Titus v. State

32 A.3d 44, 423 Md. 548, 2011 Md. LEXIS 681
Court of Appeals of Maryland·Decided November 29, 2011·No. No. 6·Published·Cited by 23 cases

Opinion

GREENE, J.

On May 1, 2009, Petitioner, Gerald Thomas Titus, Jr., was convicted by a jury in the Circuit Court for Carroll County of obstructing and hindering, driving under the influence of alcohol per se, driving while impaired by alcohol, and giving a false or fictitious name to a uniformed police officer.1 On appeal to the Court of Special Appeals, Petitioner challenged the sufficiency of the evidence to sustain his conviction for obstructing and hindering, as well as the legality of the sentence he received for his conviction of driving under the influence of alcohol per se. In an unreported opinion, the Court of Special Appeals affirmed Petitioner’s conviction and sentence. We granted certiorari to answer the following question:

Was the evidence that Petitioner gave a false name to a police officer during a traffic stop sufficient to convict him of obstructing or hindering a police officer in the performance of his duty?

We answer this question in the negative. In cases involving the common law offense of obstructing and hindering a police officer in the performance of his duty, Maryland courts have adopted a four-part test requiring proof beyond a reasonable doubt of the following elements: (1) a police officer engaged in the performance of a duty; (2) an act, or perhaps an omission, by the accused which obstructs or hinders the officer in the performance of that duty; (3) knowledge by the accused of facts comprising element (1); and (4) intent to obstruct or hinder the officer by the act or omission constituting element [553] (2). Cover v. State, 297 Md. 398, 413, 466 A.2d 1276, 1284 (1983). For the reasons discussed below, we shall hold that the evidence presented by the State at trial with regard to the charge of obstructing and hindering was insufficient to prove the necessary elements beyond a reasonable doubt. Petitioner’s conviction for this offense is, therefore, reversed.

FACTUAL AND PROCEDURAL BACKGROUND

On July 9, 2008, Corporal Mario Devivio (Devivio), of the Carroll County Sheriffs Department, was on routine patrol at approximately 10:45 p.m. when he observed the operators of two motorcycles traveling parallel with each other in the southbound lane on Littlestown Pike. Devivio was traveling behind the motorcycles and observed one of them cross the double yellow line by five feet numerous times. Devivio then proceeded to perform a traffic stop of the operator of that motorcycle.

After Devivio initiated the traffic stop, he ran the vehicle information and found that it was registered to Gerald Thomas Titus, Jr. Devivio approached the driver of the motorcycle, who he identified at trial as Petitioner. When Devivio informed Petitioner of the purpose of the stop and requested his license and registration, Petitioner handed Devivio a Florida driver’s license with Petitioner’s picture and the name Frederick John Karr, Jr.2 Although the record is not entirely clear on this issue, at some point during the evening of the traffic stop, Devivio discovered that Gerald Titus’s license was suspended and revoked in the state of Maryland, according to MVA records. Upon being questioned by Devivio, Petitioner indicated that “Gerald Titus was his roommate, and he was borrowing the motorcycle.” Not long after the traffic stop was initiated, Devivio “detected a strong odor of an alcoholic beverage emitting from [Petitioner’s] breath, or person” and observed that Petitioner had “bloodshot, glassy eyes.” Devi[554] vio questioned Petitioner about his activities that evening, and Petitioner indicated that he was coming from an Inn and that he had consumed two beers. At Devivio’s request, Petitioner agreed to perform Standardized Field Sobriety Testing. Devivio testified that he asked Petitioner whether he had any past injuries or other problems that would prevent or hinder him from performing the tests, and Petitioner indicated that he did not. On cross-examination, however, Devivio admitted that Petitioner had mentioned having “bad ankles.”

Devivio testified that he first administered the horizontal gaze nystagmus test by explaining it to Petitioner and then having him perform the test. At the conclusion of the first test, Devivio testified that Petitioner “indicated six out of six clues,” which was an indicator that Petitioner was “under the influence of an alcohol, drug, or prescription drug.” The next test administered by Devivio was the walk and turn test. Before the test had begun and while Devivio was explaining how to perform it, Petitioner “stepped off fine, [and] raised his arms for balance.” During the test, Petitioner raised his arms for balance, missed one of the initial steps, took too many steps on his approach back, and failed to count his steps out loud. Finally, Devivio administered the one-leg stand test. Petitioner attempted to begin the test before being instructed to do so, and while performing the test Petitioner initially failed to raise his foot high enough and put his foot down several times during the test. As a result of Petitioner’s performance on the tests, Devivio placed Petitioner under arrest.

Devivio transported Petitioner to the Carroll County Sheriffs Office Detention Center and read to him an advisement of rights form, explaining to Petitioner his “rights prior to tak[ing] ... a breath test.” Petitioner agreed to take a breath test and signed the name “Frederick Karr” on the form. Corporal Jesse Clagett (Clagett), an intoximeter operator employed by the Westminster City Police, testified that he was working on the night of Petitioner’s arrest. While being questioned on direct examination regarding the function of an intoximeter, Clagett agreed that it was used to determine [555] “how much alcohol a person has in his system[.]” Clagett identified Petitioner at trial as the person to whom he administered a breath test on the evening of July 9, 2008. Pursuant to department procedures, Clagett checked Petitioner’s mouth to “make sure there [were] no contaminants,” and he located a dime that had been concealed in Petitioner’s mouth. Clagett then instructed Petitioner to spit out the coin, and Clagett began the twenty-minute observation period over again before administering the test. Clagett explained the test to Petitioner before obtaining two samples from him, the results of which were .09 grams of alcohol per 210 liters of breath, which is above “the legal limit for DUI” in Maryland. The name at the top of the notification of the test results, which was admitted into evidence at trial, is “John Karr Frederick, Jr.,” and Clagett testified that he witnessed Petitioner sign the bottom of the notification form.

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Titus v. State, 32 A.3d 44, 423 Md. 548, 2011 Md. LEXIS 681 (Md. 2011).

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