State v. Pagotto, 99

• Decision Date: 16 November 2000
• Docket Number: No. 99,99
• Citation: 762 A.2d 97,361 Md. 528
• Parties: STATE of Maryland v. Stephen PAGOTTO.
• Court: Maryland Court of Appeals

762 A.2d 97

361 Md. 528

STATE of Maryland v. Stephen PAGOTTO.

No. 99, Sept. Term, 1999.

Court of Appeals of Maryland.

November 16, 2000.

Mary Ann Ince, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Maryland, on brief), Baltimore, for Petitioner.

Kimberly A. Alley and Henry L. Belsky (Schlachman, Belsky & Weiner, P.A., on brief), Baltimore, for Respondent. Argued before BELL, C.J., and ELDRIDGE, RODOWSKY,¹ RAKER, WILNER, CATHELL and HARRELL, JJ.

RAKER, Judge.

Respondent, Stephen Pagotto, a sergeant with the Baltimore City Police Department, was convicted of involuntary manslaughter and two counts of reckless endangerment in violation of Maryland Code (1957, 1992 Repl.Vol.) Article 27, § 120(a)² following a jury trial in the Circuit Court for Baltimore City. Pagotto noted a timely appeal to the Court of Special Appeals, contending that the State presented legally insufficient evidence at trial to sustain his convictions. The Court of Special Appeals agreed with Pagotto and reversed the judgment of conviction. See Pagotto v. State, 127 Md.App. 271, 732 A.2d 920 (1999)

. We granted the State's petition for a writ of certiorari. We shall hold that the evidence was insufficient to support Pagotto's convictions. Accordingly, we shall affirm the judgment of the Court of Special Appeals.

I.

We are mindful that, in an appeal based upon insufficiency of evidence, it is not the function of the appellate court to undertake a review of the record that would amount to a retrial of the case. See State v. Albrecht, 336 Md. 475, 478, 649 A.2d 336, 337 (1994)

. Rather, we must view the evidence in the light most favorable to the prosecution, and the judgment can be reversed only if we find that no rational trier of fact could have found the essential elements of the crime. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Albrecht, 336 Md. at 478,

649 A.2d at 337. Fundamentally, our concern is not with whether the trial court's verdict is in accord with the weight of the evidence, see Jackson, 443 U.S. at 319,

99 S.Ct. 2781,

61 L.Ed.2d 560, but only with whether the verdict was supported by sufficient evidence—evidence which could fairly convince a rational trier of fact of the defendant's guilt beyond a reasonable doubt. See Albrecht, 336 Md. at 479,

649 A.2d at 337.

In other words, in a sufficiency of the evidence challenge, the appellate court is not to ask whether it believes that the evidence at trial established guilt beyond a reasonable doubt. Rather, the court only 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." Jackson, 443 U.S. at 319, 99 S.Ct. 2781, 61 L.Ed.2d 560. See Albrecht, 336 Md. at 479,

649 A.2d at 337-38; Oken v. State, 327 Md. 628, 661, 612 A.2d 258, 274 (1992).

II.

The facts of this case are undisputed until the critical moments leading up to the discharge of Respondent's weapon. Sergeant Pagotto and his partner, Officer Stephen Wagner, were both assigned to the Gun Recovery Unit of the Baltimore City Police Department (hereinafter "Department"). The mission of the Gun Recovery Unit was to remove guns from the streets of Baltimore City. Each officer assigned to this unit was trained to look for people with certain characteristics that police profiles indicated were more likely to carry guns. The Gun Recovery Unit frequently used pretextual traffic stops to accomplish their mission. See Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)

(holding no Fourth Amendment violation if police have probable cause to believe driver of automobile is violating traffic regulation, but the stop is to accomplish some other investigative purpose).

The incident in question occurred on the night of February 7, 1996. Officers Pagotto and Wagner were assigned to the Northeastern District of Baltimore in an area called "Little Eastern." This area was selected because it has a high concentration of narcotics trafficking and gun related violence. Pagotto and Wagner were dressed in plain clothes that evening, although they were driving a "marked Tracker,"³ making them easily identifiable as police officers.

At approximately 8:30 p.m., the two officers spotted a white Subaru in the 2600 block of Kirk Avenue. Although the officers stopped the car because the license was displayed improperly, they both testified that their subjective motive in stopping the car was to look for guns.⁴ According to Sergeant Pagotto, they decided to stop this particular car because it was in a high drug and gun area and looked suspicious. Officer Pagotto explained the significance of the license tag:

A lot of times people who are going to conceal what they are doing like dealing narcotics or doing a drive-by shooting or even if it is a stolen car, guns and narcotics are synonymous with each other, and they just ... [remove the tag] to conceal their identification.

In response to the officers' signal to stop, the Subaru pulled over on the 2700 Block of Kirk Avenue. Sergeant Pagotto stopped the Tracker about ten feet behind the Subaru. Both officers left the Tracker and began to approach the Subaru. Officer Pagotto approached the driver's side and Officer Wagner approached the passenger's side. Three people were in the Subaru: Preston Barnes, Damien Jackson, and Ali Austin. Officer Wagner testified that, as they approached the car, he noticed that all three persons were "very excited and moving." Officer Pagotto testified that, when he was about five feet from the back of the car, he saw the driver of the car, Preston Barnes, tilt his head back and drop his shoulder. As part of his training for the Gun Recovery Unit, Pagotto had been instructed that movements such as these were consistent with the picking up of a weapon or the placing of one under the seat. It was at this time that Pagotto withdrew from his holster his police weapon, a Glock 17 automatic.

Damien Jackson, testifying for the prosecution, stated that, earlier that evening, the three men in the car had stopped to pick up ten bags of "Ready Rock," a form of cocaine. He further testified that, when the police signaled for them to pull over, Preston Barnes exclaimed, "Oh shit, I'm dirty," referring to the fact that he was carrying drugs. Barnes was on probation for a drug conviction, and Jackson testified that Barnes knew that any new convictions would constitute a violation of probation and could result in a minimum of five years in prison.

Jackson also explained an escape plan that he and Barnes had worked out in case they were ever caught in such a situation. The plan was that, if they were stopped while carrying drugs, they would pull the car over and bring it to a stop. The officers would then presumably stop their vehicle and begin to approach the car. When the officers came close to the car, Barnes would "rev up" the engine and take off. The two figured that they would be able to make a clean getaway by the time that the officers made it back to their vehicle, started it, and began pursuit. It appears that it was this plan that Barnes was attempting to implement on the night in question.

As the two officers approached the car, it began drifting forward slightly. Officer Wagner originally believed that it was drifting because the car had parked on a downslope along Kirk Avenue. Both officers were yelling orders at the driver of the car "to stop, put on the brake, put the car in park." Sergeant Pagotto then arrived at the driver's side door with his weapon drawn in his right hand. Two separate versions of the precise events from this point forward were provided by Sergeant Pagotto, on the one hand, and Damien Jackson and Ali Austin, on the other hand.

Damien Jackson testified that, when Sergeant Pagotto arrived at the driver's side door, Pagotto opened the door and then stepped back two or three feet from the car. He further testified that, as Pagotto stepped back from the door, Pagotto was yelling at Barnes to "[s]top the car, stop the car, or I am going to shoot." It was at this point that Barnes shifted from park to drive and pressed down on the gas pedal. Because there was a car parked in front of the Subaru, Barnes had to move the car toward the center of Kirk Avenue and Sergeant Pagotto. As he did so, Jackson and Austin heard a shot, then heard Barnes exclaim, "Oh shit," and slump over. The car proceeded to crash into a parked car down the street. When it did so, both Jackson and Austin fled the scene.

Sergeant Pagotto's testimony differed slightly. He testified that, as he approached the car, he withdrew his gun from the holster, holding it in his right hand with his finger on the slide of the gun.⁵ He then took another two or three steps, and, when he neared the door, the driver opened the door slightly. Sergeant Pagotto had seen a training video that instructed officers to be cautious when a car door opens slightly because many officers had been killed in similar situations. Fearing that he was about to be ambushed by Barnes, he instinctively moved forward to attempt to grab Barnes's arm. Pagotto testified that he had been trained to go into an ambush because it draws other fire towards the attacker.

Pagotto struggled with Barnes with his left hand while his police weapon remained outside the vehicle in his right hand, along his side. Barnes managed to rip his arms away from Pagotto and toward the console. Fearing that Barnes was going for a gun, Pagotto attempted to disengage himself from the car. Pagotto testified that, at this point, he was stuck halfway in the car with his feet outside of the car while the car was rolling forward. When Pagotto heard the engine start, he yelled to Wagner to "get the Tracker," meaning the police vehicle. Pagotto testified that he was then able to free himself of the Subaru just before Barnes put the car...