Pinheiro v. State
| Citation | 225 A.3d 495,244 Md.App. 703 |
| Decision Date | 02 March 2020 |
| Docket Number | No. 3009, Sept. Term, 2018,3009, Sept. Term, 2018 |
| Parties | Richard PINHEIRO v. STATE of Maryland |
| Court | Court of Special Appeals of Maryland |
Argued by: Michael J . Belsky (Chaz Ball, Schlachman, Belsky & Weiner, PA, on the brief), Baltimore, MD, for Appellant.
Argued by: Carrie J. Williams (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for Appellee.
Kehoe, Reed, James P. Salmon (Senior Judge, Specially Assigned), JJ.
On January 23, 2018, Richard Pinheiro (hereafter "Appellant") was indicted by a grand jury in the Circuit Court for Baltimore City on two counts: (1) fabricating physical evidence in violation of § 9-307(b) of the Criminal Law Article of Md. Ann. Code and (2) the Maryland common law crime of misconduct in office. Following a bench trial, Appellant was found guilty and sentenced to three years' imprisonment, with all but time served suspended. Appellant timely filed this appeal and presents the following question for our review, which we condensed for concision:1
I. Was the evidence before the trial judge sufficient to support Appellant's conviction for fabricating evidence and misconduct in office?
For the following reasons, we hold that the evidence was sufficient and affirm the trial court's ruling.
On January 24, 2017, Appellant was part of a district drug unit conducting surveillance in Southwest Baltimore City, Maryland. In the course of the investigation, a covert officer observed several suspected narcotics transactions in an alley under surveillance. Based on the observation of the covert officer, Appellant and another unit officer stopped and briefly detained a suspected buyer. Acting on the information obtained from the brief detention, officers found narcotics in the center console of the buyer's vehicle. The officers were then directed to search for additional narcotics in the alley where the covert officer initially observed the alleged transactions.
Upon searching the alley, the officers' body worn cameras2 (BWC) were in activation mode.3 Hidden in the alley, officers found a knotted bag containing twenty-two capsules of white powder suspected to be heroin. Officers then exited the alley and deactivated their BWC. Recognizing how the first bag of drugs was packaged, Appellant, unaccompanied by the other officers, returned to continue the search based on his experience and belief that more drugs existed in the alley. Appellant found an additional plastic bag containing capsules of suspected heroin and then left the alley to show the other officers. It was at that time Appellant was reminded that his BWC was not in activation mode. Appellant then reentered the alley, placed the drugs in a red can, and arranged the can under debris near where he alleged he initially discovered the drugs. After the drugs were in place, Appellant exited the alleyway, activated his BWC, and is heard saying, "I'm going to check here." He then reentered seconds later to "reenact" his search and the discovery of the additional bag of heroin. Appellant picked up the can and pulled out the bag of heroin. He is heard to say, "yo," then displayed the narcotics in front of the camera as if he had discovered the drugs for the first time. Unbeknownst to Appellant at the time, the buffering footage4 captured video of him placing the drugs in the can and exiting the alley. Appellant subsequently submitted the video to evidence.com5 at the end of his work shift, however, he did not make any effort to document his failure to record the initial search and seizure or make clear that the video he submitted was a "reenactment."
A man was subsequently charged with possessing the drugs Appellant had found in the alleyway. The Assistant State's Attorney (ASA) assigned to prosecute the case received the BWC footage for review and learned that the video appeared to portray Appellant staging the evidence. When the ASA contacted Appellant for an explanation, he admitted that he arranged the drugs and reenacted the recovery because "they ding us for holidays if we forget to turn our [BWC footage] on." Appellant testified similarly at trial that he created the video to avoid "any kind of repercussions" or "actions from the agency for failure to turn on the camera." Appellant also admitted to another ASA in an unrelated trial that he staged a " ‘do-over’...because he didn't want to lose days" for failing to activate his BWC.
Following a two-day bench trial before the Circuit Court for Baltimore City, Appellant was found guilty of fabricating physical evidence in violation of § 9-307(b) of the Criminal Law Article and misconduct in office under Maryland common law. He was sentenced to three years' incarceration, with all but time served suspended.
The issue before this Court calls into question the sufficiency of evidence following Appellant's bench trial, which we will review "on both the law and the evidence, and [we] will not set aside the judgment of the trial court on the evidence unless clearly erroneous." Jones v. State , 178 Md. App. 454, 476, 943 A.2d 1 (2008) ; see Smith v. State , 415 Md. 174, 184–85, 999 A.2d 986 (2010). The test for sufficiency of evidence asks whether "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Titus v. State , 423 Md. 548, 557, 32 A.3d 44 (2011) (quoting Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ). We will give "deference to all reasonable inferences [that] the fact-finder draws, regardless of whether [the appellate court] would have chosen a different reasonable inference." Moody v. State , 209 Md. App. 366, 387, 59 A.3d 1047 (2013) (quoting Robinson v. State , 209 Md. App. 174, 196, 58 A.3d 514 (2012) ) (internal quotation marks omitted).
Appellant contends that the evidence at trial was insufficient to support his conviction for fabricating evidence and misconduct in office. In doing so, Appellant first disputes each element of the criminal statute serving as the basis of his convictions. Appellant argues that (1) the BWC footage does not constitute physical evidence; (2) the evidence at trial was insufficient to conclude he intended to impact the verity of the BWC footage; (3) the evidence at trial was insufficient to conclude he acted with the intent to deceive a tribunal or other official proceeding; and (4) the evidence at trial was insufficient to conclude he created the BWC with the intent that it be introduced in a pending or future proceeding.
Appellant also disputes the validity of his conviction under the common law crime of misconduct in office. He argues that the evidence at trial could not have supported the finding that he committed malfeasance because the act of recording a "reenactment" is not in and of itself wrongful. In response to these contentions, the State retorts that the trial court's verdict—that Appellant violated § 9-307(b) of the Criminal Law Article as well as the common law crime of misconduct in office—was sufficient based on the evidence presented at trial and the reasonable inferences drawn therefrom. We agree with the State.
The statute serving as the basis of Appellant's conviction provides, "A person may not fabricate physical evidence in order to impair the verity of the physical evidence with the intent to deceive and that the fabricated physical evidence be introduced in a pending or future official proceeding." Md. Code Ann., Crim. Law § 9-307(b). Since this statute has yet to be interpreted by Maryland courts and because Appellant disputes each element of the statute, we will address each element in turn.
Appellant argues that, absent instructive language from the legislature or case law, a digital recording does not constitute physical evidence under § 9-307(b). In contrast, the State contends that video recordings fit under the logical definition and practical application of physical evidence because, "if introduced at trial, it would be marked as an exhibit and entered into evidence." Moreover, the State notes that § 9-307(b) operates in "contrast to the nearby statutes[,] which govern influencing testimonial evidence," and suggests that § 9-307(b) was intended to encompass evidence not testimonial in nature.
To ascertain whether the legislature intended for physical evidence under § 9-307(b) to encompass BWC footage, we review the "statute's plain language," considering "the context of the statutory scheme to which it belongs." Gardner v. State , 420 Md. 1, 9, 20 A.3d 801 (2011) (quoting State v. Johnson , 415 Md. 413, 421–22, 2 A.3d 368 (2010) ). The plain language of § 9-307(b) states in part that, "[a] person may not fabricate physical evidence." Black's Law Dictionary defines the term "physical evidence" to be interchangeable with its definition of "real evidence." Compare Evidence , BLACK'S LAW DICTIONARY (11th ed. 2019) (defining real evidence as "physical evidence (such as clothing or a knife wound
) that itself plays as a direct part in the incident in question"), with Evidence , BLACK'S LAW DICTIONARY (11th ed. 2019) (defining testimonial evidence as "a person's testimony offered to prove the truth of the matter asserted; [especially], evidence elicited from a witness" and explaining "[a]n assertion is testimonial evidence whether made out of court or in court, if it is offered with a view to persuading the tribunal of the matter asserted") (internal citation omitted); see also MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY (11th ed. 2020) (defining testimony as "c: a solemn declaration [usually] made orally by a witness under oath in response to interrogation by a lawyer or authorized public official," cross-referencing "testimonial" with "1: EVIDENCE , TESTIMONY ," defining evidence as ...
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