Balt. Police Dep't v. Ellsworth

• Decision Date: 25 March 2013
• Docket Number: No. 0005,Sept. Term, 2012.,0005
• Citation: 63 A.3d 1192,211 Md.App. 198
• Parties: BALTIMORE POLICE DEPARTMENT, et al. v. Joshua Tripp ELLSWORTH.
• Court: Court of Special Appeals of Maryland

211 Md.App. 198

63 A.3d 1192

BALTIMORE POLICE DEPARTMENT, et al.

v.Joshua Tripp ELLSWORTH.

No. 0005, Sept. Term, 2012.

Court of Special Appeals of Maryland.

March 25, 2013.

Daniel C. Beck (George A. Nilson, City Solicitor, Neal M. Janey, Jr., Christopher C. Sakles, on the brief), Baltimore, MD, for Appellant.

Clarke F. Ahlers, Columbia, MD, for Appellee.

Panel: ZARNOCH, WRIGHT, CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), JJ.

WRIGHT, J.

This appeal arises from the decision of a Baltimore City Police Department trial board (the “Board”) finding appellee, Joshua Tripp Ellsworth, a detective in the Homicide Unit, guilty of two violations of the Baltimore City Police Department Administrative Rules and Regulations. The appellant, the Baltimore City Police Department (“BPD”), charged Det. Ellsworth with seven violations based on incidents that occurred on August 7, 2009. At the hearing before the Board, the BPD called Ofc. Daniel Redd as a fact witness. Det. Ellsworth sought to impeach Ofc. Redd's credibility based on an ongoing investigation of Ofc. Redd's alleged drug dealing, but was not provided with, or permitted to introduce, extrinsic evidence of Ofc. Redd's activities. On August 19, 2011, Det. Ellsworth filed a Petition for Judicial Review of the Board's decision in the Circuit Court for Baltimore City contending that the BPD was required to provide the evidence of Ofc. Redd's activities under the “exculpatory evidence” provision of the Law Enforcement Officer's Bill of Rights (“LEOBR”), Md.Code (2003, 2011 Repl.Vol.) Public Safety Article (“PS”) § 3–104(n). The circuit court reversed the decision of the Board and remanded the matter for further proceedings. This timely appeal followed.

Questions Presented

The BPD asks us to determine the following:

1. Did the Circuit Court err in finding that [BPD] violated the rights of the Appellee under LEBOR [sic] § 3–104(n)(1) by failing to disclose any information regarding the FBI's investigation of a witness in the trial board, Daniel Redd, for distributing controlled dangerous substances and handgun violations?

2. Did the Circuit Court err in finding that [BPD] violated the rights of the Appellee under LEBOR [sic] § 3–104(n)(1) without analyzing whether the error was harmless or that the prejudice was probable.

Because we answer the first question in the affirmative and affirm the decision of the Board, we need not address BPD's second question.

Facts and Procedural History

On August 7, 2009, BPD's Northwestern District Patrol Unit (“Patrol”), along with several other units, including DDU ¹ and Homicide, responded to the possible abduction of a young female correctional officer from a hair salon at 4600 West Northern Parkway (the “Salon scene”). Sergeant Milton Snead, a DDU supervisor, spoke with Sgt. Deneen Williams of the Family Crimes Unit (“FCU”) who asked him to send units to the Salon scene, gather information, and report back before FCU sent any units to investigate. Sgt. Snead informed Ofc. Redd, Det. Thomas Bender, and Lt. Damien Carter (who was off-duty at the time) and Sgt. John Jackson notified Det. Ellsworth of the possible abduction at the Salon scene.

When Ofc. Redd and Det. Bender arrived at the Salon scene, Det. Ellsworth and Sgt. Jackson were already present along with with several other units and several correctional officers. Ofc. Redd and Det. Bender spoke to Det. Ellsworth, who informed them that Homicide was not handling the investigation. Ofc. Redd gave Det. Ellsworth his cell phone so that Det. Ellsworth could update Sgt. Williams. When he finished, Det. Ellsworth told Ofc. Redd that FCU would respond to the scene. It is unclear whether FCU ever responded to the Salon scene.

As the BPD conducted a preliminary investigation at the Salon scene, a second possible crime scene was identified in the 2700 block of West Garrison Boulevard (the “Garrison scene”). The second crime scene was preliminarily identified based on a van matching the description of one involved in the alleged abduction and an address allegedly associated with the suspected kidnapper (“the suspect”). The initial BPD officers to respond to the Garrison scene consisted of Patrol units commanded by Sgt. Jonathan Brickus.

Lt. Carter testified that when he arrived at the Garrison scene, the scene was unsecured and Sgt. Brickus, as the ranking Patrol person at the scene, was in charge. According to Ofc. Sharron Mason of the Northwest District Foot Patrol, Sgt. Brickus was the “acting lieutenant that day.” However, Lt. Carter was the permanent ranking supervisor present at the scene. Ofc. Mason arrived at the same time as Lt. Carter and Sgt. Brickus, followed by Ofcs. Monique Lucien and Richard Rouse. Dets. Kendall Rickburg and Augustus Lake were next. Det. Ellsworth, Ofc. Redd, and Det. Bender arrived shortly thereafter.

Lt. Carter and Sgt. Brickus began formulating an investigation strategy after they arrived but had not settled on a plan when Det. Ellsworth arrived. Additionally, there was some confusion about who would be handling the investigation. When Det. Ellsworth reached the scene, he told Sgt. Brickus that Homicide was not handling the investigation; either FCU or DDU was in charge. Lt. Carter told Det. Ellsworth that DDU was not handling the investigation. Sgt. Brickus contacted Sgt. Williams, who informed him that FCU would handle the domestic part of the case and she would contact Homicide to determine who was handling the abduction.² As a result, it was not clear when Det. Ellsworth arrived that Patrol and Sgt. Brickus, as the Patrol supervisor, were relinquishing control of the investigation.

The BPD did not know which house on the block, if any, contained the suspect and victim. Det. Ellsworth initially joined Lt. Carter and Sgt. Brickus where they were positioned but, before a formal plan was established, Det. Ellsworth turned away from them and began to walk toward 2727 West Garrison Avenue (“the House”). When Sgt. Brickus realized Det. Ellsworth was walking toward the House, he told Det. Ellsworth not to go down the street. Det. Ellsworth did not respond to Sgt. Brickus. Sgt. Brickus “yelled again, ‘Don't go down the street.’ ” When Det. Ellsworth did not stop, Sgt. Brickus yelled that if Det. Ellsworth continued, he was suspended. Det. Ellsworth yelled back to Sgt. Brickus, “do what you got to do.” Lt. Carter then “yelled to Det. Ellsworth to come back and he complied, no issues.” Det. Ellsworth was not suspended that night.

As Det. Ellsworth walked back, Sgt. Brickus met him in the street and the two engaged in a “heated” exchange before numerous civilians and BPD officers. Sgt. Brickus demanded that Det. Ellsworth turn over his badge and handgun, and Det. Ellsworth resisted. Sgt. Brickus reached for Det. Ellsworth's badge and Det. Ellsworth pulled away. The two exchanged words with Det. Ellsworth telling Sgt. Brickus that he did not have the authority to suspend him as he was not his supervisor. Lt. Carter intervened, informed Det. Ellsworth that he (Lt. Carter) was his supervisor, and instructed Det. Ellsworth to surrender his badge and handgun to Sgt. Brickus. Det. Ellsworth complied.

Lt. Carter separated Det. Ellsworth and Sgt. Brickus telling Det. Ellsworth to go sit in his car and call the Homicide supervisor. Approximately twenty minutes after telling Det. Ellsworth to sit in his car, Lt. Carter instructed Ofc. Redd and Det. Bender to begin investigating by talking to the neighbors on the street. At that point, Det. Ellsworth was sitting on the hood of his car per Lt. Carter's instructions. Lt. Carter then received a phone call from Maj. David Engel, his own supervisor, and walked away from the Garrison scene to brief Maj. Engel on the situation and scene.

When Det. Bender went down the street to talk to neighbors, Det. Ellsworth accompanied him. After speaking to a man living next door to the House, Det. Bender and Det. Ellsworth stepped over the porch rail and onto the porch of the House. Det. Bender looked through the mailbox and either Det. Bender or Det. Ellsworth knocked on the door of the House. As they were knocking on the door, Sgt. Brickus noticed them and looked for Lt. Carter to have Lt. Carter intervene. Lt. Carter had “drifted away” from the Garrison scene, while still on his cell phone, and was unavailable. Sgt. Brickus ran to the House and ordered both Det. Bender and Det. Ellsworth to get off the porch.

Det. Bender immediately complied but Det. Ellsworth did not. Sgt. Brickus interposed himself between Det. Ellsworth and the door and again told Det. Ellsworth to get off the porch. When Det. Ellsworth refused, Sgt. Brickus pushed him off the porch. Det. Ellsworth then attempted to re-enter the porch but Sgt. Brickus rebuffed him, turned him around, and took out his handcuffs. Det. Ellsworth told Sgt. Brickus something to the effect of “arrest me.”

Seeing the altercation, Sgt. Jackson told Lt. Carter that Det. Ellsworth and Sgt. Brickus were “at it again” and ran down the street. Reaching the two men, Sgt. Jackson separated Sgt. Brickus and Det. Ellsworth. Sgt. Jackson walked with Det. Ellsworth back in the direction of Lt. Carter. Sgt. Brickus put his handcuffs away and also walked back. Meanwhile, Lt. Carter told his supervisor that he was placing himself on duty and taking charge of the Garrison scene because “it was getting ridiculous.” Shortly after Sgt. Jackson separated Sgt. Brickus and Det. Ellsworth, Lt. Carter was informed by a supervisor via cell phone that Homicide was taking charge of the investigation. Based on this information and the information that the van and House were not involved with the suspect, Lt. Carter ordered the DDU and Patrol personnel to leave the scene. When only Lt. Carter, Sgt. Brickus, and Det. Ellsworth remained, Lt. Carter ordered Sgt. Brickus to return Det. Ellsworth's handgun and badge.

Sgt. Brickus initiated a complaint against Det. Ellsworth and on August 10, 2010, the...