Pagotto v. State

MOYLAN, Judge. ²⁷⁶ [[Image here]] On the matrix of blameworthy states of mind that will support a verdict of either civil liability or criminal guilt on the part of an unquestioned homicidal agent, one of those mental states is that in which the homicidal agent causes an unintended death by carelessly or “negligently doing some act lawful in itself.” Dishman v. State, 352 Md. 279, 291 , 721 A.2d 699 (1998); Cox v. State, 311 Md. 326, 331-32 , 534 A.2d 1333 (1988). The fault involved in such negligent conduct may come in any of three degrees. At the bottom end of the culpability scale is mere civil liability for a wrongful death, where there may be uncontestable fault and perhaps heavy civil liability but still something less than criminality. From the point of view of the criminal law, it is the level of homicide known for the last 600 years as excusable homicide.

It is noncriminal. ²⁷⁷ Higher up the ascending scale of blameworthy negligence are those more “gross deviations” from the standard of care used by an ordinary person where the negligent conduct can reasonably be said to manifest “a wanton or reckless disregard of human life.” Dishman v. State, 352 Md. at 291 , 721 A.2d 699 ; State v. Albrecht, 336 Md. 475, 499 , 649 A.2d 336 (1994). That level of fault constitutes involuntary manslaughter of the gross negligence variety. Yet higher still on the culpability ladder are those acts of a life-endangering nature so reckless that they manifest a wanton indifference to human life. That level of blameworthiness constitutes second-degree murder of the depraved-heart variety.

Definitionally, the Maryland case law has yet provided no meaningful distinction between those last two levels of culpability. “[0]ur cases have not drawn a precise line between depraved heart murder and involuntary manslaughter.” Dishman v. State, 352 Md. at 299 , 721 A.2d 699 . As an abstract matter, however, we know that there is— somewhere — such a line. There must be or else there is no legally cognizable distinction between murder and manslaughter. In considering this appeal, our analysis will be confined exclusively to this single vertical column of ascending and descending culpability, rising from mere civil negligence at the bottom to gross-negligence manslaughter in the middle to depraved-heart murder at the top.

Our concern, moreover, will be with the procedural devices that may be available to trigger or to limit movement upward and downward within that vertical column. ²⁷⁸ [[Image here]] Is there a single, entry-level burden of production requiring a mere prima facie case as to some negligence with the ultimate level of culpability then being consigned to the idiosyncratic and unfettered weighing process of the fact finder? Do we simply give the jurors the appropriate definitions and turn ²⁷⁹ them loose? Or are there intermediate and progressively more demanding burdens of production that must be met by the State, as a matter of law, before the fact-finding process is even ratcheted up from one to the next higher level of possible culpability? If so, what precisely are those progressively more demanding burdens?

It is clear that each legally cognizable level of culpability has its own unique burden of production that must independently be satisfied before a fact finder will be permitted even to consider civil liability or criminal guilt at that level. A plaintiff, suing a defendant for an injury caused by the defendant’s alleged negligence, must establish a prima facie case of negligence for the issue of liability even to be submitted to the jury. Isen v. Phoenix Assurance Co., 259 Md. 564 , 270 A.2d 476 (1970). In a case charging involuntary manslaughter of the gross negligence variety, as we graduate upward, the State will not be permitted to take its case to the jury simply by proving a prima facie case of ordinary negligence.

It must meet an additional and higher burden of production by showing such gross negligence, above and beyond mere civil negligence, as to evidence “a wanton or reckless disregard for human life.” There are a number of cases where ordinary negligence has been established or assumed but where the evidence was nonetheless held, as a matter of law, to have been legally insufficient to have permitted the jury even to consider a manslaughter verdict based on gross criminal negligence. Plummer v. State, 118 Md.App. 244 , 702 A.2d 453 (1997); Johnson v. State, 213 Md. 527 , 132 A.2d 853 (1957); Thomas v. State, 206 Md. 49 , 109 A.2d 909 (1954). Although as yet no Maryland decision has had to come to grips with the issue, it is logically ineluctable that even a prima facie case of gross criminal negligence would not, ipso facto, survive a motion for judgment of acquittal on a murder count and justify submitting to the jury a charge of second-degree murder of the depraved-heart variety. A yet higher burden of production would intervene and require a prima ²⁸⁰ facie case as to some state of mind even more blameworthy than gross criminal negligence.

Were that not a legal requirement, then every case of involuntary manslaughter of the gross negligence variety properly submitted to a jury would automatically permit a verdict of second-degree murder. 1 When that issue arises as to what the precise burden of production is before the jury may even consider depraved-heart murder, the appellate courts will, to be sure, have to do some serious grappling with some treacherously ambiguous earlier language. But when that time comes, one must have faith, our courts will somehow surmount the linguistic hurdle. 2 We are relieved of that challenge in this case, however, because the State never charged the appellant with second-degree murder of the depraved-heart variety. As a purely doctrinal exercise, one wonders why. In any event, the unveiling of the content of the burden of production as to depraved-heart murder will have to await another day.

In considering this appeal, therefore, the question of how, prima facie, to get to the highest level of this vertical column of culpability need not concern us. By the same token, we need not concern ourselves with the entry-level question of how, prima facie, to get into the negligence column at its lowest level. Taking, as we must, that version of the evidence most favorable to the State’s case, the appellant was prima facie accountable for ordinary civil ²⁸¹ negligence that contributed at least in part to the victim’s death. Our focus in this case, therefore, will be on the second and intermediate burden of production that must be satisfied to raise a case of prima facie civil negligence to the level of prima facie gross criminal negligence. 3 Our focus, therefore, must not be on the negligence per se but only on the INCREMENTAL elements or characteristics that are required to ESCALATE ordinary civil negligence, be it ever so grievous in its consequences, into a genuine case of gross criminal negligence.

In this case, the homicidal agency of the appellant is a given. The actus reus of some negligence is also a given. Our attention must be on WHAT FURTHER PROOF is then required, as a matter of law, even to permit the jury to consider a felonious mens rea. Once we identify those INCREMENTAL elements that may transform a tort into a crime, we can begin to assess the legal sufficiency of the State’s case to satisfy those INCREMENTAL elements.

We will not second-guess the fact finders. Our concern is not with what the jury found but with what the judge permitted the jury even to consider. In other words, we are only concerned with the burden of production and not with the burden of persuasion. The Present Case The appellant is Sergeant Stephen Pagotto, a fifteen-year veteran of the Baltimore City Police Department at the time of the alleged crimes.

At approximately 8:80 P.M. on the evening of February 7, 1996, in the course of Sergeant Pagotto’s performance of his police duties, a bullet from his handgun hit and killed Preston Barnes, who was behind the wheel of an automobile that Sergeant Pagotto was at that moment at ²⁸² tempting to stop. A Baltimore City jury convicted Sergeant Pagotto of the involuntary manslaughter of Preston Barnes and of the reckless endangerment of two other persons who were passengers in the automobile being driven by Barnes at the time he was shot. At the end of the entire case, the appellant moved for judgments of acquittal on all three counts. The motion was denied.

Although the appellant raises ten separate contentions on this appeal, our attention will turn initially to his contention that the State’s evidence was not legally sufficient to have permitted those three charges to be submitted to the jury. More particularly, the contention challenges the sufficiency of the State’s evidence to show a criminal mens rea. The Factual Background In assessing the legal sufficiency of the State’s evidence, we will take, as we must, that version of the evidence most favorable to the State’s case. The respective versions of the case, however, do not diverge from each other until we reach the critical minute leading up to and including the discharge of the appellant’s weapon.

There is no dispute as to the nature of the mission Sergeant Pagotto and his partner that evening, Officer Stephen Wagner, were on as they approached what turned out to be the critical confrontation. Officer Wagner was the key State’s witness in that regard and his version as to the nature of that night’s assignment is not in dispute. The Gun Recovery Unit Officer Wagner testified that on the evening of February 7, Sergeant Pagotto and he were both assigned to the newly commissioned Gun Recovery Unit that had been created by the Baltimore City Police Department four months earlier for the express purpose of removing guns from the street. He and Sergeant Pagotto were both assigned to the Northeastern District.

As of February 7, the Gun Recovery Unit, at least as far as the Northeastern District was concerned, was just entering its second week of operation. Officer Wagner described the training film that had been shown to those officers ²⁸³ who were assigned to gun recovery. It informed them as to the characteristics they should look for in determining what persons or groups of persons to approach as those who were more likely than others to have guns in their possession: Prior to actually the first day of the gun squad, there was a videotape made up to show characteristics of people carrying guns, whether they are in the jacket, the way the jacket hangs, if they are in cars, just their reaction, movements that they were doing in the car at the time, where they are placing the gun in the car just by their movements. It’s approximately, I would say 20 minutes to a half hour tape that we watched to get these characteristics.

As driving around on the streets, we would watch people as standing on corners, loitering on comers, whichever, to look for those characteristics. And that was our point to take and go and approach those people to see, to interview them and get those guns off the street. (Emphasis supplied). As part of a highly publicized city-wide effort to reduce the number of guns available on the streets of Baltimore, the mission of the Gun Recovery Unit was clear: Q: And what was the purpose of the gun squad?

A: To go out and get guns off the street. Officer Wagner explained that on the evening of February 7, the primary mission that he and Sergeant Pagotto had was to recover guns: The focus was on guns. That’s all we were focused on. So we weren’t handling domestics or calls for service.

That was our focus. As they set out that evening to “get guns off the street,” Sergeant Pagotto and Officer Wagner were in plain clothes. There was no mistaking their status as police officers, however, for they were using “a marked Tracker,” which Officer Wagner described as a car having “the police striping, the ²⁸⁴ shield, and a little red light on the roof.” 4 The sector of the Northeastern District which Sergeant Pagotto and Officer Wagner were patrolling that evening was that which Officer Wagner described as “the lower end ... around Harford Road, the Alameda, Clifton Park area.” Officer Wagner further described the area as one called “Little Eastern” because the area is dangerous and has a higher-than-ordinary crime rate. The State never disputed Sergeant Pagotto’s description of the neighborhood as “a high narcotic trafficking area, high shooting area,” or his testimony that those persons suspected of dealing in drugs are the same persons most likely to be carrying weapons because, as he explained, “guns and narcotics are synonymous with each other.” One small indication of the inherently dangerous nature of the mission Sergeant Pagotto and Officer Wagner were assigned to that night was the fact that Sergeant Pagotto was wearing his “blue bullet-resistant vest.” The Initial Automobile Stop It was at approximately 8:30 P.M. when the two officers spotted the white Subaru driven by Preston Barnes in the 2600 block of Kirk Avenue.

The justification that presented itself for stopping the white Subaru was that the Subaru was not properly displaying a license plate. 5 Officer Wagner very candidly testified that neither he nor Sergeant Pagotto were “on traffic patrol” and that, subjectively, they were not interested in the license tag violation per se. Under the constitutional imprimatur of the Supreme Court in Whren v. United States, 517 U.S. 806 , 116 S.Ct. 1769 , 135 L.Ed.2d 89 (1996), however, the police are permitted to seize the opportunity presented by a traffic violation in order to accomplish ²⁸⁵ some other investigative purpose or police function. A subjectively pretextual stop is permitted if it can be objectively justified. The real purpose of the stop, on the night of February 7, was to discover and to recover guns.

The real purpose is important to keep in mind, because one of the State’s experts incorrectly analyzed the confrontation in this case as if he were analyzing a true traffic stop. In addition to the fact that the white Subaru was not properly displaying its license tag on the rear bumper, Sergeant Pagotto noted the further factor that it “was in a high drug gun area, and it was suspicious.” He explained that it was a common modus operand\i for those who were “dealing narcotics or doing a drive-by shooting” to “take the tag off’ in order to frustrate any easy identification of the vehicle. The white Subaru was southbound on Kirk Avenue when the two officers activated the dome light and signaled for it to pull to the side of the street. It came to a stop in the 2700 block of Kirk Avenue between Montpelier Street and Gorsuch Avenue.

Sergeant Pagotto stopped the Tracker several car lengths behind it. Both officers exited the Tracker and approached the stopped Subaru from the rear, Sergeant Pagotto on the driver’s side and Officer Wagner on the passenger side. Without contradiction, Sergeant Pagotto testified that as he approached the Subaru, he observed Preston Barnes tilt his head back and drop his shoulder down in such a way that the action was consistent with the picking up of a weapon or the placing of one under the seat. Officer Wagner characterized the movements of all three occupants of the Subaru as “very excited and moving” around inside the car.

These movements were consistent with the profile that had been described and depicted in the training film. The two other occupants of the Subaru at the time of the stop were Damien Jackson and Ali Austin. As the two officers approached the Subaru, several additional facts are also undisputed. The hour of 8:30 P.M. in the first week of February in Baltimore City is after dark.

The only purpose for which the two officers were approaching the ²⁸⁶ Subaru at that time was because they had reason to believe that its occupants might well be in the possession of handguns. The occupants of the Subaru, moreover, outnumbered the officers, three to two. The Reaction Inside the Subaru Before turning to the finer parsing of Sergeant Pagotto’s movements during the minute or fraction thereof immediately preceding the discharge of his weapon, it behooves us to ascertain what was happening inside the white Subaru as it was being stopped. An appreciation of the actions of the individuals inside the Subaru, especially those of the driver Preston Barnes, and of the movement of the Subaru itself is indispensable for us to evaluate the state of mind of Sergeant Pagotto as he responded to those actions and movements.

The testimony of Damien Jackson, the twenty-year-old passenger in the right-front seat of the Subaru, and of Ali Austin, the eighteen-year-old passenger in the rear seat of the Subaru, are part of the State’s most favorable version of the evidence. That version, however, shows the driver’s total noncompliance with the lawful order of the police to bring the car to a complete stop and to submit to questioning by the police. Damien Jackson gave the more illuminating testimony; Ali Austin, though not testifying as fully, essentially corroborated the testimony of Jackson. Jackson established that as the three young men set out in the white Subaru that evening, one of their first activities was to drive to the home of Preston Barnes’s girlfriend on Abbotston Street, where Barnes obtained ten bags of a form of cocaine known as “Ready Rock.” Jackson further testified that Preston Barnes and he had jointly participated in the selling of cocaine in that form on the day before.

It was shortly after picking up the cocaine that Barnes drove the Subaru to Kirk Avenue. As soon as the police car signaled for the Subaru to stop, Barnes’s first words to his companions were, “Oh, shit, I’m dirty.” Barnes was already on probation for an earlier criminal conviction. Jackson testified that Barnes knew that in addition to any new charges, he ²⁸⁷ would be faced with a violation of probation with more than five years yet to be served for such a violation. “He was backing up ... more than five years.” Jackson testified that Barnes put all ten bags of cocaine in his mouth. The fact that they were wrapped in cellophane was the apparent explanation for why they were not metabolized into his body.

Jackson further testified that he and Barnes had generally worked out, off and on over the preceding year, an escape plan if they were ever caught in such a situation. Recognizing that they might not successfully get away from a pursuing police car already in motion, the plan was for them, when signaled to stop, to come to an apparent stop. In response to such apparent submission, the police cruiser would itself stop and the officers would get out of the vehicle and approach the stopped car, perhaps several car lengths away. As the officers got close to the stopped car, the stopped vehicle would suddenly “rev up.” The driver would “floor it” and make a getaway before the now pedestrian officers could make it back to their own vehicle, get it started again, and resume pursuit.

Jackson then recounted how Barnes’s handling of the white Subaru that night was completely compatible with the getaway plan they had decided upon. The Critical Confrontation Our attention now turns back to Sergeant Pagotto. Whatever evidence there was of gross negligence on his part to support the manslaughter conviction or the two convictions for reckless endangerment concerned his actions within the space of a minute or less. That was the brief time period, immediately after he alighted from the police vehicle, between the moment he drew near the driver’s side of the stopped white Subaru and the moment his handgun discharged.

All parties agreed that as he approached the Subaru, he had withdrawn his Glock 17 automatic from its holster and carried it in his right hand. We will reduce the narration to slow motion in an attempt to capture the nuances of those critical seconds. Five witnesses, including Sergeant Pagotto himself, testified with ²⁸⁸ respect to that critical minute. We will examine the testimony of each one.

Angela Purnell, Neighbor: Angela Purnell, could contribute little of significance. She was the tenant of an apartment located at the intersection of Kirk Avenue and Montpelier Street. Looking out from her upstairs dining room window, located near the back of her building, she initially observed the white car that had been stopped and a police car with flashing lights behind it. She saw a person she believed to be a police officer approach the driver’s side of the white car and position his arms as if he were aiming a weapon.

She could hear shouts that sounded “something to the effect” of “stop the car or don’t move the car.” She further testified that the white car was moving or drifting forward during the entire time she was watching it and that the police officer was similarly moving at “a walking pace and he was following the car.” At that point, the white car and the officer moved out of her line of sight. Shortly thereafter, she heard a gunshot. By the time she got to her bedroom window to look out onto Kirk Avenue from the front of her building, all she could see was the gathering of “a lot of people” and of police cars several blocks further down Kirk Avenue. Officer Stephen Wagner, Partner: With respect to the three closely intertwined actions that allegedly transformed the behavior of Sergeant Pagotto that night from that of a law enforcement officer to that of a criminal, the testimony of Officer Wagner was no more illuminating than that of Angela Purnell.

After the white Subaru had been stopped by Sergeant Pagotto and Officer Wagner, Sergeant Pagotto alighted from the police car and approached the Subaru on what Officer Wagner described as a “car stop position.” He explained: For that officer’s safety, you don’t want to stand in front of or alongside the driver. You want to stand beside him, behind him in his blind spot so if anything were — occurred he would have to turn, make motions to indicate to you that. ²⁸⁹ At the same time, Officer Wagner alighted from the other side of the police vehicle and approached the right-hand side of the Subaru, staying to the rear of Sergeant Pagotto. He was in what he referred to as the “cover position,” which he also described: If there is a two-man unit, you want the other unit along on the passenger side or closer to the rear, depending on how many occupants are in the car, to see what the occupants are doing. Because the Subaru was between Sergeant Pagotto and Officer Wagner, Officer Wagner could only see Sergeant Pagotto’s head and shoulders.

He could not testify as to whether Sergeant Pagotto had even drawn his weapon: From my position on the car I couldn’t see the defendant’s hands. And as I approached, I knew the defendant was alongside of me, but I couldn’t tell what he had in his hands because my focus was on the rear of that car through that window. A fortiori, he could not testify as to whether Sergeant Pagotto’s trigger finger was properly or improperly placed on his weapon. Officer Wagner did testify that as he and Sergeant Pagotto approached the Subaru, it “began drifting forward because Kirk Avenue is a slightly downgrade road right there in that block.” He testified that the driver’s door opened and that “there was a grinding sound as if someone was taking the gear shift and forcing it into a park position.” He and Sergeant Pagotto were both “yelling orders for that car to stop, put on the brake, put it in park.” He testified that the car continued drifting and then he heard the “distinct sound of [the] engine starting.” At that point, Sergeant Pagotto yelled over to him, “Get the Tracker,” meaning the police vehicle.

Officer Wagner immediately ran back to the Tracker and opened its door. As he was entering it, he heard a gunshot. Turning back toward the Subaru, he saw Sergeant Pagotto’s body falling forward from a position against the car. “He’s falling forward in the direction of the motion of the car.” ²⁹⁰ Officer Wagner started up the Tracker and drove it forward to where Sergeant Pagotto was lying in the street. When he discovered that Sergeant Pagotto had not been shot, they both looked forward and saw that the Subaru had crashed into a parked car approximately two blocks further south on Kirk Avenue.

By the time they got to it, both Damien Jackson and Ali Austin had fled the scene. The three actions of Sergeant Pagotto on which the State based its case of gross criminal negligence were 1) his “closing” 6 on the Subaru with his service weapon drawn; 2) his grappling with the driver, Preston Barnes, with his left hand while his gun was in his right hand; and 3) his placement of his trigger finger along the “slide” 7 of the weapon rather than underneath the trigger guard. The significance of all three actions was that they allegedly increased the likelihood that the weapon might be discharged by accident. Damien Jackson and Ali Austin, Passengers: With respect to the more minute actions of Sergeant Pagotto that may have been negligent, there were two versions that differed from each other in one regard but were not otherwise contradictory.

One version of events was furnished by the two passengers in the white Subaru, Damien Jackson and Ali Austin. Jackson’s testimony was the fuller of the two. Austin’s testimony, though skimpier, essentially corroborated that of Jackson. The other version of what happened during that critical minute was that supplied by Sergeant Pagotto himself.

Both versions were in agreement that Sergeant Pagotto, with his weapon drawn and in his right hand, “closed” to within a few feet or less of the driver’s door. Neither Jackson ²⁹¹ nor Austin testified with respect to the placement of Sergeant Pagotto’s trigger finger on his weapon. The only testimony in that regard was that of Sergeant Pagotto himself. Where the two versions differed with each other was with respect to the opening of the driver’s door.

Both Jackson and Austin testified that when Sergeant Pagotto initially approached the driver’s side of the vehicle, he screamed at Preston Barnes, ordering him to stop the car. At that point, they testified, Sergeant Pagotto himself “opened up the door” 8 and then “stepped back.” Although they have him “hollering” the words, “Stop the car, stop the car, or I’m going to shoot,” they also have him stepping back at that point to a distance of about three feet away from the car. They both testified that at that point Barnes “hit it down,” which they explained to mean “put the car from park into drive.” The Subaru could not go directly forward because of a parked car blocking it in the curb lane. As the car sped up, it moved toward the center of Kirk Avenue and, therefore, toward and into Sergeant Pagotto’s body.

It was as it did so that Jackson and Austin heard the shot. They testified, moreover, that it had always been Barnes’s intention to ram the Subaru into gear and to make a getaway as soon as the approaching officer got close to the car. They both testified that after the car crashed to a halt two blocks down the street, they both ran from the scene. ²⁹² It is also noteworthy that the testimony of neither Damien Jackson nor Ali Austin indicated that Sergeant Pagotto ever engaged in any grappling or wrestling with Preston Barnes at all, let alone a left-handed grappling while still carrying his Glock automatic in his right hand. They both indicated that Sergeant Pagotto “opened the door and stepped back, walking along the car.” The only evidence of what the State characterized. as an ill-advised and reckless effort at “vehicular extrication” came from Sergeant Pagotto himself, who, however, cast his brief physical struggle with Preston Barnes in a very different light than the act of swashbuckling bravado suggested by the State.

Sergeant Pagotto: The only version of the critical confrontation that referred to any physical contact between Sergeant Pagotto and Preston Barnes was that supplied by the testimony of Sergeant Pagotto. According to that version, Sergeant Pagotto did not himself initiate the physical contact by opening the driver’s door of the Subaru in an effort to pull Barnes out of the car. Instead, he reacted only defensively when, to his surprise, the door suddenly sprang open and he feared he was about to be shot. His instinctive reaction was to move forward and grab the arm of the person he thought was about to shoot him.

Q: What was the next thing you did after pulling the gun from the holster? A: I took about two or three more steps toward the car, and got to about the back door on the driver’s side ... and that is when the door sprung open. Q: What were you thinking when that door sprung open? A: I was thinking I was going to get shot.

Q: Why? A: Because I have had training and saw videos where a ... door would open up ... and there would be a shotgun right inside the door ... When an officer approaches, because everybody knows that an officer usually approaches close to the vehicle, the shotgun ²⁹³ goes off and kills the officer. I also saw the video showing officers being killed as they approached.

I just thought at that point in time, I was going to get killed. Q: Is that what was going through your mind at that time? A: Yes, ma’am. Q: Why didn’t you turn and run back to the Tracker?

A: I didn’t think of it at the time. Q: What did you do instead? A: I went towards the driver. Q: And why did you do this?

A: This? Q: Go towards the driver? A: It was the best plan of attack that way to go in and get ahold of him. Q: And what are you basing that on when you say it was the best plan of attack?

A: Years of experience, and all the time in a possible ambush situation, I was always trained to go into the ambush, drawing any fire towards that person. It was just instinct, I mean, I pushed the door out of the way and grabbed his hand. Q: And what was your purpose in grabbing his hand? A: Pull him out of the car, get him away from the car.

Sergeant Pagotto went on to describe his physical struggle with Preston Barnes and his efforts to bring the car, which was then moving, to a halt: Q: What did Preston Barnes do? A: When he ripped his hand up like that (indicating), he leaned over and went down towards the console. Q: And what were your thoughts at that moment? A: That he could be going for the gun.

Q: What was the next thing you did? ²⁹⁴ A: Tried to get out, felt I should disengage. Q: How did you try to get out? A: Reached back. Q: What are you reaching back ... to?

A: First I went for like the steering wheel, the keys. The keys, I figured if I could get the keys, I can throw them out and this way the car wouldn’t go nowhere. I couldn’t do that, so I just kept reaching and finally I grabbed onto the door. Q: Now, how fast is the car moving at this point?

A: A good roll, at this point it is a good roll. Q: At what moment did you first see the car begin to move? A: Actually I felt it first when I was inside the car. I felt the car moving because my feet were still outside the car and I could feel my feet slipping.

Sergeant Pagotto testified that he was pulling himself free of the Subaru at the moment when the Subaru engaged its gears and shot out toward him, at which point his hand hit the side of the car and his gun discharged. He himself was knocked to the streetbed: Q: Were you ever able to get out of the vehicle? A: Yes, ma’am. Q: How did that happen?

A: I reached back and I got ahold of the door, the top of the door frame. Q: Is that the open door? A: Yes, ma’am. Q: The open driver’s door?

A: Yes. And I pulled myself back. Q: And at this moment, what did Preston Barnes do? A: Started the car and I heard the engine roar and then the tires started spinning and shot out. ²⁹⁵ Q: And what happened to you as a result?

A: I was thrown down. Q: Okay. And did anything happen during the time you were thrown down? A: That is when my hand hit the side of the car, the gun discharged, glass was everywhere, and I fell to the ground.

Sergeant Pagotto described the entire critical confrontation as something that took place within a period of three to five seconds: Q: What was the amount of time that passed from the moment you saw the driver’s door open to the point where the gun discharged? A: Probably three to five seconds. Q: Were you hurt at all as a result of the fall? A: I hurt my hand and I hurt my knee, my left knee.

Q: Did you ever seek any treatment for that? A: Yes, ma’am. Q: And where did you seek that treatment? A: I went to Good Samaritan Hospital that night after I finished at Homicide.

Q: And did you learn what the injuries you sustained were? A: Abrasion to my hand and abrasion to my knee, and my knee hasn’t been the same since, the ligaments. On cross-examination by the State, Sergeant Pagotto elaborated that just before he pulled himself free from the moving car, he was “reaching for the keys with my left hand, the gun in my right hand, and I’m running sideways.” It was then, just as he was freeing himself from the Subaru, that the Subaru suddenly accelerated and drove sideways into him, knocking him to the ground. It was as he was hit and going into his fall that his right hand, holding the gun, hit (or was hit by) the vehicle, causing it to discharge: Q: And you fall how?

Forward? ²⁹⁶ A: Forward like that (indicating). Q: And you indicated that your gun hand hit the vehicle and the gun discharged? A: My gun hand hit the vehicle, the gun discharged, and then the glass exploded and I went down. Sergeant Pagotto elaborated that it was the back of his right hand, especially his knuckles, that struck (or was struck by) the Subaru at the moment “the gun discharged and then the glass exploded and I went down.” Q: Okay.

What part of your hand hit the car? The back of your hand? A: This area here (indicating). Q: Okay.

Would you show the ladies and gentlemen of the jury the area on your hand you say you hit? A: This area here (indicating). Q: The back of the hand, these knuckles; is that correct? A: Yes.

Q: And how are you holding the gun at that time? A: I guess like this (indicating). Q: You guess like that. You’re saying your finger was not on the trigger?

A: Correct. Q: But it wasn’t under the trigger guard, was it? A: No, it wasn’t. Q: And, again, one more time, you hit the back of your hand on the car, is that right?

A: Yes, sir. The Physical Evidence: The physical evidence as to the trajectory of the lethal bullet was completely compatible with Sergeant Pagotto’s testimony as to how the back of his right hand, holding the gun, hit (or was hit by) the left side of the Subaru just as his weapon discharged. The reason there was a simultaneous ²⁹⁷ shattering of the glass was that the bullet entered the left rear passenger window of the Subaru through the lower left-hand corner of that closed glass window. The bullet moved in a forward direction from the rear toward the front of the Subaru, passing between the pillar or post that separates the front door from the rear door, on the left, and the driver’s bucket seat, on the right.

It immediately struck and entered the body of Preston Barnes. The autopsy revealed the continuing trajectory. Barnes, as he was hit, had obviously turned fully to his left and then slightly to the rear with his left arm upraised. The bullet entered his body just under his left armpit and passed through the anterior part of his chest, piercing the heart and a lung, just before it came to rest toward the right side of his anterior chest.

Its passage through the body was at a slightly downward angle. The Standard of the Reasonable Police Officer Before turning to a close examination of those actions of Sergeant Fagotto that allegedly constituted gross criminal negligence, it is appropriate to set out the standard against which his conduct is to be measured. It is not that of a reasonable civilian similarly situated but that of a reasonable police officer similarly situated. As Judge Raker explained in State v. Albrecht, 836 Md. 475 , 501, 649 A.2d 336 (1994), quoting in part from Albrecht v. State, 97 Md.App. 630, 642 , 632 A.2d 163 (1993): In determining whether an accused’s actions were grossly negligent or criminally reckless, the standard against which a defendant’s conduct must be assessed is typically the conduct of an ordinarily prudent citizen similarly situated.

As the Court of Special Appeals correctly noted in its opinion, however, where the accused is a police officer, the reasonableness of the conduct must be evaluated not from the perspective of a reasonable civilian but rather from the perspective of a reasonable police officer similarly situated. Albrecht, 97 Md.App. at 642 , 632 A.2d at 169 . As the intermediate appellate court explained: ²⁹⁸ 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 on duty, therefore, is the standard of a reasonable police officer similarly situated. (Emphasis supplied). We must look to the testimony of the various experts to establish a standard of required, or recommended, police procedure and then determine whether the evidence generated a jury issue as to whether Sergeant Pagotto’s conduct “constituted ‘a gross and wanton deviation’ from such a standard.” Albrecht v. State, 97 Md.App. at 643 , 632 A.2d 163 . Common Law Manslaughter and Automobile Manslaughter Involve Precisely the Same Gross Negligence As we determine whether the State’s evidence was sufficient to support the finding of gross criminal negligence, we note that the cases involving manslaughter by automobile, pursuant to what is now Art. 27, § 388, are just as pertinent as are the cases involving common law manslaughter.

Chapter 414 of the Acts of 1941 created the crime of manslaughter by automobile. The new crime was made a misdemeanor 9 whereas more generic common law manslaughter remained a felony. Indeed, Neusbaum v. State, 156 Md. 149 , 143 A. 872 (1928), was an automobile manslaughter case prosecuted as common law involuntary manslaughter thirteen years before the automobile manslaughter law was enacted. The new statutory misdemeanor completely incorporated the gross negligence standard of the common law felony.

Hughes v. State, 198 Md. 424, 431 , 84 A.2d 419 (1951)(“The ²⁹⁹ common law standard of ‘gross negligence’ as the minimum requirement for conviction of manslaughter where one unintentionally kills in the course of doing a dangerous act is carried over into the recent Maryland statute setting up the separate crime of manslaughter by automobile or other vehicle.”); Thomas v. State, 206 Md. 49, 51 , 109 A.2d 909 (1954)(“This statute has been interpreted to have the common law meaning of gross negligence so that, in order to establish guilt, there must be a ‘wanton or reckless disregard for human life.’ ”). See also Faulcon v. State, 211 Md. 249, 257 , 126 A.2d 858 (1956); State v. Gibson, 4 Md.App. 236, 242-43 , 242 A.2d 575 (1968); Boyd v. State, 22 Md.App. 539, 550 , 323 A.2d 684 (1974); Forbes v. State, 324 Md. 335 , 340-41 n. 2, 597 A.2d 427 (1991). What Escalates Negligence Up To Gross Criminal Negligence? It is universally agreed that a legally sufficient case of ordinary civil negligence is not ipso facto a legally sufficient case of gross criminal negligence.

As we explained earlier in this opinion, it is not enough to provide a set of legally correct definitions and then simply turn the fact finders loose. In Duren v. State, 203 Md. 584, 588 , 102 A.2d 277 (1954), the Court of Appeals confirmed that evidence sufficient to support a finding of simple negligence is not of itself sufficient to support a manslaughter verdict: In State of Maryland v. Chapman, 101 F.Supp. 335 , Judge Chesnut in the United States District Court for the District of Maryland, declared that proof of simple negligence will not support a conviction of manslaughter but that there must be proven gross negligence, which must be “... such that it amounted to a ‘wanton or reckless disregard for human life.’ ” The incremental catalyst that may transform mere negligence into gross negligence is, albeit elusive, a substantive element with a unique burden of production that must be satisfied as a matter of law. ³⁰⁰ As we strive to attach a convenient handle to that elusive incremental element, we must, moreover, scrupulously avoid working backward from the consequences. As Chief Judge Robert C. Murphy explained for this Court in Mills v. State, 13 Md.App. 196, 200 , 282 A.2d 147 (1971), cert. denied, 264 Md. 750 (1972): [Wjhether 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.

(Citation omitted; emphasis supplied). The first definition in Maryland of involuntary manslaughter of the gross negligence variety was that provided by United Life and Accident Ins. Co. v. Prostic, 169 Md. 535, 539 , 182 A. 421 (1936), as it quoted with approval 1 Russell, Crimes 636: There are many acts so heedless and incautious as necessarily to be deemed unlawful and wanton, though there may not be any express intent to do mischief, and the party committing them causing death by such conduct will be guilty of manslaughter. (Emphasis supplied).

Hughes v. State, 198 Md. 424, 432 , 84 A.2d 419 (1951), stated that “the question is whether the conduct of the defendant, considering all the factors of the case, was such that it amounted to a “wanton or reckless disregard for human life.’ ” Duren v. State, 203 Md. 584, 588 , 102 A.2d 277 (1954), concluded that the “gross negligence” that must be proven to support a manslaughter conviction “amounted to a wanton or reckless disregard for human life.” That definition was repeated verbatim in case after case. Allison v. State, 203 Md. 1, 5 , 98 A.2d 273 (1953); Clay v. State, 211 Md. 577, 584 , 128 A.2d 634 (1957); Lilly v. State, 212 Md. 436, 442 , 129 A.2d 839 (1957); Johnson v. State, 213 Md. 527, 531 , 132 A.2d 853 (1957); Abe v. State, 230 Md. 439, 440 , 187 A.2d 467 (1963); Wasileski v. State, 241 Md. 323, 324 , 216 A.2d 551 (1966); State v. Kramer, 318 Md. 576, 590 , 569 A.2d 674 (1990); Dishman v. State, 352 ³⁰¹ Md. 279, 291, 721 A.2d 699 (1998); Montague v. State, 3 Md.App. 66, 69-71 , 237 A.2d 816 (1968); Boyd v. State, 22 Md.App. 539, 550 , 323 A.2d 684 (1974); Cummings v. State, 27 Md.App. 361, 389 , 341 A.2d 294 (1975); Blackwell v. State, 34 Md.App. 547, 556-57 , 369 A.2d 153 (1977); Taylor v. State, 83 Md.App. 399, 402-04 , 574 A.2d 928 (1990); Forbes v. State, 324 Md. 335 , 340-41 n. 2, 597 A.2d 427 (1991); Pineta v. State, 98 Md.App. 614, 622 , 634 A.2d 982 (1993); Plummer v. State, 118 Md.App. 244, 252 , 702 A.2d 453 (1997). Craig v. State, 220 Md. 590 , 155 A.2d 684 (1959), was a case involving common law manslaughter rather than automobile manslaughter. The Court of Appeals did not hesitate to adopt the same definition of gross negligence and readily looked to the automobile manslaughter cases for precedential guidance.

The Court stated, 220 Md. at 597 , 155 A.2d 684 : [T]o establish civil liability, the rule, generally, is a failure to use that degree of care and caution that an ordinarily careful and prudent person would exercise under like circumstances. But, in Maryland, if the basis of the charge be felonious negligence as it is in the instant case, it must have been gross or criminal negligence, which has been interpreted by this Court to mean “a wanton or reckless disregard for human life.” (Citation omitted). Palmer v. State, 223 Md. 341 , 164 A.2d 467 (1960), was also a case involving common law manslaughter rather than automobile manslaughter. Again, the Court of Appeals applied the same definition of gross negligence, stating at 223 Md. at 351-52 , 164 A.2d 467 : We think that the appellant’s conduct and actions, in permitting and, in fact, compelling this poor little defenseless urchin to remain in an environment where she was subjected to merciless, inhumane and inordinate brutality of a protracted nature, manifested a recklessness of justice and the rights and feelings of the tiny infant in such a manner so as to support the finding that the appellant’s conduct and actions displayed “a wanton or reckless disregard for human ³⁰² life.” The actions of McCue were so outrageous as to put any reasonable person on guard that the child’s life was in real and imminent peril.

Mills v. State, 13 Md.App. 196 , 282 A.2d 147 (1971), was a case involving common law involuntary manslaughter. Chief Judge Murphy utilized the standard definition of gross criminal negligence: [W]here 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. 13 Md.App. at 200 , 282 A.2d 147 . In Duley v. State, 56 Md.App. 275 , 467 A.2d 776 (1983), a father was convicted of both child abuse and the involuntary manslaughter of his daughter. In affirming the conviction for common law manslaughter, Chief Judge Gilbert stated, 56 Md.App. at 289 , 467 A.2d 776 : Involuntary manslaughter may consist of the doing of a lawful act in a grossly negligent manner.

The evidence shows that Duley exercised a reckless disregard for human life and thus sustains the manslaughter conviction. (Citations omitted). In State v. Albrecht, 336 Md. 475, 499-500 , 649 A.2d 336 (1994), Judge Raker synthesized all of the pre-existing language on the quality of gross negligence into the most complete statement our case law has yet produced as to that incremental quality necessary to transform civil negligence into criminal negligence: It has long been stated that where the charge of involuntary manslaughter is predicated upon the allegation that the defendant committed a lawful act in a negligent manner, a conviction of manslaughter will not lie on a showing of simple negligence or misadventure or carelessness but must rather be predicated upon that degree of aggravated negligence which is termed “gross” negligence. ³⁰³ In determining whether a defendant’s actions constituted gross negligence, we must ask whether the accused’s conduct, “under the circumstances, amounted to a disregard of the consequences which might ensue and indifference to the rights of others, and so was a wanton and reckless disregard for human life.” Stated otherwise, the accused must have committed “acts so heedless and incautious as necessarily to be deemed unlawful and wanton,” manifesting such a gross departure from what would be the conduct of an ordinarily careful and prudent person under the same circumstances so as to furnish evidence of an indifference to consequences. It is only conduct which rises to this degree of gross negligence upon which a conviction of involuntary manslaughter can be predicated.

(Citations omitted). The Accidental Firing of the Weapon The State’s theory of the case is of necessity predicated on an assumption that Sergeant Pagotto’s service weapon discharged accidentally, thereby killing Preston Barnes. At the end of the State’s case, Sergeant Pagotto’s Motion for a Judgment of Acquittal was granted with respect to any theory of voluntary manslaughter. The trial judge agreed that there was no evidence to support a conclusion that Sergeant Pagotto had intentionally killed Preston Barnes and that any possible manslaughter had, therefore, to be of the involuntary variety.

After brief argument on the possible theory of voluntary manslaughter, the ruling of the court was as follows: The Court: [T]he obvious logic of this is that the voluntary manslaughter would not be put to the jury [; that] essentially is what it comes down to. Mr. Belsky: Your Honor, I’m asking for judgment on acquittal on voluntary manslaughter. I don’t want the case to go back to the jury [on the theory] that there ³⁰⁴ [might] be voluntary manslaughter or involuntary manslaughter. The Court: No, I think we just said that it would go back only on involuntary.

Thus, the case went to the jury entirely on the theory of involuntary manslaughter of the gross negligence variety. The alleged gross negligence essentially consisted of three violations of Baltimore City Police Department guidelines, that enhanced the likelihood that the service weapon might discharge accidentally. Although the prosecution insisted that a finding that Sergeant Pagotto had no intention to kill Preston Barnes did not necessarily compel a conclusion that Sergeant Pagotto had not intentionally discharged his weapon, the entire presentation of the case belied that lesser intentional act. Indeed, had the State itself believed that Sergeant Pagotto had intentionally fired his weapon, Sergeant Pagotto would have also been charged with murder rather than just with manslaughter.

It would be hard even to concoct a manslaughter theory on these facts based on the intentional firing of the weapon. Had the appellant intentionally fired the weapon with the intent to kill Preston Barnes, the State’s theory of the case would have been murder of the specific-intent-to-kill variety. Had the appellant intentionally fired the weapon with the intent only to injure or to incapacitate Preston Barnes, the State’s theory would have been murder of the speeific-intentto-inflict-grievous-bodily-harm variety. Had the appellant intentionally fired the weapon with the intent to intimidate or to frighten the occupants of the Subaru into compliance, the State’s theory would have been murder of the depraved-heart variety.

The State, instead, presented a parade of expert witnesses to testify to the alleged violations of Baltimore City Police Department guidelines. The express purpose in calling those experts was to show that Sergeant Pagotto’s negligence had significantly increased the likelihood that his weapon might go off accidentally. Had the State’s case been predicated on the ³⁰⁵ theory that Sergeant Pagotto fired intentionally, the testimony of the experts would have been utterly irrelevant. The deliberate pulling of the trigger would not in any way have been dependent upon whether the trigger finger had a moment earlier been slightly closer or slightly further away from the trigger itself.

The legal sufficiency of the State’s evidence, therefore, must be focused exclusively on the proposition that the weapon discharged accidentally because of the grossly negligent way in which Sergeant Pagotto was handling it at the moment of discharge. The Alleged Acts of Gross Criminal Negligence To prove its case of gross criminal negligence against Sergeant Pagotto, the State called four expert witnesses. They were 1) Major Francis Melcavage, a former instructor at the Baltimore City Police Training Academy; 2) Sergeant Craig Meier, an instructor with the Firearms Training Unit of the Education and Training Division of the Baltimore City Police Department; 3) Sergeant Timothy Vittetoe, a former instructor at the Maryland State Police Academy; and 4) John L. Meiklejohn, a retired Captain of the Montgomery County Police Department, who had been involved for years in training members of that department. The defense also called three expert witnesses, including former Baltimore City Police Lieutenant Charles J. Key, a former instructor at the Baltimore City Police Academy and the author of the guidelines allegedly violated by Sergeant Pagotto.

Although Lieutenant Key had been interviewed by the State initially, the State declined to call him as its witness. The two other experts called by the defense were 1) Gary McElhennv, a seventeen-year veteran of the Baltimore City Police Department who had spent eight years working in narcotics; and 2) Sergeant Willis Patrick O’Toole, assigned to the Training Division of the Anne Arundel County Police Department and specializing in the subjects of (a) use of force, (b) officer survival, and (c) firearms. ³⁰⁶ The State’s case with respect to gross negligence consisted of what were essentially three alleged violations of Baltimore City Police guidelines. The State’s theory was that each of the three violations negligently increased the risk that Sergeant Pagotto’s trigger finger might slip from a position where it was not on the trigger into a position on the trigger so that, in the final struggle between Sergeant Pagotto and Preston Barnes, Sergeant Pagotto’s finger ended up in a position where the weapon could accidentally be discharged. A. The Placement of Sergeant Pagotto’s Trigger Finger: The first of the alleged guideline violations concerned the placement by Sergeant Pagotto of his trigger finger on his weapon.

On the day of the shooting in this case, February 7, 1996, the police department guideline for an officer approaching a suspect with a drawn and loaded weapon was that the officer should have his trigger finger not only outside the trigger guard but literally underneath the trigger guard. The evidence indicated that Sergeant Pagotto properly had his finger off the trigger and outside the trigger guard but improperly, in undisputed contravention of the guideline, along the “slide” of the automatic weapon rather than underneath the trigger guard. The slide of a Glock automatic is the side of the weapon encasing the barrel. It is above and might well be forward of the trigger guard area, so that a clutching motion could readily result in the trigger finger’s entering the trigger guard area and coming into contact with the trigger itself.

Major Melcavage testified that he was the training officer at the Baltimore City Police Academy who personally taught Sergeant Pagotto in the subject of defense tactics when the Sergeant first went through the Academy in 1980. Major Melcavage further explained that in 1980 the service weapons issued to Baltimore City officers were revolvers rather than automatics and that there was, at that time, no training with respect to automatics and where an officer should place his trigger finger: ³⁰⁷ Q: When he was provided that training, where was the training of where to put your finger: A: That question was not addressed in training either when he went through the academy. Q: But what was the general guideline when he got his training? A: It wasn’t addressed.

I don’t know that there was one. Nothing that Sergeant Pagotto did on February 7, 1996 contravened any training he had received at the Baltimore City Police Training Academy. Periodically, however, the guidelines change. For officers who have already gone through the Academy, there is also periodic, albeit minimal, retraining.

A guideline was promulgated for the first time with respect to the placement of the trigger finger in 1990, when the police department changed its standard weapon from the revolver to the Clock automatic. The new guideline as of 1990, however, actually authorized the placement of the trigger finger along the “slide.” Major Melcavage testified: Q: ... And where was the training to put your finger, when running and handling a gun and you didn’t want to fire it, before they were put under the trigger guard? A: It was to be outside the trigger guard along the slide like this.

Nothing that Sergeant Pagotto did on February 7, 1996, contravened the guideline promulgated in 1990. At some time in 1993 or 1994, a newer guideline was promulgated. It was the result of several accidents that had happened at the Baltimore City Police Training Academy. The new guideline was written for the police department by Lieutenant Charles J. Key.

It directed that the trigger finger be underneath the trigger guard and not along the “slide” of the weapon. ³⁰⁸ Significantly, Captain Meiklejohn testified that Montgomery County officers, unlike their counterparts in Baltimore City, are still trained to keep the trigger finger on the “slide” of the weapon: Q: ... [Y]ou generally keep your finger on the slide or on the trigger guard? A: Yes, sir. Q: And that’s different than Baltimore City. Baltimore City trains its police officers to keep its fingers underneath of the guard?

A: Yes, sir. He explained that having the trigger finger below the trigger guard unduly slows down the officer’s reaction time: Q: Okay. Now, putting one’s finger on the slide or trigger guard for your department deals with the concept that you don’t want the finger on the trigger so you can avoid an accidental shooting, correct? A: Yes, sir.

Q: And the reason you don’t put it below the trigger guard as Baltimore City does is that it interferes with the reaction time of the police officer. It takes a little longer to raise it to put it in the trigger? A: That’s possible depending upon the individual, but like you had stated, it’s up to each individual agency. Sergeant Meier also testified for the State as to the guideline with respect to the placement of the trigger finger: But the finger has to be off the trigger and below the trigger guard until it’s perceived that he’s actually going to have to use the weapon to defend himself.

Q: Just to follow up on that. Below the trigger guard, isn’t it a fact that your department is the only department that has that policy? A: Yes. ³⁰⁹ Q: That every other department in the state has either the slide or on top of the trigger guard itself? A: That’s my understanding.

Q: And that’s a fairly recent policy, is it not? A: That was created by your expert [to wit, former Lieutenant Charles J. Key, who wrote the new guideline] in 1993. The questioning on that subject went on: Q: The State Police do not teach the method that Joe Key created; is that correct? A: As far as I know, no.

Q: And Baltimore County does not teach that method, does it? They teach the method that you used to teach up until two and half years ago? A: Three years ago now. Sergeant Vittetoe of the Maryland State Police also testified as to finger placement: Q: And isn’t it true that the Maryland State Police Department trains their officers to also keep their finger in a ready position along the slide of the gun as opposed to under the trigger guard, correct?

A: That is correct, ma’am. Q: And it’s after they move from that position on the slide that they can then put it down on the trigger ready to shoot while they are covering the suspect that they are covering? A: Yes, ma’am. Former Lieutenant Key was the author of the new Baltimore City guideline with respect to the placement of the trigger finger under the trigger guard.

He explained the reasoning behind the new standard: But the finger, as I wrote the guideline, I think about 1994, it changed over in the lesson plan, is put the finger here, not under here as you’ve seen and there are reasons for that, that you couldn’t [accidentally] shoot the weapon. But I ³¹⁰ wanted the finger up here because it would take a positive movement to move it in the trigger guard. And there is a clutching reaction that occurs with firearms. Lieutenant Key further pointed out that Baltimore City is the only police agency in the state that has such a guideline: Q: Now, regarding where his finger was on the gun, can you explain — first of all, is your guideline the only guideline in the state that has that, that specific guideline at, at the point you showed it [to] the jury?

A: The finger underneath or forward of the trigger guard and just underneath? Q: Right. A: We are the only agency in the state that has that as a guideline, yes, sir. When asked why he thought Sergeant Pagotto had his finger on the “slide” on the evening of February 7, 1996, Lieutenant Key explained that “in 13 years, there’s a factor in skills training.

It’s called muscle memory.” He explained “muscle memory”: Your body trains itself to do certain things. That applies in this situation because it over the years, and in this case 13 years, your finger is alongside the slide, you cannot eradicate this muscle memory in ... 20 or 30 minutes worth of training. It just won’t happen. He’s going to go back and do what he did in a stress situation, what he’s trained himself to do most frequently.

Q: And in every other department in the State of Maryland, what he did, assuming he had it on the slide, would have been the appropriate standard? A: Yes, sir. We hold that Sergeant Pagotto’s placement of his trigger finger along the “slide” of his Glock automatic, whether considered alone or in combination with any other factor, does not remotely generate a prima facie case of gross criminal negligence. We are not substituting our weighing of the evidence.for that of the jury.

We are holding, as a matter ³¹¹ of law, that the burden of production as to gross criminal negligence was not satisfied so as even to permit the jury to consider such a charge. Although Sergeant Pagotto may not have followed a recently imposed and geographically unique guideline, his action in that regard was not inherently wrong or of a malum-in-se character. Had a Maryland State Trooper or a Baltimore County Officer, for instance, ridden along with Sergeant Pagotto on February 7, 1996, and engaged in precisely the same conduct that Sergeant Pagotto did, that State Trooper or County Officer would have been acting with complete propriety with respect to the placement of the trigger finger on a weapon. Had Sergeant Pagotto himself placed his trigger finger on the “slide” of his weapon on February 7, 1993, instead of on February 7, 1996, he would then have been acting with complete propriety.

Except for a criminal violation of a local municipal or county ordinance, precisely the same act under precisely the same circumstances cannot be a crime in Baltimore City but not a crime in Baltimore County. Under the circumstances, no trier of fact could reasonably read into the appellant’s act of placing bis trigger finger where he did any notion of a wanton and reckless disregard of human life or of some gross and outrageous deviation from what reasonable police officers do and are expected to do. If that behavior was negligent, why are we authorizing police officers all over the state to engage with impunity in such negligent conduct? This hypertechnical violation of a departmental guideline clearly does not establish a prima facie case of gross negligence.

B. The Closing on the Target With Weapon in Hand: The second alleged violation of a Baltimore City Police Department guideline by Sergeant Pagotto was that he “closed” on the white Subaru with his gun drawn. Although there was no clear consensus among the State’s experts as to precisely what the forbidden “closing” radius was, it was universally agreed that “closing” is a much more restrictive ³¹² term than “approaching.” From the moment that Sergeant Pagotto alighted from the police vehicle and started walking toward the stopped Subaru, several car lengths ahead, he was approaching the Subaru but he was not yet “closing.” During that approach, Sergeant Pagotto withdrew his weapon from its holster and held it in his right hand. None of the experts questioned the propriety of that action. Sergeant Meier was clear on that point: Q: If as he approached that vehicle, when he was ten feet away from the vehicle he felt a threat to himself, number one, I assume you have no problem with him withdrawing his weapon?

A: No, he’s perfectly justified in doing that. (Emphasis supplied). Lieutenant Meiklejohn agreed, making reference to Montgomery County practice in that regard: A: It’s under a note. “Display of firearms. Firearms may be drawn whenever officers have reason to fear for their safety or the safety of others.

Once again, drawing your weapon is not predicated on the type of offense, it’s the threat you perceive. There are no guidelines that specifically outline when you draw your weapon, it is up to you to make that decision.” Q: So the drawing of a weapon — I’m sorry — this policy is a pretty universal policy, is that correct? A: I would say yes. Q: So the drawing of a weapon does not mean that you need probable cause that a felony or a misdemeanor had been committed.

It simply means that it is the police officer’s perception that his life is in danger? A: That’s correct. (Emphasis in original). He then made a more specific assessment of Sergeant Pagotto’s action: ³¹³ [I]n Officer Pagotto’s situation, I don’t think there’s anything wrong with him drawing his weapon when he draws it.

(Emphasis supplied). Lieutenant Key was also of the opinion that Sergeant Pagotto had acted reasonably in drawing his weapon: A: Yes, sir, the unholstering the weapon was reasonable. Q: Would you cover the basis for that opinion? A: The basis for that opinion is the time of night; the type of, the type of crime that occurs in this area; Sgt.

Pagotto’s perception that the driver in this ear to shoulder movement was reaching for a weapon; the potential for the persons in that car to be involved in other crimes, a stolen car or the drugs. All of that is— it would be reasonable and consistent with his training in order to draw his weapon. Q: But he didn’t see a weapon. Would that, would that factor into it?

A: Absolutely does not factor into it. The, the instruction to officers in drawing their, their weapon is that if they have a reasonable belief that theirs or someone else’s life is in danger. If we had an instruction that said you may not draw a weapon unless you see a weapon, then you’re going to get a lot of police officers shot or killed because they cannot react quickly enough to a threat to be able to draw, to be able to draw their weapon after they have already seen the weapon. By then, it’s too late.

(Emphasis supplied). Major Melcavage placed the encounter in perspective when he explained that the automobile stop (along with responding to a domestic violence call) is one of the two most dangerous situations in which police officers find themselves: ³¹⁴ The Witness: It is a situation that a police officer has very-little control over right from the beginning. You don’t have full view of the subject that you are approaching, you don’t know if weapons are in the vehicle, you don’t know if the person in the vehicle is hiding something. It was an action that was initiated by the officer.

All of those factors make it a dangerous situation. The distance from the target at which approaching becomes “closing” was variously given as somewhere between six and ten feet. Whatever the distance, the generating principle is that an officer should not, with a drawn weapon, get so close to a suspect that the suspect might be able suddenly to wrench the weapon from the exclusive control of the officer. For purposes of assessing the special mens rea of involuntary manslaughter, it must be noted that this particular guideline, as part of the larger subject known as DEFENSE TACTICS, is quintessentially designed for the protection of the officer himself.

While it is true a struggle over a weapon could also incidentally lead to the inadvertent injury of the suspect or an innocent third person, the self-preservation of the officer is the energizing raison d’etre behind this particular tactic and, indeed, behind the whole course in defense tactics. As the State’s experts repeatedly emphasized, an officer who in the course of his duties overrides this guideline is risking his own life. Although Sergeant Vittetoe characterized Sergeant Pagotto as “reckless” in drawing his weapon in the first instance, his concern was that Sergeant Pagotto was thereby being reckless primarily about his own safety and secondarily about that of his fellow officer and of “any citizens ... not related to that incident.” He did not include a non-compliant or aggressive suspect within the protective compass of the policy or guideline: [S]ometime during [his] exiting his vehicle and approaching the suspect’s vehicle, or Preston Barnes’ vehicle, he had taken his gun out. To me that is reckless because if this is not a routine or unknown risk traffic stop, Sergeant Pagotto ³¹⁵ should have never left his vehicle or the area surrounding his vehicle.

The reason I say that, he does that for his protection, for Sergeant Pagotto’s protection, he uses that vehicle as kind of a barrier between him and the vehicle in which he is dealing with. His responsibility at that point in time should have been for his protection, the protection of his fellow police officer, Sergeant Wagner, and any citizens or civilians not related to this incident, period. (Emphasis supplied). Sergeant Meier placed the critical distance at ten feet but also described the danger of moving closer as a danger to the officer himself: A: We teach closing as coming into an area where you are limiting your reaction time.

We teach keep a distance of at least ten feet from a suspect when you have your weapon in your hand. Anything closer puts you in jeopardy. It cuts your reaction time down. (Emphasis supplied).

Major Melcavage estimated the critical radius to be no more than five or six feet. He also testified, however, that although “closing” within that radius might be tactically “inadvisable,” it would not constitute a violation of any policy or guideline: Q: [H]ow close do you get when it is considered closing? A: I have never considered that question before. Certainly you would need enough distance so that if someone were to pull a weapon, you would be able to react, gain cover if you needed to, five or six feet.

Q: Five or six feet? A: Uh-huh. Q: So it would be in your mind a violation of a policy or guideline to come within five or six feet of a subject with your gun drawn if you suspected they had a weapon? ³¹⁶ A: I don’t think that policy has even been delineated. I wouldn’t say it was a violation of policy, I would say it was probably inadvisable action.

Q: Well, but there is a policy that you are familiar with that you should not close with your weapon in your hand, right? Isn’t that what you are saying? A: No, not that I am aware of. Q: All right.

So you can close with a weapon in your hand? A: Yes. Q: And closing would be coming up and putting the person under arrest? A: That is correct.

(Emphasis supplied). Lieutenant Key, the author of the “closing” guideline, did not believe that Sergeant Pagotto was acting unreasonably when he violated it: Q: Okay. Do you, do you have an opinion as to whether or not Stephen Pagotto on February the 7 th, 1996, was reasonable despite the fact the guidelines were violated? A: As far as to the closing?

Q: As far as the closing is concerned. A: Yes, sir. He explained the reasoning behind his conclusion: Q: Okay. Give us the basis of your opinion that the closing in this case was reasonable.

A: Well, it’s a guideline. Guidelines are discretionary to some degree. The officer has a reasonable perception that his life was in danger. Every circumstance or every situation is evaluated differently.

He did not abide by the guideline, but in this circumstance the immediacy of the situation from the perception of a reasonable officer, which is the standard that I used to ³¹⁷ evaluate the — a police-involved shooting, was reasonable. Q: So, you’re saying he, he did what a reasonable police officer would do under the same or similar circumstances ? A: Yes, sir. (Emphasis supplied).

Lieutenant Key raised the additional issue that the entire guideline about “closing” actually applies to a distinct situation — when the officer is holding an arrestee or a stoppee at bay — and does not really pertain to the situation in which Sergeant Pagotto found himself on February 7,1996: Q: He received your training? A: Yes, sir. Q: In conformance with these guidelines? A: I trained the officers in conformance with the guidelines, that’s correct.

Q: And you trained them not to close with a gun in their hand within 10 feet? A: Well, actually, that section — the section applies to a situation where they’re holding someone at bay. That is one of the sections and one of the things in there. It’s confronting an individual.

It really is not the case at hand. (Emphasis supplied). It bears noting, moreover, that the specific danger this guideline is designed to guard against never came to pass. Preston Barnes never grabbed Sergeant Pagotto’s weapon nor wrestled with the Sergeant for the control of it.

What Barnes did, rather, was to drive the automobile he was controlling into Sergeant Pagotto’s body and particularly into the arm that was holding the weapon. In the last analysis, Barnes “closed” on the gun rather than vice versa. The harm that the guideline was designed to prevent never occurred. ³¹⁸ Even assuming that “closing” to within a few feet of Preston Barnes constituted ordinary civil negligence, there was nothing in the appellant’s behavior to suggest “a wanton and reckless disregard for human life.” He approached an inherently dangerous confrontation with his weapon in hand. Hindsight, indeed, revealed that Sergeant Pagotto’s suspicions and fears were well-grounded.

Although Sergeant Pagotto did not know it at the time, Preston Barnes was almost certainly committing a felony in his presence — the possession of cocaine with the intent to distribute. Rather than risk a violation of probation, Preston Barnes was poised, just as the Sergeant drew near, to initiate a high-speed getaway, wantonly running down Sergeant Pagotto in the process if need be. If in a stress-laden situation and for his own self-protection Sergeant Pagotto violated a departmental guideline, he did not thereby commit an act of gross negligence. C. The So-Called Vehicular Extrication: The State’s third alleged violation of a Baltimore City Police Department guideline is its theory that Sergeant Pagotto, as some sort of “Rambo” or one-man army, deliberately kept his gun in his right hand and, with his left hand alone, initiated the opening of the door of the Subaru and then attempted a one-armed “vehicular extrication,” to wit, a dragging of Preston Barnes out of the automobile.

The assistant state’s attorney characterized the defendant as a self-styled Superman. The only witness to any direct physical contact between Sergeant Pagotto and Preston Barnes, however, was Sergeant Pagotto himself. Neither Damien Jackson nor Ali Austin testified to any touching, let alone struggling, between Pagotto and Barnes. Sergeant Pagotto’s version of the struggle is neither the best State’s version nor the best defendant’s version of the evidence.

It is the only version we have. He described how, just as he “got to about the back door on the driver’s side,” the front door suddenly “sprung open.” His only thought was that he “was going to be shot.” His ³¹⁹ instinctive reaction was to go “towards the driver.” He testified that “[i]t was the best plan of attack ... to go in and get ahold of him” and that “[yjears of experience, and all the time in a possible ambush situation, I was always trained to go into the ambush.” Sergeant Pagotto testified that it is particularly dangerous for an officer to be facing a partially open car door. That configuration gives the person on the inside both concealment and the advantage of a narrow gun port or avenue of fire while affording the person on the outside a minimal window of opportunity through which to take effective countermeasures. In such a situation, the officer has to get the door either closed or opened wider.

As a purely defensive reaction, Sergeant Pagotto opted to pull the door further open and then to grab for Barnes’s arm. That widening of the already opened breach may have been the action observed by Jackson and Austin although they did not see Sergeant Pagotto reach in. The expert assessment of the appellant’s testimony about that final encounter was minimal. Major Melcavage explained the training that is given with respect to vehicular extrication in the abstract.

He testified that he did not “teach firearms” and that his course on defense tactics was concerned with “mostly unarmed techniques.” He pointed out that “the subjects that I basically taught, the defense tactics program, ... was all hand to hand.” It was in that context that he testified: Q: As part of the defense tactics, were there any control tactics as part of your teaching that would involve the use of a single hand or one hand? A: No, sir, all the techniques I taught required two hands. Q: And why was that? A: You can’t effectively gain control of an individual with just one hand.

(Emphasis supplied). Major Melcavage elaborated: Q: And the weapon is not supposed to be part of that equation? ³²⁰ A: No, sir. Q: If you have a gun in your hand, and you intend to remove a driver from a vehicle through the use of a control tactic, what should you do with that weapon? A: You would have to holster the weapon.

Q: And why is that? A: Because you need two hands to gain control of an individual or to apply a technique as taught at the academy as I taught. Major Melcavage further acknowledged that in the twenty-week programs given to police recruits, such as the one Sergeant Pagotto took in 1980, a single three-hour class is spent on vehicular extrication and then, in subsequent retraining programs, the subject is “never touched upon again.” Sergeant Vittetoe was critical of Sergeant Pagotto for attempting to control Barnes “with one hand and with a gun in the other.” He elaborated: And this is for a reason. First of all, it’s difficult to control somebody with one hand.

You don’t know of their physical size, strength, abilities, or anything else, and it generally requires two hands. Also, for the protection of the firearm, the firearm, once you take it out and you are dealing with a suspect, a driver, in this case Preston Barnes, you don’t want to present that gun to that person because that weapon can now be used against you. (Emphasis supplied). Sergeant Vittetoe acknowledged, however, that the Maryland State Police had permitted State Troopers to grab persons they were attempting to arrest with one hand even while holding a gun, ready to shoot, in the other hand until approximately 1994.

The testimony of both Major Melcavage and Sergeant Vittetoe dealt with the subject of vehicular extrication as an abstract academic or training exercise. Self-evidently, one can wrestle with an opponent more effectively with two hands than with one. That’s the school solution. They analyzed the ³²¹ problem as if Sergeant Pagotto had moved forward ab initio with a pre-formed and deliberate plan to perform a one-armed vehicular extrication.

Their opinions had no pertinence to an instinctive, split-second reaction, actual or hypothetical, where the right hand is already holding a weapon and where a car door suddenly opens, a foot or two away, in front of one’s face. The instantaneous reaction either to “move into the ambush” or to attempt to retreat to the cover of the police cruiser is something that is not concerned with the schoolroom paradigm of a model vehicular extrication. Lieutenant Key placed Sergeant Pagotto’s instinctive reaction, when suddenly faced with a partially opened car door and the fear of being shot, in a less abstract perspective: Q: Well, do you have an opinion as to Steve Pagotto reholstering his weapon as he got closer? A: Yes, sir.

Q: And what is that opinion? Could he have done that? Should he have done that? Explain, explain it to the ladies and gentlemen of the jury.

A: His not reholstering — it’s not a question should he or could he, it’s a question of whether it’s reasonable. His not reholstering in this instance was reasonable. Q: And why is that? A: There are two reasons.

One, the immediacy or the potential of the person being armed inside the car. That’s first and foremost because it’s his life that he’s trying to protect. (Emphasis supplied). The appellant’s version of this part of the encounter does not permit a finding that the Baltimore City Police Department guideline as to vehicular extrication had been violated.

Even assuming, arguendo, that there had been a violation, however, that would be, at most, a prima facie case of ordinary civil negligence. Assuming that this is a case in which an officer might be civilly liable for negligence, there was insufficient evidence of the type of wanton and abandoned ³²² indifference to human life required to meet the incremental burden of production that must be satisfied before a jury can consider the issue of gross criminal negligence. D. The Unfeasability of a Mass Police Response: A sub-theme running through the testimony of several of the State’s experts was that even if Sergeant Pagotto could not be faulted for his conduct once he was involved in a close one-on-one confrontation, he was at fault for allowing the one-on-one confrontation to develop in the first instance. The expert opinion was that once Sergeant Pagotto had some reason to believe that the white Subaru might be stolen or some reason to believe that the occupants of the white Subaru might be armed, he should have been more circumspect than he was.

Several of the experts testified that he should have remained behind the door of his police cruiser, using it as a shield, while he radioed his dispatcher and requested additional backup units. There was even the suggestion that he could have requested one of the two police helicopters in case the white Subaru attempted a getaway. 10 The State was not entitled as a matter of law to rely upon the suggestion that Sergeant Pagotto should have summoned the police reinforcements necessary to treat the stop in this case as a “felony stop.” It was Lieutenant Key who placed in perspective just what a felony stop would entail and why the stop in this case could not possibly be justified as a felony stop: [I]t was a traffic violation. The reasonable suspicion that there are other activities will not, in itself, justify a felony car stop. There is no probable cause to believe that a felony was being committed.... ³²³ In a felony car stop, if you go through the procedures, you get people out, you put them on the ground, you put their hands on their head, they’re laying out in the street.

You have to have traffic stops. You have to have more than one car. It’s actually two cars, and sometimes three cars, involved in it. You go through this whole process, bring them back, frisk them one at a time.

The process takes 35 or 40 minutes. We have thousands of cars recovered— stolen cars recovered in the City of Baltimore every year. Overwhelmingly, the majority of them are unauthorized use. That’s what they’re charged with in the end.

Q: Is that a felony or misdemeanor? A: That’s a misdemeanor. Q: Go ahead. A: And if we had a felony car stop every time the cop believed that somebody was inside that might be armed or a threat to his safety, ive don’t have enough police to be able to conduct felony car stops.

This is a violent, urban community in places in the City of Baltimore and the cops have to deal with it like that. It’s not like being on the roads in the State of Maryland. (Emphasis supplied). The recommended response testified to by the State’s experts ignored the fact that the city-wide gun recovery program had gun recovery units operating throughout the city on a daily and nightly basis.

Every stop of an automobile by a gun recovery unit necessarily involved a suspicion by the officers that the occupants of the automobile might well be armed. The occupants of the automobile fit the profile of those who were more likely than others to be in possession of guns or they would never have been stopped in the first place. The gun recovery effort relied upon, as a key technique, pretextual stops for traffic violations in order 1) sometimes to frisk the occupants, 2) sometimes to spot guns or other evidence of crime in plain view, or 3) sometimes to engage in consensual searches of the automobile and/or its occupants, all as ways of discovering and recovering guns. Whatever the ³²⁴ real motivation, however, the only constitutional justification remained a traffic violation.

Without benefit of hindsight, the stop of the white Subaru in this case would have appeared to be no different than the stop of any other automobile by any other gun recovery unit. Many such stops will, by the very nature of things, yield no guns. If in this case, for example, Sergeant Pagotto and Officer Wagner had remained beside their police cruiser holding the occupants of the white Subaru at bay, other police cars had sped to the scene with sirens wailing and dome lights flashing, a helicopter perhaps had hovered overhead, the occupants of the Subaru had been handled as potentially armed and dangerous individuals, and all that had ultimately eventuated was the issuance of a traffic citation for displaying a license tag in the wrong place, the angry community reaction can readily be imagined. If such a scenario were repeated a half-dozen times, outraged demonstrators would besiege City Hall and