Moore v. State

• Docket Number: 0144-2023
• Decision Date: 18 January 2024
• Parties: ROBERT LEE MOORE, JR. v. STATE OF MARYLAND
• Court: Court of Special Appeals of Maryland

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ROBERT LEE MOORE, JR.
v.
STATE OF MARYLAND

No. 0144-2023

Court of Special Appeals of Maryland

January 18, 2024

IN THE APPELLATE COURT OF MARYLAND UNREPORTED ^[*]

Circuit Court for Charles County Case No. C-08-CR-22-000672

Berger, Arthur, Raker, Irma S. (Senior Judge, Specially Assigned), J.

OPINION

RAKER, J.

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Appellant, Robert Lee Moore, Jr., was convicted in the Circuit Court for Charles County of driving a vehicle while impaired by alcohol and failure to control vehicle speed on the highway to avoid collision. Appellant presents the following question for our review:

"Did the circuit court err or abuse its discretion in restricting defense counsel's cross-examination of Trooper Thomas?"

Finding no error, we shall affirm.

I.

Appellant was charged by citation with driving while under the influence of alcohol (Count 1), negligent driving in a careless and imprudent manner that endangers the property or life of a person (Count 2), driving a vehicle while impaired by alcohol (Count 3), reckless driving of a vehicle in wanton and willful disregard for the safety of persons or property (Count 4) and failure to control vehicle speed on the highway to avoid collision (Count 5). The court entered a judgment of acquittal on Count 4. The jury found appellant guilty of Counts 3 and 5 and not guilty of Counts 1 and 2. The court imposed a term of incarceration of 5 years, all but 9 months suspended, followed by 3 years of probation, on Count 3, and a $500 fine on Count 5.

At around 11:20 p.m. on January 29, 2022, Brock Dotson began to have mechanical trouble while driving on the highway. The battery of the van he was driving failed before he could get it to the side of the road. As a result, he ended up stranded in a stationary vehicle in the fast lane of the highway. He put his hazard lights on and called for assistance. A few minutes later, appellant drove down the same stretch of highway. Mr. Dotson

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reported that appellant was "going really fast" in the same lane where Mr. Dotson was stopped. At the last second, appellant attempted to swerve into the right lane, but was unable to do so in time. He hit the back, right side of Dotson's vehicle before coming to a stop fifty feet away.

Trooper Thomas reported to the scene. He had not been present when the collision occurred or seen either car before the collision. He first checked the welfare of both passengers. Mr. Dotson appeared uninjured and said he was fine. Appellant appeared disoriented and the Trooper smelled the strong odor of alcohol on his breath. Appellant spoke with slow, slurred speech and his eyes were glassy and bloodshot. He fumbled with his paperwork and was unable to find his driver's license when the Trooper asked for it. Trooper Thomas inquired about appellant's alcohol consumption, and appellant informed the Trooper that he had had "three or four beers." At that point, the Trooper allowed paramedics to put appellant onto a gurney and take him to an ambulance to assess him. Once appellant was in the ambulance, the Trooper, still smelling a strong odor of alcohol, asked if appellant would be willing to take a field sobriety test. Appellant refused. Similarly, at the hospital, appellant refused a blood test.

At trial, Trooper Thomas testified to his observations at the scene and his interactions with appellant at the hospital. On cross-examination, defense counsel attempted to cross-examine the Trooper on a set of guidelines published by the National Highway Transit and Safety Administration (NHTSA). According to the NHTSA manual, there are three phases in which an officer can investigate for drunk driving: (1) vehicle in

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motion, (2) personal contact, and (3) pre-arrest screening. At each stage, the manual lists factors officers can look for to determine whether a driver is impaired.

Key to this appeal are two instances in which appellant's counsel attempted to delve into the specifics of the factors and tests listed in the manual. First, appellant's counsel drew the Trooper's attention to the first phase, "vehicle in motion," and asked the Trooper how many factors there were for that phase. The State objected on the grounds that the testimony was irrelevant and outside the scope of direct examination. The State argued that, because the Trooper was not present prior to the accident, testimony about what an officer hypothetically should have looked for in a situation that did not present itself was not pertinent. The court sustained the objection.

However, the court went on to permit appellant's counsel to thoroughly crossexamine the witness on what signs of intoxication he was unable to check for because he was not present prior to the crash. Immediately after the bench conference, appellant's counsel was permitted to ask "There are a lot of clues for phase one?" After questioning the Trooper about the other phases briefly appellant's counsel returned to phase one and was permitted to ask the following questions:

[DEFENSE COUNSEL]: Okay, so phase one, vehicle in motion-

TROOPER THOMAS: Yes, ma'am

[DEFENSE COUNSEL]: -that involves your initial observation of the vehicle in motion?

TROOPER THOMAS: Yes, ma'am.

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[DEFENSE COUNSEL]: And then your observation of how the vehicle stops?

TROOPER THOMAS: Yes, ma'am.

[DEFENSE COUNSEL]: In this case, you never actually saw Mr. Moore driving?

TROOPER THOMAS: I did not, no, ma'am.

[DEFENSE COUNSEL]: Okay, so for instance, one possible clue for vehicle in motion is weaving in the lane?

TROOPER THOMAS: Yes, ma'am.

[DEFENSE COUNSEL]: You have no idea if Mr. Moore was weaving in a lane?

TROOPER THOMAS: I do not, no, ma'am.

Appellant's counsel was able to proceed in this manner, inquiring about the Trooper's inability to observe five different factors and the Trooper knowing that several other factors (e.g., driving the wrong way down the highway) did not apply. Appellant points to no specific factors from the manual that he was not permitted to cross-examine the Trooper about.

Second, appellant's counsel attempted to question the Trooper on the...