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Sewell v. State

Court of Special Appeals of Maryland

November 29, 2018

KELVIN SEWELL
v.
STATE OF MARYLAND

          Circuit Court for Worcester County Case No. 23-K-16-000289

          Wright, Leahy, Friedman, JJ. [*]

          OPINION

          Leahy, J.

         Kelvin Sewell was Chief of the Pocomoke City Police Department (the "Department") from December 2011 to July 2015. Sewell[1] alleged that Pocomoke City terminated him in 2015 for refusing to fire Officer Franklin Savage and Lieutenant Lynell Green. Sewell's termination occurred in the same year that he and Savage filed a series of complaints with the United States Equal Employment Opportunity Commission ("EEOC") alleging various forms of racial discrimination against the Department and, eventually, the Worcester County Sheriff's Department and the State's Attorney for Worcester County.[2]

         Following Sewell's termination from the Department, and while his complaints were pending before the EEOC, the State Prosecutor began investigating Sewell's conduct as Police Chief based, in part, on information provided by the State's Attorney for Worcester County. The State Prosecutor looked specifically at Sewell and Green's handling of the investigation into a 2014 traffic incident in which Douglas Matthews, driving home from a meeting at the Prince Hall Masonic Lodge, hit and damaged two unoccupied parked cars. The State alleged that Sewell, a Mason, conspired with Green, also a Mason, to commit the common-law misdemeanor of official misconduct by directing their subordinates to resolve the incident without charging or citing Matthews because of their "membership in the Mason brotherhood." On July 16, 2016, a Worcester County grand jury indicted Sewell for corruptly committing misconduct in office and conspiring to commit the misconduct with Green.

         To rebut the charge that he acted corruptly, Sewell maintained that his handling of the investigation was reasonable under the circumstances and consistent with the routine discretion that a small-town police chief exercises. He offered two expert witnesses who would have testified, among other things, to the considerations and objectives that impact a police chief's exercise of discretion during an investigation. The circuit court, however, granted the State's motion to exclude Sewell's experts' testimony, deciding that such testimony would not assist the fact-finder.

         At trial, the alleged association between Sewell and Matthews through their membership in the Prince Hall Masonic Lodge did not emerge from the evidence. The State focused, instead, on eliciting testimony that described Sewell's conduct as "unusual" and out of the ordinary. The jury convicted Sewell of misconduct in office but acquitted him of conspiring with Green.

         On appeal, Sewell raises five issues that drive at the fairness of the proceedings below:

"1. The jury's verdict finding Chief Sewell guilty of misconduct in office was not based on sufficient evidence."
"2. The trial court abused its discretion in excluding Chief Sewell's expert on law enforcement officer discretion."
"3. The trial court erred in admitting Officer Barnes's lay opinion testimony concerning whether it was right or wrong for Chief Sewell to instruct her to write up the traffic incident as an accident."
"4. The trial court abused its discretion in denying Chief Sewell's motion to dismiss for government misconduct without a hearing."
"5. The trial court abused its discretion in denying Chief Sewell's motion for new trial."

         Sewell asks this Court to dismiss the case against him with prejudice or, alternatively, remand for a new trial. We will grant the alternative relief.

         Although the State failed to show that Sewell's membership in the Prince Hall Masonic Lodge motivated his actions or had any relevance to the crimes charged, we (the majority) conclude that the balance of the circumstantial evidence presented at trial was enough to surmount the legal sufficiency hurdle. Still, the trial court erred by excluding Sewell's expert witnesses. The trial judge failed to appreciate that the proffered testimony was relevant and would have shed light on issues that are "beyond the ken" of the average layperson. This error prejudiced Sewell, especially given that the State's case rested on circumstantial proof of corrupt intent provided by subordinate officers who worked for the Department that Chief Sewell alleged had discriminated against him and fired him retaliatorily. We discern no abuse of discretion in the trial court's decision to deny Sewell's motion to dismiss for government misconduct without a hearing. In light of these holdings, we do not reach Sewell's final issue on appeal.

         The right to a fair trial is enshrined in our laws. Under the circumstances presented in this case, the risk of unfairness is intolerably high. We remand for a new trial.

         BACKGROUND

         The Traffic Incident

         Around 11:30 at night on November 21, 2014, a phone call woke Gayle Conrad as she slept in her home on Cedar Street in the "north sector" of Pocomoke City. It was a neighbor calling to let her know that a vehicle had struck her husband's truck, which was parked on the street in front of the Conrad house, and that the vehicle had left the scene. She went outside and saw that her grandson's vehicle, which was parked behind her husband's truck, was also damaged. Then, she observed "a wheel and part of an axle" that did not belong to either her husband's truck or her grandson's car lying in the road between the two vehicles. After Ms. Conrad called the Department, a dispatch officer reported the incident over the Department's radio and asked for a nearby officer to report to Ms. Conrad's residence for "a hit and run."

         The driver was Douglas Matthews, a correctional officer, who later claimed that he fell asleep while driving home from a late meeting at the Prince Hall Masonic Lodge, just four to five blocks from his home. After hitting the two unoccupied cars parked in front of the Conrad home, he immediately drove about two blocks farther to his own home and called to report the accident to Green.

         Meanwhile, around the same time, Pocomoke City Police Officer Damien McGlotten, who was on patrol in the south sector of the city, and Officer Tanya Barnes, who was on patrol in the north sector of the city, were responding to a noise complaint at an apartment complex in the south sector of Pocomoke City. After dispatch reported the hit and run, McGlotten and Barnes got into their respective patrol vehicles and drove to the scene. McGlotten later explained that, although the hit and run occurred in the north sector, the dispatcher assigned the call to him because Barnes had been assigned to the noise complaint and "hadn't cleared her call yet . . . saying she was back in service."

         Once McGlotten arrived at the Conrad residence, he observed the damage to the vehicles and proceeded to interview Ms. Conrad and her husband to find out what they knew about what happened. Barnes arrived next, and sometime thereafter, Green arrived on the scene and spoke with the officers and witnesses. McGlotten testified at trial that he found Green's presence to be "unusual" because "the call came out extremely late," Green hadn't notified anyone that evening that he was on shift, and he was not in uniform at the time.

         A call came over the radio stating that the vehicle responsible for the hit and run had been located a few blocks away in front of the Matthews' residence. Corporal Brad Morgan radioed that he had found a suspect, Matthews, who was not drunk or impaired, just scared. According to McGlotten, when he informed Green that he was going to respond to that location, Green instructed him to stay at the crash scene. McGlotten agreed, and both he and Barnes remained at the crash scene while Green went to the Matthews' residence. After approximately 20 or 30 minutes, Green radioed to McGlotten to "come over" to the Matthews' residence.

         When McGlotten and Barnes arrived at the Matthews' residence, they met Morgan, and shortly thereafter, Sewell arrived on the scene dressed in plain clothes. The officers met out front of the Matthews' residence, where McGlotten briefed Sewell on the accident and subsequent investigation. McGlotten would later testify that "it was pretty unusual" to have both Green and Sewell "show up late" to the scene of a "basic accident" and for "both to be in plain clothes."

         Following the briefing, Sewell assigned the call to Barnes, and told her that "it was just an accident" and that "it wasn't a hit a[nd] run." McGlotten then left the scene, and Barnes followed Sewell inside the Matthews' residence, where they found Matthews in the living room with his wife. Barnes attempted to ask Matthews if he was under the influence of any alcohol or medication but, she claimed, Sewell responded for Matthews and said that he "wasn't drinking." Barnes eventually completed a report characterizing the incident as an "accident," as Sewell had directed. The Department did not charge Matthews with a crime or issue him a citation.

         Indictment

         About 20 months after the Matthews incident, on July 19, 2016, a Worcester County grand jury indicted Sewell on two counts: (1) conspiracy to commit misconduct in office and (2) misconduct in office. The indictment charged that Sewell, conspiring with Green, did "corruptly commit misconduct in office by knowingly, willfully, and intentionally, under the color of his office, interfering with the legitimate investigation of a motor vehicle accident by subordinate police officers for the personal benefit of an acquaintance, Correctional Officer Captain Douglas E. Matthews."

         Motion to Dismiss for Retaliatory Prosecution

         Prior to trial, on October 12, 2016, Sewell filed a motion to dismiss the indictment for governmental misconduct. He alleged that the charges filed against him constituted retaliatory prosecution based on a series of lawsuits he had filed against the Pocomoke City Police Department and Worcester County State's Attorney's Office. In March 2015, while still Chief of the Department, Sewell filed a federal complaint of discrimination with the EEOC against the Department, which he later amended on June 9, 2015, to also include a charge of racial discrimination against the Worcester County Sheriff's Office. The Pocomoke City Council and Mayor terminated Sewell on June 29, 2015, after which he amended his EEOC complaint again-this time to allege retaliatory termination based on his refusal to fire Savage and Green, both of whom had their own charges of discrimination pending against the Department.[3] The EEOC issued determinations on April 29, 2016, finding reasonable cause to believe that Sewell was "subjected to harassment in retaliation for protected activity[, ]" and "discharged in retaliation for protected activity." See EEOC Determinations re: Charge Nos. 531-2015-01013; 531-2015-02134.

         Sewell alleged in his memorandum in support of his motion to dismiss the indictment that the timing of the indictment and Worcester County State's Attorney's involvement in the investigation were "curious" and showed improper prosecutorial motives. According to Sewell, the investigation against him was a "vague morass of allegations of wrongdoing[, ]" until late September 2015, when "the case, as it would come to be known in its current form, coalesced, in large part due to the involvement of [the State's Attorney]." In response to a September 22 inquiry from an investigator for the State Prosecutor, the State's Attorney forwarded four reports that he felt suggested that "Sewell may have improperly intervened in different traffic citations[, ]" including the Matthews incident. Sewell alleged that "it [wa]s no coincidence that the pattern of th[e] prosecution [wa]s proceeding almost essentially as [the State's Attorney] outlined." Sewell concluded that, following his "very heated and very public dispute" with the Department and State's Attorney's office, they acted in concert with investigators from the Office of the State Prosecutor to orchestrate and engineer the present case and its underlying investigation.

         Sewell attached 13 exhibits to his motion to dismiss, including copies of the EEOC complaints and the EEOC's determinations, and memoranda from the State Prosecutor's office and its investigator that outline their interviews related to the investigation into Sewell. These investigatory memoranda tended to show that the State Prosecutor did not limit its investigation to the Matthews' incident but also considered several other allegations related to Sewell and his time as Chief of the Department. The two other exhibits were a transcript of Matthews' testimony before the grand jury in which he stated that he was sober at the time of his crash and a note that was allegedly left on the windshield of Sewell's car that contained explicit, racist language and warned Sewell that a Pocomoke City Councilman is "tel[l]ing people in pocomoke to go against you" and "is working hard to get rid of you."

         The State responded by characterizing as baseless Sewell's accusation that the State's Attorney "orchestrated and engineered" the State Prosecutor's case against him. The State declared that the only role that the State's Attorney played in the investigation was to respond to the State Prosecutor's request for information and that "neither [the State Prosecutor] nor anyone else outside of the Office of the State Prosecutor was involved in any way whatsoever with the State's decision to prosecute [] Sewell criminally." Notably, the State highlighted three occasions when Sewell conceded that he did not believe the State Prosecutor was motivated by racial or retaliatory bias. Sewell failed to proffer "any facts whatsoever that indicate the State Prosecutor had any communication whatsoever with any of these parties concerning the charges in the indictment." Consequently, the State asserted that "no evidentiary hearing [wa]s warranted" because Sewell "proffered no verifiable facts amounting to any evidence tending to show the existence of the State's bad faith."

         On November 3, 2016, the circuit court denied Sewell's motion to dismiss without holding an evidentiary hearing.[4]

         The State's Motion to Exclude Sewell's Expert Witness

         Sewell notified the State that he intended to call two expert witnesses to testify that his conduct on the night of the Matthews incident was a reasonable exercise of his discretion under the circumstances. He proffered that the witnesses would testify, in part, "about the various considerations that police officers are trained to analyze in deciding whether the issuance of a citation is appropriate, and whether and when it is appropriate to detain a person and seek testing for alcohol or other impairing substances." The State moved in limine to exclude Sewell's proffered experts on police officer discretion. The State argued that the charge of official misconduct required the trier of fact "to decide whether or not Defendant Sewell wrongfully interfered in an accident investigation being conducted by subordinate officers, not whether or not he individually acted within his discretion in not taking further action against Matthews." According to the State, this "proffered expert testimony w[ould] not assist the trier of fact [] to understand the evidence or to determine a fact in issue, rather it w[ould] tend to confuse the jury by misdirecting their attention away from the real issue."

         Sewell opposed the State's motion, arguing that his proffered experts would assist the finder of fact because the allegations against him "go directly to the Chief's exercise of discretion[, ]" and his experts "w[ould] assist the trier of fact by explaining the ambit of discretion that is accorded to law enforcement officers and their supervisors and how that ambit of discretion applies to the facts of the present case." Along with Sewell's opposition brief, he included the curriculum vitae and an affidavit from Steven Ashley, one of his proffered experts.

         In his affidavit, Ashley, a former law enforcement manager, risk management professional, and criminal justice trainer who had testified as an expert in over 30 criminal cases, related, "I [] understand that Officer Barnes contends that Chief Sewell interfered with her questioning of Mr. Matthews. . . . I also understand that Officer Barnes has testified to the effect that Chief Sewell may have committed some impropriety by suggesting it was her responsibility to write the accident report. The officers on the scene did not conduct field sobriety tests on Matthews, nor did they subject him to a breathalyzer test." Ashley then observed that, as evidenced by The Pocomoke City Police Department Written Directives, officers have broad discretion and must weigh various considerations. He explained that this "broad discretion applies to all aspects of an investigation, including what inquiries to make or not make, how an incident is reported, and determining what are the pertinent facts to consider." Ashley opined that "it would have been within Chief Sewell's discretion to answer inquiries from Officer Barnes[, ]" and that "supervisors or officers in a supervisory position are within their discretion to delegate various responsibilities, including the writing of an accident report. If Chief Sewell assigned the writing of the report to Officer Barnes, it is my opinion that decision was within his discretion."

         A circuit court judge considered these arguments along with several other motions at a hearing held on November 22, 2016. The court delivered a brief oral ruling in which it granted the State's motion to exclude Sewell's experts, and stated that the proffered expert testimony "would not assist the jury as trier of fact in resolving the issues, and, in fact, I believe it might [] lead to confusion."

         Trial

         The case proceeded to trial on December 1, 2016. The State called as the first witness Gayle Conrad, who testified to the events of the evening following the accident. She related that several officers came and left her home, but that "nobody seemed to know what to do." The State's next witness was Anthony Tull, a member of the Prince Hall Masonic Lodge[5] located in or near Pocomoke City. Tull stated that he knew Matthews, Sewell, and Green as fellow Masons and that Sewell had been a member of the Prince Hall Masonic Lodge "approximately since 2014." Tull also stated that Sewell had been to "some" Mason-related events but "not very many." He related that both Sewell and Green were relatively new members of the lodge. After he explained the activities of the lodge in the community, the State asked again how often he saw Sewell at Mason-related events, to which he responded: "Not very many. Truthfully not very many, but he has been to some."

         McGlotten was the State's first witness from the Department. He began his testimony by describing how the Department divided the City into the north and south sectors and explained that "when an officer is not back in service in their sector, the other sector officer handles the call or the dispatcher knows automatically to pass it to them, so that way it expedites the response." He and Barnes were responding to an incident at Sunshine Village in the south sector of the city when he heard the call come in over the radio to "respond to 712 Cedar Street for a hit and run" in the north sector. He believed that Dispatch assigned the call, located in Barnes' sector, to him because "Barnes hadn't cleared her call yet basically saying she was back in service," even though they had completed their call to Sunshine Village. Both officers got into their respective vehicles and drove over to Cedar Street.

         Once McGlotten arrived at the scene of the accident, he observed "a wheel laying in the street" and "the damage that was done to vehicles that were on the scene." He exited his patrol vehicle and contacted the car's owner to "figure out exactly what they saw, what happened." At some point during the investigation, Green arrived on the scene. McGlotten explained that Green was his boss. The State Prosecutor asked him whether "it was unusual that you saw Lieutenant Green at the scene at 712 Cedar Street?" McGlotten told the members of the jury why it was unusual:

A. The call came out extremely late. It was near midnight. . . . The lieutenants typically when they're working, if they're assigned . . . back then they would do day and evening shift, you would know that they were on duty. . . . And at that point he hadn't throughout the whole evening notified that he was on shift or working.
Q. Do you remember what he was wearing that evening?
A. He was dressed in plain clothes.
Q. Is that unusual?
A. Yes.
Q. Why?
A. The uniform that he would have been wearing if he works evening shift, we call it BDU uniforms.

         According to McGlotten, a radio call from Morgan came over the radio stating that the vehicle responsible for the hit and run had been located a few blocks away in front of the Matthews' residence. Green instructed him to stay at the scene with Barnes while he went to the Matthews' residence. The State again asked McGlotten "[d]id you think it was unusual that Lieutenant Green asked you to stay?" He said that he did, and when asked to explain to the jury why it was unusual, he elaborated: "Being that there was nothing else left for me to do, I had already run the registration of the vehicles and everything was done[.]"

         McGlotten and Barnes eventually went over to the Matthews' residence. When they arrived, McGlotten saw that both Morgan and Green were there, and eventually "Chief Sewell arrived and was driving . . . a departmental issued" car. The State again directed McGlotten's testimony to what was unusual about Sewell's arrival:

Q. So, Officer McGlotten, first your boss, Lieutenant Green, is at the scene. Now your boss['s] boss, Chief Sewell, is at the scene. Is that unusual?
A. Yes.
Q. Tell the ladies and gentlemen of the jury why.
A. This is -- this incident is a basic accident. We go through these processes. I mean, there's at least one a week in the City of Pocomoke where there's accidents that do occur. . . . And for that time of night, [] both Lieutenant Green and Chief Sewell to show up that late out there and both be in plain clothes, it was pretty unusual[.]
Q. What's Chief Sewell wearing that evening?
A. He was wearing a dark colored hoodie, I believe it was black, and shorts, dark colored shorts.
Q. He wasn't wearing a uniform?
A. No.

         When Sewell arrived, McGlotten met with the officers on the scene and gave Sewell a "recap" of what was going on. Then Sewell looked at him and asked, "whose call is this[?]" McGlotten stated that it was his call-"[i]t was assigned to me." The prosecutor asked next:

Q. What does Chief Sewell do?
A. He paused probably for about five seconds and he said -- he basically he was, like okay. And then that's -- Officer Barnes ends up speaking up and says that she can take the call.
Q. Let's talk a minute before we talk about Officer Barnes. Let's talk about that five second pause. Was that unusual?
A. Yes.

         The trial court then sustained the defense's objection to the last question and answer, as it was without foundation. McGlotten continued his testimony by explaining that he wasn't okay with Sewell assigning the case to Barnes because he "didn't know the reason behind it[, ]" and "had already basically put in the work and done everything other than talk to the suspect."

         On cross-examination, however, McGlotten agreed that when Sewell asked who was assigned the investigation, he "explained that it should have been assigned to Officer Barnes, but she was busy when the call was dispatched, so I w[as] the first responder and the one who began the investigation," but "Officer Barnes volunteered to take it, so Sewell said that Barnes could take it." On re-direct, the State Prosecutor asked McGlotten to explain to the jury how assignments work within the Department. He responded: "Typically it's I want to say customary that if it's assigned to you, you just go and handle it. Otherwise, it looks almost as though you're also complaining and everything like that. And when you also . . . already handled the majority of the incident, the incident is essentially yours."

         Following brief testimony from Ms. Conrad's husband about his observations from that night, the State Prosecutor called Barnes as a witness. Again, the State Prosecutor's questions focused largely on what she found "unusual" about the night in question. Barnes confirmed after each question that she considered things to be unusual-the wheel in the road at Ms. Conrad's house, the missing wheel at the Matthews' house, and the police chief responding to a call that did not involve a major crime.

         Fixed on the "unusual" motif, the State next inquired whether there was "anything unusual to [Barnes] about the way" Sewell asked her and McGlotten who was handling the call. Barnes responded that it was unusual because Sewell was "looking directly at [her] . . . [j]ust kind of implying that he wanted me to take the call." After the third time Sewell asked, she told him she would take the call. Barnes then testified that when she asked Matthews if he had been drinking or was impaired by medication, and why he left the scene of the accident, Sewell answered for Matthews the two times she asked Matthews these direct questions. She said that Sewell directed her "to write it as an accident report," and advised her "that it wasn't a hit and run, and that the driver of the vehicle was not intoxicated or impaired." So, she wrote an accident report, which Green signed as her supervising officer. The State asked her about what she did later that evening:

[STATE]: Okay. [] Officer Barnes, based on what happened that evening, what did you do when you were - after you were off-duty?
[DEFENSE]: Objection. That's going to ask for an opinion, too.
THE COURT: No. It asks what she did. That's permitted.
[BARNES]: I called my ...

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