Harding v. State

MOYLAN, J. The appellant, Todd Harding, was convicted in the Circuit Court for Baltimore City by a jury, presided over by Judge Videtta Brown, of 1) driving under the influence of alcohol, 2) driving with a suspended license, and 3) refusing to take a breath alcohol test. On this appeal, the appellant raises the single contention that the evidence was not legally sufficient to permit Judge Brown to submit the case to the jury. To cut to the chase, the appellant does not challenge the adequacy of the State’s evidence to show 1) that he was under the influence of alcohol when he was arrested by the police at 1:20 a.m. on October 21, 2013; 2) that at that time, his driver’s license was suspended; and 3) that, when taken to the station house, he refused to submit to a breath alcohol test. The legal sufficiency battle before us focuses exclusively on the narrow issue of whether the appellant had actually been driving the 1965 Chevy pickup truck in which Baltimore City firefighters found him as they responded to a call of “a vehicle accident and report of people trapped” in a truck on Inverness Avenue. ²⁹² Driving: What and When?

The driving while under the influence statute of which the appellant was convicted is Maryland Code, Transportation Article, § 21-902(a), which provides: (a) Driving while under the influence of alcohol: (1) A person may not drive or attempt to drive any vehicle while under the influence of alcohol. (2) A person may not drive or attempt to drive any vehicle while that person is under the influence of alcohol per se. (3) A person may not violate paragraph (1) or (2) of this subsection while transporting a minor. § 11-114 also provides a definition of the verb “drive.” “Drive” means to drive, operate, or be in actual physical control of a vehicle, including the exercise of control over or the steering of a vehicle being towed by a motor vehicle. Proof of the crime, moreover, may consist not only of evidence that shows that the defendant is, when observed by the police or other witnesses, driving in the present tense but also may arise from a permitted inference that the defendant was guilty of driving under the influence in the past tense.

How, the inquiry may go, did the defendant get to the place where he is now observed? In the words of Owens v. State, 93 Md.App. 162, 163 , 611 A.2d 1043 (1992): “This appeal presents us with a small gem of a problem from the borderland of legal sufficiency.” The Version of the Evidence Most Favorable to the State When the emergency call went out at approximately 1:20 a.m. that a vehicular accident had occurred and it appeared that one or more persons might be trapped in the crashed vehicle, Baltimore City firefighters were the first emergency personnel to arrive on the scene. The Baltimore City Police Department and an ambulance arrived shortly thereafter. Firefighter Jeffery Darby observed what clearly appeared to be a crash scene.

An older model Chevy pickup truck had ²⁹³ jumped a curb and crossed the sidewalk and had “nudged into ... bushes” that bordered a fence on the far side of the sidewalk. The vehicle itself was in some distress. Firefighter Darby-observed that there was “a little bit of ... a white smoke steam coming from the vehicle,” as if it were “overheating.” Firefighter Matthew Blair testified that the “white smoke” was coming from the “engine compartment.” When Police Officer Christopher Wesolowski arrived on the scene, the pickup truck was still smoking. Police Officer Tyrone Thomas observed that the truck was “partially up on the curb in the bushes” and radiator fluid was “coming from under the truck going around the curbside, going downhill.” The truck was still running. “[IJt appeared that the truck was still running and it had no type of ignition or anything to turn the truck off.

So I don’t recall how we actually got the truck turned off, but it was no type of ignition. No sign of, like, a key hole or anything.” (Emphasis supplied). From the raw physics of the event alone, it is clear that the pickup truck had been moving and had just come to a sudden and abrupt stop as it bounced over the curb and into the bushes just minutes before the first emergency responders arrived on the scene. Turning our attention to the appellant, we note that as Firefighter Blair approached the pickup truck, he found the appellant “sitting ... like at the driver’s wheel, slumped over ... into the bench [the seat].” He testified that the appellant “seemed out of it” and “wasn’t responsive,” was intoxicated.

Firefighter Darby described the appellant as “slouched over in the front seat,” “laying onto the bench seat,” apparently sleeping. Firefighter Benjamin Filer described the appellant’s head as “laying up against the driver’s door.” The appellant woke up when Firefighter Blair rubbed his chest. At that point the firefighters left the scene because it was apparent that no one was “trapped” and the police and the ²⁹⁴ ambulance were then on the scene. At that point, the appellant got out of the pickup truck and started walking away from it.

Officer Wesolowski first observed the appellant “staggering down the sidewalk going back and forth” toward his house, which was on the same block of Inverness Avenue where the truck was then sitting. It seems that the appellant had almost reached home when he lost control of the pickup truck. When the officer asked the appellant if he “was the driver of the vehicle,” “the appellant didn’t confirm or deny that he was driving.” The officer described the appellant’s demeanor: “He was swearing. He was laughing at times.

He was aggressive, then he was calm. He was changing his demeanor constantly. I immediately smelled an alcoholic beverage when I began talking to him.” Officer Wesolowski tried to conduct a field sobriety test, but the appellant refused to cooperate. The officer then arrested him “on suspicion of a DUI [Driving Under the Influence].” The appellant was thereafter transported to the police station where he refused to submit to a breath alcohol test.

Wflien Officer Thomas checked with dispatch to learn the name of the pickup truck’s owner, he was told that it was Tammy Harman, who happened to be the appellant’s girlfriend. The officer called her to have her retrieve the truck. It was “well over an hour” later that she arrived at the scene. At first “the truck wouldn’t start or go in reverse.” Officer Thomas and the man who had come to the scene with Ms. Harman were able to push the truck off the sidewalk and into the street.

The man, who was Ms. Harman’s daughter’s boyfriend, “got into the driver’s seat” and drove the truck away. Officer Thomas “didn’t know how he started the vehicle.” A Didactic Interlude The evidence thus far recounted is essentially that version of the evidence most favorable to the State. It is, therefore, that version of the evidence and only that version of the ²⁹⁵ evidence which we will examine in assessing whether the State met its burden of production. 1 That corpus of evidence, however, was not quite the entire case most favorable to the State. There was also a permitted inference of consciousness of guilt that would not have been available a few years ago but has now been added to the State’s arsenal.

As an interesting and relatively recent nuance of the law, it behooves us to give it an appreciative nod. Following his refusal to cooperate with Officer Wesolowski in conducting a field sobriety test, the appellant was arrested and transported to the station house. He was there asked to submit to a breath alcohol test. He expressly refused to do so.

The fact of that refusal was introduced into evidence by the State and no limitation was placed on the significance or the weight that the jurors might choose to give it. The admissibility of such a refusal as evidence of consciousness of guilt, however, was not always allowed. Prior to 2001, Maryland Code, Courts and Judicial Proceedings Article, § 10-309 dealt with chemical testing for alcohol, drugs, or controlled dangerous substance and also with the evidentiary consequences of a suspect’s refusal to submit to such a test. In terms of evidentiary consequences, § 10-309(a)(2) then provided: “No inference or presumption concerning either guilt or innocence arises because of refusal to submit.

The fact of refusal to submit is admissible in evidence at the trial.” (Emphasis supplied). At first glance, the two sentences of the then applicable subsection might seem to have been contradicting each other. Why admit the refusal into evidence if no inference could then ²⁹⁶ be drawn from it? The second sentence seemed to permit precisely what the first sentence forbade.

In Krauss v. State, 322 Md. 376 , 587 A.2d 1102 (1991), however, a fragmented (4-3) Court of Appeals resolved the ambiguity. The majority opinion held that the refusal to take the test, albeit technically “admissible in evidence,” was “admissible only where material and relevant to a matter other than guilt or innocence.” 322 Md. at 386 , 587 A.2d 1102 . Thus the matter stood for the next ten years. There was no permitted inference of consciousness of guilt.

By Chapter 2 of the Acts of 2001, the General Assembly rewrote § 10-309(a)(2) so as to eliminate entirely the language that “[n]o inference or presumption concerning either guilt or innocence arises because of refusal to submit.” The removal of that prohibition also removed the shackles from what had been the second sentence, a sentence that after 2001 stood alone without any limitation on the significance a jury might give the evidence of refusal. The preamble to the amending statute provided: “For the purpose of repealing a prohibition against an inference or presumption concerning guilt or innocence arising because of a person’s refusal to submit to a certain test for alcohol ... and generally relating to evidence of a person’s refusal to submit to a certain test for alcohol ... in prosecutions of certain alcohol ... related driving offenses.” (Emphasis supplied). Krauss v. State thereby became a dead letter. Wyatt v. State, 149 Md.App. 554 , 817 A.2d 901 (2003), explicated the new dispensation.

The State, in convicting the defendant of driving under the influence, had relied in part on a permitted inference of guilt arising from the defendant’s refusal to take a breathalyzer test at the police station following his arrest. The defendant had timely objected to the admissibility of the evidence of his refusal to take the test. He also objected to the failure of the trial judge to give a limiting instruction to the jury. ²⁹⁷ “At the close of the case, appellant’s counsel requested that the court instruct the jury that no inference or presumption of guilt arises because of appellant’s refusal to submit to a breathalyzer test. When the court failed to include such an instruction, counsel took exception.” 149 Md.App. at 559 , 817 A.2d 901 .

(Emphasis supplied). A key contention on appeal was that the State’s use of the inference of guilt violated the defendant’s right against self-incrimination as guaranteed by Article 22 of the Maryland Declaration of Rights. Judge James Eyler’s opinion for this Court thoroughly analyzed and rejected the contention, albeit by way of well-considered dicta. 2 The appellant in Wyatt had obviously turned to the Maryland Declaration of Rights because the Supreme Court’s decision in South Dakota v. Neville, 459 U.S. 553 , 103 S.Ct. 916 , 74 L.Ed.2d 748 (1983), had squarely foreclosed any reliance on the federal Fifth Amendment. “Appellant concedes, and we recognize, that the Supreme Court in South Dakota v. Neville ... held that the admission into evidence of a defendant’s refusal to submit to a blood-alcohol test does not offend the constitutional right against self incrimination.” 149 Md.App. at 570 , 817 A.2d 901 . (Emphasis supplied).

Judge Eyler’s opinion rejected Wyatt’s invitation to ignore South Dakota v. Neville and to base a reversal on independent state grounds. “Maryland’s courts have closely followed the reasoning employed by the Supreme Court in Schmerber v. California, 384 U.S. 757 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966), upon which the Neville case relies. Finally, we find appellant’s reasoning to be flawed because other states with constitutional language similar to ours have adopted the Neville holding, finding no conflict with their own state constitutions.” ²⁹⁸ 149 Md.App. at 571 , 817 A.2d 901 . (Emphasis supplied). This Court expressly elected to follow the lead of South Dakota v. Neville. “Finding the reasoning employed by the Supreme Court in Neville persuasive, we hold that admission of the evidence of a defendant’s refusal to submit to a breathalyzer test does not violate the defendant’s right against self incrimination as guaranteed by Article 22 of the Maryland Declaration of Rights.” 149 Md.App. at 576-77 , 817 A.2d 901 .

(Emphasis supplied). Our opinion in Wyatt further pointed out that no less than sixteen state courts had as of 2003 either followed South Dakota v. Neville or had, indeed, anticipated it. 149 Md.App. at 573-74 , 817 A.2d 901 . The Wyatt opinion also dealt with the related requirement that an inference based on a refusal to submit to a test must not only be constitutionally permitted but must also be relevant as well. We held in that regard: