Sewell v. State
| Decision Date | 30 August 2021 |
| Docket Number | 854-2019 |
| Parties | KELVIN SEWELL v. STATE OF MARYLAND |
| Court | Court of Special Appeals of Maryland |
Circuit Court for Worcester County Case No. 23-K-16-000289
OPINION [*]
Our Court is again confronted with appellant Kelvin Sewell's conviction by a jury, for a second time, of a single count of misconduct in office. Kelvin Sewell served as Chief of the Pocomoke City Police Department (the "Department") from 2011 until his termination in 2015. He was the first African American to lead the Department. In 2016, the United States Equal Employment Opportunity Commission ("EEOC") found reasonable cause to believe that Sewell[1] was unlawfully "discharged in retaliation" for refusing to fire Officer Franklin Savage and Lieutenant Lynell Green, who had alleged various forms of racial discrimination against the Department with the EEOC.
On July 16, 2016, Sewell was indicted in the Circuit Court for Worcester County on one count of misconduct in office and one count of conspiracy to commit misconduct in office. The charges stemmed from Sewell's involvement in the investigation of a traffic incident that occurred on November 14, 2014. That evening, Douglas Matthews hit and damaged two unoccupied parked cars while driving home from the Prince Hall Masonic Lodge in Pocomoke City and then left the scene of the accident. The force of the impact, however, caused one of the wheels to come off the car, leaving a mark in the road where the remnants of the axle dragged for several blocks along Cedar Street. The car then made a right turn onto Eighth Street, and then a left turn onto Laurel Street, until the car finally stopped on Matthews's front lawn.
Pocomoke City Police Officer Tanya Barnes, and several other witnesses, testified, during Sewell's first trial, to the unusual manner in which Sewell directed the investigation and his failure to issue any citation to Matthews. At the close of a one-day trial, on December 1, 2016, the jury found Sewell guilty of misconduct in office but acquitted him on the conspiracy charge. Sewell appealed his conviction raising five issues pertaining to the fairness of the proceedings in the trial court. On November 29, 2018, this Court reversed his conviction and remanded the case for a new trial on the basis that the trial court erred in excluding Sewell's expert witnesses. Sewell v. State, 239 Md.App. 571, 580 (2018).
Between the first and second trials, Sewell's counsel informed the Office of the State Prosecutor ("OSP") that one of the State's witnesses, Tanya Barnes, recanted her testimony in the presence of Sewell and his colleague, Kedrick Scribner, an investigator for the Baltimore City State's Attorney's Office. Sewell's counsel provided the OSP with Scribner's affidavit to support Sewell's claim that Barnes told him she was pressured by OSP investigators to testify against Sewell or else the OSP would bring unrelated charges against her.
According to the State Prosecutor, Barnes "vehemently denied" these allegations. The OSP then subpoenaed Barnes to appear before a grand jury, where she testified that she never recanted her testimony. Next, the OSP subpoenaed Scribner to testify before the grand jury. The State Prosecutor stopped the proceeding, when it appeared that Scribner was not being truthful, and gave his counsel an opportunity to review the transcript. Thereafter, Scribner invoked his Fifth Amendment privilege against self-incrimination.
Sewell filed a motion to dismiss and a motion for an evidentiary hearing on his allegations of prosecutorial misconduct and vindictiveness, including "the improper use of the grand jury to 'lock in' potentially exculpatory witnesses in an already-indicted case." Sewell attached his affidavit to the motion to dismiss in which he recited, among other things, his version of the facts surrounding Barnes's recantation of her testimony. The court denied the motions, without receiving any evidence regarding Sewell's allegations of prosecutorial misconduct and vindictiveness, at a hearing on April 11, 2019.
Sewell's second trial began on May 14, 2019 and ended the next day. Once again, a jury convicted Sewell of the single count of misconduct in office. Sewell was sentenced to three years, all suspended, and placed on supervised probation. Sewell timely appealed and presents three issues for our review, which we reorganize as follows:
We conclude that the circuit court erred by denying Sewell an evidentiary hearing after he proffered verifiable facts amounting to some evidence of bad faith conduct by investigators within the OSP. Accordingly, we remand the case for an evidentiary hearing on Sewell's verifiable allegations relating to prosecutorial misconduct. See Portillo Funes v. State, 469 Md. 438, 475-76 (2020) ( that when the trial court "fail[s] to make findings of fact . . . prior to trial," on a matter "discrete from the issue at trial," and justice would be served by further proceedings, "[a] limited remand is proper"). For guidance on remand, we observe that under the circumstances presented, we do not discern anything improper about giving a witness, in the presence of counsel, an opportunity to consider whether the testimony provided to the grand jury was not truthful. Based on the record, Sewell did not present the trial court with verifiable facts to support his contention that the OSP coerced Scribner into silence or threatened to prosecute him for perjury.
In part II of this opinion, we address the remaining issues Sewell raises on appeal on the contingency that Sewell is unable to substantiate his claims of prosecutorial misconduct. See, e.g., Mills v. State, 239 Md.App. 258, 264 (2018) (). Accordingly, based on the record in the second trial, we hold that the State's expert's opinions did not lack an evidentiary basis and that the jury was presented with sufficient evidence to support its finding that Sewell's conduct in responding to the hit and run amounted to misconduct in office rather than the appropriate exercise of his discretionary authority.
In October 2016, Sewell filed a motion to dismiss for prosecutorial misconduct, alleging the charges against him were brought in retaliation for his EEOC complaints and the federal discrimination lawsuit that were filed against the Department and the Worcester County State's Attorney's Office.[2] Sewell argued that the "timing of the indictment compared to [his] EEOC complaints and the State's investigation [wa]s indicative of a taint" and suggested a "targeting of [Sewell] to find something, anything against him." The circuit court denied his motion to dismiss, without holding an evidentiary hearing, on November 3, 2016.
In Sewell's first appeal, we held that the court's denial of his motion to dismiss for prosecutorial misconduct without a hearing was proper because "Sewell failed to 'present facts sufficient to raise a reasonable doubt about the [OSP's] motive[.]'" Sewell, 239 Md.App. at 601 (quoting McNeil v. State, 112 Md.App. 434, 465 (1996)). We reasoned that the "curious" timing of Sewell's indictment alone was insufficient to merit a hearing because "[a] claim of vindictive prosecution based solely on the timing of the filing of the charges, without some evidence of actual bad faith, does not rise beyond the level of mere conjecture." Id. at 601 (quoting Robinson v. State, 209 Md.App. 174, 190 (2012), overruled on other grounds, Dzikowski v. State, 436 Md. 430, 456 (2013)). We also noted that Sewell conceded, on three prior occasions, that he was not accusing the party against whom he directed his motion, the OSP, of governmental misconduct. Id. at 600.
After we remanded the case, on February 12, 2019, Sewell's counsel sent a letter to the State Prosecutors informing them that counsel had "learned additional information regarding Tanya Barnes that warrants dismissing the case against Chief Sewell." Counsel indicated that, in January 2019, Barnes approached Sewell's vehicle while it was parked on Gay Street in Baltimore City. The letter stated that Barnes apologized for lying, and quoted Barnes telling Sewell that "[t]he two investigators told me that they were going to indict me if I didn't lie for them." The letter further indicated that Barnes approached Sewell at least two other times and that the encounters were corroborated by video footage. Counsel submitted that the "new information strongly cautions in favor of dismissal of the indictment[.]" In addition, counsel informed the OSP that if it elected not to dismiss the indictment, counsel intended to file a "renewed motion to dismiss for government misconduct and to seek an evidentiary hearing incorporating these new developments."
Sometime after receiving the letter from Sewell's counsel, the OSP, "aware of its important obligation as truth-seekers and wanting to avoid suborning perjury, asked [] Barnes if [Sewell's] allegations were truthful."[3] Because Barnes "vehemently...
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