Smith v. State

GARY L. SMITH, v. STATE OF MARYLAND

No. 1704

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2017

December 19, 2018

Circuit Court for Washington County

Case No. 21-K-16-52080

UNREPORTED

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

Opinion by Shaw Geter, 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.

This appeal arises from the conviction of Appellant, Gary Smith, in the Circuit Court for Washington County for (1) driving while impaired by a controlled dangerous substance and (2) driving while impaired by drugs or drugs and alcohol. Prior to trial, Smith moved to suppress all evidence obtained after his seizure, which he argued, was unlawful. The motion was denied.

At the close of the State's case, Smith moved unsuccessfully for acquittal based on insufficiency of evidence. Smith argued the State failed to present any evidence that methadone caused his impairment. Smith brings this timely appeal and presents the following questions for our review:

1. Did the court err in denying Smith's motion to suppress?

2. Did the court err in denying Smith's motion for acquittal?

For the reasons set forth below, we shall affirm the circuit court.

BACKGROUND

A. Smith's visit to Wayne's Country Store.

On January 31, 2015, at approximately 7:00 p.m., Smith parked his vehicle at a gas pump located at Wayne's Country Store in Hagerstown, Maryland. Smith entered the store and purchased snacks and a drink. While inside, he conversed with the store attendant about the store's slow business and how he was tired. He told the attendant "he had worked all day, was really tired, [and] stopped for a snack before going home[.]" During his conversation with the attendant, he did not seem to be impaired. After the short exchange, Smith left the store and returned to his vehicle.

Approximately five minutes later, the attendant noticed Smith's vehicle still parked in front of the gas pump with Smith inside and the engine running. Over the next twenty minutes, the attendant observed Smith sit motionless in the running vehicle. The attendant, concerned for Smith's well-being, called the police.

B. Events leading to Smith's arrest and the ruling of the suppression hearing.¹

Shortly after the attendant's call to police, around 7:35 p.m., Officer Blackmire of the Hagerstown Police Department, along with a recruit participating in a "ride along," arrived at Wayne's Country Store. The officer approached Smith's vehicle in a marked police cruiser, with emergency flashers on, and parked about ten feet behind Smith's vehicle. After seeing that Smith's vehicle was running, the officer exited her cruiser, walked to the vehicle's driver's side door, and saw Smith sleeping upright in the driver's seat with a brown substance, later determined to be a melted Reese's candy bar, smeared on a large portion of his face.

Blackmire requested backup and, soon thereafter, Officer Cox arrived at the scene and parked his marked police cruiser in front of Smith's vehicle, opposite the other cruiser.² Cox took a "cover position" six or seven feet behind Blackmire, "keeping check of [Smith's] hands, making sure he didn't get offensive." Blackmire repeatedly knocked on Smith's window and asked whether he was "okay." After about two minutes of knocking,Smith awoke and made eye contact with Blackmire. She immediately saw Smith's pupils were extremely constricted, at which point she believed Smith could be under the influence of a drug.³

When he awoke, Blackmire asked Smith whether he was "okay."⁴ Smith responded, "he had been working" and was waiting before going to his girlfriend's house. Smith then turned off his vehicle only to immediately restart the vehicle. He was asked twice to turn the vehicle off. The officers then requested Smith roll down his window and supply his license and registration. Smith attempted to speak through the window prompting Blackmire to again ask Smith to roll down his window, but "it took him a few seconds to . . . process to roll the window down." After rolling his window down, Smith "stumbled" through his glove compartment to retrieve his registration. He attempted to hand over his registration, but he dropped it between his seat and the driver's side door. He opened his driver's side door to retrieve it and gave it to the officers. Smith was unable to produce his license.

During the interaction, Blackmire noted Smith's speech was slurred and that he struggled to communicate. She further observed that Smith's movements were lethargic and delayed. Neither officer saw any indication (e.g. alcoholic container, odor, or smoke) of alcohol consumption or marijuana use.

Believing Smith may be impaired, the officers directed Smith to exit the vehicle for the administration of field sobriety tests. When exiting his vehicle, Smith slid out of the seat while holding onto the vehicle's door to steady himself.⁵ Once out of the vehicle, he appeared unsteady on his feet. Accordingly, he was asked to sit on the front bumper of his vehicle. There, Smith was administered a horizontal gaze nystagmus ("HGN") test,⁶ which he performed twice. During the test, Smith's pupils were extremely constricted and he exhibited resting nystagmus.⁷ Smith was unable to successfully perform the "one leg stand" test.⁸ Upon being requested, Smith refused to perform the "walk and turn test," stating that he was unable to perform such a test because of a previous injury to his right foot. At the conclusion of the field sobriety tests, Smith was arrested and transported tothe Hagerstown Police Department. At all times prior to the arrest, Smith cooperated with the officers.

After the parties presented their evidence, the suppression court made the following ruling:

Based upon the totality of the circumstances adduced here, and while I appreciate the fact that there is a police community caretaking function involved, I think that the State's position that [Smith] had at that point in time committed a traffic offense because it's clear the vehicle was running so he was attempting to operate a motor vehicle at a time when he was . . . unable to produce a license. So under the circumstances, I believe that [Blackmire's] actions were appropriate, that the initial stop, initial—I don't want to say stop, the initial accosting was built upon information [Blackmire] had received and as [Blackmire] continued to speak with [Smith], it went through reasonable articulable suspicion all the way to probable cause. And as a result, [Smith] was arrested at that time. The motion to suppress is denied.

C. Events after Smith's arrest and evidence presented at trial.

Once at the Hagerstown Police Department, Smith was tested for the presence of alcohol in his system. The results indicated Smith had no alcohol in his system. However, Smith still seemed groggy and his speech was slow. At one point, while an officer advised him of his rights, he fell asleep in a chair.

While speaking with an officer, Smith admitted he had taken seventy-five milligrams of methadone at 6:00 a.m. the day of his arrest. An officer requested Smith take a blood test at a local medical center, but he declined.

At trial, Dr. Lawrence Guzzardi, a medical doctor retained as an expert witness by the defense, testified that Smith had advised him of a prior injury where he had broken multiple bones in his right foot, which resulted in his inability to walk in a straight line or balance properly. Additionally, Smith had ruptured two discs in his back. Due to painrelated to these injuries, Smith had at some point been prescribed ten milligrams of methadone to be taken four times a day. Smith did not inform Dr. Guzzardi when he was prescribed the methadone or if he had taken methadone in the amount prescribed on the day of his arrest. Dr. Guzzardi testified Smith was 6'3'' tall and weighed 250 pounds, and that it was "conceivable" Smith could have since been prescribed a higher dosage.

By agreement of the parties, the court instructed the jury that methadone is a controlled dangerous substance.

DISCUSSION

I. Whether the suppression court erred in denying Smith's motion to suppress.

When determining whether a motion to suppress was correctly denied, we review the facts adduced at the suppression hearing that are most favorable to the State as the prevailing party. Sutton v. State, 128 Md. App. 308, 313 (1999). We look to the record of the suppression hearing, not the record of the trial itself. Id. "In considering that evidence, great deference is extended to the fact-finding of the suppression hearing judge with respect to weighing credibility and determining first-level facts." Id. Where there exists conflicting evidence, we will accept the facts found by the hearing judge, unless clearly erroneous. Id. However, we review de novo the suppression court's ultimate conclusion, "mak[ing] our own independent constitutional appraisal by reviewing the law and applying it to the facts of the case." Reynolds v. State, 130 Md. App. 304, 313 (1999).

"The Fourth Amendment to the United States Constitution, which is applied to the states through the Due Process Clause of the Fourteenth Amendment, protects against unreasonable searches and seizures." Barnes v. State, 437 Md. 375, 390 (2014). "Inassessing whether a search or seizure was reasonable, 'the touchstone of our analysis under the Fourth Amendment is always the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.'" Wilson v. State, 409 Md. 415, 427 (2009) (quoting Pennsylvania v. Mimms, 434 U.S. 106, 108-109 (1977)). Reasonableness "depends on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers." Id. (internal quotations...