Knight v. State

HAKIM KNIGHT v. STATE OF MARYLAND

No. 2509

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2019

July 16, 2021

Circuit Court for Baltimore City

Case No. 119149010

UNREPORTED

Graeff, Gould, Sharer, J., Frederick (Senior Judge, Specially Assigned), JJ.

Opinion by Sharer, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Following a jury trial in the Circuit Court for Baltimore City, Hakim Knight, appellant, was convicted of four firearm-related offenses: possession of a regulated firearm after a disqualifying conviction (underage possession of a firearm); possession of ammunition while prohibited to possess a firearm; wearing, carrying, or transporting a handgun on the person; and wearing, carrying, or transporting a handgun on the person within 100 yards of a place of public assembly.¹

Appellant presents two questions for our review:

1. Did the trial court err by allowing the State to elicit improper lay opinion testimony?

2. Did the trial court err by allowing the prosecutor to make impermissible closing arguments?

We hold that the challenged testimony was erroneously admitted as lay opinion testimony. Nonetheless, we find the admission to have been harmless beyond a reasonable doubt and, finding no error otherwise, shall otherwise affirm appellant's convictions.

We have reviewed the record in full. Because appellant does not directly challenge the sufficiency of the evidence, "[i]t is unnecessary to recite the underlying facts in any but a summary fashion because for the most part 'they [otherwise] do not bear on the issues we are asked to consider.'" See Teixeira v. State, 213 Md. App. 664, 666 (2013) (quoting Fitzpatrick v. Robinson, 723 F.3d 624, 628 (6th Cir.2013)).

BACKGROUND

While on patrol in the Cherry Hill neighborhood on May 10, 2019, a team of Baltimore City Police Department detectives² saw three men huddled together between two houses. As their patrol car approached the men, two walked toward the car, but the third — appellant — walked in the opposite direction. Det. James Deasel observed that, as appellant turned, he "grabbed his front waist band area" leading Det. Deasel to believe that appellant might be armed.

Appellant began to run and was pursued by Det. Christina Braun who eventually caught and detained him. Most of the chase and the capture of appellant were audio and visually recorded on the officers' body-worn cameras and were reproduced and published to the jury at trial. A search of a dumpster located in the area in which Det. Braun had pursued appellant disclosed a handgun. Forensic testing of DNA swabs from that firearm revealed a "major male DNA profile" which, when compared with appellant's known DNA sample, was a match. The forensic expert witness opined, therefore, that appellant was the source of the DNA profile.

DISCUSSION

Standard of Review

We review the two issues appellant raises in this appeal under similar standards. With respect to the admissibility of evidence,

"'[i]t is frequently stated that the issue of whether a particular item of evidence should be admitted or excluded is committed to the considerable and sound discretion of the trial court....'" State v. Simms, 420 Md. 705, 724 (2011) (quoting Ruffin Hotel Corp. of Md., Inc. v. Gasper, 418 Md. 594, 619 (2011)). Furthermore, "'[b]road discretion is vested in the trial court with regard to expert testimony, and that discretion will not be disturbed on appeal absent an error of law or fact, a serious mistake, or clear abuse of discretion.'" Johnson & Higgins of Penn., Inc. v. Hale Shipping Corp., [121 Md. App. 426, 444 (1998)]....

Gross v. State, 229 Md. App. 24, 32 (2016).

Similarly, we will "review a trial court's allowance of allegedly improper remarks by a prosecutor [during closing arguments] under an abuse of discretion standard." Pietruszewski v. State, 245 Md. App. 292, 318, cert. denied, 471 Md. 127 (2020). "What exceeds the limits of permissible comment or argument by counsel depends on the facts of each case, and we shall not disturb a trial court's judgment absent a clear abuse of discretion by the trial court of a character likely to have injured the complaining party." Mines v. State, 208 Md. App. 280, 304 (2012) (internal citations omitted).

1. Lay Opinion Testimony

At trial, Det. Deasel testified, over objection, that when he saw appellant walk away holding "[h]is front waistband area" he thought "[t]hat he was possibly armed." There was no eyewitness testimony that appellant was in possession of a weapon; hence, Det. Deasel's testimony was the crux of the State's case as to his possession of the firearm.

Appellant asserts that the court abused its discretion in permitting Det. Deasel to offer expert testimony, although he was not offered by the State, or qualified by the court, as an expert. The State responds that Det. Deasel's testimony about his observations ofappellant and his conclusion about possible possession of a weapon was properly admitted as lay opinion.

In describing his first observation of appellant, Det. Deasel told the jury that, as appellant turned to walk away from the officers, he started holding "[h]is front waistband area." Det. Deasel also explained to the jury, in response to questions concerning to his training with respect to armed persons, that he "had an academy class for characteristics of an armed person[,]" which is "training specific to individuals carrying firearms illegally." (Emphasis added). When asked if he knew "the characteristics of an armed person[,]" Det. Deasel responded that the things to look for are "[s]ecurity checks, blading the body away, as well as bulges, weighted objects, weighted pockets of clothing." Without objection, Det. Deasel testified that, as a police officer, he had experience in arresting people for possession of a handgun. Finally, when asked what he thought when he saw appellant "walking away" and "holding his front waist[,]" Det. Deasel stated, "[t]hat [appellant] was possibly armed."

Appellant argues that the collective effect of Det. Deasel's testimony was the erroneous admission of lay opinion.³

The admissibility of lay opinion is governed by Maryland Rule 5-701,⁴ opinion testimony by lay witnesses, which provides:

If the witness is not testifying as an expert, the witness's testimony in the form of opinions or inferences is limited to those to opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue.

Rule 5-701 was interpreted and applied under a similar context by the Court of Appeals in Ragland v. State, 385 Md. 706 (2005). Therein, the Court held that "Rules 5-701 and 5-702 prohibit the admission as 'lay opinion' of testimony based upon specialized knowledge, skill, experience, training or education." Id. at 725 (footnote omitted). In Ragland, the Court quoted with approval the holding of the Supreme Court of Colorado in its application of a nearly identical local law governing admission of lay opinion testimony to the testimony of police officers, providing that: "where an officer's testimony is based 'not only on [his] perceptions and observations of the crime scene but also on [his] specialized training or education, [he] must be properly qualified as an expert before offering testimony that amounts to expert testimony.'" Id. (quoting People v. Stewart, 55 P.3d 107, 124 (Colo. 2002)). From that, appellant argues:

Like the officers in Ragland who had training and experience in drug-crime investigations and who applied that experience to form an opinion about their observations, [Det.] Deasel had taken a police-academy class on the body language of "individuals carrying firearms illegally," and when he saw [appellant's] body language, he used this training and experience to form the opinion that [appellant] was potentially armed....

The State applies a different interpretation to the effect of Det. Deasel's testimony, suggesting that:

The only testimony relevant to Detective Deasel's opinion about whether [appellant] was armed was that [appellant] was holding "[h]is front waistband area[,]" Detective Deasel had taken an academy class that taught him characteristics of an armed person included "[s]ecurity checks, blading the body away, as well as bulges, weighted objects, [and] weighted pockets of clothing[,]" and that when [appellant] walked away holding his waistband it led Detective Deasel to believe he was "possibly armed."

The State further opines that the class taken by Det. Deasel at the police academy was "not enough to render his opinion that [appellant] was 'possibly armed' expert testimony." That assertion by the State is mere speculation, for the record is devoid of any evidence about "the class" taken by Det. Deasel.

Although the court sustained defense objections to several questions asked of Det. Deasel by the prosecutor, we assume because he had not been offered as an expert, defense objections to several other questions were overruled. In those instances, however, Det. Deasel answered that he "had an academy class for characteristics of an armed person[,]" which was "training specific to individuals carrying firearms illegally." We conclude that Det. Deasel's opinion that appellant was "possibly armed" was based on his observations that were honed by his specialized training and education and, on this record, was inadmissible lay opinion.

As Judge Moylan recently recognized when summarizing Ragland's clarification of opinion testimony in Mack v. State, 244 Md. App. 549, 563 (2020):

Two types of opinion rendering[] ... necessarily contemplate the satisfying of two modes of qualification. To qualify, via personal perception, to render a lay opinion does not exempt one from having to qualify,

...