Swann v. State
| Decision Date | 06 April 2023 |
| Docket Number | 1931-2021 |
| Parties | Joseph Marvin Swann v. State of Maryland |
| Court | Court of Special Appeals of Maryland |
Circuit Court for St. Mary's County Case No C-18-CR-21-000092
Arthur, Reed, Alpert, Paul E. (Senior Judge, Specially Assigned), JJ.
On October 12, 2021, a St. Mary's County jury found appellant Joseph Swann guilty of an array of offenses relating to a fatal automobile accident,[1] as well as resisting arrest and assaulting the law enforcement officers who arrested him. On February 2, 2022, the circuit court sentenced Swann to 33 years of imprisonment, but suspended all but 14 and imposed five years of probation after his release.
He appealed. We hold that the court erred in not merging the convictions for assault into the conviction for resisting arrest, but we affirm the judgments in all other respects.
Just after midnight on Sunday, December 20, 2020, Swann crashed his Cadillac CTS into the rear of a Jeep that was travelling on Maryland Route 5, a four-lane divided highway, in Charlotte Hall. The Jeep exploded, spun, and crashed into the guardrail. The Jeep's driver died from the extensive injuries that he suffered in the crash.
According to the "Event Data Recorder" in his Cadillac, Swann was travelling at 116 miles per hour - more than twice the speed limit - just before the collision. He did not apply his brakes.
At the time of the collision, the road was dry and otherwise in good condition. Swann's blood contained an alcohol concentration of 0.19 grams per 100 milliliters of blood, twice the legal driving limit. An open can of Monaco, an alcoholic drink, was inside of Swann's car.
Another driver saw the collision and stopped. Both cars, he said, were "engulfed in flames." He saw Swann crawling out of the window of the Cadillac. According to the other driver, Swann staggered, his speech was slurred, and he "seemed like he wasn't all the way there."
First responders were dispatched to the scene. While fire and rescue personnel extinguished the fire that was consuming the Jeep, Swann attempted to walk away.
Deputy Tyler Westphal was the first law enforcement officer to respond. He testified that, in order to reach the scene of the collision, he had to drive through fire and debris in the roadway. Both vehicles were still "engulfed in flames" when he arrived.
Deputy Westphal followed Swann to try to get him to return to the scene. After Deputy Westphal asked Swann to turn around multiple times and told him that he was "not free to go," Swann attempted to punch the deputy in the face. Deputy Westphal took Swann to the ground and tried to place him in handcuffs. Swann continued to struggle with Deputy Westphal, who was assisted by Deputy Jessica Wilson, Sergeant Todd Fleenor, and Lieutenant Michael Gardiner. Swann kicked and spat at the officers. The officers eventually subdued Swann with a taser, placed him in the back of a patrol car, and transported him to the hospital.
At trial, the State called Sergeant Christopher Beyer of the Accident Reconstruction Unit of the St. Mary's County Sheriff's Office. Testifying as a lay witness, over Swann's objection, Sergeant Beyer described the process by which he downloaded data from the Event Data Recorder or "EDR" in Swann's Cadillac into a software program. The program generated a report that incorporated the data from the EDR. The court admitted the report, State's Exhibit 8, into evidence.
Over Swann's objection, the State also called Corporal Jason Smith of the St. Mary's County Sheriff's Office as an "expert in the field of motor vehicle collision reconstruction." Corporal Smith had been dispatched to the scene of the collision within an hour of when it occurred. He testified that when he arrived he observed debris, gasoline spillage, and skid marks, gouges, and yaws in the roadway. He recalled that the temperature was in the 30s, that it had not rained, and that the roadway was in good condition.
According to Corporal Smith, the damage to the front end of Swann's Cadillac indicated that it had struck the Jeep, while the damage to the Jeep indicated that it had been struck from behind. Corporal Smith observed that "the rear cargo compartment of the Jeep" had been "pushed all the way to where the back seat was." The fire had "moved from the rear to the front" of the Jeep. The driver of the Jeep had suffered extensive injuries. Corporal Smith noted damage to the guardrail and paint transfer from the Jeep vehicle to the guardrail itself. He found an alcoholic beverage can on the driver's seat of Swann's car.
Corporal Smith testified briefly about State's Exhibit No. 8, the EDR report that Corporal Beyer had created. According to Corporal Smith, the report showed that Swann's car was travelling at 116 miles per hour five seconds before the collision. The report also showed that Swann did not depress the brake pedal. Although the court had admitted the report during Corporal Beyer's testimony, it admitted the report again during Corporal Smith's.
On the basis of his analysis of the data, including the EDR report, Corporal Smith opined that the collision resulted from "driver error" on Swann's part. The corporal explained that Swann rear-ended the Jeep while travelling at twice the speed limit, thereby causing the Jeep's fuel tank to rupture and ignite.
The State also called Deputy Westphal as a witness. Deputy Westphal had deployed a body-worn camera during his interaction with Swann. The State played the recording from his camera for the jury and introduced it into evidence. The recording ended when the deputy's camera "was knocked off" during his "struggle with Mr. Swann." Swann tried to punch the deputy, but he was able to block the punch. At that point, Deputy Westphal "took him to the ground and put him in handcuffs." Even then, Swann continued to struggle, kicking and spitting at Deputy Westphal and the other officers who came to assist him.
The State called Deputy Jessica Wilson as well. Deputy Wilson and Deputy Gardner had responded to Westphal's request for assistance "because [Swann] was fleeing the scene." Deputy Wilson explained that while Swann was handcuffed, on his belly, and on the ground, he kicked her and other officers. She testified:
The State also called Sergeant Fleanor. Sergeant Fleanor testified that Swann spat in his face, that Swann was kicking at the officers, and that Swann kicked him in the leg. The sergeant ordered the other officers to tase Swann, so that they could get his legs into a car without being kicked.
Deputy Gardner did not testify. Nonetheless, Deputy Wilson responded affirmatively when asked whether she observed "any occurrences where contact was made by the Defendant to Deputy Gardner."
The jury convicted Swann of grossly negligent manslaughter by vehicle, criminally negligent manslaughter by vehicle, negligent homicide by motor vehicle while under the influence of alcohol per se, and a number of related offenses. See supra n.1. The jury also convicted Swann of resisting arrest and four counts of second-degree assault against Sergeant Fleenor, Deputy Westphal, Deputy Wilson, and Deputy Gardiner, respectively. Swann filed a timely appeal to this Court.
We shall introduce additional facts as necessary to our discussion.
On appeal, Swann presents four questions:
For the reasons discussed in this opinion, we shall affirm the judgments in all respects but one: Because the circuit court erred in not merging Swann's convictions for second-degree assault into his conviction for resisting arrest, we shall vacate all four of Swann's second-degree assault convictions.
At trial, the State called Corporal Beyer as a lay witness to testify about downloading the EDR data from Swann's car. Swann's counsel objected and moved to exclude Corporal Beyer's testimony on the ground that he was an expert witness, but that the State had not disclosed him as an expert. Defense counsel contended that, to download the EDR data, Corporal Beyer needed expertise in accident reconstruction.
The State responded that Corporal Beyer would testify only about the process by which he downloaded the data from the EDR which, the State said, did not involve expert testimony. According to the State, Corporal Beyer would not testify about how the computer program worked, but only about what he did with the program.
The court agreed to hear Corporal Beyer's testimony without the jury to determine if he needed to be designated as an expert witness.
Corporal Beyer testified that an EDR or "'black box'" is a device that controls vehicle safety features, such as airbags and seatbelt pretensioners, and collects data from collisions. He took a one-week course, in which he learned how to download and review data from an EDR. About half of the course involved the process for downloading data.[2]
Corporal Beyer's computer has an EDR software program called "Bosch CDR." Before using the program, he ascertains whether the EDR comes from a vehicle...
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