Cagle v. State

Wesley Cagle v. State of Maryland
Case No. 2329, September Term 2016
Opinion by Shaw Geter, J.
HEADNOTES
JURY TRIAL > SUFFICIENCY OF THE EVIDENCE
The victim’s testimony provided sufficient evidence from which a rational trier of fact
could have found the elements of first-degree assault and use of a firearm in the
commission of a felony or crime of violence.
EVIDENCE > RELEVANCY > STATEMENTS BY PUBLIC OFFICIALS
Statements of Baltimore City State’s Attorney could not have been known to Officer Cagle
at the time of the shooting because they addressed the results of an investigation that
occurred after the shooting took place. The State’s Attorney, moreover, did not have
personal knowledge of Officer Cagle’s actions, and Officer Cagle sought to introduce the
statements to prove a negative—that he acted reasonably because the State’s Attorney
believed two other officers acted reasonably. The trial court thus properly excluded the
statements on relevancy grounds.
CROSS EXAMINATION > BIAS
The trial court was within its discretion to allow the prosecutor the opportunity to establish
that the defense expert witness was biased toward police officers and thus not a credible
witness on cross examination.
CROSS EXAMINATION > CHARACTER EVIDENCE
Officer Cagle’s testimony about receiving multiple awards for distinguished service as a
police officer put his character directly in issue, and the State was permitted to introduce
evidence of his bad character.
SENTENCING > CRIMINAL LAW ARTICLE § 4-204
The trial court properly imposed separate sentences for Officer Cagle’s first-degree assault
and use of a firearm in the commission of a felony or crime of violence convictions. The
language of section 4-204 contemplates that the sentence shall be “in addition to any other
penalty imposed for the crime of violence or felony,” and the legislative findings include a
statement that “current law has not been effective in curbing the more frequent use of
handguns in committing crime.”
CLOSING ARGUMENT > EXHIBITS AND ILLUSTRATIONS
The trial court was within its discretion to prohibit defense counsel from playing a video
with excerpts of in-court testimony during closing argument because defense counsel was
permitted to reference the testimony verbally, and the court explained the video could have
signaled that live testimony of every witness that testified would be replayed or given the
impression that one witness’s testimony is more important than the others.
CROSS EXAMINATION > BIAS
The trial court did not abuse its discretion in prohibiting defense counsel from asking
whether one of the State’s witnesses was biased because counsel did not have a good faith
basis and there was no factual foundation for the question.
Circuit Court for Baltimore City
Case No. 115246012
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2329
September Term, 2016
______________________________________
WESLEY CAGLE
v.
STATE OF MARYLAND
______________________________________
Beachley,
Shaw Geter,
Moylan, Charles E., Jr.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Shaw Geter, J.
______________________________________
Filed: February 2, 2018
Officer Wesley Cagle, appellant, was one of four officers to respond to a silent alarm
triggered at a convenience store in Baltimore City. Two of the officers discharged their
service weapons upon making contact with the suspect, who had appeared to be reaching
for a knife or a gun. Ten to twenty seconds after the last shot was fired, the suspect
indicated that appellant approached, called him a “piece of sh*t,” and then fired one round
in his groin. A jury in the Circuit Court for Baltimore City subsequently convicted
appellant of first-degree assault and use of a firearm in the commission of a felony or crime
of violence. Appellant timely appealed and raises the following questions for our review:
I. Did the trial court err, as a matter of law, in failing to grant appellant’s
motion for judgment of acquittal when the evidence produced by the
State was insufficient to support a conviction for first-degree assault
and use of a firearm in the commission of a felony or crime of
violence?
II. Did the trial court err in denying appellant’s motion to use a statement
of the Baltimore City State’s Attorney as a statement of a party
opponent?
III. Did the trial court err in allowing, over objection, the State’s extensive
cross examination of defense use of force expert on an unrelated case?
IV. Did the trial court err in allowing, over objection, the State’s cross
examination of appellant about being a “cowboy” or “jump out boy”?
V. Did the trial court err in finding that use of firearms in the commission
of a felony or crime of violence is applicable to those legally in
possession of firearms?
VI. Did the trial court err in precluding appellant from using trial video in
closing argument?
VII. Did the trial court err in refusing to allow cross examination of a
crucial State’s witness as to potential bias?
For the reasons discussed below, we shall affirm the judgments of the circuit court.
BACKGROUND
On December 28, 2014, around 4:00 a.m., Officers Dancy Debrosse, Isiah Smith,
Kevin Leary, and appellant responded to a call for service for a triggered silent alarm at a
convenience store in Baltimore, Maryland. Officers Smith, Leary, and appellant went into
the alley on the side of the store. Officer Debrosse stayed in front. The officers in the alley
noticed what Officer Smith described as “a headboard from a bedroom set” propped up
against the wall “so somebody could use it like a ladder to climb up [to] the roof.” While
the officers were investigating the method of entry, Officer Debrosse radioed that he could
see someone inside the store. Officer Debrosse said the man was “wearing a mask” and
“headed to the side door.”
At that point, Officers Leary and Smith positioned themselves in a “V” shape on
either side of the door; appellant remained in the alley. The suspect, later identified as
Michael Johansen, opened the side door and saw a police car and one of the officers.
Officers Leary and Smith testified that when Johansen opened the door, Officer Smith
yelled “let me see your hands” several times. Johansen ignored the commands, walked
towards the officers, and reached into his waistband. Officer Smith testified that he could
see Johansen grab “something silver” and begin to pull it out of his pants. Fearing it was
a knife or a gun, Officer Smith fired his weapon a total of four times. When Officer Leary
heard the gunshots and saw Officer Smith jerk from the recoil of the weapon, he did not
know whether Officer Smith had fired his gun or been shot. Believing that Officer Smith
may have been shot, Officer Leary made the “split second decision” to fire three rounds at
Johansen.
2
Johansen testified that the first shot grazed him in the left ear, and that he was also
shot in the neck and hip. Johansen fell backward and landed flat on his back with his legs
sticking out of the doorway and upper body remaining inside the store. Officer Smith
testified that Johansen was “hollering in pain”; Officer Leary said that he was not moving
at all. Officer Smith then called for an ambulance and reported shots fired.
Ten to twenty seconds after the last shot was fired, appellant emerged from the alley
with his gun drawn. He circled behind Officer Smith, who was positioned in the street.
Appellant testified that he did not look in Johansen’s direction until he rounded Officer
Smith and acknowledged that if Johansen had a gun, he could have been shot in the back
or side upon exiting the alley. Appellant indicated that Officer Smith was “shaking like a
leaf on a tree,” and Officer Leary was “frozen,” “locked straight in,” and “ready to fire.”
Appellant also claimed that Officer Leary said to “be careful. He’s got a gun.” Appellant
then walked directly into Officers Smith and Leary’s line of fire, forcing them to lower
their weapons.
As appellant approached Johansen, Officers Smith and Leary overheard a brief
exchange of words—though neither could hear exactly what was said. The testimony is
conflicting about what happened next. Johansen testified that he said “what was that, like
one of them bean bag guns?” Appellant replied “no, it was a .40 caliber, you piece of sh*t,”
and then shot Johansen once in the groin. Johansen said he was not reaching or grabbing
for anything during the exchange. Appellant, by contrast, testified that he repeatedly yelled
“let me see your hands. Let me see your hands. Let me see your hands.” Appellant claimed
that Johansen pulled his hands up from his waist “like he was taking his shirt off or zipping
3
his jacket and connected to his hand was a shiny silver object.” Appellant said that “if it
would have been a gun, he could have shot me, I then discharged my weapon at the threat.”
Officers Leary and Smith provided additional insight into appellant’s actions after
the shooting. In January 2015, Officer Leary told Internal Affairs that appellant should not
have shot Johansen because “the threat was over” and what appellant did was “wrong.”
During trial, Officer Leary explained that he did not approach Johansen because “you don’t
know who’s in [the store], if there’s another person in there. You can’t walk in front of
two officers that still got their guns pointed. We’re not trained that way.” Officer Leary
explained that he would have waited for additional units to arrive to assess the area and
increase officer safety. Similarly, Officer Smith testified that he did not approach Johansen
because “there were still too many unknowns,” officers did not know whether anyone else
was in the store, and there was no tactical plan in place to secure the scene.
During closing argument, appellant argued that the sequence of events leading to
the shooting was chaotic, and his use of force was justified because he reasonably believed
that Johansen was armed and presented a threat. Appellant also highlighted weaknesses in
the State’s case, for example: witnesses varied in their description of appellant’s location
at the time of the shooting; Johansen’s prior statement to the police was inconsistent with
his testimony at trial; and Johansen’s medical evaluation revealed that he was not struck
by the bullet fired by appellant. The State, on the other hand, noted that appellant came
out of the alley ten to twenty seconds after the last shot was fired, there was no dispute that
appellant had a conversation with Johansen prior to the shooting, and Johansen testified
that appellant fired his weapon after calling him a “piece of sh*t.” As a result, the State
4
argued that appellant had approached Johansen after the immediate danger was over and
did so with the intent to shoot him. The jury ultimately convicted appellant of first-degree
assault and use of a firearm in the commission of a felony or crime of violence.
Additional facts will be added as they become relevant to the issues below.
DISCUSSION
I. Sufficiency of the Evidence
When reviewing the sufficiency of the evidence to support a conviction, we
determine “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” State v. Smith, 374 Md. 527, 533 (2003) (emphasis added).
Our role is not to retry the case: “[b]ecause the fact-finder possesses the unique opportunity
to view the evidence and to observe first-hand the demeanor and to assess the credibility
of witnesses during their live testimony, we do not re-weigh the credibility of witnesses or
attempt to resolve any conflicts in the evidence.” Smith v. State, 415 Md. 174, 185 (2010)
(citations omitted). In order to preserve an insufficiency claim, however, a defendant must
move for judgment of acquittal during trial, specifying the grounds for the motion in
accordance with Maryland Rule 4-324(a).1 Whiting v. State, 160 Md. App. 285, 308
(2004). The language of Rule 4-324(a) “is mandatory, and review of a claim of
1
Maryland Rule 4-324(a), as pertinent, states “[a] defendant may move for judgment of
acquittal on one or more counts, or on one or more degrees of an offense which by law is
divided into degrees, at the close of the evidence offered by the State and, in a jury trial, at
the close of all the evidence. The defendant shall state with particularity all reasons why
the motion should be granted.”
5
insufficiency is available only for the reasons given by appellant in his motion for judgment
of acquittal.” Id. (citation omitted); see also Starr v. State, 405 Md. 293, 301–03 (2008).
Appellant argues that courts have found police officers’ use of force reasonable in
circumstances where the officer mistakenly believed a suspect possessed a gun and posed
a threat to the officer and/or others where in fact the suspect did not possess a gun and thus
could not have posed an actual threat. Further, courts must look to whether a reasonable
officer on the scene, at the moment of the incident, would have acted in the same manner
as the officer accused of unlawful action. In accordance with these principles, and given
the information presented to him immediately prior to the shooting, appellant contends that
he acted reasonably in his use of force. The State, by contrast, argues that this claim is not
preserved because it was not raised below and, even if preserved, Johansen’s testimony
provided sufficient evidence to support appellant’s convictions.
We agree with the State. The crux of appellant’s argument in his motions for
judgment of acquittal related to his charges of attempted first- and second-degree murder
(charges for which he was ultimately acquitted by the jury). Appellant’s specific
arguments on the first-degree assault and use of a handgun in a felony or crime of violence
charges were that the sequence of events leading to the shooting was chaotic, and the State
did not prove his bullet struck Johansen. His argument that a police officer’s use of force
may be reasonable where the officer mistakenly believed a suspect possessed a gun
therefore has not been preserved for review. Nevertheless, we note that appellant
approached Johansen ten to twenty seconds after the last shot was fired by Officers Smith
and Leary, Johansen testified that he was not reaching or grabbing for anything when
6
appellant approached, and appellant fired his weapon after calling Johansen a “piece of
sh*t.” Accordingly, in the light most favorable to the prosecution, there was sufficient
evidence from which a rational trier of fact could have found the essential elements of first-
degree assault and use of a firearm in the commission of a felony or crime of violence.2
II. Statements of Baltimore City State’s Attorney
Marilyn Mosby, the State’s Attorney for Baltimore City, announced that appellant
would be charged with the shooting of Michael Johansen at a press conference on August
19, 2015. The State’s Attorney also mentioned that “three of the four officers acted
justifiably and appropriately within the Baltimore police protocol including two officers
who fired their service weapons [Officers Smith and Leary] upon confronting a masked
suspect who has also been charged with burglary.” Appellant sought to admit these
statements under the hearsay exception for a statement of a party-opponent during his trial.
The court found that Mosby’s statements were irrelevant because she did not have personal
knowledge of the incident and they were offered to prove the truth of the matter asserted.
The court explained:
That the statements made by Ms. Mosby on the street, pre-trial, and in the
[announcement] of this indictment are anything more than an announcement
to the public of the charges to be brought and the party against who they are
being brought. Until and unless either [of the prosecuting attorneys] throws
away some of these charges in this courtroom in closing argument, those are
hearsay statements offered for the truth of the matter asserted by a party who
has no knowledge, no personal knowledge, has nothing to do with what goes
on in this courtroom and are not [statements] that are trustworthy, truthful
and . . . no inferences can be drawn that are reasonable in this matter.
2
Johansen’s testimony also distinguishes this case from the “mistaken belief” line of cases
cited by appellant.
7
The court also found that the statements were not probative of any fact of consequence
because appellant was seeking to prove a negative. The court stated:
It’s another attempt by [defense counsel] to prove a negative. You want to
prove that your client didn’t do it because two other people were found to act
-- [to] have acted reasonably by another party who chose to charge or not
charge. We’re not proving negatives. The only thing we’re proving is
positives if they can do so beyond a reasonable doubt.
As a result, the court excluded the statements from appellant’s trial.
On appeal, appellant argues that State’s Attorney Mosby’s statements are relevant,
not specifically to the State’s case per se, but rather to his defense that it was reasonable to
discharge his weapon at Johansen under the circumstances. Since Mosby’s statements
would allow the jury to more accurately compare and contrast the actions of Officers Leary
and Smith with those of appellant, the court erred in excluding the statements. Conversely,
the State notes that its theory at trial was that appellant approached Johansen after the
immediate danger was over and did so with the intent to shoot him. Accordingly, what the
elected State’s Attorney thought about Officer Leary or Smith’s decision to shoot Johansen
was irrelevant because it did not make any fact salient to appellant’s criminal culpability
more or less likely to be true.
Maryland Rule 5-401 defines relevant evidence as “evidence having any tendency
to make the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.” We have
recognized 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
themselves.” Tavakoli-Nouri v. State, 139 Md. App. 716, 731 (2001). Where, as here, an
8
officer has been accused of using excessive force in the course of an arrest, evidence is
relevant as to whether the officer’s actions are objectively reasonable in light of the facts
and circumstances confronting him. Branch v. McGeeney, 123 Md. App. 330, 348 (1998).
“The ‘reasonableness’ of a particular use of force must be judged from the perspective of
a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham
v. Connor, 490 U.S. 386, 396 (1989).
In this case, State’s Attorney Mosby’s statements that Officers Leary and Smith
acted reasonably could not have been known to appellant while he was “on the scene”
because they addressed the results of an investigation that occurred after the shooting took
place. Additionally, as noted by the trial court, Mosby did not have personal knowledge
of appellant’s actions, and appellant sought to introduce the statements to prove a
negative—that he acted reasonably because the State’s Attorney believed Officers Leary
and Smith acted reasonably. Therefore, it cannot be said that the statements had “any
tendency to make the existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without the evidence,” Md. Rule
5-401, and the court did not err in excluding Mosby’s statements.3
3
Appellant also argues that Mosby’s statements are admissible under the party-opponent
hearsay exception. We need not reach this issue because the statements are irrelevant.
Nevertheless, we note that the case on which appellant relies to support this proposition—
Bellamy v. State, 403 Md. 308 (2008)—is distinguishable because the defendant in that
case was not a police officer, and the statement to be admitted involved a codefendant that
was present at the scene of the crime.
9
III. Cross Examination of Defense Expert
During his case-in-chief, appellant called Emanuel Kapelsohn, who was accepted
as an expert in the areas of police firearms, training, tactics, shooting scene reconstruction,
and use of force. Kapelsohn testified that it was reasonable for appellant to approach
Johansen because Officers Leary and Smith had just fired their weapons, and standard
police procedure is that the first officers to fire should not be the ones to inspect, disarm,
or handcuff a suspect. Next, Kapelsohn credited appellant’s testimony that Johansen was
moving his hands inside of his waistband—an area where police are trained and know from
experience that suspects place weapons—and he noted Officer Leary told appellant that
Johansen had a gun. As a result, Kapelsohn concluded that it was reasonable for appellant
to fire one shot at Johansen until he could see Johansen’s hands and felt the threat was over.
On cross examination, the prosecutor sought to establish that Kapelsohn was biased
toward police officers and thus not a credible witness. For example, the prosecutor asked
Kapelsohn whether he ever found a shooting to be unreasonable in his nineteen years while
serving on a shooting review board for Berks County, Pennsylvania. Kapelsohn said that
he did, once. The prosecutor then asked whether Kapelsohn had ever testified for the State
against a police officer in the approximately 300 times he testified as an expert. Kapelsohn
responded that he had not. As further evidence of bias, the prosecutor asked about a case
arising out of Kenosha, Wisconsin, where Kapelsohn was called as an expert witness and
opined that a police officer named Pablo Torres’ use of force was reasonable. Specifically,
the prosecutor questioned the use of a video made by Kapelsohn that showed a bucket filled
with twelve pounds of sand could break wooden boards, a watermelon, and clay pots—
10
even though the victim in that case was holding an empty five-gallon bucket. Defense
counsel raised a number of objections, but they were overruled by the trial court.
On appeal, appellant argues that the line of questions involving the Torres case were
irrelevant because Johansen was not holding a bucket or swinging a weapon at the time of
the shooting. Further, even if relevant, the questions created a risk that the jury might
believe that because Johansen was unarmed, no officer acted reasonably. As a result,
appellant argues that the prosecutor’s questions were misleading and presented a danger of
unfair prejudice. The State, on the other hand, argues that this issue has not been preserved
because appellant objected to only a small portion of the testimony he challenges on appeal.
However, even if preserved, the State argues that the prosecutor’s questions were relevant
to Kapelsohn’s credibility, and the trial court acted within its discretion in allowing the
prosecutor to ask them.
The Court of Appeals has explained that a “trial court has broad discretion in
determining the scope of cross-examination, and we will not disturb the exercise of that
discretion in the absence of clear abuse.” Martin v. State, 364 Md. 692, 698 (2001). While
such discretion is not unlimited, “a cross-examiner must be given wide latitude in
attempting to establish a witness’ bias or motivation to testify falsely.” Id. (citation
omitted). The grounds for impeachment by inquiry of a witness are set forth in Md. Rule
5-616, which states: “[t]he credibility of a witness may be attacked through questions asked
of the witness, including questions that are directed at . . . [p]roving that an opinion
expressed by the witness is not held by the witness or is otherwise not worthy of belief” or
11
“[p]roving that the witness is biased, prejudiced, interested in the outcome of the
proceeding, or has a motive to testify falsely.” Md. R. 5-616(a)(3)–(4).
In this case, the State is correct in that appellant did not object each time the
prosecutor asked about the video Kapelsohn made in the Torres case. See Wimbish v. State,
201 Md. App. 239, 261 (2011) (citation omitted) (“[O]bjections must be reasserted unless
an objection is made to a continuing line of questions.”). However, there appears to be at
least one objection made by defense counsel that is not reflected in the transcript,4 and the
court overruled two related objections when the prosecutor asked about facts in the Torres
case. In an abundance of caution, and since the State was not deprived of admitting
evidence on this issue at trial, we shall treat appellant’s claim as preserved for review.
Otherwise, we agree with the State. Kapelsohn was a key witness for the defense.
He was the only person to testify that appellant’s use of force was justified, and if the jury
found his testimony more credible than that of the State’s witnesses, verdicts of not guilty
would have followed. Since the prosecutor’s questions were intended to prove bias toward
police officers, the trial court was within its discretion to afford the prosecutor “wide
latitude in attempting to establish [Kapelsohn’s] bias or motivation to testify falsely.”
Martin, 364 Md. at 698.
4
During Kapelsohn’s testimony, the court stated: “Counsel, I understand you have an
ongoing objection. But as long as [Kapelsohn] answers the question asked, I can rule on
your objection.” The transcript does not indicate that defense counsel previously made an
ongoing objection.
12
IV. Appellant’s Cross Examination
On cross examination, the prosecutor asked appellant about his prior positions
within the Baltimore Police Department, including his time in the Violent Crime Impact
Division (VCID). Specifically, the prosecutor asked appellant whether he was aware that
the unit was known as the “jump out boys,” “knockers,” or “cowboys.” 5 Appellant
objected when asked if he knew whether the unit had been referred to as cowboys, and
again when asked if he had ever been referred to as a cowboy, but the trial court overruled
his objections.
Appellant argues on appeal that such questioning was irrelevant because he was not
working in VCID at the time he was charged, nor was his enforcement action related to the
mission or tactics of VCID. The purpose of the State’s questions, appellant maintains, was
to improperly link appellant to VCID’s negative reputation in Baltimore City, serving to
unfairly prejudice the jury against appellant. The State, on the other hand, argues that the
majority of appellant’s claim is not preserved because he did not object when asked
whether VCID was referred to as jump out boys or knockers. As to the cowboys reference,
the State maintains that appellant “opened the door” to the issue by testifying on direct
examination about receiving multiple awards for distinguished service as a police officer.
Utilizing the opened door doctrine is a method by which we allow parties to “meet
fire with fire” when they introduce “otherwise inadmissible evidence in response to
evidence put forth by the opposing side.” Little v. Schneider, 434 Md. 150, 157 (2013).
5
During oral argument, appellant’s counsel indicated that “jump out boys,” “knockers,”
and “cowboys” were derogatory terms used to refer to officers in Baltimore City.
13
The doctrine is based on principles of fairness. Id.; see also Clark v. State, 332 Md. 77, 85
(1993) (“‘[O]pening the door’ is simply a way of saying: ‘My opponent has injected an
issue into the case, and I ought to be able to introduce evidence on that issue.”’). In effect,
the doctrine serves as a rule of expanded relevancy that “authorizes admitting evidence
which otherwise would have been irrelevant in order to respond to (1) admissible evidence
which generates an issue, or (2) inadmissible evidence admitted by the court over
objection.” Clark, 332 Md. at 84–85. Next, while it is true that evidence of a person’s
character or character trait is not admissible to prove that the person acted in accordance
with the character or trait on a particular occasion, Md. Rule 5-404(a), a defendant’s
character is put in issue “when he states that he has good character or a good record, or
offers direct evidence of good character.” Braxton v. State, 11 Md. App. 435, 439 (1971).
“Once the defendant raises the issue of his character, the prosecution may then offer
evidence of the defendant’s bad character.” Id. at 439–40.
In this case, appellant testified on direct examination that he “received a bronze star
[for] distinguished service for the capture of Javon House who murdered an off duty
detective.” Additionally, appellant “received an award from the governor of Louisiana”
after being selected by colonels and the commissioner to work in the aftermath of
Hurricane Katrina. Finally, appellant testified that while he was working in the Drug
Enforcement Unit—a unit whose name was later changed to VCID—he “received two
Project Exile awards from the federal court of the United States” for the recovery of
firearms. Appellant’s testimony about his distinguished service as a police officer put his
character directly in issue, and the State was permitted to rebut this evidence.
14
Although there was no proffer or proof of the existence or source of VCID’s
negative reputation,6 any error on the trial court’s part was harmless beyond a reasonable
doubt. See West v. State, 124 Md. App. 147, 169 (1998) (citation omitted) (“In a criminal
case, the test for determining whether error by the trial court was harmless is whether, upon
an independent review of the record, we are able to ‘declare a belief, beyond a reasonable
doubt, that the error in no way influenced the verdict[.]’”). Appellant linked himself to
VCID when he testified on direct examination. When the prosecutor asked about the unit,
appellant said that he was familiar with the term “jump out boy” and explained that it refers
to an officer that “pull[s] up in an unmark[ed] car and jump[s] out of the car.” No objection
was raised by defense counsel. Appellant also stated that VCID is “called all kinds of
things.” It was not until the prosecutor asked whether the unit was also referred to as
“cowboys” that defense counsel ultimately objected. In light of the information appellant
provided about VCID, as well as his failure to object to questions about “jump out boys”
and “knockers,” we are persuaded, beyond a reasonable doubt, that the prosecutor’s
questions did not influence the verdict.
6
The VCID unit where Officer Cagle was working was alleged by residents in Baltimore
to have been overly aggressive. For example, in the Department of Justice’s civil rights
investigation of the Baltimore Police Department, the DOJ noted that “[d]uring the course
of our investigation, we received a large number of anecdotes specifically identifying
plainclothes officers enforcing violent crime and vice offenses (the names and organization
of the units have changed multiple times over the years covered by the investigation) as
particularly aggressive and unrestrained in their practice of stopping individuals without
cause and performing public, humiliating searches.” United States Dep’t of Justice, Civil
Rights Division, Investigation of the Baltimore City Police Department (Aug. 10, 2016),
https://www.justice.gov/crt/file/883296/download.
15
V. Appellant’s Firearm Conviction
Appellant raises two arguments in connection with his firearm conviction. First, he
argues that the dominant purpose of Criminal Law § 4-204, the statute criminalizing the
use of a firearm in the commission of a felony or crime of violence, is to stop the rise of
the use of handguns in crimes of violence. A law enforcement officer who is legally in
possession of a firearm does not fall within the class of persons for whom the statute was
created, and thus he should not be held to the same standard in section 4-204. Second,
appellant argues that the crimes of first-degree assault and use of a firearm in the
commission of a felony or crime of violence have the exact same elements, and the
imposition of a sentence for both offenses would violate the Double Jeopardy clause in the
Fifth Amendment of the United States Constitution. The State, by contrast, argues that
section 4-204 applies to appellant because the General Assembly expressed an intent to
curb the use of handguns in the commission of felonies or crimes of violence, and double
jeopardy does not attach because the statute makes clear that the penalty imposed is “in
addition” to any other felony or crime of violence convictions. We agree with the State.
“In construing a statute, one begins with the ‘plain meaning’ of the statutory
language and may end there if the meaning is plain enough.” State v. Roshchin, 446 Md.
128, 140 (2016) (footnote omitted). A plain reading of the relevant portions of section 4-
204 prohibits a person from using a firearm in the commission of a crime of violence, and
it contemplates that the sentence shall be “in addition to any other penalty imposed for the
crime of violence or felony[.]” Md. Code Ann., Crim. Law § 4-204(b)-(c) (West 2002);
see also State v. Lancaster, 332 Md. 385, 411 (1993) (citation omitted) (“[T]he legislature
16
may indicate an express intent to punish certain conduct more severely if particular
aggravating circumstances are present by imposing punishment under two separate
statutory offenses which otherwise would be deemed the same under the required evidence
test.”). And, importantly, Public Safety Article § 5-101(c)(3) lists first-degree assault as a
crime of violence. Excluding appellant, who was found by a jury in the Circuit Court for
Baltimore City to have committed the crime of first-degree assault with a handgun, would
therefore run contrary to the clear intent of the statute.
This holding is in accordance with the statute’s legislative findings, which include
a statement that “current law has not been effective in curbing the more frequent use of
handguns in committing crime[.]” Crim. Law § 4-202(4). It is also consistent with Riley
v. State, where we held that section 4-204 applied to an officer that discharged his service
weapon upon a suspect that “did not pose any imminent threat of harm” because he was
handcuffed and running away. 227 Md. App. 249, 262 (2016). As a result, we find no
error in the imposition of separate sentences for appellant’s first-degree assault and use of
a firearm in the commission of a felony or crime of violence convictions.
VI. Closing Argument
Appellant next argues that the court erred in excluding a video with excerpts of trial
testimony that his attorney sought to play during closing argument. The video, as originally
prepared, included a pretrial statement of Michael Johansen, as well as in-court testimony
of Johansen, the firearms examiner, Officer Leary, and Officer Smith. The court denied
the request to play the in-court testimony, reasoning:
17
I routinely have for 17 years, and did in this case, instruct the jury to take
notes. I told them that it’s their collective memory of the case. I told them
to be mindful of the live testimony and that when they go into the jury room,
that they are to use their collective memory of the evidence in rendering their
verdict.
* * *
. . . I do not want to give this jury the impression that we’re going to sit for
the rest of this week and replay the live court testimony of every witness
who’s testified in this case, nor am I going to allow anyone to play excerpts
of something, giving the impression that one witness’s testimony is more
important than another because as I’ve already instructed them, they are to
consider all of the evidence in this case, regardless of who called the
witness[.]
The court explained that appellant’s counsel was within his right “to reference trial
testimony and to summarize it or restate it or draw [the jury’s] attention to it, emphasize
whatever you want verbally” during his closing argument. The court also permitted
counsel to play the video of Johansen’s pretrial statement, as well as a surveillance video
of the convenience store where the shooting took place.
On appeal, appellant argues that the full video would have allowed the jury to
observe the witnesses’ demeanor and allow counsel to compare and contrast
inconsistencies in the witnesses’ statements. Therefore, because the case was largely
dependent on witness testimony and credibility, the court abused its discretion in denying
appellant’s request to play the in-court testimony. Conversely, the State notes that the
scope of closing argument is within the discretion of the trial court, and they argue that the
court’s concern about the jury’s placing undue emphasis on the excerpts of trial testimony
provided sufficient cause to exclude the in-court video.
We agree with the State. As a general rule, the “permissible scope of closing
argument is a matter left to the sound discretion of the trial court. The exercise of that
18
discretion will not constitute reversible error unless clearly abused and prejudicial to the
accused.” Lee v. State, 193 Md. App. 45, 77 (2010) (citation omitted). Here, the trial court
provided two reasons for prohibiting counsel from playing the in-court testimony: it could
signal that the live testimony of every witness that testified would be replayed (thereby
causing an undue delay, waste of time, or needless presentation of cumulative evidence),
and it might give the impression that one witness’s testimony is more important than the
others (which might mislead the jury, confuse the issues, or result in unfair prejudice).
Since appellant’s counsel was not prohibited from referencing the testimony verbally, the
court did not abuse its discretion in excluding the excerpts of in-court testimony.
VII. Cross Examination of Officer Leary
The final issue raised by appellant is that the court erred in refusing to allow cross
examination of Officer Leary for bias. During the trial, appellant asked Officer Leary
multiple times whether he was aware of any allegations that he was the one that shot
Michael Johansen in the groin. The State objected each time, and the court sustained the
objections on the ground that the questions were premised on a fact not in evidence.
On appeal, appellant argues that the inquiry on cross examination went to the heart
of whether Officer Leary was biased in favor of the State and against appellant: if Officer
Leary was aware of the allegations, his testimony may have been tainted by his desire to
protect his own interest. Appellant claims there was a factual foundation for the question
because Johansen’s pretrial statement alleged that a white officer shot him in the groin, and
Johansen testified at trial that the white officer who shot him in the groin was standing in
19
the street. Appellant also argues that the probative value of the question would not have
been outweighed by the risk of unfair prejudice or confusion.
The State, by contrast, argues that defense counsel did not have a good-faith reason
to believe that Officer Leary was aware of the allegation because Johansen’s statement was
not entered into evidence; and, even if counsel had a good-faith reason, the question had
no impeachment value because Officer Leary never denied shooting Johansen. Appellant
responds that Officer Leary would have had ample opportunity to speak to the assistant
state’s attorney assigned to prosecute Johansen, to learn of the allegations in the course of
his personal internal investigation, or to receive the information through less official
channels.
As indicated above, trial courts have broad discretion in determining the scope of
cross-examination. Martin, 364 Md. at 698. In Leeks v. State, we articulated a test for
determining the admissibility of questions aimed at eliciting witness bias during cross-
examination. 110 Md. App. 543, 557–58 (1996). We explained that such questions
“should be prohibited only if (1) there is no factual foundation for such an inquiry in the
presence of the jury, or (2) the probative value of such an inquiry is substantially
outweighed by the danger of undue prejudice or confusion.” Id.
In this case, the trial court gave appellant’s counsel four attempts to ask Officer
Leary whether he was aware of any allegations that he was the officer that shot Johansen
in the groin. The State objected each time. After the third objection, all counsel
approached the bench and the court explained that appellant’s question was improper
because it was premised on a fact that was not in evidence:
20
You’re not accepting the answer [Johansen] gave you when he stated that
your reading of his statement is different than his, I guess intent, when he
made the statement. You read the statement as if there’s an accusation by
Officer Cagle that Officer Leary is the shooter that caused the injury to the
groin. The witness clarified that was not his statement. His statement was
that Officer Cagle was admitting that it was his shot that caused the injury to
the groin. You have a belief that is not substantiated by the testimony of this
witness. And what you’re trying to do is, as [the prosecutor] said, ask a
question based on a fact not in evidence.
During another bench conference, appellant’s counsel conceded that the only good-faith
basis for his question to Officer Leary was from Johansen’s pretrial statement:
THE COURT: Do you have any allegations, in writing or other, to show me
that this witness was accused of shooting, other than the shots that were
initially fired that he’s testified to?
[APPELLANT’S COUNSEL]: It’s only from the statement of Mr. Johansen,
that’s all I have.
All counsel approached the bench once more after the State’s last objection was sustained.
Appellant’s counsel argued, as he does on appeal, that the question should be admissible
because Officer Leary was likely to have learned about the accusation after the interview
took place. However, he again acknowledged that he did not have a good faith basis to ask
the question:
THE COURT: So your question is whether or not [Officer Leary] had the
occasion to speak to others about what happened?
[APPELLANT’S COUNSEL]: Yes.
THE COURT: And you don’t know the answer to that question, you’re on a
fishing expedition?
[APPELLANT’S COUNSEL]: As to this specific witness, I do not know.
21
Given the above, it cannot be said that there was a “factual foundation for such an inquiry
in the presence of the jury.” Leeks, 110 Md. App. at 557–58. Nor are we persuaded that
the additional cases cited by appellant establish circumstantial evidence for the inquiry in
the presence of the jury. In Calloway v. State, the Court of Appeals held that the trial court
committed reversible error when it prohibited the defense from cross-examining a State’s
witness who was incarcerated for unrelated offenses pending trial about whether the
witness’ testimony was for the purpose of a favorable plea offer in the pending cases. 414
Md. 616, 619–20 (2010). Importantly, the defense had learned that the witness was
released from jail, the pending charges were nolle prossed, and notwithstanding the
unequivocal evidence that the witness had violated probation in another case, no violation
of probation charge was filed against him. Id. Similarly, in Martinez v. State, cited by
appellant, the Court held that the trial judge should have permitted the defense to cross
examine a witness whose pending charges had been nolle prossed six days prior to
testifying against the defendant in a motions hearing. 416 Md. 418, 431 (2010).7
7
The Court of Appeals recently discussed Calloway and Martinez in Manchame-Guerra
v. State, ___ Md. ___, No. 14, Sept. Term 2017 (decided January 23, 2018). In Manchame-
Guerra, defense counsel sought to ask a witness who had pending charges in an unrelated
matter whether he hoped or expected to obtain a benefit from the State in exchange for
testimony favorable to the prosecution. The State objected to the question, and the trial
judge sustained the objection. On appeal, the Court held that the judge improperly limited
cross examination because there was a sufficient factual foundation to permit inquiry into
the witness’ motive to testify falsely—specifically, the witness had pending charges in the
same county as the defendant’s trial; the detective investigating the underlying crime knew
of the pending charges at the time he interviewed the witness; and those charges, which
had been pending for approximately eighteen months, remained pending at the time of the
witness’ testimony. Unlike Manchame-Guerra, however, Officer Leary was not charged
with a crime—related or unrelated—at the time of Officer Cagle’s trial, and Michael
22
In this case, Johansen was charged with burglarizing the convenience store where
Officers Debrosse, Smith, Leary, and appellant were called to respond. Unlike the cases
cited by appellant, however, the State did not nolle pross Johansen’s charges, nor did it
make any promise, reward, or inducement in exchange for his testimony at appellant’s trial.
Next, Johansen’s statement, which had not been admitted into evidence, was the sole basis
supporting appellant’s theory that Officer Leary had been accused of shooting Johansen,
and Johansen clarified at trial that appellant was the one that shot him. Accordingly,
Calloway and Martinez are not controlling, and the trial court did not abuse its discretion
in refusing to allow appellant’s question about whether Officer Leary was aware of any
allegations that he was the officer that shot Johansen in the groin.
JUDGMENTS OF THE CIRCUIT COURT
FOR BALTIMORE CITY AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
Johansen admitted on direct examination that he was convicted of burglarizing the
convenience store. Therefore, we find that case is distinguishable.
23