Malarkey v. State

Decision Date02 October 2009
Docket NumberNo. 3067, September Term, 2007.,3067, September Term, 2007.
Citation981 A.2d 675,188 Md. App. 126
PartiesDouglas MALARKEY v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

Robert C. Bonsib (Marcus Bonsib, LLC, on brief), Greenbelt, for Appellant.

Diane E. Keller (Douglas F. Gansler, Atty. Gen., on brief), for Appellee.

Panel: HOLLANDER, JAMES R. EYLER, JAMES A. KENNEY, III (Retired, specially assigned) JJ.


Douglas Malarkey, appellant, a Takoma Park police officer, was charged with second-degree assault of John Courtney, in violation of Maryland Code (2002, 2008 Supp.), § 3-203 of the Criminal Law Article ("C.L."). As a result of the alleged assault, Courtney suffered a collapsed lung and three fractured ribs. Following a trial in the Circuit Court for Prince George's County, appellant moved for judgment of acquittal; the circuit court reserved ruling and submitted the case to the jury. When the jury was unable to reach a unanimous verdict, the court declared a mistrial. Thereafter, appellant filed a post-trial "Motion for Judgment of Acquittal" and a "Supplemental Motion to Dismiss on the Basis of Violation of Principles of Double Jeopardy and Due Process," which the circuit court denied.

Prior to his re-trial, appellant noted this appeal. He presents three issues for our review, which we quote:

I. Whether re-trial of appellant is barred by the principles of double jeopardy and due process.

II. Whether the state failed to present a legally sufficient case and is barred from retrying the appellant.

III. Whether State v. Sirbaugh, [27 Md.App. 290, 339 A.2d 697 (1975),] if still of any precedential value, should be overruled or, in the alternative, is not constitutionally valid as applied to the instant case.

The State has moved to dismiss the appeal, claiming it is premature because no final judgment has been entered. For the reasons that follow, we shall dismiss the appeal.


On January 8, 2006, appellant was off-duty, working the night shift as a security officer at Popeye's Restaurant in Takoma Park. While Malarkey was at work, Sergeant Daniel Frishkorn issued a broadcast concerning a fleeing suspect, which Malarkey heard. The suspect was later identified as Courtney.

Officer Derrick Fields, Sr., a patrol officer for the Takoma Park Police, testified that at around 1:58 a.m. on January 8, 2006, "Corporal Malarkey came over the radio that he saw the person we were looking for [earlier] and that he had him running behind the Red Top gas station."2 According to Fields, appellant "seemed kind of hyped, like it was, I don't know, like he had just caught a known terrorist or something." Fields proceeded to the scene, and exited his car with his "gun drawn." He saw "Mr. Courtney standing in a frozen position because it was like he didn't have anywhere else to run." Fields explained that he handcuffed Courtney because "he may have ... done something heinous.... So that's why we cuff him, for his safety and my safety." Nevertheless, Fields indicated that he did not "feel threatened," nor was he in fear. He said: "It was just a person that, you know, was running and now we caught him."3

Fields told Courtney "to get down ... on the ground," and Courtney "never resisted. He just complied totally...." Fields continued:

... I had him lay down on his stomach and spread his arms out to the side.... I walked over to cuff him. I had one cuff on him and that's when Corporal Malarkey came from my left side, took me by surprise. And all I heard was this thud and Mr. Courtney was like, he had just been deflated, just a big gasp of air just came out of him. So he immediately started complaining that his back and side was hurting.

At that time, I stepped away. Corporal Malarkey had the right hand and then took his left hand and put it in the cuffs. When he cuffed him, he told him, mother fucker, you'll never run from me again. So he yanked him over onto his side, got him sitting on his butt and he lifted his arms up behind him so that Mr. Courtney could be standing on his feet. He never gave Mr. Courtney a chance to help assist him get himself up off the ground.

At that time, Courtney still wasn't fighting he was totally compliant. [Appellant] walked him over to the car and slammed him onto the car....[4]

In describing Malarkey's conduct, Fields said: "It wasn't gentle. Nothing about it was gentle." Fields denied that Malarkey appeared to be injured when Malarkey dropped his knee onto Courtney's back. Nor did he believe that Malarkey "tripped on Mr. Courtney."

As Courtney had an open warrant for violation of parole, he was arrested. On the way to the police station, Courtney complained "that he was in pain" and wanted "medical attention." Fields stated: "He wasn't injured prior to our contact because if he was, he wouldn't have been running like that. If his ribs had been broken, he wouldn't have been running like that. He wouldn't breathe that well."

Officer Paula Gaskin testified that she heard Malarkey's call over the radio, indicating that he was chasing a man spotted earlier in the evening by Sergeant Frishkorn. According to Gaskin, when Malarkey approached the scene, Courtney "was already detained ... and the situation was already under control...." Malarkey was "really excited and irate, [and] was cussing." Gaskin claimed that Malarkey "lifted his knee and came down with all his weight and hit Mr. Courtney in his back." Malarkey turned Courtney over and "slightly kneed him again into like his stomach area." Then, appellant "yanked [Courtney] up in-between the cuffs up off the ground, dragged him to the cruiser and slammed him into the trunk." According to Gaskin, "Mr. Courtney did not resist. He complied with everything Officer Fields told him to do. He was already face down on the ground. He was no threat." Id.

Jerome Irwin, a corporal with the Takoma Park Police Department, responded to Sergeant Frishkorn's call about a man running from him. He also heard Malarkey's call on the radio, indicating that he spotted the man Frishkorn had been chasing. Irwin proceeded to the location identified by Malarkey. As he approached, he saw Officer Fields handcuffing Courtney. When Malarkey arrived, "[h]e exited his car very fast." Irwin continued:

[Malarkey] ran over to Officer Fields, and the guy was on the ground, and he paused for a second and dropped down on the guy with knees, with both knees. He completed the handcuffing process. Officer Fields kind of backed away at that point, and Officer Malarkey was pretty excited. He was cursing at the guy. He called him bitch, mother fucker.

Further, Irwin claimed that Malarkey lifted Courtney off the ground and "slammed him up against the cruiser." Courtney was "grunting and groaning" when Malarkey picked him up.

On cross-examination, Irwin recalled that Officer Fields had Courtney "prone on the ground" and "in a high risk position." When Malarkey "came on the scene," he (Malarkey) saw that Fields "had engaged in a high risk cuffing procedure ...." Irwin agreed "that in that high risk situation, it was important to have Mr. Courtney cuffed and to cuff quickly[.]" Nevertheless, he said: "I didn't think this guy posed a threat at this particular time." He added: "[I]f you have someone compliant, the risk is not as great as if someone is flailing arms or trying to resist you or refusing to be handcuffed. It's different."

On January 8, 2006, Iraj Almas was employed as a Takoma Park patrol officer. She recalled the radio transmission from Frishkorn about a man running from him. After Malarkey called, stating that he had spotted the man Frishkorn had described, she "went to back him up." At the scene, she saw Frishkorn, Gaskin, Fields, and Irwin; Courtney was on the ground. Almas stated: "He was on his knees crunched over and his hands were handcuffed behind his back, and Corporal Malarkey was standing next to him.... And Mr. Courtney was not resisting arrest." She continued:

And then Corporal Malarkey grabbed Mr. Courtney by his handcuffs and snatched him up off the ground pulling his arms all the way up against the rotation of his shoulders. And then Corporal Malarkey walked him about six feet to the cruiser and slammed[5] him on the trunk of the cruiser face down first. Mr. Courtney was still complying, not resisting arrest. Mr. Courtney ... was hurt.

Sergeant Frishkorn instructed Almas "to take Mr. Courtney to the station for processing." While in the cruiser, Courtney complained of "really bad chest pains." Accordingly, at the instruction of Officer Gaskin, Almas took Courtney to Washington Adventist Hospital.

The parties stipulated as follows: On January 8, 2006, Courtney was admitted to Washington Adventist Hospital (the "Hospital") "with complaints of wheezing, chest and back pain, coughing sputum and trouble breathing. He reported the police injured him." Dr. Frank Shin, a radiologist at the Hospital, reviewed Courtney's x-rays, diagnosed a "punctured lung cavity with air between the lung and chest wall," and opined that this condition "is usually caused by trauma to the body." Courtney was treated at the University of Maryland Medical Center on January 13, 2006, for "complaints of trouble breathing, chest, back and rib pain." At that time, Dr. Jeffrey Johnson discovered fractures of Courtney's "9th, 10th, and 11th posterior ribs and a left hemopheumothorax," which "is blood and air in between the lungs and chest wall. It is usually caused by some type of trauma to the body."

Dr. Jeffrey Johnson, who worked at the University of Maryland Shock Trauma Center, testified for the State as an expert in the field of trauma surgery. He stated that Courtney was transferred to the Shock Trauma Center on January 13, 2006. Johnson testified that Courtney initially reported that "he had been kicked several times," although there were "no visual clues" as to his injuries. Courtney was hospitalized for five days with a collapsed lung and three...

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