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Cagle v. State

Court of Appeals of Maryland

December 13, 2018


          Argued: October 3, 2018

          Circuit Court for Baltimore City Case No. 115246012

          Barbera, C.J., Greene, [*] Adkins, McDonald, Watts, Hotten, Getty, JJ.


          HOTTEN, J.

         Wesley Cagle ("Cagle") seeks review of a ruling by the Circuit Court for Baltimore City that precluded Cagle from playing video excerpts of trial court testimony during closing argument. The Court of Special Appeals affirmed. We granted certiorari to answer the following question: "Does a trial court err in precluding a criminal defendant from using trial testimony video in closing argument?" For reasons stated below, we shall affirm the judgment of the Court of Special Appeals.


         Factual Background

         On December 28, 2014, Baltimore City Police Department Officers Dancy Debrosse, Isiah Smith, Kevin Leary, and Cagle responded to a triggered security alarm at a convenience store in Baltimore, Maryland. Upon arrival, Officers Smith and Leary positioned themselves on either side of the entrance into the store, while Cagle remained in a side alley. The suspect, who was wearing a mask and later identified as Michael Johansen, opened the convenience store door and advanced towards Officers Smith and Leary. Johansen ignored Officer Leary's numerous commands to show his hands and continued to walk towards the officers. As he approached, Johansen reached into his waistband and, according to Officer Smith, grabbed "something silver" that Officer Smith feared was a knife or gun. Officers Smith and Leary both fired at Johansen, striking him in several places and causing him to fall backwards into the doorway.

         After hearing the gunshots, Cagle emerged from the side alley with his gun drawn. Officers Leary and Smith still had their weapons drawn and trained upon Johansen, who was lying in the doorway of the convenience store. Cagle approached Johansen, walking directly into the other officers' line of fire and forcing them to lower their weapons. While Johansen was still lying on the ground, Cagle and Johansen had a brief exchange of words, followed by Cagle firing once at Johansen.

         The parties differ regarding what was expressed between Cagle and Johansen, as well as the purpose of Cagle firing his weapon. At trial, Cagle testified that he repeatedly yelled, "[L]et me see your hands," to Johansen as he approached. Cagle contended that Johansen moved his hands in an upward motion, "like he was taking his shirt off or zipping his jacket[.]" Cagle claimed that he observed a shiny metal object in Johansen's hands, and "discharged [his] weapon at the threat." Conversely, Johansen testified that when Cagle approached, Johansen asked, "What was that, like one of them bean bag guns?" and Cagle allegedly replied, "No, it was a .40 caliber, you piece of sh*t," and then shot Johansen in the groin. Officers Leary and Smith testified that they were not able to hear the exchange between Cagle and Johansen, and did not have a clear view of Johansen while he was lying on the ground. However, Officer Leary told Internal Affairs that at the time Cagle shot Johansen, "the threat was over." Procedural Background

         Cagle was indicted on September 3, 2015 on four counts: Attempted Murder in the First Degree, Attempted Murder in the Second Degree, Assault in the First Degree, and Use of a Firearm in Commission of a Felony or Crime of Violence. During the trial, Cagle elicited testimony from Johansen, Officers Leary and Smith, and a firearms expert regarding the reasonableness of the amount of force Cagle used when he shot Johansen. Prior to closing arguments, defense counsel asked the court's permission to use a PowerPoint during his closing argument that would contain video recorded excerpts of trial testimony, as well as a video recording of a pretrial statement made by Johansen that had been introduced into evidence. Cagle asserted that the outcome of the case was dependent on eyewitness testimony and the jury's determinations of credibility of these witnesses. Cagle argued that playing the in-court testimony during closing argument would allow the jury to observe the witnesses' demeanor and adequately judge the consistency of their statements. The trial court indicated that it wished to view the PowerPoint and the accompanying video excerpts before counsel used it. After reviewing the PowerPoint, the court advised counsel that she would allow counsel to include in the PowerPoint the recording of the pretrial statement that had been introduced into evidence, but not the video excerpts from trial testimony. The court explained its decision as follows:

I do not allow, under any circumstances, the replaying of court testimony during closing argument. I routinely have for 17 years, and did in this case, instruct the jury to take notes. I told them that it's their collective memory of the case. I told them to be mindful of the live testimony and that when they go into the jury room, that they are to use their collective memory of the evidence in rendering their verdict.
During my instructions to them, I reiterated that nothing that you say -- you guys say is evidence and it's their collective memory of the evidence that prevails. I only will play for the jury live testimony of witnesses who've testified in this case at their request during deliberations. That has been [my] practice for 17 years and it is going to continue to be my practice in this case without exception.
I do not want to give this jury the impression that we're going to sit for the rest of this week and replay the live court testimony of every witness who's testified in this case, nor am I going to allow anyone to play excerpts of something, giving the impression that one witness's testimony is more important than another because as I've already instructed them, they ...

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