ESTELA JACOME DE ESPINA, ET AL.
PRINCE GEORGE'S COUNTY, MARYLAND, ET AL.
Kehoe, Berger, Raker, Irma S. (Retired, Specially Assigned), JJ.
This appeal involves litigation arising from the shooting death of Manuel Espina ("Espina") by off-duty Prince George's County police officer Steven Jackson ("Jackson"). The primary issue before us is the extent to which the Local Government Tort Claims Act (the "LGTCA") limits recovery for state constitutional violations.
Following Espina's death, Espina's wife, Estela Concepcion Jacome-Espina ("Estela"),  Espina's son, Manuel de Jesus Espina-Jacome ("Manuel"),  and Espina's estate (collectively, "the Espinas") filed suit against Jackson and Prince George's County ("the county") in the Circuit Court for Prince George's County. After a twenty-three day trial and three days of deliberation, the jury returned a verdict in favor of the Espinas, finding that Jackson violated Espina's rights under Article 24 of the Maryland Declaration of Rights, assaulted and battered Espina, wrongfully caused Espina's death, and violated Manuel's rights under Article 24 of the Maryland Declaration of Rights. The jury found that Jackson acted with actual malice and did not act in self-defense, and awarded damages totaling $11, 505, 000. Applying the Local Government Tort Claims Act ("LGTCA") damage cap, the circuit court reduced the $11, 505, 000 million verdict against Prince George's County to $405, 000. The original verdict against Jackson was not reduced. All parties noted timely appeals.
The Espinas present four issues for our review, which we have rephrased as three issues as follows:
1. Whether the LGTCA damages cap applies to the constitutional claims.
2. Whether the LGTCA damages cap is unconstitutional as applied to the state constitutional claims.
3. Whether the circuit court erred in applying the LGTCA damages cap to reduce the judgment against Prince George's County from $11, 505, 000 to $405, 000.
The county and Jackson present nine issues for our review, which we have rephrased as follows:
1. Whether the circuit court erred in denying the motion to dismiss the unlawful pattern and practice claim.
2. Whether, if the LGTCA damages cap does not apply, the general damages cap found in §11-108 of the Courts and Judicial Proceedings Article should be applied.
3. Whether the circuit court erred by excluding evidence regarding Espina's immigration status and pocket knife.
4. Whether the circuit court erred by admitting evidence of Jackson's involvement in two previous stops of two other individuals.
5. Whether the Article 24 claim should be vacated because the claims of excessive force should have been asserted as an Article 26 claim.
6. Whether there was sufficient evidence to establish malice.
7. Whether the jury's verdict with respect to Manuel's claims is irreconcilably inconsistent.
8. Whether the verdict sheet was incorrect as a matter of law.
9. Whether the damages awarded by the jury were plainly excessive.
For the reasons set forth below, we shall affirm in part and reverse in part the judgment of the Circuit Court for Prince George's County.
FACTUAL AND PROCEDURAL BACKGROUND
On August 16, 2008, Espina and a friend were enjoying a beer outside Espina's Langley Park apartment. Prince George's County police officer Steven Jackson drove by Espina and his friend and observed the men drinking what he believed to be alcoholic beverages in the common area of the apartment complex. Jackson was driving his marked police cruiser and was wearing his Prince George's County police uniform. Jackson worked secondary employment as a security guard at the apartment complex. After driving past the men twice in hopes that the men would disperse after seeing the police cruiser, Jackson parked his cruiser and approached the area where Espina and his friend had been standing. After Espina and his friend had entered the building, Jackson used his master key to enter the locked building. Inside the building, a confrontation ensued between Jackson and Espina. The details of the confrontation were significantly disputed at trial. We first describe the version of events as presented by Jackson. Thereafter, we describe the incident as testified to by the other witnesses.
A. Jackson's version of events.
Jackson testified that he entered the building to investigate possible violations of loitering, trespassing, or open container laws. When he entered the building, Jackson believed that Espina and another man had "taken evasive movements or measures" by going into the building and Jackson felt "outnumbered." Jackson testified that he asked Espina if he had any weapons and to put his hands against the wall. Jackson placed his hands on Espina and then, according to Jackson, Espina elbowed him in the back of his neck. Jackson testified that Espina became anxious and took a combative stance, and that after Espina charged him, Jackson sprayed Espina in the eyes with pepper spray. Jackson explained that he was able to get one handcuff on Espina's left hand but was unable to finish handcuffing him due to Espina's resistance. Jackson testified that he viewed the loose handcuff on Espina's left hand as a deadly weapon.
At some point, Jackson and Espina moved down the stairs to the first floor landing. Jackson testified that as Espina and he were pushing each other, they lost their balance and both fell down the stairs. Jackson further explained that Espina landed face-first on the floor; Jackson landed on top of Espina. Jackson acknowledged that Espina was noticeably bleeding from his face. Jackson testified that he allowed Espina to push himself up. After Espina got up, he charged at Jackson and Jackson began to strike Espina with his baton. According to Jackson, the baton strikes were ineffective, so Jackson placed Espina in an arm lock. Jackson testified that Espina walked with him toward the front door of the building and the struggle continued with pushing and shoving near the mailboxes. While near the front door, Jackson called for backup over his police radio.
Jackson testified that after he finished his call to dispatch, Espina began running downstairs to the lower level. Jackson explained that he grabbed Espina by the shirt and struck him with his baton because he was concerned that Espina might be trying to break into one of the lower level apartments. Espina and Jackson continued fighting into the lower level apartment of Espina's friends, Maria Gamez ("Gamez") and her daughter, Elvia Rivera ("Rivera"). Jackson believed that Espina had forced the apartment door open with the weight of his body. Jackson testified that Espina fell face-first onto the hard floor of Gamez's apartment, but then Espina rolled onto his back and engaged in defensive kicking. Jackson testified that, at that point, he began hitting Espina with his baton with "as much force as [he] could." Jackson further testified that while he was striking Espina, he felt a blunt force from behind him that caused him to fall onto the couch. Jackson did not see who had struck him. Jackson testified that after he got up from the couch, four to five unidentified men came into the apartment, but he did not know where the men came from; they did not appear to have entered through the door. Espina and one other man attempted to grab the baton from his hand. Jackson and the two men engaged in a struggle for the baton.
Thereafter, according to Jackson, the other men engaged in the struggle and a total of five to seven people pushed at him and grabbed for the baton. Jackson testified that the men were pushing him toward the couch and reaching near his waistband and holster. Jackson testified that he begged the people to stop pushing against him, but they continued to push. According to Jackson, Espina reached toward his service weapon and Jackson feared that he might lose his weapon. Jackson removed his weapon from his belt and pointed the gun at the group of people. Jackson testified that, while he was holding the gun at waist level pointing toward the group of men, he asked everyone to get back and warned that he would shoot, but the members of the group continued reaching for his baton and service weapon. Espina was on his feet and moved toward Jackson, with his hands on Jackson's baton. Espina removed his hands from the baton and Jackson believed that Espina was going to take his service weapon. Jackson testified that, in fear for his life, he leaned his upper body backwards and fired his service weapon, striking Espina in the stomach. Jackson testified that Espina was standing when the fatal shot was fired and remained standing immediately after he was shot.
Jackson testified that after the shooting, the group retreated enough so that he was able to leave the apartment. Jackson attempted to put his foot in the door to keep the door open, but someone inside the apartment pushed the door closed. Jackson went outside of the apartment building and radioed that shots had been fired. Additional backup arrived shortly after the call. Jackson testified that he walked into the apartment with one of the arriving officers. At least two other officers arrived as well, although Jackson could not remember exactly when they arrived. The officers observed a man, who later was identified as Manuel, performing CPR on Espina, who was lying on the floor. Jackson testified that he had no recollection of seeing Estela in the apartment after he returned with the other officers, nor did he see the group of men present in the apartment. Jackson asked one of the other officers to arrest Manuel (who was still performing CPR on his father) because he was involved in the previous alleged attack against Jackson. Jackson testified that he planned to resume CPR after Manuel was handcuffed, but the paramedics arrived and began performing CPR on Espina. Manuel was handcuffed and removed from the apartment; he was later charged with second degree assault, second degree assault on a law enforcement officer, and obstruction and hindering. The criminal charges against Manuel were later dismissed.
Jackson testified that he used deadly force because he believed that his life was in danger. Jackson explained that he feared for his life because the group of men had a strategic advantage over him by virtue of their number and position. Jackson denied that he yelled profanity at any time during the altercation.
B. The incident as testified to by other witnesses.
Noe Cordova ("Cordova"), a friend of the Espina family, testified that on the afternoon of August 16, 2008, he was outside of the apartment building with Espina, Estela, Manuel, and Gamez. It was Espina's birthday and Gamez was planning a birthday meal for him in her apartment. After the individuals went into the apartment building, Espina told Cordova that he thought he saw a police officer outside. Espina walked up to the landing and a police officer, who was later identified as Jackson, entered through the door and quickly walked past Cordova. Cordova testified that Jackson had a furious expression on his face and uttered the phrase "mother fucker." According to Cordova, Jackson grabbed Espina, pushed him against the wall, and hit him in the face. Jackson then sprayed Espina with pepper spray. Cordova testified that Espina began to yell, but Jackson kept hitting him and then threw Espina down the stairs. Cordova observed that Espina's face was bleeding and that Jackson continued to strike Espina with the baton. After Espina and Jackson moved to the lower level, Cordova was unable to see the altercation, but Cordova testified that he heard Espina's screams and heard a shot from Gamez's apartment. Cordova saw Jackson come out of the apartment after the shot was fired. He testified that he did not see anyone else come out of the apartment.
Luis Felipe Agustín ("Agustín"), another friend of the Espinas and resident of the apartment complex, testified that he saw a police cruiser parked outside of the apartment when he arrived home from work on the afternoon of August 16, 2008. When he walked up to the door of the apartment, Agustín saw Espina pushed up against the glass door at the entrance to the building. Agustín testified that Espina, whose face was "bathed in blood, " was trying to exit through the door and the officer, who was later identified as Jackson, was striking him with his hands. Agustín testified that Jackson pushed Espina down the stairs to the lower level of the apartment building. Once Jackson and Espina moved to the lower level of the building, Agustín was no longer able to see the altercation. Thereafter, Agustín saw Manuel running out from the adjacent building where he lived. Agustín told Manuel that he needed to see what was going on with his father and the officer. Agustín observed Manuel enter the lower level apartment, where Jackson and Espina continued to struggle, through the kitchen window. Agustín testified that he heard a gunshot approximately ten seconds after Manuel entered the apartment. Agustín then saw Jackson running out of the apartment before other officers began to arrive. Agustín did not see any other men or any other people run out of the apartment building. Agustín testified that did not see Espina hit, kick, or strike Jackson at any point in time.
Elvia Rivera ("Rivera"), a friend of the Espina family, testified that as of August 16, 2008, she lived with her mother, Gamez, in the lower level apartment. Rivera testified that Gamez was preparing a meal for Espina's birthday celebration. Rivera looked through the peephole in her apartment door and observed an officer, who was later identified as Jackson, beating Espina with a baton. The struggle was occurring on the landing near the front door of the apartment building. She described Espina as "very hurt and bloody." According to Rivera, Espina did not resist or fight back and was not hitting or kicking Jackson in any way. Rivera testified that she unlocked and opened her apartment door because she saw her friend getting hurt. Immediately after she opened the door, Rivera saw Espina and Jackson coming down the stairs. Rivera described Espina as "rolling on his back" with Jackson "beating him behind him." Rivera testified that Jackson was yelling the word "fuck" and using a mean and angry tone of voice. She testified that she heard Jackson using the word "fuck" many times.
After Rivera opened the door to the apartment, Jackson and Espina stumbled into her apartment. Rivera testified that Jackson continued to strike Espina, who at this point was "crouched down on the floor, pretty much on his knees." Jackson remained standing. Rivera testified that she heard Espina "moaning a lot." Rivera saw Jackson hitting Espina with the baton, saying "[f]uck, shut the fuck up" in a very mean voice. Rivera testified that she was afraid, so she grabbed Gamez and took her to the bedroom, where Gamez's boyfriend Carlos was also present. After she got her mother into the bedroom, Rivera came back out into the living room and saw Jackson shoot Espina in the stomach. Rivera testified that Jackson was standing when the shot was fired and that Espina was crouched on the floor. Rivera testified that after Jackson shot Espina, she heard Jackson say "fuck" again.
Rivera testified that she did not see Espina touch Jackson's gun or waistband, and that there was not a group of five or six men surrounding Jackson before he shot Espina. Rivera testified that she did not see any other men in the apartment before Espina was shot, other than Carlos, who remained in the bedroom. According to Rivera, Manuel came into the apartment at some point and yelled to Jackson, "Why did you kill my father?" Rivera did not remember exactly when Manuel came into the apartment, but she testified that she did not see Manuel "doing anything against [Jackson]." She testified that she did not see Manuel doing anything with Jackson's baton or gun, nor did Rivera see Jackson fall or be pushed onto a couch.
After Espina was shot, Jackson ran out of the apartment. Rivera testified that Estela came into the apartment and was "screaming, crying, yelling, 'Why, ' you know, 'There's a God and he's up there and he's seen this, and why did you kill my husband?'" Rivera testified that Jackson responded to Estela, saying, "shut the fuck up." She also heard Jackson say "fuck" or "fuck you" using a very angry tone of voice. Rivera called 9-1-1; a recording of her 9-1-1 call was played for the jury and entered into evidence. Rivera identified her own voice on the tape. She also identified a voice on the tape as Jackson's. In the recording, the voice Rivera identified as Jackson's was heard saying, "shut the fuck up" and "fuck you." Rivera identified the voice of Estela, which was heard on the tape screaming in the background. Rivera testified that during the time of the 9-1-1 call, Espina was gagging and looked like he was dying. No one was struggling with the officer. Rivera testified that she was told by the police to leave the apartment; she left and cooperated with officers outside.
Manuel, Espina's son, testified that on August 16, 2008, as he came out of his apartment, a neighbor alerted him that a police officer was beating his father. Manuel testified that he ran to the next-door apartment building in his complex and looked through the glass door; he observed the officer he identified as Jackson "hitting [his] father really hard." Manuel tried to open the door, but it was locked. He testified that, at this point, Espina was limping and bleeding significantly from his face. Initially, Manuel observed Jackson striking Espina with his fists, and later, striking Espina with his baton. Manuel testified that he saw Jackson use the baton to strike Espina's face, back, and leg. Manuel testified that Espina did not fight back. According to Manuel, Jackson struck Espina in the back with the baton, causing him to fall down the stairs to the lower level. Manuel testified that Jackson "continued hitting him until he got to the basement door." In order to get into the apartment where Espina and Jackson continued to struggle, Manuel entered through a kitchen window.
Manuel testified that when he got into the apartment, he yelled at Jackson to stop hitting Espina. Jackson continued to strike Espina, who was on his feet but was bent over. Manuel explained that Jackson repeatedly knocked Espina over and Espina tried to get up, only to be knocked down again. Manuel testified that he did not see Espina roll onto his back and kick Jackson. Jackson repeatedly said "fuck" as he struck Espina. Espina's face was bleeding and his eyes were filling with blood. From Manuel's perspective, Jackson was the only person who had control in the altercation. Manuel testified that the only people in the apartment were Espina, Jackson, Gamez, Rivera, and himself and that there was no group of five to six men.
Manuel denied that he ever pushed Jackson onto the couch, as Jackson testified. Manuel further testified that he never put his hands on Jackson in any way. Prior to the gunshot, Manuel did not hear Jackson say "please stop" or "please let me go." Rather, Manuel testified that "[t]he only thing that [Jackson] was saying is 'fuck.'" Manuel did not hear Jackson say, "Get back, or I will shoot." Manuel testified that he saw Jackson shoot Espina and Espina screamed and fell to the floor. After Espina was shot, Manuel started crying and asked Jackson to call an ambulance. Manuel testified that Jackson responded by saying "shut up, shut the fuck up." Manuel attempted to perform CPR on Espina, while Jackson stood by the door and did not render assistance. While Manuel was attempting to perform CPR, another officer came up behind Manuel, arrested him, and removed him from the apartment. Manuel did not see a police officer take over CPR after his arrest. When Espina was brought out of the apartment by the paramedics, Manuel was not permitted to see Espina. Manuel testified that after his arrest, he was taken to the police station and shackled to a wall for four and a half to five hours. He was questioned and charged with assault on a police officer. Manuel testified that he was taken to jail and released after two days.
Estela, Espina's wife, testified that she arrived at Gamez's apartment after Espina had been shot. Manuel told Estela that an officer had beaten and shot Espina. Estela testified that there was not a group of four to six men inside the apartment and that she did not see any men leaving the apartment. Estela testified that she asked Jackson why he killed her husband and he responded using offensive language. Estela saw Manuel attempt to perform CPR on Espina. Estela explained that Espina was on the floor, was "losing a lot of blood, " and "had [his] eye blown up, like it was puffed out." Estela testified that two officers grabbed her and removed her from the apartment. Estela asked to go with Espina, but the officers did not allow Estela to join her husband in the ambulance. Estela identified her own voice as well as Jackson's voice in the 9-1-1 recording. The voice Estela identified as Jackson's was heard saying "shut the fuck up" and "fuck you."
The jury ultimately returned a verdict for the Espinas, finding Jackson and Prince George's County liable for the violation of Espina's rights under Article 24 of the Maryland Declaration of Rights, assault and battery of Espina, and wrongful death. The jury further found a violation of Manuel's rights under Article 24 of the Maryland Declaration of Rights, and awarded damages totaling $11, 505, 000. Jackson and the county filed a motion for remittitur, JNOV, and/or a new trial. After briefing and a hearing on the post-trial motions, the circuit court denied the motion for JNOV and the motion for a new trial, but granted the motion for remittitur by applying the LGTCA cap to the judgment and reducing the judgment as to the county to $805, 000. Following this Court's decision in Leake v. Johnson, supra, 204 Md.App. 387, the county filed a motion for reconsideration. After a hearing, the circuit court reduced the verdict as to Prince George's County to $405, 000. The entire verdict as to Jackson was not reduced. The county also filed a motion to dismiss the "unlawful pattern or practice" claim against Prince George's County, which was the only remaining claim. The circuit court denied the motion to dismiss.
Additional facts will be discussed as necessitated by the issues presented.
I. State Constitutional Torts and the LGTCA Damages Cap
The applicability and constitutionality of the LGTCA damages cap, as applied to constitutional claims, is an issue that has been presented several times but never addressed by this Court or the Court of Appeals. In this case, however, we are presented squarely with the issue of the constitutionality of the LGTCA damages cap and are asked to ...