, is not an essential element the State needed to prove under

the murder charged in Count One. It is also important to note that the stabbing was

caught on surveillance footage played for the jury and testimony elicited from two

eyewitnesses to the stabbing. The probative value of the prior bad acts evidence was

thus diminished even further. Most importantly, there was a tremendous risk of

undue prejudice which easily outweighed any probative value had the trial court

undertaken the proper weighing of the evidence. One is hard pressed to find a more

politically and culturally charged issue than race in America.

10 Whether the prior bad acts were proven attributable to Appellant by

clear and convincing evidence was not at issue.
29
 The trial court’s failure to preclude the prior bad acts evidence made it

possible for the State to try Appellant for being a racist – the trial was singularly

focused on that issue. Voir dire questioning was dominated by the race issue; the

State’s opening excoriated Appellant for poisoning his mind with hate and after the

trial court granted the judgment of acquittal as to the hate crime, a juror had to be

questioned about his viewing of news reports about the acquittal including

interviews with the victim’s family. T. 12/18/19 at 9. All of which would have been

avoided with a proper, pretrial weighing of the evidence as required by Rule 5-

404(b). In abandoning its gatekeeping role pretrial, the jury was exposed to unduly

prejudicial evidence that Appellant possessed racially offensive material on his

phone, which did exactly what Rule 5-404(b) aims to prevent – made it not only

possible, but likely that the jury convicted Appellant based on his portrayal as a

racist.

More broadly, due to the trial court’s erroneous admission of the racist phone

materials, Appellant was denied the due process of law guaranteed to him by the

Firth Amendment and made applicable to the states through the Fourteenth

Amendment to the United States Constitution. While there was a genuine issue of

intoxication and whether Appellant was capable of deliberation and premeditation

for a conviction of first-degree murder, that issue was easily overshadowed by the

injection of protected First Amendment speech. Appellant was forced to try to prove

that he was not a racist, or at least that the stabbing was not racially motivated, when

the racially offensive materials should never have been a part of the trial. Once

30
again, there was no evidence that Appellant said or did anything contemporaneous

with the stabbing that indicated it was racially motivated. Reversal is required.

II. THE TRIAL COURT ERRED IN REFUSING TO DECLARE A

MISTRIAL AFTER GRANTING THE RENEWED MOTION FOR
JUDGMENT OF ACQUITTAL AS TO COUNT TWO.

At the close of evidence, the trial judge finally ruled that the State failed to

meet its burden as to the hate crime and granted the defense’s renewed motion for

judgment of acquittal at the close of the defense case. This meant that all the

evidence from Appellant’s phone should not have been admitted. The trial court

found,

The issue is did he strike him in the chest because he was black, or I
should say did he strike him in the chest only because he was black?
So he could have had – him being black could have made him I’ll say
from his perspective more likely that he would inflict harm upon him
in that the memes would indicate that he viewed black people as
something less than I will say white people in this case, but the State
has to link that up on the day, at that time that question that a racist, a
homophobe, antisemitic could commit a crime against that other
particular group without it being hate based in this case.

In this case the court doesn’t believe that the State has met their
burden with regard to the hate crime charged and, therefore, I will
grant the defense motion for a judgment of acquittal for that charge
only.

T. 12/17/19 96-97.

Having acquitted Appellant of the hate crime, however, the trial judge denied

the motion for mistrial. The evidence at trial regarding the materials on Appellant’s

phone was identical to the proffer given by the State at the motions hearing. There

is no reason for the trial judge to have admitted the evidence from the phone pretrial

31
and granted the judgment of acquittal. The reasoning and analysis should have been

the same. The most prejudicial and inflammatory evidence of the entire trial –

racially offensive memes – were admitted only because the trial court found pretrial

that the jury should decide whether there was a sufficient causal connection between

the phone evidence and the stabbing. With Appellant acquitted of the hate crime, a

mistrial was required as the entire trial had been about the memes. There was a likely

possibility that the jury would convict Appellant of the murder because they had

been told he was a racist – a bad person.

“It is well-settled that a decision to grant a mistrial lies within the sound

discretion of the trial judge and that the trial judge's determination will not be

disturbed on appeal unless there is abuse of discretion.” Carter v. State, 366 Md.

574, 589 (2001). “That is, we look to whether the trial judge’s exercise of discretion

was ‘manifestly unreasonable, or exercised on untenable grounds, or for untenable

reasons.’” Simmons v. State, 436 Md. 202, 212 (2013) (quoting Stabb v. State, 423

Md. 454, 465 (2011)). The decision to continue with the trial after granting a

judgment of acquittal was manifestly unreasonable. The trial court found that the

State did not show a nexus between the phone evidence and the stabbing – without

a nexus, there is no motive. It was an abuse of discretion to deny the motion for a

mistrial and reversal is required.

32
 CONCLUSION

For the foregoing reasons, Appellant respectfully requests that this Court

vacate Appellant’s conviction and remand this case to the Circuit Court for Prince

George’s County for a new trial. Appellant also respectfully requests that this Court

schedule oral argument in this matter.

Respectfully submitted,

/s/

MICHAEL E. LAWLOR
GWENDOLYN R. WATERS
JOHN M. MCKENNA
WILLIAM C. BRENNAN
Brennan, McKenna & Lawlor, Chtd.
6305 Ivy Lane, Suite 700
Greenbelt, MD 20770
(301) 474-0044 phone
(301) 474-5730 fax
mlawlor@brennanmckenna.com

33
 REQUEST FOR ORAL ARGUMENT

Appellant respectfully requests that this Court schedule oral argument in this

matter.

/s/

MICHAEL E. LAWLOR

34
 PERTINENT AUTHORITY11

The United States Bill of Rights

Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof; or abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition the Government for a
redress of grievances.

Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless
on a presentment or indictment of a Grand Jury, except in cases arising in the land
or naval forces, or in the Militia, when in actual service in time of War or public
danger; nor shall any person be subject for the same offence to be twice put in
jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or property, without due process of
law; nor shall private property be taken for public use, without just compensation.
Amendment XIV

Section 1

All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State deprive any person of life, liberty,
or property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
The Maryland Declaration of Rights

Article 10

That freedom of speech and debate, or proceedings in the Legislature, ought not to
be impeached in any Court of Judicature.

11 Verbatim text of pertinent authority from sources listed in Maryland

Rule 8-504(a)(9).
35
Maryland Criminal Law, Section 10-304 (effective October 1, 2009)12

Because of another's race, color, religious beliefs, sexual orientation, gender, or

national origin, or because another is homeless, a person may not: (1)(i) commit a
crime or attempt to commit a crime against thaFt person; (ii) damage the real or
personal property of that person; (iii) deface, damage, or destroy, or attempt to
deface, damage, or destroy the real or personal property of that person; or (iv) burn
or attempt to burn an object on the real or personal property of that person; or (2)
commit a violation of item (1) of this section that:

(i) except as provided in item (ii) of this item, involves a separate crime that is a
felony; or (ii) results in the death of the victim.

Maryland Rule of Evidence 5-401

Relevant evidence means evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.

Maryland Rule of Evidence 5-402

Except as otherwise provided by constitutions, statutes, or these rules, or by

decisional law not inconsistent with these rules, all relevant evidence is admissible.
Evidence that is not relevant is not admissible.

Maryland Rule of Evidence 5-403

Although relevant, evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or needless presentation
of cumulative evidence.

12 This is the text of the statute in effect at the time Appellant was
charged—the statute has since been amended.
36
Maryland Rule of Evidence 5-404(b)

(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or other acts
including delinquent acts as defined by Code, Courts Article § 3-8A-01 is not
admissible to prove the character of a person in order to show action in the
conformity therewith. Such evidence, however, may be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, common scheme
or plan, knowledge, identity, absence of mistake or accident, or in conformity with
Rule 5-413.

37
 CERTIFICATION OF WORD COUNT
AND COMPLIANCE WITH RULE 8-112

1. This brief contains 9,089 words, excluding the parts of the brief exempted

from the word count by Rule 8-503.

2. This brief complies with the font, spacing, and type size requirements

stated in Rule 8-112. This brief has been prepared in 13-point Times New Roman

font.

/s/

MICHAEL E. LAWLOR

38
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 12th day of October, 2021, two copies of

Appellant’s Brief and Appendix were mailed, first-class postage pre-paid, to the

Office of the Attorney General, Criminal Appeals Division, 200 Saint Paul Place,

Baltimore, Maryland 21202. Additionally, notice of the filing of the electronic

Opening Brief and Appendix was delivered to all registered parties through the

MDEC system.

Respectfully submitted,

/s/

MICHAEL E. LAWLOR

39
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App. 13
App. 14
 1
1 IN THE CIRCUIT COURT FOR PRINCE GEORGE'S COUNTY, MARYLAND

2
STATE OF MARYLAND,
3

4 vs. Criminal Trials No. 170985X;

171444x
5

6
SEAN URBANSKI,
7 Defendant.

8 _________________________________/

10 REPORTER'S OFFICIAL TRANSCRIPT OF PROCEEDINGS

(Hearing)
11
Upper Marlboro, Maryland
12
Wednesday, June 5, 2019
13

14 BEFORE:

15
THE HONORABLE LAWRENCE H. HILL, JR., Associate
16 Judge

17 APPEARANCES:

18 For the State:

19 JASON B. ABBOTT, ESQ.

JONATHAN CHURCH, ESQ.
20
For the Defendant:
21
WILLIAM BRENNAN, ESQ.
22 JOHN M. MCKENNA, ESQ.

23
DANNY O. ENGELBRETSON
24 Official Court Reporter
P.O. Box 401
25 Upper Marlboro, Maryland, 20773

App. 15
 53
1 motion of "Alt-Reich." Obviously has some heavy

2 connotations, but I don't know how they put that in

3 context, and I haven't seen what they actually want to

4 put in about it.

5 So that's our concern, that this is

6 prejudicial. I don't know how it has any nexus with

7 what occurred on May 20th, 2017. That's my problem.

8 And that's why we mentioned it.

9 THE COURT: All right. The Court's primary

10 concern is to make sure, as in any case, that the

11 defendant is entitled to a fair trial. However, the

12 Court also has to balance the State's interest and be

13 able to prosecute a case here. So the court is going

14 to make a ruling and consider the factors for the

15 5-405(b), as well as just what is generally called the

16 hate crime statute in and of itself as well.

17 Counsel is already aware and the record is

18 already clear about going through the process in this

19 case, but number one, does the suggested evidence fit

20 into one of the exceptions as to motive or intent, and

21 I would say it does. I'm not sure that was -- sort of

22 just why we're here, to find out whether it's

23 relevant. So defense necessarily believe it's

24 relevant, but it's been established by clear and

25 convincing that he committed the act. Again, I don't

App. 16
 54
1 really think that's in contention. The larger issue

2 is weighing the relevance and, first, whether it's

3 unfairly prejudicial to the defendant. So in doing

4 so, I considered the entire totality of the

5 circumstances in this case. That's why I did ask

6 about the "Alt-Reich" page.

7 So again there was testimony that there was

8 again the title of that page as "Alt-Reich." Didn't

9 get into the substance of what it is, and could be, as

10 Mr. Brennan read, what its purpose was, again, none of

11 the details of the page were spoken to, and I don't

12 even know if anybody actually here knows exactly

13 because what's on the page that was taken down.

14 But in any event, that the State believes

15 that this can establish by evidence that defendant's

16 computer or e-mail was used to like a Facebook page of

17 "Alt-Reich."

18 Number two, that the State believes that the

19 defendant sought out the decedent in this case because

20 of race, and by example they're arguing that they will

21 call witnesses that will say he told the white male to

22 step out of the way, told the Asian female to -- step

23 to the left, not step out of the way. The defense

24 gives it more contact in that he made the same demand

25 of the decedent and the decedent answered no. And it

App. 17
 55
1 was after that allegedly that the stabbing occurred.

2 The State believes that that shows evidence

3 of motive and intent. Also would say something else,

4 the State has to establish beyond a reasonable doubt

5 all elements of each count. In doing so, the defense

6 made an issue that at no time did the defendant make

7 any racial comments; that is, there is no evidence of

8 that. And that's the State's burden to establish

9 that. However, there is also no evidence that he did

10 not say that. And what I mean is defense volunteered

11 this information that there was a period of time in

12 which the defendant was yelling unintelligible

13 comments. So no one knows what those were in this

14 case. And then he approaches the group or the

15 three-person group in this case.

16 Then I had an opportunity to look at the

17 photograph of the memes, whatever you wanted to call

18 it. There is some or a few that do suggest some level

19 of, I call that violence. There are others that are

20 more just jokes. Stupid jokes, but jokes.

21 The first one and just in no sequence, they

22 weren't marked as exhibits, but first dated December,

23 2016, that did establish some type of a level of

24 violence.

25 Number two, as Mr. Church described,

App. 18
 56
1 contained the imagine of a noose and a handgun. That

2 shows some level of violence, but not necessarily to a

3 particular group or person.

4 The third photograph, I'll just call a

5 cartoon, is a stupid joke on a race issue.

6 The forth photograph I would consider that

7 also a level, some level of violence.

8 The next photograph dated February, 2017, I

9 get for a stupid joke that depicted a group of

10 muffins.

11 The next, I think, I believe, was April 2017

12 that talked about DNA, black DNA versus other DNA.

13 And then the same period of time April 2017,

14 there was an image of coffee that also was a racial

15 joke.

16 So, number one, every person has a right of

17 freedom of speech. Defendant is not here for a

18 violation of a freedom of speech. But not for the

19 allegations that occurred in May, none of us would be

20 here today, we wouldn't be -- he's not charged with

21 anything that relates to any liking images saved on

22 his iPhone.

23 The question is are the images on his cell

24 phone relevant to this matter, relevant to the charges

25 in this case, relevant to the counts in this case.

App. 19
 57
1 And that's what the Court has to go through, the

2 factors in this case.

3 And I also wanted to know, State believes

4 they can establish at trial that they can show that

5 defendant took some manual action that is not just

6 because he inadvertently, spontaneously opened the

7 page.

8 So in looking at the totality of the

9 circumstances -- the defense made an issue of being

10 drunk at the time, that he also made, allegedly,

11 unintelligible comments at the time, and that

12 Lieutenant Collins responded, though, and that's the

13 reason why the allegations, that's the reason were the

14 substance of actions after that.

15 That goes more to the weight of the

16 evidence. Defense chose to put on a defense or

17 impeach the State's evidence as far as level of

18 intoxication, et cetera. But I don't believe that's

19 relevant as to this motion, as to the admissibility in

20 this case.

21 So looking at the totality of the

22 circumstances, the State believes they're going to be

23 able to establish by evidence the defendant liked the

24 "Alt-Reich" page. The defense contends it was

25 something more of a joke and that the number of images

App. 20
 58
1 which were, I think, I believe, the last one was at

2 least a month before the incident date of this case.

3 The Court finds, looking at the totality of

4 the circumstances, that it would not be unfairly

5 prejudicial for the State to be able to use this

6 evidence. Again, the totality of the circumstances,

7 like the "Alt-Reich" page, the scene, that the State

8 believes that they can establish that day the

9 defendant addressed the witnesses and decedent on that

10 day, as well as almost monthly, up until the incident

11 date, December, January, February, February, April.

12 They had again what's called memes that almost leaves

13 like a chain of events up until May. It could be

14 likely that had there only been one, or they had

15 stopped, or there had been one in December, but there

16 is again, what's been proffered, has been proffered to

17 be admitted into evidence shows up that this wasn't

18 necessarily a isolated incident.

19 I think it's a matter for the jury to

20 determine whether it is, as the State would have to

21 prove beyond a reasonable doubt, beyond a reasonable

22 doubt, that not only was the defendant responsible for

23 the death of the Lieutenant Collins but it was the

24 direct result of Lieutenant Collins race and the

25 defendant's feelings about that race.

App. 21
 59
1 Whether that intent is negated or not by

2 intoxication, possibly voluntary intoxication, is also

3 for trial, but for the purposes of this motion the

4 Court is going to deny the motion to suppress in this

5 case. The Court is also going to deny the motion to

6 sever. The Court finds that they are mutually

7 admissible at the murder count, as to show intent.

8 And as to the Count 2 is an element of the crime

9 charged.

10 MR. McKENNA: Argue hate crimes charged --

11 THE COURT: And also going to deny the

12 motion to dismiss for First Amendment, because I

13 believe it applies, and again I believe the memes or

14 the comments are there and the evidence is not

15 outweighed by any prejudicial value.

16 I went back and I read Ayers and Johnson.

17 They were used for my opinion. And I do believe that

18 the State has established that there is a causal

19 connection, a nexus. It really is a matter for the

20 jury to determine whether it's closely related or not.

21 I believe it's sufficient that it should come into

22 evidence as closely connected or a nexus, but

23 ultimately it is their duty to convince a jury beyond

24 a reasonable doubt to the elements in this case.

25 So for those reasons the Court will deny all

App. 22
 60
1 of the defense motions.

2 MR. ABBOTT: Thank you, Your Honor.

3 MR. CHURCH: Thank you, Your Honor.

4 THE COURT: Anything else?

5 MR. McKENNA: No.

6 MR. BRENNAN: No, Your Honor.

7 MR. ABBOTT: Not from the State.

8 THE COURT: Anything else?

9 MS. MANDEL: Pauline Mandel, Maryland Crime

10 Victim's Resource Center, on behalf of the victims.

11 We filed a motion for two parents who were the victim

12 representatives to be in the courtroom, filed it in

13 November. I've gotten no opposition. So, Your Honor,

14 I would assume at this time that it's okay for them to

15 be in the courtroom.

16 THE COURT: Any objection by the defense?

17 MR. BRENNAN: Whatever the Maryland

18 Constitution and statute allows, we don't object to

19 that. Anything beyond that we object to.

20 MS. MANDEL: Okay.

21 THE COURT: Are they witnesses?

22 MS. MANDEL: One of them may be.

23 THE COURT: Excuse me?

24 MR. CHURCH: We're just background and

25 identification of the victim, so no fact witness.

App. 23
 61
1 THE COURT: Not fact witness?

2 MR. CHURCH: Correct.

3 MR. ABBOTT: Correct.

4 THE COURT: So then I'll grant the motion

5 for them to be present.

6 MR. CHURCH: Thank you, Your Honor.

7 THE COURT: Thank you.

8 MR. CHURCH: Thank you to the courtroom

9 staff for sticking around so long.

10 (The proceedings were concluded.)

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

App. 24
 62
1 REPORTER'S CERTIFICATE

3 I, Danny O. Engelbretson, an Official Court

4 Reporter of the Circuit Court of Prince George's

5 County, Maryland, do hereby certify that I

6 stenographically recorded the proceedings in the

7 matter of State of Maryland vs. Sean Urbanski, in the

8 Circuit Court for Prince George's County, Maryland,

9 Criminal Trials Numbers 170985X; 171444x, on

10 Wednesday, June 5, 2019, before the Honorable Lawrence

11 V. Hill, Jr., Associate Judge.

12 I further certify that the pages numbered one

13 through 61 constitute the official transcript of the

14 proceedings as transcribed by me from my stenographic

15 notes to the within typewritten matter in a complete

16 and accurate manner to the best of my skill and

17 ability.

18 In Witness Whereof, I have affixed my signature

19 this 2nd day of July, 2019.

20 _________________________
DANNY O. ENGELBRETSON
21 OFFICIAL COURT REPORTER

22

23

24

25

App. 25
 5-1

1 IN THE CIRCUIT COURT FOR PRINCE GEORGE'S COUNTY, MD

3 STATE OF MARYLAND

4 vs. CT 17-1444X

5 SEAN C. URBANSKI,

6 Defendant.

7 ________________________________/

8 REPORTER'S OFFICIAL TRANSCRIPT OF PROCEEDINGS

(Trial on the Merits)
9 VOLUME V OF VI

10 Upper Marlboro, Maryland

11 Tuesday, December 17, 2019

12

13 BEFORE:

14 HONORABLE LAWRENCE V. HILL, JR., Associate Judge,

(and a jury)
15

16 APPEARANCES:

17 For the State:

18 JASON B. ABBOTT, ESQUIRE

JONATHON R. CHURCH, ESQUIRE
19

20 For the Defendant:

21 WILLIAM C. BRENNAN, JR., ESQUIRE

JOHN M. McKENNA, ESQUIRE
22

23 JOHN C. SPEAR
Official Court Reporter
24 P.O. Box 401
Upper Marlboro, Maryland 20773
25

App. 26
 5-89

1 MR. McKENNA: We have to renew our motion.

2 If I could?

3 THE COURT: Yes.

4 MR. McKENNA: We will be renewing our motion

5 for judgment of acquittal. I have the same arguments

6 with regard to the first degree murder count. I would

7 like to expand a little bit on the hate crime count,

8 Your Honor. Obviously, the evidence is in. It is not

9 as deferential a standard as it was with the State at

10 this point. We believe there is no evidence of a race

11 based killing in this case.

12 The evidence indicates that our client

13 approached three people, Blake Bender, Richard Collins,

14 and Amanda Lee. Did not single out Richard Collins as

15 the State had indicated. It was Richard Collins who

16 engaged our client and said, no. He was the closest

17 one to the sidewalk.

18 Every witness who has testified said he

19 approached all the three of them. There is no

20 statement that was ever made related to race, or

21 anything of that nature, from any of the witnesses who

22 were present, that includes Amanda Lee, Blake Bender,

23 Akshay Lingayat, who, obviously, was there. None of

24 them offered any evidence that he was talking about

25 race or anything like that.

App. 27
 5-90

1 In fact, Mr. Lingayat indicates that he was

2 angry really at himself with punching signs and things

3 of that nature. It is in evidence, the court has

4 State's Exhibit No. 25 showing the injuries to his

5 hand.

6 The only thing we have are memes. The

7 evidence on this is -- there is no evidence that any of

8 these memes were looked at in May, or May 20th. They

9 date back to December of 2016, February of 2017, and I

10 think one in April of 2017. The only fact is they are

11 on the phone.

12 The expert, the State's expert was unable to

13 tell whether they were sent, whether they were sought

14 for, or searched for.

15 The State has offered no evidence from

16 anybody who was with our client that night suggesting

17 that he was saying or mentioning anything about race,

18 or hate, or anything like that.

19 The State has offered no evidence from any

20 witness who knew him in the past to suggest that he

21 ever advocated violence, or anything like that. There

22 is simply no evidence of a hate, a race, hate based

23 motive.

24 You certainly have lots of evidence of

25 intoxication in the case from Akshay, from the cell

App. 28
 5-91

1 video, from the doctors who have testified. We believe

2 it is utter speculation and no evidence to suggest that

3 this stabbing was based on race, Your Honor. For that

4 reason we believe there is insufficient evidence of a

5 hate crime.

6 THE COURT: State.

7 MR. CHURCH: Your Honor, the State

8 respectfully disagrees. There is both circumstantial

9 and direct evidence that the hate crime was committed

10 because Mr. Collins, Lieutenant Collins was black.

11 The fact of the matter is the racist, or the

12 racist memes that advocate violence against

13 African-Americans are not looked at in isolation. In

14 fact there has been testimony that the defendant was a

15 member of a white supremacist Facebook group that

16 advocated violence against African-American

17 individuals.

18 That not only was he a member of this

19 particular Facebook group, the Alt Reich Nation, but

20 his childhood friend was also a member of that group.

21 That is no different than saying he was a member of the

22 KKK. The idea is it is an advocacy of violence and

23 hatred and supremacy against those that are not like

24 you. They can't be looked at in isolation.

25 These photographs on his cell phone are among

App. 29
 5-92

1 the pictures of himself with his friends and family

2 tell the true story. The expert testified that those

3 particular photos had to be downloaded and manipulated

4 by the user, the defendant, to reside in that folder

5 and to reside in the folder with pictures of friends

6 and family.

7 Now you take all that and you watch the video

8 of the defendant as he is there standing near

9 Lieutenant Collins, and Blake Bender, and Amanda Lee,

10 and he is there for some time with them at first. Then

11 everybody kind of filters off and the defendant goes

12 away. Then he comes back and he comes right back to

13 the treeline. He has the knife out in his hand.

14 That's when he approaches the Lieutenant Collins, Blake

15 Bender, and Amanda Lee.

16 When he tells -- when he said "step left,

17 step left if you know what's good for you," or however

18 the phraseology goes, but it is consistent with that.

19 He is indicating to Blake Bender and Amanda Lee to move

20 out of the way and he squares up Lieutenant Collins and

21 he stabs him in the chest.

22 THE COURT: He also told him to step left.

23 MR. CHURCH: He did. Well, whoever he has

24 focused at, I think it is difficult to really figure

25 out exactly who, but he does, he stabs Lieutenant

App. 30
 5-93

1 Collins in the chest.

2 What you see on the video shortly after that

3 is as Lieutenant Collins stumbles off and Amanda Lee

4 takes off, Blake Bender is standing there beside him.

5 If this wasn't targeted to Lieutenant Collins, why

6 isn't the next stab or jab at Blake Bender? He got

7 exactly who he went there for. He actually waved on

8 Blake Bender. So Blake runs after Lieutenant Collins

9 where he collapses about a hundred yards away.

10 This is a case where the jury needs that

11 information. This is a decision that the jury needs to

12 make based on the circumstantial and direct evidence.

13 It was a targeted attack on Lieutenant Collins, that is

14 a hate crime. The defendant was after an

15 African-American, that is what he targeted for.

16 The evidence is sufficient to send the case

17 back to the jury. We will ask you to deny the defense

18 motion.

19 THE COURT: Defense.

20 MR. McKENNA: Very quickly. The only

21 evidence about the Alt Reich Nation is it is a

22 controversial joke site. When the State stands up and

23 says it is a white supremacist face group, that is

24 simply not true.

25 THE COURT: Why is that not true?

App. 31
 5-94

1 MR. McKENNA: There has been no testimony to

2 that effect, Your Honor. Their witness, Mr. Clampitt,

3 indicated it was a joke site.

4 THE COURT: He also indicated that those

5 memes were consistent with what that website does.

6 MR. McKENNA: You will not hear me defending

7 the memes at all.

8 THE COURT: But the memes are racist.

9 MR. McKENNA: I'm not disagreeing with you.

10 THE COURT: What I'm saying is this, if this

11 is a website or a group whose purpose is to use the

12 word joke, tell jokes, but the jokes are racist, then

13 it's the same thing. It is still a white supremacist

14 group. The ideology is the same. Because it is said

15 in a laughing or I will say a mocking fashion doesn't

16 make it any less racist.

17 MR. McKENNA: Obviously, the State will try

18 to merge this joke site into the Alt Reich Nation

19 mission, that is something that we think is absolutely

20 objectionable.

21 I will point out what I think the court

22 talked about. It is pretty clear that Richard Collins

23 thought he was being addressed with the step left

24 comment, just like the other two, because he is the one

25 who responds.

App. 32
 5-95

1 So I don't think there is evidence that this

2 is race based. I don't think there is really any

3 evidence that the memes -- the memes -- I understand

4 they -- we don't like them, obviously. They have

5 nothing at all to do with what happened to Richard

6 Collins. There is no evidence that they do.

7 THE COURT: All right. The court now takes

8 this in a different posture. It is no longer in the

9 evidence most favorable to the State. I analyze the

10 evidence in the case and I find out whether the State

11 has met their burden, and whether a trier of fact, the

12 jury in the case, could find the defendant guilty in

13 these cases.

14 With regard to the murder cases, it is very

15 clear that certainly the State has met their burden.

16 The focus on the court would be with the hate

17 crime charges. Now, I also think it is important to

18 read the statute. 10-304 says because of another

19 person's race, it is race in this case, because of

20 another person's race a person may not commit or

21 attempt to commit a crime against that person. It says

22 because of that person, meaning because of that

23 person's race, meaning that was the sole cause of what

24 happened.

25 In this case we have some evidence of the

App. 33
 5-96

1 defendant's ideology or belief as it pertains to black

2 people. No need to go over that again. He is a member

3 of that group. In fact he didn't just look over this

4 group, he actually thought enough, for whatever reason,

5 to save it, actually save it to his phone. Taking an

6 action in his phone to save it in his phone.

7 In this case he is -- at least in this case

8 he is outside of another bar. His friend, Mr. Akshay,

9 sees him punching a sign or something. Then he walks

10 him up to the bus stop. He leaves him.

11 The State's witnesses hear loud yelling of

12 some nature. Essentially this defendant comes up to

13 them, the three of them, and at some point posed the

14 question "step left, step left." The other two don't

15 respond. I guess they respond by their body because

16 they step away. Lieutenant Collins does not, he said

17 "what," or "no," and then the defendant strikes him in

18 the chest with the knife.

19 The issue is did he strike him in the chest

20 because he was black, or I should say did he strike him

21 in the chest only because he was black? So he could

22 have had -- him being black could have made him I'll

23 say from his perspective more likely that he would

24 inflict harm upon him in that the memes would indicate

25 that he viewed black people as something less than I

App. 34
 5-97

1 will say white people in this case, but the State has

2 to link up on that day, at that time that question that

3 a racist, a homophobe, antisemitic could commit a crime

4 against that other particular group without it being

5 hate based in this case.

6 In this case the court doesn't believe that

7 the State has met their burden with regard to the hate

8 crime charge and, therefore, I will grant the defense

9 motion for a judgment of acquittal for that charge

10 only.

11 MR. McKENNA: Thank you.

12 THE COURT: The other charges there is

13 sufficient evidence the trier of fact could find the

14 defendant guilty of the remaining counts.

15 MR. BRENNAN: Thank you, Your Honor.

16 You can come up and get a copy of the jury

17 instructions.

18 (Handed.)

19 THE COURT: There are no special instructions

20 in the case. We should be able to go over this pretty

21 quickly. Speak up any time if you have an objection or

22 if you want something included.

23 So we start off with the binding nature of

24 the instructions; the presumption of innocence;

25 unanimous verdict; impartiality and consideration; what

App. 35
 5-104

1 (Whereupon, court adjourned for the day.)

3 REPORTER'S CERTIFICATE

5 I, John C. Spear, an Official Court Reporter of the

6 Circuit Court for Prince George's County, Maryland, do

7 hereby certify that I stenographically recorded the

8 proceedings in the matter of State of Maryland versus

9 Sean C. Urbanski, in the Circuit Court for Prince

10 George's County, Maryland, CT 17-1444X, on December 17,

11 2019, before the Honorable Lawrence V. Hill, Jr.,

12 Associate Judge.

13 I further certify that the page numbers one through 103

14 constitute the official transcript of the proceedings

15 as transcribed by me from my stenographic notes to the

16 within typewritten matter.

17 In Witness Whereof, I have affixed my signature this

18 10th day of February 2020.

19

20

21 _________________________________

22 JOHN C. SPEAR
OFFICIAL COURT REPORTER
23

24

25
App. 36