Richard Pinheiro, v. State of Maryland
No. 3009, September Term 2018
IN THE COURT OF SPECIAL APPEALS OF MARYLAND
Filed: March 2, 2020
Opinion by Reed, J.
Argued: November 7, 2019; Circuit Court for Baltimore City, Case No. 118023003; Kehoe, Reed, Salmon, James P. (Senior Judge, Specially Assigned), JJ.
The issue before this Court calls into question the sufficiency of evidence following Appellant‘s bench trial, which we will review on both the law and the evidence, and we will not set aside the judgment of the trial court on the evidence unless clearly erroneous.
CRIMINAL LAW > REVIEW > PRESUMPTIONS > FACTS OR PROCEEDINGS NOT SHOWN BY RECORD > SUFFICIENCY OF EVIDENCE > CONSTRUCTION OF EVIDENCE > CONSTRUCTION IN FAVOR OF GOVERNMENT, STATE, OR PROSECUTION
CRIMINAL LAW > REVIEW > VERDICTS > CONCLUSIVENESS OF VERDICT > WEIGHT OF EVIDENCE IN GENERAL > REASONABLE DOUBT
The test for sufficiency of evidence asks whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
CRIMINAL LAW > REVIEW > QUESTION OF FACT > PRESUMPTIONS > REASONABLE INFERENCE
We will give deference to all reasonable inferences that the fact-finder draws, regardless of whether the appellate court would have chosen a different reasonable inference.
STATUTES > CONSTRUCTION > IN GENERAL > PURPOSE > POLICY BEHIND OR SUPPORTING STATUTE
STATUTES > CONSTRUCTION > PARTICULAR ELEMENTS OF LANGUAGE > ABSENT TERMS; SILENCE; OMISSIONS
STATUTES > CONSTRUCTION > STATUTE AS A WHOLE; RELATION OF PARTS TO WHOLE AND TO ONE ANOTHER > CONTEXT
CRIMINAL LAW > NATURE AND ELEMENTS OF CRIME > CRIMINAL INTENT AND MALICE > IN GENERAL
The term “specific intent” designates some specific mental element or intended purpose above and beyond the mental state required for the mere actus reus of the crime itself.
CRIMINAL LAW > EVIDENCE > PRESUMPTIONS AND INFERENCES > INTENT OR MENS REA
Because specific intent is a subjective concept and, without the cooperation of the accused, cannot be directly and objectively proven, its presence must be shown by established facts which permit a proper inference of its existence.
CRIMINAL LAW > EVIDENCE > PRESUMPTIONS AND INFERENCES > PRESUMPTIONS > INTENT
This Court allows an inference that one intends the natural and probable consequences of his act.
STATUTES > CONSTRUCTION > CLARITY AND AMBIGUITY; MULTIPLE MEANINGS > ABSENCE OF AMBIGUITY; APPLICATION OF CLEAR OR UNAMBIGUOUS STATUTE OR LANGUAGE > GIVING EFFECT TO STATUTE OR LANGUAGE; CONSTRUCTION AS WRITTEN
If the statutory language is unambiguous and clearly consistent with the statute‘s apparent purpose, we apply the statute as written.
STATUTES > CONSTRUCTION > CLARITY AND AMBIGUITY; MULTIPLE MEANINGS > ABSENCE OF AMBIGUITY; APPLICATION OF CLEAR OR UNAMBIGUOUS STATUTE OR LANGUAGE > PLAIN LANGUAGE; PLAIN, ORDINARY, COMMON, OR LITERAL MEANING
STATUTES > CONSTRUCTION > PARTICULAR ELEMENTS OF LANGUAGE > DEPARTING FROM OR VARYING LANGUAGE OF STATUTE
STATUTES > CONSTRUCTION STATUTE AS A WHOLE; RELATION OF PARTS TO WHOLE AND TO ONE ANOTHER > CONFLICT
STATUTES > CONSTRUCTION > PRESUMPTIONS AND INFERENCES AS TO CONSTRUCTION > STATUTE AS A WHOLE; RELATION OF PARTS TO WHOLE AND TO ONE ANOTHER > GIVING EFFECT TO ENTIRE STATUTE AND ITS PARTS; HARMONY AND SUPERFLUOUSNESS
We must view the plain language within the context of the statutory scheme to which it belongs, considering the purpose, aim, or policy of the Legislature in enacting the statute. We presume that the Legislature intends its enactments to operate together as a consistent and harmonious body of law, and, thus, we seek to reconcile and harmonize the parts of a statute, to the extent possible consistent with the statute‘s object and scope.
STATUTES > CONSTRUCTION > CLARITY AND AMBIGUITY; MULTIPLE MEANINGS > RESOLUTION OF AMBIGUITY; CONSTRUCTION OF UNCLEAR OR AMBIGUOUS STATUTE OR LANGUAGE > PURPOSE AND INTENT; DETERMINATION THEREOF
STATUTES > CONSTRUCTION > EXTRINSIC AIDS TO CONSTRUCTION > IN GENERAL
STATUTES > CONSTRUCTION > LEGISLATIVE HISTORY > PLAIN, LITERAL, OR CLEAR MEANING; AMBIGUITY
If the statutory language remains ambiguous, only then will we resolve the ambiguity by considering the history of the legislation or other relevant sources intrinsic and extrinsic to the legislative process.
PUBLIC EMPLOYMENT > CRIMINAL RESPONSIBILITY > OFFENSES > IN GENERAL
Maryland courts have long recognized the common law misdemeanor offense of misconduct in office, which is defined as corrupt behavior by a public officer in the exercise of the duties of his or her office or while acting under color of his or her office.
PUBLIC EMPLOYMENT > CRIMINAL RESPONSIBILITY > OFFENSES > IN GENERAL
PUBLIC EMPLOYMENT > CRIMINAL RESPONSIBILITY > OFFENSES > IN GENERAL
Nonfeasance is the omission of an act which a person ought to do.
PUBLIC EMPLOYMENT > CRIMINAL RESPONSIBILITY > OFFENSES > IN GENERAL
Misfeasance is the improper doing of an act which a person might lawfully do.
PUBLIC EMPLOYMENT > CRIMINAL RESPONSIBILITY > OFFENSES > IN GENERAL
Malfeasance is the doing of an act which a person ought not to do at all.
PUBLIC EMPLOYMENT > CRIMINAL RESPONSIBILITY > OFFENSES > IN GENERAL
A public officer commits malfeasance by corruptly exceeding the scope of his or her authority and commits misfeasance by acting within the scope of his or her authority but doing so corruptly.
PUBLIC EMPLOYMENT > CRIMINAL RESPONSIBILITY > EVIDENCE > WEIGHT AND SUFFICIENCY
The measure of what constitutes official misconduct is an imbricating continuum of proof and conduct that toes the sometimes murky line between what is and what isn‘t within an officer‘s scope of authority, falls within the overlay on this continuum.
PUBLIC EMPLOYMENT > CRIMINAL RESPONSIBILITY > OFFENSES > IN GENERAL
The State is only required to prove that the public officer acted willfully, fraudulently, or corruptly to sustain a conviction for misconduct in office, regardless of whether the official misconduct charge is based on an act of misfeasance or malfeasance.
CRIMINAL LAW > REVIEW > VERDICTS > CONCLUSIVENESS OF VERDICT > WEIGHT OF EVIDENCE IN GENERAL > WEIGHING EVIDENCE
To determine whether the State satisfied its burden, we will not reweigh the evidence; rather, we ask if the direct or circumstantial evidence at trial could have persuaded a rational trial judge to conclude” that Appellant was guilty of the underlining offense.
IN THE COURT OF SPECIAL APPEALS OF MARYLAND
No. 3009
September Term, 2018
RICHARD PINHEIRO
v.
STATE OF MARYLAND
Kehoe, Reed, Salmon, James P. (Senior Judge, Specially Assigned), JJ.
Opinion by Reed, J.
Filed: March 2, 2020
- Was the evidence before the trial judge sufficient to support Appellant‘s conviction for fabricating evidence and misconduct in office?
For the following reasons, we hold that the evidence was sufficient and affirm the trial court‘s ruling.
On January 24, 2017, Appellant was part of a district drug unit conducting surveillance in Southwest Baltimore City, Maryland. In the course of the investigation, a covert officer observed several suspected narcotics transactions in an alley under surveillance. Based on the observation of the covert officer, Appellant and another unit officer stopped and briefly detained a suspected buyer. Acting on the information obtained from the brief detention, officers found narcotics in the center console of the buyer‘s vehicle. The officers were then directed to search for additional narcotics in the alley where the covert officer initially observed the alleged transactions.
Upon searching the alley, the officers’ body worn cameras2 (BWC) were in activation mode.3 Hidden in the alley, officers found a knotted bag containing twenty-two
A man was subsequently charged with possessing the drugs Appellant had found in the alleyway. The Assistant State‘s Attorney (ASA) assigned to prosecute the case received the BWC footage for review and learned that the video appeared to portray Appellant staging the evidence. When the ASA contacted Appellant for an explanation, he admitted that he arranged the drugs and reenacted the recovery because “they ding us for holidays if we forget to turn our [BWC footage] on.” Appellant testified similarly at trial that he created the video to avoid “any kind of repercussions” or “actions from the agency for failure to turn on the camera.” Appellant also admitted to another ASA in an unrelated trial that he staged a “‘do-over‘...because he didn‘t want to lose days” for failing to activate his BWC.
Following a two-day bench trial before the Circuit Court for Baltimore City, Appellant was found guilty of fabricating physical evidence in violation of
The issue before this Court calls into question the sufficiency of evidence following Appellant‘s bench trial, which we will review “on both the law and the evidence, and [we] will not set aside the judgment of the trial court on the evidence unless clearly erroneous.” Jones v. State, 178 Md. App. 454, 476 (2008); see Smith v. State, 415 Md. 174, 184–85 (2010). The test for sufficiency of evidence asks whether “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Titus v. State, 423 Md. 548, 557 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We will give “deference to all reasonable inferences [that] the fact-finder draws, regardless of whether [the appellate court] would have chosen a different reasonable inference.” Moody v. State, 209 Md. App. 366, 387 (2013) (quoting Robinson v. State, 209 Md. App. 174, 196 (2012)) (internal quotation marks omitted).
DISCUSSION
A. Parties’ Contentions
Appellant contends that the evidence at trial was insufficient to support his conviction for fabricating evidence and misconduct in office. In doing so, Appellant first disputes each element of the criminal statute serving as the basis of his convictions. Appellant argues that (1) the BWC footage does not constitute physical evidence; (2) the evidence at trial was insufficient to conclude he intended to impact the verity of the BWC footage; (3) the evidence at trial was insufficient to conclude he acted with the intent to
Appellant also disputes the validity of his conviction under the common law crime of misconduct in office. He argues that the evidence at trial could not have supported the finding that he committed malfeasance because the act of recording a “reenactment” is not in and of itself wrongful. In response to these contentions, the State retorts that the trial court‘s verdict—that Appellant violated
B. Analysis
1. Fabrication of Physical Evidence
The statute serving as the basis of Appellant‘s conviction provides, “A person may not fabricate physical evidence in order to impair the verity of the physical evidence with the intent to deceive and that the fabricated physical evidence be introduced in a pending or future official proceeding.”
i. Physical evidence under § 9-307(b)
Appellant argues that, absent instructive language from the legislature or case law, a digital recording does not constitute physical evidence under
To ascertain whether the legislature intended for physical evidence under
We are also guided by the context of the statutory scheme in which
In further support of its position, the State underscores the Supreme Court‘s distinction between testimonial and “real or physical evidence” in the Fifth Amendment context, particularly when assessing the nature of the evidence. See Schmerber v. California, 384 U.S 757, 764 (1966); McAvoy v. State, 314 Md. 509, 518 (1989). It is true
ii. Intent to impair the verity of the physical evidence
Appellant contends that the video was a truthful reenactment of the manner of the search and location of the narcotics, and the evidence at trial was insufficient to conclude he intended to impair the verity of the BWC footage. Appellant argues without any evidence that the initial off-camera search “differed in any legally significant way” from
To satisfy the requisite intent under
In the instant case, the evidence at trial was sufficient to conclude that Appellant specifically intended to stage the contents of the BWC footage in order to deceive any subsequent viewer of the video‘s authenticity. At trial, the State presented evidence that all Baltimore City police officers receive training on BWC policy, including when and when not to record. Such policy is provided for in Baltimore City Police Department
When a member does not activate the camera as the subsequent [sic] directs either because of danger, because one of the above exceptions applied, because the camera was inoperable or because [of] the member‘s mistake the member must record that reason why the camera was not activated either on camera or in writing at the earliest time practicable.7
Moreover, Lieutenant Rosenblatt, a supervisor and instructor with the Educational Training Division for the Baltimore City Police Department, testified that he instructed the BWC training session that Appellant attended in August of 2016. Lieutenant Rosenblatt similarly testified that the officers are taught during the mandatory training on the BWC that if the camera is not activated for any reason when it should be active, the officer must document the failure. Lieutenant Rosenblatt explained that the officer can either “look into the camera and explain what happened[, ]...author an administrative report[, ] or put it into the incident report” detailing the encounter, “but it needs to be documented in some way.”
The inferences drawn from the BWC footage admitted at trial further support the conclusion that Appellant intended to impair the verity of the BWC footage. Unbeknownst to Appellant at the time, the buffering footage captured Appellant holding a plastic bag full of white objects, later identified as gel capsules of heroin; entering the alley; placing the bag inside of a can among a pile of trash; then exiting the alley. Once the heroin is in place and he is properly positioned, Appellant activated the BWC and is heard saying, “I‘m going to check here,” creating the impression that he had entered the alley for the first time. Making matters more conspicuous, another officer can be heard laughing in the background of the video as Appellant pretended to search through the trash for the first time. Seconds later, Appellant picked up the can and pulled out the bag of heroin. He is heard to say, “yo,” then displayed the narcotics in front of the camera, to mislead any subsequent viewer into believing that he had seized the drugs for the first time. His statements and actions taken together support the reasonable conclusion that Appellant had the specific intent to impair the verity of the BWC footage.
Furthermore, any inference drawn from his actions is made more compelling considering his trial testimony that he created the video to avoid “any kind of repercussions” or “actions from the agency for failure to turn on the camera.” The ASA assigned to prosecute the man charged with possessing the drugs shed further light onto Appellant‘s motive. The ASA testified that after he confronted Appellant that the BWC footage looked as if Appellant planted evidence or tried to reenact it, Appellant admitted,
To address Appellant‘s contention that the BWC footage was substantively consistent with the initial off-camera recovery of narcotics, we refer back to his testimony at trial. Although he contends his “reenactment” efforts were intended to document where he had found the drugs, Appellant concedes that it would have been “impossible” to place the drugs back exactly where he initially found them. Furthermore, the time stamp on the video created an affirmatively misleading record of when he supposedly found the drugs. We emphasize, as did the trial judge, while Appellant‘s failure to activate his BWC was “simply [a] violation of General Order 824[,]” his decision to create the “video knowing that it did not honestly represent” what he purported it to be, constituted a fabrication of evidence with the intent to deceive. Hence, the evidence before the trial judge was sufficient to conclude Appellant impaired the verity of the BWC footage with the intent to deceive.
iii. Intent to deceive and that the physical evidence be introduced in pending or future official proceeding
At trial, Appellant testified that his intent in creating the BWC footage was “[t]o document where the evidence was and how [he] found it and to prevent...any kind of action
To determine whether the legislature intended for the State to prove the defendant had a general intent to deceive or a specific intent to deceive a tribunal, we begin our analysis by reviewing the plain meaning of the statutory text. See State v. Bey, 452 Md. 255, 265 (2017) (citing Johnson, 415 Md. at 421–22). If the statutory language is “unambiguous and clearly consistent with the statute‘s apparent purpose...we apply the statute as written.” Bey, 452 Md. at 265. “We neither add nor delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute, and we do not construe a statute with forced or subtle interpretations that limit or extend its application.” Id. (internal citations and marks omitted). However, we must view the plain language:
within the context of the statutory scheme to which it belongs, considering the purpose, aim, or policy of the Legislature in enacting the statute. We presume that the Legislature intends its enactments to operate together as a consistent and harmonious body of law, and, thus, we seek to reconcile and
harmonize the parts of a statute, to the extent possible consistent with the statute‘s object and scope.
Id. at 266. If the statutory language remains ambiguous, only then will we resolve the ambiguity by considering “the history of the legislation or other relevant sources intrinsic and extrinsic to the legislative process.” Id.
The plain language of
The trial court drew inferences from Appellant‘s (1) creation of the video to give the impression that his BWC was initially active; (2) failure to document that the video was a reenactment; and (3) submission of the video, knowing it did not authentically represent what he purported it to be. Furthermore, he understood that by uploading the BWC footage to evidence.com, an ASA would receive and review the video. Appellant testified at trial that he knew “any information [he] had about how the evidence [had been] recovered [was] important” to the future criminal prosecution of the man charged and that “the evidence [would] be used to sustain a conviction against” the defendant. He also acknowledged an understanding that if convicted, the man could face jail time. Only after
2. Misconduct in Office
We now turn to Appellant‘s second contention, which is whether the evidence before the trial court was sufficient to convict Appellant of misconduct in office. Appellant argues if his actions do not constitute a fabrication of physical evidence for the reasons argued above, his action cannot constitute misconduct in office. He further avers that his failure to act in accordance with the BWC policy of General Order 824 does not support a finding that he committed malfeasance in office, and the act of recording a reenactment is not in and of itself a wrongful act. The State rebuts, arguing that the malfeasance occurred when Appellant created the misleading video and submitted it without any indication that it did not honestly represent what he purported it to be.
To determine whether the evidence before the trial judge was sufficient, we must first establish whether the State proved the necessary elements of the offense. See Sewell v. State, 239 Md. App. 571, 601 (2018); Leopold v. State, 216 Md. App. 586, 604 (2014). Maryland courts have long recognized the common law misdemeanor offense of misconduct in office, which is defined as “corrupt behavior by a public officer in the exercise of the duties of his [or her] office or while acting under color of his or her office.” Sewell, 239 Md. App. at 601 (quoting Leopold, 216 Md. App. at 604) (internal marks
“‘Nonfeasance is the omission of an act which a person ought to do; misfeasance is the improper doing of an act which a person might lawfully do; and malfeasance is the doing of an act which a person ought not to do at all.‘” [State v. Carter, 200 Md. 255, 262 (1952)] (quoting Bell v. Josselyn, 69 Mass. 309, 311 (1855)). By way of example, a public officer tasked with awarding government contracts can commit malfeasance by rewarding a political donor with a public contract that the officer had no authority to grant and may commit misfeasance by rewarding the donor with a contract that is within the officer‘s authority to grant. [Rollin M. Perkins & Roland N. Boyce, Criminal Law 543, 545 (3d ed. 1982)]. Accordingly, a public officer commits malfeasance by corruptly exceeding the scope of his or her authority and commits misfeasance by acting within the scope of his or her authority but doing so corruptly. Compare Piper v. Pearson, 68 Mass. 120, 123 (1854) (holding that a magistrate was liable for finding the plaintiff in contempt in an action over which the magistrate had no authority to preside) with People v. Norton, 7 Barb. 477, 478, 480-81 (N.Y. App. Div. 1849) (explaining that, although the law may grant an officer “discretionary jurisdiction” to grant liquor licenses, that discretion cannot be “willfully abused[,]” and the officer may not grant or refuse to grant a license based on “corrupt and improper motives“).
This Court further noted in Sewell that “the measure of what constitutes official misconduct is an imbricating continuum of proof” and “[c]onduct that toes the sometimes murky line between what is and what isn‘t within an officer‘s scope of authority, falls within the overlay on this continuum.” Id. at 605. Distinguishing between what conduct constitutes malfeasance or misfeasance is not always evident. See id. at 605. Hence, we have held that the State is only required to prove “that the public officer acted ‘willfully, fraudulently, or corruptly’ ” to sustain a conviction for misconduct in office, regardless of
To determine whether the State satisfied its burden, we will not reweigh the evidence; rather, we ask if the “direct or circumstantial” evidence at trial could have “persuaded a rational [trial judge] to conclude” that Appellant was guilty of the underlying offense. See Id. at 607. At trial, the State presented sufficient evidence to establish that Appellant: (1) staged the BWC footage to appear as if the video depicted the first time he entered the alley; (2) submitted the BWC footage without any documentation that the video was a recreation and knowing it did not authentically represent what he purported it to be; (3) knew it would be used at a future trial against a defendant to sustain a conviction; and (4) admitted that reenacting exactly when and where he recovered the CDS on BWC would be impossible. Moreover, he did not dispute that he was acting in his official capacity.
CONCLUSION
Accordingly, we find that the trial court did not err in finding Appellant guilty of fabricating evidence under
JUDGMENTS OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
Notes
- Did the Trial Court err in finding that the body worn camera video created by the Appellant constitutes “physical evidence?”
- Did the Trial Court err in finding that the Appellant acted with the intent to “impair the verity” of the body worn camera video?
- Did the Trial Court err in finding that the Appellant acted with an “intent to deceive” a tribunal when he created the body worn camera video?
- Did the Trial Court err in finding that the Appellant created the body worn camera video with the intent that it be “introduced in a pending or future official proceeding?”
- Did the Trial Court err in finding that Appellant‘s actions constituted malfeasance, to wit, doing something unlawful or wrong in its own right?
This definition is quoted from the BWC policy published on January 1, 2018. This version was not available at any time relevant to the facts of this case.Audio and/or video recording equipment that is affixed to an officer‘s person, uniform, or equipment, with the capability of capturing, recording, and storing information for later viewing.
Deactivation is defined as:Pressing the “event” button twice to begin recording audio and video with the BWC.
These definitions are quoted from the BWC policy published on January 1, 2018. This version was not available at any time relevant to the facts of this case.Pressing and holding the “event” button for approx. four seconds to cease audio and video recording. Upon deactivation, the BWC will enter Buffering Mode.
This definition is quoted from the BWC policy published on January 1, 2018. This version was not available at any time relevant to the facts of this case.When Powered On, but not activated, the BWC captures video but not audio. The video is not stored in permanent memory until BWC activation. Once Activated, the BWC will permanently store video captured 30 seconds prior to the BWC Activation, and all audio and video captured until Deactivation.
When a member does not activate the camera as this subsection directs, either because of danger, because one of the above exceptions apply, because the camera was inoperable, or because of the member‘s mistake, the member must record the reason why the camera was not activated, either on camera or in writing, at the earliest time practicable.