Riley v. State

WRIGHT, J. On June 10, 2014, Sergeant Johnnie Armstead Riley, appellant, was convicted of first-degree and second-degree assault, use of a handgun in the commission of a crime of violence, and misconduct in office by a jury in the Circuit Court for Prince George’s County. On November 13, 2014, the court sentenced Sgt. Riley to twenty years in prison with all suspended except for five years to be served without the possibility of parole, for use of a handgun during the commission of a crime of violence; a concurrent twenty-year sentence, with all but three years suspended, for assault in the first degree; 1 and to a concurrent three years in prison for misconduct in office. The court also placed Sgt.

Riley on five years of supervised probation. On November 17, 2014, Sgt. Riley noted this appeal, presenting a single question for review: Was the evidence insufficient to sustain the appellant’s convictions? Facts This case stems from an on-duty police shooting.

On September 6, 2012, shortly after 5:17 p.m., twenty-five year old Calvin 2 Kyle (“Kyle”) was riding a stolen motorcycle on Marlboro Pike in the District Heights municipality of Prince George’s County. Kyle’s friends were driving ahead of him in a gold Chevrolet Tahoe (the “SUV”) on the way to a repair . shop to swap a flat tire on the motorcycle. Sgt. Riley was on patrol in an unmarked Ford Crown Victoria when the SUV ²⁵² and the motorcycle made illegal left turns onto Scott Key Drive before splitting up and going different ways.

The SUV continued straight onto Scott Key Drive and the motorcycle turned onto Foster Street and traveled the wrong way down the one-way street. After observing the traffic violations, Sgt. Riley activated his emergency lights and began a pursuit of the motorcycle. Kyle, the motorcyclist, did not stop when he saw Sgt.

Riley behind him and instead attempted to merge onto County Road but was impeded by heavy traffic. After pulling Kyle over, Sgt. Riley approached him and informed him that he had been riding the wrong way down a one-way street. When asked for his name, Kyle, who had no license, identified himself as “Kalvin Paterson.” A license check revealed no records for a “Kalvin Paterson.” Kyle did not comply with Sgt.

Riley’s requests to shut off the motorcycle and dismount. When Sgt. Riley heard a change in the engine, he believed that Kyle was “getting ready to run.” Sgt. Riley then lowered the kickstand and took Kyle off of the motorcycle.

After police dispatch informed Sgt. Riley that the motorcycle had been reported as stolen, Sgt. Riley advised Kyle that he was under arrest. Sgt.

Riley searched Kyle’s pockets, handcuffed him, and sat him on a curb. Sgt. Riley removed Kyle’s shoes, hoping to find some form of identification but found none. Sgt.

Riley then placed Kyle in the front passenger seat of his police vehicle for transport to the jail, securing him with a seat belt, before locking the door. By then, Officer Douglas McMillan had arrived as backup, but Sgt. Riley told him to return to service after hearing dispatch calls for Ofc. McMillan over the radio.

Kyle’s phone rang seven times while he waited with Sgt. Riley in the police vehicle for a tow truck to pick up the motorcycle. When asked by Sgt. Riley if he was with the SUV, Kyle said “no.” At one point, while waiting in the car, Kyle uttered, “there’s the gold Tahoe.” When Sgt.

Riley looked up, he saw the SUV making a right turn from Foster Street onto Blazer Drive. Sgt. Riley then “started packing up ²⁵³ everything” and walked to County Road to photograph the motorcycle in order to document the missing ignition. At that time, the SUV traveled towards Sgt.

Riley at 10-15 miles per hour with the driver staring at the cruiser and hanging his arm and torso outside of the vehicle. Sgt. Riley realized that Kyle had taken off and spotted him running on Foster Street towards Scott Key Drive. Sgt.

Riley began a pursuit on foot. Sgt. Riley lost sight of the SUV and assumed that it had turned onto Elmhurst Street, which intersects with Scott Key Drive. Sgt.

Riley then tried to get on the radio to request additional units, but the radio was “tied up” with other dispatch calls. During his foot chase with Kyle, Sgt. Riley’s expandable baton became fully extended and restricted his running. In “an act of desperation,” Sgt.

Riley threw the baton at Kyle, adding that “everything became intense” at that point. Sgt. Riley said he believed that the SUV was there to pick up Kyle, stating: At that point I started formulating that he’s going to make it around the corner; we’re going to be exposed. Then I’m fearing for myself, because I know once I turn that corner with Mr. Kyle, that I might be hurt.

I might be put into a possible ambush. I’m not just dealing with Mr. Kyle on foot; now I got to deal with the two suspects in the car — the two unknown people in the truck, and I got to deal with the truck itself as a weapon. Sgt. Riley yelled four times, “stop or I’ll shoot,” before firing two shots as he ran.

One of the shots hit a parked vehicle. Sgt. Riley then stopped and turned, and fired a third shot hitting Kyle. According to Sgt.

Riley, five or six seconds passed from when he saw Kyle running to when he fired his weapon. Sgt. Riley testified that when he walked up to Kyle following the shooting, he “was surprised [to see] that Mr. Kyle was still cuffed.” Sgt. Riley immediately reported the shooting to the dispatcher saying, “shots fired, shots fired.

County Road and Foster. Suspect down. I shot my suspect.” Officer Joseph Angle, who had just cleared a robbery a mile away, ²⁵⁴ and Wendell Brantley, a Deputy Chief of Police for the District Heights Police Department, both responded to the scene, where they saw Sgt. Riley administering aid to Kyle.

As a result of being shot, Kyle’s spine was severed, leaving him paralyzed from the waist down. State’s witnesses, Adena Davis, Andrea Brown, and Latoya Cannon, said that they saw an officer chasing an individual who was running. Brown said that she saw the individual escape from the officer’s vehicle as the officer photographed the motorcycle, while Davis stated that the individual “kept looking back” at the officer. Both Brown and Davis testified to seeing the officer throw his baton at the individual, and they estimated that the officer was 25-80 feet from the individual when he fired his weapon.

The State presented two experts on the use of force by police. Sergeant William Gleason, a member of the Prince George’s County Police Department, testified that he did not believe that Sgt. Riley used a reasonable use of force. Specifically, Sgt.

Gleason noted that Kyle was running away from Sgt. Riley for a relatively unserious offense while restrained in handcuffs behind his back. As such, Kyle did not pose any imminent threat of harm because “no reasonable person would believe that [Kyle] was armed at the time,” particularly since Sgt. Riley had already searched Kyle’s person twice.

Craig Dickerson, a thirty-year veteran of the Montgomery County Police Department, testified and based on the information presented, he believed it was a “tactical error in judgment.” According to Dickerson, an officer is permitted to use deadly force “based on the threat and ... the seriousness of the crime,” but that Kyle posed a minimal threat as he was handcuffed and running away. Dickerson also added that a “better or more reasonable action” would have been to “call and ask for assistance.” The defense presented its own expert on the use of force. David G. Bolgiano, a retired military officer, 3 testified that ²⁵⁵ because the officers confront tense and rapidly evolving situations, the deadly force policy is “deliberately vague” and not subject to “bright-line rules.” Bolgiano testified that “inattentional blindness” and loss of fine motor skills caused by the fear of death impacted Sgt. Riley’s actions.

According to Bolgiano, “viewed from the perspective of a reasonable police officer and the information that officer possessed at the time he made the decision to use deadly force and all the preassaultive indicators[ 4 ] that were present, his actions were objectively reasonable.” After deliberating for eight hours, the jury acquitted Sgt. Riley of attempted murder in the second degree, but convicted him of assault in the first and second degree, use of a handgun during the commission of a crime of violence, and misconduct in office. This appeal followed. Additional facts will be included below as they become relevant to our discussion.

Standard of Review On a claim that the evidence is insufficient to support the conviction, the standard of review is 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.” Gerald v. State, 137 Md.App. 295, 308 , 768 A.2d 140 (2001) (citation omitted). “Our concern is not with whether the trial court’s verdict is in accord with what appears to us to be the weight ²⁵⁶ of the evidence, but rather is only with whether the verdicts were supported with sufficient evidence — that is, evidence that either showed directly, or circumstantially, or supported a rational inference of facts which could fairly convince a trier of fact of the defendant’s guilt of the offenses charged beyond a reasonable doubt.” State v. Albrecht, 336 Md. 475, 478-79 , 649 A.2d 336 (1994) (internal citations omitted). In that regard, we defer to the fact finder’s “resolution of conflicting evidence, and, significantly, its opportunity to observe and assess the credibility of witnesses.” State v. Svddith, 379 Md. 425, 430 , 842 A.2d 716 (2004) (citation omitted). Thus, “the judgment of the trial court will not be set aside on the evidence unless clearly erroneous.” State v. Manion, 442 Md. 419, 431 , 112 A.3d 506 (2015) (citation omitted). Discussion I. Assault Sgt.

Riley first argues that the evidence was insufficient to sustain his conviction for assault. Specifically, Sgt. Riley contends that “[bjecause there was no evidence presented to support a finding that [he] acted with malice in using his service weapon, the State failed to prove that he was criminally liable under §§ 3-202, 3-203 ... of the [Md.Code (2002, 2012 RepLVol.),] Criminal Law Article [ (“CL”) ].” In support of his argument, Sgt. Riley emphasizes that “for criminal liability there must be ‘concurrence of an evil-meaning mind with an evil-doing hand.’ ” (Quoting Morissette v. United States, 342 U.S. 246, 251 , 72 S.Ct. 240 , 96 L.Ed. 288 (1952)).

At the conclusion of the State’s case in the circuit court, counsel for Sgt. Riley moved for judgment of acquittal, stating: With respect to the assault counts, because of my client’s position as a police officer, I still think the State — because an officer has some degree of immunity for his actions, the State still has to prove that these acts were done with malice. ²⁵⁷ I’ve submitted a requested jury instruction on malice that I would call to the Court’s attention ____ I believe I submitted — that they’d have to show that he acted knowingly and deliberately for an improper motive and without legal justification. Mere errors of judgment, whether occasioned by negligence o[r] otherwise, are not crimes. Similarly, an act that is done merely because of mistake, accident, carelessness, or other innocent reason is not done maliciously.

Defense counsel renewed his argument at the conclusion of the entire case, stating in pertinent part: The State is trying to argue to the Court that a police officer, for actions which the subsequent statute assigns, actions for which he could not be civilly liable for a nickel, he’s criminally liable. And I don’t think that that is what any case says. I don’t think that makes sense. The legislature is saying when an officer is acting in the course of his duties, there’s a level of governmental immunity that applies, and that would also carry over to the criminal law.

In response, the State argued: I disagree ... that the case law in any way has the added burden of the State showing malice on the part of the defendant in the context of a criminal case. I believe that the case law clearly will show, and there are statutes to the effect that affirm this, malice is a required element in the civil context; however, it is not in the criminal context. Ultimately, the circuit court agreed with the State and denied the motion for judgment of acquittal stating: I see nothing in the definition of battery ... or in the definition of assault that talks about malice. I mean, it’s very clear.

Battery, if you look at the instruction — this is the assault count that would lie ... which is at [Maryland Criminal ²⁵⁸ Pattern Jury Instructions] 4:01(c), “assault is causing offensive physical contact to another person. The State must prove, one, that the defendant caused the physical harm; two, that the contact was the result of an intentional or reckless act and was not accidental; and, three, that the contact was either not consented to or not legally justified.” That’s not complex. That’s the state of the law. And then to add first degree to it means that it was done causing serious permanent — and permanent or serious protracted injury and that it was done by a firearm.

Subsequently, the State, in its rebuttal closing argument, contended that even if the jury found no intent to kill, Sgt. Riley was guilty of assault “because he inflicted a very serious sort of physical injury on [C]alvin Kyle that wasn’t consented to in any way by Mr. Kyle[.]” We agree with the State and the circuit court that Sgt. Riley’s reliance on Morissette is misplaced. The substantive elements of assault do not change based on the identity of the defendant.

In this case, Sgt. Riley was convicted of assault, a general intent crime, Genies v. State, 196 Md.App. 590, 601 , 10 A.3d 854 (2010), aff'd, 426 Md. 148 , 43 A.3d 1007 (2012), that does not require malice. 5 Johnson v. State, 223 Md.App. 128, 147 , 115 A.3d 668 , cert. denied, 445 Md. 6 , 122 A.3d 975 (2015). “Because it lacks the element of malice, [ ] assault cannot be reduced by the defense of provocation into some lesser offense.” Id. “A provocation defense ... serves only to mitigate the presence of malice and cannot absolve an individual of all criminal liability.” Id. at 146 , 115 A.3d 668 (citations omitted). Nonetheless, as the State correctly notes, Sgt. Riley was “entitled to raise the affirmative defense of law-enforcement justification, which he in fact did” and which, according to the verdict, the jury did not accept.

See generally Tavakoli-Nouri v. State, 139 Md.App. 716, 731 , 779 A.2d ²⁵⁹ 992 (2001) (recognizing “that police officers, when arresting a suspect, have the right to take reasonably necessary measures to make the arrest in a manner that protects both the public and