Smith v. State

DAVIS, J. Appellant, Antwan Derrell Smith, and his co-defendant, Charles Patterson, were tried by a jury in the Circuit Court for Baltimore City from March 13-21, 2007, on various counts of first-degree murder, armed robbery, robbery, conspiracy to commit robbery and assault. On March 21, 2007, the jury convicted appellant of three counts each of armed robbery, robbery and second-degree assault and one count each of ⁴⁵¹ attempted armed robbery and attempted robbery. 1 On May 3, 2007, the circuit court denied appellant’s motion for new trial. On that same day, the circuit court merged the assault, robbery and attempted robbery counts into the armed robbery and attempted armed robbery counts and imposed a sentence of (1) twenty years imprisonment on one count of armed robbery; (2) ten years imprisonment on another count of armed robbery (consecutive to the first sentence for armed robbery), (3) ten years imprisonment on a third count of armed robbery (concurrent with the second sentence for armed robbery), and (4) ten years imprisonment on the final count of attempted armed robbery, to be served concurrently with the second sentence for armed robbery. From these convictions and sentences, appellant filed the instant appeal, presenting the following questions, which we have rephrased as follows: 1.

Did the trial court err when it denied appellant’s motion to suppress evidence on the grounds that the initial traffic stop of the car in which appellant was a passenger was valid under the Fourth Amendment to the United States Constitution? 2. Did the trial court abuse its discretion when it repeatedly questioned State’s witnesses during appellant’s trial, thus depriving appellant of his right to a fair and impartial trial? 3. Did the trial court err by admitting an exhibit proffered by appellant’s co-defendant, later given to the jury during its deliberations, that, unbeknownst to the court and counsel, contained evidence of appellant’s possession of a controlled dangerous substance that was earlier deemed inadmissible by the trial court? ⁴⁵² For the reasons that follow, we answer question I in the negative and question II in the affirmative. In light of our disposition of question II, we decline to reach question III.

Accordingly, we shall reverse the judgment of the Circuit Court for Baltimore City. FACTUAL BACKGROUND Appellant was arrested after Baltimore City police officers initiated a traffic stop of a car driven by appellant’s co-defendant, Charles Patterson. Appellant and Patterson were jointly tried on various charges related to the murder of Anthony Hecht 2 and the robbery of James Anderson, Charlotte Johnson, Tycara Johnson and Lamar Davis, all of which occurred, according to the State, prior to the traffic stop that resulted in the arrests of appellant and Patterson. At appellant’s trial, James Anderson, also known as “Liquor Boy” and “Gasoline,” testified that, sometime during the late evening of October 23, 2005 or into the early morning hours of October 24, 2005, he asked a man standing on the corner if he would help Anderson procure cocaine.

Both men walked around to the back of a building, where another man approached Anderson and demanded money from him at gunpoint. Both before and during trial, Anderson identified Patterson as the man standing on the corner and appellant as the man with the gun. Patterson took $5 out of Anderson’s pocket. Anderson then accompanied both Patterson and appellant to the front of the building, where Anderson noticed three people sitting on a front stoop.

According to the testimony of Charlotte Johnson, Davis and Tycara Johnson, sometime before midnight on October 23, 2005 and/or during the early morning hours of October 24, 2005, three men approached them while they were sitting on Charlotte Johnson’s front porch at 4105 Cleve Court in the Brooklyn area of South Baltimore. One of these men carried what Charlotte Johnson described as a “long silver like rifle.” ⁴⁵³ The man with the rifle demanded that she and her companions empty their pockets and lay down on the ground. Additionally, Davis recognized one of the three men as a person he knew by the nickname “Gasoline.” After removing a ten-dollar bill, a pack of cigarettes and a lighter from her pockets, Charlotte Johnson lay down on the porch and covered her head with a coat. Davis testified that he removed a book of matches from his pocket and lay down on top of Charlotte Johnson.

The robbers also took $80 from Tycara Johnson after she removed the money from her pockets. At appellant’s trial, the State argued that, during or shortly after these robberies, the murder victim, Anthony Hecht, opened fire on appellant and Patterson, who fired back, killing Hecht. Hecht’s body, cartridge casings and bullets were later recovered from the area. Charlotte Johnson, Tycara Johnson and Davis all testified that, after laying down on the porch, they heard the sound of gunfire.

Anderson also lay down on the ground, but only after hearing gunshots. None of the four victims witnessed the gunfire or the shooting. Detective Charles Bealefeld, who participated in the investigation of Hecht’s murder, testified that the first report of gunshots in the area was at 11:25 p.m. Additionally, at trial, neither Charlotte Johnson, Tycara Johnson, nor Davis identified Patterson or appellant and all three admitted that they did not see who committed the robbery.

Although Detective Bealefeld testified that Charlotte Johnson previously identified appellant and Patterson in a pretrial photographic line-up, Johnson expressly denied having made an identification. Chris Kornish, 3 a friend of appellant and Patterson, testified that, on the night of October 23, 2005, he was a passenger in a BMW driven by Patterson. That evening, Patterson stopped somewhere in South Baltimore, exiting the car with appellant and leaving Kornish seated in the car. A short while later, ⁴⁵⁴ Kornish heard three gunshots.

When Patterson and appellant returned to the car, Kornish noticed that appellant was carrying a black and silver rifle. Appellant told Kornish that somebody had been shooting at appellant. Kornish testified that they then went to a bar and were stopped by police officers on their way home from the bar. Detective Bealefeld testified that Kornish identified both appellant and Patterson out of a photo array as the individuals he was with the night they were arrested.

Officer Creinton Goodwin and Officer Charles Watkins testified that they initiated a traffic stop of a silver BMW at approximately 11:50 p.m. upon determining that the BMW was traveling at a high rate of speed. Patterson was driving the car and appellant and Kornish were seated in the front and back seats, respectively. After stopping the car, Officer Watkins approached the passenger side of the car and immediately noticed that appellant appeared to be hiding a gun under his legs. Officer Watkins seized the gun, later determined to be a High Point .9 mm assault rifle and the occupants of the car were placed under arrest.

Both appellant and Patterson moved to suppress evidence seized subsequent to the traffic stop. Their motions to suppress were denied by the circuit court on March 5, 2007. The rifle was admitted as evidence at trial and a firearms identification expert testified that cartridge casings recovered from the crime scene matched the rifle retrieved from Patterson’s car. Additional facts will be provided as warranted in our analysis, infra.

ANALYSIS I Appellant and his co-defendant, Patterson, filed a motion to suppress evidence, challenging the legality of Officer Goodwin’s traffic stop. The circuit court denied their motion to suppress on March 5, 2007, ruling that Officer Goodwin’s ⁴⁵⁵ traffic stop was valid under the Fourth Amendment. Appellant assigns error in the circuit court’s conclusion. A. Standard of Review Our review of the circuit court’s denial of a motion to suppress is based on the record created at the suppression hearing and is a mixed question of law and fact.

See Whiting v. State, 389 Md. 334, 345 , 885 A.2d 785 (2005). An appellate court reviews the trial court’s findings of fact only for clear error, giving due weight to the inferences fairly drawn by the trial court and viewing the evidence and inferences reasonably drawn therefrom in a light most favorable to the prevailing party on the motion. Id., State v. Rucker, 374 Md. 199, 207 , 821 A.2d 439 (2003). However, legal conclusions are not afforded deference and thus are reviewed de novo.

Ferris v. State, 355 Md. 356, 368 , 735 A.2d 491 (1999); see also Ornelas v. United States, 517 U.S. 690, 698-99 , 116 S.Ct. 1657 , 134 L.Ed.2d 911 (1996). This Court reviews de novo the conclusions of the trial court as to whether reasonable, articulable suspicion justified a traffic stop, as this is a question of law. B. Investigatory Stop of Patterson’s Car At the suppression hearing, Officer Goodwin testified that, at approximately 11:50 p.m. on October 23, 2005, he and three other officers were sitting in a marked patrol car facing westbound on Mosher Street at the intersection with Gilmore Street. At that time, Officer Goodwin noticed a silver BMW heading northbound on Gilmore Street at what he believed to be a “high rate of speed,” later clarifying that he estimated the speed to be approximately forty to forty-five miles-per-hour.

He further testified that the posted speed limit in the area was twenty-five miles per hour and conceded that he did not use radar to detect the speed at which the car was traveling. Officer Goodwin immediately turned right onto Gilmore Street and activated his emergency lights, initiating a traffic stop of the car. Once stopped, Officer Goodwin approached the driver’s side of the car, where Patterson was seated, while Officer Watkins approached the passenger side ⁴⁵⁶ of- the car, where appellant was seated. Each officer was accompanied by another officer.

Officer Watkins eventually spotted and retrieved a firearm from the car and all three occupants of the car were arrested. Instead of issuing a traffic citation to Patterson for exceeding the maximum speed limit, Officer Goodwin issued a citation for driving at a speed greater than reasonable under the conditions. Officer Goodwin testified that he believed the speed of the car was unreasonable because it exceeded the posted speed limit and pedestrians were in the neighborhood at the time. Officer Goodwin conceded that the only other time that he had issued a traffic citation for speeding based on visual observation alone, i.e., without the help of radar, was approximately four or five years earlier when he was in training.

At the suppression hearing, counsel for appellant’s co-defendant, Patterson, made the following comments during his argument: Even if it was the speed limit of 25 miles per hour, he simply suggests — the officer says, well, it was about 40 to 45 miles per hour. Yet that is not, in fact, what he gave Mr. Patterson a ticket for. He gave Mr. Patterson a ticket for speed greater than reasonable. And he tried to create — as the court watched him on the stand kind of waffle back and forth — to create something to suggest that there was a basis for making the stop on this vehicle for speed greater than reasonable.

Today is the first time you’ve heard anything — there’s no police report that he has authored to offer to suggest that this was a stop based on one going 40 to 45 miles an hour, but rather this has been alleged to be a basis for the stop, the purpose of the ticket, the ticket says that it was speed greater than reasonable. Now before you today — and the credibility has come into question, Your Honor — while they cannot show that this was speed greater than reasonable because it doesn’t come close, there’s no evidence here that there was — even if it ⁴⁵⁷ was 40 miles an hour, 45 miles an hour, at 11:50 p.m., on a roadway. There’s, in fact, no description of the neighborhood that would suggest that at the time — based on this neighborhood, based on the conditions of the roadway — that the speed was greater than reasonable for the conditions that surrounded Mr. Patterson at the time that he allegedly was driving 40 to 45 miles an hour. I think, Your Honor, that this is clearly a situation where the officers saw what they saw — they saw three men in a vehicle, three African American men in a vehicle, and they chose to stop this car because it was a BMW traveling this roadway and they decided to stop it.

After Patterson concluded his argument, appellant’s counsel argued as follows: Your Honor, just expanding on [co-defendant’s counsel’s] argument, he also testified that he hadn’t done any type of a stop of this kind in the four or five years since training. That he’d never done one on his own. He’d been trained in this, but never utilized that training. He did not know what the street immediately — the cross street immediately to his south was and whether or not it was controlled by any type of a device that would cause the car to stop.

He did not know what the street was immediately to his north. There was subsequent testimony by the second officer that it was, in fact, Riggs, which is a four-way stop. He was unable to articulate whether or not the BMW vehicle stopped at Riggs. That, in and of itself — his inability to remember and articulate what took place at the intersection at Riggs, I think the court can see that this is not a pretextural [sic] stop.

That the pretext, so to speak, was manufactured, as [co-Defendant’s counsel] indicated, ⁴⁵⁸ after the search had taken place. And the entire vehicle stop should be suppressed, Your Honor. (Emphasis added.) In denying their motions, the circuit court ruled, in pertinent part, as follows: Motion to suppress is denied. The officer in this particular case saw a violation of the transportation code.

Much has been made by both Defense counsel of his information was inadequate, but I think both focused too searchingly on the narrow issue of did he have enough information upon initially seeing the car and observing the alleged violation, because he testified at that point he turns the corner, follows the car, and has to get up to 4Ó in order to catch up with the car. So I think there’s clearly a speeding violation. He corroborates that by issuing a speeding ticket. It’s of no moment to me whether he does speed greater than reasonable or puts a specific speed down.

And I’m not sure what experience he had in terms of District Court that caused him to do it that way. But I don’t think I have to speculate about that. We don’t have a pretextural [sic] violation here. We don’t have a Rowe situation where you’re essentially taking ambiguous behavior and trying to turn it into a transportation code violation.

Speed is speed. Officers have the capacity to estimate speed. This officer had the capacity. He verified that by how fast he had to go in order to catch up with the vehicle.

And I find nothing wrong with the stop of the vehicle. 4 (Emphasis added.) Appellant argues that this conclusion by the circuit court was erroneous, as Officer Goodwin stopped the car, according ⁴⁵⁹ to appellant, only because he saw “three young African— American males driving together in a BMW late at night in West Baltimore.” He urges this Court to restrict its review of the constitutional validity of the traffic stop to “those factors identified in the four comers of a contemporaneously prepared traffic citation or charging document issued to the driver or in a charging document or affidavit for the arrest of an occupant of the vehicle.” Appellant notes that, although Officer Goodwin testified that he stopped the car because he believed the driver exceeded the established speed limit, which constitutes a violation of Md.Code Ann., Transp. II § 21-801.1 (2006 RepLVol.), Officer Goodwin ultimately issued a traffic citation for driving at a speed greater than reasonable under conditions, which constitutes a violation of Md.Code. Ann., Transp. II § 21-801(a) (2006 RepLVol.).

Noting that this Court has previously held that evidence of excessive speed alone is insufficient to support a conviction for driving at a speed greater than reasonable under the conditions, see Warren v. State, 164 Md.App. 153 , 882 A.2d 934 (2005), appellant posits that an officer’s observations as to excessive speed alone should also be insufficient to form the factual basis for a Fourth Amendment traffic stop, if the rationale for the stop is excessive speed but the traffic citation that is ultimately issued is for driving at a speed greater than reasonable under the conditions. 5 The State counters that appellant failed to preserve appellate review of his claim, arguing that appellant did not question either Officer Goodwin or Officer Watkins about their observations regarding the race of the occupants of the car and did not argue this issue before the circuit court. Even if ⁴⁶⁰ preserved, the State posits that the relevant inquiry is whether, at the initial investigatory stage, Officer Goodwin had reasonable articulable suspicion of criminal activity, authorizing him to initiate a traffic stop under Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968) and its progeny. It reasons that the inability of the State, under these facts and in light of Warren, supra, to convict Patterson for driving at a speed greater than reasonable under the conditions is irrelevant because the quantum of proof necessary to establish reasonable articulable suspicion is less than proof beyond a reasonable doubt. The State maintains that the inquiry must be based on an analysis of the “totality of the circumstances,” and cannot be restricted, as appellant suggests, to the “four corners” of the traffic citation.

The State argues that, under a totality of the circumstances, Officer Goodwin’s observations as to the car’s excessive speed did in fact justify the Terry stop in this case. We hold that appellant properly preserved, for our review, his Fourth Amendment challenge to the traffic stop by Officer Goodwin. We nonetheless affirm the circuit court’s finding that Officer Goodwin’s traffic stop was valid under the Fourth Amendment, based on reasonable articulable suspicion that the driver of the car was violating Maryland’s traffic code by driving over the speed limit. C. Preservation As a general rule, this Court will not decide any issue unless it plainly appears by the record to have been raised in or decided by the court below.

Md. Rule 8-131(a). Accordingly, the failure to argue a particular theory at a suppression hearing waives the ability to argue that theory on appeal. See Stone v. State, 178 Md.App. 428, 445 , 941 A.2d 1238 (2008); Brashear v. State, 90 Md.App. 709, 720 , 603 A.2d 901 (1992). At the suppression hearing, Patterson’s counsel articulated the argument appellant now raises, noting that the traffic citation only charged Patterson with driving at a speed greater than reasonable under the conditions, challenging Officer ⁴⁶¹ Goodwin’s justification for the traffic stop and concluding that Officer Goodwin only stopped the car because he noticed that its occupants were African-American.

Immediately following the argument of Patterson’s counsel, appellant’s counsel informed the circuit court that he was “expanding” on his co-defendant’s argument. He went on to argue that Officer Goodwin manufactured a basis for the traffic stop “as [co-defendant’s counsel] indicated, after the search had taken place.” These comments demonstrate that appellant’s counsel intended to incorporate for the record the argument articulated by co-defendant’s counsel. C.f Erman v. State, 49 Md. App. 605, 612 , 434 A.2d 1030 (1981) (holding that the defendant who neither moved for severance and mistrial nor joined in his co-defendant’s motion waived right to raise issue on appeal) (emphasis added); Hensen v. State, 133 Md.App. 156, 165 , 754 A.2d 1055 (2000). Indeed, the circuit court addressed both appellant and his co-defendant when it denied the motion to suppress on grounds that appellant now raises before this Court.

While it is preferable for trial counsel not to assume preservation by merely “tacking on” to a co-defendant’s argument, the record of the suppression hearing, sub judice, reflects that appellant preserved for our review the Fourth Amendment issue he now raises on appeal. D. Reasonable Articulable Suspicion The Fourth Amendment prohibits unreasonable governmental searches and seizures. See United States v. Arvizu, 534 U.S. 266, 273 , 122 S.Ct. 744 , 151 L.Ed.2d 740 (2002). The linchpin of the Fourth Amendment is reasonableness, which is determined “by balancing the intrusion on the individual’s Fourth Amendment interests against [the] promotion of legitimate governmental interests.” Hardy v. State, 121 Md. App. 345, 354 , 709 A.2d 168 (1998) (quoting McMillian v. State, 325 Md. 272, 281 , 600 A.2d 430 (1992)) (internal citations omitted). ⁴⁶² Warrantless searches, seizures and arrests are per se unreasonable, subject only to a few well established exceptions.

Katz v. United States, 389 U.S. 347, 357 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967). It is well established that a valid traffic stop, or Terry stop, involving a motorist and/or passengers is one such exception. See Terry, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 ; United States v. Sharpe, 470 U.S. 675 , 105 S.Ct. 1568 , 84 L.Ed.2d 605 (1985); Brendlin v. California, 551 U.S.-, 127 S.Ct. 2400 , 168 L.Ed.2d 132 (2007); Swift v. State, 393 Md. 139 , 899 A.2d 867 (2006); Rowe v. State, 363 Md. 424 , 769 A.2d 879 (2001); Ferris, 355 Md. 356 , 735 A.2d 491 . A police officer conducting a traffic stop makes a valid, Fourth Amendment intrusion if the officer has probable cause to believe that the driver has committed a traffic violation, see Whren v. United States, 517 U.S. 806, 810 , 116 S.Ct. 1769 , 135 L.Ed.2d 89 (1996), or if the officer has reasonable articulable suspicion that criminal activity may be afoot, including reasonable articulable suspicion to believe the “car is being driven contrary to the laws governing the operation of motor vehicles____” Lewis v. State, 398 Md. 349, 362 , 920 A.2d 1080 (2007) (quoting Delaware v. Prouse, 440 U.S. 648, 650 , 99 S.Ct. 1391 , 59 L.Ed.2d 660 (1979)); see also Rowe, 363 Md. at 433 , 769 A.2d 879 .

An officer cannot rely on an inchoate or unparticularized suspicion or hunch to form the basis for a valid Terry stop. Cartnail v. State, 359 Md. 272, 286-87 , 753 A.2d 519 (2000)(quoting United States v. Sokolow, 490 U.S. 1, 7 , 109 S.Ct. 1581 , 104 L.Ed.2d 1 (1989)). Básed on our de novo review of the suppression record sub judice, we affirm the trial court’s ruling that Officer Good-win had reasonable articulable suspicion to conduct- a . Terry stop of the car driven by Patterson.

Officer Goodwin testified that, while he was stopped in his car and waiting to cross an intersection, he turned to his left and saw a silver BMW driving at what he estimated to be forty to forty-five miles-per-hour. He further testified that the posted speed limit in the area was twenty-five miles-per-hour. A ⁴⁶³ police officer is permitted to express a non-expert opinion as to the basis for his or her reasonable articulable suspicion. See Matoumba v. State, 390 Md. 544, 554 , 890 A.2d 288 (2006).

Moreover, an experienced, licensed operator of a car can express an opinion regarding the apparent speed of another car. See Boyd v. State, 22 Md.App. 539, 547-48 , 323 A.2d 684 (1974). The motions court found Officer Goodwin’s estimation of the speed of the car to be credible and corroborated by his testimony regarding how fast he had to travel in order to catch up with the car. We accord deference to the circuit court’s assessment of Officer Goodwin’s credibility and its subsequent findings of fact.

The court’s findings were not clearly erroneous. Moreover, the circuit court’s legal determination that the traffic stop was based on reasonable articulable suspicion did not constitute error. E. Application of “Four Comers Rule” to Traffic Stops As explained, Officer Goodwin articulated specific facts in support of his reasonable suspicion that Patterson was engaged, or about to engage in criminal conduct, as driving in excess of the posted speed limit is clearly a violation of Maryland’s traffic code. See Md.Code Ann., Transp.

II § 21-801.1 (2006 RepLVol.). This authorized Officer Goodwin to effectuate a limited intrusion into the Fourth Amendment rights of the driver and occupants of the car for the purpose of confirming or dispelling his suspicions. We make this determination based on our assessment of the “totality of the circumstances” leading up to the traffic stop, Sokolow, 490 U.S. at 8 , 109 S.Ct. 1581 ; we have not limited our review to the “four corners” of the traffic citation issued by Officer Goodwin, as appellant urges us to do. In Greenstreet v. State, 392 Md. 652 , 898 A.2d 961 (2006), the Court of Appeals explained the “four corners” rule, which confines appellate review of a judge’s basis to conclude that issuance of a warrant is supported by probable cause to the “four corners” of the warrant and its accompanying documents.

Appellant would have us extend the application of that ⁴⁶⁴ rule to our review of the validity of traffic stops and asks that we discount, as a matter of law, any testimony from an officer that supplements or is inconsistent with the words on a traffic citation. We find Greenstreet to be inapposite here. The reason for requiring a “four corners” rule in the context of warrant issuance is to assess the issuing judge’s probable cause determination at the time the warrant is issued, in light of “all of the circumstances set forth in the affidavit----” Greenstreet, 392 Md. at 667-68 , 898 A.2d 961 ; see also Valdez v. State, 300 Md. 160, 168-69 , 476 A.2d 1162 (1984) (allowing the consideration of evidence that “aids in deciphering what is within the four corners of the affidavit itself’). In determining the reasonableness of a Terry stop, however, we are required to look at the officer’s observations and conduct at the time the stop is initiated.

See In re David S., 367 Md. 523, 532 , 789 A.2d 607 (2002) (quoting Terry, 392 U.S. at 20 , 88 S.Ct. 1868 , and noting that the reasonableness of a stop is determined by a dual inquiry, looking at “[wjhether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place”). An officer’s decision to issue a traffic citation and his or her choice of crimes to charge in that citation may often be based on circumstances occurring after the officer’s initial decision to conduct a Terry stop. The contents of a citation are, of course, relevant under the “totality of the circumstances” test. They are not, however, determinative.

Ultimately, a “totality of the circumstances” test cautions against “parsing] out each individual circumstance for separate consideration.” Ransome v. State, 373 Md. 99, 104 , 816 A.2d 901 (2003) (internal citations omitted). By adopting a bright-line rule restricting judicial review of a traffic stop to those factors identified within the four corners of a traffic citation, both the State and the Defense would be substantially less able to highlight an officer’s pre-citation observations or conduct, which experience has shown us to be both probative ⁴⁶⁵ and relevant in making the case for or against the validity of a traffic stop. We decline to announce such a rule. 6 F. Application of Warren v. State We need not determine whether the same facts justifying Officer Goodwin’s traffic stop would also support a conviction for the crime charged in the citation. We are not sure why Officer Goodwin failed to charge Patterson with violating § 21-801.1 of Maryland’s Transportation Code, which prohibits driving at a speed exceeding the posted limit.

To be sure, ⁴⁶⁶ the State conceded at the suppression hearing that Officer Goodwin’s testimony, indicating that he first stopped the car for excessive speeding, would have been insufficient, under Warren, supra, to procure a conviction for driving at a speed greater than reasonable under the circumstances, pursuant to § 21-801(a) of the Transportation Code. At the suppression hearing, however, the State’s only burden was to show that Officer Goodwin had a reasonable articulable suspicion sufficient to justify his initial investigatory stop of the car. Muse v. State, 146 Md.App. 395, 406 , 807 A.2d 113 (2002). Appellant was entitled to argue that Officer Goodwin’s decision to charge or not charge certain crimes in the traffic citation cast doubt on his testimony at the suppression hearing.

Similarly, the circuit court was entitled to consider and reject this theory based on the evidence before it. As explained, supra, we give deference to the circuit court’s assessment of the facts and the credibility of the witnesses and we will not reverse its decision absent a showing of clear error; we do not so find here. In sum, viewing all the evidence in the light most favorable to the State as the prevailing party at the suppression hearing, we perceive no error in the circuit court’s determination that the traffic stop that resulted in appellant’s arrest and the seizure of evidence was valid under the Fourth Amendment to the United States Constitution. II A Appellant’s second contention is that the circuit court violated his right to a fair and impartial trial and to due process of law, guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Article 24 of the Maryland Declaration of Rights, by repeatedly questioning State’s witnesses “in a party-selective manner, evidencing a bias toward ⁴⁶⁷ the State’s position and making a concerted effort to assist the State in presentation of its case-in-chief.” The trial judge, in our view, overly injected himself as an inquisitor throughout the testimony of the witnesses, the result of which was to unduly give the perception that he favored the State’s version of the factual presentation.

With a degree of cerebration, we are constrained to order reversal. We explain. (i) Questioning of Officer Goodwin Officer Goodwin testified, both at the suppression hearing and at trial, that he initiated a traffic stop of the car in which appellant was a passenger at 11:50 p.m. on October 23, 2005. The State’s theory of the case was that this traffic stop occurred after the robbery and murder.

The testimony of the robbery victims, however, was not easily reconciled with Officer Goodwin’s testimony. For example, when the State asked Charlotte Johnson where she was “ten minutes before midnight,” she replied that she was sitting on her front porch with Davis and Tycara Johnson and that the robbery occurred around that time. She later testified during cross-examination that the robbery occurred at around 10:30 or 11:00 p.m. Similarly, Davis was asked by the State to testify about the events on October 23, 2005 and “going into the early morning hours of October 24, 2005.” Anderson was asked by the State to testify about events that occurred “close to midnight on October 23, 2005.” Tycara Johnson responded to the State’s question about events that occurred during “the evening hours” of October 23, 2005.

It appears that, apart from Charlotte Johnson’s testimony during cross-examination, no eyewitness to the robbery made any affirmative statement as to the exact or approximate time that the robbery took place. At trial, Charlotte Johnson, Lamar Davis and James Anderson were the first witnesses to present testimony. When Officer Goodwin was called to testify at trial, he stated on the record that the traffic stop took place at approximately 11:50 p.m. The trial judge immediately inserted himself into the examination of the witness: ⁴⁶⁸ THE COURT: Wait.

Sir, that’s the time that’s recorded as to an incident occurring and I suspect that this might have occurred later than that incident. Is there any way you can double check to make sure exactly what time you encountered the car? Like, for example, when you got your central complaint number from the Dispatcher? You may be giving me an earlier time, is what I’m suggesting.

Can you look it up? [THE WITNESS]: I would have to go back to the police station and look at the CAD information, but I think the time that was used is the time the actual complaint number was pulled, sir. THE COURT: But if the complaint number was pulled because of something that happened earlier that evening, is there a way that you can reconstruct exactly what time it was that you stopped this vehicle? [THE WITNESS]: No, sir. (Emphasis added). Neither appellant nor his co-defendant objected to these questions.

Later, Officer Goodwin was asked by the State about the rifle that was removed from the car subsequent to the stop. Although Officer Goodwin had previously asserted that he stopped the car at 11:50 p.m., the trial court again intervened in the examination of this witness: THE COURT: [¶]... ] While you’re doing that — Officer, I’m looking at a document that indicates that this High Point rifle was submitted on 10-24-05. Does that refresh your recollection as to how long after midnight you happened to encounter this vehicle? [APPELLANT’S COUNSEL]: I would object to the Court’s question. THE COURT: Overruled.

Does that refresh your recollection at all in terms of whether it was 11:50 on the 23rd or whether it was after midnight when you actually saw the vehicle? [THE WITNESS]: No, it was 11:50 when we actually saw the vehicle and the rifle was submitted just after midnight. ⁴⁶⁹ (Emphasis added). Officer Goodwin again reaffirmed, during his cross-examination by appellant, that he stopped the car sometime before 11:50 p.m. on October 23, 2005. (ii) Questioning of Detective Bealefeld On March 15, 2007, during Detective Charles Bealefeld’s testimony, the following took place before the jury: [THE STATE]: All right. Now, what is the time that’s always printed out on your reports, on your progress reports for this murder? [THE WITNESS]: It’s the dispatch time of call. [THE STATE]: Okay.

What time is that? [THE WITNESS]: 23:44,1 believe it is. THE COURT: Explain to the jury what you mean by the dispatch time. [THE STATE]: Do you want to double check your report to make sure exactly— [THE WITNESS]: The dispatch time is what time, like if you would dial 911, the call is initiated through the 911 system. An operator takes your information. She documents a time.

When she dispatches, or he, dispatches that information to a patrol car, it’s given another time, and that time was 23:48 hours, 11:48 p.m. THE COURT: All right. Let me go over this, make sure the jury and I have got it right. If I’m living down in Brooklyn and I hear gunshots, even I don’t see somebody get shot or whatever, if I call them and say, there’s gunshots in Brooklyn, that will trigger a dispatch time, and subsequent investigation will get linked on that starting time; is that about right? [THE WITNESS]: You can have multiple calls for different incidents.

THE COURT: Uh-huh. [THE WITNESS]: It’s not uncommon to have five or six calls for, for instance, a shooting. People hear gunshots and five or six different people will call. They’ll generate a time ⁴⁷⁰ for each one of those califs], and they’ll dispatch each one of those calls. THE COURT: Well, which one will go on the report?

What’s the time for which the report was called? [THE WITNESS]: The one, for instance in this case, the time that was used was when the officers responded and found the body. THE COURT: All right. So we don’t know how many minutes before that the actual shooting occurred; is that correct? [THE WITNESS]: There was a call that was dispatched — well, there was a call that was generated and dispatched at 23:25 hours or 11:25 hours, I believe. THE COURT: So the shooting couldn’t— [THE WITNESS]: For a shooting in that area.

THE COURT: So the shooting couldn’t have occurred earlier than 11:25, is that right? [THE WITNESS]: Well, that was the first report of gunshots in the area at 11:25. (Emphasis added). Neither appellant nor his co-deféndant objected during this portion of the trial court’s questioning. During the middle of a series of questions by the State to Detective Bealefeld related to Kornish’s pretrial identification of appellant and Patterson, the trial court intervened again with questions related to the timing of events: [THE STATE]: Now, I noticed that — when was Mr. Kornish shown the photo arrays? [THE WITNESS]: On December the 14th, 2005.

The first array was presented at 23:51 which is 11:51 p.m. And the other array was at 11:58 p.m. [THE STATE]: Now, let me ask you this. When did this murder happen again? [THE WITNESS]: October the 23rd. [THE STATE]: What was the delay? It’s almost two months. ⁴⁷¹ [THE WITNESS]: I wasn’t notified — I was contacted [by] Mr. Wagster of the Firearms Unit that there was a drug fire hit or the casings recovered at my scene matched a weapon that was recovered on that same date. [THE STATE]: And that’s only then that you then continued to do more in your investigation, I guess? [THE WITNESS]: Yes, sir.

THE COURT: What was the complaint number for the recovery of the weapon? [THE WITNESS]: That was 057J13271. THE COURT: And what was the dispatch time on that one? [THE WITNESS]: Your Honor, that was an on-view arrest that they reported at 23:50 hours. THE COURT: And what’s the difference in time between the dispatch of the murder and the dispatch of the recovery of the weapon ? [THE WITNESS]: It’s two minutes, Your Honor. THE COURT: And what’s the distance from one location to the other? [THE WITNESS]: Probably air miles, maybe four to five miles.

I’m not sure what the — there are several different routes you could take. It would vary in your mileage, I guess. THE COURT: Thank you. Next question. [THE STATE]: Thank you.

And just to clarify, the difference between the dispatch time for the murder case and the dispatch of the on-view arrest in terms of recovery of the weapon, that doesn’t 'mean that only two minutes passed between the murder incident and the recovery of the gun? [APPELLANT’S COUNSEL]: Objection. THE COURT: Sustained as to the leading nature of the question. Can you explain whether or not you think that these incidents occurred two minutes apart or not? ⁴⁷² [APPELLANT’S COUNSEL]: Objection to the Court’s question. THE COURT: Overruled. [THE WITNESS]: I could explain that I believe that they did not occur two minutes [apart]. [APPELLANT’S COUNSEL]: Objection to the opinion.

May we approach? THE COURT: No. Lay opinion. What in your experience are you looking at in making that judgment? [APPELLANT’S COUNSEL]: Your Honor, may we approach? THE COURT: Not until ajter he answers the question.

What are you looking at, sir? [THE WITNESS]: What am I looking at? THE COURT: From your experience as a police officer, what are you looking at when you say that you don’t think these incidents occurred two minutes apart? [THE WITNESS]: The witness statements that I obtained. THE COURT: All right. Now, you want to approach, [appellant’s counsel]? [APPELLANT’S COUNSEL]: Yes, Your Honor.

(Emphasis added). At the bench, the following conversation took place: [APPELLANT’S COUNSEL]: Your Honor, the last seven questions occurred as [co-defendant’s counsel] objected to. I am objecting to the Court’s posturing this case as taking a decided stance to choose a preference for the State. If it’s clarifying, by otherwise making ambiguities and in so clarifying, the Court is indicating its preference for the State’s position.

THE COURT: Thank you. I don’t believe that clarifying this issue shows a preference for the State. I think it’s mutual. My twenty years of experience tell me that if there’s some ambiguity in the times, we’re going to get peppered with notes from the jury long after the witnesses ⁴⁷³ are capable of testifying, so we cannot create side issues or extend the length of the trial (inaudible) by having witness [sic] explain what’s obvious to every lawyer and every policeman, but it’s not obvious to the people that don’t work in the field how dispatch numbers are obtained, in terms, of timing.

It will prevent the jury from going off on a tangent. Thank you. (Emphasis added). Co-defendant’s counsel also objected at the bench, arguing that Detective Bealefeld’s opinion was impermissibly based on hearsay.

The trial court responded: Well, I think that the rules permit it, and here’s how. Under lay opinion coming under 5-701, it only talks about experience rather than opinion based on a scientific certainty. However, 5-703, which I guess covers 701 as well as 702, says that opinions can be based on both admissible and non-admissible evidence, as long as it’s regularly relied on. And in any event, all the witness statements that we’re talking about are people who have testified and who have been cross examined and the subject matter of those statements that he’s talking about have already come into evidence through them.

So while, I guess, a more orthodox formulation would be, only ask an expert to rely on something, it’s not admissible, if it’s something that he relies. I think the Court of Appeals is prepared to say, people offering lay opinions can do the same thing, so I’m going not to give [in] that I generated any element of prejudice into the case. Thank you. (iii) Questioning of Tycara Johnson Before Detective Bealefeld’s testimony, but after Officer Goodwin’s testimony, Tycara Johnson was called to the stand.

Appellant notes in his brief that she “had very little to offer regarding the events on the evening of October 23, 2005.” After a brief direct and cross-examination, the State declined any redirect examination. The trial court then intervened with a series of questions: THE COURT: You were on your own porch alone, right? ⁴⁷⁴ [THE WITNESS]: Excúseme? THE COURT: You were on [your] own porch, alone, is that right? [THE WITNESS]: On my own porch? THE COURT: Yeah. [THE WITNESS]: No. THE COURT: Where were you? [THE WITNESS]: Down the street.

THE COURT: All right. And were you on the next porch from where Lamar Davis and Cynthia Johnson were? [THE WITNESS]: I was on the same porch. THE COURT: All right. And what instructions did the robbers give you? [THE WITNESS]: I don’t remember.

THE COURT: Did they tell you to lay down? [THE WITNESS]: No, sir. THE COURT: All right. Did you see anybody else lay down? [THE WITNESS]: No, sir. [APPELLANT’S COUNSEL]: Your Honor, I’m going to object to the Court’s leading questions. THE COURT: Overruled.

Did you see anybody else lay down? [THE WITNESS]: Excuse me? THE COURT: Did you see anybody else lay down? [THE WITNESS]: No, sir. THE COURT: All right. In addition to the three of you that were on the porch, did you see any other person further away on the street lay down at any time? [THE WITNESS]: No, sir.

THE COURT: And did there come a time as this was happening that you heard gunfire? [THE WITNESS]: Excúseme? ⁴⁷⁵ [CO-DEFENDANT’S COUNSEL]: Objection. May counsel approach? THE COURT: Did you hear any gunfire? [THE WITNESS]: Yes. [CO-DEFENDANT’S COUNSEL]: Objection. May counsel approach?

THE COURT: You may approach. (Emphasis added). Both counsel approached the bench and the following ensued: [CO-DEFENDANT’S COUNSEL]: Your Honor, I know we’ve had these kind [sic] of discussions before in trial. I know that you believe [sic] are allowed to question, but this particular witness, Your Honor, I object because, you know, the Court has a lot of questions during the trial and I have not objection [sic].

This one, the State has put on witness, the State asked certain questions, and I quite frankly believe that you’re now taking over the State’s job on this particular witness on these particular questions that you’ve asked. THE COURT: And what did Harry Davis say in Nance that the Court can do? [CO-DEFENDANT’S COUNSEL]: Your Honor, I’m quite familiar with what the Court has said and I— THE COURT: He said if the Court thinks that the State has faltered in presentation [sic] to the jury and it’s going to create management problems for the jury to get the facts out for the jurors [sic] satisfaction, just try to do