Albrecht v. State

• Citation: 105 Md.App. 45,658 A.2d 1122
• Decision Date: 01 September 1992
• Docket Number: No. 1122,1122
• Parties: Christopher John ALBRECHT v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 45

105 Md.App. 45

658 A.2d 1122

Christopher John ALBRECHT v. STATE of Maryland.

No. 1122, Sept. Term, 1992.

Court of Special Appeals of Maryland.

May 31, 1995.

Byron L. Warnken, Baltimore, and Gary L. Crawford (Clarke, Crawford & Bonifant, on the brief), Gaithersburg (Roger W. Galvin, on the brief, Washington, DC.), for appellant.

Tarra DeShields-Minnis, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Andrew L. Sonner, State's Atty. for Montgomery County, Rockville, on the brief), for appellee.

Argued before MOYLAN, FISCHER and DAVIS, JJ.

MOYLAN, Judge.

Although of only peripheral concern in the initial appellate reviews of this case, a number of unresolved--and vexing-- issues involving the law of reckless endangerment now command our central focus as we revisit the case.

The appellant, Christopher J. Albrecht, who was a Montgomery County police officer at the time of the crime, was convicted in the Circuit Court for Montgomery County by Judge Peter J. Messitte, sitting without a jury, of one count of involuntary manslaughter and two separate counts of reckless endangerment.

The first count of the indictment charged the appellant with the unlawful manslaughter of Rebecca Garnett. After a lengthy and hard-fought trial, Judge Messitte found that the evidence did not persuade him that Officer Albrecht had intentionally fired the shotgun blast that caused Ms. Garnett's death. Accordingly, he found the appellant not guilty of voluntary manslaughter. Judge Messitte did find, however, that Officer Albrecht's behavior in pointing and handling the weapon was grossly negligent in that it represented a gross deviation from the standard of conduct expected of a reasonable police officer. Accordingly, he found the appellant guilty of involuntary manslaughter of the gross negligence variety.

The second count of the indictment charged the appellant with the reckless endangerment of Rebecca Garnett. Based on the same "gross negligence," so defined (perhaps inadvertently) in the Maryland case law as to embrace the quality of "recklessness," Judge Messitte also found the appellant guilty of the reckless endangerment of Rebecca Garnett. He merged that conviction, however, into the conviction for manslaughter.

The third count of the indictment initially charged the appellant with the reckless endangerment of "other person(s) present on Larchmont Terrace." At the end of the State's case, the third count was amended, over the appellant's objection, by substituting for "other person(s) present on Larchmont Terrace" the names of seven specific persons, to wit, Officer Marvin Thomas, Darnell Budd, Iris Frazier, Tequila Frazier, James Littlejohn, Carroll Walker, and Travell Dumar. Judge Messitte ultimately found the appellant not guilty of the reckless endangerment of Officer Marvin Thomas, Darnell Budd, and Iris Frazier. He found, on the other hand, that the appellant was guilty of having recklessly endangered Tequila Frazier, James Littlejohn, Carroll Walker, and Travell Dumar. Discriminating factors, considerations other than the undeviating factor of the appellant's gross negligence, obviously came into play in separating the four who were recklessly endangered from the three who were not. For the conviction on that third count, Judge Messitte sentenced the appellant to one year in prison, to be served consecutively with the sentence for manslaughter, but then suspended that sentence.

In appealing his convictions to this Court, the appellant challenged the legal sufficiency of the evidence to support the finding of gross negligence that was the indispensable predicate for both the manslaughter conviction and the reckless endangerment convictions. He also challenged the reckless endangerment convictions in a number of other regards. He claimed that he was the victim of multiplicity in pleading, in that the State had twice charged him (in the second and third counts) with the single crime of reckless endangerment. He claimed, moreover, that the third count as initially drawn did not adequately charge an offense for the failure to name any victim.

The appellant claimed alternatively that if, contrary to his urging, the unit of prosecution in reckless endangerment were held to be each individual person recklessly endangered, the third count was then ultimately duplicitous, charging him with seven offenses in a single count and convicting him of four. He claimed that the amendment naming those seven victims, over his objection, was impermissibly one of substance and not merely of form. He also challenged the legal sufficiency of the evidence to support the reckless endangerment convictions with respect to Tequila Frazier, James Littlejohn, Carroll Walker, and Travell Dumar in various regards.

In reversing the appellant's convictions in Albrecht v. State, 97 Md.App. 630, 632 A.2d 163 (1993), our focus was narrow. We held that the evidence was not legally sufficient to permit a finding of gross negligence. On the basis of both Montgomery County Police Academy instruction and the testimony of numerous Montgomery County officers, the evidence did not permit a finding that in the circumstances of the present case Officer Albrecht was guilty of a gross and wanton deviation from permitted police conduct in the unlimbering, the loading, and the aiming of his weapon.

In reversing this Court's decision, the Court of Appeals in State v. Albrecht, 336 Md. 475, 649 A.2d 336 (1994), was correspondingly narrow in its focus. In exposing the Achilles' Heel of this Court's analysis, it looked to one small, but crucial, additional factor in the officer's conduct that had been overlooked by us. After having unlimbered, loaded, and aimed his weapon, the officer moved his finger from the safer position of the trigger guard to the more exposed position of the trigger itself, thereby increasing, if not creating, the danger that even a nervous twitch or an uncontrollable muscular spasm might cause the weapon to fire accidentally. The police academy instruction and the testimony of fellow officers that had legitimized as acceptable practice every step leading up to that final one stopped short of legitimizing the placing of the finger on the trigger itself. The Court of Appeals held that that small but officially uncountenanced incremental risk was sufficient to permit a finding that the officer had been grossly negligent.

The Unresolved Issues

In reversing the convictions on the basis of the appellant's primary contention, we found it unnecessary to deal with the appellant's secondary contentions touching on the law of reckless endangerment. In reversing our decision on the primary issue, the Court of Appeals had no occasion to address those secondary issues. On remand from the Court of Appeals, it is now incumbent upon us to turn our attention to what was heretofore of only marginal concern--some of the still unresolved nuances of reckless endangerment law and the significance of those nuances to the contentions that are now back before us.

In first addressing this case, we found it unnecessary to assess the legal sufficiency of the evidence to support the reckless endangerment convictions with respect to any element of the crime other than that of whether the appellant's conduct permitted a finding of an unjustified creation on his part of a substantial risk of death or serious injury to another. Holding as we did that the appellant's conduct could not be found to have been unjustified, we had no need to demarcate any possible geographic arc of danger or to determine what the evidence showed with respect to whether any of the persons named in the third count were actually within that arc of danger at the time the danger was still operational:

Holding as we do that the evidence was not legally sufficient to support the convictions for reckless endangerment because of the insubstantiality of the "risk" factor based upon the mere aiming of the shotgun and not the firing of the shotgun, it is unnecessary to examine further the question of what victims might otherwise have been recklessly endangered. The record, however, is highly dubious in that regard.

Albrecht v. State, 97 Md.App. at 684 n. 3, 632 A.2d 163.

We were similarly content to leave for another day the question of what is the appropriate unit of prosecution when it comes to the crime of reckless endangerment. Consequently, we were able to put off the alternative pleading problems attendant on the resolution of that issue as to the appropriate module of criminality:

Our holding that the evidence was not legally sufficient in terms of establishing the "risk" factor itself relieves us of the burden of addressing a very nettlesome pleading problem. That is the problem of computing the units of prosecution with respect to the crime of reckless endangerment.

. . . . .

If it is the life-endangering act itself that is the unit of prosecution and not each victim thereby endangered, then the second and third counts, each charging reckless endangerment should not both have been in this case. One of them would have been redundant.

If, on the other hand, the unit of prosecution is each endangered victim rather than the mere act itself, then the third count in this case would present numerous problems. The naming or otherwise identifying of the victim would be a critical element. Permitting the State at the end of the State's case to amend the third count by adding for the first time the names of victims, where theretofore none had been named, would seem to represent an amendment going to actual substance and not to mere form.

97 Md.App. at 685-86 n. 4, 632 A.2d 163.

If we had been correct in our holding that the evidence could not support a finding that the appellant's creation of the risk was unjustified, then it was immaterial whether one person or a hundred persons had been subjected to what was a justified risk. Accordingly, there was no occasion...