Albrecht v. State

• Decision Date: 01 September 1992
• Docket Number: No. 1122,1122
• Citation: 97 Md.App. 630,632 A.2d 163
• Parties: Christopher John ALBRECHT v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 630

97 Md.App. 630

632 A.2d 163

Christopher John ALBRECHT v. STATE of Maryland.

No. 1122, Sept. Term, 1992.

Court of Special Appeals of Maryland.

Oct. 27, 1993.

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

MOYLAN, Judge.

A tragic accident occurred on the early evening of May 23, 1991, on Larchmont Terrace in the Gaithersburg area of Montgomery County. Rebecca Garnett, who had just been driving a car carrying a criminal suspect sought by the police for a stabbing, was killed when a shotgun held by Officer Christopher J. Albrecht, the appellant, accidentally discharged. The issue is whether that constituted criminal conduct on the part of the officer. Officer Albrecht was indicted on one count of manslaughter and two counts of reckless endangerment. Following a nonjury trial in the Circuit Court for Montgomery County, the trial judge found Officer Albrecht not guilty of voluntary manslaughter, guilty of involuntary manslaughter, and guilty of both counts of reckless endangerment.

Although Officer Albrecht raises a number of contentions, the pertinent one for our purposes is whether the trial court's findings of fact supported its conclusion of law that the defendant was guilty of involuntary manslaughter of the gross criminal negligence variety and of reckless endangerment under Md.Ann.Code art. 27, § 120(a).

The Facts

On May 23, 1991, Officer Albrecht, along with Officer Marvin Thomas, responded to the stabbing of Timothy Fair in the area of Fairhaven Drive. One witness, Barbarette Budd, identified the assailant as having been Darnell Budd. She described to Officer Albrecht how the stabbing had occurred during a fight between Timothy Fair, on the one hand, and three other young men, including Darnell Budd, on the other. The stabbing victim, before being transported to the hospital, told the officers that he had known his three assailants prior to the attack and that they were drug dealers. Another witness, Charlotte Daniels, reported that, immediately following the stabbing, Darnell Budd and the other two had left the area in a car driven by Rebecca Garnett. Other witnesses told Officer Albrecht that the three suspects were known to be involved with guns and that the officer should "watch out" because there might be a gun in the car driven by Rebecca Garnett. Other witnesses told the officers that the three "boys" might have been involved in a robbery. In any event, both officers were alerted to the fact that the three suspects, including Darnell Budd, might well be armed.

As the officers were continuing with the interview of witnesses at the crime scene, Barbarette Budd saw the green Chevrolet carrying the suspects speed by. She yelled, "[T]here goes the car." Officers Albrecht and Thomas ran to their respective police cruisers and gave brief chase, at high speeds and with sirens and dome lights activated, but lost the suspect vehicle at the outset. After a brief search of the general surrounding neighborhood, however, Officer Albrecht located the vehicle and the suspects on Larchmont Terrace. The car was backed into a parking space. Both Darnell Budd and Rebecca Garnett were standing outside the vehicle. When they spotted Officer Albrecht approaching, they moved toward the car as if to leave. Darnell Budd was on the passenger side and Rebecca Garnett went toward the driver's door. Officer Albrecht also noticed a third individual, later identified as James Littlejohn, crouched in the back seat. Officer Thomas, who was in radio contact with Officer Albrecht while also searching the neighborhood, arrived at Larchmont Terrace a matter of seconds behind Officer Albrecht.

It is the fraction of a minute following Officer Albrecht's spotting of the suspect vehicle on Larchmont Terrace that is critical to the outcome in this case. We shall reduce the narration to slow motion in an attempt to capture the nuances of those critical seconds. The testimony of Officer Marvin Thomas, who arrived on the scene seconds after Officer Albrecht, depicts the mind-set of both officers as they approached the suspect vehicle. Officer Thomas was on his car radio with the dispatcher, and the entire conversation was captured on audio tape. Officer Thomas asked the dispatcher to give him a "10-3" so that we could "make sure these clowns aren't armed." The officer described that a "10-3" clearance means that no other cars will be talking on the airwaves and that the channel of communication will be kept open exclusively for the officers on the action end of the "10-3." Officer Thomas explained:

"A 10-3 means there are to be no other cars talking on the air so that it's clear in case anything happens we can get on the air and ask for assistance, immediate assistance. It's usually when you're in a high danger, or there's a high chance that the situation can escalate to very dangerous." (emphasis supplied).

The officers were concerned that the suspects being stopped might be armed and dangerous. Again, Officer Thomas explained:

"Well, when I turned on Larchmont I was informed by Officer Albrecht that he had the vehicle. We still--There was a question as to not only was this the vehicle and were they the people we were looking for, but there still was a question about weapons. So, with him there, my concern was to get there as quickly as possible to make sure that at least there was two of us to confront them. So, yes, I came very quickly."

Officer Thomas was familiar with that general area of the Germantown district. He was asked specifically whether he considered "Larchmont Terrace and its environment to be a particularly dangerous or hostile area." He replied, "Larchmont, in itself, has quieted down, but at one point it was."

In the section where this confrontation occurred, Larchmont Terrace is a wide paved area, serving, in effect, as both a street and a parking lot for some townhouses that face on it. It is wide enough to accommodate parking perpendicular to the curb rather than parallel to it. When Officer Albrecht spotted the suspect green Chevrolet, it was backed up to the curb on Larchmont Terrace facing outward. Rebecca Garnett, who had been driving, had gotten out of the driver's door and was standing off to the right of the vehicle from Officer Albrecht's point of view as he approached. Utilizing standard procedure, Officer Albrecht brought his police cruiser to a stop in front of and to the right of the suspect vehicle and facing in a direction so that he could use the vehicle as a shield. His focus was initially and primarily on Rebecca Garnett.

Officer Thomas moved his police cruiser into a position in front of the suspect vehicle and off to its left, as he was facing it. Darnell Budd had gotten out of the front passenger seat and was standing off to the left, as the officers viewed the scene. Both officers also observed James Littlejohn, still in the suspect car and apparently crouched in the rear seat. It turned out that James Littlejohn was blind and posed no threat to the officers, but they did not know this during the initial confrontation.

Officer Thomas explained that the position taken by the two officers and their vehicles was pursuant to "a specific procedure" utilized when making a "felony stop" of potentially armed and dangerous suspects in or near a motor vehicle. He also explained why he initially drew a handgun from his holster rather than unlimber a shotgun. The choice of weapons is discretionary with an officer:

"The vehicles basically are set up the way that we have the cars parked there, Your Honor. In a felony stop you can use a shotgun or you can use a handgun. There is no set guidelines. It's whatever the officer decides to use. You use the vehicle for cover and you bring the suspect away from their vehicle, back to your position. You secure them, handcuff them, and get them so that they're safe. You search them. And once everyone is away from the car, secured and searched, then you approach the vehicle cautiously and check the vehicle and make sure there is no one else in it and then you check it for a weapon."

As Officer Albrecht got out of his police cruiser, he released his shotgun from its rack. He yelled at all three suspects, "Stop! Freeze!" As he did so, he placed a shotgun shell in the chamber and "racked" the gun into a final stage of firing capability. He leveled the gun at Rebecca Garnett. He testified that he then mentally "checked off" Rebecca Garnett as not being an immediate threat. He intended to swing the shotgun to its left in order to bring it to bear on Budd and Littlejohn. As he started the move, the shotgun discharged. The blast struck Rebecca Garnett in the chest, killing her almost immediately.

When Officer Thomas pulled his vehicle to a stop, he could see that Officer Albrecht was controlling the driver's side of the suspect vehicle and the person of Rebecca Garnett. Officer Thomas's position enabled him to direct his attention to the passenger side of the vehicle and Darnell Budd. He was starting to get out of his police cruiser with his service revolver drawn when he heard the "racking" of Officer Albrecht's shotgun. It was the "racking" sound that persuaded him to reach immediately back into his own cruiser and to take from the "rack" his own shotgun. It was at that moment that he heard the discharge of Officer Albrecht's weapon.

Initially, neither Officer Albrecht nor Officer Thomas realized that Rebecca Garnett had been hit by the shotgun blast. They both described her as seeming to sit down on the sidewalk as if complying with the orders to "stop" and to "freeze." When the shotgun...