Koushall v. State, 13, Sept. Term, 2021
| Court | Court of Special Appeals of Maryland |
| Writing for the Court | Hotten, J. |
| Citation | 479 Md. 124,277 A.3d 403 |
| Parties | Marlon KOUSHALL v. STATE of Maryland |
| Docket Number | 13, Sept. Term, 2021 |
| Decision Date | 03 February 2022 |
479 Md. 124
277 A.3d 403
Marlon KOUSHALL
v.
STATE of Maryland
No. 13, Sept. Term, 2021
Court of Appeals of Maryland.
February 3, 2022
Reconsideration Denied April 25, 2022
Argued by Thomas M. Donnelly and Kristin C. Tracy (Law Offices of Thomas M. Donnelly, LLC, Baltimore, MD), on brief, for Petitioner
Argued by Sarah Page Pritzlaff, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Respondent
Argued before: Getty, C.J., McDonald, Hotten, Booth, Biran, Irma S. Raker (Senior Judge, Specially Assigned), Alan M. Wilner (Senior Judge, Specially Assigned), JJ.
Hotten, J.
Members of law enforcement are public officers privileged to use force when reasonably necessary under the circumstances to protect life and preserve the peace. This privilege is lost when a member of law enforcement uses excessive force—that is force greater than is reasonably necessary under the circumstances. A member of law enforcement who uses excessive force may incur criminal and civil liability. We are asked to determine whether there was sufficient evidence to convict a member of law enforcement of second-degree assault and misconduct in office for striking another in the head preceding an arrest, and if so, whether the convictions should merge for sentencing purposes.
Following a bench trial, officer Marlon Koushall1 ("Petitioner") of the Baltimore City Police Department ("BCPD") was convicted of second-degree assault and misconduct in office. Both convictions arose from the same underlying incident in which Petitioner appeared to punch an unarmed subject in the head within seconds of initial approach. The Circuit Court for Baltimore City sentenced Petitioner to six years' imprisonment, all suspended but one day of time served, for the second-degree assault conviction with three years of probation with the first year supervised, and 100 hours of community service. The circuit court also sentenced Petitioner to ten years' imprisonment for the misconduct in office conviction, all
suspended but one day of time served consecutive to the second-degree assault conviction, with three years of probation with the first year supervised.
Petitioner appealed the circuit court's finding of legal sufficiency of evidence to support the second-degree assault and misconduct in office convictions to the Court of Special Appeals. In the alternative, Petitioner argued that the two convictions should merge for sentencing purposes because the same act—striking another in the head during the commission of an arrest—was the factual predicate for both convictions. The Court of Special Appeals rejected Petitioner's arguments and affirmed the circuit court.
We granted certiorari to address the following questions:
1. Where a conviction for misconduct in office is based on the corrupt doing of an unlawful act, does the conviction for the "unlawful act" merge with the conviction for misconduct in office for sentencing purposes?
2. Whether there was sufficient evidence to support Petitioner's convictions for assault in the second degree and misconduct in office?
We answer the first question in the negative, the second question in the affirmative, and shall affirm the judgment of the Court of Special Appeals.
FACTS AND PROCEDURAL BACKGROUND
Underlying Incident
On August 25, 2018, Henrietta Middleton ("Sgt. Middleton"), an off-duty sergeant for BCPD attended a surprise party2 to celebrate the marriage of Wanda
Johnson, an off-duty detective for BCPD. The party consisted of approximately ten women. The group began consuming alcohol at brunch. By 10 p.m., and after patronizing two other establishments,
the party eventually arrived at Norma Jean's, a strip club in an area of downtown Baltimore known as "the Block."3
The group had reserved a private table within "the VIP Section." An unaffiliated patron, Jane Stancil, attempted to sit with the group at the reserved table. Ms. Stancil refused to leave, and a "melee" erupted between several members of the group, Ms. Stancil, and a friend of Ms. Stancil. Security escorted Ms. Stancil out of Norma Jean's, and the group decided to leave a few minutes later.
The group eventually left Norma Jean's around 1:14 a.m., August 26, 2018. Ms. Stancil approached the group outside the club and an argument ensued. Officer Anthony Pujols, a beat officer on the scene, took action when the argument turned physical. Officer Pujols called for back-up4 while attempting to separate members of the group from Ms. Stancil, who according to Officer Pujols, "was being the more aggressive" individual.
Petitioner, at the time an on-duty sergeant and patrol supervisor for the midnight shift in the Central District, responded to the call. Around the same time, Sgt. Middleton confronted Ms. Stancil. Sgt. Middleton believed that Ms. Stancil had spit at her, and with her palms extended and facing up, asked Ms. Stancil, "[w]hat are you spitting for?" Officer Pujols testified that he observed Sgt. Middleton confront Ms. Stancil, but he was not concerned with "their threat level ... because [he'd] been, since the beginning ... with them ... and [felt] kind of comfortable. ... [A]t that point[,] ... I was okay living with it."
When Petitioner arrived at the scene around 1:30 a.m., he exited the police vehicle and shouted at Sgt. Middleton to "back up." Before Sgt. Middleton could respond, Petitioner pushed Sgt. Middleton backwards. According to security camera
footage, Petitioner struck Sgt. Middleton on the left side of the face5 less than five seconds after his initial approach.
Sgt. Middleton attempted to flee, but Petitioner grabbed her hair and wrestled her to the ground. Officer Pujols and Ms. Blake intervened and separated Petitioner and Sgt. Middleton. Officer Pujols "got on [Petitioner's] back[ ]" because he feared Petitioner would strike Sgt. Middleton again. Petitioner arrested Sgt. Middleton.
BCPD cited Sgt. Middleton for disorderly conduct, failure to obey a lawful order, assault on a police officer, and resisting arrest. After reviewing the evidence, the State dropped the charges against Sgt. Middleton and indicted Petitioner for second-degree assault and misconduct in office.
The Trial
Petitioner elected to proceed with a bench trial, which occurred in September
and October 2019 in the Circuit Court for Baltimore City. The State called the three women from the party who were at the time off-duty detectives for the BCPD. Sgt. Middleton was assigned to Special Investigation Response Team ("SIRT"), which is "a unit under the umbrella of Internal Affairs[ ]" that "specifically handle[s] ... in custody deaths [and] vehicle pursuits[.] ..." Sgt. Middleton testified that after she approached Ms. Stancil, Petitioner "told [her] to back up[, and b]efore [she] can react to the statement given to [her], [she's] pushed and then [she's] hit in the left side area of my face, ear area." According to Sgt. Middleton, her hands were "[o]ut by [her] side."
Detective Dominique Wiggins, another member of the party, observed the incident and testified that Sgt. Middleton had not behaved in a way that warranted a physical response from Petitioner. According to Detective Wiggins, Petitioner made
no effort to de-escalate and was "extremely aggressive" towards Sgt. Middleton. Detective Wiggins also testified that Petitioner acted as if he had a "vendetta" against Sgt. Middleton.
Detective Wanda Johnson provided a similar recollection of the event. Her husband, Marcus Johnson, another BCPD officer who was on-duty and assigned to another district, arrived at some point during the altercation and escorted her away to the end of the block. Despite the distance, Detective Johnson testified that she could still see and hear the incident. Detective Johnson observed Petitioner walking towards the crowd in the middle of the street. Meanwhile, according to Detective Johnson, Sgt. Middleton was walking on the sidewalk attempting to get the attention of one of her friends. Detective Johnson testified that Petitioner "turned around ... [and] pushed [Sgt. Middleton]." Detective Johnson did not hear Petitioner say anything to Sgt. Middleton, but witnessed Sgt. Middleton "thr[o]w up her hands and [say], ‘What the F, I'm a sergeant.’ And then [Petitioner] struck her face again."
Ms. Blake testified that she intervened because she feared for the safety of Sgt. Middleton. According to Ms. Blake, Petitioner "pulled back his fist all the way and then hit [Sgt. Middleton][ ]" with "full force, like he wanted to hit a man." The State also...
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