Olopade v. State

OLUSOGA OLUMIDE OLOPADE v. STATE OF MARYLAND

No. 651-2021

Court of Special Appeals of Maryland

April 18, 2022

Circuit Court for Anne Arundel County Case No C-02-CR-20-001518

Wells C.J., Reed, Zarnoch, Robert A. (Senior Judge, Specially Assigned), JJ.

OPINION ^[*]

Zarnoch, J.

A jury sitting in the Circuit Court for Anne Arundel County found appellant, Olusoga Olumide Olopade, guilty of driving under the influence of alcohol per se, driving under the influence of alcohol, and driving while impaired by alcohol. After appellant declined probation before judgment, the court sentenced him to 90 days' incarceration, suspended, followed by 18 months' probation. He then noted an appeal, raising eight issues, which we have rephrased for brevity:

1. Whether appellant's due process rights were violated because a police officer perjured himself in his trial testimony;

2. Whether the prosecutor withheld exculpatory evidence from the defense, in violation of Brady v. Maryland, 373 U.S. 83 (1963), and its progeny;

3. Whether the arresting police officer illegally searched appellant, in violation of the Fourth Amendment;

4. Whether the circuit court erred in admitting the DR-15 Advice of Rights form "that failed to advise the defendant of his rights and the Intoxilyzer result which did not comply with statutory protocols";

5. Whether trial counsel rendered ineffective assistance, in violation of the Sixth Amendment;

6. Whether the circuit court erred in excluding an affidavit offered by the defense;

7. Whether the circuit court erred in holding trial while failing to "consider sudden medical emergency and unintended medication interaction defenses that were generated in [appellant's] testimony"; and

8. Whether the circuit court gave erroneous instructions to the jury. Finding no error (and, in several instances, lack of preservation), we affirm.

BACKGROUND

On February 4, 2020, at about 1:47 a.m., Detective Cory Heathcote of the Anne Arundel County Police Department was on "routine patrol" in the Laurel section of Anne Arundel County when he "observed a vehicle stopped" in the exit lane from eastbound Laurel Fort Meade Road (Maryland Route 198) to southbound Brock Bridge Road. Its lights were off, its engine was off, and there was no indication, such as the use of four-way flashers, that the vehicle was disabled. Detective Heathcote "pulled behind the vehicle" and waited "approximately a minute[.]" Because the "vehicle did not move," nor did its lights or flashers come on, Detective Heathcote "approached the vehicle and spoke with" its driver.

Appellant, "the driver and sole occupant of" the vehicle, was awake at the time of Detective Heathcote's initial encounter with him. Appellant explained to the detective that his vehicle was disabled. As appellant spoke, Detective Heathcote noticed a "very strong" odor of "an alcoholic beverage coming from [appellant's] breath." Appellant's speech was "slurred," and he had a red "wet stain on the front of his shirt." In response to Detective Heathcote's query, "Have you drank?," appellant replied that "he had about two hours prior to his vehicle becoming disabled." When asked what he had drunk, appellant stated that "he drank from the bottle" but did not further elaborate.

Detective Heathcote called for backup. When another police officer arrived at the scene, Detective Heathcote asked appellant to step out of his vehicle. Appellant complied with that request but with difficulty. According to Detective Heathcote, appellant had "to use the doorframe of the vehicle to assist himself in getting out of the vehicle[, ]" and when he walked, he had "a difficult time maintaining his balance[.]"

Detective Heathcote then administered field sobriety tests to appellant.^[1] Prior to administering the walk-and-turn test, Detective Heathcote asked appellant whether he suffered from any health conditions that might negatively affect his ability to perform the test. Appellant replied that he had high blood pressure as well as "a medical condition with his hands[.]"

When appellant took the walk-and-turn test, he was unable to complete it because, after taking several steps, ^[2] he became "unstable, to the point where he almost fell[, ]" and police officers "ended the test" because of concern for his safety. "At that point[, ]" which was 2:11 a.m., Detective Heathcote placed appellant under arrest and transported him to a nearby police station "to be processed and booked."

After arriving at the police station, Detective Heathcote handed appellant a DR-15 (Advice of Rights) form. The detective read the form "in its entirety" to appellant, and afterward, both the detective and appellant signed it.^[3] Then, Detective Heathcote obtained appellant's consent to take a breath test, and Corporal Cody Rhodes, who was trained to administer such tests, was summoned to do so. While appellant was waiting for the breath test to be administered, Detective Heathcote kept him under observation to ensure that he did not eat, drink, smoke, or put anything in his mouth, so that the test would be reliable. The test indicated that appellant's blood alcohol concentration was 0.23 per cent, nearly three times the statutory limit.^[4]

Appellant was charged, in the District Court of Maryland for Anne Arundel County, with stopping, standing, or parking a vehicle in an intersection; failure to display a driver's license on demand; failure to display a vehicle registration on demand; negligent driving; reckless driving; driving while under the influence of alcohol; driving while under the influence of alcohol per se; driving while impaired by alcohol; and dumping refuse on a highway.^[5] He prayed for a jury trial, and the case was transferred to the Circuit Court for Anne Arundel County.

The case proceeded to a jury trial. After jury selection but prior to opening argument, the State entered nolle prosequi to all charges except stopping, standing, or parking a vehicle in an intersection; driving while under the influence of alcohol; driving while under the influence of alcohol per se; and driving while impaired by alcohol.

After the State's case (which we have summarized above) concluded, appellant testified on his own behalf. Appellant previously had been a law professor in Nigeria but after emigrating to the United States, he found difficulty obtaining suitable employment. At the time of trial, he worked as an interpreter. In his version of events, appellant suffered from various illnesses, and, as a result, he asked his sister in Nigeria to send him an herbal remedy, which was described as a "tincture" containing "many things[, ]" such as leaves, tree bark, and various herbs. Because he felt ill the night of February 3rd, appellant drank the tincture and then left his residence to get something to eat. He claimed that his car cut out on the trip home, and it drifted to a stop in the exit lane from Route 198 to Brock Bridge Road, just a few minutes from his residence. The basis of his defense was that he did not knowingly drink an alcoholic beverage on the night in question.

The jury found appellant guilty of driving while under the influence of alcohol, driving while under the influence of alcohol per se, and driving while impaired by alcohol, and it acquitted him of stopping, standing, or parking in an intersection. After appellant rejected probation before judgment, the court sentenced him to 90 days' incarceration, all suspended, and 18 months' supervised probation. This timely appeal followed. Additional facts will be set forth where pertinent to the discussion of the issues.

DISCUSSION

Standard of Review

"Ordinarily the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court[.]" Md. Rule 8-131(a). We review a circuit court's legal determinations without deference. See, e.g., Parker v State, 408 Md. 428, 437 (2009). We review a circuit court's discretionary rulings for abuse of discretion, which occurs "where no reasonable person would take the view adopted by the trial court, or when the court acts without reference to guiding rules or principles." State v. Robertson, 463 Md. 342, 364 (2019) (citation and quotation marks omitted) (cleaned up). "In a criminal case tried before a jury, a fundamental principle is that the credibility of a witness and the weight to be accorded the witness' testimony are solely within the province of the jury." Hunter v. State, 397 Md. 580, 588 (2007) (citations and quotation marks omitted).

I.

Appellant contends that Detective Heathcote perjured himself during the State's case-in-chief, thereby violating his right to due process. This claim is meritless.

The gravamen of this claim is a purported discrepancy between Detective Heathcote's statement of probable cause and his testimony at trial that appellant had drunk an alcoholic beverage. In the statement of probable cause, Detective Heathcote wrote that appellant "would not state what he drank, only replying 'From the bottle', but he would not elaborate on this." At trial, on direct examination the prosecutor asked Detective Heathcote whether he had "any further conversation" with appellant during the traffic stop, and the detective replied, "I just recall [appellant] stating that his vehicle was disabled. And then I also asked if he had consumed any alcoholic beverages, and he said he had about two hours prior to his vehicle becoming disabled." The defense objected, but the court overruled that objection, and the prosecutor then asked a clarifying question, "Did [appellant] indicate what he drank?" Detective Heathcote replied, "He only told me that he drank from the bottle." Subsequently, during cross-examination, counsel...