Albrecht v. State

MOYLAN, Judge. A tragic accident occurred on the early evening of May 23, 1991, on Larchmont Terrace in the Gaithersburg area of Montgomery County. Rebecca Garnett, who had just been driving a car carrying a criminal suspect sought by the police for a stabbing, was killed when a shotgun held by Officer Christopher J. Albrecht, the appellant, accidentally discharged. The issue is whether that constituted criminal conduct on the part of the officer.

Officer Albrecht was indicted on one count of manslaughter and two counts of reckless endangerment. Following a nonjury trial in the Circuit Court for Montgomery County, the trial judge found Officer Albrecht not guilty of voluntary manslaughter, guilty of involuntary manslaughter, and guilty of both counts of reckless endangerment. Although Officer Albrecht raises a number of contentions, the pertinent one for our purposes is whether the trial court’s ⁶³³ findings of fact supported its conclusion of law that the defendant was guilty of involuntary manslaughter of the gross criminal negligence variety and of reckless endangerment under Md.Ann.Code art. 27, § 120(a). The Facts On May 23, 1991, Officer Albrecht, along with Officer Marvin Thomas, responded to the stabbing of Timothy Fair in the area of Fairhaven Drive.

One witness, Barbarette Budd, identified the assailant as having been Darnell Budd. She described to Officer Albrecht how the stabbing had occurred during a fight between Timothy Fair, on the one hand, and three other young men, including Darnell Budd, on the other. The stabbing victim, before being transported to the hospital, told the officers that he had known his three assailants prior to the attack and that they were drug dealers. Another witness, Charlotte Daniels, reported that, immediately following the stabbing, Darnell Budd and the other two had left the area in a car driven by Rebecca Garnett.

Other witnesses told Officer Albrecht that the three suspects were known to be involved with guns and that the officer should “watch out” because there might be a gun in the car driven by Rebecca Garnett. Other witnesses told the officers that the three “boys” might have been involved in a robbery. In any event, both officers were alerted to the fact that the three suspects, including Darnell Budd, might well be armed. As the officers were continuing with the interview of witnesses at the crime scene, Barbarette Budd saw the green Chevrolet carrying the suspects speed by.

She yelled, “[T]here goes the car.” Officers Albrecht and Thomas ran to their respective police cruisers and gave brief chase, at high speeds and with sirens and dome lights activated, but lost the suspect vehicle at the outset. After a brief search of the general surrounding neighborhood, however, Officer Albrecht located the vehicle and the suspects on Larchmont Terrace. The car was backed into a parking space. Both Darnell Budd and Rebecca Garnett were standing outside the vehicle.

When they spotted Officer Albrecht approaching, they moved ⁶³⁴ toward the car as if to leave. Darnell Budd was on the passenger side and Rebecca Garnett went toward the driver’s door. Officer Albrecht also noticed a third individual, later identified as James Littlejohn, crouched in the back' seat. Officer Thomas, who was in radio contact with Officer Albrecht while also searching the neighborhood, arrived at Larchmont Terrace a matter of seconds behind Officer Albrecht.

It is the fraction of a minute following Officer Albrecht’s spotting of the suspect vehicle on Larchmont Terrace that is critical to the outcome in this case. We shall reduce the narration to slow motion in an attempt to capture the nuances of those critical seconds. The testimony of Officer Marvin Thomas, who arrived on the scene seconds after Officer Albrecht, depicts the mind-set of both officers as they approached the suspect vehicle. Officer Thomas was on his car radio with the dispatcher, and the entire conversation was captured on audio tape.

Officer Thomas asked the dispatcher to give him a “10-3” so that we could “make sure these clowns aren’t armed.” The officer described that a “10-3” clearance means that no other cars will be talking on the airwaves and that the channel of communication will be kept open exclusively for the officers on the action end of the “10-3.” Officer Thomas explained: “A 10-3 means there are to be no other cars talking on the air so that it’s clear in case anything happens we can get on the air and ask for assistance, immediate assistance. It’s usually when you’re in a high danger, or there’s a high chance that the situation can escalate to very dangerous.” (emphasis supplied). The officers were concerned that the suspects being stopped might be armed and dangerous. Again, Officer Thomas explained: “Well, when I turned on Larchmont I was informed by Officer Albrecht that he had the vehicle.

We still — There was a question as to not only was this the vehicle and were they the people we were looking for, but there still was a ⁶³⁵ question about weapons. So, with him there, my concern was to get there as quickly as possible to make sure that at least there was two of us to confront them. So, yes, I came very quickly.” Officer Thomas was familiar with that general area of the Germantown district. He was asked specifically whether he considered “Larchmont Terrace and its environment to be a particularly dangerous or hostile area.” He replied, “Larchmont, in itself, has quieted down, but at one point it was.” In the section where this confrontation occurred, Larchmont Terrace is a wide paved area, serving, in effect, as both a street and a parking lot for some townhouses that face on it.

It is wide enough to accommodate parking perpendicular to the curb rather than parallel to it. When Officer Albrecht spotted the suspect green Chevrolet, it was backed up to the curb on Larchmont Terrace facing outward. Rebecca Garnett, who had been driving, had gotten out of the driver’s door and was standing off to the right of the vehicle from Officer Albrecht’s point of view as he approached. Utilizing standard procedure, Officer Albrecht brought his police cruiser to a stop in front of and to the right of the suspect vehicle and facing in a direction so that he could use the vehicle as a shield.

His focus was initially and primarily on Rebecca Garnett. Officer Thomas moved his police cruiser into a position in front of the suspect vehicle and off to its left, as he was facing it. Darnell Budd had gotten out of the front passenger seat and was standing off to the left, as the officers viewed the scene. Both officers also observed James Littlejohn, still in the suspect car and apparently crouched in the rear seat.

It turned out that James Littlejohn was blind and posed no threat to the officers, but they did not know this during the initial confrontation. Officer Thomas explained that the position taken by the two officers and their vehicles was pursuant to “a specific procedure” utilized when making a “felony stop” of potentially armed and dangerous suspects in or near a motor vehicle. He ⁶³⁶ also explained why he initially drew a handgun from his holster rather than unlimber a shotgun. The choice of weapons is discretionary with an officer: “The vehicles basically are set up the way that we have the cars parked there, Your Honor.

In a felony stop you can use a shotgun or you can use a handgun. There is no set guidelines. It’s whatever the officer decides to use. You use the vehicle for cover and you bring the suspect away from their vehicle, back to your position.

You secure them, handcuff them, and get them so that they’re safe. You search them. And once everyone is away from the car, secured and searched, then you approach the vehicle cautiously and check the vehicle and make sure there is no one else in it and then you check it for a weapon.” As Officer Albrecht got out of his police cruiser, he released his shotgun from its rack. He yelled at all three suspects, “Stop!

Freeze!” As he did so, he placed a shotgun shell in the chamber and “racked” the gun into a final stage of firing capability. He leveled the gun at Rebecca Garnett. He testified that he then mentally “checked off’ Rebecca Garnett as not being an immediate threat. He intended to swing the shotgun to its left in order to bring it to bear on Budd and Littlejohn.

As he started the move, the shotgun discharged. The blast struck Rebecca Garnett in the chest, killing her almost immediately. When Officer Thomas pulled his vehicle to a stop, he could see that Officer Albrecht was controlling the driver’s side of the suspect vehicle and the person of Rebecca Garnett. Officer Thomas’s position enabled him to direct his attention to the passenger side of the vehicle and Darnell Budd.

He was starting to get out of his police cruiser with his service revolver drawn when he heard the “racking” of Officer Albrecht’s shotgun. It was the “racking” sound that persuaded him to reach immediately back into his own cruiser and to take from the “rack” his own shotgun. It was at that moment that he heard the discharge of Officer Albrecht’s weapon. ⁶³⁷ Initially, neither Officer Albrecht nor Officer Thomas realized that Rebecca Garnett had been hit by the shotgun blast. They both described her as seeming to sit down on the sidewalk as if complying with the orders to “stop” and to “freeze.” When the shotgun discharged, it “jumped” in Officer Albrecht’s grip.

He testified that he lost his grip on the shotgun when it discharged. Shortly thereafter at the station house, he was discovered to have a bruise on his right bicep where the shotgun had hit him as part of its backfire. His immediate reaction to having lost his grip was to regrip his weapon and “rack” a second round into the chamber. Both he and Officer Thomas then proceeded to arrest Budd and Little-john.

It was then that Officer Albrecht turned his attention to Rebecca Garnett and realized that she had been shot. As he began to administer CPR to her, Officer Thomas went to his police radio to send a “10-50” signal — an “officer in trouble” call. The police department audio tape revealed that between the first “10-3,” when the officers were first approaching the suspect vehicle, and the “10-50” call, fifty seconds had elapsed. Sergeant Joseph Mattingly was one of the first police officers to respond to the “10-50.” When he asked Officer Albrecht what happened, the officer replied, “I shot her.

I really fucked up. It was an accidental discharge.” At trial, a number of officers testified that Officer Albrecht was extremely emotional after the shooting. They variously described him as “kind of in a daze,” “very upset” and in a “semi-state of shock.” Officer Albrecht’s own supervisor, Sergeant Douglas McFee, arrived on the scene and took him to the offices of the Fraternal Order of Police two miles away. On arriving, Officer Albrecht ran into the bathroom and vomited.

He kept telling Sergeant McFee repeatedly that he “did not intend to shoot the girl ... it was an accident.” Both testimony and photographs were introduced as to the bruising on Officer Albrecht’s right bicep. The testimony of Officer Joseph Niebauer, of the Technical Services Section, was of great significance on the question of the accidental nature of the discharge of the shotgun. At the station house, shortly after the accident, he examined Officer ⁶³⁸ Albrecht’s shotgun. Initially, it “just struck [him] as being that much heavier with the additional rounds on the sling.” He described his examination of the weapon: “During conversation downstairs I had heard that the weapon had gone off whenever he was bringing it up to his shoulder.

I wanted to see what would happen. So I emptied the weapon out. I had three additional rounds that we had taken out of the magazine and I masking taped them on the inside of the strap to give that, minus the one round that had been in the gun, the equal amount of weight that this strap and all these extra rounds would give you. I made sure the weapon was empty.

I closed the chamber. Folding the weapon, I brought it up to my shoulder and it went off before I got it up to my shoulder. It clicked.” He elaborated: “Just folding the weapon with the additional rounds on it, the magazine closed, the gun cocked, holding it, brought it up to my shoulder and it went off just from the sheer pressure and exertion I was using to fold the gun. Folding the gun, in a like fashion, when I brought it up it went off.” Testimony also established that Officer Albrecht’s shotgun had been fitted with an approved bandolier that held fifteen extra rounds of ammunition.

Courtroom demonstrations showed how the added weight of the bandolier and ammunition made the weapon more likely to discharge accidentally. A firearms instructor, Officer Michael McNally, testified that the bruise to Officer Albrecht’s bicep was consistent with the discharge of the weapon while the butt of the gun was against the bicep rather than being properly positioned at the shoulder. It is not necessary to catalogue further the evidence supporting the conclusion that the shotgun discharged accidentally and that Officer Albrecht did not intentionally shoot and kill Rebecca Garnett. The trial judge was not persuaded that the discharge of the weapon had been intentional.

The critical fact finding of the trial judge as to the unintentional nature of the shooting was: ⁶³⁹ “It is my belief that the Defendant’s shotgun was aimed at Becky Garnett, as well as the others in the immediate vicinity of the green automobile, that Ms. Garnett’s confused reaction to Defendant’s commands startled him into pulling the trigger.” The only issue for review is whether the evidence was legally sufficient to support a finding of gross criminal negligence. Such a finding, as the trial judge properly assumed, would be the indispensable predicate to support both the conviction for involuntary manslaughter and the two convictions for reckless endangerment. The trial judge observed in this regard: “The question in this case, the overriding question in this case, both in terms of the manslaughter and reckless endangerment charges, is whether the conduct overall of the Defendant was reckless, and I will assume that the same measure of recklessness, that it be a gross and wanton deviation from reasonable conduct, would apply to both the manslaughter and the reckless endangerment charges.” The Verdicts Being Reviewed Officer Albrecht’s primary appellate contention is that the three verdicts of guilty against him — one for involuntary manslaughter and two for reckless endangerment — were clearly erroneous, in that the evidence was not legally sufficient to support them. As we undertake that review, we would point out that this opinion will only be understood by those who are meticulously careful to isolate precisely what is here being reviewed and what is not being reviewed.

A single set of facts, a single state of mind on Officer Albrecht’s part served as the predicate for all three convictions. Our review of the legal sufficiency of the evidence, therefore, is effectively reduced from three reviews to a single review. Our reference to actus reus and to mens rea will be in the singular. We are not reviewing whether Officer Albrecht intentionally triggered the shotgun blast that killed Rebecca Garnett.

After hearing two weeks of testimony, the fact-finding judge ⁶⁴⁰ exonerated Officer Albrecht of that. That question has been removed from the case and is not in issue for purposes of our review. The undisputed finding of the trial judge in that regard was that the firing of the fatal shot was unintended: “There has been a welter of evidence in this case, and there is no need to recount it all. One fact is clear beyond dispute — the Defendant fired a shot that caused the death of Rebecca Garnett.

Was it an intended or unintended act? At a minimum, in order for the State to proceed with the charge of voluntary manslaughter, the State would have to convince that the act was intended, and I may say that as to the matter of voluntariness, I have sufficient doubt that I cannot find the Defendant guilty of voluntary manslaughter and I do not.” (emphasis supplied). That verdict did more than dispose of the voluntary manslaughter charge. It also reduced significantly the possible predicate for reckless endangerment.

The reckless endangerment convictions cannot, following that verdict, be supported by the theory that Officer Albrecht recklessly fired his shotgun under circumstances where innocent civilians were possibly in his line of fire. The trial judge was not persuaded beyond a reasonable doubt that the firing of the shotgun had been intentional. A conviction for reckless endangerment, therefore, can only be supported by the theory that the very aiming of the shotgun, with innocent civilians possibly in the line of fire, ipso facto constituted reckless endangerment. Consistent with the acquittal for voluntary manslaughter, the trial judge’s verdict of guilty on the reckless endangerment counts was predicated not on the act of firing the shotgun but on the antecedent act of pointing the shotgun: “It is also clear to me that the issue of recklessness aside, Defendant’s bringing to bear of a loaded shotgun in the direction of the green automobile created a substantial risk of death or serious physical injury to Rebecca Garnett, James Littlejohn and Darnell Budd, and, whether Defendant knew it or not, to Tequila Frazier on her tricycle, Travell Dumar playing nearby, and Carroll Walker standing on the front walk of a friend.” (emphasis supplied). ⁶⁴¹ This high-profile two-week trial was meticulously well tried by the trial judge, by the assistant state’s attorney, and by both defense counsel.

The testimony consumes approximately 1,750 pages of transcript. For purposes of this review, however, much of that testimony is no longer relevant. The expert opinions on such issues as the trigger pull, the shot pattern, the effect of stress, the manufacture of the Remington 870 shotgun, the effect of the weight of the bandolier on possible accidental discharge, were all very relevant at trial but have now become largely irrelevant for purposes of this review. They dealt with the issue, then very much in dispute but now resolved in the appellant’s favor, of whether Officer Albrecht fired the shotgun intentionally.

Irrelevant also, at this stage, are all of the police department directives pertaining to the use of deadly force, to the extent to which the phrase “deadly force” contemplates the actual firing of a weapon and not the mere pointing of a weapon. Quite aside from the numerous expert witnesses and departmental directives, the predominant thrust of the entire case both by the State and by the defense dealt with that question of whether Officer Albrecht pulled the trigger intentionally. The primary focus of the argument from both sides of the trial table was on that question of whether the firing was intentional. That issue, however, has now been resolved and full attention must turn to what was, at trial, the secondary issue — the State’s backup position — that even if the firing of the shotgun was accidental, the antecedent acts of unlimbering, “racking,” and aiming the shotgun were so grossly criminally negligent — so recklessly and wantonly life endangering — as to support verdicts of guilty in any event.

Although the finding of the trial court was that the actual pulling of the trigger was accidental, a nervous twitch or an involuntary muscular spasm as a result of being “startled,” the intentional, antecedent actions for which Officer Albrecht was responsible included the actual aiming of the shotgun at Rebecca Garnett: “It is my belief that the Defendant’s shotgun was aimed at Becky Garnett, as well as the others in the immediate ⁶⁴² vicinity of the green automobile, that Ms. Garnett’s confused reaction to Defendant’s commands startled him into pulling the trigger.” In analyzing the antecedent conduct, without which the accidental firing of the weapon could not have had its fatal consequence (in the case of Rebecca Garnett) or its life-endangering consequences (in the case of others who might have been in the line of fire), the trial judge, correctly in our judgment, equated the mens rea of grossly negligent involuntary manslaughter with the mens rea of reckless endangerment: “The question in this case, the overriding question in this case, both in terms of the manslaughter and reckless endangerment charges, is whether the conduct overall of the Defendant was reckless, and I will assume that the same measure of recklessness, that it be a gross and wanton deviation from reasonable conduct, would apply to both the manslaughter and the reckless endangerment charges, although we did not discuss that I will assume that they are equivalent.” (emphasis supplied). We further agree with the trial judge that, in assessing what is “a gross and wanton deviation from reasonable conduct,” the standard of reasonableness is that of a reasonable police officer similarly situated: “In evaluating the reasonableness of the Defendant’s conduct throughout this case, his actions must be judged from the perspective of a reasonable officer on the scene, rather than with 20/20 vision of hindsight. The reason that is exacted of him is not the reason of the morrow, it is reason fitted and proportioned to the time and event.” (emphasis supplied). Under almost all circumstances, the gratuitous pointing of a deadly weapon at one civilian by another civilian would almost certainly be negligence per se, if not gross negligence per se.

A police officer, on the other hand, is authorized and, indeed, frequently obligated to threaten deadly force on a regular basis. The standard of conduct demanded of a police officer ⁶⁴³ on duty, therefore, is the standard of a reasonable police officer similarly situated. We agree fully with the trial judge’s articulation of the standard against which Officer Albrecht’s conduct must be measured: “I have no doubt that Christopher Albrecht was attempting to do right on the occasion in question and that he acted at all times without malice in his heart. But again, the standard is one of a reasonable officer similarly situated."’ (emphasis supplied).

The utilization of that standard of a reasonable officer, therefore, requires us to review closely the testimony of the various instructors at the police training academy and the various working officers in order to see what the actual evidence in this record establishes, in order to arrive at some conclusion or some consensus as to what “a reasonable officer similarly situated” would probably have done in Officer Albrecht’s place. Only with a determination of the “standard” will we be equipped to determine whether Officer Albrecht’s act of aiming a shotgun at Rebecca Garnett constituted “a gross and wanton deviation” from such a standard. When, after recounting the pertinent facts in this case, we turn to a discussion of the applicable law, we shall examine that quality of mind required to elevate ordinary negligence to gross criminal negligence. We shall try to define that special component of recklessness that is something above and beyond negligence.

In terms of the facts to which we will apply that legal analysis, the verdicts that have already been rendered in this case define and limit that factual universe. As we have said, the issue before us is not whether Officer Albrecht pointed the shotgun at Rebecca Garnett and then intentionally pulled the trigger. He has been exonerated of that. He was found not guilty of voluntary manslaughter, based on the trial judge’s inability to find that the firing of the gun had been an intended act.

We shall accept, therefore, as a given, that the trigger was never intentionally pulled and that the discharge of the shotgun was accidental. The issue at this stage, rather, becomes one of whether Officer Albrecht’s ⁶⁴⁴ conduct in unlimbering the shotgun, in “racking” a shell into the chamber, and in pointing it at Rebecca Garnett in the first instance was itself a criminal act. If it was, it would be equally blameworthy and reprehensible whether the gun went off and Rebecca Garnett was killed or not. If, on the other hand, the acts of unlimbering and pointing the weapon were not in and of themselves criminal, the unintended death of the victim will not make them so.

As Mills v. State, 13 Md.App. 196, 200 , 282 A.2d 147 (1971), cert. denied, 264 Md. 750 (1972) pointed out: “[W]hether an accused’s conduct constituted gross negligence must be determined by the conduct itself and not by the resultant harm. Nor can criminal liability be predicated on every careless act merely because its carelessness results in injury to another.” (citations omitted) (emphasis supplied). As difficult as it is to do when tragedy results and community emotions run high, we must keep our exclusive focus not on the discharge of the shotgun and its deadly conséquence but only on the act of loading and aiming that shotgun in the first instance. We must determine whether the trial judge’s conclusions of law can be supported by his findings of fact.

We must ask whether the evidence could support a finding that the conduct of Officer Albrecht would have been a criminal act of reckless endangerment even if the gun had never gone off and even if no one had ever been hurt. If, ten seconds after Officer Albrecht “racked” his weapon and leveled it at Rebecca Garnett, Officer Marvin Thomas had leveled his shotgun at Darnell Budd, could that act also have been found to have been equally criminal even if his weapon had never discharged? In all circumstances such as those prevailing in this case, might a police officer’s pointing of a loaded weapon at a suspect be found to be criminal per set We must freeze in time the split second before the gun went off and inquire as to whether, at that instant, Officer Albrecht could have been found guilty of gross criminal negligence and reckless endangerment or not. ⁶⁴⁵ The Law Chief Judge Murphy (now Chief Judge of the Court of Appeals), in Mills v. State, 13 Md.App. 196 , 282 A.2d 147 (1971), cert. denied, 264 Md. 750 (1972), provided the best analysis we have yet had of the state of mind necessary to render one guilty of involuntary manslaughter of the gross-criminal-negligence variety. He described it, 13 Md.App. at 200 , 282 A.2d 147 : “It is well settled in this State that where a charge of involuntary manslaughter is predicated on negligently doing some act lawful in itself, the negligence necessary to support a conviction must be gross or criminal, viz., such as manifests a wanton or reckless disregard of human life.” (emphasis supplied).

That state of mind of recklessness is the essentially indistinguishable mens rea for a violation of Art. 27, § 120(a) as well. The reckless endangerment statute provides, in pertinent part: “Any person who recklessly engages in conduct that creates a substantial risk of death or serious injury to another person is guilty of the misdemeanor of reckless endangerment and on conviction is subject to a fine not exceeding $5,000 or imprisonment not exceeding 5 years or both.” Md.Ann.Code art. 27, § 120(a) (1992). Although some states have reserved the phrase “reckless and wanton” for second-degree murder of the depraved-heart variety, Maryland early on decided that the gross criminal negligence necessary for a conviction for involuntary manslaughter required that extreme degree of indifference to the human consequence of one’s actions that can only be described as wanton. The Court in Allison v. State, 203 Md. 1, 5 , 98 A.2d 273 (1953) pointed out that “even an unintentional killing may constitute the crime of manslaughter if it is due to a wanton and reckless disregard of human life.” (emphasis supplied).

See also Hughes v. State, 198 Md. 424, 432 , 84 A.2d ⁶⁴⁶ 419 (1951); Neusbaum v. State, 156 Md. 149, 155 , 143 A. 872 (1928). In Johnson v. State, 213 Md. 527, 531 , 132 A.2d 853 (1957), Chief Judge Brune focused on the subject of gross criminal negligence. He reviewed the earlier Maryland decisions of Hughes v. State, 198 Md. 424 , 84 A.2d 419 (1951); Duren v. State, 203 Md. 584 , 102 A.2d 277 (1954); Thomas v. State, 206 Md. 49 , 109 A.2d 909 (1954); Clay v. State, 211 Md. 577 , 128 A.2d 634 (1957); and Lilly v. State, 212 Md. 436 , 129 A.2d 839 (1957), and concluded: “These cases have uniformly recognized that in order to constitute gross negligence, the conduct of the defendant must be such as to amount to a wanton or reckless disregard for human life or for the rights of others.” (emphasis supplied). 213 Md. at 531 , 132 A.2d 853 . See also Chase v. Jenifer, 219 Md. 564, 569 , 150 A.2d 251 (1959); Craig v. State, 220 Md. 590, 597, 155 A.2d 684 (1959); Palmer v. State, 223 Md. 341, 352 , 164 A.2d 467 (1960); Morris v. State, 4 Md.App. 328, 332-333, 242 A.2d 582 (1968); McFadden v. State, 1 Md.App. 511, 517 , 231 A.2d 910 , cert. denied, 247 Md. 741 (1967).

In State v. Gibson, 4 Md.App. 236, 242, 242 A.2d 575 (1968), aff'd, 254 Md. 399 , 254 A.2d 691 (1969), Chief Judge Murphy had on an earlier occasion looked at the quality of the negligence necessary to support a charge of involuntary manslaughter: “It is well settled in this State that where a charge of involuntary manslaughter is predicated on negligently doing some act lawful in itself ... the negligence necessary to support a conviction must be gross or criminal, viz., such as manifests a wanton or reckless disregard of human life.” (footnote omitted) (emphasis supplied). See also Rolfes v. State, 10 Md.App. 204, 207 , 268 A.2d 795 (1970). ⁶⁴⁷ Both common law manslaughter and the statutory crime of manslaughter by automobile involve the same quality of gross criminal negligence. In State v. Kramer, 318 Md. 576, 590 , 569 A.2d 674 (1990), Judge Orth described gross negligence as conduct that is nothing short of being of an “extraordinary or outrageous character”: “In each case, as a matter of law, the evidence must be sufficient beyond a reasonable doubt to establish that the defendant was grossly negligent, that is, that he had a wanton or reckless disregard for human life.... Only conduct that is of extraordinary or outrageous character will be sufficient to imply this state of mind.

Simple negligence will not be sufficient.” (emphasis supplied). See also Nast v. Lockett, 312 Md. 343, 350-351 , 539 A.2d 1113 (1988); Abe v. State, 230 Md. 439, 440 , 187 A.2d 467 (1963). Albeit in the context of a trespass case, Judge Horney in Griffin and Greene v. State, 225 Md. 422, 429 , 171 A.2d 717 (1961), rev’d on other grounds, 378 U.S. 130 , 84 S.Ct. 1770 , 12 L.Ed.2d 754 (1964), provided for Maryland a general definition of the word “wanton”: “Although there are almost as many legal definitions of the word ‘wanton’ as there are appellate courts, we think the Maryland definition, which is in line with the general definition of the word in other jurisdictions, is as good as any. In Dennis v. Baltimore Transit Co., 189 Md. 610 , 56 A.2d 813 (1948), as well as in Baltimore Transit Co. v. Faulkner, 179 Md. 598 , 20 A.2d 485 (1941), it was said that the word ‘wanton’ means ‘characterized by extreme recklessness and utter disregard for the rights of others.’” Just as Chief Judge Murphy effectively wrote the Maryland law on the subject of involuntary manslaughter of the gross-criminal-negligence variety in Mills v. State, 13 Md.App. 196 , 282 A.2d 147 (1971), cert. denied, 264 Md. 750 (1972), he performed a similar service in Minor v. State, 326 Md. 436 , 605 A.2d 138 (1992), for the then three-year-old Reckless Endangerment Statute.

(Enacted as 1989 Md.Laws 969 and now codified as Md.Ann.Code art. 27, § 120 (1992).) As with ⁶⁴⁸ grossly negligent manslaughter, it is the allegedly reckless conduct itself that is in issue and not the harm that flows from it. For present purposes, it is not the discharge of the shotgun or the death of Rebecca Garnett that is being assessed; the focus is exclusively on the antecedent action of unlimbering, “racking,” and aiming the shotgun. As Chief Judge Murphy pointed out: “It is readily evident from the plain language of § 120(a) that it was enacted to punish, as criminal, reckless conduct which created a substantial risk of death or serious physical injury to another person. It is the reckless conduct and not the harm caused by the conduct, if any, which the statute was intended to criminalize.” (emphasis supplied). 326 Md. at 442 , 605 A.2d 138 .

As Judge Bishop pointed out for this Court in Minor v. State, 85 Md.App. 305, 314-315 , 583 A.2d 1102 (1991), the language of the new Maryland statute employs substantially the language of § 211.2 of the Model Penal Code. Although Maryland has not .adopted the Model Penal Code itself or its definition of “reckless,” a part of that definition, contained in § 2.02(2)(c), was tracked, almost word for word, by the Court of Appeals in Minor v. State, 326 Md. at 443 , 605 A.2d 138 . 1 Model Penal Code and Commentaries § 2.02 (Official Draft and Revised Comments 1985), defines “recklessly” as follows: “A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be. of such nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known ⁶⁴⁹ to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.” (emphasis supplied). In Minor v. State, 326 Md. at 443 , 605 A.2d 138 , Chief Judge Murphy set out the test for recklessness in this state: “The test is whether the appellant’s misconduct, viewed objectively, was so reckless as to constitute a gross departure from the standard of conduct that a law-abiding person would observe, and thereby create the substantial risk that the statute was designed to punish.” (emphasis supplied).

The State attempts to establish such a “gross departure from the standard of care exercised by a reasonable person” by asserting that the very act of pointing a loaded weapon at another constitutes such a gross departure per se and establishes thereby the necessary recklessness. The State cites four cases for that proposition: People v. Andersch, 107 Ill.App.3d 810 , 63 Ill.Dec. 551, 557 , 438 N.E.2d 482, 488 (1982); State v. Barberousse, 458 So.2d 569, 572 , aff'd, 480 So.2d 273 (La.Ct.App.1986); Navarro v. State, 433 So.2d 1011, 1012 (Fla.Dist.Ct.App.1983); People v. Schwartz, 64 Ill.App.3d 989 , 21 Ill.Dec. 765, 770 , 382 N.E.2d 59, 64 (1978). None of those cases is remotely apposite. Each is a situation where a civilian without any occupational mandate pointed a loaded weapon at another civilian.

None of those cases involved as a defendant a police officer, who is empowered to carry a weapon and, under many circumstances, to point it and even to use it. When an officer of the law is charged with having used excessive force, the reasonableness of his conduct will be assessed from the perspective of a reasonable police officer in similar circumstances. Wilson v. State, 87 Md.App. 512, 520-521 , 590 A.2d 562 (1991); Davis v. Muse, 51 Md.App. 93 , 441 A.2d 1089 (1982). The Wilson opinion, 87 Md.App. at 521 , 590 A.2d 562 , quoted with approval, in this regard: “The reasonableness of the force used must be judged in the light of the circumstances as they appeared to the officer at ⁶⁵⁰ the time he acted, and the measure is generally considered to be that which an ordinarily prudent and intelligent person, with the knowledge and in the situation of the arresting officer, would have deemed necessary under the circumstances.

The officer has discretion, within reasonable limits, to determine the amount of force which the circumstances require, and he is not guilty of wrong unless he arbitrarily abuses the power confided in him. Moreover, it is presumed that he acted in good faith.” (footnotes omitted). 5 Am.Jur.2d Arrest § 81 (1962). In the context of assessing the Fourth Amendment reasonableness of a police officer’s use of force, Graham v. Connor, 490 U.S. 386, 396 , 109 S.Ct. 1865, 1872 , 104 L.Ed.2d 443 (1989) observed: “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” To assess Officer Albrecht’s conduct, therefore, in terms of unlimbering, “racking,” and aiming a shotgun — not in firing it — , against the norm of a reasonable Montgomery County police officer, we must examine the evidence to see what it reveals with respect to that norm. What are Montgomery County officers taught as to proper procedures that may be used in such circumstances?

What does the evidence reveal as to the actual conduct of other Montgomery County officers in similar circumstances? Legal Sufficiency Utilizing those standards, we see no evidence in this case from which a fact finder could have been persuaded beyond a reasonable doubt that there was on the part of the appellant such gross criminal negligence so as to demonstrate a wanton disregard for human life. Nor do we see any gross deviation or gross departure from the standard of conduct that a reasonable police officer would employ in similar circumstances. Rebecca Garnett suffered a tragic death.

The appel ⁶⁵¹ lant was unquestionably the homicidal agent. For purposes of our review, however, it is a given that the discharge of the gun was accidental. The only issue before us is whether the pointing of the gun at Rebecca Garnett was, in and of itself, a criminal act. Given the demanding definition of gross criminal negligence, we see no evidence that could rationally satisfy that requirement.

Utilizing the standard of the reasonable police officer, we assess the circumstances from the point of view of a police officer who is looking for one or more culprits in a stabbing, who has been told that the two or three young men involved are drug pushers, who has been told that the subjects may be armed, who has just engaged in a high-speed chase, and who has just located the suspect car with three apparent occupants. The officer is trained to use his own police cruiser as a shield when he confronts a potentially dangerous situation and to make sure the target area is neutralized before proceeding to a calmer inspection. With respect to any reasonable officer in such a circumstance, we have to conclude that his adrenaline would be pumping, his heart would be pounding, and he would be fearful for his own life. When he orders suspects to “freeze,” he is intensely sensitive to compliance with that order.

Officer Thomas was watching Darnell Budd even as the appellant was watching Rebecca Garnett. Officer Thomas’s description of his intense concentration on any hand movement or twitching by Darnell Budd illustrates the emotion that inevitably permeates such a confrontation: “He was facing in our direction. And it was like — It’s hard to — When you’re holding a gun on somebody and they’re doing — they’re just not standing still, Your Honor— its hard to explain, you can’t say what they’re doing with their hands, but their hands, they’re not in their pockets, but they’re not staying within clear sight. They’re not to the point where he’s standing there like this, so that you can see that he’s not doing anything with them.

But he’s just like standing around doing this. And that’s the scary part because very quickly we had scenarios in the Academy ⁶⁵² where one of the instructors stood there, turned around like this, came out with a gun and fired so quickly that I didn’t even have a chance to put my hand on my gun to take it out. And that’s where you realize that so quick someone can come out with a weapon if you don’t get them under control or get them to stop moving so that you can watch what they’re doing. You can be killed, or you can be shot.

And that’s the part where I mean it was real scary because he wouldn’t stop moving.” That was the reaction of a reasonable officer who, presumably, acted appropriately throughout the entire encounter: “You can be killed or you can be shot ... [I]t was real scary because he wouldn’t stop moving.” Police officers are thrown into combat-like situations where incredible coolness is called for. It is one thing to say that occasionally a nervous instinct falls short of the ideal. It is quite another thing to say that such a lapse is criminal, calling for imprisonment in a penitentiary. Once the possible finding of fact that the gun had been fired intentionally was declined, the only evidence of negligence of any sort that the State had was the testimony of Sergeant Robert Muehlenhort.

Sergeant Muehlenhort had been assigned to the Training Academy when the appellant went through the Academy in the fall of 1987. As a faculty member, Sergeant Muehlenhort’s specialty was training the recruits to handle “vehicular take-downs.” He explained that that involved making arrests of people when a vehicle is involved. After going at great length through the training of the recruits in that regard, Sergeant Muehlenhort had the circumstances in the present case posed to him as a hypothetical. He was asked how he would respond.

He answered that he, like the appellant here, would initially take out his shotgun: “In a situation like that, that’s pretty hard to articulate to because there are a thousand variables, you know, that we’re probably missing and there’s a lot of pre-knowledge that an officer would have that he could only articulate to being there. In the basic format that you’re giving me, ⁶⁵³ obviously I would stop, exit my vehicle. In a situation, hypothetically, yes, I’d take my shotgun out — no question— if there’s myself and others and we’re in their “turf,” per se, in other words we’re in their area.” He further explained, however, that although he would take out his shotgun, he would not “rack” it and aim it. The State offers this as essentially its only evidence of a deviation between what the appellant did and what Sergeant Muehlenhort hypothesizes he might have done.

Sergeant Muehlenhort, however, further explained why he would not have “racked” and aimed. He explained that once you aim at a single target you have tunnel vision for that target alone and lose your ability to perceive other dangers that might lie within your peripheral vision. He explained that in the hypothetical situation, he would want to pay particular attention to the second individual outside the passenger door of the car and to the third individual in the back seat. His ultimate explanation was essentially tactical in nature: “Q: Would you rack and aim with your finger on the trigger at the girl with the bag of Fritos?

A: No, because if I racked and aimed, and I aim a shotgun, I’m going to have total tunnel vision. And aiming is like aiming at a target and I don’t see anything to the right or to the left, and I need my peripheral vision because I’m looking at more than one individual. Q: And you are concerned about your safety— A: And my partner’s.” Permitting the State every inference that can be squeezed from Sergeant Muehlenhort’s testimony, it could be found that, in “racking” and aiming his weapon, Officer Albrecht departed or deviated from what Sergeant Muehlenhort would have done. That, of course, is not a meaningful test of anything.

The standard from which deviation, slight or gross, is measured is not Sergeant Muehlenhort but the “norm.” To see what the evidence permitted in terms of a finding as to the “norm,” we must examine closely 1) the tactics taught at the Montgomery County Police Academy, 2) the testimony of the ⁶⁵⁴ various Montgomery County police officers as to what they have actually done in similar circumstances, and 3) the testimony of various Montgomery County police officers as to what they hypothesize they would have done had they been in Officer Albrecht’s shoes. If, of ten officers testifying, one would have done “A” and nine would have done “B,” “A” is not the norm. The norm is not necessarily the model or the ideal; it is what the reasonable officer would do. The evidence may reveal that it was Sergeant Muehlenhort’s posited forbearance that was the actual departure from the Montgomery County “norm.” Only when 1) the “norm” has been established and 2) some departure from that “norm” by Officer Albrecht has additionally been established, would attention turn to what the critical difference might be between a mere departure and a gross departure.

Lieutenant John Michaeljohn, the Director of Training for the Montgomery County Police Department, testified about the Montgomery County policy with respect to the use of deadly force that is taught to the candidates at the police academy. He quoted from the departmental directives to the effect that “shotguns are useful when confronting armed subjects or groups of subjects, especially in high-risk arrest situations.” He testified that it is discretionary with the officer as to when to use a shotgun rather than a police revolver. He gave a general example of when the use of a shotgun would be appropriate: “I’m talking about where the potential exists where you have information that leads you to believe that there is a potential threat on your — there could be a potential threat — on your life or the life of someone else. And a shotgun could be pulled where there probably is more that one person and you may be the only officer arriving on the scene, for example, and you have information that leads you to believe that it could be serious and you have more than one person that you may be dealing with.” Lieutenant Michaeljohn pointed out that officers are free to act on the rumor of weapons and that if the officer has heard that a suspect has a weapon and is leaving in a car, he may ⁶⁵⁵ take that into account in deciding how to respond to a subsequent confrontation.

He pointed out further that “the shotgun is more intimidating and you can do things with the shotgun that you can’t do with the revolver.” He confirmed that the cadets are taught that it is appropriate to use a shotgun when there are multiple dangerous suspects. He was asked to elaborate on the use of the word “intimidating” and the value that the very “racking” of a weapon has in effective crowd control: “Q: All right. You’ve used the word ‘intimidating’ a couple of times, and before you got here the Judge had a couple of questions. Can you describe what you mean by ‘control of the situation’ and the use of intimidation, or the use of an intimidating weapon?

A: Okay. If I stood up and pointed my revolver out across here there would be an awful lot of concern. But if I stood up and racked a round from that shotgun I believe there’d be a lot of people run out of this door. And I believe the level of intimidation would be that much more and that people would really be diving for cover.

Q: What is a police officer’s purpose in raising the level of intimidation? A: To try to lessen the threat upon him or her. Q: Is it fair to say it is to gain control of a given situation? A: Yes, sir.

Without question.” We recount the testimony about the training at the Montgomery County Police Academy and the on-the-street behavior of Montgomery County police officers at the length we do because before we can determine whether there was any legally sufficient evidence of “a gross deviation” or “a gross departure” on the part of the appellant from the standard of conduct that a reasonable Montgomery County police officer would employ, it is necessary to determine what that standard is. Officer Leo Mangum, of the Montgomery County Training Academy, had been the instructor for the candidate class that included the appellant. He described the training that candi ⁶⁵⁶ dates received in the use of the shotgun. They were run through a “shoot/don’t shoot” course called a “Dueltron.” The scenario simulations selected for the shotgun phase of the Dueltron training placed the candidate in the basement of Wheaton Plaza.

In the simulation, an officer has been shot. The candidate with the shotgun is “going to walk point” as he leads another officer, carrying the wounded colleague, out of the area. As the candidate leads the group through the crowd with a loaded shotgun, various cardboard mockups of persons suddenly pop up at him. Some are innocent civilians; some have weapons.

The candidate would swing toward each target with the shotgun but then would have to make an instantaneous decision as to whether the target was “hostile” or “nonhostile.” He would shoot at the hostile targets and refrain from shooting at the nonhostile targets. He also explained how, under the stress of the shoot/don’t shoot scenario, officers sometimes accidentally fired the shotgun at times into the ceiling and at times into the floor. Officer Mangum testified that cadets are taught that, on firing a shot, their next action should always be to “re-rack” their shotguns immediately in preparation for the next encounter. Cadets are also taught that, when aiming a shotgun, they are always to aim at the center mass of the body and are to fire with the intent to kill and not to wound.

Officer Mangum, incidentally, testified as a witness for the State. Officer Michael J. McNally, an instructor at the Montgomery County Training Academy, also testified as a State’s witness. He testified that five hundred Remington 870 shotguns have been distributed to the Montgomery County Police Department. He also testified that he regularly instructs the candidates to keep the safety mechanism on the shotgun disengaged.

He explained that in the stress of combat, the time that it takes to disengage the safety mechanism can sometimes be fatal to an officer. He testified that, in the stress of a combat situation, officers might sometimes pull futilely on the trigger, forgetting the fact that the safety mechanism is engaged. One bit of his testimony was: “A: I teach to carry it with it disengaged. ⁶⁵⁷ Q: Why? A: If — There’s been — There’s some documented cases of officers being killed with a death grip on the shotgun.” Officer McNally explained that Montgomery County has no official policy on whether the safety of a shotgun should be engaged or disengaged when an officer takes it out.

He explained further, however, that he recommended to his classes, including Officer Albrecht’s class, that the safety should be disengaged: “Q: Well, is it your statement that Montgomery County does not, in fact, have an official policy regarding whether the safety should be engaged or disengaged on it? A: No. I just recommend it. It’s not policy. Q: You recommend that it be disengaged? ' A: Correct.” Officer McNally was an instructor when the appellant went through the training academy.

He explained to the class the advantage to be gained, from the police officer’s point of view, in “racking” a shotgun: “Q: What did you explain to your classes back in ’87 about that intimidating factor that the shotgun represents, or can represent? A: Probably one of the most intimidating sounds about the 870 shotgun is that sound when it racks, and I do refer to an incident I had when I was on the road working radar and I’d got into a chase with a car that turned out to be a stolen car. And I knew that before the suspect stopped the car. And I remember when he did stop, we had a long chase all around through Gaithersburg and he stopped over there near Lakeforest someplace.

And when he got out of the car to run, I had come out of the car with the 870 and racked it and told him to halt, and he had told — the suspect told me— later that if he hadn’t of heard that sound he probably wouldn’t have stopped.” Thus, the crack-of-doom-like “racking” of a shotgun that may seem so frightening and so intimidating to a civilian population ⁶⁵⁸ is a standard police maneuver, deliberately calculated to frighten and to intimidate. At issue before us is not the propriety of such a procedure. The only thing in issue is whether Officer Albrecht was guilty of some gross deviation or gross departure from the standard procedure. Former Sergeant Raymond Edward Griffin was a twenty-three-year veteran of the Montgomery County Police Department, a member of the first SWAT Team (Special Weapons and Tactics), the initiator of the first SAT Team (Special Assignment Team), and, from 1981 until 1988, the officer in charge of the Survival Training Program at the Police Training Academy.

As we review this 1,700-page record, although other witnesses were qualified as experts on other subjects, Sergeant Griffin was the only witness to be qualified as an expert on the subject of the police use of deadly force. He had earlier qualified on four occasions as such an expert witness in federal and Maryland courts. Sergeant Griffin described the three standard police stops of an individual as traffic stops, investigative stops, and felony stops. He explained that unlimbering and “racking” a shotgun is an acceptable standard procedure in the course of a felony stop and one as to which the stopping officer has complete discretion: “A: Well, the departmental directive on deadly force states that whenever an officer fears for his life, or feels that the situation may be hazardous to himself — I forget the exact words.

I can read it, if you like — he has, he has his own decision. He can make his own decision on whether to take the shotgun out or not.” He explained further that, as an incident of withdrawing the shotgun, the officer has the right to “rack” it: “A: In a felony stop, if the officer has a right to have his shotgun out, he has the right to rack it and charge the weapon.” He explained yet further that that discretion includes the pointing of the shotgun at a suspect or suspects: ⁶⁵⁹ “Q: What else is the officer then justified in doing after racking and charging the shotgun? A: The officer is justified in pointing the weapon at the suspects or suspect.” Sergeant Griffin also explained why it is important that an officer be pointing a gun at a suspect. The officer thus “beats to the draw” any potential adversary.

If the officer does not begin to aim his weapon until after he sees an adversary’s hand in motion, it is the adversary who will beat the officer to the draw, resulting in a dead or badly injured officer: “Q: What was the rationale of the training regimen regarding the justification of pointing the weapon? A: It is a time factor. A weapon not pointed at a suspect — An officer who is not having the weapon pointed at a suspect, will not have time to bring that weapon down if the suspect decides to pull a gun or to attack the officer, depending on where they are in the particular area. Q: One step back again.

Was the rationale — What was the rationale of the training regimen regarding the justification in racking the shotgun when the shotgun is brought out? A: It’s the same. It’s — The fact is that things — violence— can erupt so quickly that an officer must be prepared as soon as possible to meet that violence. And all those things take precious time.” Sergeant Griffin was the only expert witness to testify on the subject of the police use of force.

It was he who had supervised the training of Officer Albrecht at the police training academy. A full and detailed hypothetical question was put to him involving all of the circumstances leading up to the approach of Officer Albrecht to Larchmont Terrace and prevailing at Larchmont Terrace as the officer approached the suspects. It must be remembered that the conduct of Officer Albrecht that is being reviewed is not the pulling of the trigger. That was accidental.

The conduct being reviewed is the unlimbering, the “racking,” and the aiming of the shotgun at Rebecca Garnett. In terms of whether Officer Albrecht ⁶⁶⁰ deviated from or followed the Montgomery County procedures that had been taught to him at the training academy, Sergeant Griffin responded: “Q: First of all, is that what would be considered a felony stop? A: I would say so. Yes.

Q: In that situation would the officer be justified in utilizing the shotgun? A: Yes. Q: Would the officer be justified in racking or charging the shotgun? A: Yes.

Q: Would the officer be justified in bringing that shotgun to bear on the suspects and the vehicle? A: Yes.” That does not evidence a gross deviation by Officer Albrecht from the standards of a reasonable Montgomery County police officer. Sergeant Griffin testified finally as to the stressful nature of the encounter and the accumulated concerns that would be running through an officer’s mind in the course of that encounter: “A: That would have been a very stressful situation. Q: All right.

And what are the factors, what are the factors, of this scenario or hypothetical that you would indicate would make it a very stressful situation? A: Well, you have, you