Addo v. State
| Decision Date | 29 July 2021 |
| Docket Number | 1933-2019 |
| Parties | HUGH NII-NUE ADDO v. STATE OF MARYLAND |
| Court | Court of Special Appeals of Maryland |
Graeff, Wells, Eyler, James R. (Senior Judge, Specially Assigned), JJ.
Appellant, Hugh Nii-Nue Addo, was convicted by a jury in the Circuit Court for Montgomery County of second-degree assault, resisting arrest, and indecent exposure. The court sentenced appellant to ten years' incarceration, all but 504 days suspended, on the conviction for second-degree assault, and three years concurrent, all but 504 days suspended, on the conviction for resisting arrest. The court imposed a suspended sentence on the conviction for indecent exposure, with credit for time served, to be followed by three years' supervised probation.
On appeal, appellant presents the following questions for this Court's review, which we have rephrased slightly as follows:
For the reasons set forth below, we answer both questions in the affirmative, and therefore, we shall vacate in part and affirm in part the judgments of the circuit court.
On June 22, 2018, Charles Lambi was outside his single-family residence in Silver Spring, Maryland, when he saw on his property an African American man wearing a "very bright white bucket hat," dark pants, and a gray t-shirt. Mr Lambi told the man: "[G]et off my property and get out of my yard." The man ignored Mr. Lambi and did not leave. Instead, he walked up to the house and put his hands on the sliding glass door of the residence. Fearing a home invasion, Mr. Lambi called 911.
After he made his report, Mr. Lambi saw that the man had wandered over to some nearby houses and was "milling around." Approximately 20 minutes after he called 911, Mr. Lambi saw a number of police cars near the end of the street. When Mr. Lambi approached the scene, he saw that the man he reported to the police was detained on the ground. He informed the officers.
Officer My Le, [1] a member of the Montgomery County Police Department, testified that he responded to Mr. Lambi's home, in uniform, after hearing the police dispatcher call for a "suspicious situation." The report described a "[b]lack male, 20 to 30's, white hat, gray shirt, blue jeans." When he arrived on the scene, Officer Le observed an individual who matched the description and was exposing himself.
Officer Le testified that he observed appellant's "pants below his crotch level and his penis exposed, his hand on his penis in a jerking motion." Asked whether he was sure that appellant had not been playing with "keys or a yo-yo or some other object," Officer Le confirmed: "It was definitely his penis." Officer Le identified appellant, in court, as this individual.
Officer Le approached appellant and asked him what he was doing. Appellant replied that he was "playing with it." Officer Le "told him multiple times, no, can't." After at least two such admonishments, appellant "eventually put it away and pulled up his pants." At that point, Officer Le put on his gloves and testified that he "tried to remove [appellant] from the street because he seemed a little bit dazed and confused." Officer Le was wearing a body camera, and footage from that camera was admitted at trial, without objection, as State's Exhibit 1.
Officer Le further testified that, after the initial encounter, he asked appellant to sit down. Officer Le explained that appellant Officer Le had decided to arrest appellant for indecent exposure, but because appellant had a "bigger build," Officer Le called for additional units to assist "in case he wanted to go south." He initially did not ask appellant to place his hands behind his back because it appeared that appellant was able to "listen to a few of my commands," was "willing to walk back to my car," and appeared, at least initially, not to be "combative in any way."
The body camera footage showed that Officer Le eventually asked appellant to "[d]o me a favor and put your hands behind your back."[2] Appellant then called the officer an "asshole" and grabbed Officer Le's left forearm and wrist area hard enough "to feel shock throughout" Officer Le's left forearm. Officer Le was unable to move his left arm freely.
Appellant kept berating Officer Le, calling him an "asshole" and a "fucking asshole" while pushing against him. Officer Le repeatedly ordered appellant to "[g]et on the ground," but the struggle continued. Officer Le was concerned for his personal safety, and he hit the emergency signal button on his chest because he was "not able to get a control on him at this point" and wanted backup to arrive. Officer Le then pulled out his pepper spray to "minimize [appellant's] combative behavior." His pepper spray "ran out," however, so he was unable to successfully use it.
Eventually, Officer Le got appellant on the ground and placed him in a chokehold. Appellant still did not place his hands behind his back. The body-camera recording was interrupted at some point because the force of appellant's resistance caused the camera to be knocked off Officer Le's chest. During the entire struggle, appellant did not place his hands behind his back. Instead, he was "reaching for his waistband." Officer Le was concerned because "[w]eapons are normally stored" in one's waistband. No weapons, however, were found on appellant's person.
On cross-examination, Officer Le admitted that he had resolved to place appellant under arrest at the time he was guiding appellant back towards his patrol car. He did not, however, explicitly tell appellant that he was being arrested for indecent exposure for exposing his penis.
Officer Rachel Hopko responded to Officer Le's call for assistance and arrived to find both Officer Le and the appellant on the ground. In her opinion, Officer Le did not have appellant under control, and he appeared to be struggling. Officer Hopko was wearing a body camera, and footage from that recording was admitted at trial without objection. With Officer Hopko's assistance, the officers were able to place appellant in handcuffs.
Officer Marcus Roberts, the officer who spoke to Mr. Lambi at the scene, also responded. Officer Robert's body camera footage was admitted into evidence without objection.
At the conclusion of the State's case-in-chief, and as relevant to this appeal, appellant's counsel moved for judgment of acquittal on the charges of second-degree assault and resisting arrest. With respect to the second-degree assault charge, counsel argued:
And Your Honor, with regard to second degree assault, I don't believe the State has made a prima facie case. [Appellant] is, as you can see in the video, in front of the police officer. The police officer places his hands, without letting [appellant] know that he's being arrested, on [appellant] and [appellant] tries to get his hands off of him. It's a struggle to free himself rather than to assault or engage in combat with the officer. Even though second degree is a general attempt [sic] crime there's no mens rea to assault the officer. He was just trying to get the officer off of himself. And so I do not believe that the State has made a prima facie case with regard to the second degree assault.
The court denied defense counsel's motion. It explained as follows:
Defense counsel then moved for judgment of acquittal for the charge of resisting arrest. Counsel argued as follows:
And Your Honor, with regard to resisting arrest, I don't believe the State has made a prima facie case. According to the officer's body worn camera the officers actuated [sic] the arrest. [Appellant] was placed in handcuffs. He was told to get on the ground. He is on the ground already. He's being pepper sprayed and told to put his arms behind his back while the officer is striking him and holding him. It does not appear that [appellant] in the video has the ability or the physical capacity to comply with the officer's orders. And so he is restrained the way that he is and is kind of in the position that he is in but not actively resisting.
The court denied this motion. It explained:
Okay. That motion is denied as well. The officer's in uniform. He merely placed a hand on [appellant] and [appellant] responded in a very aggressive, highly physical way that could be characterized as a fight with the police officer very easily. It was a pitched battle basically and I would say that, having seen the body cam, that it is a classic and a very serious classic resisting of arrest by use of physical means.
After the court denied appellant's motion for judgment of acquittal, appella...
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