Rodgers v. State

1

De'Shon Rodgers v. State of Maryland

No. 1601-2019

Court of Special Appeals of Maryland

November 14, 2022

Circuit Court for Baltimore County Case No. C-03-CR-19-000076

Leahy Shaw, Salmon, James P. (Senior Judge, Specially Assigned) JJ.

OPINION ^[*]

Leahy J.

This case returns to us on remand from the Court of Appeals for reconsideration of our holding in Rodgers v. State, No. 1601, slip op. (filed Aug. 2, 2021) (Rodgers I) in light of the Court's decision in Lopez-Villa v. State, 478 Md. 1 (2022), filed shortly after our decision in Rodgers I. Specifically, the Court of Appeals has directed that we "consider whether or not the holding in [Lopez-Villa] should be applied" to our holding in Rodgers I concerning whether the trial court erred by not asking requested voir dire questions now required under Kazadi v. State, 467 Md. 1 (2020). Additionally, we have been ordered to address the remaining two issues raised on brief in Rodgers I that we did not address because we reversed on the voir dire issue. Specifically, we must consider whether the Circuit Court for Baltimore County erred or abused its discretion in: (1) permitting a helicopter pilot present at the scene of appellant's arrest to offer opinion testimony as to his observations of aerial video, and (2) limiting the scope of the defense's cross-examination of one of the arresting officers, Alexander Pearson.

For the reasons that follow, we hold that Lopez-Villa applies and is dispositive of appellant, De'Shon Rodgers', first claim of error. Indeed, Lopez-Villa compels the conclusion that Mr. Rodgers did not preserve for our review the question of whether the trial court erred in failing to ask requested voir dire questions pursuant to Kazadi. Moreover, because we perceive no error or abuse of discretion on the part of the circuit court with respect to Mr. Rodgers' second and third claims of error, we affirm the judgments of the circuit court.

BACKGROUND

Mr Rodgers was charged with several criminal offenses in a nine-count indictment. The State elected to enter a nolle prosequi on six of the nine counts: (1) second-degree assault, (2) wearing, carrying, and transporting a handgun in a vehicle, (3) possession of a loaded handgun in a vehicle, (4) wearing, carrying, and transporting a handgun on the person, (5) possession of a loaded handgun on the person, and (6) illegal possession of ammunition. For the remaining counts-first-degree assault, use of a firearm in the commission of a crime of violence, and illegal possession of a weapon with a prior felony conviction-Mr. Rodgers was tried over four days between August 12 and 16, 2019, before a jury in the Circuit Court for Baltimore County. Rodgers I, No. 1601, slip op. at 1 (filed Aug. 2, 2021). Following jury selection proceedings, which we discuss later in this opinion, the State called seven witnesses to testify. Mr. Rodgers did not call any witnesses. The following account is derived from the evidence adduced at trial, viewed in the light most favorable to the State. Molina v. State, 244 Md.App. 67, 87 (2019).

On the night of February 3, 2019, Azaria Griffin called 911 from her father's apartment to report that her ex-boyfriend, Mr. Rodgers, "pulled out a gun on me" during an argument that had taken place earlier that evening while she and Mr. Rodgers were sitting in Ms. Griffin's vehicle.^[1] She described the gun as "silver" and "black" in color..

Ms. Griffin was in the driver's seat when the couple had the argument somewhere near the Owings Mills Metro Station. She drove the car to her parents' home, and then left the car to go inside and call 911. Around five to ten minutes later, Baltimore County Police arrived at the apartment complex in Windsor Mill, Maryland. Mr. Rodgers had left the vehicle by the time the police arrived. Officer Jordan Babischkin, first on the scene, recorded Ms. Griffin's description of her assailant and put out a "BOLO" (short for "be on the lookout" for) on the suspect. He also requested aviation support, and then Officer Brian Carver, who piloted a helicopter from Martin State Airport, arrived at the scene roughly fifteen minutes later.

Officer Carver testified at trial that, once on the scene, he was able to observe "a person running from the apartment out to a vehicle" later identified as a Black Jeep. That information was relayed to Officer Alexander Pearson on the ground, who initiated a traffic stop of the Jeep on Lord Baltimore Drive. At that point, the "suspect jumped out of the passenger side and started running through the woods." Officer Carver, observing this from the helicopter, "followed him through the woods towards Derbyshire Circle" and saw the suspect run "between these cars, and we thought he fell down at the time, then he continued to run through this area back around the other side of Derbyshire."

Officer Carver followed the suspect as he "continued across the street through this split right here, climbed the fence, and he came around to 7220 Oak Haven and went inside the apartments there." From there, Officer Pearson arrived at the apartment building along with Officer Thorne Allen. Officer Pearson "entered after Officer Allen as he was giving the suspect commands to get on the ground." Officer Allen then placed the suspect, later identified at trial by Officer Pearson as Mr. Rodgers, under arrest. No handgun was recovered from the person of Mr. Rodgers upon his arrest.

After Officer Carver returned to Martin State Airport, he reviewed the aerial footage of the pursuit. According to Officer Carver, he "viewed the footage, and where we thought he fell down, we looked at it closer, officer and I both looked at it at the same time . . . I looked at the scene at that time and slowed it down, and it actually looked like he climbed under the car and threw something under the car." That information was relayed to Officer Matthew Lundquist, who returned to the scene to search for the gun. Once there, Officer Lundquist "noticed this silver object laying in a parking spot." He then exited his vehicle, found the firearm on the ground, and bagged it as evidence.

Conviction and Appeal

The jury found Mr. Rodgers guilty of first-degree assault, use of a firearm in the commission of a crime of violence, and illegal possession of a firearm with a prior disqualifying conviction. On October 22, 2019, Mr. Rodgers was sentenced to seventeen years in prison: twelve years for first-degree assault; and two five-year sentences, to be served concurrently, for the remaining firearms convictions. That same day, Mr. Rodgers filed a timely notice of appeal. Rodgers I, slip op. at 2. On November 13, 2020, we ordered a stay of the appeal, on our own initiative, because the Court of Appeals granted certiorari in State v. Ablonczy, 474 Md. 149 (2021), and the outcome of that appeal could control our decision. Rodgers I, slip op. at 5. On June 23, 2021, the Court of Appeals issued its decision in Ablonczy and we thereafter removed the stay on June 30, 2021. Id. In light of the Court's holding in Ablonczy, we reversed Mr. Rodgers' convictions in an unreported opinion filed August 2, 2021.

In our opinion, we explained that in Kazadi, the Court of Appeals adopted a new standard requiring trial courts, when requested by the defendant, "to ask voir dire questions concerning fundamental rights," specifically, the presumption of innocence, the State's burden of proof, and Appellant's right not to testify. Id. at 8, 9. Although the opinion in Kazadi was rendered during the pendency of Mr. Rodgers' appeal, we noted that the Kazadi Court intended its decision to have retroactive application to "any other cases that are pending on direct appeal when this opinion is filed, where the relevant question has been preserved for appellate review." Id. at 8 (quoting Kazadi v. State, 467 Md. 1,47 (2020)) (emphasis in original). We concluded that Mr. Rodgers' appeal fit within those parameters.

First, we noted that Mr. Rodgers' counsel had requested that the circuit court ask two Kazadi-type questions during voir dire concerning his fundamental rights as a defendant:

[T]he first question requested was:

Question 18. In a criminal case like this one, each side will present arguments about the evidence, but the State has the only burden of proof. The Defendant need not testify in his own behalf or present any evidence at all. Would you tend to believe or disbelieve the testimony of a witness called by the defense more than the testimony of a prosecution witness? Would you hold it against the Defendant if he chose not to testify and present any evidence[?]

The second question [] presented to the judge was:

I would request that you ask the jury, you must presume the Defendant innocent of the charges now and throughout this trial unless and until after you've seen and heard all of the evidence and the State convinces you of the Defendant's guilt beyond a reasonable doubt. If you do not consider the Defendant innocent now or if you're not sure that you're require the State to convince you of the Defendant's guilt beyond a reasonable doubt, please stand.

Id. at 8-9. Although the trial judge "affirmatively consented to asking a 'modification' of 'Question 18,'" neither question was ultimately asked. Id. at 9.

Because the circuit court was, under Kazadi, required to ask these requested questions, we observed that the determinative issue was whether the court's failure to ask the questions was preserved for appeal. Id. at 9-10. Although Mr. Rodgers' counsel had failed "to make an objection, or, more appropriately, remind the judge at the conclusion of jury selection that the judge failed the ask the question that he had agreed to ask," we concluded that he had nonetheless preserved the...