Koushall v. State

Marlon Koushall v. State of Maryland, No. 2031, September Term, 2019. Opinion by Fader, C.J. MUNICIPAL CORPORATIONS — POLICE — CRIMINAL RESPONSIBILITY An officer is not criminally or civilly responsible for assault or battery if the officer uses only the amount of force reasonably necessary to discharge the officer’s official duties. PUBLIC EMPLOYMENT — CRIMINAL RESPONSILBITY — OFFENSES Malfeasance is not a modality of misconduct in office, but rather a type of behavior that can be used to prove the “corrupt behavior” element of misconduct in office. CRIMINAL LAW — NATURE AND ELEMENTS OF CRIME — MERGER OF OFFENSES Misconduct in office and second-degree assault do not merge under the required evidence test.

Circuit Court for Baltimore City Case No. 119038015 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2031 September Term, 2019 ______________________________________ MARLON KOUSHALL v. STATE OF MARYLAND ______________________________________ Fader, C.J., Arthur, Gould, JJ. ______________________________________ Opinion by Fader, C.J. ______________________________________ Filed: February 26, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2021-02-26 12:29-05:00 Suzanne C. Johnson, Clerk Marlon Koushall, the appellant, challenges the sufficiency of the evidence supporting his convictions for second-degree assault and misconduct in office by a judge sitting in the Circuit Court for Baltimore City. The charges stemmed from an incident in which Mr. Koushall, who was working as a Baltimore City police officer, struck Henrietta Middleton in the head while responding to a request for backup. Mr. Koushall contends that no reasonable factfinder could have found that his conduct was not justified. Mr. Koushall also argues that his convictions for second-degree assault and misconduct in office should have been merged for the purpose of sentencing.

We discern no error by the trial court. Accordingly, we will affirm the judgments. BACKGROUND1 This case arises out of an altercation that occurred in August 2018 between Mr. Koushall, at the time an on-duty sergeant for the Baltimore City Police Department (the “Department”), and Henrietta Middleton, an off-duty sergeant with the Department, outside of Norma Jean’s, a strip club in Baltimore. Before Mr. Koushall’s arrival on the scene, Sgt.

Middleton was with a group of women who had emerged from Norma Jean’s, where they had been attending a bachelorette party for another off-duty officer, Detective Wanda Johnson. All of the women were in plain clothes and most had been consuming alcohol. When the group exited Norma Jean’s, one of its members began to argue with a woman who was not part of their group, Jane Stancil. The argument had gotten physical 1 This recitation of facts reflects that, when reviewing a conviction for evidentiary sufficiency, we view the evidence “in the light most favorable to the prosecution.” State v. Morrison, 470 Md. 86, 105 (2020). when Officer Anthony Pujols, a beat officer on the scene, attempted to separate Ms. Stancil from the others, and called for back-up.

Meanwhile, Sgt. Middleton attempted to shepherd the other members of the bachelorette party away from Norma Jean’s. Mr. Koushall, who was on-duty nearby, responded to the call for backup. When he arrived, he approached Officer Pujols.

At the same time, Sgt. Middleton began to walk back toward Ms. Stancil, who was still being restrained by Officer Pujols on the sidewalk outside Norma Jean’s. Sgt. Middleton, who believed that Ms. Stancil had spat at her, spread her arms out to her sides as she approached and asked, “what are you spitting for?” As Mr. Koushall approached, he shouted at Sgt.

Middleton to “back up,” and then, before she could react to that command, he pushed her back and struck her on the left side of her face. Sgt. Middleton testified that she had not had any physical contact with Mr. Koushall before the strike. Nicole Blake, a private security guard who witnessed the incident, testified that Mr. Koushall “pulled back his fist all the way and then hit [Sgt.

Middleton],” while Sgt. Middleton was talking and her hands were down. As shown in security camera footage, less than five seconds passed between Mr. Koushall’s approach and his strike. After the strike, Sgt.

Middleton attempted to flee, but Mr. Koushall grabbed her by the hair and took her to the ground. At that point, both Ms. Blake and Officer Pujols intervened to protect Sgt. Middleton. Ms. Blake ran in between Mr. Koushall and Sgt.

Middleton, shielded Sgt. Middleton, and “pushed [Mr. Koushall] out of the way.” Officer Pujols, thinking that Mr. Koushall was going to punch Sgt. Middleton again, “got on [Mr. Koushall’s] back” to intervene. Mr. Koushall then told Sgt.

Middleton that she was under arrest. 2 The Department cited Sgt. Middleton for disorderly conduct, failure to obey a lawful order, assault on a police officer, and resisting arrest. However, when the State’s Attorney’s Office received the case and reviewed the evidence, it decided to instead pursue charges against Mr. Koushall. The State subsequently indicted Mr. Koushall for second- degree assault and misconduct in office.

Mr. Koushall elected a bench trial, which took place in September and October 2019. The State called three members of the bridal party: Sgt. Middleton, Det. Dominique Wiggins, and Det.

Johnson. Their largely consistent testimony was that Mr. Koushall approached Sgt. Middleton, might or might not have said something to her,2 and then struck her in the face before she could respond. The State also called Ms. Blake, the private security guard, who described the incident and testified that she intervened because she feared for Sgt.

Middleton’s safety. Officer Pujols testified as to his recollection of the incident and stated that he tried to “pull [Mr. Koushall] away . . . with a bear hug” because he was worried that the interaction was going to get out of hand. Mr. Koushall offered the testimony of Dr. Charles J. Key, an expert in use of force and police training. Dr. Key testified that when an individual is displaying “active aggression,” an officer is authorized under Department guidelines to use hand and foot strikes to restrain the individual.

He explained that active aggression includes “an imminent threat of an attack . . . and/or an actual attack where the person attempts to strike 2 Sgt. Middleton recalled being told to “back up.” Det. Johnson did not hear Mr. Koushall say anything, and Det. Wiggins did not recall whether Mr. Koushall had said anything before striking Sgt.

Middleton. 3 or actually strikes,” such as “lunging towards the officer, taking a fighting stance, [or] striking the officer with hands, fists[.]” Dr. Key testified that, in his opinion, Sgt. Middleton was displaying active aggression toward Mr. Koushall and, therefore, Mr. Koushall was justified in striking Sgt. Middleton as he did and would have been justified in using even greater force. Mr. Koushall testified on his own behalf.3 He contended that Sgt.

Middleton had aggressively approached him in a fighting stance and that his response had been appropriate. He claimed that he gave Sgt. Middleton a verbal warning to back up and struck her only after she failed to comply. Mr. Koushall also testified that Department guidelines called for de-escalation techniques when possible and appropriate before resorting to the need for force.

The trial court found Mr. Koushall guilty of both second-degree assault and misconduct in office. The court expressed doubts regarding the credibility of at least some of the testimony of all of the fact witnesses and indicated that it relied in significant part on its review of the security camera footage. The court found that Mr. Koushall’s “perception of [Sgt. Middleton’s] active [aggression]” was not reasonable and that he had not reacted reasonably to her behavior or attempted to get the situation under control. 3 The defense additionally called three other officers.

Officer Justin Vitek arrived on the scene right as Mr. Koushall struck Sgt. Middleton and testified primarily about the aftermath of the altercation. Officer Yolanda Nelson testified that she did not witness the altercation in person, but she advised Mr. Koushall to press charges against Sgt. Middleton after viewing security camera footage.

Finally, Lieutenant Jason Yerg testified regarding citations that were issued to Sgt. Middleton for her role in the fracas. Lt. Yerg explained that those citations were never formally filed with the court system. 4 Instead, Mr. Koushall had “overreacted [to] everything,” the “force he used was totally disproportionate to the need,” and, the court found, he had the “intent to do more than [to] get [Sgt.] Middleton under control.” The court concluded that Mr. Koushall’s “actions were not reasonable given the totality of the circumstances.

They went beyond what a reasonable officer would have done with his training and experience under the same circumstances.” The court sentenced Mr. Koushall to three years’ imprisonment, all suspended except time served for the assault charge, and six years’ imprisonment, all suspended except time served for the misconduct charge. Mr. Koushall timely appealed. DISCUSSION Mr. Koushall contends that there was insufficient evidence to sustain his convictions and that the trial court erred by not merging his convictions for sentencing purposes. We conclude that the evidence was sufficient to sustain both convictions and that merger was not required and, accordingly, will affirm.

In analyzing whether there was sufficient evidence to support the verdict, we ask 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. Morrison, 470 Md. 86, 105 (2020) (quoting Smith v. State, 415 Md. 174, 184 (2010)). “We give due regard to the [fact finder’s] finding of facts, its resolution of conflicting evidence, and, significantly, its opportunity to observe and assess the credibility of witnesses.” Spencer v. State, 450 Md. 530, 549 (2016) (quoting Harrison v. State, 382 Md. 477, 487-88 (2004)) (internal quotation marks omitted). “[O]ur concern 5 is only whether the verdict was supported by sufficient evidence, direct or circumstantial, which could fairly convince a trier of fact of the defendant’s guilt of the offenses charged beyond a reasonable doubt.” State v. Manion, 442 Md. 419, 431 (2015) (quoting Taylor v. State, 346 Md. 452, 457 (1997)). Accordingly, we will overturn the convictions only if, upon review of the evidence, we determine that the judge’s decision was clearly erroneous. Manion, 442 Md. at 431 . We review “without deference the question of whether a sentence is legal.” State v. Wilson, 471 Md. 136, 178 (2020).

I. THE EVIDENCE WAS SUFFICIENT TO CONVICT MR. KOUSHALL OF BOTH SECOND-DEGREE ASSAULT AND MISCONDUCT IN OFFICE. Mr. Koushall contends that the evidence produced at trial was insufficient to sustain his conviction for second-degree assault because the State did not present any evidence that he acted without justification. He also contends that because the misconduct in office charge was predicated on the defective second-degree assault charge, that conviction too must be overturned.

We hold that the evidence was sufficient to sustain both convictions. A. Second-Degree Assault There are three types of second-degree assault in Maryland: intent to frighten, attempted battery, and battery. State v. Frazier, 469 Md. 627, 644 (2020). Mr. Koushall was convicted of the battery type of second-degree assault, which required the State to prove that “(1) [he] caused offensive physical contact with, or harm to, [Sgt.

Middleton]; (2) the contact was the result of an intentional or reckless act of [Mr. Koushall] and was not accidental; and (3) the contact was not consented to by [Sgt. Middleton] or was not 6 legally justified.” Nicolas v. State, 426 Md. 385, 403-04 (2012). Mr. Koushall does not dispute the first two elements: He struck Sgt. Middleton and he did so intentionally.

The only question is whether the evidence was sufficient for the court to find beyond a reasonable doubt that he was not justified in doing so. The resolution of that question requires consideration of the law enforcement justification defense. The law enforcement justification defense provides that if an officer uses only “that force reasonably necessary to discharge his official duties . . ., [the officer] is not liable civilly or criminally for the assault or battery that may result[.]”4 Wilson v. State, 87 Md. App. 512, 519 (1991); see also Riley v. State, 227 Md. App. 249, 258 (2016) (stating that a police officer can “raise the affirmative defense of law-enforcement justification” as a defense to criminal prosecution). In considering an officer’s conduct, “the standard of review . . . is one of reasonableness.

A police officer is adjudged by a different standard than that we accord to an ordinary citizen. [The officer’s] duties in society are markedly different. Actions that are reasonably necessary to effect [the officer’s] responsibilities go unpunished[.]” Wilson, 87 Md. App. at 519 . That is because a law enforcement officer “is authorized and, indeed, frequently obligated to threaten deadly force on a regular basis. 4 Mr. Koushall contends that law enforcement justification is an element of assault, not an affirmative defense. He is technically incorrect.

Law enforcement justification is an affirmative defense that must be raised by the defendant. Riley v. State, 227 Md. App. 249, 258 (2016). However, as in any criminal case, the burden of persuasion to prove the elements of a charge is on the State. Evans v. State, 28 Md. App. 640, 654 (1975), aff’d, 278 Md. 197 (1976).

Mr. Koushall was indisputably working as a law enforcement officer at the time of the altercation. Thus, once he invoked the defense, the State bore the burden to prove that Mr. Koushall’s actions were not justified based on the application of that defense. Cf. In re Lavar D., 189 Md. App. 526, 578 (2009) (explaining burden of production and persuasion in context of self-defense affirmative defense). 7 The standard of conduct demanded of a police officer on duty, therefore, is the standard of a reasonable police officer similarly situated.” State v. Pagotto, 361 Md. 528, 549 (2000) (quoting State v. Albrecht, 336 Md. 475, 501 (1994)).

Mr. Koushall contends that the evidence was insufficient to convict him of assault because the State failed to produce any evidence that his actions were not justified. Relying almost exclusively on his own testimony and that of his expert witness, Dr. Key, Mr. Koushall argues that no reasonable factfinder could have concluded that his actions were not reasonable. The State responds that it presented a “profusion” of evidence that Mr. Koushall’s conduct was objectively unreasonable, including: (1) Sgt. Middleton’s testimony that she did not make contact with Mr. Koushall before he struck her; (2) security camera footage of the incident and testimony of other witnesses that support Sgt.

Middleton’s account; (3) testimony and video evidence regarding Officer Pujols’s and Ms. Blake’s responses to Mr. Koushall’s actions; and (4) departmental guidelines for the use of force that Mr. Koushall violated. The court made a factual finding that a reasonable officer in Mr. Koushall’s position would not have reacted in the manner that he did. Were the only evidence in the record the testimony of Mr. Koushall and Dr. Key, we might be constrained to agree with Mr. Koushall that the court erred. But that is not the case.

In effect, Mr. Koushall asks us to credit the testimony of some witnesses above others and to weigh the evidence differently than the trial court did. That is not our role. See Morrison, 470 Md. at 105 (“The purpose of our review is not to engage in a ‘review of the record that would amount to, in essence, a retrial of the case.’”) (quoting Titus v. State, 423 Md. 548, 557 (2011))). 8 Rather, we must give “due regard” to the trial court’s findings of facts, resolution of conflicting evidence, and evaluation of witness credibility. Spencer, 450 Md. at 548 .

If, taking the facts in the light most favorable to the State, any reasonable factfinder could have come to the same conclusion that the court did, our inquiry is at an end. Morrison, 470 Md. at 105 . Taking the facts presented at trial in the light most favorable to the