McGee v. Criminal Injuries Compensation Bd.

• Court: Maryland Court of Appeals
• Writing for the Court: LOWE
• Citation: McGee v. Criminal Injuries Compensation Bd., 469 A.2d 470, 57 Md.App. 143 (Md. App. 1984)
• Decision Date: 10 January 1984
• Docket Number: No. 319,319
• Parties: Ja-Wan McGEE v. CRIMINAL INJURIES COMPENSATION BOARD. Sept. Term 1983.

Page 143

57 Md.App. 143

469 A.2d 470

Ja-Wan McGEE v. CRIMINAL INJURIES COMPENSATION BOARD.

No. 319 Sept. Term 1983.

Court of Special Appeals of Maryland.

Jan. 10, 1984.

As Corrected Jan. 24, 1984.

John Amato, IV, Baltimore, with whom were John T. Enoch and Goodman, Meagher & Enoch, Baltimore, on brief, for appellant.

Valerie V. Cloutier, Asst. Atty. Gen., with whom was Stephen H. Sachs, Atty. Gen. of Maryland on brief, for appellee.

Argued before LOWE, LISS and BISHOP, JJ.

LOWE, Judge.

"[C]onceding an inability to ameliorate to any degree the threat of violent crime, and undertaking to assume the consequences of such crime as a public burden, on the ground of 'moral responsibility' ", the General Assembly enacted Md.Ann.Code, Art. 26A, the Criminal Injuries Compensation Act. Criminal Inj. Comp. Bd. v. Gould, 273 Md. 486, 498, 331 A.2d 55 (1975). That sense of moral responsibility has not so infected the sovereign conscience, however, that government will assume the more pointed consequences of its own negligent acts that cause equally serious financial hardships. See, e.g., City of Baltimore v. Austin, 40 Md.App. 557, 572, 392 A.2d 1140 (1978), aff'd Austin v. City of Baltimore, 286 Md. 51, 405 A.2d 255 (1979). For that purpose seventeen-year-old paraplegic Ja -Wan McGee sought succor from the Criminal Injuries Compensation Board for the "serious financial hardship" imposed upon him when Baltimore City Police Officer Stephen McCown apparently misapprehended McGee's conduct and shot at him three times until he finally felled him with a bullet severing McGee's spinal column.

As in tort law where a claimant must prove causation and injury, eligibility for a criminal injury award also has two prongs of inquiry; the first to ascertain that the claimant was the victim of a crime for which he was in no way responsible, (§ 5) and secondly, that he will suffer "serious financial hardship" (§ 12). Procedurally the statute provides that when a claim is accepted for filing, it "shall" be assigned by the chairman to himself or to another member of the three member board who shall examine the papers and investigate the validity of the claim, regardless of whether the alleged criminal has been apprehended or prosecuted. If he is unable to decide the claim by examination and investigation he may hold a hearing. Upon reaching his decision he shall file a written report setting forth reasons for either granting an award or denying the claim. Art. 26A, § 8.

Within 30 days of his receipt of the report, the claimant may make application "for consideration of the decision by the full Board", or the Board may do so upon its own motion. The statute mandates--and presumably limits--this full Board consideration to a "review [of] the record" and restricts the Board either to "affirm or modify the decision of the [single] Board member to whom the claim was assigned." § 9. ¹ Finality of the decision (presumably for purposes of notification and possible administrative appeal) is determined as being when the Board affirms or modifies the decision, or when thirty days after the single member decision is received by the claimant has elapsed by his having filed no application or no action is taken by the Board on its own motion. At this time "the secretary of the Board shall promptly notify the claimant, the Secretary of Public Safety and Correctional Services, the Attorney General and the Comptroller of the final decision of the Board and furnish each with a copy of the report setting forth the decision." Id.

Prior to 1975, the statute provided no right of appeal to a denied claimant but did permit "the Attorney General ... [to] commence a proceeding in the circuit court ... to review the decision of the Board," at which additional evidence could be taken. No other judicial review was permitted according to § 10 of the statute, and the Court of Appeals held on January 16, 1975 in Criminal Inj. Comp. Bd. v. Gould, supra, that this also excluded application of the appeal provisions of the Administrative Procedure Act. Two months later the Legislature responded by enacting § 10(c) which now provides appellate relief pursuant to the Administrative Procedure Act, Md.Ann.Code, Art. 41, §§ 255 and 256.

After Ja-Wan McGee's claim was accepted, examined and investigated, an eligibility hearing was scheduled to obtain further evidence and insight for deliberation of the primary concern of whether a crime had been committed and it was stipulated and agreed that that issue was the only issue to be determined at that hearing.

Joseph Pickus, Chairman of the Board, presided at the hearing which was also attended by Board member Meyer. Apparently, the Attorney General's office was invited to participate, according to Chairman Pickus' subsequent opinion, "to protect the interest of the parties and to assure that all issues would be heard in a fair and impartial manner". The Assistant Attorney General, however, assumed the role of claimant's antagonist from the start by attempting to thwart McGee's effort to establish that Officer McCown's shooting of him was a crime. His efforts on behalf of the State were clearly adversarial rather than impartial. Since the statute does not contemplate an appearance of the Attorney General until the decision of the Board or Board member becomes final, we are not surprised that his role was obscure, even to him.

Nonetheless, the hearing was had and Chairman Pickus wrote a thorough and articulate report setting forth his decision that McGee was a "victim of a crime" whose injuries were compensable and set forth in scholarly detail his reasons therefor. So concluding, the decision (dated August 19, 1981) ordered further hearings to determine the nature and extent of the claimant's disability.

On September 2, 1981, Chairman Pickus died. On September 3, 1981, the Attorney General--whose posture in the case at that juncture was questionable at best--requested a full Board review. When apprised that only the claimant, or the Board itself, had that right, the two surviving Board members, acting on the Board's "own motion", ordered on September 30, 1981, through acting chairman Marshall M. Meyer and Commissioner Jeffrey R. Schmieler, that the previous proceedings be transcribed, that the record be reviewed

"and that a further hearing be held in this case by the Full Board, at which time the claimant and the Assistant Attorney General shall present any additional relevant evidence in support of their respective positions ...."

By the time the hearing was had on March 3, 1982, a new Chairman, Russell C. Milburn, presided and explained how Commissioner Schmieler and Meyer had decided on "their own initiative to initiate under Section 9(b) of Article 26A a full Board hearing." ² He further explained that

"all statements, investigative reports, notes and prior testimony are part of the record and received into evidence and will be considered by the Board in rendering of its final decision of this Full Board hearing so that we also ask you that at the end of the case or sometime later we will be reviewing the extensive transcript that was written before in addition to everything else that has been submitted."

He then asked that the claimant and the Assistant Attorney General submit any additional evidence that "would be of any assistance in reaching a final decision."

The Board itself had ordered subpoenaed Officer McCown whom the Assistant Attorney General considered "in standing really a party in this case", but who had declined the opportunity to appear before Chairman Pickus. The Assistant Attorney General whom Chairman Pickus had called in "to protect the interest of the parties and to assure that all issues would be heard in a fair and impartial manner", again assumed an adversarial posture more pointedly this time of defending Officer McCown, "a man here whose career has been finished ...." In addition to Officer McCown's testimony, the Assistant Attorney General produced two fellow officers for the purpose of testifying that under the circumstances prior to the shooting, Officer McCown had probable cause to believe a robbery was in progress. He also produced over objection the report of Officer McCown's psychiatrist in order to show the psychiatric stability of the officer who, during his ten year tenure, had never before fired his gun.

This evidence became relevant because the question to be decided--whether a crime had been committed--was narrowed factually to whether Officer McCown had committed the common law crime of assault when he shot McGee. The peripheral issues were disposed of by undisputed findings that McGee and Robinson were at the scene legally and no evidence of any misconduct or breach of peace was introduced, and that Officer McCown did not have the mens rea or specific criminal intent usually associated with criminal conduct. Since McCown has repeatedly admitted having pointedly shot at McGee with the intent and purpose of rendering him into submission (which he did), the crime of assault would have been committed unless the shooting was justified or excusable, despite the fact that McCown was not prosecuted theretofore. ³

There was evidence in both hearings intended to generate the defense of self-defense and/or reasonable necessity. ⁴ In the former hearing before Chairman Pickus, McCown's testimony before the Baltimore City Police Trial Board was introduced which corresponded to his live testimony before the full Board. In neither instance are the "facts" in dispute. They revealed that as Officer McCown returned from a night school class, he stopped at the pizza shop to pick up a pizza order called in by his wife. The shop was in a high crime area and he observed the furtively suspicious conduct of McGee and Robinson peering in the shop window from a darkened area. When he entered he was apprehensive that a robbery might ensue, so he removed his pistol from its holster and held...