Lagud v. Kansas City Bd. of Police Com'Rs

• Citation: 136 S.W.3d 786
• Decision Date: 22 June 2004
• Docket Number: No. SC 85627.,SC 85627.
• Parties: Jeffrey L. LAGUD, Respondent, v. KANSAS CITY BOARD OF POLICE COMMISSIONERS, Appellant.
• Court: United States State Supreme Court of Missouri

136 S.W.3d 786

Jeffrey L. LAGUD, Respondent, v. KANSAS CITY BOARD OF POLICE COMMISSIONERS, Appellant.

No. SC 85627.

Supreme Court of Missouri, En Banc.

June 22, 2004.

Dale H. Close, Kansas City, MO, for Appellant.

Steve A.J. Bukaty, Overland Park, KS, for Respondent.

LAURA DENVIR STITH, Judge.

The Kansas City Board of Police Commissioners (the Board) found that Officer Jeffrey Lagud violated department policy by touching the penis of an arrestee while collecting a urine sample and by being untruthful in his testimony before the Board and during the investigation of the incident. As a result, the Board suspended Officer Lagud without pay for nearly eight months. Officer Lagud alleges that the Board should have stricken the testimony of Mr. Russell, the alleged victim, because his invocation of the Fifth Amendment on cross-examination improperly precluded Officer Lagud from testing his capacity to perceive and recall what occurred during collection of the sample.

This Court agrees that Mr. Russell's invocation of the Fifth Amendment on cross-examination precluded inquiry into his competence to observe and recall the events about which he testified on direct examination. The precluded testimony was both relevant and material, rather than merely collateral or impeachment evidence, and was non-cumulative. In this circumstance, the Board erred in failing to grant Officer Lagud's motion to strike Mr. Russell's testimony about the incident. Inasmuch as the Board relied primarily on the testimony of Mr. Russell and Officer Carmody in reaching its decision, the failure to strike Mr. Russell's testimony was prejudicial. The circuit court's judgment is reversed, and this Court remands the case so that the circuit court may remand to the Board for further proceedings consistent with this opinion.

I. Factual and Procedural Background

The witnesses and evidence at the hearing before the Board showed the following. On the night of September 10, 2000, Officer James Carmody and his partner noticed James Russell sitting behind the steering wheel of his car in the parking lot of a Kansas City nightclub. The keys were in the ignition, and the engine was running. Mr. Russell appeared to be unconscious, and his body was leaning out of the open driver's-side door. The officers roused him and asked him to exit the vehicle for a field sobriety test. The police report prepared by Officer Carmody's partner said that Mr. Russell was so impaired that he fell when trying to get out of his car, but Officer Carmody testified at the hearing that he had helped Mr. Russell exit the car without falling.

Officer Carmody's partner found Ecstasy when he searched Mr. Russell. The officers also found various drugs, including steroids, more Ecstasy, and gamma hydroxy butyrate (GHB), the "date-rape" drug, in Mr. Russell's car. They arrested him and brought him to the police station. Mr. Russell at some point informed Officer Carmody and his partner that he had taken GHB, which in high doses can cause unconsciousness, memory loss, and coma.¹ The officers then obtained the assistance of Officer Lagud and another drug recognition and evaluation officer to conduct a series of tests on Mr. Russell. As a safety precaution, the officers kept the hands of Mr. Russell, a six-foot, 240-pound body builder, handcuffed behind his back due to his erratic behavior, which vacillated between unconsciousness and agitation.²

A breathalyzer test was negative for alcohol. According to the officers, they then obtained Mr. Russell's consent to test his urine for drugs. Officers Carmody and Lagud then escorted Mr. Russell to a small, partially enclosed urinal in the holding cell. Officer Carmody stood behind Mr. Russell, whose hands were still cuffed behind his back, and held the handcuffs to keep Mr. Russell from falling.

Accounts differ as to what happened next. According to Officer Lagud, he unfastened and pulled down Mr. Russell's pants and underwear, and collected the sample by then holding the sample cup in front of Mr. Russell and instructing him to begin urinating. He then pulled Mr. Russell's underwear back up, all without touching Mr. Russell's penis.

Officer Carmody described the event differently when he mentioned it to his supervisor a couple of days later, as they were lifting weights. He said that Officer Lagud had held Mr. Russell's penis while collecting the urine sample. An internal affairs investigation ensued. Officer Carmody told the investigator that, in addition to seeing Officer Lagud hold Mr. Russell's penis while collecting the sample, he had actually seen Officer Lagud unzip and unbutton Mr. Russell's pants, reach into the waistband of Mr. Russell's underwear, and remove his penis. Officers Lagud and Carmody both subsequently took polygraph tests; neither polygrapher found his test subject had lied.

Based on the investigation, Chief of Police Richard Easley filed charges and specifications with the Board, charging Officer Lagud with misconduct in violating department policy³ by "obtain[ing] a urine sample by grabbing and holding the penis of the arrest[ee]" and by then denying he had done so.

On April 16, 2001, the Board held a hearing pursuant to section 84.610.⁴ During the hearing Officer Lagud testified consistently with his prior statements. Officer Carmody retracted his prior claims that he saw Officer Lagud actually unbutton and unzip Mr. Russell's pants, reach into his underwear, and remove his penis. Instead, Officer Carmody claimed that, after Mr. Russell's penis was exposed and Officer Lagud instructed Mr. Russell to begin urinating, he saw Officer Lagud hold Mr. Russell's penis in his left hand while Mr. Russell urinated into the sample cup held in Officer Lagud's right hand, shake Mr. Russell's penis and place it back in his underwear.

Mr. Russell's testimony differed somewhat from that of either officer. He said that he was simply sleeping in his car when officers tapped on the window and asked him to exit the car. He said that the engine was not running when the officers found him and that he got out of the car without falling. He then answered the officers' questions and was patted down for weapons. He said he objected to being searched and to having the car searched, but both were searched nonetheless, and drugs, including GHB, were found in the vehicle. He admits he was subsequently arrested by Officer Carmody and taken to a police station. At the station, he said, he remained handcuffed and took a breathalyzer test, which was negative for alcohol. He stated he was then told to give a urine sample, and, while he did not give permission for the urinalysis, he gave the sample when instructed to do so.

When asked at the hearing to identify the man who took the urine sample and allegedly touched his penis, Mr. Russell was unable to identify Officer Lagud. In fact, he identified one of the attorneys sitting with Officer Lagud at the counsel table as the officer who had touched his penis. When subsequently asked if he was, in fact, not able to identify who took the sample, he admitted this was true but stated he remembered the sample being taken. He was unable to give a description of the appearance of the officer who took the sample. He further incorrectly identified the police station where the sample had been taken. And, he agreed that he had not mentioned the touching until after he was approached by police investigating Officer Carmody's allegations. But, at the hearing, he nonetheless testified that during the sampling process Officer Carmody was behind him and the other officer touched his penis.

As discussed infra, Mr. Russell then invoked the Fifth Amendment and refused to answer questions about his drug use or his ability to perceive on the night in question. The Board ruled that Mr. Russell's drug use was irrelevant, foreclosed further cross-examination on this topic, and refused Officer Lagud's motion to strike Mr. Russell's testimony or to presume that his cognition was impaired at the time of his arrest based on his refusal to testify. Later during cross-examination, however, Mr. Russell volunteered in response to an unrelated question that he "didn't think there was anything in [his] system that would make a difference" and denied being "under the influence of drugs at [the] time" of his arrest. Nevertheless, the Board refused to change its prior rulings regarding cross-examination on Mr. Russell's drug use or striking his testimony. Instead, it found Officer Lagud's account not to be credible, concluded that he violated departmental policy, and suspended him without pay for nearly eight months. It said in so ruling it relied "primarily" on the testimony of Mr. Russell and of Officer Carmody.

Officer Lagud appealed, and the circuit court reversed the Board's decision. The Board then appealed. Following opinion by the Court of Appeals, Western District, this Court granted transfer. Mo. Const. art. V, sec. 10.

II. Standard of Review

Article V, section 18, of the Missouri Constitution provides for judicial review of administrative actions to determine "whether [such agency actions] are authorized by law, and in cases in which a hearing is required by law, whether the same are supported by competent and substantial evidence upon the whole record." Mo. Const. art. V, sec. 18 (emphasis added). Consistent with the constitutional standard, section 536.140.2 provides for appellate review of the administrative ruling, not that of the circuit court, to determine whether the administrative action:

(1) Is in violation of constitutional provisions;

(2) Is in excess of the statutory authority or jurisdiction of the agency;

(3) Is unsupported by competent and substantial evidence upon the whole record;

(4) Is, for any reason, unauthorized by law;

(5) Is made upon unlawful procedure or without a fair trial;

(6) Is arbitrary, capricious or unreasonable;

(7) Involves an abuse of discretion.

Sec. 536.140.2....