Horn v. State, 263-2021

CourtCourt of Special Appeals of Maryland
Docket Number263-2021
Decision Date02 September 2022



No. 263-2021

Court of Special Appeals of Maryland

September 2, 2022

Circuit Court for Frederick County Case No. C-10-CR-19-001096

Kehoe, Leahy, Moylan, Charles E. (Senior Judge, Specially Assigned), JJ.


Leahy, J.


In the early morning of June 1, 2019, an officer observed appellant Byron Horn's vehicle make a wide turn through multiple lanes of traffic, cross over the double line twice, and drift back and forth in its lane. The officer stopped the vehicle, and Mr. Horn was arrested.

In a December 2, 2019 bench trial in the Circuit Court for Frederick County, Mr. Horn was convicted of driving while impaired by alcohol, in violation of Maryland Code (1977, 2012 Repl. Vol., 2019 Supp.), Transportation Article ("TR"), § 21-902(b), and failure to drive a vehicle on the right half of the roadway, in violation of TR § 21-301(a). Mr. Horn was sentenced to one year of imprisonment, all suspended. He filed a motion for a new trial, which was denied on March 26, 2021. Mr. Horn noted an appeal and presents a sundry list of questions for our review, which we restate and reorder as follows:[1]

1. Did the circuit court err in denying the motion to suppress because the police officer lacked a reasonable suspicion for the traffic stop
2. Did the circuit court err in concluding that Mr. Horn was advised of his rights and afforded due process
3. Did the circuit court abuse its discretion in admitting Mr. Horn's hospital records
4. Did the court abuse its discretion in admitting testimony regarding horizontal gaze nystagmus?
5. Did the trial court abuse its discretion in limiting the scope of recross-examination during Officer Coady's testimony?
6. Did the circuit court properly permit the State to recount a prior ruling at trial regarding a motion to suppress before a different judge at the hearing on Mr. Horn's motion for a new trial?
7. Did the circuit court abuse its discretion in denying Mr. Horn's motion for a new trial because Mr. Horn's conviction resulted from false testimony?

Finding no error or abuse of discretion, we affirm the judgments of the circuit court.


Indictment and Pre-Trial Notices

Mr. Horn was charged in the District Court for Frederick County with driving a vehicle while under the influence of alcohol; driving a vehicle while impaired by alcohol; failure to drive a vehicle on the right half of a roadway when required; and willfully driving a motor vehicle at a slow speed impeding normal and reasonable speed. Following a request for a jury trial, the case was transferred to the Circuit Court for Frederick County.

On November 14, 2019, the State filed a "Notice of Intention to Request Subsequent Offender Treatment" for Mr. Horn for two separate offenses: (1) a 1997 conviction for driving under the influence of alcohol in violation of TR § 21-902(b); and (2) a 2004 conviction for driving while impaired also in violation of TR § 21-902(b). The same day, the State also filed a "Notice of Intention to Seek Enhanced Penalty." This notice informed Mr. Horn that he would be subject to "the additional penalty of imprisonment of not more than two (2) months, a fine not exceeding $500, or both" if he was "convicted of a violation of Transportation Article Section 21-902 and the trier of fact . . . finds beyond a reasonable doubt that the defendant knowingly refused" to take a test to determine his blood alcohol concentration.


Motion to Suppress

The case proceeded to trial on December 2, 2019. Immediately after the case was called, Mr. Horn waived his right to a trial by jury and elected to proceed with a bench trial.

Counsel for the State alerted the court that Mr. Horn intended to move to suppress evidence. Defense counsel then proffered that the "ground for the motion" that would be forthcoming "is that we believe that the officer did not have reasonable articulable suspicion that [Mr. Horn] was committing any [traffic] offense at the time" of his arrest. Although counsel indicated that the defense would not be calling any witnesses during the trial, for purposes of the motion to suppress only, he would call Mr. Horn to "testify to the events that led up to the stop[.]"

The State began by calling Officer Andrew Coady, a member of the Frederick Police Department, assigned to the Evening Patrol, B Squad. The court accepted Officer Coady as an expert in the administration of horizontal gaze nystagmus and noted that expert testimony was not required for "other parts of the field sobriety test."

Officer Coady testified that he was on duty on June 1, 2019. At approximately 12:10 a.m., he was on patrol in the area of North East Street and East Church Street in Frederick County. He observed a red Cadillac Escalade "turning right onto southbound North East Street." The vehicle made a "wide right turn," crossing over all three lanes of traffic and over the "double yellow line into the northbound side of the road." Based on his "training, knowledge and experience," Officer Coady explained that "a cue for impaired


drivers could be a wide right turn." Officer Coady then "got behind the vehicle." The vehicle then made a "left hand turn onto East Patrick Street to go eastbound." Officer Coady testified that "the vehicle was traveling slower than the posted speed limit" as it was "going 20 miles an hour in a 30-mile an hour zone, which is another cue for impairment." Traffic began to "back up" and the vehicle "was drifting back and forth in its lane side-to-side." The vehicle continued east until "Monocacy Boulevard where it got into lane number two" and made "another wide radius turn, crossing through the lane of travel" and then "cross[ing] over the double lane again, failing to drive right of center." Officer Coady then initiated a traffic stop of the vehicle.

Officer Coady approached the driver's side of the vehicle and requested Mr. Horn's license and registration, which Mr. Horn provided. He told the court that, "[w]hile speaking with [Mr. Horn] at the window, I did detect a strong odor of an alcoholic beverage coming from inside the vehicle." At this point in Officer Coady's testimony, counsel for Mr. Horn requested to voir dire Officer Coady, which the judge permitted.

During voir dire, Officer Coady confirmed that Mr. Horn "came so wide that he crossed into" other lanes of traffic. He could not recall if "there was traffic coming around." When questioned about whether Mr. Horn showed "any signs of any impairment," Officer Coady responded that he watched Mr. Horn make the "left turn onto East Patrick Street" and observed his vehicle "drifting back and forth in his lane," and "the slow speed and traffic backing up behind us." Officer Coady did not recall if Mr. Horn used his blinker or if he utilized a wide turn onto East Patrick Street. After Mr. Horn made


a second wide turn, Officer Coady initiated a stop. He explained that, although he believed that "there was a likelihood" that Mr. Horn was impaired based on how he was driving, he had also "pulled people over for the same thing and they have not been impaired."

Mr. Horn testified next, insisting that he "took a normal turn" onto North East Street. He confirmed that he was "very familiar" with the area, took his time "making these turns," and used his signals. Mr. Horn testified that he had no issues navigating the turns and could not have been going "20 in a 30" because he used his cruise control due to traffic cameras. Concerning the turn "at the light at Monocacy and East Street," Mr. Horn asserted that he "never crossed the line." Mr. Horn testified that he did not make any wide turns while driving that evening or violate any traffic laws.

On cross-examination, Mr. Horn testified that he was "visiting a friend" before the officer stopped him. Mr. Horn could not recall how many cars were on the road that evening but "didn't notice anything out of the ordinary."

The State then recalled Officer Coady. He explained where Mr. Horn's car was positioned before it made a right turn onto Monocacy Boulevard. Officer Coady confirmed that there was a "double line on Monocacy Boulevard" and that he witnessed Mr. Horn's car cross it. Following Officer Coady's testimony, the court heard argument on Mr. Horn's motion to suppress.

Mr. Horn's counsel requested the court suppress "everything after the stop." He argued that Officer Coady pulled Mr. Horn "not for a particular traffic offense," but because the officer believed that Mr. Horn was impaired. He further contended that Officer


Coady was attempting to "gather up enough to pull [Mr. Horn] over for a DUI itself" but there was not "enough here." Mr. Horn's counsel urged the court to credit Mr. Horn's testimony and argued that Officer Coady did not "formulate[] the proper probable cause to pull over [Mr. Horn] for a DUI."

The State responded "first . . . that the officer did testify that he did observe a traffic offense. He testified that [Mr. Horn] failed to drive right of center when he crossed over the double yellow lines." The State underscored that the "standard for a traffic stop is reasonable articulable suspicion rather than probable cause." The prosecutor also directed the court to Edwards v. State, 143 Md.App. 155 (2002), where this Court "found that the crossing of the center line of an undivided is so inherently dangerous that it is a legally sufficient basis for a stop." Because Officer Coady testified that he "observed [Mr. Horn] cross the double yellow line on two occasions," the State argued that there was a sufficient basis for the stop.

The trial court denied Mr. Horn's motion to suppress, explaining:

Well, what we have here, based on the testimony of Officer Horn (sic), we have allegedly two instances where Defendant crossed the double yellow line. That is an offense for which one can be stopped

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