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Taurrance Richardson v. Horace McGriff No. 142, Sept. Term, 1999 (1) In action based on excessive force used by police officer, reasonableness of the force used must be judged from perspective of reasonable officer on the scene facing the circumstances presented at the time the force was used; jury not permitted to second-guess reasonableness of antecedent conduct remote from the confrontation. Batson challenge waived unless made before jury is sworn.

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Circuit Court for Baltimore City Case #97010042/CL222114 IN THE COURT OF APPEALS OF MARYLAND

No. 142 September Term, 1999 ______________________________________

TAURRANCE RICHARDSON

v.

HORACE MCGRIFF ______________________________________ Bell, C.J. Eldridge *Rodowsky Raker Wilner Cathell Harrell, JJ. ______________________________________ Opinion by Wilner, J. Eldridge and Harrell, JJ., concur in part and dissent in part; Bell, C.J., dissents ______________________________________ Filed: November 15, 2000 *Rodowsky, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion.

On the evening of January 12, 1996, petitioner and six of his friends broke into a vacant apartment at the Middle Branch Apartment development in Baltimore City and had a party. Someone reported the intrusion to the police, as a result of which Officers McGriff and Catterton responded. They entered the then-darkened apartment and began to search it. We shall describe the ensuing events in greater detail below, but suffice it to say here that petitioner hid in a kitchen closet, that he refused to come out when the police announced their presence and called upon him to do so, that he was holding a vacuum cleaner pipe in his hand, that it was extremely dark in the kitchen, that when Officer Catterton quickly opened the closet and Officer McGriff shined his flashlight inside, McGriff saw what appeared to him to be a man holding a large weapon and lowering it into firing position, and that, in self-defense, he fired at petitioner and severely wounded him. Petitioner sued Officers McGriff and Catterton, the City of Baltimore, the State of Maryland, and the Police Commissioner of Baltimore in the Circuit Court for Baltimore City, alleging the violation of his rights under Articles 24 and 26 of the Maryland Declaration of Rights and several common law torts. After a winnowing both before and during trial, with which we are no longer concerned, the claims against Officer McGriff for battery, gross negligence, and violation of rights under Article 26 were submitted to the jury, which returned a verdict in the officer's favor. Petitioner appealed the judgment entered on those claims, and, in an unreported opinion, the Court of Special Appeals affirmed. We granted certiorari to consider whether (1) the trial court erred in precluding petitioner from introducing evidence of certain Baltimore City police regulations, guidelines, and training procedures pertaining to the use of deadly force, (2) a supplemental instruction to the jury improperly precluded the jury from considering the officer's actions prior to the opening of the closet door, (3) the court erred in denying petitioner the opportunity to examine
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a police sergeant concerning police training and reasonable alternatives to Officer McGriff's actions, and (4) the court erred in failing to sustain petitioner's objection, under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), to the striking of certain African-Americans from the jury. Finding no error, we shall affirm the judgment of the Court of Special Appeals.

BACKGROUND Although the parties disagree on some of the inferences to be drawn from it, most of the evidence presented was not in dispute. We shall recite that evidence as presented and note those few instances where there was a significant dispute. Petitioner and his friends, all of whom lived in the immediate vicinity, gathered in the apartment around 9:00 in the evening. Although petitioner claimed they entered the apartment to get warm -- an objective that could have been achieved had they simply gone to their respective homes -- their apparent purpose was to smoke marijuana which, according to petitioner, all save himself proceeded to do. Petitioner was 20; the two youngest members of the group were 13. The group congregated in the kitchen. After about

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an hour, one of the boys noticed the police outside, and everyone panicked. After turning out the kitchen light, petitioner and three of his friends hid in a folding-door closet, petitioner taking with him a vacuum cleaner pipe with which he had been playing. During his recitation of the event, petitioner never mentioned any shots having been fired from the apartment. McGriff stated that, about 10:00, he received a call for "several males, that's the way I heard it, in a vacant apartment, shots fired."1 He went to the rear of the building and observed "an open, vacant apartment, which was dark and, you know, the door was ajar." He did not enter the building at that point, but instead called for "another unit with a flashlight," and waited for that unit -- Officer Catterton -- to arrive. McGriff explained that he and Catterton were "side partners" who often responded to calls together, backing each other up, and that they had canvassed many vacant apartments together. Catterton confirmed that he and McGriff were familiar with the apartment development and had, on a number of occasions, discovered vacant apartments there that had been broken into. Catterton said that homeless persons often broke into the vacant apartments, and that the usual procedure in investigating apparent break-ins was to enter the apartment, make certain that no one was there, and ensure that the plumbing was intact. Scrappers, he said, would come in and steal the copper pipes. If everything was in order, they would notify the management that the apartment had been broken into and keep an eye on it for a few days. The officers first searched an upper apartment and then turned their attention to Apartment T, at the terrace level. McGriff noticed that the door was ajar and that it had signs of forced entry. He said that,

McGriff admitted that the bulletin may have said "seven" males, but that he heard "several" rather than "seven." Catterton recalled the message as "a group of black male juveniles inside the vacant dwelling discharging firearms. That's exactly how the dispatcher put it to me."
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at first, he and Catterton thought this was an "average" call that was probably false, but nonetheless required investigation. Catterton said, however, that, even in the vestibule, he could smell the odor of marijuana that seemed to be coming from Apartment T, and he suggested to McGriff that that apartment be checked. Catterton added that his intent was not so much to confront armed individuals as to determine whether there were any victims. It had been his experience that "discharging calls are often followed or lead to the discovery of a victim." McGriff said that, upon entering the apartment, he announced their presence.2 Catterton said that the odor of marijuana grew as they entered. He also confirmed that they announced their presence. Hearing no response, they began a systematic, room-to-room search, in Catterton's words, "to ascertain if there was someone secreting themselves or a victim possibly inside of the apartment." Catterton said that, although the apartment was dark, "it wasn't so dark that you couldn't see. There was enough light to navigate by," noting that some street light entered the apartment through the windows. It was stipulated, however, that, at the time of the shooting, the kitchen was "extremely dark." Catterton explained that they did not look for light switches because, in his experience, it was better not to change the environment. The eyes, he said, become accustomed to the dark, but when lights are turned on, "you're blinded temporarily. . . . If it takes two seconds or ten seconds for your eyes to adjust, it's detrimental." At first, McGriff said, they did not even enter the kitchen, but merely "flashlighted" it.3 Seeing nothing, they turned to leave, but Petitioner denied hearing any announcement by the police of their presence or any direction for persons in the apartment to reveal themselves. He also claimed that the apartment door was unlocked when he and his friends entered. Those two matters were in dispute. Officer Catterton testified that the flashlight was an 18,000 candle power halogen flashlight. Officer McGriff agreed that the flashlight was powerful enough to illuminate the kitchen wall from a distance of ten feet.
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then heard a "bump" come from the room. Petitioner confirmed that there was some kind of "boom" before the officers entered the kitchen. Upon hearing the "bump," McGriff and Catterton walked inside the kitchen and noted that there was no place, other than the closet, for a person to hide. McGriff obtained the flashlight from Catterton, who moved out of the line of possible fire and put his hand at the top of where the closet door folded, preparing to pull the door open. McGriff got into a position where he would be able to see into the closet when the door was opened, drew his pistol and aimed it at the center mast of the closet. He then announced: "All right. We're getting ready to open the closet. Police. Come on out." Although petitioner denied hearing any such warning, Catterton confirmed the second warning, recalling that "we again announced our presence and said, `Come out of the closet.'" Hearing no response, Catterton pulled the closet door open, and, according to McGriff, "immediately my flashlight struck the light of the object, which I thought was a barrel of a big weapon. And all I saw was a glimmer, and what I perceived as someone coming towards me, and I fired." He continued, "[a]nd the weapon fell to the ground. I took my right foot and I slid the weapon behind me, and I just stood there covering the closet. I couldn't speak or nothing. I was just -- heart stopped and everything. I was totally afraid." Catterton said that he did not know whether McGriff was the one who was shot -- that he was rigid, his eyes being "as big as paper plates." McGriff added later: "[M]y flashlight immediately silhouetted off of the pipe, and I shot. But at the time I didn't know it was a pipe. It looked, in this position, it looked like somebody was grasping a weapon, and I thought he was getting ready to lower it and fire upon me. And that's when I shot."

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CONSIDERATION OF ANTECEDENT EVENTS The first three issues raised by petitioner may be considered together. As part of his contention that Officer McGriff acted negligently and used unnecessary, unreasonable, and excessive force, petitioner urged that McGriff was remiss in entering the apartment late at night, in the dark, facing the prospect of seven armed men, without additional back-up, and that he was also remiss in not turning on the kitchen light before having Catterton open the closet. In support of those positions, he desired to offer into evidence certain guidelines and regulations of the Baltimore City Police Department and the testimony of Sergeant Laron Wilson, and he objected to a supplemental instruction to the jury directing it not to consider whether McGriff should have called for additional back-up or turned on the kitchen lights. The evidence was excluded and the instruction was given. We shall recite the relevant procedural background with respect to each of those matters, but they all hinge on whether it was appropriate for the jury to be allowed, essentially, to second-guess the decisions by Officers McGriff and Catterton to enter and search the apartment alone and to open the closet door without first turning on the kitchen light. The Batson issue, of course, is entirely separate. To set the stage for the discussion of the first three issues, it is important to keep in mind the context. As to each of the three claims against Officer McGriff -- battery, gross negligence, and violation of rights under Article 26 of the Declaration of Rights -- the common issue was whether Officer McGriff acted reasonably when the closet door was opened and he saw what he regarded as an armed man about to fire on him. There was no dispute that, by shooting petitioner, McGriff intentionally caused a harmful touching and thus a battery. His defense was self-defense -- that the touching was not unlawful -- which brought into issue whether the deadly force was reasonable and used only as a last resort. To prove gross
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negligence, petitioner was required to prove that McGriff's conduct amounted to a reckless and wanton disregard of his rights,4 and to establish a violation of his rights under Article 26 -- the State counterpart of the Fourth Amendment -- petitioner had to show that McGriff did not act with objective reasonableness, from the perspective of a reasonable officer on the scene. Clearly, by shooting petitioner, McGriff effected a "seizure" of him for purposes of Article 26. To make the requisite showings, petitioner wanted to present to the jury and have the jury determine that (1) the entire confrontation could have been avoided if McGriff and Catterton had not entered the apartment in the first place without additional back-up, and (2) McGriff would not have mistaken the unarmed petitioner for an armed person had he turned on the kitchen light before opening the closet. The reasonableness of McGriff's conduct, he contended, had to take into account, and indeed was governed by, this antecedent conduct which, in his view, violated established police procedure. He urges that the evidence sought to be presented established the violation and that the supplemental instruction precluded the jury from considering it.

Police Guidelines and Regulations Officer McGriff filed a motion in limine to exclude "any evidence relating to any alleged violations of police procedure preceding the arrest of Plaintiff," on the grounds that (1) such evidence was not probative on the issue of whether McGriff used unreasonable force, and (2) the evidence in question consisted of police "guidelines," not commands or injunctions, and left a great deal of discretion in the

In light of our conclusion regarding the issue framed, we need not consider whether Officer McGriff would enjoy public official immunity even if the jury had properly found him grossly negligent.
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officer. Essentially, the motion was based on lack of relevance. The documentary evidence sought to be excluded consisted of nine pages of single-spaced guidelines issued by the Baltimore City Police Department on the use of deadly force and 13 pages of single-spaced rules and regulations concerning a wide range of police conduct and behavior. Most of the rules and regulations, which cover the entire gamut of police conduct, from being courteous and fulfilling financial obligations, to saluting superior officers, to refraining from publicly criticizing public officials, to the circumstances when gambling, drinking, and smoking is not permitted, have no discernible relevance to any issue in the case. Even the guidelines on the use of deadly force include standards dealing with matters wholly inapposite to this case -- guidelines on shooting at vehicles, shooting from vehicles, killing dangerous animals, and chasing suspects. The rules and regulations relating to firearms require police officers to be suitably armed when on duty and, although they place conditions on the use of firearms to prevent the escape of felons and prohibit their use to prevent the escape of misdemeanants, they expressly permit officers to use their firearms in selfdefense. The guidelines dealing with deadly force that petitioner particularly stressed provide, in pertinent part, that officers may use deadly force "only as a last resort," that they "should try to avoid putting themselves in a situation where they have no option but to use deadly force," that they should "[t]ry to use other less deadly means," and that they should "[w]ait for [a] sufficient number of officers to handle situation[s] without undue force." Consistent with the rules and regulations, the guidelines expressly allow the use of firearms in self-defense and state that "[t]he attacked officer is the person who has to evaluate the potential seriousness of the attack and determine an appropriate level of response," the only caveat being that "[t]he evaluation and response must be reasonable from the perspective of a reasonable police officer similarly situated."
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McGriff argued that, in the context sought to be used by petitioner, these guidelines and regulations were irrelevant and misleading. He suggested that petitioner wanted the jury to determine that McGriff had violated some of those guidelines but urged that petitioner had offered no evidence that any were, in fact, violated. In that regard, he noted that all of the guidelines cited by petitioner were discretionary "and left to the officers' determination on the scene as the events unfold." McGriff added that "if the plaintiff could come in here and . . . point to a hard and fast rule where you're supposed to do A, and you're not supposed to do B, C, or D, that's one thing. But when he comes in and brings in guidelines, which give a range of things that the police officers are allowed to do . . . this is not a violation of a hard and fast rule." Noting the statement that deadly force should be used only as a last resort, petitioner urged that he be permitted to elicit from McGriff his acceptance of that proposition and "that he doesn't just go in, like a cowboy, and shoot first and ask questions later." There was, of course, no evidence that McGriff did any such thing. Petitioner also said that he wanted to cross-examine McGriff about the admonition to "wait for a sufficient number of officers to handle situations without undue force." At no time during the hearing, however, did petitioner suggest that he was prepared to offer any evidence (1) that additional back-up was immediately available, (2) how much back-up would have been reasonable in light of the officers' previous experience and what they had been told was the situation, (3) whether, given the prospect of there being a victim in the building, it would have been reasonable for the two officers to wait, or (4) how the situation in the kitchen would have played out any differently if additional officers had joined the search of the house. The court granted the motion on relevance grounds, noting that there were no allegations in the complaint that the suit was based on a violation of any police orders, regulations, or guidelines. Petitioner does not really suggest otherwise. None of the actions pled, and certainly none that were
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submitted to the jury, were based on the violation of any orders, regulations, or guidelines. Instead, at least as the argument unfolded in this Court, petitioner was seeking to use this material only as a basis for claiming that Officers McGriff and Catterton should not have entered the apartment in the first place, without some undefined additional back-up, or, once there, they should have turned on the kitchen lights. The excluded evidence was thus relevant, if at all, only in those regards.

Testimony by Sergeant Wilson Sergeant Laron Wilson, Officer McGriff's immediate supervisor on the night of the event, went to the scene upon the report of the shooting. In a pre-trial deposition, he recalled that in a post-event critique that he had with various squad members, not including McGriff, he pointed out that an alternative would have been to secure the scene and wait for additional officers and a canine unit and that "in light of the fact that it came out as seven people inside the apartment and in light of the fact that it came out shots fired, seven against two is not very good odds." When asked about his personal experiences in similar situations, Sergeant Wilson said that "[s]ometimes I've gone forward. It depends on what the specific situation is," adding that "there's no general order that specifically covers this." He continued, in his deposition, that the only relevant general order was that dealing with the use of deadly force and that "Officer McGriff acted in accordance with the general order." Sergeant Wilson's views first surfaced at trial during the testimony of Officer McGriff. Petitioner indicated an intent to ask McGriff on cross-examination whether he agreed with Sergeant Wilson that "odds of seven against two are not good odds." Wilson had not yet testified, and neither his deposition nor any other report of his was in evidence. The court sustained an objection on the ground of hearsay. Wilson
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was later called as a fact witness by McGriff. The substance of his testimony was his observation of McGriff, at the scene, as being shaken, and recounting McGriff's statement to him that McGriff thought the vacuum cleaner pipe was a shotgun and "I thought I was done." Petitioner indicated an intent to crossexamine Sergeant Wilson about the training police officers get with regard to the use of deadly force, and McGriff objected. The court sustained the objection on the dual grounds that such an examination would violate the in limine ruling and that it would exceed the scope of direct examination. Petitioner then asked Wilson whether McGriff's actions were reasonable. In defending against McGriff's objection, petitioner referenced Wilson's deposition testimony that seven against two is not good odds and that an alternative would have been to secure the scene and await additional units. The court sustained the objection on the ground that the inquiry exceeded the scope of direct examination. At the conclusion of the defense case-in-chief, which ended with Sergeant Wilson's brief testimony, petitioner called Wilson as a rebuttal witness and offered to the court that Wilson would testify that police officers are trained to use deadly force only as a last resort and to wait for a sufficient number of officers to handle situations without undue force. He also indicated an intent to question Sergeant Wilson as to whether there were reasonable alternatives "besides entering the building that evening." The court sustained McGriff's objection on the dual grounds that the proffered testimony would violate the in limine ruling and was not proper rebuttal, in that it did not purport or serve to rebut any new matter introduced by the defense. Apart from whether the in limine ruling was correct, which we shall consider below, these evidentiary rulings were valid on the more technical grounds relied upon by the court. Sergeant Wilson's out-of-court statement, recounted in his deposition, that two against seven is not good odds was not in
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evidence when petitioner sought to have McGriff confirm it through cross-examination; petitioner was indirectly offering that out-of-court statement for its truth which, under the hearsay rule, he is not permitted to do. The proposed cross-examination of Sergeant Wilson was properly disallowed because it exceeded the scope of direct examination, and that same inquiry was impermissible on rebuttal because it did not tend or purport to rebut any new matter introduced by McGriff. Those calls were within the discretion accorded to a trial court. Smallwood v. State, 320 Md. 300, 307, 577 A.2d 356, 359 (1990); Huffington v. State, 295 Md. 1, 14, 452 A.2d 1211, 1217 (1982).

The Jury Instruction Without objection, the trial court instructed the jury that an officer may use deadly force when the officer has reason to believe that the person is posing a significant threat of death or serious physical injury to the officer or others and that "[t]he reasonableness or excessiveness of any force is a matter to be determined in light of all of the circumstances as they appeared to the officer at the time." The court added, again without objection, that reasonableness was to be judged on an objective basis -- "whether a reasonable police officer under the same or similar circumstances could have believed that the force used was reasonable." Those instructions essentially parroted the police guidelines particularly desired by petitioner. Without objection, the court then advised that, in making the determination of reasonableness, the jury "must look at this judgment not by way of hindsight, which is always 20/20, but rather under the circumstances as they existed at that moment." When the jury returned with a question whether, in determining the reasonableness of McGriff's actions, it was restricted "to the circumstances surrounding the instant of the shooting" or could consider
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"the general circumstances leading up to the shooting (e.g. calling for back-up, lights)" (emphasis added) the court revisited the question. At that point, counsel for petitioner urged that the jury consider "all circumstances," noting that the jury "may conclude that Officer McGriff should not have entered the apartment building in the first place in light of the fact that he and Officer Catterton were outnumbered and where the severity of the call was at issue." The court rejected that notion and iterated its determination that the jury was not to base its decision on hindsight but on "the situation that confronted the officer at that moment." It continued: "As I said, you don't use hindsight. You don't say, well, if they called for more back-up and waited for more back-up, it might have been different. You don't say, well, if they had put on more light, it might have been different. You don't analyze it that way. You analyze it that here is the situation, that whatever the light was, the light was."

Analysis The principal issue underlying petitioner's complaint about the in limine ruling and the supplemental instruction is whether, in determining the necessity and objective reasonableness of Officer McGriff's conduct when the closet door was opened by Officer Catterton, the jury should have been permitted to consider whether the officers violated any police guidelines or regulations in entering the apartment without additional back-up and in failing to turn on the kitchen lights. The question is thus one of permissible focus: is the jury limited to considering only the circumstances contemporaneous with the "seizure" -- what immediately faced McGriff when the closet was opened -- or was it entitled to consider as well the reasonableness of the officer's antecedent conduct? The touchstone of the analysis is Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865, 104 L.
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Ed. 2d 443 (1989), where the Supreme Court held that an "excessive force" claim against police officers under 42 U.S.C.

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