Merkel v. State

GEORGE MERKEL v. STATE OF MARYLAND

No. 690

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2018

May 9, 2019

Circuit Court for Prince George's County

Case No. CT170241X

UNREPORTED

Arthur, Leahy, Beachley, JJ.

Opinion by Leahy, 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.

While on patrol in Prince George's County, Officer George Merkel attempted to rouse an elderly, homeless woman, Ruth Woldeab, who was sleeping at the entrance of a pawn shop. After Woldeab failed to respond to his verbal commands, he picked her up by her ears until she was standing. When she turned to walk away, Merkel slapped her face. Two other officers at the scene reported Merkel's conduct to their common supervisor. Merkel was subsequently indicted for second-degree assault and misconduct in office.

After a two-day bench trial, the court found Merkel guilty of both charges. Merkel filed a timely appeal to this Court, presenting one question for our review:

"Was the evidence sufficient to support the verdicts of guilty as to second[-] degree assault and misconduct in office?"

We affirm the ruling of the circuit court. Viewing the evidence in the light most favorable to the State, a rational trier of fact could have found beyond a reasonable doubt that Merkel used force greater than that reasonably necessary to fulfill his duties, constituting the essential elements of both second-degree assault and official misconduct.

BACKGROUND

During a two-day trial, which took place on November 13 and 14, 2017, three witnesses testified for the State: Officers Tawnya Ramirez and Noel Andres, who observed the incident, and William Gleason, an expert in use of force and Acting Commander of the Advance Officer Training Section of the Prince George's County Police Department. Merkel testified in his own defense, and four character witnesses testified on his behalf: longtime friends Tim Jumbulick and Christopher Grimes, and two colleagues from thepolice department, Jaron Black and John Decker. The following facts are derived from the testimony and other evidence presented at trial.

In the early morning hours of September 22, 2016, Merkel, on patrol in Lanham, Maryland, stopped near a 7-Eleven where homeless people were known to sleep and panhandle. Merkel observed Woldeab, a 5'5", thin, elderly, and homeless woman, sleeping on the doorstep of a closed pawn shop.

Merkel called in a "Signal 7 stop" on his radio, notifying other officers that he intended to question a citizen. Merkel approached Woldeab, woke her up, and repeatedly asked her to leave. Woldeab sat up and seemed distant. With a blank stare she repeated the last word of sentences Merkel spoke to her; when he said "let's go," she repeated "go?" and when he said "it's time for you to leave," she replied "leave?"

Andres was in an adjacent plaza for a premises check when he heard Merkel's call. He quickly joined Merkel. Ramirez, also on patrol that evening, heard Merkel's call and joined Andres and Merkel about two minutes later. By the time Ramirez arrived, Merkel was screaming at Woldeab to get out of town as she sat cross-legged on the ground. Merkel put on his gloves. Andres, expecting to assist, began to put on gloves. Merkel then grabbed Woldeab by her ears and pulled her up, off the ground, into a standing position. Merkel continued to yell at Woldeab and then struck her face.

Then, Woldeab screamed "[y]ou hit me[.]" Merkel replied "[y]es, ma'am, it's time for you to go." Woldeab replied "I need my shoes." When she moved to get her shoes, Merkel got in her way. She tried to walk around Merkel, and then Merkel kicked over her Popeye's soda cup. Woldeab then walked toward the beltway, and Merkel drove off.Andres and Ramirez discussed what to do about the incident with fellow officers, and decided to report the incident to their supervisor that same night. Merkel was ultimately charged with second-degree assault and misconduct in office.

Officers' Testimony

At trial, Ramirez testified that Merkel "grabbed the victim by both of her ears and pulled her off the ground." To her knowledge, Merkel had not engaged the pressure point behind the ears that police officers are trained to use in certain situations. Ramirez characterized Merkel's ear-grab as "[l]ike a mom picking up her child by the ears[.]" Once Woldeab was standing, Merkel "yelled at her to get out of his fucking town." Then, "he smacked her across the head with an open hand."

Merkel's slap was "[h]ard enough to make [Woldeab] move," after which Woldeab "stumbled to the side" and "screamed . . . '[y]ou hit me on the small of my head. You're supposed to be the police." Ramirez stated that Merkel asked Woldeab to start walking toward the beltway, but instead of following his direction, Woldeab asked if she could get her drink. When "she went down to reach for it, [] Merkel kicked it away from her hand." At that point, Woldeab left. Throughout the entire encounter, Merkel repeatedly screamed "get the fuck out of my town." Ramirez described Woldeab as "[d]istant" throughout the encounter, and that she "didn't seem like she was really comprehending anything."

Andres similarly described Woldeab as "kind of disoriented, kind of looking around as if she didn't understand what was going on[,]" and that he did not think she was "aware of what was going on." He testified that Merkel, in a "[h]igh pitch tone, [and in a] little angry, agitated" voice, told Woldeab to "get the fuck out of my town." He "grabbed[Woldeab] by the ears" and "[k]ind of pulled her off the ground," causing Woldeab to "scream and yell." Then, Merkel "let go of her ears and [Woldeab] was . . . trying to walk away. That's when [Merkel] proceeded to smack her in the face." When Merkel "smack[ed] her with his right hand on the right side of her face," Woldeab "grabbed the right side of her face[.]" Only about a minute passed between the ear-pulling and the smack. Andres also clarified that he did not observe Merkel engaging the pressure point behind Woldeab's ears the way that police officers are trained to do in certain situations.

Andres recalled that after the smack, Woldeab "tried to get her slippers that were nearby," but "Merkel got in her face." When Woldeab "tried to walk around [Merkel] and grab the slippers[,]" Merkel kicked over Woldeab's Popeye's soda cup. Andres could not remember whether Woldeab was able to retrieve her slippers.

Andres testified that after the incident, he was "kind of in shock of what went on." After he left the scene, he pulled up next to Ramirez's cruiser. Then, he and Ramirez "met up with a few other squad mates to discuss the issue[.]" They "discussed what had happened" with their squad mates, and then informed their supervisor.

Gleason, the State's use-of-force expert, testified that officers are permitted to "use a respectful and necessary amount of force to achieve a lawful objective," and that there are four circumstances in which an officer can use force: (1) "to protect themselves or others from assault," (2) "to prevent escape," (3) "to effectuate a legal arrest," and (4) "to overcome resistance to a lawful order." The fourth circumstance can involve two types of resistors: passive and active. An active resistor is someone making "physically evasive movements to defeat the officer's attempt at control, such as bracing, tensing, pullingaway[,] or also verbally manifesting their intent to resist[.]" A passive resistor is someone "nonresponsive to verbal direction." Gleason characterized Woldeab as a passive resistor.

Gleason described a "5-level" continuum of force taught during officer training, which "help[s] officers understand different force options available to them, given certain levels of resistance." Force level one involves no force, and is for individuals who are "cooperative and compliant[.]" Level two is for individuals who are "passive" or "nonresponsive," for whom officers are trained to "continue[] verbal direction" and then to use "escort technique," such as "[j]ust grabbing somebody by the arm and lifting them up and moving them in the direction that you need them to move." Force levels three through five are for occasions of "active resistance," in response to which officers may "use intermediate personal weapons strikes . . . takedowns, pressure points, things like that." Gleason explained that officers are trained to conduct "flesh grab[s,]" which consist of "grabbing nerve endings just to get a response to [] distract that person[,]" only in instances of active resistance. He characterized slaps as "a stun and distraction technique [to] assist [] an officer in overcoming" active resistance.

Gleason agreed during cross-examination that some force was necessary to move Woldeab, but clarified on redirect that a "flesh grab" is not an appropriate technique to apply to a passive resistor. He testified further that officers are not taught to slap the faces of individuals who are passively resisting, nor to slap to "get a person's attention," nor to slap as an "escort tactic."

After Gleason's testimony, Merkel moved for acquittal on both counts, which the court denied.

Defense's Case

Merkel testified in his own defense. He recounted asking Woldeab to leave the premises, and her responding with a "blank, hollow stare." When she remained unresponsive, he raised his voice, and started to shout "get the fuck out of my town." When Woldeab still did not move, he "attempted to escort her[,]" "pick[ing] her up using a mandibular angle lift" by placing his hands "up under her jaw and . . . up on the side of her head[.]" He then then gave her a "[t]ap on the cheek[.]" Merkel demonstrated the tap for the court, describing it as "kind of gentl[e] on the side of [Woldeab's] cheek." He claimed the purpose of the strike was "[t]o attempt to...