Cagle v. State

Shaw Geter, J. Officer Wesley Cagle, appellant, was one of four officers to respond to a silent alarm triggered at a convenience store in Baltimore City. Two of the officers discharged their service weapons upon making contact with the suspect, who had appeared to be reaching for a knife or a gun. Ten to twenty seconds after the last shot was fired, the suspect indicated that appellant approached, called him a "piece of sh*t," and then fired one round in his groin. A jury in the Circuit Court for Baltimore City subsequently convicted appellant of first-degree assault and use of a firearm in the commission of a felony or crime of violence.

Appellant timely appealed and raises the following questions for our review: I. Did the trial court err, as a matter of law, in failing to grant appellant's motion for judgment of acquittal when the evidence produced by the State was insufficient to support a conviction for first-degree assault and use of a firearm in the commission of a felony or crime of violence?

II

Did the trial court err in denying appellant's motion to use a statement of the Baltimore City State's Attorney as a statement of a party opponent?

III

Did the trial court err in allowing, over objection, the State's extensive cross examination of defense use of force expert on an unrelated case?

IV

Did the trial court err in allowing, over objection, the State's cross examination of appellant about being a "cowboy" or "jump out boy"? V. Did the trial court err in finding that use of firearms in the commission of a felony or crime of violence is applicable to those legally in possession of firearms?

VI

Did the trial court err in precluding appellant from using trial video in closing argument?

VII

Did the trial court err in refusing to allow cross examination of a crucial State's witness as to potential bias? For the reasons discussed below, we shall affirm the judgments of the circuit court. BACKGROUND On December 28, 2014, around 4:00 a.m., Officers Dancy Debrosse, Isiah Smith, Kevin Leary, and appellant responded to a call for service for a triggered silent alarm at a convenience store in Baltimore, Maryland. Officers Smith, Leary, and appellant went into the alley on the side of the store.

Officer Debrosse stayed in front. The officers in the alley noticed what Officer Smith described as "a headboard from a bedroom set" propped up against the wall "so somebody could use it like a ladder to climb up [to] the roof." While the officers were investigating the method of entry, Officer Debrosse radioed that he could see someone inside the store. Officer Debrosse said the man was "wearing a mask" and "headed to the side door." At that point, Officers Leary and Smith positioned themselves in a "V" shape on either side of the door; appellant remained in the alley. The suspect, later identified as Michael Johansen, opened the side door and saw a police car and one of the officers.

Officers Leary and Smith testified that when Johansen opened the door, Officer Smith yelled "let me see your hands" several times. Johansen ignored the commands, walked towards the officers, and reached into his waistband. Officer Smith testified that he could see Johansen grab "something silver" and begin to pull it out of his pants. Fearing it was a knife or a gun, Officer Smith fired his weapon a total of four times.

When Officer Leary heard the gunshots and saw Officer Smith jerk from the recoil of the weapon, he did not know whether Officer Smith had fired his gun or been shot. Believing that Officer Smith may have been shot, Officer Leary made the "split second decision" to fire three rounds at Johansen. Johansen testified that the first shot grazed him in the left ear, and that he was also shot in the neck and hip. Johansen fell backward and landed flat on his back with his legs sticking out of the doorway and upper body remaining inside the store.

Officer Smith testified that Johansen was "hollering in pain"; Officer Leary said that he was not moving at all. Officer Smith then called for an ambulance and reported shots fired. Ten to twenty seconds after the last shot was fired, appellant emerged from the alley with his gun drawn. He circled behind Officer Smith, who was positioned in the street.

Appellant testified that he did not look in Johansen's direction until he rounded Officer Smith and acknowledged that if Johansen had a gun, he could have been shot in the back or side upon exiting the alley. Appellant indicated that Officer Smith was "shaking like a leaf on a tree," and Officer Leary was "frozen," "locked straight in," and "ready to fire." Appellant also claimed that Officer Leary said to "be careful. He's got a gun." Appellant then walked directly into Officers Smith and Leary's line of fire, forcing them to lower their weapons. As appellant approached Johansen, Officers Smith and Leary overheard a brief exchange of words-though neither could hear exactly what was said.

The testimony is conflicting about what happened next. Johansen testified that he said "what was that, like one of them bean bag guns?" Appellant replied "no, it was a .40 caliber, you piece of sh*t," and then shot Johansen once in the groin. Johansen said he was not reaching or grabbing for anything during the exchange. Appellant, by contrast, testified that he repeatedly yelled "let me see your hands.

Let me see your hands. Let me see your hands." Appellant claimed that Johansen pulled his hands up from his waist "like he was taking his shirt off or zipping his jacket and connected to his hand was a shiny silver object." Appellant said that "if it would have been a gun, he could have shot me, I then discharged my weapon at the threat." Officers Leary and Smith provided additional insight into appellant's actions after the shooting. In January 2015, Officer Leary told Internal Affairs that appellant should not have shot Johansen because "the threat was over" and what appellant did was "wrong." During trial, Officer Leary explained that he did not approach Johansen because "you don't know who's in [the store], if there's another person in there. You can't walk in front of two officers that still got their guns pointed.

We're not trained that way." Officer Leary explained that he would have waited for additional units to arrive to assess the area and increase officer safety. Similarly, Officer Smith testified that he did not approach Johansen because "there were still too many unknowns," officers did not know whether anyone else was in the store, and there was no tactical plan in place to secure the scene. During closing argument, appellant argued that the sequence of events leading to the shooting was chaotic, and his use of force was justified because he reasonably believed that Johansen was armed and presented a threat. Appellant also highlighted weaknesses in the State's case, for example: witnesses varied in their description of appellant's location at the time of the shooting; Johansen's prior statement to the police was inconsistent with his testimony at trial; and Johansen's medical evaluation revealed that he was not struck by the bullet fired by appellant.

The State, on the other hand, noted that appellant came out of the alley ten to twenty seconds after the last shot was fired, there was no dispute that appellant had a conversation with Johansen prior to the shooting, and Johansen testified that appellant fired his weapon after calling him a "piece of sh*t." As a result, the State argued that appellant had approached Johansen after the immediate danger was over and did so with the intent to shoot him. The jury ultimately convicted appellant of first-degree assault and use of a firearm in the commission of a felony or crime of violence. Additional facts will be added as they become relevant to the issues below. DISCUSSION I. Sufficiency of the Evidence When reviewing the sufficiency of the evidence to support a conviction, we determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Smith , 374 Md. 527 , 533, 823 A.2d 664 (2003) (emphasis added).

Our role is not to retry the case: "[b]ecause the fact-finder possesses the unique opportunity to view the evidence and to observe first-hand the demeanor and to assess the credibility of witnesses during their live testimony, we do not re-weigh the credibility of witnesses or attempt to resolve any conflicts in the evidence." Smith v. State , 415 Md. 174 , 185, 999 A.2d 986 (2010) (citations omitted). In order to preserve an insufficiency claim, however, a defendant must move for judgment of acquittal during trial, specifying the grounds for the motion in accordance with Maryland Rule 4-324(a). 1 Whiting v. State , 160 Md. App. 285 , 308, 863 A.2d 1017 (2004). The language of Rule 4-324(a)"is mandatory, and review of a claim of insufficiency is available only for the reasons given by appellant in his motion for judgment of acquittal." Id. (citation omitted); see also Starr v. State , 405 Md. 293 , 301-03, 951 A.2d 87 (2008).

Appellant argues that courts have found police officers' use of force reasonable in circumstances where the officer mistakenly believed a suspect possessed a gun and posed a threat to the officer and/or others where in fact the suspect did not possess a gun and thus could not have posed an actual threat. Further, courts must look to whether a reasonable officer on the scene, at the moment of the incident, would have acted in the same manner as the officer accused of unlawful action. In accordance with these principles, and given the information presented to him immediately prior to the shooting, appellant contends that he acted reasonably in his use of force. The State, by contrast, argues that this claim is not preserved because it was not raised below and, even if preserved, Johansen's testimony provided sufficient evidence to support appellant's convictions.

We agree with the State. The crux of appellant's argument in his motions for judgment of acquittal related to his charges of attempted first-and second-degree murder (charges for which he was ultimately acquitted by the jury). Appellant's specific arguments on the first-degree assault and use of a handgun in a felony or crime of violence charges were that the sequence of events leading to the shooting was chaotic, and the State did not prove his bullet struck Johansen. His argument that a police officer's use of force may be reasonable where the officer mistakenly believed a suspect possessed a gun therefore has not been preserved for review.

Nevertheless, we note that appellant approached Johansen ten to twenty seconds after the last shot was fired by Officers Smith and Leary, Johansen testified that he was not reaching or grabbing for anything when appellant approached, and appellant fired his weapon after calling Johansen a "piece of sh*t." Accordingly, in the light most favorable to the prosecution, there was sufficient evidence from which a rational trier of fact could have found the essential elements of first-degree assault and use of a firearm in the commission of a felony or crime of violence. 2 II. Statements of Baltimore City State's Attorney Marilyn Mosby, the State's Attorney for Baltimore City, announced that appellant would be charged with the shooting of Michael Johansen at a press conference on August 19, 2015. The State's Attorney also mentioned that "three of the four officers acted justifiably and appropriately within the Baltimore police protocol including two officers who fired their service weapons [Officers Smith and Leary] upon confronting a masked suspect who has also been charged with burglary." Appellant sought to admit these statements under the hearsay exception for a statement of a party-opponent during his trial. The court found that Mosby's statements were irrelevant because she did not have personal knowledge of the incident and they were offered to prove the truth of the matter asserted.

The court explained: That the statements made by Ms. Mosby on the street, pre-trial, and in the [announcement] of this indictment are anything more than an announcement to the public of the charges to be brought and the party against who they are being brought. Until and unless either [of the prosecuting attorneys] throws away some of these charges in this courtroom in closing argument, those are hearsay statements offered for the truth of the matter asserted by a party who has no knowledge, no personal knowledge, has nothing to do with what goes on in this courtroom and are not [statements] that are trustworthy, truthful and ... no inferences can be drawn that are reasonable in this matter. The court also found that the statements were not probative of any fact of consequence because appellant was seeking to prove a negative. The court stated: It's another attempt by [defense counsel] to prove a negative.

You want to prove that your client didn't do it because two other people were found to act-[to] have acted reasonably by another party who chose to charge or not charge. We're not proving negatives. The only thing we're proving is positives if they can do so beyond a reasonable doubt. As a result, the court excluded the statements from appellant's trial.

On appeal, appellant argues that State's Attorney Mosby's statements are relevant, not specifically to the State's case per se, but rather to his defense that it was reasonable to discharge his weapon at Johansen under the circumstances. Since Mosby's statements would allow the jury to more accurately compare and contrast the actions of Officers Leary and Smith with those of appellant, the court erred in excluding the statements. Conversely, the State notes that its theory at trial was that appellant approached Johansen after the immediate danger was over and did so with the intent to shoot him. Accordingly, what the elected State's Attorney thought about Officer Leary or Smith's decision to shoot Johansen was irrelevant because it did not make any fact salient to appellant's criminal culpability more or less likely to be true.

Maryland Rule 5-401 defines relevant evidence as "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." We have recognized that "police officers, when arresting a suspect, have the right to take reasonably necessary measures to make the arrest in a manner that protects both the public and themselves." Tavakoli-Nouri v. State , 139 Md. App. 716 , 731, 779 A.2d 992 (2001). Where, as here, an officer has been accused of using excessive force in the course of an arrest, evidence is relevant as to whether the officer's actions are objectively reasonable in light of the facts and circumstances confronting him. Branch v. McGeeney , 123 Md. App. 330 , 348, 718 A.2d 631 (1998). "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." Graham v. Connor , 490 U.S. 386 , 396, 109 S.Ct. 1865 , 104 L.Ed.2d 443 (1989).

In this case, State's Attorney Mosby's statements that Officers Leary and Smith acted reasonably could not have been known to appellant while he was "on the scene" because they addressed the results of an investigation that occurred after the shooting took place. Additionally, as noted by the trial court, Mosby did not have personal knowledge of appellant's actions, and appellant sought to introduce the statements to prove a negative-that he acted reasonably because the State's Attorney believed Officers Leary and Smith acted reasonably. Therefore, it cannot be said that the statements had "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," Md. Rule 5-401, and the court did not err in excluding Mosby's statements. 3 III. Cross Examination of Defense Expert During his case-in-chief, appellant called Emanuel Kapelsohn, who was accepted as an expert in the areas of police firearms, training, tactics, shooting scene reconstruction, and use of force.

Kapelsohn testified that it was reasonable for appellant to approach Johansen because Officers Leary and Smith had just fired their weapons, and standard police procedure is that the first officers to fire should not be the ones to inspect, disarm, or handcuff a suspect. Next, Kapelsohn credited appellant's testimony that Johansen was moving his hands inside of his waistband-an area where police are trained and know from experience that suspects place weapons-and he noted Officer Leary told appellant that Johansen had a gun. As a result, Kapelsohn concluded that it was reasonable for appellant to fire one shot at Johansen until he could see Johansen's hands and felt the threat was over. On cross examination, the prosecutor sought to establish that Kapelsohn was biased toward police officers and thus not a credible witness.

For example, the prosecutor asked Kapelsohn whether he ever found a shooting to be unreasonable in his nineteen years while serving on a shooting review board for Berks County, Pennsylvania. Kapelsohn said that he did, once. The prosecutor then asked whether Kapelsohn had ever testified for the State against a police officer in the approximately 300 times he testified as an expert. Kapelsohn responded that he had not.

As further evidence of bias, the prosecutor asked about a case arising out of Kenosha, Wisconsin, where Kapelsohn was called as an expert witness and opined that a police officer named Pablo Torres' use of force was reasonable. Specifically, the prosecutor questioned the use of a video made by Kapelsohn that showed a bucket filled with twelve pounds of sand could break wooden boards, a watermelon, and clay pots-even though the victim in that case was holding an empty five-gallon bucket. Defense counsel raised a number of objections, but they were overruled by the trial court. On appeal, appellant argues that the line of questions involving the Torres case were irrelevant because Johansen was not holding a bucket or swinging a weapon at the time of the shooting.

Further, even if relevant, the questions created a risk that the jury might believe that because Johansen was unarmed, no officer acted reasonably. As a result, appellant argues that the prosecutor's questions were misleading and presented a danger of unfair prejudice. The State, on the other hand, argues that this issue has not been preserved because appellant objected to only a small portion of the testimony he challenges on appeal. However, even if preserved, the State argues that the prosecutor's questions were relevant to Kapelsohn's credibility, and the trial court acted within its discretion in allowing the prosecutor to ask them.

The Court of Appeals has explained that a "trial court has broad discretion in determining the scope of cross-examination, and we will not disturb the exercise of that discretion in the absence of clear abuse." Martin v. State , 364 Md. 692 , 698, 775 A.2d 385 (2001). While such discretion is not unlimited, "a cross-examiner must be given wide latitude in attempting to establish a witness' bias or motivation to testify falsely." Id. (citation omitted). The grounds for impeachment by inquiry of a witness are set forth in Md. Rule 5-616, which states: "[t]he credibility of a witness may be attacked through questions asked of the witness, including questions that are directed at ... [p]roving that an opinion expressed by the witness is not held by the witness or is otherwise not worthy of belief" or "[p]roving that the witness is biased, prejudiced, interested in the outcome of the proceeding, or has a motive to testify falsely." Md. R. 5-616(a)(3)-(4).

In this case, the State is correct in that appellant did not object each time the prosecutor asked about the video Kapelsohn made in the Torres case. See Wimbish v. State , 201 Md. App. 239 , 261, 29 A.3d 635 (2011) (citation omitted) ("[O]bjections must be reasserted unless an objection is made to a continuing line of questions."). However, there appears to be at least one objection made by defense counsel that is not reflected in the transcript, 4 and the court overruled two related objections when the prosecutor asked about facts in the Torres case. In an abundance of caution, and since the State was not deprived of admitting evidence on this issue at trial, we shall treat appellant's claim as preserved for review.

Otherwise, we agree with the State. Kapelsohn was a key witness for the defense. He was the only person to testify that appellant's use of force was justified, and if the jury found his testimony more credible than that of the State's witnesses, verdicts of not guilty would have followed. Since the prosecutor's questions were intended to prove bias toward police officers, the trial court was within its discretion to afford the prosecutor "wide latitude in attempting to establish [Kapelsohn's] bias or motivation to testify falsely." Martin , 364 Md. at 698 , 775 A.2d 385 .

IV

Appellant's Cross Examination On cross examination, the prosecutor asked appellant about his prior positions within the Baltimore Police Department, including his time in the Violent Crime Impact Division (VCID). Specifically, the