Circuit Court for Worcester County Case No. 23-K-16-000289
Wright, Leahy, Friedman, JJ. [*]
Sewell was Chief of the Pocomoke City Police Department (the
"Department") from December 2011 to July 2015.
Sewell 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.
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.
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
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.
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
"2. The trial court abused its discretion in excluding
Chief Sewell's expert on law enforcement officer
"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."
asks this Court to dismiss the case against him with
prejudice or, alternatively, remand for a new trial. We will
grant the alternative relief.
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.
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.
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
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.
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."
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.
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.
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."
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.
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."
to Dismiss for Retaliatory Prosecution
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. 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.
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.
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
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."
November 3, 2016, the circuit court denied Sewell's
motion to dismiss without holding an evidentiary
State's Motion to Exclude Sewell's Expert
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
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.
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."
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."
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 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
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.
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. The uniform that he would have been wearing if he works
evening shift, we call it BDU uniforms.
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[.]"
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?
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?
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
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
Q. Let's talk a minute before we talk about Officer
Barnes. Let's talk about that five second pause. Was that
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."
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
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
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
[STATE]: Okay.  Officer Barnes, based on what happened that
evening, what did you do when you were - after you were
[DEFENSE]: Objection. That's going to ask for an opinion,
THE COURT: No. It asks what she did. That's permitted.
[BARNES]: I called my ...