Farewell v. State

822 A.2d 513

150 Md. App. 540

Ross Franklin FAREWELL v. STATE of Maryland.

No. 2958, Sept. Term, 2000.

Court of Special Appeals of Maryland.

May 2, 2003.

Robert C. Bonsib (Marcus & Bonsib, on brief), Greenbelt, for appellant.

Shannon E. Avery, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for appellee.

Argued before MURPHY, C.J., SALMON, and KRAUSER, JJ. MURPHY, Chief Judge.

In the Circuit Court for Montgomery County, a jury convicted Ross Franklin Farewell, appellant, of several offenses that were committed during the course of two armed robberies.¹ Prior to trial, the Honorable Durke G. Thompson denied appellant's Motion to Suppress. During the trial, over appellant's objections, the court permitted the State to make use of a statement given by a non-testifying co-defendant during its cross-examination of a defense witness. Appellant now presents two questions for our review:

I. Whether the trial court erred in denying the Appellant's motion to suppress evidence seized from the taxicab and evidence thereafter derived from the unlawful stop, detention, search, and arrest.

II. Whether the trial court erred in permitting the prosecution to use the statement of a non-testifying codefendant during the cross-examination of Joseph Owens.

For the reasons that follow, we shall affirm Judge Thompson's decision to deny appellant's Motion to Suppress, hold that the court erred in allowing the statement of the non-testifying co-defendant to be used under the guise of refreshing the defense witness' recollection, but hold that this error was harmless beyond a reasonable doubt. Accordingly, we shall affirm the judgments of the circuit court.

FACTS AND PROCEDURAL HISTORY

Pre-trial Hearing

The central issues at the hearing on appellant's Motion to Suppress concerned the legality of the stop and subsequent search of a Barwood cab in which appellant was an occupant. The search of that vehicle turned up numerous items used or stolen during two armed robberies.

Sergeant Robert Carter of the Montgomery County police department, who was the principal witness at the hearing, testified as follows. At 9:30 p.m. on March 30, 2000 he heard a broadcast reported that Kemp Mill Wine and Beer (Kemp Mill store) had been robbed. At 9:34 p.m., a broadcast described two robbery suspects who had obtained cash and were last seen running into the woods behind the Kemp Mill store: (1) a black male, age 20 to 25, 6' tall, and 220 pounds; wearing a black bandana around his face, all dark clothing, and a hooded sweatshirt; and (2) a black male, age 20 to 25, 5'9" tall, and 160 pounds; wearing all dark clothing and a hooded sweatshirt. Fifteen to twenty minutes after the initial broadcast, another broadcast reported that a Barwood cab occupied by five black males was observed screeching its tires when it left from behind the shopping center in which the Kemp Mill store was located.

At approximately 10:26 p.m., a broadcast reported a second robbery, that of Dominic's Pizza on New Hampshire Avenue, which is located five to ten minutes from Kemp Mill. The robbers were described as two black males armed with handguns, one being larger than the other and wearing dark clothing. They were last seen leaving on foot and one witness heard the racking noise of an automatic. Carter decided to drive to the intersection of Randolph Road and Old Columbia Pike knowing that someone leaving Dominic's Pizza may be likely to pass through that intersection.

Approximately 10:28 p.m., Carter observed a light blue cab traveling eastbound on Randolph Road. The cab, which had Barwood Cab Company markings, was at this point approximately a five to ten minute drive away from Dominic's Pizza. All three of the cab's occupants looked in his direction as he drove past the cab. He observed a driver, a passenger in the front seat, and a passenger in the right-rear seat. All were dark skinned and appeared to be wearing dark clothing.

Carter made a u-turn, and fell in behind the cab. At around 10:29 p.m., he notified other units of his position. He noticed that the cab's rear and front seat passengers leaned their "head and shoulders ... forward beyond the view of the back depth of the cab...." The traffic was light, and he did not normally see many Barwood cabs with fares at that area at that time of the evening.

The cab stopped for a red light at the intersection of Randolph Road and Route 29. At this point, the cab was in the passing lane. When the light changed, the cab proceeded through the light. Without violating the speed limit, the cab jerked from the passing lane into the right lane, as "if somebody had taken the steering wheel and grabbed their hands all the way at the bottom so they could make a complete revolution with it and snap the car suddenly into the slow lane." The cab proceeded at the speed limit. As it reached Calvert Boulevard, it made another lane change, like the first, but from the right lane into the passing lane. After traveling through the intersection, the cab made another lane change into the right lane in the same manner as the first two. Carter could not remember if turn signals were used. The lane changes did not interfere with any other vehicles because at this time, other than Carter and the cab, no other vehicles were in the area.

During these lane changes, Carter was approximately three car lengths behind the cab. As the cab changed lanes, he similarly moved his vehicle between lanes. He did not observe the cab's occupants look in his direction during the time when the cab repeatedly changed lanes. He thought that "it was also significant that nobody looked behind."

After the cab's third lane change, Officer Eric A. Mason joined Carter, and they decided to stop the cab to conduct an investigative detention. At this point, the officers were a quarter of a mile away from the Prince George's County line. Carter concluded that he had probable cause to believe that the cab's occupants were suspects in both robberies. He announced to the other officers that they were not going to do a felony stop, but a "high alert" stop.² He decided to make a "high alert" stop "because we were stopping this car in conjunction with a lookout for two armed robberies where a Tech 9 or Uzi had been described."

After Carter activated his emergency equipment, the cab almost immediately increased its speed by five to ten miles per hour. Although Carter activated the emergency equipment in Montgomery County, the cab stopped approximately ten seconds later in Prince George's County. Three additional officers joined Carter and Mason.

After the cab stopped, Carter yelled to its occupants to put their hands up. The two front passengers immediately complied, but appellant, the rear passenger, did not. Carter heard "a clunk." The officers approached the cab with their guns drawn. Suddenly, the rear passenger door flung open and appellant got out. Carter instructed appellant to get back in the car. At this point, Carter observed (1) a "large chunk of wadded up cash" falling out of the pocket of appellant's sweatshirt, and (2) an "inter-Tech 9 submachine pistol lying on the [taxicab's] rear floorboard." The officers arrested the cab's occupants and conducted a search of the vehicle that turned up numerous evidentiary items associated with the robberies.

Officer Mason testified as follows: He responded to the armed robbery at the Kemp Mill Shopping Center at approximately 9:30 p.m. At that location, he heard citizens report that they had seen a Barwood cab in the rear of the shopping center. He subsequently found himself in the same locale as Carter at approximately the time Carter decided to make a u-turn and follow the cab. Mason got caught up in traffic and was somewhat behind Carter. He opined that it was not unusual to see a cab occupied or unoccupied with passengers of any race or nationality in that area of Montgomery County and time of evening. While following the cab, he observed the cab move from the right lane to the passing lane and then back over to the right lane. He described the lane changes as "done slowly," but noted that the driver appeared to be confused as to what lane he wanted to be in and the driving was "kind of erratic."

Daryl White, a Barwood Cab Company employee, testified that (1) it was not unusual for cabs to run calls in the area of Montgomery County where the cab was observed, and (2) the vast majority of Barwood cabs fit exactly the same description as the cab in question.

Judge Thompson found the officers had probable cause to stop the cab,³ concluding as follows:

The issue then becomes what was the right of the police to stop the vehicle. There are two possibilities upon which this stop could have taken place, the first of which the Court will address, what might be called the misdemeanor activity and this is based not entirely upon the testimony of Sgt. Carter of the Montgomery County Police Department who was in surveillance to the rear of the Barwood cab.

He alleged that the vehicle was driven in a manner which was—there was significant sudden lane changes without apparent reason three times before the stop was effected, that in his opinion the driver of the vehicle was acting negligently and that the car when it was approached by the marked police cruiser but its emergency equipment was illuminated the vehicle did not immediately stop and therefore there may well be a basis to effect a stop on fleeing and eluding from a police officer.

Taking it one by one, the Court does not find that the rapid changes of lanes constitute illegal lane changing. There is nothing in the code that suggests that that constitutes a violation of law as long as it does not jeopardize or threaten other drivers on the roadway and does not appear to be reckless or create some other type of traffic violation.

Whether it is negligent driving, that is in the Court's mind defined as the failure of a driver to do

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